INDIAN EVIDENCE LAW NOTES

Introduction

The ends of law are met by establishing the rights, duties and liabilities of a particular person(s) before the court. The basic law which defines the rights and liabilities of a person is called the substantive law (e.g. the Indian Penal Code). However, in order to establish the applicability of a specific substantive law, it is necessary to follow certain procedures in the court of law (eg. Criminal Procedure Code) and also there are certain rules of law that deal with the mode of proof of the existence or non-existence of those rights, duties and liabilities (the Indian Evidence Act).

 

The Indian Evidence Act is partly procedural (adjective) and partly substantive. The basic purpose of the Indian Evidence Act is to lay down the rules pertaining to proving or disproving the existence of certain facts which are called the ‘facts in issue’.

 

Whenever a particular matter comes before the court, the liability of a party to the case depends upon the existence or non-existence of certain facts e.g. A is accused of the murder of B by shooting. In the given situation, the liability of A to be punished under Section 302 of the Indian Penal Code depends upon the proving of the fact that ‘A caused the death of B by shooting at him with the intention of causing death or that ‘A shot at B with the knowledge that his act is so imminently dangerous that it is in all probability likely to cause death and that A did not have any excuse to incur that risk’ etc.

 

The given facts in the above case are the facts in issue. The proving or disproving of a fact in issue will render A liable under Section 302, Indian Penal Code or will absolve him of any liability under Section 302, Indian Penal Code, respectively.

 

However, in order to establish the above, the court has to gather information regarding the other facts. The net effect of all the other facts (called relevant facts) is to prove or/disprove the facts in the issue. There might be a multitude of facts that surround a given fact in issue. But every fact will not be relevant. So, the court first has to examine what facts will be relevant and then the court has to be satisfied as to the truthfulness of the relevant facts. Proof as to the veracity of the relevant facts has to be given. This proof can be given either by some oral evidence or some documentary evidence. In certain situations, the court pays itself presume or take judicial notice of certain facts. Another question is regarding ‘who has to prove’ a fact i.e. upon whom does the burden of proof lie. Also, in the cases of oral

evidence, there is the question as to who can be a witness and how he has to be cross-examined so as to establish the veracity of his statements.

The Evidence Act is divided into three parts comprising eleven chapters –

  1. Part I consists of two Chapters (I & II) dealing with definitions and relevancy of facts.
  2. Part II comprises Chapters II to V which provide for proof of facts by oral or documentary evidence
  3. Part III embodies Chapters VI to XI which contains rules for the production of evidence in court, the effect of presumptions and the duties of the Court in dealing with the evidence produced before it.

 

There are two fundamental principles of the law of evidence. What is relevant may be proved, but everything that is relevant may not be admissible as evidence. This admissibility of evidence is tested on the basis of the truth value of the relevant facts. For example, certain facts, though relevant, are excluded under Evidence Act, viz.

  1. Facts similar to, but especially connected with each other would be excluded unless it is an experimental case.
  2. Similarly, hearsay evidence, that is, the assertion regarding the existence of any fact by any person who is not called as a witness, is generally excluded.
  3. Evidence regarding the opinion of others regarding the existence or non-existence of a fact is generally excluded, though in some exceptional cases, it may be admitted.
  4. The fact that any person’s character is such as to render certain conduct imputed to him probable or improbable is also excluded.

Thus, it should be noted that the law does not admit every fact which is logically relevant.

 

The cardinal principle of the law of evidence, namely that evidence must be confined to the matters in issue, is qualified by the following two fundamental principles:-

  1. Evidence should be given on facts in issue and relevant facts. Hearsay evidence is not to be admitted.
  2. In all cases, the best evidence must be given.

 

The Act makes an attempt to define positively and enumerate what are relevant facts. The concept of relevancy is laid down in Section 11 of the Act; facts which are inconsistent with facts in issue or relevant facts, or those which render highly probable or improbable the fact in issue, are themselves relevant. This is the gist of the relevancy of facts. A fact is relevant only when it has a tendency of making the existence or nonexistence of the facts in issue highly probable in the opinion of the Court.

 

In English law, the law of evidence generally states what facts cannot be adduced as evidence, the inference being that the rest of them can be adduced as evidence. The Evidence Act, on the other hand, makes an attempt to state positively what facts are relevant.

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In brief, the questions which the law of evidence attempts to answer are the following:

  1. What kind of facts may be proved in order to establish the existence or non-existence of a fact in the issue?
  2. What kind of proof is to be given of those facts?
  3. Who is to give that proof?
  4. How is that proof to be given?

 

  1. What kinds of facts may be proved?

Sections 6 to 16 of the Evidence Act state that facts that are logically connected with the facts in issue, and which make the existence or the non-existence of the facts in issue probable or is

improbable, can be proved. For example, in a trial for murder, the fact that the accused had a motive for committing the murder makes the inference of the murder possible. Similarly, the fact that he purchases some poison just before the murder when the death is suspected to have been caused by such poison, makes his having committed the murder probable. Further, the fact that after the victim drank the contents of the glass, the accused cleaned the glass might make the inference of his having committed the murder possible, as, by this subsequent conduct, the accused might have attempted to destroy the evidence. In the same way, the fact that the accused had opportunities to offer a drink to the victim just before the victim died may make the inference of the accused having committed the murder possible, as it afforded an opportunity for committing the offence.

 

Thus, the gist of the contents of Sections 6 to 16 is that whenever a fact, either by itself, or in

connection with other facts, makes the legal inference of the existence or the non-existence of the facts in issue, such facts become relevant, and maybe proved. But this rule of relevancy is determined by the second question that the law of evidence has to answer.

 

  1. What kind of proof is to be given of those facts?

The general principle is that the best evidence must be given in all cases. But this maxim (as;

most maxims are) is a half-truth. What is meant by best evidence is the evidence of facts that have the maximum truth value. In a sense, this question is answered mostly in a negative way by the Evidence Act. Hearsay evidence cannot be given. The contents of a document cannot normally be proved by oral evidence when the law requires a transaction to be contained in a document. This rule is contained in the statement that primary evidence must be given unless secondary evidence is permitted to be given.

 

  1. Who is to give that proof?

The third question deals with the burden of proof. There are certain facts that need to be

proved because the court takes notice of them. There are certain facts that must be proved by one of the parties to the dispute.

 

The party who has the responsibility of proving a certain fact is said to have the burden (or onus) of proof on him.

 

The law of evidence generally lays down that he who wants the court to believe certain things

must prove them. But this general rule is modified by the law of presumptions. In certain cases, the law says that the court may believe in the truth of a thing unless it is disproved. In such cases, the Court may presume the existence of a particular state of affairs. In some other cases, the law prescribes that the court must believe in the existence of certain things unless they are disproved. There are cases where the Evidence Act lays down that a court shall presume a particular thing. There are certain circumstances when the law will say that the court must believe in the existence of a thing, and should not allow any evidence to disprove such a thing. Thus, one thing may be declared to be conclusive proof of another. In some other cases, the law might also prevent a party from leading evidence contrary to his prior statement or conduct, by applying the doctrine of estoppel.

 

  1. How is that proof to be given?

In this part of the law of evidence, questions relating to the competency of the witnesses, as also the method of examining them and testing their veracity, are discussed. Here, the rule is that all persons who are capable of understanding the nature of the questions put to them, and who can answer those questions, can be witnesses. This general rule is, however, qualified by what is known as the rule of privileged communications. In some circumstances, the law prescribes that one person shall not give evidence of certain communication which he received under particular circumstances.

For example, a wife or a husband cannot give evidence of the communication which he or she received from the other party to the marriage during the period of the marriage.

 

Some Important Terms (from interpretation clauses)

  • Facts

“Fact” means and includes;

  1. Anything, state of things, or relation of things, capable of being perceived by senses;
  2. Any mental condition of which any person is conscious.

 

Illustrations

  1. That there are certain things arranged in a certain order in a certain place, is a fact.
  2. & c. That a man heard or saw or said

something, is a fact.

  1. That a man holds a certain opinion, has a certain intention, acts in good faith, or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.

(e) That a man has a certain reputation is a fact. The facts may be physical illustrations (a), (b) and (c)] or psychological [Illustrations (d) and (e)]. It has been said that “a state of man’s mind is as much a fact as the state of his digestion”. The state of a person’s health is a fact. The psychological facts can only be proved by circumstantial evidence.

 

The facts may be positive or negative. The existence of a certain state of things is a positive fact; the non-existence of it is a negative fact.

 

  • Facts in Issue

“Facts in issue” means and includes -(1) any act from which either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows, (2) any fact asserted or denied in answer to an issue of fact recorded under the Civil Procedure Code.

A fact in issue is called the ‘principal’ fact or factum probandum. It is the fact which is sought to be proved: Facts, which are in dispute, are facts in issue. Evidence becomes necessary only in reference to such facts. Further, these are the facts that constitute the right or liability. The

following illustration makes clear the point:

“A is accused of the murder of B”. At his trial, the following facts may be in issue – that A caused: B’s death; that A intended to cause B’s death; that A had received grave and sudden provocation from B; that A at the time of doing that act which caused B’s death, was, by reason of unsoundness of mind incapable of knowing its nature.

 

Thus, every fact which a plaintiff must prove in order to get an adjudication in his favour, or which a defendant may prove to defeat the suit, becomes a fact in issue. Facts in issue will depend upon the provisions of the substantive law applicable to the offence. If, for example, the action is for the tort of negligence, such as the ingredients of liability for negligence, which are in dispute shall be the facts in issue. Thus, facts in issue depend upon the ingredients of the offence and the state of the parties’ pleadings.

 

In criminal matters, the allegations in the charge sheet constitute the facts in issue. In civil!

matters, the process of ascertaining facts in issue is known as ‘framing’ issues. The ‘issue of facť under CPC is equal to the ‘fact in issue’ of the Evidence Acts

 

  • Relevant facts

“One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts”, viz.

  1. a) Facts logically connected with facts in issue (Sections 5-16),
  2. b) Admissions and confessions (Sections 17-31),
  3. c) Statements by non-witnesses (Sections 32-33),
  4. d) Statements under special circumstances (Sections 34-37),
  5. e) Judgment in other cases (Sections 40-44),
  6. f) Opinions of third persons (Sections 45-51), and
  7. g) Evidence as to character (Sections 52-55).

 

It is to be noted that the section does not define the term “relevant”. Rather, it simply indicates when one fact becomes relevant to another. Normally, facts relevant to an issue are those facts that are necessary for proof or disproof of a fact in issue. Thus, relevant facts (or evidentiary facts) or factum probans are those which have a certain degree of probative force. Relevant facts are not themselves in issue but are foundations of inferences regarding them.

 

For example, “when A is accused of the murder of B”, the ‘relevant facts’ are – A had a motive and opportunity to kill B, he had made preparations by buying a knife, etc. or after the murder he was seen running with a blood-stained knife in hand.

 

Relevancy implies a relationship i.e. any two facts to which it is applied are so related to each

other that according to the common course of events one taken by itself or in connection with other facts proves or renders probable the existence or non-existence of the other. Thus, circumstantial evidence is evidence that relates to facts, other than those in issue, which by human experience, have been found to be so associated with the fact in issue that the latter may be reasonably inferred therefrom. The word ‘relevant’ has been held to be ‘admissible’. (Lakshmi vs. Haider, 3 CWN 268)

 

Different Kinds of Evidence

According to Stephen, the word “evidence” is used in three senses:

  1. words uttered & things exhibited in Court,
  2. facts proved by those words or things, which are regarded as the ground word of inference as to other facts not so proved, and
  3. relevancy of a particular fact to matter under inquiry.

Bentham defines evidence as “any matter of fact, the effect, tendency or design of which when presented to the mind, is to produce in the mind a persuasion concerning the existence of some other matter of fact – a persuasion either affirmative or disaffirmative of its existence. Of the two facts so connected, the latter may be distinguished as the principal fact & the former as the evidentiary fact.”

 

Taylor uses the word “evidence” to mean “all the legal means exclusive of mere argument which tend to prove or disprove any fact the truth of which is submitted to judicial investigation.

 

The fundamental rules of English Law of evidence are –

  1. Evidence must be confined to the matters in issue.
  2. Hearsay evidence is not to be admitted.
  3. In all cases, the best evidence must be given.

 

 

Indian Law

Two fundamental rules on which the law of evidence is based are:

  1. no facts other than those having rational probative value should be admitted in evidence, &
  2. all facts having rational probative value are admissible in evidence unless excluded by a positive rule of paramount importance.

 

The above two ideas are expressed in Section 5 of the Act, which says:

“OF THE RELEVANCY OF FACTS (SECTION 5): Evidence may be given of facts in issue and relevant facts” – Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.

Explanation: This section shall not enable any person to be given evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to civil procedure.

 

Illustrations

  1. i) A is tried for the murder of B by beating him with a club with the intention of causing his death.

At A’s trial the following facts are in issue:-

A’s beating B with the club;

A’s causing B’s death by such beating;

A’s intention is to cause B’s death.

 

  1. ii) A suitor does not bring with him and have the readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedures.

 

What is Evidence?

Ramnarayan vs. the State of Maharashtra, (1964) 5 SCR 1064

This word is used in common parlance in three different senses: (i) as equivalent to relevant, (ii) as equivalent to proof & (iii) as equivalent to the material on the basis of which courts come to a conclusion about the existence or non-existence of disputed facts.

 

Evidence defined:

It is defined in Section 3 as:

  1. i) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
  2. ii) [all documents including electronic records produced for the inspection of the Court); such

documents are called documentary evidence.

 

Different Kinds of Evidence

In the broader way, there are many kinds of evidence – Best evidence, Circumstantial evidence, Corroborative evidence & Substantive evidence, Defect evidence, Indirect evidence, Hearsay evidence, Oral evidence & Documenta y evidence, Primary evidence & Secondary evidence, Original evidence, Real evidence & Personal evidence, Presumptive evidence, Derivative evidence, Testimonial evidence and Conclusive evidence.

 

All these types of evidences are dealt with by the Act – either explicitly or by implication, though in the definition of the word we find only oral & documentary evidence.

 

  • Best Evidence

The best evidence or the original evidence means the primary evidence.

Relevant Case: Murarka Properties vs. Beharilal (1978) 1 SCC 109

  • Circumstantial Evidence

Circumstantial evidence means the evidence of circumstances & is sometimes referred to as

presumptive evidence. Suppose A is charged with the murder of B. At the trial a witness C, on behaf of the prosecution, gives evidence that he saw A stab B. Or C may make the statement that he saw A running away from the place where B’s corpse was found, with a blood-stained knife in his hand. In the first case the evidence given by C is usually

referred to as direct evidence & in the second, as circumstantial evidence. Because, C makes a statement about a circumstance, a relevant fact which if believed, may convince the court of the guilt of A, therefore, we might say that when evidence is given of the very fact in issue, that is, of the matter in controversy it is called direct evidence & when evidence is given of circumstances, or relevant facts, from which an inference may be drawn about the fact in issue, then it is called circumstantial evidence.

 

Burrill: Cir Ev 231; Burr Jones, Section 6(b): “Circumstantial evidence is merely direct evidence indirectly applied. And direct evidence, when closely analyzed is found to possess the inferential quality”.

 

Kotari Suri vs. State of Orissa, 1984 Cr. L.J. Noc 122

Circumstantial evidence means a fact on which an inference is to be founded. The facts must be closely knitted & must carry conviction the mind of a Judge.

 

Makkhan Lal vs. State of Rajasthan

It is laid down that circumstances should be like a spider web. There must not be any exit way.

 

Tests

It is well settled that when a case rests on circumstantial evidence, such evidence must satisfy three tests:

  1. the circumstances from which an inference of guilt is sought to be drawn, must be cogently & firmly established;
  2. those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused
  3. the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused & non else.

Relevant Cases

i) S.D. Soni vs. State of Gujarat, A 1991 SC 914ii) Padala Veera Reddy vs. State of Andhra Pradesh, A 1990 SC 79

iii) State of Himachal Pradesh vs. Diwana, 1995 CM L.J. 3002, 3004 (HP)

iv) State of Uttar Pradesh vs. Ravindra Prakash Mittal AIR 1992 SC 2045

v) Mangraj Patodia vs. R.K. Gupta, 1970

vi) Pushpa Devi vs. Wadhawan, 1987

vii) State of A.P. vs. Poonara ys. Satyanagar 2005 SC

 

Precautions must be taken in accepting circumstantial evidence. These precautions are:- (State of U.P. vs. Ashok Kumar)

  1. Evidence must be fully established and conclusive in nature.
  2. Conclusion must be consistent with the hypothesis of guilty and inconsistent with the innocence of accused.
  3. Circumstances should not show the possibility of the act might have been committed by someone else other than the accused.

 

Criticism of Circumstantial Evidence

Circumstantial evidence is a weak piece of evidence. But according to Pedgy

circumstance is always a circumstance and according to Canny– A man can tell a lie, but not a circumstance. Therefore, it is not a weak kind of evidence. It is more reliable than human being since human being have mind to manipulate the truth but not circumstance.

 

  • Corroborative Evidence & Substantive Evidence

Corroborative evidence must be taken along with substantive evidence. When evidence is given of the fact in issue or of a relevant fact that is called substantive evidence. There are, however, several statements oral & documentary, which are not substantive evidence. They are not admissible by themselves, but become admissible to corroborate, or support, substantive evidence already given. Evidence to corroborate substantive evidence is permitted under Sections 156 and 157.

 

SECTION 156 says:

“Questions tending to corroborate evidence of relevant fact, admissible’, when a witness whom it is intended to corroborate gives evidence of any relevant, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if prøved, would corroborate testimony of the witness as to the relevant fact which he testifies”.

 

Illustration

A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.

Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

 

SECTION 157 says:

“‘Former statements of witness may be proved to corroborate later testimony as to same

fact’, – In order to corroborate the testimony of a witness, any former statement made by such

witness relating to the same fact at or about the time when the fact took place, or before any

authority legally competent to investigate the fact, may be proved”.

 

  • Direct Evidence

The word ‘direct’ evidence is used in two senses (a) as opposed to Hearsay evidence (b) as

opposed to circumstantial evidence. In the first sense direct evidence is the evidence of a fact actually perceived by a witness with his own senses or an opinion held by him. And in the second sense direct evidence is that which goes expressly to the very point in question & proves it, if believed, without aid from inference or deductive reasoning, e.g. eye-witness, to a murder is direct evidence.

 

In jurisprudence, however, direct evidence is commonly used in a secondary sense, viz. as

limited to cases where the principal factor factum probandum, is attested directly by witnesses, things or documents.

 

  • Indirect Evidence

Known in forensic procedure by the name of circumstantial evidence, is either conclusive or !

presumptive: Conclusive, where the connection between the principal & evidentiary facts – the factus probandum & the factum probans – is a necessary consequence of the laws of Nature: presumptive, where it only tests on a greater or less degree of probability.

 

Suppose A is charged with the murder of B by stabbing him. C, D, E, F, G & H are witnesses called by the prosecution. C says he saw A stab 8. D says he heard B cry out that A was stabbing him. E says that he saw A running away with a blood-stained knife & blood-stained clothes. F says that he saw A washing his blood stained clothes. Gjis a doctor who says that the knife found in A’s possession might have caused the woundsfound on B & H says that he heard from C, that C saw A stabbing B. If we use the phrases direct evidence & circumstantial evidence, the evidence given by C is direct evidence & that given by the others, circumstantial evidence, because C gives evidence about the matter in controversy, whereas D to give evidence of circumstances which, if believed, would assist the court in drawing an inference about the matter in controversy. But, if we use direct evidence as used in Section 60, then the evidence of C to G is direct evidence & that of His indirect evidence. Because each of them, C to G, is giving evidence about a fact which was perceived by him by the particular sense by which it was capable of being perceived; whereas, H alone is talking about A stabbing B-a fact capable of being seen, but without seeing it. He has heard about it. The evidence sought to be given by H is also called hearsay evidence & in general, is not admissible in a court of law. Direct evidence is used in the Act in contrast to hearsay evidence. It is also referred to sometimes as original evidence. Hearsay evidence, indirect evidence & derivative evidence mean the same thing.

  • Hearsay Evidence

Stephen says, “the word ‘heresay’ is used in various senses. Sometimes it means whatever a person is heard to say; sometimes it means whatever ma person declares on information given by some one else; sometimes it is treated as nearly synonymous with ‘irrelevant’.”

 

It is the fundamental rule of the English Law of Evidence that Hearsay is not admissible. The

reasons why hearsay evidence is not received as relevant evidence are:

  1.  the person giving such evidence does not feel any responsibility. If he is cornered he has a line of escape by saying “I do not know, but so & so told me”;
  2. truth is diluted & diminished with each repetition, and
  3. if permitted, gives ample scope for playing fraud by saying “someone told me that … It would be attaching importance to a false rumour flying from one foul lip to another.
  4. demeanour of witness can not be seen so there is possibility that reality can not be seen.
  5. The original maker of statement can not be cross-examined,

 

Exception to Hearsay evidence:

  1. Res-gestae
  2. Section 9 (e) example
  3. Admission
  4. Dying declaration
  5. Confession
  6. Confidential evidence
  7. Statements given in other judicial proceedings
  8. Proviso to section 60 i.e. opinion of author when relevant:

Rationale behind these exceptions:

  1. Necessity because person not available
  2. Relevancy

 

Hearsay evidence when admissible

  1. Raoji, 6 Bom. L.R. 34″

Where the object of the legislature is simply to provide preventive measures, evidence of repute though hearsay, is admissible.

 

Ganauri V.R., 16 C 210

Certain communications though hearsay, where held admissible in cross examination in so far

as they relate to the question of the credibility of the witness.

 

Muni Lal Gupta vs. State 1988 Cr. L.J. 627, 630

The witness was aroused on hearing the cries of two other prosecution witnesses that the

accused had killed the children. His evidence of what he heard is admissible.

 

 

 

  • Oral Evidence & Documentary Evidence

Definition is given in Section 3(1). If it is a case of oral evidence, the Act requires that only that person who has actually perceived something by that sense by which it is capable of perception, should make the statement about it & no one else.

 

If it is documentary evidence, the Act requires that ordinarily the original should be produced, because a copy may contain omission or mistakes of a deliberate or accidental nature. These ideas are expressed in Section 60 & 64.

 

Documentary evidence is defined in the Act as: All documents produced for the inspection of the court. The purpose of producing documents, is to rely upon the truth of the statement containe therein. This involves, when a document is produced in court, the examination of three questions; is the document genuine, (ii) what are its contents & (iii) are the statements in the document true?

 

By real evidence is meant evidence of which, any object belonging to the class of things, is the source, person also being included in respect of such properties as belong to them in common with things. This sort of evidence may be either immediate, where the thing comes under the cognizance our senses: or reported, where its evidence is related to us by others. Personal evidence is that which afforded by a human agent, either by way of discourse or by voluntary signs.

 

Suppose a letter is produced as having been written by A & it contains a statement that By

murdered C. The three questions are is the letter written by A? (ii) what does letter contains and (iii) is the statement that B murdered C true?

 

Primary and Secondary Evidence

We can easily understand it by way of above given example. In the above example, the first  and third questions can be answered by calling. A as a witness. But the second can normally be answered only by providing the letter. When the original letter is produced, it is said that primary evidence of the contents if given. When a copy is permitted & such copy is produced to prove the contents of a document secondary evidence is said to be given of the contents.

 

The definition of primary & secondary evidence is given in Section 62 & 63 as under:

Primary evidence: Primary evidence means the document itself produced for the inspection of the Court.

Explanation 1: Where a document is executed in several parts, each part is primary evidence of thedocument; where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.

Explanation 2: Where a number of documents are all made by one uniform process, as in the case of printing, lithography, or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.

 

Illustration

A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

 

Secondary evidence: Secondary evidence means and includes –

  1. a) Certified copies given under the provisions hereinafter contained;
  2. b) Copies made from the original by mechanical processes which in themselves insure the

accuracy of the copy, and copies compared with such copies;

  1. c) Copies made from or compared with the original;
  2. d) Counterparts of documents as against

the parties who did not execute them;

  1. e) Oral accounts of the contents of a document given by some person who has himself seen it.

 

Illustrations

  1. i) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
  2. ii) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.

iii) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the odiginal.

  1. iv) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

The genuineness of a document on the truth of its contents are proved either by primary or by

secondary evidence. (Section 61)

 

Original Evidence

The original is that which a witness reports himself so have been or heard through the medium of his own senses.

 

Real and Personal Evidence

It refers to any matter which the court perceives itself e.g. that a man standing before a judge has got a scar on his face, objects like murder weapon, blood-stained clothes, photographs etc.

 

Conclusive Evidence

Where the connection between the principal & evidentiary fact is a necessary conclusion.

 

Chapter-2
Of the Relevancy of Facts
(Section 5 to 16)

 

Evidence maybe given of Facts in Issue and Relevant Facts: Section 5

Evidence may be given:

  1. of the existence and non-existence of every fact in issue, and
  2. of such other facts as are declared to be relevant, and of no others.

 

No evidence can be given of a fact which a person is disentitled to prove under the Civil Procedure Code (CPC), 1908.

 

Illustrations

  1. a) A is tried for the murder of B by beating him with a club with the intention of causing his death,

At A’s trial the following facts are in issue:-

A’s beating B with the club;

A’s causing B’s death by such beating:

A’s intention to cause B’s death

  1. b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.

 

  • Comment

Stephen says that Section 5 to 16 are enumerated specifically the different instances of the

connection between cause and effect which occur most frequently in judicial proceedings. They are designedly worded very widely, and in such a way as to overlap each other. Thus a motive for a fact in issue (Section 8) is part of its cause (Section 7); subsequent conduct influenced by it (Section 8) is part of its effect (Section 7). Facts relevant under Section 11 would, in most cases, be relevant under the other Sections.

  • The object of this Section is to restrict the investigation made by courts within the bounds prescribed by general convenience.
  • No evidence of facts can be given unless it be either a fact in issue or one declared relevant under the following sections. Thus evidence of all collateral facts, which are incapable of affording any reasonable presumption as to the principal matters in dispute, is excluded to save public time.
  • This section excludes everything not covered by the purview of some other succeeding section.

 

  • Admissibility of Evidence

The court is to decide the admissibility of evidence (Section 136, infra). The moment a witness commences giving evidence which is inadmissible, he should be stopped by the court.

 

Raman v. Secretary of State før India in Council, (1901) 24 Mad.

A party filing a document cannot urge its inadmissibility when the opposite party seeks to use it against him.

 

Magraj Patodia v. R.K. Birla, AIR 1971 SC 1295

The fact that a document was procured by improper or even illegal means will not be a bar to its admissibility ifft is relevant and its genuiness proved. But while examining the proof given as to its genuineness the circumstances under which it came to be produced into court have to be taken into consideration.

 

Ram Chander vs. State of Haryana SC

It is laid down that a judge is not a recording machine and spectator only.

 

Pushpa Devi vs. Madhavan 1987 SC

The only exception of this rule/is that where after the alleged offence improper method have :

been used to obtain evidence for it and the judge is of the view that the prejudicial effect of such evidence would be out of proportion to its evidentiary value.

 

  • Inadmissibility of Evidence

Gyan Chand v. State of Raj., 1993 Cr.L.J., Raj.

The accused was found to be in possession of unauthorised opium Search,

seizure and further investigations were done by the same authority and the same being violative of the principles of criminal jurisprudence. It was held that the documents of the search and seizure were inadmissible in evidence.

 

The explanation prohibits a party from claiming any relief upon facts or documents not stated

by him in his pleading.

 

Relevancy of Facts forming part of same Transaction: Section 6

The facts which, thought not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.

 

Illustrations

i)A is accused of the murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction, is a relevant fact.

  1. ii) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked, and gaols are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.

iii) A sues B for libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.

  1. iv) The question is, whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.

 

  • Comment

This section receives evidence of all acts and statements connected with a happening in such

wise as to form an integral part of the happening. It is based upon the doctrine of res gestae.

 

  • The doctrine of Res gestae

Under English law, the facts form the part of same transaction is called res gestae.

 

Res-gestae means the things done or words spoken in the course of same transaction. A

transaction is a group of facts so connected together as to be referred to by a single legal name, as a crime, a contract, a wrong or any other subject of inquiry which may be in issue.

 

Nasir Din v. The Crown (1944) Lah.

The expression “by-standers’ used in illustration (a) means the persons who are present at

the time of occurrence and not those gathered on the spot after the occurrence. The remarks

made by persons other/than the eye witnesses could only be arsay because they must have

picked up the news from others.

 

Shyam Nandan Singh v. State of Bihar, 1991 Cr. L.J.

An FIR lodged soon after the incident by persons who witnessed it becomes a part of

happening so it is under the purview of the doctrine of res-gestae.

 

Bhaskaram v. State of Kerala, (1985) Ker LT

The statement uttered or act done must be a spontaneous reaction of the person witnessing

the crime and forming part of the transaction. The stander by’s declaration must be substantially contemporaneous with the fact and not merely the narration of a prior event.

 

Sawaldas V. State of Bihar, 1974 SC

Alausband, his father and mother were prosecuted for the murder of his wife. She cried for!

help as soon as she was pushed into the room. Her children who were playing outside in

verandah exclaimed at the same time that their mother was being killed. The exclamations of the children were received through the evidence of the persons who heard them. It was admissible evidence because it was res gestae.

 

 

Gentela v Rao v. State of AP, AIR 1996 SC

The statements of persons who were injured by burns by the act of the accused in setting fire

to the bus in which they were travelling, though recorded by a Magistrate. Under expectations of death, were held to be not relevant there being a hap of time between recording the statements and incidents

 

  • Statement made by person may be a part of same transaction

Conditions:

1) Statement must be contemporeous

2) It should be immediate. e.g. Section 6, illustration (a).

 

Cases:

1) R Queen

2) R vs. Bedingfield

3) State of A.P. vs. Pooma Satyanagar

4) Thakur vs. State of M.P.

5) Sawaldas vs. State of Bihar

 

Facts which are the Occasion, Cause or Effect of Facts in Issue: Section 7

Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.

 

Illustrations

1) The question is, whether A robbed B.

The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed it and mentioned the fact that he had it, to third persons are relevant.

  1. ii) The question is, whether A murdered B.

Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.

iii) The question is, whether A poisoned B.

The state of B’s heath before the symptoms ascribed to poison, and habits of B, known to A, which afforded an opportunity for the administration of potson, are relevant facts.

 

  • Comment

Evidence relating to collateral facts is admissible when such facts will, if established, establish a reasonable presumption as to the matter in dispute and when such evidence is reasonably conclusive.

  1. This section provides for admission of several classes of facts which are connected with the

transaction under inquiry in particular modes, viz. (i) as being the occasion or cause of facts;

(ii) as being its effect; {tii) as giving opportunity for its occurrence; and (iv) as constituting the state of things under/which it happened.

  1. When the question is whether a person has committed a crime, the fact that he had committed a similar crime before, is irrelevant.

 

Yusuf Ali vs. State (1967) Bom LR

A contemporaneously taken fecord of a relevant conversation is a relevant fact and is

admissible under this section but according to Supreme Court, such evidence must be received with caution.

 

Mahabir Pd. Verma vs. Surinder Kaur, AIR 1982 SC

The Supreme Court rejected there was no proof of the conversation which it could have been used to corroborate.

 

  1. Donellon

Habit is a best source of opportunity.

 

Effect is a very relevant fact:

Indian Airlines vs. Madhuri Chaudhary

Inquiry after the happening of event is relevant because tells about effect.

 

  • Motive, Preparation and Previous or Subsequent Conduct: Section 8

Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue

relevant fact.

 

The conduct of any party of any agent to any party to any suit of proceeding in reference in

such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and whether was previous or subsequent thereto.

Explanation 1: The word “conduct” in this section does not include statements, unless those

statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act.

Explanation 2: When the conduct of any person is relevant, any statement made to him or in his presence and hearing which affects his conduct is relevant.

 

Illustrations

  1. i) A is tried for the murder of B.

The fact that A murdered C. and B knew that A murdered C. and that B that tried to exhort money from A by threatening to make his knowledge public, are relevant.

  1. ii) A sues B upon a bond for payment of money, B denies the making of the bond.

The fact that, at the time when the bond was alleged to be made, B required money for particular purpose is relevant

iii) A is tried for the murder of B by poison.

The fact that, before the death of B. A procured poison similar to which was administered to B, is relevant.

  1. iv) The question is, whether a certain document is the will of A.

The fact that not long before the date of the alleged will, A made inquiry into matters to which the provisions of the alleged will relate, that the consulted vakils in reference to making the will, and that he caused drafts of other will to be prepared of which he did not approve, are relevant.

  1. v) A is accused of a crime.

The fact that, either before or at the time of, or after the alleged crime. A provided evidence which would tend to give to the facts of the case aryappearance favourable to himself, or that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.

  1. vi) The question is whether A robbed B.

The facts that, after B was robbed, C said in A’s presence – “the police is coming to look for the person who robbed B,” and that immediately afterwards A ran away, are relevant.

vii) The question is, whether A owes B rupees 10,000.

The facts that A asked C to lend him money and that D said to C in A’s presence and hearing- “l advise you not to trust A, for he owes B 10,000 rupees”, and that A went away without making any answer, are relevant facts.

viii) The question is, whether A committed a crime.

The fact that A absconded after receiving a letter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.

  1. ix) A is accused of a crime.

The facts that, after commission of the crime, he absconded, or was in possession of the property or the proceeds of propefty acquired by the crime, or attempted to conceal things which were or might have been used in committing tt, are relevant.

  1. x) The question is, whether A was ravished.

The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the

circumstances under which, and the ferm in which the complaint was made, are relevant.

The fact that, without making the complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 157.

  1. xi) The question is, whether A was robbed.

The fact that, soon after the alleged robbery he made a complaint relating to the offence, the

circumstances under which and the terms in which, the complaint was made, are relevant.

The fact that he had said without making a complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under Section 32, clause (1), or as corroborative evidence under Section 157.

 

  • Comment

Under this section the motive which induces a party to do an act, or the preparation which he makes in its commission, will be taken into account. Evidence of motive becomes important when a case depends upon circumstantial evidence only.

This section embodies the rule that the testimony of res gestae is allowable when its goes to

the root of the matter concerning the commission of crime.

  • Motive

Motive is that which moves a man to do a particular act. Motive in the correct some

emotion supposed to have led to the act. It is often proved by the conduct of the accused.

 

Tara Devi vs. State of UP, AIR 1991 SC

Previous threats, previous altercations, or previous litigations between parties are admitted

to show motive. The merely existence of motive is by itself not a incriminating circumstances.

 

S.C. Bahri vs. State of Bihar, AIR 1994 SC

Sometimes motive plays an important role and becomes a compelling force to commit crime and therefore, motive behind the crime is a relevant factor for which evidence may be adduced. But the absence of proof of motive does not render the evidence bearing on the guilt of the accused nonetheless untrustworthy or unreliable because most often it is only the perpetrator of the crime only who knows as to what circumstances promoted him to a certain

course of action leading to the commission of the crime.

 

  1. Cr. Mohite vs. State of Maharashtra, AIR 1993 SC

Existence of previous and subsequent similar conduct is relevant to an issue of intention or other state of mind although it cannot be used to prove that the commission of the crime Evidence of motive becomes important when there is only circumstantial evidence.

 

Bhagirath vs. State of Haryana, AIR 1996, SC

It was held by the Supreme Court that inadequacy of motive is immaterial where testimony of

eye-witness is on the record.

 

Jarnail Singh vs. State of Haryana, 1993 AIR SC

It was held that where oral or circumstantial evidence adduced had established the charge

against the accused, absence of motive would be of no consequence.

 

Sarojini vs. State of MP, 1993 Cr. L.J. (SC)

It was held that pre-marital demand of dowry and its non-compliance are relevant facts to establish motive.

 

  • Preparation

Preparation consists in devising on arranging the means or measures necessary for commission of a crime. Preparation on the part of the accused to accomplish the crime charged, or to prevent its discovery, or to aid his escape, or to avert suspicion from himself are relevant on the question of his guilty.

 

  • Conduct

The conduct of any part or his agent in reference to a suit or proceeding will be scanned under this section. A fact can be proved by conduct of a party and by surrounding circumstances, the production of articles by an accused person is relevant as evidence of conduct. Statements accompanying or explaining conduct are also relevant as part of conduct itself.

 

  1. Malkani ys. Maharashtra, AIR 1973 SC

Conversation over telephone for settling details for passing bribe – money was recorded by!

secret instruments, was held to be evidence of conduct.

 

Kansa Bahera vs. State of Orissa, AIR 1987 SC

The conduct of being last seen with the deceased is relevant, but not sufficient in itself to

support conviction.

 

Thimma vs. State of Mysore, AIR 1971 SC

The conduct of an aceused in absconding when the police get suspicious of his complicity in the offence of murde/ is relevant under this section and might well be indicative to some extent of guilty mind. But this is not the only conclusion to which it must lead the court. Such is the instinct of self-preservation in an average human being that even innocent persons may, when suspected of grave crimes, be tempted to evade arrest.

 

  • Facts Necessary to Explain or Introduce relevant facts: Section 9

Facts –

  1. a) Necessary to explain or introduce a fact in issue or relevant fact, or
  2. b) Which support or rebut an inference suggested by such a fact, or
  3. c) Which establish the identity of anything or person where identity is relevant, or
  4. d) Which fix the time or place at which any fact in issue or relevant fact happened, or
  5. e) Which shares the relations of parties by whom any such facts was transacted.

 

Illustrations

  1. i) The question is, whether a given document is the will of A.

The state of A’s property and his family at the date of the alleged will may be a relevant facts

ii)A sues B for a libel imputing disgraceful conduct to A B affirms that the matter slegnd to be libellous is true.

The particulars of a dispute between A and B about a matter corected with the alleged betare

irrelevant, though the fact that there was a dispute may be a relevant itt affected the relations between A and B.

iii) Ais accused of a crime.

The fact that, soon after the commission of crime. A abscorded from his house, is relevant under Section 8, as conduct subsequent to and affected by facts in Issue.

The fact that, at the time when he left home he had urgent business at the place, to which he went, is relevant, as tending to explain the fact that he left home suddenly.

The details of business on which he left are not relevant, except in so far as they are necessary to show that the business was sudden and urgent.

  1. iv) A sues B for inducing C to break a contract of service make by him with A. G, on leaving A’s service, says A to A – “I am leaving you because B has made me a better offer. This statement is a relevant fact as explanatory of C’s conduct, which is relevant as a fact in issue.
  2. v) A, accused of theft, is seen to give the stolen property to B, who is seen to give it to A’s wife. B says as he delivers it – “A says you are to hide this.” B’s statement is relevant as explanatory of a fact which is part of the transaction.
  3. vi) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

 

  • Comment

It is under this section that test identification parades are conducted and in the matter of their

evidentiary value, they have generated much literature in terms of Supreme Court decisions. All factors which can bring about identification are allowed, e.g. identification by voice, gait, foot-prints, finger-impressions, photographs etc.

This section makes admissible tacts which are necessary to explain or introduce relevant facts, such as place, name, date, identity of parties, circumstances and relations of the parties.

 

Hardayal vs. UP, AIR 1976 SC

Evidence of other offences committed by the accused is admitted in order to establish his

identity or to corroborate the testimony of a witness in a material particular. Identity can also be established by technical evidence like medical report.

 

Gokaraju Venkatanarasa Raju vs. State of AP, 1993 (SC)

It was held by Supreme Court that close relatives of the deceased can identify the decomposed body recovered even after three weeks of the incident.

 

  • Identification Parade

One of the methods of establishing the identity of the accused is “test identification parade”.

Its evidence is received under this section. The idea of the parade is to test the veracity of the witness on the question of his capability to identify from among several persons made to stand in a queue, an unknown person whom the witness had seen at the time of the occurrence.

 

Ashok Narshari Nath vs. State of Maharashtra, 1980 Cr. L.J. (SC)

The witness identified two out of several accused, namely one who assaulted him and one

who inflicted fatal injuries on his complainant. It was held by Supreme Court that Test

Identification (TI) was good evidence, delay of 44 hours was not so material as to convince the court that the memory of the witness must have become blurred.

 

Samappa V. Madar vs. Mysore, AIR 1979 SC

The Supreme Court held that prosecution has to show that the accused was carried for

remand ba parda. In absence of it the identification parade will lose its importance.

 

  • Weight of identity evidence

The Supreme Court in its decision in Kanta Prasad vs. Delhi Administration, 1958 SCR.

observed that, “the weight to be attached to such identification would be a matter for the court of fact and it is not for the court to reassess the evidence unless exceptional grounds were

established necessitating such a course.

 

Things said or done by Conspirator in reference to common design – Section 10

Anything said, done or written by a conspirator in reference to the common intention of all the conspirators is a relevant fact.

 

Illustration

Reasonable ground exists for believing that A has joined in a conspiracy to wage war against the Government of India.

 

The facts that B procured arms in Europe for the purpose of the conspiracy collected money in Calcutta for a like purpose, D persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both the prove the existence of the conspiracy, and to prove A’s complicity in it, although he may have been ignorant of all of them, and at although the persons by whom they were done were stranger to him, and although they may have taken place before he joined the conspiracy or after he left it.

 

  • Comment

This section refers to things said or done by conspirators in reference to the common design. The operation of this section is strictly conditioned upon there being reasonable ground to believe that two or more persons have conspired together to commit an offence. [Barinder Kumar Ghose vs. Emperor (1909) Cal.]

Conspiracy consists in a combination or agreement between two or more persons to do an unlawful act or to do a lawful act by unlawful means.

Bhagwan Swarup vs. State of Maharashtra, AIR 1965 SC – The expression ‘in reference to their common intention” in this section is very comprehensive with the result that anything said, done or written by a co-conspirator, after the conspiracy was formed, will be evidence : against the other before he entered the field of conspiracy or after he left it. It cannot be used in favour of the other party or for the purpose of the other party or for the purpose of showing that such a person was not a party to the conspiracy.

Under Section 34 of the Indian Penal Code, when a criminal act is done by several persons, in

furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. This section makes admissible in evidence things said or done by a conspirator in reference to the common design. It applies to crime as well as torts, i.e. to joint offenders as well as joint tortfeasors. It has no bearing on the question as to how fora conspiracy to commit an offence or actionable wrong is an offence under the Indian Penal Code. It is based upon the principle that, when several persons conspire to commit a crime or a tort, each makes the rest his agent to carry the plan into execution.

 

  • Agreement but not direct meeting necessary

Jenkins CJ in Barinder Kumar Ghose vs. Emperor (1909) Calcutta observed – “Though to establish the charge of conspiracy there must be agreement, there need not be proof of direct meeting or combination, nor need the parties be brought into each other’s presence; the agreement may be inferred from circumstances raising a presumption of a common concerted plan to carry out the unlawful design. So again it is not necessary that all should have joined in the scheme from the first; those who came in at a later stage are equally guilty, provided the agreement be proved.

 

Kehar Singh vs. Delhi Administration, AIR 1988 SC

The fact that the accused and the person who shot dead the deceased were together at a social gathering sometime before the shooting and isolating themselves at the house top were; seen talking and avoided questions as to what they were talking about was held by the Supreme Court to be sufficient to create a reason to believe that they might be conspiring about something. The accused was accordingly sentence to death along with those who actually

caused death he was no where there at the place of shooting.

 

When Facts not otherwise relevant become relevant, Section 11

Facts not otherwise relevant are relevant –

  1. a) If thev are inconsistent with any fact in issue or relevant fact:
  2. b) if by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

 

Illustrations

  1. i) The question is, whether A committed a crime at Calcutta on a certain day

The fact that, on that day A was at Lahore is relevant.

The fact that, near the time when the crime was committed. A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.

  1. ii) The question is, whether A committed a crime.

The circumstances are such that the crime must have been cornmitted either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D. is relevant.

 

  • Comment

In order that a collateral fact may be admissible as relevant under this section these are two

requirements:

  1. a) That the collateral fact must itself be established by reasonably conclusive evidence;
  2. b) That it must, when established afford a reasonable presumption or inference as to the matter in dispute.

 

Khaver Sultan vs. Rukha Sultan (1904) Bom LR

The question in issue was whether possession was duly given of certain immovable properties under a deed of gift, so as to make it complete and valid under the Muhammadan Law, it was held that, if the deed of gift must be held to have operated effectually as to immovable property, the fact of this partial delivery, being a collateral fact fulfilling all the requirements of the law, was relevant under this section as making the existence of the facts in issue highly probable.

 

State of Maharashtra vs. Narsingrao, AIR 1984 SC

The Supreme Court has observed that it is well settled that the plea of alibi (being at another place at the time of commission of crime) must be proyed with absolute certainty so as to completely exclude the possibility of the presence of the person concerned at the place of occurrence.

 

Munir Ad Vs. State of Rajasthan, AIR 1989 SC

The presence of the accused at the scene of the crime was established by the FIR, dying declaration and medical evidence, it was held that the plea of alibi raised by the accused was not of any worth.

 

Pattad Amarappa vs. State of Karnataka, AIR 1989 SC

The plea of alibi could not be sustained owing to uncertainty about the time and place of occurrence.

 

Gauri Shankar Sharma vs. State of UP, AIR 1990 SC

The Supreme Court cautioned against this that the failure of the accused to establish his presence elsewhere should not be taken to mean inevitably his presence at the spot of the crime or that he was the man behind the murder.

 

Sakharam vs. State of MP, AIR 1992 SC

The Supreme Court reiterated again that the failure of the accused to substantiate the plea of alibi is not a circumstance which should go against him.

 

In Suits for Damages, Facts tending to enable court to determine amount are Relevant: Section 12

In suit in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.

 

  • Comment

This section enables the court to admit any facts which will help it to determine the amount of damages which ought to be awarded to a party when damages are claimed in a suit, the amount of damages is a fact in issue.

 

“Damages” are the pecuniary satisfaction which the plaintiff may obtain by success in an action. They are limited to the loss which the plaintiff has actually sustained.

 

  • The Rule in Hadley vs. Barendale (1854) 9 Ex 341

ALDERSON B. laid down the rule –

Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e. according to the usual course of things, from which such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. On the basis of this principle the defendants were not held liable for the loss of profits.

 

Section 73 of the Indian Contract Act lays down the rule governing damages in actions on contract. Section 55 of the Evidence Act lays down the conditions under which evidence of character may be given in civil cases with a view to the award of damages.

 

Facts Relevant when Right or Custom is in Question: Section 13

  • Ingredients

Where the question is as to the existence of any right or custom:

  1. a) Any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence;
  2. b) Particular instance in which the right or custom was
  3. i) Claimed, recognised or exercised, or
  4. ii) Disputed, asserted, or departed from are relevant facts.

 

Illustration

The question is, whether A has a right to a fishery, a mortgage of the fishery by A’s father, a subsequent grant of the fishery by father, irreconcilable with the mortgage, particular instances in which A’s father exercised the right, or in which the exercise of the right was stopped by A’s neighbours, are relevant facts.

 

  • Comment

The cases this section is intended to meet are those in which the right or custom in question is regarded as capable of surviving repeated instances of its assertion and denial.

 

  • Right

The term “right” comprehends every right known to the law. It includes both corporeal and incorporeal rights including “a right of ownership”.

The Collector of Gorakhpur vs. Palakdhari Singh (1889) (AII) FB – This section is not confined to public rights only but it covers private rights also.

 

  • Custom

A custom is a rule which in a particular family or in a particular district has from long usage obtained the force of law. The English rule that “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” does not apply to conditions in India. A custom observed in a particular district derives its force from the fact that it has, from long usage, obtained in that district the force of law.

 

A custom to be recognised by a court must fulfill following eight requirements:-

  1. i) Ancient
  2. ii) Continuous and uniform
  3. ii) Reasonable
  4. iv) Certain
  5. v) Compulsory and not optional

vi). Peaceful observation

vii) Not immoral

viii) Conformity with law.

 

A custom may be general, public pr private.

 

In order to prove a custom –

  1. a) Thé evidence should be such as to prove the uniformity and continuity of the usage and the conviction of those following it that they were acting in accordance with law.
  2. b) Evidence of acts of the kind, acquiescence in those acts, their publicity decisions of courts or even of panchayats upholding such acts, the statements of experienced and competent persons of their belief that such acts were legal and valid will all be admissible but actual examples of the usage asserted must be shown.

 

A trade usage or custom may be proved in the same way as a family custom (Rajendra

Ram vs. Devendra Das, AIR 1973 SC).

 

Saraswati Ammal vs. Jagadambal, AIR 1973 SC

It is incumbent on a party setting up a custom to allege and prove the custom on which he relies and it is not any theory of custom or deductions from other customs which can be made a rule of decisions.

 

Rajendra Ram vs. Devendra Das, AIR 1973 SC

The rule of custom should prevail inn all cases on if any aberration have to be corrected such

correction must take the court in the direction of re-establishing the rule of custom.

 

 

  • Transaction

A transaction, in the ordinary sense of the word, is some business or dealing which is carried on or transacted between two or more persons.

 

Gajanfar Ali Khan v. Province of Assam, (1944) 1 Calcutta

It was held that Judgments not inter partes might be admissible in evidence as establishing a particular transaction, if any, by which the relevant right was asserted, recognised, claimed or denied, but in no case the reasons and findings of fact arrived at in them would be admissible in evidence.

 

Gopika Raman Roy v. Atal Singh (1929) 1A, Privy Council

A finding of fact arrived at on the evidence in one case is not evidence of that fact in another case between different parties.

 

Rama Chandra v. Gadhadhar Mohapatra, AIR 1980 Orissa

It may be taken to be fairly settled that the judgment in a previous suit though not inter partes is admissible in proof of a transaction or a particular instance in which the relationship was asserted and recognised or deniedA previous judgment though not conclusive proof is admissible in evidence like any other fact to be weighed in the balance. It is not the correctness of the previous decision but the fact that there has been a previous decision that is established by the judgment.

 

  1. Subhakaran W. V.K. Rajmany, 1996 (Ker.)

In a case of sale of property which was under attachment, the District Court gave finding that the decree in respect of other portion of the property was vitiated by fraud. In a suit for permanent injunction in respect of the other portion, it was held that the earlier finding might not operate as res-judicata but it was admissible under Section 13 as the transaction was to same and Section 43 was no bar.

 

Judgments which support a plea of res-judicata under Section 11, Civil Procedure Code, or that of autrefais acquit under Section 300, ¢r.P.C., 1973 judgments in rem, and judgments which refer to matters of public nature, are expressly made relevant by the Act. But other judgments are irrelevant, unless their existence is either a fact in issue or, relevant fact under some other sections of the Act. That there are cases where the existence of a judgment might become a fact in issue or a relevant fact under same other section of the Act, is perfectly clear from the illustrations to Section 43.

 

INDIAN CONTRACT ACT, 1872 NOTES

Chapter-1

FORMATION OF CONTRACT

 

What is a Contract?

As per Section 2(h) of the interpretation clauses of the Indian Contract Act, 1872, “an agreement enforceable by law is a contract.”

 

Agreement: As per Section 2(e) “every promise and every set of reciprocal promises forming the consideration for each other is an agreement.”

Consideration: As per Section 2(d), “when at the desire of the promisor the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or abstain from doing something, such act or abstinence or promise is called a consideration for the promise.”

Promise: As per Section 2(1), “when the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.”

Proposal: As per Section 2(a), “when one person signifies to another his willingness to do to abstain from doing anything, with a view to obtaining the assent of that other person to such act or abstinence, he is said to make a proposal.

 

Some other definitions given in the interpretation clauses are:

(1) Promisor and Promisee [Section 2(6)]: The person making the proposal is called the ‘promisor’ and the person accepting the proposal is called the promisee’.

(2) Reciprocal promises (Section 2(f)]: “Promises which form the consideration or part of the consideration for each other are called reciprocal promises.”

(3) Void Agreements [Section 2(g)]: “An agreement not enforceable by law is called void agreement.”

(4) Voidable Contract (Section (i)]: “An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract.”

(5) Void Contract [Section 20)]: “A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable.” (This definition presumes that in ceases of a void contract there is no voidness ab initio. To be termed a contract it must have been a contract at some point in time.)

 

Difference between an agreement and a contract

As per Section 2(e) of the Indian Contract Act, 1872, “every promise and every set of promises forming the consideration for each other is an agreement.”

Thus, an agreement comprises of a promise (or promises) from both sides e.g. A promises to deliver his radio to B, and in return, B promises to give to A Rs. 1000 is an agreement.

 

 

 

Promise has been defined in Section 2(f) as: “When the person to whom the proposal is made signifies his assent-thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise.”

Thus, acceptance of the proposal is a must to form a promise e.g. A proposes to give his radio to B. B does not respond (in any way). Here, there is no acceptance and hence no promise. On the other hand, if B accepts even by nodding his head, it constitutes a valid promise. Acceptance should be expressed by some mode of communication.

 

Proposal has been defined in Section 2(a) as: “When one person signifies to another his willingness to do or to abstain from doing anything with a view to obtaining the assent of that other person to such act or abstinence, he is said to make a proposal.”

The word ‘signifies’ (signification of ‘willingness’) is the key to the definition of proposal and promise. It can be made by any mode of communication. Signifies means some external manifestation.

Thus, an agreement is said to be made whenever there is a valid set of promise(s) from both sides, e.g. A proposes to B to give him his radio. B signifies his acceptance of the proposal. This constitutes a promise on the part of A. On the other hand, B proposes to pay Rs. 500 for the radio and A accepts this proposal. This constitutes a promise on the part of 6. The two promises together constitute an agreement.

But in order to form a contract, there has to be something more. Section 21x) defines a

contract as: “An agreement enforceable by law is a contract.”

Thus, in order to form a contract, the enquiry has to be at two stages:

(a) A valid agreement (as discussed above)

(b) It should be enforceable by law.

 

As per Section 10, to be enforceable the following conditions have to be fulfilled by an agreement:

(a) Parties should be competent to contract e.g. minors and unsound persons cannot contract per se.

(b) Lawful consideration and lawful object in respect of that agreement e.g. an agreement to commit theft – no contract.

(c) There should be free consent of the parties e.g. consent by force no contract.

(d) One, which has not expressly been declared to be void.

Thus, all agreements are not contracts but all contracts are agreements e.g. an agreement to supply goods will be a contract if the conditions of Section 10 are satisfied. But an agreement to see a movie cannot be a contract. However, a contract to supply goods will always have an agreement.

In this regard, it would be pertinent to note that from the point of view of legality, agreements are of the following types:

(1) Contract: (discussed above).

(2) Void agreements [Section 2(g)]: An agreement not enforceable by law is void e.g. an agreement of a minor (Sections 23 to 30 talk about such agreements).

(3) Voidable contracts (Section 2(i)]: An agreement enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others e.g. when consent has been obtained by coercion, fraud, misrepresentation or undue influence. If the party concerned does not avoid it, the agreement is a contract.

(4) Illegal agreements: Opposed to public policy e.g. an agreement to commit a crime or a tort. But certain agreements may be)void or voidable but not illegal, depending upon the degree of its opposition to public policy e.g. an agreement in restraint of trade is void but not illegal.

 

Void agreement vs. Voidable contract

Void agreement is a nullity from its very inception and no rights accrue. A voidable contract is valid until it has been avoided and rights accrue till then.

 

Chapter-2

Proposal of Offer

 

Synopsis:

  • General comments
  • Invitation to treat
  • Intention to create a legal relationship
  • Communication of offer
  • Cross offers
  • General offers
  • Standing, open or continuing offers

.

General

‘Proposal’ lies at the very root of the formation of a contract. A contract has been defined in Section 2(h) of the Indian Contract Act as “every agreement enforceable by law is a contract.” An agreement is ‘every promise and every set of promises, forming the consideration for each other’. [Vide Section 2(e)]. A promise’ has been defined in Section 2(b) as: “When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise. Proposal has been defined in Section 2(a) of the ICA, 1872: “When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal.”

 

Important words in the above definition (their implications):

  1. Person: It has to be a legal person (natural or juristic, including a corporation).
  2. ‘Willingness’: It implies an intention (a voluntary one) to do or to abstain from doing something.
  3. ‘With a view to obtaining the assent of that other’: Intention to obtain the assent of another person has to be there. If a person makes a statement without any intention to obtain the assent of the other party thereto > not a valid proposal e.g. A makes a general statement in front of B that he intends to sell his radio. It won’t amount to a proposal unless it is accompanied by an intention to obtain B’s assent thereto.
  4. The act to do which or to abstain from doing which the proposer signifies his willingness has to coincide with the act to do which or to abstain from doing which the proposer intends to obtain the assent of the proposee e.g. A signifies his willingness to sell a radio to B but he intends to obtain B’s assent with respect to starting a business in dealing with the sale of radios Not a valid proposal.
  • ‘Proposal in the Indian Contract Act is synonymous with ‘offer’ in English Law.

 

Intention to create a legal relationship

In order to form a valid agreement after acceptance, a proposal has to be made with the intention to create a legal relationship. The test to judge the intention is an objective test and not a subjective one; the intention at the time of making the proposal is what is material e.g. in an agreement to go for a walk, to go to a movie etc. there is no intention to create a legal relationship.

 

As in Appleson vs. Littlewood Ltd. (1939), the parties may expressly mention that there is no intention to create a legal relationship. In other cases, the intention has to be derived from the nature of the agreement. Generally, in social engagements, such an intention is presumed to be lacking.

Intention not to create a legal relationship was expressly mentioned in the contract in Rose and Frank Co. vs. Crompton and Brothers Ltd. (1925).

In the case of Balfour ys. Balfour (1919), such intention was found to be implied. Therein, the defendant, a husband employed in Ceylon, had promised to send 30 pounds to his wife, the plaintiff till she was in England (on account of illness). The husband failed to send the money and the wife sued for the same. Atkin, LJ delivered the judgment. He held that the agreement in the case was not intended to create a legal relationship. There are certain agreements that are not contracts in the legal sense viz. an agreement to go for a walk etc. An agreement between a husband and a wife generally lacks such an intention to create legal relationships) as the parties (husband and wife) can be presumed not to have intended to be attended by legal consequences.

 

Later on, the above rule(husband and wife) was extended to other close relationships e.g. parents and children, in the case of Jones vs. Padavatton (1969). Therein, Mrs Jones persuaded her widowed daughter to leave her job at Washington and offered to pay her a monthly allowance for the bar in England. The daughter got admitted to the bar in 1962. In1964, Mrs Jones bought a house in England and rented a part of it, the allowance. Later on, on account of some difference, Mrs Jones sued her daughter for eviction. The daughter contended that on account of her promise Mrs Jones was legally bound to pay the allowance till she completed her studies.

It was held that as the contract had not been reduced to writing nor the duration for which she was to be maintained had been mentioned. No intention to create a legal relationship could be implied.

 

However, there is nothing that prevents persons in a close relationships from entering into a legal relationship. In Merrit vs. Merrit (1970) the husband and wife were joint owners of a house that was subject to a mortgage to a building society. Husband went to live with another woman and by signing a note agreed to transfer the house property to wife if she cleared all outstanding amount with respect to the house. Here, it was held that there was a clear intention to create a legal relationship.

 

Similar was the case of Mc Gregor vs. Mc Gregor (1888).

Conclusion: Thus, it is the intention (to be tested on the criterion of objectivity) that is material. The intention can be inferred from a variety of facts. But generally, in the case of social relationships (particularly close relationships), such intention is presumed to be lacking unless the contrary is proved.

 

Tests

  1. Intention important To create a legal relationship.
  2. Objective test – Facts to be seen.
  3.  Intention at the time of the agreement’s important.

 

Offer must be communicated

As per Section 2(b) “a proposal, when accepted, becomes a promise.” Thus, acceptance of a proposal is a must in order to constitute a promise. And in order to be accepted, a proposal must be communicated. Section 2(b) uses the word ‘signifies’ with respect to the proposer. ‘Signifies’ means communication by some mode of communication, for an offer can be accepted only when it comes to the knowledge of the proposee. As per Section 4, “the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.” e.g. A proposes, by letter, to sell a house to B at a certain price. The communication of the proposal is complete when B receives the letter. In order to constitute a valid proposal, the communication of the proposal must be completely against the promisee. Acting in ignorance of the offer does not amount to the acceptance of the same. In Lalman Shukla vs. Gauri Duit (1913), the defendant’s nephew absconded from home. The plaintiff was the servant of the defendant and was sent to search for the missing boy. Later on, the defendant issued handbills announcing a reward of Rs. 501 to anyone who might find out the found out the boy. He brought an action to claim the reward. It was held that as he was ignorant boy. The plaintiff who was ignorant of the proposal (even though it was a general proposal of the proposal, the communication of the proposal had not been completed and hence there was no question of a binding contract even if other conditions were satisfied. His claim failed.

 

 

Section 3, ICA, 1872 says that “the communication of proposals…is deemed to be made by any act or omission of the party proposing…..by which he intends to communicate such proposal…… or which has the effect of communicating it.”

Thus, a mere intention to communicate is not sufficient. There has to be an external

manifestation of the same by way of some act or omission. And the intention of such act or omission has to be to communicate the proposal or the effect of such act or omission should be the communication of the proposal e.g. A intends to sell his house but remains quiet. There is no communication of proposal. He tells this to B. The communication is complete against B but not C who is told about this by B unless A intended B to communicate it to C.

If a person has the knowledge of the offer (however, in the cases of specific offers the communication also should have been there/this is not true with respect to general offers where a specific communication is not required; rather a mere knowledge of the offers is sufficient), his acting in accordance with the terms thereof amounts to the acceptance of the same. In such a case, it is immaterial that at the time of accepting the offer the acceptor does not intend to claim the award mentioned in the offer. In Williams vs. Carwardine (1833), the plaintiff who knew that reward had been announced to be given to anyone who gave information leading to the conviction of an assailant for murder, gave the necessary information in order to ease her conscience’ and not intending to claim the reward. But later on, she brought an action to claim the reward. It was held that since the acceptance had been made with a knowledge of the offer, there was a valid contract and, therefore, she was entitled to claim the reward.

 

Cross Offers

A contract can arise only if a party having the knowledge of an offer from the other party, has accepted the same e.g. A, through a letter, offer to B to sell his radio to B for Rs. 500/-; B receives the letter and validly accepts the offer. Valid contract results here (provided the other conditions of Section 10 are satisfied). However, if A makes the offer through a letter I on 1st January and B also makes the same offer on the same date, there will ensure no binding contract as neither had the knowledge of the offer from the other party and as a result there was no valid acceptance. Such offers are called cross offers.

In Tinn vs. Hoffmann (1873), A wrote a letter to Bindicating his willingness to sell 800 tons of iron at 69 sq. per ton. On the same day, B wrote a letter to A offering to buy 800 tons of iron at 69 sq. per ton. The two letters crossed each other in the post. Later on, B sued for specific performance of a contract. It was held that the two offers were only cross offers and there was no binding contract.

A cross offer should be distinguished from a counteroffer and a general offer. (discussed later).

It is also notable that to be a cross offer, it is not necessary that the two offers should have been posted on the same date, one should have been posted before the communication of the first offer was completed. There can be changed terms also). Cross offers do not cancel each other.

 

 

Invitation to treat

Sometimes, owing to the nature of the business of some other factors, a person may not make an offer but make some statement or give some information with a view to inviting offers on that basis e.g. Government tenders, a catalogue of goods sent to a customer by a shopkeeper etc. Such cases are cases of an invitation to make an offer (to treat), e.g. A invites persons to an auction. This is an invitation to treat. The bids were made by the persons in the auction are an offer. This offer is accepted only by the fall of the hammer (or in some other conventional;

mode). The auctioneer is not bound to accept a bid. Similarly, a bidder can withdraw his bid  (offer) before the fall of the hammer. An auctioneer can even cancel the auction sale

announced by him. In Harris vs. Nickerson (1873), the defendant advertised an auction sale and the plaintiff travelled a long distance to the venue of the auction. There he found that the auction had been cancelled. He brought an action against the auctioneer to recover the travel expenses. It was held that the advertisement of the auction was a mere invitation to treat and its acceptance did not amount to a binding contract. Thus, the defendant was not liable.

 

The law has been explained by Lord Goddard, CJ in Pharmaceutical Society of Great Britain vs. Boots Cash Chemists Ltd. (1952). Therein the defendants were having a business in retail sale of drugs. Medicines were displayed on the shelves and their retail prices were also indicated under a self-service system. The selected goods were to be taken to the cash counter when there was placed a registered pharmacist who had been authorised to stop any customer removing any drugs from the premises. The question was whether the display of the goods with their prices amounted to an offer?

Lord Goddard, CJ observed that “it is a well-established principle that the mere exposure of goods for sale by a shopkeeper indicates to the public that he is willing to treat, but does not amount to an offer to sell… that principle (cannot) be completely reversed merely because there is self-service scheme, such as this, in operation.” He further held that the display of goods was an invitation to treat and the selection and taking to the counter, of the goods amounted to an offer on the part of the customer. It is only when the shopkeeper accepted the offer (i.e. agreed to sell) that the contract was complete. However, the shopkeeper was free to reject the offer, and this view is reinforced by the presehce of a registered pharmacist at the cash counter.

The reason given by the learned CJ was one of the ordinary principles of common sense and of commerce. Strange consequences would flow if the above stated principle is negated – a customer picks up a good and the property passes on to him, and the shopkeeper cannot refuse to sell the good. On the other hand, a customer cannot keep the good back (even if it is defective) and the shopkeeper would be successfully able to insist upon him to purchase the article. Both the above consequences are undesirable.

In Harvey vs. Facey (1893), the plaintiffs interested in purchasing a plot of land called Bumper Hall Pen, owned by the defendants, sent a telegram to the defendant: “Will you sell us B.H.P.? Telegraph the lowest cash price. Reply of the defendant was: “Lowest price for B.H.P. is 900 pounds.” The plaintiff again sent a telegram: “We agree to buy B.H.P. for 900 pounds, asked by you. Please send us your title deeds.

 

The question was whether the telegram of the defendants amounted to an offer. The judicial committee of the Privy Council held that the defendants had replied to only the second question of the plaintiff’s first telegram It amounted only to an invitation to treat, and the plaintiff’s second telegram amounted only to an offer by the plaintiffs and not an acceptance to an offer. For a binding contract there was needed a further acceptance of this offer by the defendants.

In Mac Pherson vs. Appanna (AIR 1951 SC 184), the plaintiff offered to pay Rs. 6000 to the defendant for his property. He again wrote to the defendant’s agent asking whether the earlier offer had been accepted and also offering to pay a higher price if found reasonable. The agent replied that the defendant would not accept anything less than Rs. 10000. The plaintiff wrote that he was willing to pay Rs. 10000.

It was held that the agent’s letter only amounted to an invitation to treat and the defendant needed to accept the ‘offer’ made by the plaintiff in the second leiter in order to constitute a binding contract.

In Badri Prasad ys. State of Madhya Pradesh (AIR 1970 SC 76), the divisional forest officer wrote to the plaintiff to communicate whether he agreed to pay a further sum of Rs. 17000 for the contract of big trees. The plaintiff replied that he agreed to pay provided that his earlier claim for a refund of Rs. 17000 was accepted. The Supreme Court held that, first, the divisional forest officer’s letter was a mere invitation to treat and secondly, even if it were considered to be an offer, the plaintiff’s acceptance was a conditional acceptance. Hence, there was no contract in any case.

 

General Offers

A general offer is an offer to the public at large and anyone who performs the conditioung of the offer is deemed to have accepted the offer e.g. A makes an offer that he would reward any person who finds his lost child. This is general offer. Anyone who finds the child is deemed to have accepted the offer and there ensues a valid contract. There is no need to communicate the acceptance of such an offer. The offeror can be informed after the conditions have been fulfilled.

As per Section 8, ICA, “Performance of the conditions of a proposal…..is an acceptance of the proposal.” This section by implication talks of a general offer, for in specific offers, communication of acceptance is a must. Though the offer is made to the public at large, the contract is concluded only with the person or persons who act(s) upon the terms of the offer. In Carlill vs. Carbolic Smoke Ball Co. [(1893) 1 QB 256)], the defendants had advertised in the newspaper to reward any person a sum of 100 pounds, who contacted influenza or any other disease due to cold after having used ‘Smoke Balls’ of the Co. for the prescribed period. The plaintiff has contacted influenza despite having used the smoke balls for the prescribed period. She sued the Co. for the reward. The Co. claimed that there was no communication of the acceptance of the offer. Lord Bowen LJ, observed that it was an offer to all the world, an offer to become liable to anyone who, before it is retracted, perform the conditions. The  contract is made with that limited portion of the public who come forward and perform the condition on the faith of the advertisement. Thus, it was held that the defendants were liable.

 

However, a knowledge of the general Offer is a must. In Lalman Shukla vs. Gauri Dutt [(1913) 11 All LJ 489], the defendant sent his servant to search his lost nephew. Then, he advertised, through handbills, to reward with Rs. 501, anyone who found the lost boy. The plaintiff, the servant, was successful in finding the boy though he was ignorant of the offer. Later on, on knowing the offer, he sued the defendants for the reward. It was held that as he was ignorant of the offer, his performance of the condition did not amount to an acceptance, and hence there was no contract. The defendant was not liable.

In Har Bhajan Lal vs. Har Charan Lal (AIR 1925 All 539), it has been held that if the plaintiff had the knowledge of the advertisement/announcement, and he finds out the lost son of the defendant, he can successfully claim the reward.

In Williams vs. Carwardine [(1833) 1 B & Ad. 621], the plaintiff knew that an award has been announced to be given to any person who gives information leading to the conviction of an assailant for murder. She gave an information which led to the conviction but then she said that she did not intend to claim a reward. Later on, she changed her mind and sued for the reward. It was held that she could successfully sue.

 

Standing Offer/Open/Continuing Offer

An offer may be allowed to remain open for acceptance over a certain period of time. Such an offer is a standing/open/continuing offer e.g. an offer to supply 1000 bales of cotton from 1.1.97 to 31. 12.97 is an open offer. The contract is concluded only when an order is placed. If on 1.2.97 an order for 50 bales (is placed, the contract is concluded only to that extent, the offer for the remaining 950 bales can be revoked at any time before an order is placed.

Tenders for supply of goods are also open offers. Advertisements inviting tenders are only an invitation to treat. Acceptancelapproval of the tender constitutes a standing offer. As and when an order is placed it constitutes an acceptance of the offer : binding contracts.

In Union of India vs. Maddala Thathiah (AIR 1966 SC 1724), the Dominion of India, as an owner of railways, invited tenders for the supply of 14000 maunds of cane jaggery to the railway grain shops. Tender of the plaintiffs was accepted in the form of a standing offer. In the tender there was a stipulation that the plaintiffs/appellants could cancel the agreement as regards the supplies of jaggery about which no formal order has been placed. This stipulation

was held to be a valid one. It was held that the appellants are bound only for such quantities for which specific orders have been placed.

However, if there is a stipulation in the contract that the offeror cannot revoke even that part of the offer for which an order has not been placed, then the contract becomes void. The reason for this is that an offeror has the right to revoke his offer any time before acceptance.

 

 

 

 

 

 

 

 

Chapter-4

Acceptance
Section 2(b) of Indian Contract Act

 

Effect/ Importance of Acceptance

A contract is created only after an offer is accepted. Before the acceptance, neither party is bound thereby. After the offer has been accepted it becomes a promise, which if other conditions of a valid contract are satisfied, binds both the parties to the promise.

 

Essentials of a Valid Acceptance

  1. Acceptance should be communicated by the offeree to the offeror (Sections 3 and 4 of Indian Contract Act).
  2. Acceptance should be absolute and unqualified (Section 7 of Indian Contract Act).
  3. Acceptance should be made in some usual and reasonable manner, (Section 7 of Indian Contract Act).
  4. Acceptance should be made while the offer is still subsisting.

 

  • Communication of Proposal and Acceptance

Section 2(b) of Indian Contract Act says that the proposal is accepted only when the person to whom the proposal is made signifies his assent thereto (i.e. to the proposal), which makes the proposal, deemed to be accepted.

Section 3 of Indian Contract Act says that the communication of proposal/acceptance of proposals is deemed to be made by an act or omission of the party proposing, accepting or revoking by which he intends to communicate or which has the effect of communicating it.

  1. About Communication of Acceptance: The principle is that there should be external manifestation (overt act) of acceptance. A mere mental determination to accept unaccompanied by an external indication will not be sufficient. Such/ manifestation may be in the form of express words (written or spoken) or may be signified through conduct by which he intends to communicate such proposal/acceptance of proposals/revocation of proposals or which has the effect of communicating it. Section 4 of Indian Contract Act Communication when Complete: the communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.
    The communication of an acceptance is complete, as against the proposer, when it is put in a course of transmission to him so as to be out of the power of the acceptor.
    As against to acceptor, when it comes to the knowledge of the proposer, or his authorized agent.
  2. Communication by the offeree to the offeror only:  Acceptance must be communicated to the offeror himself. A communication to any other person is as ineffectual as if no communication has been made. Another point of importance is that the offeror cannot impose upon the offeree a duty to reply and therefore an offeror cannot say that failure to reply will be deemed to be the acceptance of the offer.CASE LAW: Felthouse Vs. Bindley – The nephew, without having replied to the uncle’s letter had asked his uncle to take away the horse and pay the price, the position of the uncle would have been curious, for, while the uncle could hardly have denied the promise, the nephew could always say at his convenience whether by not communicating his acceptance he had accepted the offer or not. It if for this reason that the law has in such cases always insisted upon an overt act (external manifestation) of acceptance than a mere mental determination. In a case of this kind before Denning LJ a clause in the contract provided that the contract would be binding only when the other party put his signature upon it. Even so his Lordship held: Signing without notification is not enough. It would be deplorable if it were. The plaintiffs would be able to keep the form in their office unsigned, and then play fast and loose as they pleased. The defendant would not know, whether or not there was a contract….. Just as mental acceptance is not enough, nor is internal acceptance within the plaintiff’s office.
  3. Communication must be made by the offeree or his authorized agent: (only offeree can accept the offer) – This is a natural corollary to the above-mentioned principle. If an unauthorized person makes the communication it does not result in a contract
    CASE LAW: Powell Vs. Lee – There must be notice of acceptance from the contracting party in some way. Infotmation by an unauthorized agent is insufficient. In Felthouse vs. Bindley, the nephew, without having replied to the uncle’s letter had asked his uncle to take away the horse and pay the price, the position of the uncle would have been curious, for, while the uncle could hardly have denied the promise, the nephew could always say at his convenience whether by not communicating his acceptance he had accepted the offer or not. It is for this reason that the law has in such cases always insisted upon an overt act (external manifestation) of acceptance than a mere mental determination. In a case of this kind before Denning LJ a clause in the contract provided that the contract would be binding only when the other party put his signature upon it. Even so his Lordship held: Signing without notification is not enough. It would be deplorable if it were. The plaintiffs would be able to keep the form in their office unsigned, and then play fast and loose as they pleased. The defendant would not know, whether or not there was a contract… Just as mental acceptance is not enough, nor is internal acceptance within the plaintiff’s office.
  4. Communication of acceptance to a wrong person is no acceptance: The offeror becomes bound as soon as the letter or acceptance is posted to him. If the letter of acceptance is posted at a wrong address or to a wrong person, that will not bind the offeror.
    CASE LAW: Karan Singh Vs. The Collector Chattarpur
    The offeror however becomes bound immediately on the posting of the letter to him and it makes no difference that the letter is delayed in transits or it is even lost in the post and the offeror never receives it. A complete contract arises on the date when the letter of acceptance is post or in due course. The only condition is that the letter should be correctly addressed.

 

 

CASE LAW

  1. Household Fire and Carriage Accident Insurance Co. Vs. Grant – Letter lost in post/never received. Held that the offeror is bound by the contract. The defendant in this case had applied for allotment of 100 shares in the plaintiff company. A letter of allotment addressed to the defendant at his residence was posted in due time, but it never reached the defendant. Nevertheless he was held bound by the acceptance. Thesiger LJ stated the rule thus: “An acceptance which only remains in the breast of the acceptor without being actually and by legal implication communicated to the offeror, is no binding acceptance…. But if the post be treated as the agent of both parties, then as soon as letter of acceptance is delivered to the post office, the contract is made as complete and final and absolutely binding as if the acceptor had put his letter into the hands of a messenger sent by the offeror himself as his agent to deliver the offer and to receive the acceptance….. The acceptor, in posting the letter has “put it out of his control and done an extraneous act which clinches the matter, and shows beyond all doubt that each side is bound. How, then, can a casualty in the posting office, whether resulting in delay, which in commercial transactions is often as bad as no delivery, or in non-delivery, unbind the parties or unmake the contract?”
  2. Dunlop Vs. Higgins – Due to the frosty weather the letter of acceptance was delayed. Held that the offeror is bound by the contract.
  3. Adams Vs. Lindsell – The acceptance was delayed. Held that the offeror is bound by the contract.
    In this case, on September 2, 1817, the defendants sent a letter offering to sell quantity of wool to the plaintiffs. The letter added “receiving your answer in course of post”. The letter teached the plaintiffs on September 9th. The defendants for the acceptance up to September gth and not having received it, sold the wool to other parties on that date. They were sued for breach of the contract.
    It was contended on their behalf that till the plaintiffs answer was actually received there could be no binding contract and, therefore, they were free to sell the wool on 8th.
    But the court said “If that were so, no contract could ever be completed by the post. For if the defendants were not bound by their offer when accepted by the plaintiffs till the answer was received, then the plaintiffs ought not be bound till after they had received the notification that the defendants had received their answer and assented to it. And so it might go on ad infinitum (without end).”

The rule of postal communication stands differently from the Instantaneous communication like Telex Telephone where, the parties are deemed to be in each other’s presence or though separafed in space they are in direct communication e.g. by telephone. No contract will arise until the offeror receives the notification of acceptance at his place.

 

CASE LAW:

  1. Entores Limited Vs. Miles Far East Corporation – Telex – Denning J- The facts of the case were that an offer was made from London by Telex to a party in Holland and it was duly accepted through the Telex, the only question being as to whether the contract was made in Holland or in England. The Court of Appeal held that Telex is a method of instantaneous communication and the rule about instantaneous communications between the parties is different from the rule about the post. The contract is only complete when the acceptance is received by the offeror; and the contract is made at the place where the acceptance is received.”
  2. Bhagwandas Kedia Vs. Girdhair Lal Telephone: In this case, the plaintiffs made an offer from Ahmedabad to the defendants at Khamgaon to purchase certain goods and the defendants accepted the offer. The question was whether the conversation resulted in a contract at Khamgaon or at Ahmedabad. A majority of the judges (Hidayatullah J, afterwards CJ, dissenting) preferred to follow the English rule as laid down in the Entores case and saw no reason for extending the post office rule to telephonic communications Shah J (afterwards CJ) felt that “Section 4 does not imply that the contract is made qua the proposer at one place and qua the acceptor at another place. The contract becomes complete….when the acceptance of offer is intimated to the offeror.” But, he continued to say, that the draftsman of the Indian Contract Act could not have envisaged use of telephone because it had not yet been invented and therefore, the words of the section should be confined to communications by post Hidayatullah J (afterwards CJ) dissenting opinion was, on the other hand, convinced that though the law was framed at a time when telephones, wireless, telstar and early bird were not contemplated”, the language of Section 4 is flexible enough to cover telephonic communications. The courts should not completely ignore the language of the Act. When the words of acceptance are spoken into the telephone, they are put into the course of transmission to the offeror so as to be beyond the power of the acceptor. The acceptor cannot recall them. The communication being instantaneous, the contract immediately arises.

 

  • Acceptance should be Absolute and Unqualified

It lapses by rejection or Counter-offer. An acceptance with a variation is no acceptance; it is simply a counter-proposal, which must be accepted by the original promisor before a contract is made.

CASE LAW: Hyde Vs. Wrench

By conditional acceptance or Counter-offer the original offer is deemed to be rejected. Once the original offer is destroyed by counter offer it is a dead offer and cannot be accepted unless renewed.

In this case an offer to sell a farm for £ 1,000 was rejected by the plaintiff, who

offered £ 950 for it. This was turned down by the offeror and then the plaintiff agreed to

pay £ 1,000. The court held that the defendant was not bound by any such:

acceptances.

CASE LAW: Badri Pd. Vs. State of MP

Acceptance should be of the whole of the offer the offeree cannot accept a part of its terms, which are favorable to him and reject the rest; such an acceptance is another kind of Counter proposal and does not bind the offeror unless he agrees to the qualified acceptance.

However a counter proposal can be accepted on its terms and where a Counter proposal is accepted, a contract arises in terms of the Counter-proposal and not in terms of the original proposal.

A mere enquiry as to the terms of the offer does not mean a Counter offer.

 

Provisional Acceptance

An acceptance is sometimes made subject to final approval; a provisional acceptance of this kind does not ordinarily bind either party until the final approval is given. Meanwhile, the offeror is at liberty to cancel the offer. Any prohibition regarding cancellation is merely a “nudum pactum”. When a provisional acceptance is subsequently confirmed, the fact would be notified to the offeror for it is only then that he becomes finally bound.

 

CASE LAW:

  1. Hardwar Singh Vs. Baguh Sumbrui Confirmation of acceptance still in progress.
  2. Bengal Coal Company Vs. Homi Wadia
    A tenderer can withdraw his tender before its final acceptance by a work or supply order even if there is a clause in the tender restricting his right to withdraw. A tender can however be irrevocable where the tender has some consideration attached to it or promised not to withdraw it or where there is a statutory prohibition against the withdrawal.
  3. U.O.I Vs. Maddala Thathiah: A clause is a tender authorizing the party inviting tenders to terminate the contract at any time for the future supplies does not destroy the very basis of the contract and the clause is valid.

 

  • Mode of Acceptance

Usual/reasonable manner. In the manner prescribed or indicated by the offeror the offeror. An acceptance given in any other manner may not be effective particulariy where clearly insists that the acceptance shall be made in the prescribed manner.

CASE LAW: Elliasion Vs. Henshaw – A offered to B to send the acceptance by wagon, B sent it by post thinking it would reach expeditiously, the post arrived after the time of the wagon. A was held not bound by the acceptance.

 

  • While Offer Subsisting

And not when it has been withdrawn/lapsed/rejected.

 

Chapter-3

Revocation of Offer and Acceptance

Section 4 and 5 of Indian Contract Act

 

Section 4 – Communication when complete

The communication of a proposal is complete when it comes to the knowledge of the person to whom it is made.

The communication of an acceptance is complete,- As against the proposor, when it is put in a course of transmission to him so as to be out of the power of the acceptor. As against the acceptor, when it comes to the knowledge of the proposer.

The communication of a revocation is complete;- As against the person who makes it, when it is put into a course of transmission to the person to whom it is made, so as to be out of the power of the person who makes it;

As against the person to whom at is made, when it comes to his knowledge.

 

Illustrations

  1. A proposes, by tetter, to sell a house to B at a certain price.
    The communication of the proposal is complete when B receives the letter.
  2. B accepts A’s proposal by a letter sent by post.
    The communication of the acceptance is complete,
    As against A, when the letter is posted;
    As against B, when the letter is received by A.
  3. A revokes his proposal by telegram.
    The revocation is complete as against A when the telegram is despatched.
    It is complete as against B when B receives it.
    B revokes his acceptance by telegram. B’s revocation is complete as against B when
    the telegram is despatched, and as against A when it reaches him.

 

Revocation

The Contract Act gives both proposer and acceptor the option of revoking their communication, before a completed contract comes into existence. Thus, revocation is an option given to the parties to stop the contract from coming into existence.

 

  1. Revocation of Proposal
    Section 6 lays down the circumstances when an offer lapses i.e. modes of revocation. A proposal is revoked under the following circumstances:A. Notice of revocation
    Section 5 provides that “a proposal may be revoked at any time before the communication of its acceptance is complete as against proposer, but not afterwards”. As against the proposer, the communication of acceptance is complete “when it is put in a course of transmission to him, so as to be out of the power of acceptor” (Section 4). Thus, for the communication of revocation to be effective, it must reach the acceptor before he mails his acceptance and makes it out of his power. No question of revocation can possibly arise in case of a contract over telephone.Illustration: A proposes by letter sent by post, to sell his house to B. B accepts the proposal by a letter sent by post. A may revoke his proposal at any time before or at the moment when B posts his letter of acceptance, but not afterwards.In Henthorn vs. Fraser (1892) 2 Ch 27, the court observed that a person who has made an offer must be considered as continuously making it until he has brought to the knowledge of the person to whom it was made that it is withdrawn. Where an offeror gives the offeree (acceptor) an option to accept within a fixed period, he may withdraw it even before the expiry of that period. In Alfred Schonlank vs. M. Chetti (1892) 2 Mad LU 57, the defendant left an offer to sell certain goods at the plaintiff’s office allowing him 8 days’ time to give his answer. On the 4th day, however, the defendant revoked his proposal. The plaintiff accepted it on the 5th day. However, where the agreement to keep the offer open for a certain period of time is for some consideration (even one pound), the offeror cannot cancel it before the expiry of that period.
    Notice of revocation shall be deemed to have been served when it reaches the acceptor’s address. In the Brimmes (1974) 3 All ER 88, a notice of revocation was sent by telex and was received by the plaintiff’s telex machine during normal business hours, but the plaintiff read the message the next day. He was, however, held bound by the notice when his machine received it.
    Under the Indian law, it is necessary that the communication of revocation should be I from the offeror or from his duly authorised agent. However, under the English law, it is enough if the acceptor knows reliably that the offer has been withdrawn. Thus, in Dickinson vs. Dodds (1876) 2 Ch D 463, the plaintiff was informed by a third person that the property (about which an offer was made) had already been sold to another. Held that a sale to a third person, which came to the knowledge of the person to whom the offer made was an effectual withdrawal of the offer.
    B. Lapse of time
    An offer lapses on the expiry of the time, if any, fixed for acceptance. However, it is enough if the acceptor has ‘posted the acceptance before the stipulated time’, even if it reaches the offeror after the stipulated date. Where no time for acceptance is prescribed, the offer has to be accepted within a reasonable time. Where the subject matter of the contract is an article, like gold, the price of which rapidly fluctuates in the market, very short period will be regarded as reasonable, but not so in reference to land.
    C. By failure to fulfill a condition precedent
    Where the offer is subject to a condition precedent, it lapses if it is accepted without fulfilling the condition (e.g. deposit of earnest money).
    D. By death or insanity of offeror
    An offer lapses on the death on insanity of the offeror, provided that the fact comes to the knowledge pf the offeree before he makes his acceptance. It means that if such fact has not come to his knowledge while he accepts the offer, it is valid acceptance giving rise to contractual obligations. The Act is silent about the effect of death of the offeree. As an offer can be accepted only by an offeree, where he died before posting the letter of acceptance, the offer lapses.

 

  1. Revocation of Acceptance
    In India, unlike the English law, acceptance is generally revocable. Section 5 provides that ‘an acceptance may be revoked at any time before the communication of the acceptance is complete as against the acceptor, but not afterwards’. As against the acceptor, the communication is complete when the acceptance comes to the knowledge of offeror i.e. when the letter of acceptance reaches the offeror (Section 4). Thus, an acceptor may cancel his acceptance by a speedier mode of communication, which will reach earlier than the acceptance itself.
    Illustration: A proposes, by letter sent by post, to sell his house to B. B accepts the proposal by a letter sent by post. 8 may revoke his acceptance at any time before or at the moment when the letter communicating it reaches A, but not afterwards.
    Thus, if the letter of acceptance and the letter of revocation reach together, then also the acceptance will be deemed to have been revoked. However, some authors are of the view that in such a case, the formation of contact will depend on the fact that which of the two letters is opened first; if letter of acceptance is opened first, the sevocation is not possible, and, if letter of revocation is opened first, revocation is valid. Thus such contracts are called ‘accidental form of contracts’.

 

Chapter-4
Consideration

 

Importance of Consideration
A. Section 25 ICA: ‘an agreement without consideration is void’.

  1. Section 10 ICA: Enumerates essentials for a valid contract-includes consideration.
  • Without consideration, an agreement cannot be there. For any contract to form, apart from the other essential elements, one very important element is that the promise should be to do something or to deliver something. This something is what is called the consideration. Without the flow of the consideration, there cannot be an intention to create a legal relationship which ripens into a contract.

 

Definition of Consideration

(a) Blackstone: Consideration is the recompense given by the party contracting to the other.

(b) Pollock: Consideration is the price for which the promise of the other is bought.

(c) Patterson: Consideration is something which is of some value in the eyes of law. It may be some benefit to the plaintiff or some detriment to the defendant.

(d) Lush J. (in Currie vs. Misa): A valuable consideration in the sense of law may consist either in some right, interest, profit or benefit accruing to one party or some forbearance, detriment, loss or responsibility given, suffered or undertaken by the other.

(e) Section 2(d) ICA: When at the desire of the promisor, the promisee or any other person has done or abstained from doing, does or abstains from doing, promises to do or abstain from doing something, such act, abstinence or promise is called a consideration for the promise.

 

 

Essentials of a valid consideration [as construed from Section 2(d)]

  1. Consideration should be given at the desire of the promisor.
  2. It should be given by the promisee or any other person.
  3. Consideration may be past, present or future.
  4. There should be some act or abstinence.

 

  1. Consideration should be given at the desire of the promisor:-
  1. Act not a good consideration unless done at the desire of the promisor.
    Durga Prasad vs. Baldeo (1880) 3 All 221 [Oldfield J.] – The plaintiff, on the order of the Collector of a town, built at his own expense, certain shops in a bazaar. The shops came to be occupied by the defendants who, in consideration of the plaintiff having expended money in the construction, promised to pay him a commission on articles sold through their agency in the bazaar. The plaintiff’s action to recover the commission was rejected.
    Oldfield J. said: “The only ground for the making of the promise is the expense
    incurred by the plaintiff’in establishing the Ganj (market) but it is clear that anything done in that way was not at, the desire’ of the defendants so as to constitute consideration.” The act was the result not of the promise but of the Collector’s order.
  2. An act done at the desire of the plaintiff furnishes a good consideration even if it is of no significance or personal benefit to him.

 

CASE LAWS:

  1. Kedar Nath vs. Gorie Md. – Howrah municipality, was constructing a town hall. Defendant promised to pay Rs. 100 as subscription, but did not pay. Plaintiff entered into contract to get building constructed on the faith of the promise. Held: Defendant is liable.
  2. P. Mudaliar vs. S. Mudaliar – Promise to pay subscription is enforceable the moment any definite steps have been taken to further the object on the faith of the subscription.
  3. District Board of Ramnad vs. Md. Ibrahim – Defendant promised to pay Rs. 5000 for construction of bridge.
    Held: Liable to pay said amount the moment construction of bridge is completed.
  4. Doraiswamy vs. Arunachala: Temple repair, was midway and more money was required. Subscription raised and defendant promised Rs. 125 but did not pay.
    Held: Nothing new was done on the faith of the defendant’s promise. The repair was already underway.

 

Unilateral agreements:-

 

Essentials:

  1. It is a promise from one side inducing action from the other side.
  2. All that the promisee has to do is to act.
  3. Promisee’s act is simultaneously acceptance and consideration.
  4. Promisee alters his position on the faith of the promise given by the promisor.
  5. Where promisee does nothing to alter his position on faith of promise there is no agreement.

Abdul Aziz vs. Masum Ali – Defendant promised to pay Rs. 500 to a fund started for building a mosque. Nothing was done towards that end.

Held: Defendant not bound as it was a unilateral agreement and an act from the plaintiff was needed.

Revocation of unilateral promise:

Before the promisee alters his position by acting on the prornise, a unilateral promise can be revoked. Another question arises, “Can it be revoked after the promisee has commenced performance (but not completed it)?” It was held in –

  1. Kedar Nath vs. Gorie Md. – No.
  2. Errington vs. Errington (Denning L..] Owner mortgaged house, house occupied by son and daughter-in-law. Agreed to give house to son if he cleared the mortgage debt in instalments. Son started paying.

Held: Unilateral pomise. Therefore, can not be revoked unless son stops payment. [This is a very intriguing situation. On one hand, if allowed to revoke the promisor can: frustrate the promisee at his pleasure. On the other hand, without such liberty promisee can stop and resume performance at his owner sweet will.

Suggestion of House of Lords in Morrison Steamship Co. Ltd. vs. The Crown – Mere commencement of performance does not amount to ripening of contract. The promisor can revoke. But he can be sued for damages on a quantum meruit.]

 

  1. Consideration to be given by the promisee or any other person:
    (i) As per section 2(d) as long as there is consideration for promise it is immaterial who has furnished it. As per Section 2(d): “Any other person”.

(ii) Genesis of the principle in Dutton vs. Poole – Father wanted to sell a portion of wood and give the money to his daughter in her marriage. His son said that he would give £ 1000 to the daughter if father did not sell. Daughter sued for the amount Defence raised, privity of consideration i.e…
Held: Liable to pay because object of the entire agreement was to give the daughter a portion at the time of her marriage.]

This line of reasoning was reversed in Tweedle vs. Atkinson [G’s daughter married to plaintiff. Both fathers agreed to pay money to plaintiff. G did not pay, Plaintiff sued his executors.

Held: Though sole object was plaintiff’s benefit yet he was stranger to contract. Therefore, action failed.]

Thus the foundation of the doctrine of ‘Privity of Contract’ was laid. (Privity of contract signifies that a contract is between parties only, third person can not sue even if it is entirely for his benefit.]

 

Dunlop Pneumatic Tyres Co. vs. Selfridge – Plaintiff Dunlop sold goods to Dew & Co. on the promise that Dew & Co. will not sell it below a certain price and obtain a similar promise regarding price. Dew & Co. sold to Selíridge & Co. after getting said promise. Selfridge & Co. sold at a price below stated price. Duniop & Co. sued Selfridge & Co.

Held: No consideration from the plaintiff to the defendant. Therefore, no contract as defendants are stranger to the contract between plaintiff and Dew & Co.

 

Viscount Haldane in the aforesaid case laid:

  1. Privity of Consideration – Consideration must move from the promisee only. If furnished by any other person the promisee becomes a stranger to the consideration and can not enforce the promise. (This rule is not applicable in India).
  2. Privity of a contract – A contract can not be enforced by a person who is not a party to the contract even if it is solely for his benefit.

 

Privity of consideration – Not applicable in India as per Section 2(d), ICA

Chinnaya vs. Rammaya: Mother gifted property to daughter (defendant) by deed stipulating that she would give annuity to plaintiff, mother’s sister. Defendant executed Ikrarnama but did not pay. Held liable. (No Privity of Consideration even in America)

 

Privity of Contract

Lord Wright, Chairman of Law Revision Commission 1937 criticized it and recommended its abolition. “When a contract confers some benefit on a third party, the third party can sue to enforce the same. Promisor can raise the same defences that would be valid against the promisee.” Denning L.J. also criticized it.

Beswick vs. Beswick – Coal merchant, transferred business to defendant who was his assistant. Defendant to pay £ 5 per week to his wife. Held: wife entitled to enforce the agreement. Privity of contract is only a procedural rule.

However, the House of Lords overruled this judgment and allowed the widow to recover as and administratrix of her husband’s estate. (Lord Reid) Indian position: ICA does not haye any clear-cut stipulation either for or against privity of contract.

Privy Council extended this rule to India in Jamna Das vs. Ram Avtar [A mortgaged property to B for Rs. 40,000. Sold it to G for Rs. 44000, allowed C to keep Rs. 40,000 to redeem the mortgage. B sued C for Rs. 40,000. Held: B not party to agreement between A and C.)

Khwaja Md. Khan vs. Hussaini Begum – Plaintiff married to defendant’s son. Both minors at the time of marriage. Defendant executed agreement to pay Kharcha-i-pandaan, but did not fulfil the promise. Plaintiff sued. Defence of ptivity of contract raised.

Held: Defence not applicable due to special circumstances of marriage of minors.

 

Thereafter, certain High Courts believed that Privity of Contract was not applicable in India. However, the Supreme Court finally put the issue to rest in. M.C. Chacko vs. State Bank of Travancore – Privity of contract applicable in India. Hussaini Begum was before Jamna Das. Therefore PC had settled the layv. Hussaini Begum was an exception. M & his father guaranteed payment of overdraft to State Bank of Travancore. Father gifted property to M. Gift deed said that any liability to be met by M to the bank or from property gifted to him. State Bank of Travancore sued for money under this clause of agreement.

Held: State Bank of Travancore could not sue because it was stranger to the gift deed.

 

Exceptions to Privity of Contract:-

  1. Trust or charge: (mentioned as an exception in Dunlop vs. Selfridge.) – A person in whose favour a charge or an interest has been created in some specific property may enforce it even if he is not a party to the contract.
    Reason: The third party is not enforcing the contract. He is enforcing his specific right conferred upon him by the trust.
    Cases:
    (a) Khwaja Md. Khan vs. Hussaini Begum.
    (b) Rana Uma Nath Bux Singh vs. Jung Bahadur [Uma Nath to pay money to
    Jung Bahadur who was illegitimate son of his father. (Held:Liable to pay.)]
  2. Marriage settlement, partition or other family arrangements: If such arrangement is for the benefit of a person he can sue despite being stranger.
    Cases:
    (a) Rose Fernandes vs. Joseph Gomsalves:
    A girl’s father entered into an agreement for her marriage with the defendant, it was held that the girl after attaining majority could sue the defendant for damages for breach of the promise of marriage and the defendant could not take the plea that she was not a party to the agreement.
    (b) S. Ammal vs. Subramaniyan:
    Two brothers, on a partition of joint properties, agreed to invest in equal shares a certain surn of money for the maintenance of their mother, she was held entitled to require them to make the investment.
    (c) Daropati vs. Jaspat Rai – The defendant’s wife left him because of his cruelty. He then executed an agreement with her father, promising to treat her properly, or, if he failed to do so, to pay her monthly maintenance and to provide her with a dwelling. Subsequently, she was again ill-treated by the defendant and also driven out. She was held entitled to enforce the promise made by the defendant to her father.
    (d) Veeramma vs. Appaya – A daughter along with her husband agreed that she will maintain her mother if the property of the father is conveyed to them, the mother was held entitled to maintain a suit for specific performance although the agreement was between the father, daughter and the daughter’s husband only and the mother was not a party to it.
  3. Acknowledgement or Estoppel: Sometimes there might not be an agreement between two persons but if one of them by his conduct, acknowledgement or admission recognizes the right of other to sue him, and he may be liable on the basis of law of Estoppel.
    (a) Narayani Devi vs. Tagore Commercial Corporation Ltd. – Contract between plaintiff’s husband and defendant to pay him certain amount, and after his death to pay the same to the plaintiff The defendants paid the amount to plaintiff for sometime, and then stopped payment.
    Held: By paying the amount for some days, the defendants acknowledged the right of the plaintiff. Therefore, plaintiff was entitled to sue.
    (b) Devraj Urs vs. Ram Krishniah – Sale price of house, left with the buyer to pay the creditor, buyer made part payment and promised to pay the balance soon.
    Held: Creditor allowed to recover though stranger to contract because buyer had acknowledged his rights by making part payment.
    4. Covenants running with the land: A person who purchases land with the notice that the owner of the land is bound by certain duties created by an agreement or covenant affecting the land, shall be bound by them although he was not a party to the agreement. [Rule laid down in Pulk vs. Moxhay]
    (a) Smith-and Snipes Hall Farm Ltd. vs. River Douglas Catchment Board – Defendant board, agreement with landowners of land adjoining stream to improve the banks of the stream and to maintain them in good condition. Landlords paid. One sold lang to first plaintiff and he to second plaintiff. Negligence of board in maintenance of land flooded.
    Held: Though plaintiff not party to agreement yet defendant board liable because covenant was running on the land for its benefit irrespective of who the owner was.

 

Consideration may be past, present or future

Section 2(d) -“has done or abstained….” These words signify that consideration is

an act which has already been done at the desire of the promisor, or is in progress or is promised to be done in future.

Executed consideration – It is an act which has already been done in response to a positive promise. E.g. I will pay you Rs. 1000 if you find my watch. You find my watch. Your act is an executed consideration for my promise. Nature of executed consideration as explained by Das J in Union of India vs. Chaman Lal Loona & Co. “An executed consideration is an act for  a promise. The act forms the consideration. No contract is formed unless the act is performed. The liability is outstanding on one side only – namely the promisor.”

Past consideration – If the act is done before any promise is made, it is called a past consideration. A past consideration is no consideration. E.g. – I have lost my watch. You find it and deliver it to me. I promise to pay you a reward of Rs. 1000. Your act of finding the watch is a past consideration. It does explain the motive of my promise but does not form a consideration for my promise in the legal sense.

(a) Mc. Ardle, Re – Improvements made upon the property, subsequent promise to pay for the improvements made. Past consideration. Therefore, promise not enforceable.

 

Exceptions to the rule (In English Law)

  1. Past act at request is a good consideration
    Lampleigh vs. Barthwait – Defendant murderer, requested plaintiff to get king’s pardon for him. Later did not pay the promised £ 100.
    Held: Liable because past act was at request.
  2. Promise to pay a time barred debt.
  3. NI issued for a past consideration.

Position in Indian Law vis-à-vis past consideration:

(a) Past voluntary service – It is adequately covered by Section 25(2) of ICA. “A

promise to compensate, wholly or in part, a person who has already voluntarily done

something is enforceable.”

 

Illustrations:

  1. A finds B’s purse and gives it to him. B promises to give A Rs. 50. This is a contract.
  2. A supports B’s infant son. B promises to pay A’s expenses in doing so. This is a contract. (Past Yoluntary service in service rendered without any request and before a promise is made.)

(b) Past service at request – Section 25 says nothing about it.

Section 2(d): “….at the desire….”. This can be construed to include an act which is done at request and (for which a promise is made subsequently. Even if no subsequent promise is made the courts can follow principle laid down in Uptoni Rural District Council vs. Powell and infer an implied promise.

Pollock and Mulla also favour such interpretation:

“The words ……has done or abstained from doing….’ Declare the law to be that an act done by A at B’s request, without any contemporaneous promise from B, may be a consideration for a subsequent promise from B to A. The use of perfect tense in the clause embodies in the law of India the exception to the general rule which is supposed to have been made by the 17th century case of Lampleigh vs. Barthwait.

(c) Executory consideration – It is a promise for a promise. One promise is bought by the other. The contract is concluded as soon as the promises are exchange. E.g.:-A agrees to sell and B agrees to buy a quantity of goods at a stated price. This is an executory consideration.

 

 

HINDU LAW NOTES

What is Hindu Law?

The Hindu Law, as commonly understood, is a set of rules contained in several Sanskrit books, which the Sanskritists consider as books of authority on the law governing the Hindus.

However, today, legislation has considerably curtailed the extent of the application of the uncodified Hindu Law.

It is traditionally defined as “the Law of the Smritis as expounded in the Sanskrit Commentaries and Digests which as modified and supplemented by custom, is administered by the Court”. But today, a very large portion of Hindu Law has been codified. It is mainly to be found in the following four Acts:

  1. The Hindu Marriage Act, 1955.
  2. The Hindu Minority and Guardianship Act, 1956.
  3. The Hindu Succession Act, 1956.
  4. The Hindu Adoptions and Maintenance Act, 1956.

However, the law relating to Hindu Joint Families, their partition and re-union, as well as the law relating to wills, gifts and religious usages and institutions, (in so far as it is not abrogated or modified by any other Act) continues to be derived from the ancient sources of Hindu Law.

There are eight important sources of Hindu Law:

  1. Sruti
  2. Smriti
  3. Commentaries on the Smritis (Nibandhas)
  4. Puranas
  5. Judicial decisions
  6. Legislation
  7. Justice, equity and good conscience
  8. Customs and usages

 

  1.  Sruti
    Srutis are believed to contain the very words of God. They are supposed to be the divine utterances to be found in the four Vedas, (namely the Rig Veda, the Yajur Veda, the Sama Veda and the Atharva Veda) the six Vedangas (i.e. appendages to the Vedas) and the eighteen Upanishads. They are mostly religious in character.
  2. Smriti
    A. They are utterances and precepts of the Almighty, which have been heard and remembered, and handed down by the Rishis (sages) from generation to generation. The exact numb of Smritis (or Codes) is not definitely known, but the earliest one seems to be the Manu Smriti. The main Smritis are those of Manu, Yajnavalkya and Narada. “Law is a branch of Dharma, and its ancient framework is the law of the Smritis.”
    B. Although Smritis deal with rules of morality and religion, they are more secular than the Srutis.
  3. Commentaries on the Smritis (Nibandhas)
    A. Several interpretations have been put upon Smritis because of their contradictions. This gave rise to commentaries called Nibandhas. Nibandhas are nothing but the interpretations put on the Smritis by various commentators.
    B. While professing to interpret the law as laid down in the Smritis, the commentators introduced modifications in order to bring it into harmony with the current usages.
    C. The commentaries are now considered to be more authoritative than the original texts themselves.
  4. Puranas
    The Puranas are Codes that illustrate the law by instances of its application.
  5. Judicial decisions
    In Shri Krishna Singh vs. Mathura Ahir, (1981) 3 S.C.C. 689, it was observed that in applying Hindu law, the Judge should not introduce his own concepts of modern times but should enforce the law as derived from recognised and authoritative sources of Hindu law, i.e. Smritis and commentaries, as interpreted in the judgments of the various High Courts, except where such law is altered by any usage or custom, or is modified or abrogated by statute.
  6. Legislation
    A. Several enactments had come into force with the coming of British rule in India and kept coming after the British departure. These legislative enactments declare, abrogate or modify the ancient rules of Hindu Law, thus form an additional modern source of Hindu Law.
    B. The Hindu Law Committee, appointed in 1941 recommended that this branch of the law should be codified in gradual stages. However, the most important enactments were those which came in 1955 and 1956, namely the Hindu Marriage Act, the Hindu Minority and Guardianship Act, the Hindu Succession Act, Hindu Adoption and Maintenance Act.
    C. Several amendments have been made in the four principal Acts referred to above. Notable amongst such amendments was the one passed in 1976, which has radically modified in the Hindu Marriage Act, as for instance, by introducing, for the first time amongst the Hindus, the concept of divorce by mutual consent.
  7. Justice, equity and good conscience
    A. In the absence of any specific law in the Smriti, or in the event of a conflict between the Smritis, the principles of justice, equity and good conscience would be applied.
    B. The Supreme Court has observed in Gurunath vs. Kamlabai (A.J.R. 1955 S.C. 206), in the absence of any clear Shastric text, the Courts have the authority to decide cases on principles of justice, equity and good conscience.
  8. Customs and usages
    A. Where there is a conflict between a custom and the text of the Smritis, such custom will override the text.
  1. Custom may be defined as a habitual course of conduct generally observed in a community.

Kinds of Customs

  • Customs may be broadly divided into (i) Local customs, (ii) class customs and (iii) family customs. Local customs are those which are confined to a particular locality like a district, town or village, and are binding on all the inhabitants of that locality. Class customs are the customs of a caste or a sect of the community of the followers of a particular profession or occupation, such as agriculture, trade and the like. Family customs are confined to a particular family only and do not apply to persons who are not members of such a family.
  • Essentials of a valid custom – In order to be valid, a custom must satisfy the following six requirements:-
    It must be ancient.
  1. It must be certain.
    C. It must also be reasonable
    D. It must be continuous.
    E. It must not be opposed to public policy.
    F. It must not be opposed to any law.

The following are examples of customs, which the Courts have refused to recognise:-

  1. A caste custom, authorising-a-wife to abandon her husband, and marry again without his consent.
  2. A custom permitting a husband to dissolve his marriage without the consent of the wife by paying a fixed sum of money.
  3. The custom among dancing girls of adopting one or more daughters.
  4. A custom in South India, according to which a man could marry his daughter’s daughter.

Burden of Proof

  • The burden of proof of a custom of Hindu Law that is derogatory to that law is upon the person who asserts it. Conversely, when a customer has been proved, the burden of proving its discontinuance lies on the party who alleges such discontinuance.

 

 

Chapter- 2

School of Hindu Law

 

There are two main schools of Hindu Law, the Mitakshara and the Dayabhaga. The Mitakshara (literally meaning “a concise work”) is a running commentary on the code of Yajnavalkya. It has been written by Vijnaneshwar (11h century) and prevails in all parts of India, except in Bengal. The Dayabhaga School, which is followed mainly in Bengal, is not a commentary on any particular code but is a digest of all the codes. It has been written by Jimutavahana in, 12th century. It may also be noted that the Mitakshara is the orthodox school, whereas the Dayabhaga (or the Bengali school, as it is sometimes called) is the reformist school of Hindu Law. The Dayabhaga School is considered to be a dissident school of the old Benares School.

The Dayabhaga is not divided into any sub-schools. However, the Mitakshara is sub-divided into four schools prevailing in different parts of India. These different schools have the same fundamental principles, but differ in matters of details, especially with reference to the topics of adoption and inheritance. These four sub-schools are as follows:-

  1. The Benares School, which prevails in northern and north-western India except in rural Punjab where its authority has been considerably modified by customary law. The main authorities of the school are the Virmitrodaya and the Nirnaya Sindhu.
  2. The Mithila School, which has most of its followers in Bihar. The main authorities are: the Vivada Chintamani, the Vivąda Ratnakara, the Madana Parijata and the Vyavahara Mayukha.
  3. The Dravida or Madras School, which prevails in southern India. The principle authorities are the Smriti Chandrika, the Parashara Madhaviya, the Saraswati Vilasa and the Vyavahara Nirnaya.
  4. The Maharashtra or Bombay School, which prevails in western India. The main authorities of the school are the Viramitrodaya and the Nirnaya-Sindhu.

The differences between the two are:

  1. In respect of the law of succession – The Mitakshara school bases its law of inheritance on the principle of propinquity (nearness of blood-relationship or community of blood), while the Dayabhaga school bases its law of succession on the principles of religious efficacy or spiritual benefit.
    The principle of propinquity means that one who is nearer in blood relationship succeeds. This is purely, a secular principle. The principle applied to this form would mean that, for instance, sons and daughters would succeed to the property equally and simultaneously as they are equally near to their deceased parent; similarly, the daughter’s son and son’s son would equally and simultaneously succeed to the property of their grandparent. However, the Mitakshara did not give full effect to the principle, and limited it by two subsidiary rules: (a) exclusion of females from an inheritance, and (b) preference of agnates over cognates.
    The principle of religious efficacy or spiritual benefit is that the one who confers a more religious benefit on the deceased is entitled to inheritance in preference to the others who confer less spiritual benefit. The conferment of religious benefit is based on the doctrine of offering oblations or pindadana to the deceased. Although the principle is based on religious doctrines, its operation does not always lead to the preference of agnates over cognates.
    Notably, this difference between the two main schools is no longer tenable. Under the Hindu Succession Act, 1956, we have one uniform law of succession for all Hindus, to whatever school or sub-school they may belong.
  2. In respect of the law of joint family
  • The Mitakshara propounds the doctrine of son’s (i.e. son, son’s son and son’s son’s son) right by birth in the joint family property. This doctrine means that the moment a son is born he acquires an interest in the joint family property which, by partition, can be, at any time, converted into separate property. This doctrine means that each son on his birth acquires an equal interest with his father in the joint family properly. The concomitant principle to the son’s birthright is the principle that the joint family property devolves by survivorship. In other words, the joint family property does not pass by inheritance but it goes to those who, among the group known as coparceners, survive others, i.e. are able to live longer than others.
    Under the Dayabhaga School, sons have no right by birth in any property, and all properties devolve by inheritance. So long as the father is alive, he is the master of all properties whether ancestral or self-acquired.

 

  • The concept of the joint family property under the Mitakshara School implies the notion of a community of ownership and unity of possession. This expression means that before partition, no individual coparcener can say that he owns so much share in the joint family property. The interest of each coparcener is a fluctuating interest, the deaths may augment it, births may diminish it.
    Since there is no concept of birthright under the Dayabhaga Schoolcoparceners have specified and ascertained shares in the joint family property and their interest does not fluctuate on births or deaths in the family.
  • Under Mitakshara School neither the father nor any other coparcener can ordinarily alienate the joint family property. Under the Dayabhaga School, there is no such restriction and each coparcener has full right of alienation of his undivided share in the joint family property, though the Karta, like the Mitakshara Karta, can alienate joint family property only in certain special cases.

 

Who is a ‘Hindu’?

  • Under the uncodified Hindu Law

The following are the instances of persons who were held to be Hindus by various Courts before 1956.

  1. Hindus by birth;
  2. Hindus by religion i.e. converts to Hinduism;
  3. Illegitimate children, where both parents were Hindus;
  4. Illegitimate children of a Christian father and a Hindu mother provided that such children were brought up as Hindus;
  5. Jains, Buddhists, Sikhs and Nambudri Brahmins;
  6. Hindus by birth, who had renounced Hinduism, but reverted back to the Hindu faith after performing the prescribed religious rites; and
  7. Persons belonging to Brahmo and the Arya Samaj.

The Courts had held that Hindu Law did not apply to the following, viz.:

  1. To the illegitimate children of a Hindu father by a Christian mother, if such children were brought up as Christians;
  2. To Hindu converts to Christianity;
  3. To converts from the Hindu to the Islamic faith; and
  4. To descendants of Hindus who had formed themselves into a distinct community with religion quite different from that propounded by the Shastras.
  • Under the codified law

Section 2 of the Hindu Marriage Act, 1955, provides that the Act applies to the persons listed below (and similar provisions are also made in the other enactments of Hindu Law):

  1. Any person who is a Hindu by religion in any of its forms or development, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
  2. Any person who is a Buddhist, Jain or Sikh by religion
  3. Any other person domiciled in India, who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by Hindu Law, or by any custom or usage as part of that law, in respect of any of the matters dealt with in the Act, if this Act had not been passed.
  4. Hindus/domiciled in the territories to which the Act extends, but who are outside such territories.
  5. The Explanation to Section 2 clarifies that the following persons have also to be considered to be Hindus, Buddhists, or Jains by religion, as the case may be, viz.:
  1. Any child, legitiphate or illegitimate, both of whose parents are Hindus, Buddhists, Jains or Sikhs by religion;
  2. Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jain or Sikh, provided such child is brought up as a member of the tribe, community, group or family to which such parents belong or belonged.
  3. Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.

(An intention to become a Hindu, accompanied by conduct unequivocally expressing that

intention, would be sufficient evidence of conversion. (Raman Nadar vs. Snehapoo, AIR 1970 S.C. 759)]

 

Effect of Migration

Ordinarily, the law of the locality in which the Hindu family is living is its personal law. If such a family migrates to another part of the country, it carries with it its law including any custom having the force of law. Thus, it is the law in operation at the time of migration that applies, even though the law is ascertained, by decisions, subsequent to migration. However, it can be rebutted by showing that the family adopted the law or usage of the place to which it migrated by conforming to the manners, customs and usages of the people among whom it came to live. This rule is an exception to the rule of private International law that immovable property is governed by lex situs (ie the law of the place where the property is located).

For example –

  1. A Hindu family migrates from the North-Western Provinces, where Mitakshara law prevails, to Bengal, where Dayabhaga law prevails. The presumption is that it continues to be governed by Mitakshara law, and this presumption may be supported by previous instances of succession in the family according to Mitakshara law after/Its migration and by evidence relating to ceremonies performed in the family at marriages, births and shraddhas, showing that the family continued to be governed by Mitakshara law after its migration. If the migration is proved, and it is also proved that the family followed the customs of Mitakshara School, it is not necessary to prove also that the family immigrated to Bengal after the establishment of the Dayabhaga system of law.
  2. A joint Hindu family, consisting of two brothers A and B, migrates from the North-Western Provinces to Bengal. dies, leaving a widow C. The presumption being that this family continues to be governed by Mitakshara law, the joint property will, on A’s death, pass to his surviving brother B, and C will be entitled to maintenance only. However, if the family had renounced Mitakshara law and adopted Dayabhaga law, A’s share would pass to his widow C.
  3. In Abdurahim vs. Halimabhai, their Lordships of the Privy Council said:
    Where a Hindu family migrates from one part of India to another prima facie they carry with them their personal law, and, if they are alleged to have become subject to a new local custom, this new custom must be affirmatively proved to have been adopted, but when such a family emigrate (from India) to another country (East Africa), and, being themselves Mohammedans (e.g. Memons), settle among Mohammedans, the presumption that they have accepted the law of the people whom they have joined seems to their Lordships to be one that should be much more readily made…… The analogy is that of a change of domicile on settling in a new country rather than the analogy of a change of custom on migration within India. Of course, if nothing is known about a man except that he lived in a certain place, it will be assumed that his personal law is the law that prevails in that place. In that sense only is the domicile of importance.

Effect of Domicile

Under Hindu Law, domicile is not of much importance. All those who are in India and are Hindus, are governed by Hindu law irrespective of their domicile. Domicile becomes important only in those cases where a person claiming to be a Hindu is outside India. In that case, Hindu Law will apply to him only if is domiciled in India. Suppose, a Hindu domiciled in India but living in England, performs a marriage here. Is it necessary that he must comply with the formalities laid down by the Hindu Marriage Act, 1955, for the solemnization of marriage or will it be enough if he complies with the formalities as prescribed by the local law (lex loci celebrationis), i.e., English law? It is a rule of private international that capacity to marry is governed by the law of domicile and the formalities are governed by the lex loci celebrationis, i.e. the law of the place where marriage is solemnized.

Effect of conversion to Islam

It is well-settled law that on conversion to Islam from Hinduism, there may be a custom at variance with rules of Muslim law, governing succession in a particular community of Muslims. And a convert of what community to Islam may be governed by custom which is at variance with Mohammedan law or which is a part of Hindu law. The Shariat Act, 1937 lays down that in respect of intestate succession, special property of females, marriage, divorce, maintenance, dower, guardianship, gifts, trust and trust: properties and waqfs, all Muslims are governed by Muslim personal law. Further, any adult (Muslim resident in India, may, by filing a declaration, elect that in respect of adoption, wills and legacies he will be governed by Muslim law. If he does so, then Muslim personal law will apply to him and his descendants.

 

Effect of Conversion to Christianity

  • In Abraham vs. Abraham, it was observed that upon conversion of a Hindu to Christianity, the Hindu law ceased to have any continuing obligatory force upon the convert.
  • The convert may renounce the old law as he renounced his old religion or, if he thinks fit, may abide by the old law, even though he had renounced his old religion.
  • If a Hindu convert to Christianity dies intestate, succession to his property will be ordinarily governed by the Indian Succession Act.
  • A Hindu or Muslim convert to Christianity cannot retain his personál lay in the matter of polygamy and if after conversion he takes another wife, the second marriage will be poid. However, his conversion will not invalidate his former marriage. If, before conversion, he had two wives, both of them would continue to be his lawful wives.
  • Under the Converts Marriage Dissolution Act, 1866 if a person converts to Christianity, add his or her spouse for a period of six continuous months deserts or repudiates the marriage, he can bring a petition for restitution of conjugal rights. If the decree for restitution of conjugal rights is not complied with for a period of one year, the converted spouse may sue for divorce. But if after conversion, the non-convert spouse does not refuse to cohabit with the convert, there is nothing in the Act that can entitle the convert to seek divorce.

 

Joint Hindu Family Coparceners and Coparcenary Property (Mitakshara Law)

This topic has been discussed under the following heads:

  1.  Coparceners
  2. Coparcenary property
  3. Management and enjoyment of coparcenary property
  4. Alienation of coparcenary property
  5. Alienation of undivided coparcenary interest
  6. Setting aside alienations
  • Coparceners
  1. Joint Hindu Family

A joint Hindu family consists of all persons lineally descended from a common ancestor & includes their_wives and unmarried daughters. A daughter ceases to be a member of her father’s family on marriage & becomes a member of her husband’s family.

An undivided Hindu family is ordinarily joint not only in estate but also in food and worship. The existence of joint estate is not an essential requisite to constitute a joint family and a family, which does not own any property, may nevertheless be joint.

Mere severance in food and worship does not operate as a separation.

Possession of joint family property is not a necessary requisite for the constitution of a joint Hindu family. Hindus get a joint family status by birth, and the joint family property is only an adjunct of the joint family.

A joint or undivided Hindu family may consist of a single male member and widows of deceased male members. For instance, a joint Hindu family may consist of a male Hindu, his wife and his unmarried daughter. It may similarly consist of a male Hindu and the widow of his deceased brother. It may even consist of two female members. However, there must be at least two members to constitute it. An unmarried male Hindu on a partition does not by himself alone constitute a Hindu undivided family,

For taxation purposes, a Joint Hindu Family is called a HUF (Hindu Undivided Family).

 

  1. Hindu Coparcenary

A Hindu coparcenary includes only those persons who acquire by birth an interest in the joint or coparcenary property. These are the three generations next to the holder in unbroken mate

Descent.

The doctrine of coparcenary applies only with respect to the ancestral and not self-acquired property.

Some instances:

  1. Prior to the coming into force of the Hindu Succession Act 1956, if A who had a son B inherited property from his father, it became ancestral property in his hands and B became a coparcener with his father. Though A as head of white fan it was entitled to hold and manage the property, B was entitled to an equal interest with his father A, and to enjoy it in common with him. B could, therefore, restrain his father from alienating it except in the special cases where such alienation was allowed by law, and he could enforce the partition of it against his father. On his father’s death, B took the property by right of survivorship and not by succession.
  2. If a inherited property from his brother, it was his separate property, and it was absolutely at his disposal. His son B acquired no interest in it by birth and could not claim a partition of it, nor could he restrain A from alienating it.
  3. If a inherits property from his father and he has two sons B and C, they both become coparceners with him as regards the ancestral property. If B has a son D, and C has a son E, the coparcenary will consist of the father, sons and grandsons, namely A, B, C, D and E as shown in the accompanying table. Further, if D has a son F and E has a son G, the coparcenary will consist of seven members. However, if-F has a son X, X does not become a coparcener, for a coparcenary is limited to the head of each stock, and his sons, grandsons, and great-grandsons. X being the great-great-grandson of A, cannot be a member of the coparcenary so long as A, the holder, of the joint property, is alive.

 

  1. Formation of Coparcenary (Some rules):
  1. The conception of a joint Hindu family constituting a coparcenary is that of a common male ancestor with his lineal descendants in the male line, within four degrees counting from and inclusive of such ancestor (or three degrees exclusive of the ancestor). No coparcenary can commence without a common male ancestor, though after his death, it may consist of collaterals, such as brothers, uncles, nephews, cousins etc.
  2. A coparcenary is purely a creature of law, it cannot be created by an act of parties, save in so far that by adoption a stranger may be introduced as a member thereof.
  3. No female can be a coparcener, although a female can be a member of a JHF.
  4. Example – In the given table, A with his three sons/B, C and D and their sons and grandsons constitute the main family. B with his two sons E and F, C with his son G, D with his sons H and his grandsons J and K, and I with his sons-J-and K, constitute ‘branch’ families. All the families have one common ancestor A. Each branch family has also its own head, namely B, C, D and I. On A’s death, the coparcenary will consist of the three brothers, B, C and D and their male issue. On the death of B and C, the coparcenary will consist of D, his nephews E, F & G & his male issue H, I, J&K.
  5. Example – A Hindu male A, who has inherited no property at all from his father, grandfather, or great-grandfather, acquires property by his own exertions. A has a son B, B does not take any vested interest in the self-acquired property of A during A’s lifetime, but on A’s death, he inherits the self-acquired property of A. If B has a son C, C takes a vested interest in the property by reason of his birth, and the property inherited by B from his father A becomes ancestral property in his (B’s) hands, and B and C are coparceners as regards the property. If B and C continue joint and a son D is born to C, he enters the coparcenary by the mere fact of his birth. Moreover, if a son E is subsequently born to D, he too becomes a coparcener.
  6. Example – A inherits certain property from his father X. He has a son B and a grandson C, both members of an undivided family. A, B and are coparceners. A son D is then born to C. D becomes a coparcener by birth with A, B and C. Subsequently, a son is born to D. E is not a coparcener, for being fifth in descent from A, he cannot demand a partition of the family property. On A’s death, however, B will become the head of the joint family and E will step into the coparcenary as the great-grandson of B, though he is fifth in descent from A, the older. Likewise, on B’s death, F (E’s son) will step into the coparcenary as the great-grandson of C, the head of the family for the time being, though he is sixth in descent from A, the original holder.
  7. Example – A coparcenary consisted originally of A, B, C, D, E, F, G and H with A as the common ancestor. Suppose A dies first, then B, then C, then D and then E, and that G has then a son I, and H has a son and J has a son K. On E’s death, the coparcenary will consist of F, G, H, I, J and K. Suppose that G, Hand die one after another, and the only survivors of the joint family are F, I and K. Are I and K coparceners with F? Yes, though I is fifth in descent from A, and K is sixth in descent from A. The reason is that either of them can demand a partition of the family property from F. Here the coparcenary consists of three collaterals, namely, F, I and K.
  8. Example – A inherits certain property from his father X. A has a son B, a grandson C, two great-grandsons D and D1, and a great-great-grandson E by D1, all members of a joint family. Here A. B, C, D and D1 are coparceners, E is not, being more than four degrees removed from A. Suppose B dies first. The coparcenary will now consist of A C, D and D1. The death of B does not introduce E into the coparcenary, for A being still alive, his great-great-grandson cannot be a coparcener with him. Suppose C dies next. The coparcenary will now consist of A, D and D1. The death of C does not introduce E into coparcenary, for A being still alive, his great-grandson cannot be a coparcener with him. Suppose D1 dies next. The coparcenary will consist of A and D. The death of D1 does not introduce into the coparcenary. Suppose A dies next, D now becomes the sole surviving coparcener and the joint family property will pass to D by survivorship. The death of A does not introduce E into the coparcenary. The reason is that at the time of A’s death, E’s father (D1), his grandfather (C) and his great-grandfather (B), were all dead. (Compare this with the earlier example)

 

  1. Undivided Coparcenary Interest

The coparcenary property is held in collective ownership by all the coparceners in a quasi-corporate capacity. The incidents of coparcenary are: (1) The lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties of such person; (2) That such descendants can at any time work out their rights by asking for partition; (3) That till partition, each member has got ownership extending over the entire property conjointly with the rest; (4) That as a result of such co-ownership, the possession and enjoyment of the properties are common; (5) That no alienation of the property is possible unless it is for legal necessity, without the concurrence of the coparceners; and (6) That the interest of a deceased member passes on his death to the surviving coparceners.

 

  • Example – A family consisting of A and his sons B and C, on a partition each will take one-third. However, if D was born while the family remained joint, each would take one-fourth. The family still remains undivided; on the death of A, the possible shares of the three sons would be enlarged to one-third; and if B were subsequently to die without issue, the shares of C and D would be enlarged to one-half; as C and D married, their sons E, F and would enter into the family, they acquire an interest in the property, but that interest again would be shifting interest, depending on the state of the family. If C were to die leaving only two sons and F and they claimed a partition against D, E and F would each take one-half of one-half, and D would take the other half. However, if H had previously been born, E, F and H would each take one-third of one-half, i.e. one-sixth each. If they put off their claim for a division until D and G had both died, E, F and would each take one-third of the whole.
    Note that on a partition between C and D after the death of A and B, C would take one-half and D would take the other half. If C is dead, his issue E, F and H will take per stripes as regards D, i.e. they will take the one-half share of C, and D will take the other half, but as regards each other, they will take per capita i.e. each will take an equal one-sixth share.

 

  1. Females cannot be Coparceners

No female can be a coparcener under Mitakshara law. Even a wife, though she is entitled to maintenance out of her husband’s property, and has to that extent an interest in his property, is not her husband’s coparcener.

 

Note:

Sections 6, 8 and 30 of the Hindu Succession Act, 1956 have altered to a treat extent, the concept of succession in a Mitakshara coparcenary (discussed later).

 

  • Coparcenary Property
  1. Obstructed and Unobstructed Heritage
  • Property in which a person acquires an interest by birth is called unobstructed heritage, apratibandha daya, because the accrual of the right to it is not obstructed by the existence of the owner. Property inherited by a Hindu from his father, father’s father, or father’s father’s father, but not from his maternal grandfather is unobstructed heritage as regards his own male issue, i.e. his son, grandson and great-grandson.
  • Property, the right to which accrues not by birth but on the death of the last owner without leaving a male issue, is called obstructed heritage. It is called obstructed because the accrual of the right to it is obstructed by the existence of the owner. Property that devolves on parents, brothers, nephews, uncles, etc. upon the death of the last owner, is obstructed heritage. These relations do not take a vested interest in the property by birth. Their right to it arises for the first time on the death of the owner. Until then, they have a mere spes successionis or a bare chance of succession to the property.
  • Unobstructed heritage devolves by survivorship; obstructed heritage, by succession.
  • Example – A inherits certain property from his brother. A has a son B. The property is obstructed in A’s hands. B does not take any interest in it during A’s life. After A’s death, B will take it as A’s heir by succession. The existence of A is an obstruction to the accrual of any rights in the property to B.

 

Classification of Property

According to the Hindu Law, property may be divided into two classes –

  1. Joint family property or coparcenary property
  2. Separate property (includes self-acquired property)

 

Joint family property may be divided (according to the source from which it comes)

into:

  1. Ancestral property, and
  2. Separate property of coparceners thrown into the common coparcenary stock.

 

Incidents of Joint Family or Coparcenary Property

  1. A joint family or coparcenary property is that in which every coparcener has a joint interest and a joint possession.
  2. Joint family or coparcenary property.
  1. Devolves by survivorship, not by succession. (This proposition must now be read in the context of Sections 6 and 30 of the Hindu Succession Act 1956, in cases where those sections are applicable);
  2. Is the property in which the male issue of the coparceners acquires an interest by birth.

 

Incidents of Separate or Self-acquired Property

A Hindu, even if he be joint, may possess a separate property that belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it, or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition, and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners.

 

Ancestral Property

Property inherited from a paternal ancestor-  The essential feature of ancestral property

according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquires an interest, and the rights are attached to such property at the moment of their birth. Thus, if A inherits property, whether movable or immovable, from his father or father’s father, or father’s father’s father, it is ancestral property as regards his male issue. If A has no son, son’s son, or son’s son’s son in existence at the time when he inherits the property, he holds the property as absolute owner thereof. However, if a son, son’s son or son’s son’s son is born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family, and A cannot then claim to hold the property as absolute owner nor can he deal with the property as he likes.

 

 

LAW OF TORTS NOTES

Chapter-1
Nature and Definition

 

Introduction

The law of fort is a branch of Civil Law, which consists of various torts or wrongful acts

which violate some legal rights vested in a person by law. The word “tort” is derived from the Latin word tortum Which means twisted for crooked or wrong or unlawful. The law imposes a duty to respect the legal rights of others, and the person making a breach of that duty is said to have done the wrongful act. Similarly, a tort is a breach of duty recognized under the law of torts. The  Law of tort is mainly built upon case laws, 4t is said to be a stately edifice of case laws. There are only a few statutory enactments related to this branch of law.

 

Definition

Issue – Why has it been difficult to give a scientific definition of tort?

The law of tort has been difficult to be defined and there is no scientific definition of the law of tort. This is mainly because of the diverse species of wrongs included under this head.

A number of attempts have been made to define the law of tort. Some of the most appropriate definitions are:-

  1. “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust” – S.2 (m.)The Limitation Act, 1963.
  2. “It is a civil wrong for which the remedy is a common law action for unliquidated damages and which is not exclusively the breach of a contract or the breach of a trust or other merely equitable obligation.”- Salmond
  3. “Tortious Liability arises from the breach of a duty primarily fixed by the law: this duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”- Winfield
  4. “It is an infringement of a right in rem of a private individual giving a right of compensation at the suit of the injured party.” – Fraser

Generally, tort is defined as — It is a civil wrong which is redressible by an action unliquidated damages, and which is other than a mere breach of contract or breach of trust.

The definition emphasizes, three aspects of torta

  1. Tort is a civil wrong and
  2. The remedy available is unliquidated damages and
  3. Differentiates tort from other civil wrongs.”

 

Tort is a Civil Wrong (Issue)

In case of infringement of a legal right which amounts to a civil wrong, the plaintiff institutes civil proceedings against the wrongdoer i.e. the defendant.

The main remedy available in such proceedings is damages. The plaintiff is compensated by the defendant for the injury caused to him by the defendant.

In certain circumstances, it is possible that the same act done by a person may result in two wrongs, a crime as well as a tort at the same time. Assault, libel and theft are instances of such common wrongs. When a person has committed an act of theft, he may be prosecuted criminally and civil action for the recovery of the value of the article stolen and for damages can also be taken against him. So also in the wrong of defamation. If a person has published a defamatory article about another in a newspaper, both a criminal prosecution for libel and civil action claiming damages for the defamatory publication may be taken against him.

In such a case, both the civil and criminal remedies would concurrently be available. There would be a civil action requiring the defendant to pay compensation as well as a criminal action awarding punishment to the wrongdoer.

 

Essentials of a Tort

ISSUE:-

  1. What are the essentials to constitute a tort?
    There are two essentials that constitute a tort. They are:-
    1. The defendant must have done some act or omission
    2. Such an act or omission should violate a legal right vested in the plaintiff i.e. it should result in legal damages i.e. cause injury.

 

Act or Omission

A person can be held liable for a tort if he either does an act that is prohibited by law to do or if he voluntarily fails to perform an act which he is legally bound to do.

For example- The law prohibits me to defame others, and if t publish a defamatory statement against anyone, I shall be liable for the tort of defamation.

Example-  If a municipal corporation fails to provide strength to a dilapidated municipal building, which crumbles down, taking the lives of few people then the municipal Corporation shall be tortiously liable for its negligence and omission of its legal duty to care.

Every act or omission does not amount to a tort, such an act or omission should be recognized and protected by law i.e. there should be legal duty to act or legal prohibition to omit to act.

There cannot be a liability for a moral or social wrong.
Thus, if ‘A’ who knows how to swim, does not help a drowning man, he cannot be held liable for a tort.

Similarly, if ‘A’ does not serve food to a starving man, he is not liable for a tort.

 

Legal Damages

“Damages” as distinct from damage means the compensation claimed by the injured party and awarded by the courts. Whereas the word “Damage” is used in the ordinary sense of injury of loss or deprivation of property of some kind.
Thus, damages are awarded by the court to the parties for damage suffered by them.

The word “Injury” is strictly limited to an actionable wrong, while damage means loss or harm occurring in fact, whether actionable as an injury or not.

To establish a tortious liability, the plaintiff has to prove that there has been legal damage caused to him i.e. it has to be proved that the legal rights of the plaintiff were violated by an act or omission, causing breach of a legal duty. Thus no action in tort shall lie unless there has been a violation of a legal right.

The Two Maxims

“Injuria sine damnum” and “Damnum sine injuria”

“Injuria” means infringement of a legal right of unauthorized interference with the plaintiff’s legal rights.

“Damnum” means substantial harm, loss or deprivation of property of some kind.

 

  1. Injuria sine damno (Injury without damages) – This means that if there has been a violation of legal right the same is actionable, irrespective of the fact whether the plaintiff has suffered any loss or not. Thus, whenever there is an “injuria” or a violation of a legal right, and the same has not been coupled with a “damnum” or harm to the plaintiff, the plaintiff can still bring a civil proceeding in a court of law raising tortious liability because every violation of a legal right has to be redressed.
    (Ubi jus ibi remedium i.e. where there is a right, there is a remedy).

Injuria sine damno covers only those torts which are actionable per se i.e. actionable without the proof of any damage or loss.
For example – Trespass to land is actionable even though no damage has been caused as a result of the trespass.

 

In such torts, the only thing which has to be proved is that the plaintiff’s legal right has been violated.

The maxim has been well explained in the leading case of Ashby vs. White (1703).

Facts – The plaintiff was wrongfully prevented from exercising his vote by the defendants, returning officers in the parliamentary election. The candidate for whom the plaintiff wanted to give his vote had come out successful in the election.

Still, the plaintiff brought an action claiming damages against the defendant for maliciously preventing him from exercising his statutory right of voting in that election.

The plaintiff was allowed damages by Lord Holt C.J., saying that there was the

infringement of a legal right vested in the plaintiff.

Lord Holt, C.J. said: “If the plaintiff has a right, he must of necessity have the means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy for want of right and want to remedy are reciprocal.

 

In a similar case of a municipal election, an English court had given a similar decision in 1957, in Tozer vs. Child (1957) 7 E & B 377.

In Bhim Singh vs. State of J&K, AIR 1986 S.C.,

Facts – The petitioner, an M.L.A. of the J & K assembly, was wrongfully detained by the police, while he was on his way to attend the assembly session. He was not produced before the magistrate within the requisite period. As a consequence of this, the member was deprived of his constitutional right to attend the assembly session.

There was also a violation of the fundamental right to personal liberty guaranteed under

Article 21 of the Constitution.

The court held that there was a violation of a legal right, due to mischievous and malicious acts, and, therefore, the Supreme Court granted exemplary damage of Rs. 50,000 to the plaintiff.

 

  1. Damnum sine injuria (damage without injury)- means damage without the infringement of the plaintiff’s lawful rights.

It covers those acts which though harmful are not wrongful and gives no right of action to him who suffers from their effects. Damage so done and suffered is called “damnum sine injuria” or damage without injury.

Such damage without any breach of a legal rigħt will not constitute a tort, They are instances of damages suffered from justifiable acts, i.e. when the exercise of legal rights by one results in consequential harm to the other.

If the act is deliberate, the party injured will have no claim in law, even though the injury is intentional, so long as the other party is exercising a legal right.

An act or omission committed with lawful justification or excuse will not be a cause of action, though it results in harm to another as a combination in furtherance of trade interest or lawful uses of one’s own premises.

 

Cases:

In Mogul Steamship Co. vs. McGregor Gow and Co., 1892 AC 25 – The defendants-steamship companies wished to monopolise the China tea carrying trade. They, therefore, combined together to offer reduced freight in order to induce shippers to employ them. In consequence, the Mogul Steamship Company, which had been excluded from the combination were driven out of the trade and the company brought an action for conspiracy against the defendants. The plaintiffs further alleged that the defendants had willfully caused loss to them by compelling certain merchants in China to cease to act against their agents by means of a threat that if they continued to do so, the agency of the defendant association will be withdrawn from them. This was held by the House of Lords to be no cause of action, it being a justifiable measure of self-protection on the part of the association to prevent the same person from occupying the inconsistent position of agents both for the association and plaintiff. The defendants were held not liable, for their object was merely to protect and extend their trade and they had not used any unlawful means.

 

In Gloucester Grammar School Master’s Case, 1410 YB Hil ii Hen 4f 47 Pl. 21- Where it had been held that the plaintiff, a schoolmaster, had no right to complain of the opening of a new school. The damage suffered was mere damnum absque injuria or damage without injury.

 

In Town Area Committee vs. Prabhu Dayal Air, 1975 All 132, wherein a suit for compensation was filed by the plaintiff against the Town Area Committee for the demolition of his constructions protruding on the road without due notice, the court found that the plaintiff himself was guilty of constructing the building illegally without obtaining proper sanction from the Town Area Committee. The High Court held that the demolition of an unauthorized building is not injuria to the owner and therefore, despite the damage he might suffer, he cannot get compensation (damnum sine injuria)

 

In Ushaben vs. Bhagyalaxmi Chitra Mandir, AIR 1978 Gujarat, the plaintiffs sued for a permanent injunction against the defendants to restrain them from exhibiting the film named “Jai Santoshi Maa”. It was contended that the film hurt the religious feelings of the plaintiff in so far as Goddesses Saraswati, Laxmi and Parvati were depicted as jealous and were ridiculed. It was observed that hurt to religious feelings had not been recognized as a legal wrong. Moreover, no person has a legal right to enforce these religious views on another or to restrain another from doing a lawful act, merely because it did not fit in with the tenets of his particular religion. Since there was no violation of legal rights, the request for an injunction was rejected.

 

In Acton vs. Blundell (1848) 12 M & W, 324, the defendants by digging a coalpit intercepted the water which affected the plaintiff’s well, less than 20 years old, at a distance of about one mile. Held, they were not liable. It was observed: “The person who owns the surface, may dig therein and apply all that is there found to his own purposes, at his free will and pleasure, and that if in the exercise of such rights he intercepts or drains of the water collected from underground springs in the neighbour’s well, this inconvenience to his neighbour falls within the description of damnum abseque injuria which cannot become the ground of action.”

 

In Chesmore vs. Richard, (1859) 7H.C.L. 349, the plaintiff, a millowner, was using for his mill for about 60 years water from a stream that was fed by rainfall percolating through underground strata to the stream, but not flowing in defined channels. The defendants sunk a well on their land and pumped large quantities of water, which would otherwise have gone to the plaintiff’s stream, thereby causing loss to the plaintiff. For this, the defendants were held not liable.

 

In Seetharamayya vs. Mahalakshmamnaa, AIR 1958 A.P. 103, four defendants tried to ward off the flow of water into their plot from a stream by digging a trench as well as putting up a bund on their lands. The fifth defendant also, acting independently put up bunds on her land to prevent the flow of water to her land. As a result of the act of these five defendants, the rainwater now flowed to the plaintiff’s land causing damage to them. The plaintiffs requested a mandatory injunction to demolish the bụnds and to fill up the trench on the defendant’s lands, for a permanent injunction preventing them from making bunds or making such trenches and also for damages amounting to Rs. 300 for the loss already caused due to the flow of the water to their land.

 

The High Court held that the owner of the land on or near a river has a right to build a fence upon his own ground to prevent damage to his ground by the overflow of the river even though as a result of the same the over-flowing water is diverted to the neighbour’s land and causes damage. This being a clear case of damnum sine injuria, the defendants were not liable for the harm to the plaintiffs.

 

Remedy available is unliquidated damages

Issues:-

  1. What is meant by unliquidated damages?
  2. Why is damages the most suitable remedy for a tort?
  3. What are the other remedies available in tort?

Damages in the case of a tort are unliquidated, i.e. the compensation to be paid is not predetermined on the basis of the prior stipulation of the parties and such determination of damages is left to the discretion of the court.

In liquidated damages, as in case of breach of contract, the compensation to be paid in! damages are previously determined or agreed to by the parties on the basis of the stipulation of probable loss in case of breach of contract.

In tort, there is no predetermination of compensation, between the parties, because generally, the parties are not known to each other until the tort is committed and moreover, it is also difficult to stipulate the losses in case of a tort, and, therefore, the damages to be paid are left to be determined at the discretion of the court.

Unliquidated damages to be paid in monetary value is most suitable because, after the commission of the wrong, it is generally not possible to undo the harm which already been caused, so the remedy that can be done is to put the person who has been injured in the same position, as he would have been in if he had not sustained the wrong. This would generally satisfy the injured party.

Other remedies available for a tort are (a) injunction in a case where the wrong is a

continuing act, such as in case of nuisance, (b) specific restitution etc.

 

All Civil Injuries are not torts

Issue:-

  1. Illustrate few cases where the same act amounts to two or more civil wrongs. Although a tort is essentially a civil injury, all civil injuries are not torts. Whether a civil wrong is a tort or not has to be determined through a process of elimination. If a civil wrong does not fall in any other civil wrong category, it probably would be a tort. In certain circumstances, the same act may amount to two or more civil wrongs, one of which may be a tort.
    For example – If X leaves his car with Y for safe custody for a few days and Y leaves the car unlocked on the road to be stolen, Y’s act amounts to two wrongs – Breach of contract of bailment and the commission of tort of negligence.
    Since both, the wrongs are civil wrongs, and damages are the main remedy for any kind of civil wrongs, the plaintiff can claim damages either under the law of tort for negligence or for the breach of contract of bailment. He cannot claim damages twice.

Kinds of Torts

There are two types of torts:- (i) those actionable per se i.e. actionable as mere right and (ii) those which are actionable only on proof of actual damage resulting from them. Trespass or unauthorized entry on another person’s land is actionable per se i.e., even if your act of trespass has not caused substantial injury to the owner of the land you will be held liable, for there has been an infringement of a legal right vested in him. On the other hand, if you drive your car negligently on the public road, you will be held civilly liable to another person only if an injury has been caused to the latter in consequence of your negligent and rash driving. In such cases damages are awardable only if the actual damage is caused to a party. In the former class of cases, the law says to a defendant: “You will be held liable if you do such and such act.” At other times, the law says to the defendant: “You will be held liable if, in consequence of such and such act of your’s, you cause damage to another.” Almost all cases of injuria sine damnum fall into the category where the defendants are held liable for the infraction of legal rights Vested In the plaintiff although the particular actions of the defendants might not have caused any substantial loss to the plaintiffs. Trespass is actionable even though it has not done to the plaintiff even the slightest harm.

 

The law permits the protection of one’s property from apprehended danger by preventing the entrance of flood-water to his land even though such an act causes damage to the neighbours. But if the flood-water has already entered one’s land, the law does not permit him to cast it upon adjoining land.

 

In Dickson vs. Reuter’s Telegram Co. (1877) 3, C.P.D., the defendants were held not liable even though their negligence had caused damage to the plaintiff. The defendant, a telegraph company, negligently delivered a telegram meant for somebody else, to the plaintiffs. The telegram contained an order for the shipment of barley from Valparaiso to England. The plaintiffs believed that the message was meant for them and shipped the goods, which the sender of the telegram refused to accept. The plaintiffs having suffered a heavy loss sued the defendant company. It was held that the defendant company owed a contractual duty only to the sender of the telegram. Since they did not owe any duty to the recipient of the telegrany they were not liable.

 

In Vishnu Dutt vs. Board of H.S. & Intermediate Education, U.P., AIR, 1981 All. 46, Vishnu Dutt, an intermediate ştudent, was detained for shortage of attendance. His detention was found by the Court to be illegal as the attendance registers of the college were not maintained according to the regulations of the Board. As a consequence of the detention he lost one year. His action to claim compensation for the loss was not allowed as the plaintiff’s claim did not fall under any of the heads recognized in common law, and moreover, the statutory provisions did not provide for any compensation in the circumstance mentioned above.

 

In Mayor of Bradford Corporation vs. Pickles (1895) A.C. 587, the House of Lords went a step further and held that even if the harm to the plaintiff has been caused maliciously no action can lie for the same unless the plaintiff can prove that he has suffered injuria.

 

In this case, the plaintiffs had been deriving water from the adjoining land of the defendant which was at a higher level. The defendant sank a shaft over his own land which diminished and discoloured the water flowing to the land of the plaintiffs. The plaintiffs claimed an injunction to restrain the defendant from sinking the shaft alleging that the sole purpose of the same was to injure the plaintiffs as they did not purchase his land at an exorbitant price. The House of Lords held that since the defendant was exercising his lawful right he could not be made liable even though the act, which injured the plaintiff, was done maliciously. Lord Ashbourne said: “The plaintiffs have no cause unless they can show that they are entitled to the flow of the water in question and that the defendant has no right to do what he is doing…… The law stated by this House in Chesmore vs. Richards cannot be questioned. Mr. Pickles has acted within his legal rights throughout, and is he to forfeit those rights and be punished for their legal exercise because certain motives are imputed to him? If his motives were the most generous and philanthropic in the world, they would not avail him when his actions were illegal. If his motives are selfish and mercenary, that is no reason why his rights should be confiscated when his actions are legal,”

Thus, a legal act, though motivated by malice, will not make the defendant liable. The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise.

 

An Pagadala Narasimham vs. The Commissioner and Special Officer, Nellore,

Municipality, AIR, 1994 – In that case, the plaintiff’s bus, which was not in working condition, was parked on road and caused obstruction to the traffic. The traffic police removed the bus with the assistance of the municipal employees. It was held that the police officers were justified in their act, as the same had been done in discharge of sovereign functions, and, therefore, they could not be held liable for the same.

 

Foundation of Tortious Liability

Issues:-

  1. What are the two theories given by Winfield and Salmond regarding the basic principle of tortious liability?
  2. Reconcile the two theories.

 

Is it a Law of Tort or Law of Torts?

Professor Salmond had raised the question, “Whether the law of torts consists of a fundamental general principle that it is wrongful to cause harm to other persons in the absence of some specific ground of justification or excuse, or does it consists of a number of specific rules prohibiting certain kinds of harmful activities and leaving all the residue outside the sphere of legal responsibility?”

i.e. it raises two questions, leading to two theories – one wider – other narrower, the questions, simplified are:-

  1. Is it the law of tort, i.e. is every wrongful act, for which there is no justification or excuse to be treated as a tort; or
  2. Is it the law of torts, consisting only of a number of specific wrongs beyond which the liability under this branch of law cannot arise?

 

  1. The first wider theory based on law of tort, was given by Dr. Winfield, who said that “All injuries done by one person to another are torts, unless there is some justification recognized by law.” According to this theory, if I injure my neighbour, he can sue me in tort, whether the wrong happens to have a particular name like assault, battery, deceit or slander, and I will be liable if I cannot prove lawful justification.
    This leads to the wider principle that all unjustifiable harms are tortious. This enables the courts to create new torts and make defendant liable irrespective of any defect in the pleading of the plaintiffs.
    This theory is supported by Pollock and courts have repeatedly extended the domain of the law of torts. For example – Negligence became a new specific tort only by the 19th century A.D. Similarly, the rule of strict liability for the escape of noxious things from one’s premises was laid down in 1868 in the leading case of Rylands vs. Fletcher, (1868) LR 3 HL 330. The tort of deceit had its origin in Pasley vs. Freeman, (1789), inducement of breach of contract in Lumley vs. Gye, (1853), inducement to a wife to leave her husband in Winsmore vs. Greenbank, (1745), and recently the tort of intimidation in Rookes vs. Barnard, (1964). Decisions such as Donoghue vs. Stevenson, 1932 AC 562 show that the law of tort is steadily, expanding and that the idea of its being cribbed, cabined and confined in a set of pigeonholes is untenable.
    In 1702, decision in Ashby vs. White established the above theory, recognizing the principle ubi jus ibi remedium, Holt C.J. said “If man will multiply injuries, actions must be multiplied too: for every man who is injured ought to have recompense.”
    In 1762, Pratt, C.J. in Chapman vs. Pickersgill said: “Torts are infinitely various not limited or confined.” Referring to the expansion of the law of torts especially in the area of negligence, Lord Mac Millan said: “The categories of negligence are never closed.”
  2. Pigeon Hole Theory
    This theory supported by Salmond, proposed that there is no law of tort, but, there is law of torts. The law of tort according to this theory consists of a set of pigeon holes each containing a labelled tort. The liability under this branch of law arises only when the wrong is covered by any one or the other defined torts. If the defendants wrong does not fit any of these pigeon-holes, he has committed no tort.
    According to Salmond, “Just as criminal law consists of a body of rules establishing specific offences, so the law of torts consists of a body of rules establishing specific injuries. Neither in one case nor in the other, is there any general principle of liability, whether I am prosecuted for an alleged offence or sued for an alleged tort, it is for my adversary to prove that the case falls within some specific and established rule of liability and not for me to defend myself by proving that it is within some specific and established rule of justification prexcuse.”
    Salmond based his conclusion on the fact that under the practice of the early writs, parties had to go out of courts without getting any damages if their particular injury could not fit in with any of pre-existing types of writs.
    Salmond supported his theory by printing out that in all cases of “damnum sine injuria” parties were not able to get damages although they had suffered substantial losses.
    Salmond’s book is thus called “Law of Torts”. Dr. Jenks also supports Salmond’s view, but adds that Salmond’s theory does not imply that the courts are incapable of creating new torts.
    While reconciling the two theories, we should approach the problem of tortious liability fror dle ground. It is true that there are a number of nominate torts. But it is equally true that a person sustaining a loss does not of necessity have to find a label to describe a tort in order to obtain compensation. Many instances have appeared where a plaintiff put forward a new.claim such as for mental pain followed by nervous shock and was awarded damages. Other instances of claims partially recognized or claims pressing for recognition which have not as yet been openly granted will also appear.
    Winfield made modification of his own theory and he said that both his and Salmond’s theories were correct. He said “From a narrow and practical point of view, Salmond’s theory/will suffice, but from a broader outlook, his theory is valid.”
    In an Indian decision Lala Pannalal vs. Kasturi Chand Ramaji, AIR 1946 Mad. 147, it is pointed out that there is nothing like an exhaustive classification of torts beyond which courts should not proceed, that new invasion of rights devised by human ingenuity might give rise to new classes of torts and in that way, malicious house search may constitute such a new tort.

 

Distinction of Law of Tort from Law of Crime and Duty in other Civil Cases

Issues:-

  1. Distinguish between law of tort and taw of crime?
  2. Distinguish between law of tort and law of contract?
  3. Distínguish between law of tort and breach of trust?
  4. Distinguish between law of tort and quasi-contract?
    PURPOSE: The purpose of distinguishing tort/from other branches of law is that the nature of a tort can be understood clearly by distinguishing tort from crime and other civil laws.

 

Tort and Crime

A tort is a civil wrong and thus the law of tort is a branch of civil law. The wrongs which involve lesser degree of seriousness and causes injury or threatens to cause injury to only a certain number of persons are considered private wrongs and are labelled as civil wrong or a tort, whereas, the seriousness involved, or the injury caused is grave and which shakes the conscience of the society as a whole.

The wrong is then considered to be public wrong or a crime. Blackstone distinguished and defined wrongs as “wrongs are divisible into two sorts or species, private wrongs and public wrongs. The former are the infringement of private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries; the latter are breach and violation of public rights and duties, which affect the whole community considered as a community, and are distinguished by the harsher application of crimes and misdemeanours”.

Being a civil injury, a tort differs from a crime in all respects in which a civil remedy differs from a criminal one.

The sanctions of the criminal law, are punitive or atleast disciplinary, while those of the civil law are restorative or compensatory.’

A crime may be defined as a wrong the sanction of which involves punishment such as death, penal servitude, imprisonment, fine etc. Even the fine imposed in the accused person is invariably in addition to some punishment

The essence of punishment is its inevitability when once liability to it has been pronounced, no option is left to the offender as to whether he shall endure by suffering. In a civil case on the other hand, if a person is adjudged to pay a debt, or is cast in damages is put under an injunction, he can always compromise to get rid of his liability with the assent of the injured party.

Since tort is a private wrong, the injured party himself has to file a suit as a plaintiff. Whereas in case of criminal law, even though the immediate victim is an individual, the crime committed is considered to be against the community i.e. a wrong against public at large, of wrong against the state, hence the criminal proceedings are never brought by the injured party but by the state.

There are several wrongs which are both crime and tort, for example assault, defamation, nuisance, conspiracy etc. Although the wrongs are same, they are differently defined under the two branches of law, and the rules applicable for these wrongs in two branches are different. In such cases, where same set of facts may constitute both a tort and a crime, the civil and criminal remedies in such cases are not alternative but they are concurrent.

 

Tort and Contract

The distinction between a tort and a contract, is clearly brought forth by the definition of tort given by Winfield, which states” “Tortious liability arises from the breach of a duty primarily fixed by law, such duty is towards persons generally and its breach is redressible by an action for unliquidated damages.”

A contract is an agreement, whereby a legal obligation is constituted and defined between the parties to it. It is a legal relationship, the nature, contents and consequences of which are determined and defined by the agreement of the parties, the law giving legal force and authority to the agreement.

Thus, whereas in tort, the duties are fixed by the law, in the contract, they are fixed by the parties themselves,

In a contract, one party owes duty to another contracting party only (Principle of Privity of Contract) while in tort, the duty imposed by law is not towards any specific individual or individuals, but they are towards the world at large.

Both in tort and contract, the remedy available is damages, but while in contract, the damages are liquidated (i.e. they are predetermined by the parties) in tort, the damages are unliquidated, i.e. they are not predetermined by the parties, but are awarded by the court.

In certain cases, the same incident may give rise to liability both in contract and tort, for example, when a passenger whilst travelling with a ticket is injured owing to the railway company’s negligence, the company is guilty of a wrong which is both a breach of contract and tort.

In Edwards vs. Malan, (1908) KB, it was held, a dentist who contracts to pull out my tooth is of course liable to me for the breach of contract, if he injures me by an unskillful extraction. He is also liable for the tort of negligence, for everyone who professes skill in a calling, is bound by the law, agreement or no agreement, to show a reasonable amount of such skill.

In such cases, where the same fact results in a breach of contract as well as a tort, the plaintiff cannot claim the damage twice over. He can either sue for the breach of contract or for the commission of tort.

The contractual duty may be owed to one person and the legal duty (duty by law), independently of contract to another.

Example – The surgeon who is called by a father to operate upon his daughter owes a contractual duty to the father to take care. If he fails in that duty, he is also liable for a tort!

against the daughter.

In Pippin vs. Sheppard. (1822), a surgeon was called in by a husband, to treat his wife. The court held that the husband could sue the surgeon for breach of contractual duty, while the wife could maintain an action in tort.

Thus, liability in tort is fixed by the law irrespective of any contract between the parties, although it is possible that in certain circumstances liability in tort may be modified by contract.

 

Privity of Contract and Tortious Liability

Under the doctrine of privity of contract, no one except the parties to a contract, can sue for a breach of it. Earlier, it was thought that this principle of law of contract also prevented any action being brought under tortious liability. For example – If there was a contract between A and B; and A breaks his contract in such a way as to commit a tort to C, it was wrongfully thought that C could not bring an action against A. This fallacy has now been exploded by the House of Lords in the famous case of Donoghue vs. Stevenson 1932 AC 562. In that case, a manufacturer of ginger beer had sold to a retailer, ginger beer in a bottle of dark glass. The bottle, unknown to anyone, contained the decomposed, remains of a snail which had found its way into the bottle at the factory. X purchased the bottle from the retailer and treated the plaintiff, a lady friend, to its contents; owing to the darkness of the glass nothing of the snail was discernible until X was replenishing the plaintiff’s glass. In consequence partly of what she had drunk and partly of what she saw, she became very ill.

She sued the manufacturer for negligence. There was, of course, no contractual duty on the part of the manufacturer towards her but a majority of the House of Lords held that he owed her a duty to take care that the bottle did not contain noxious matter and that he was liable, if that duty was broken.

Lord Macmillan said: “The fact that there is a contractual relationship between the parties which may give rise to an action for breach of contract does not exclude the co-existence of a right of action founded on negligence as between the same parties independently of the contract though arising out of the relationship in fact brought about by the contract”.

The Privy Council has affirmed the principle of Donoghue vs. Stevenson Case in Grant vs. Australian Knitting Mills Ltd. 1936, AC, 85.

Thus contractual liability is completely irrelevant to the existence of liability in tort. In a recent decision, the Delhi High Court has explained the point. In Klans Mittelbachert vs. East India Hotels Ltd. AIR, 1997, Delhi, there was a contract between Lufthansa, a German Airlines and Hotel Oberoi Inter-continental of Delhi for the stay of the crew of Lufthansa, as guests in the hotel. The plaintiff Klans Mittelbachert) a co-pilot in Lufthansa, stayed in the hotel for a few days. During his stay, as the plaintiff took a dive in swimming pool in the hotel, due to defective design of the swimming pool, his head hit the bottom of the pool and he received serious head injuries. As a consequence of that he was paralyzed and continued in agony for 13 years before he died. In an action for damages by the plaintiff, one of the defences pleaded by the defendant was that the plaintiff was a stranger to contract, as the contract for stay was made between his employer i.e. Lufthansa and the hotel. The plea was rejected. It was held that he could sue as a beneficiary of the contract. Moreover, for an action under Law of torts for compensation the plea of stranger to contract was irrelevant. Due to hazardous nature of the premises the rule of absolute liability was applied and the defendants had to pay exemplary damages, amounting to 50 lakh rupees.

 

Tort and Quasi-Contract

The liability under quasi-contract is based on the principle that if any person has received any unjust benefit, he must return it to the rightful owner. For example – If ‘X’ gets a TV from Y and X paid the price of it to Y, mistakenly believing that Y is the owner of it and Y received it honestly believing under circumstances that he is entitled to receive the price amount and later it turns out that A and Co. are the real owners of the TV, and they realise the amount from X, then Y must return the amount to X.

Y is bound to return the same not under any principle of tortious liability for his mistake in receiving the price amount was an honest one and hence he has not committed any tort.

Tort and quasi-contract, share a similarity, that in both, the duty is imposed by law, but they have sharp differences. The main distinotion is that in a quasi-contract the duty is always towards a particular person, whereas under the lay of torts, the duty is towards persons generally.

Another distinction is that in case of quasi contract, the remedy in form of compensation is always monetary and liquidated. While in tort, remedy available is in the form of unliquidated damages.

 

Tort and Trust

Trust is a branch of the law of property. Under/ita person called trustee holds property in his name for the use and benefit of another person called the beneficiary. If a trustee misappropriates property which he holds upon trust for a beneficiary, the beneficiary can claim compensation. But that compensation amount will usually be the value of the property concerned. It can be ascertained beforehand and as such the damage claimed will be a liquidated sum and not unliquidated. Thus tort is distinguishable from trust mainly on the ground that while untiquidated damages Jare claimed io tort, only liquidated damages, are claimed in trust transactions.

 

Mental Element in Tort

Sir John Salmond proposed that liability should always be based on fault. A man should be held liable for a wrongful act only if he has done it either intentionally or with culpable negligence. There is no justice in making a man pay à certain amount by way of damages to the injured party if the act of injury was unintentional or accidental. The principle of criminal law that an accused person can be convicted only if he had particular mens rea was considered fit for civil liability as well.

 

Fault when Relevant

In many cases of tort, the intention pr culpability of the wrongdoer becomes relevant to ascertain his liability. In torts such as conspiracy, assault, false imprisonment, malicious prosecution, battery, deceit etc. the Antention of the wrongdoer becomes relevant.

 

Fault when Irrelevant

Fault has never beer and is not today an essential element of tortious liability i.e. the mental element is irrelevant and liability arises even without any wrongful intention or culpable negligence on the part of the defendant

Examples Tort of Conversion, Tort of Defamation, Vicarious liability, Rule of Strict liability and Absolute liapility,

 

Malice in Law and Malice in Fact

Malice in Law

The word malice in law means something more than a mere evil motive. It signifies either (a) The intentional doing of wrongful act without just cause or excuse, or (b) An action determined by an improper motive.

Malice in its legal sense has been defined by Bangley, J. in Bromage vs. Prosser, (1825) 4B and C 247, 255, thus: “Malice in common acceptation means ill-will against a person, but in its legal sense it means wrongful act done intentionally without just cause, or excuse”.

Malice in law, thus, means a wrongful intention which is presumed in case of an unlawful act, rather than a bad motive or feeling of ill-will.

 

Malice in Fact (Evil Motive)

Malice in fact means an evil motive, for a wrongful act. When a person does a wrongful act, with a feeling of ill-will, the act is said to be done “maliciously”.

As a general rule, in torts, a man’s motives are irrelevant. The Jaw in general asks merely what the defendant has done, and not why he did it. A good motive is no justification for an act otherwise illegal and a bad motive does not make wrongful an act otherwise legal.

 

Cases

Mayor of Bradford vs. Pickles (1895 AC 587), was decided by the House of Lords. Pickles was annoyed at the refusal of the Bradford Corporation to purchase his land in connection with the scheme of water supply for the town. In return, actuated by feelings of Trevenge, Pickles sank a shaft in his land and abstracted the water which percolated through the soil of his land in unknown and undefined channels from the land of the Corporation.

The Corporation sued for an injunction restrain Pickles from diminishing or polluting their water. They contended that his conduct was unlawful because it was dictated by an evil motive. It was already settled law that the interception of underground water is not an actionable wrong, even though done intentionally [Chasemore vs. Richards, (1859) 7 HLCI 349] but in the present case an attempt was made to establish an exception to it. But the House of Lords rejected this contention and defendants were held not liable. Lord Watson said: “No use of property which would be legal if due to a proper motive can become illegal because it is prompted by a motive which is improper or even malicious.” Lord Macnaghten has also spoken in the same tone: “In such a case, motives are immaterial; it is the act, not the motive for the act that must be regarded. If the act apart from the motive gives rise merely to damage without legal injury, the motives however reprehensible it may be, will not supply that element.”

 

Allen vs. Flood, 1896, AC 1 – The plaintiffs – two shipwrights (persons employed in the construction and repair of ships) were employed by X to do woodwork on a ship on which X had already in employment some ironworkers. The trade union of the ironworkers objected to X’s employment of the plaintiffs because they had previously done iron work in another ship and Allen, a delegate of the union, informed X of this and told him that unless the plaintiffs were dismissed, all the ironworkers would be called out, or strike work. X accordingly discharged them in pursuance of his legal right to do so, for under their contract of employment they were liable to be dismissed at any time. They sued Allen. The House of Lords held that Allen had done no unlawful act, used no unlawful means in procuring the shipwrights’ discharge and that however malicious or bad the motive might have been, his conduct was not actionable. If a man/has done what he is justified in doing, the law will not permit an inquiry into his motives. The House of Lords laid it down as a universal proposition that an act lawful in itself is not converted by a malicious or bad motive into an unlawful act so as to make the doer of the act liable to civil action. If a person prosecuted another for a crime which that other has in fact committed, or makes defamatory statements about him which can be proved to be true, it can make no difference that he took malicious pleasure in instituting the prosecution or in publishing the defamatory matter. Similarly, a man might lawfully arrest his debtor, though he had maliciously brought up the debtor’s bills with a view to procuring his imprisonment. An illustration of this irrelevance of motives is the right of a land owner to do harm to adjoining properties in certain defined ways by acts done on his own land. He may intercept the access of light to his neighbour’s windows, or withdraw by means of excavation the support which his land affords to his neighbour’s house or drain away the water which would otherwise supply his neighbour’s well. His right to do all these things depends in no way on the motive with which he does them. The law cares nothing whether his acts are inspired by an honest desire to improve his own property or by a malevolent impulse to damage that of others. He may do as he pleases with his own.

 

In Town Area Committee vs. Prabhu Dayal, AIR 1975, the plaintiff made certain construction without complying with the provisions of the U.P. Municipalities Act. The defendants demolished the construction. The plaintiff sued the defendants contending that the demolition was illegal as some of the officers of the Town Area Committee were acting maliciously in getting the construction demolished. The Allahabad High Court held that the demolition of a building illegally constructed was perfectly lawful. The Court did not investigate the question whether the act was done maliciously or/ not as the same was considered to be irrelevant. In the words of Hari Swaroop J.: “The plaintiff can get compensation only if he proves to have suffered injury because of an illegal act of the defendant and not otherwise. Malice does not enter the scene at all. A legal act though motivated by malice, will not make the actor liable to pay damages…..merely because some officer has malice against a citizen who has committed a wrong will not render the action of the authority invalid if it is otherwise in accordance with law. Mere malice cannot disentitle a person from taking recourse to law fof_getting the wrong undone. It is, therefore, not necessary to investigate whether the action was motivated by malice or not.”

 

Exceptions to the Rule

There are certain special cases, which admittedly form an exception to the rule of irrelevance of motive in the law of torts in which motive is relevant. They are:-

  1. Wrongs of defamation on a privileged occasion privilege loses when evil motive is shown.
  2. Malicious prosecution.
  3. Injurious falsehood, slander of goods etc.
  4. Nuisance.
  5. Conspiracy
  6. Unlawful interference with another’s lawful activities.
  7. Evil motive may aggravate damages

 

Framework sheet – Strict and Absolute Liabilty

SUB-TOPICS

 

  1. The rule of strict liability (Rylands V. Fletcher)
  1. Dangerous Thing
  2. Escape
  3. Non-natural use of land
  1. Extension of the Principle
  2. Exceptions to the rule:-
  1. Plaintiff’s own default
  2. Act of God
  3. Consent of the Plantiff
  4. Act of third party
  5. Statutory Authority

 

Absolute liability

  1. The Rule of Absolute Liability (Rule in M.C. Mehta V. Union of India)
  2. Bhopal gas leak disaster case

 

The Rule of Strict Liability

There are certain classes of cases in which the liabilities of the defendants are stricter than in the ordinary cases. In these cases of strict liability, liability is imposed on the defendants irrespective of consideration of their mental state, Liability is not based on blame worthiness. Even innocent persons are held liable for harm caused to others on account of escape of things from their land.

The rule of strict liability was laid down in Rylands vs. Fletcher (1868) LR 3 HL, wherein the House of Lords laid down the rule recognising “No fault liability, and was called “strict liability” rather than the rule of absolute liability, because of the exceptions laid down along with the rule.

The Rule of Strict Liability says that even if the defendant was not negligent, or rather, even if the defendant did not intentionally cause the harm, or he was careful, he could still be made liable for the harm caused.

The facts of the case in Rylands vs. Fletcherlwere as follows – The facts of this leading case were as follows. Rylands employed independent contractors who were apparently competent to construct a reservoir on his hand. In the course of the work the contractors came upon old shafts and passages on Ryland’s land. They communicated with the mines of Fletcher, a neighbour of Rylands; but no one suspected this for they appeared to be filled with earth. The contractors did not block them up and when the reservoir was filled the water from it burst through the old shafts and flooded Fletcher’s mines. It was found as a fact that yvhile Rylands had not been negligent, the contractors were negligent. Fletcher sued Rylands and the House of Lords ultimately held the defendant Rylands liable.

The rule of law enunciated in the Court of Exchequer Chamber by Blackburn, J. was affirmed as correct by the House of Lords. Blackburn, J. said: “We think that the true rule of law is that the person who, for his own purposes, brings on his land and collects and keeps there anything likely 16 do mischief if it escapes, must keep it in at his peril and if he does not do so is prima facie answerable for all the damage which is the natural consequence of its escape.

According to the rule, if a person brings on his land, any dangerous thing and keeps it there, and if such a thing escapes, he will be answerable for the damage caused by its escape even though he might have taken all the care to avoid such an escape and he was not negligent in keeping it there. Thus, the liability imposed is not because of the negligence or fault of the person, but it is because of the nature of thing which he kept on his land, which was so dangerous.

 

Essentials required for application of Rylands vs. Fletcher’s rule

For the application of the rule, three essentials are required:-

  1. Some dangerous things must have been brought by a person on his land.
  2. The thing thus brought or kept by a person on his land must escape.
  3. It must be non-natural use of land etc.

 

Dangerous Thing

The rule of strict liability is applicable only when the thing collected is a dangerous thing i.e. a thing which is likely to cause mischief, if it escapeş.

The rule in Rylands vs. Fletcher has been applied to gas, electricity, oil, noxious fumes, colliery spoil, rusty wire from a decayed fence, vibrations, poisonous vegetațion and flag gole.

In Attorney-General vs. Corke 1933 ch 89, even human beings were included in the category of noxious substances. In that case, the owner of a disused brickfield had allowed certain persons to bring caravans on the field and they lived there. They committed nuisance upon the adjoining land. In an action for nuisance, the court granted an injunction against the owner of the disused brickfield holding that the principle of Rylands vs. Fletcher was applicable and he was liable for the nuisance committed.

 

Escape of the dangerous thing

The rule of Rylands vs. Fletcher applies only when the dangerous thing escapes beyond the area outside the occupation and control of the defendant. Thus, a person shall be held liable only if the injury has been caused to the plaintiff in consequence of the escape of the mischievous. substance where there is no such escape, there is no liability.

For instance, in a case where A in the ordinary course of his duty went to a factory where explosive articles were being manufactured and sustained bodily injuries on account of an explosion. The defendants were held not liable under Ryland’s rule on the ground that there was no escape of dangerous thing from the premises. (Read k. Lyons & Co. 1947 AC 156)

[Crowhurst vs. Amersham Burial Board (1878)] – It is an important case to illustrate the meaning and scope of escape. In this case, a projection of the branches of a poisonous free on the neighbour’s land, amounted to an escape and whereby when the cattles munched leaves from such a tree, Tawfully within the boundaries of neighbour’s land, the  defendants were held liable under the rule.

Contrary to this, in Ponting vs. Noakes (1994) QB, where the plaintiff’s horses intruded over the boundaries and died by ribbling the leaves of a poisonous free there, the defendants were held not liable, since there was no escape of the vegetation in this case.

Prosser A. and Son Ltd. vs. Levy, (1955) 3 AT ER 577, is a decision of the Court of appeal in England where the judges imposed liability on the owners of the building for escape of water from a pipe on the upper floor of a building down to the ground floor causing damage to the goods of the plaintiffs stocked on the ground floor. The plaintiffs were lessees and occupiers of a shop on the ground floor of a building owned by trustees, the first defendants, who retained control of staircases and passages in the building. In a passage on the second floor there was a copper pipe having a stop tap at its end. The stop tap tequired three or four turns to turn it full on; but water would come slowly from the pipe if the tap were only lightly opened.

On a particular night, the plaintiff’s premises and goods therein were damaged by an escape of water from the copper pipe on the second floor; the flow of water being slow at the time when the escape was discovered and the stop tap being found turned on. How the tap came to be turned on was unexplained. Still in the action by plaintiffs against the trustees (the owners of the premises) for damage done by the escape of water, the defendants were held liable.

 

Non-natural use of Land

For application of Ryland’s rule, it is necessary that the use of the land is non-natural. What is non-natural use of land depends upon time and locality of each case. But in general, non-natural use means( some special use, bringing with it increased danger to others and must not merely by the ordinary use of land of such a use as is proper for the general benefit of community.

In respect of things naturally on land, the principle has no application.

In Noble vs. Harrison, (1926) 2 KB 332, the defendant was held not liable for injury caused to the plaintiff by the fall of the branch of an apparently good tree in the defendant’s land.

Noble vs. Harrison was followed in the subsequent decision of Caminer vs. Northern and London Investment Trust Ltd., (1949) 1 AIL ER 874, where the Court of Appeal held that the defendants could not be held liable either for negligence or for nuisance for injury caused by the fall of an elm tree from the defendants land on the plaintiffs and their car, I which was going along a road by the side of the defendant’s land. The tree was not dangerous and hence, the defendants were held not liable. The House of Lords subsequently affirmed the decision of the Court of Appeal.

 

Exceptions to the Rule

There are few exceptions to the rule in Rylands vs. Fletcher, regarding these rules Scrutton LJ observed: “When stated without the exceptions it is a rule of absolute liability, but there are so many exceptions to it, that it is doubtful whether there is much of the rule left.”

The main exceptions are the following:-

  1. Plaintiff’s own default
  2. Consent of the plaintiff
  3. Act of God
  4. Act of stranger
  5. Common benefit
  6. Statutory authority

 

Default of the plaintiff

When the damage is caused by escape due to the fault of plaintiff himself it shall provide

a good defence against application of Ryland’s rule.

If a person knows that there is a danger of his mine being flooded by his neighbour’s operation on adjacent land, and courts the danger by doing some act which render the flooding probable, he cannot complain.

In Ponting vs. Noakes, (1894, QB 281), the plaintiff’s horse reached over the defendant’s boundary, nibbled some poisonous tree there and died. Accordingly it was held that the plaintiff could recover nothing for damage which was due to horse’s own intrusion.

If the injury due to the escape of noxious thing pccurs due to Unusual sensitiveness of the plaintiff’s property, the defendant may not be liable. The judicial committee in Eastern

and S. African Telegraph Co. Ltd., vs. Cape Town Tramways Co. Ltd., 1902 AC 331, where an escape of electricity injured a peculiarity sensible apparatus on the plaintiff’s land, held the defendant not liableland it was considered as due to the plaintiff’s default.

 

Consent of the plaintiff

This exception illustrates the principle of yolenti non fit injuria, as where the plaintiff has either expressly or impliedly agreed to the bringing in of some dangerous substance on his land which happens to cause injury to him subsequently.

In Peters vs. Prince of Wales Theatre (Birmingham) Ltd., (1942) 2 All ER 533, the plaintiffs had leased from the defendants shop premises forming part of the defendants’ building which contained a theatre and a rehearsal room. When the lease was granted the plaintiff knew that the rehearsal room was fitted with a system of sprinklers, which also extended to his shop, designed to discharge automatically large quantities of water in case of fire. Owing to an exceptionally severe frost, and not to any default on the part of the defendants, the sprinklers burst and water percolated to the plaintiff’s shop and damaged his goods. In an action by the plaintiff against the defendants for damages it was held that the doctrine of Rylands vs. Fletcher did not apply as the plaintiff had impliedly consented to the presence of the sprinklers. The plaintiff’s action therefore failed.

 

Common Benefit

Where the injury is caused to the plaintiff from a thing which is maintained in the premises for the common benefit of both the plaintiff and the defendant, the latter will not be held liable.

Thus, in Carstairs vs. Taylor 1871, LR 6Ex 217, the defendant, the occupant of the upper story of a building, was held not liable to the plaintiff, the occupant the lower storey for damage caused to him by the escape of water from a water box in the upper stórey. A rat had gnawed a hole in the box which caused the leakage of water.

The same principle was followed in Anderson V. Oppenheimer (1880) 5 QBP 602.

The plea of common benefit was also recognized in another English decision, Kiddle V. City Business Properties Ltd., (1942) 2 All ER 216.

 

Act of God

Act of God may be defined as an operation of natural forcer, so unexpected that no human foresight or skill could reasonably be expected to anticipate it.

Act of God is a valid defence to the rule of strict liability laid down in the case of Rylands v. Fletcher. The defence can be pleaded If the escape has been unforeseen and because of supernatural forces, without any human intervention

This defence is well illustrated in the case of Nichols v. Mars land, 1875 LRR 10 EX:

255; (1876) 2 EX D1, the defendant had constructed certain artificial lakes on her land by damming up a natural stream at a point higher up than the defendant’s land. An extraordinary rainfall, “greater and mere/violent than any within the memory of witnesses”, caused the stream and lakes to swell to such an extent that the artificial banks burst and the escaping water rushed on to the plaintiff’s land and carried away four country bridges. The plaintiff sued on behalf of the country, contending that the defendant was liable under the rule in Rylands vs. Fletcher, but this contention was rejected and the defendant was held not liable. The Court of Exchequer Chambers held that she ought not to be liable for an extraordinary act of nature, which she could not reasonably anticipate. It was said that one is only bound to provide against ordinary operation of nature, but not against her miracles.

 

Act of the Stranger

The rule in Rylands vs. Fletcher is not applicable to damage due to the act of a stranger, who is neither defendant’s servant nor does the defendant have any control over him.

Thus, if a trespasser lights a fire oh, my land, Vam not liable if it burns my neighbour’s property unless with knowledge of its existence, I have failed to extinguish it within a reasonable time.

In Box v. Jubb, (1879) 4 Ex D 76, an overflow from the defendant’s reservoir was thus caused by a stranger and the defendant was held not liable.

In Kickards v. Lothian, 1913 AC 263, where some malicious third person blocked up the water pipe of a lavatory basin on X’s premises and thereby flooded those of Y. X was held not liable.

In Perry v. Kendrick’s Transport Ltd., (1956) 1 All ER 154 CA, the irresponsible mischievous acts of two minor boys which really caused injury to the plaintiff was considered sufficient to absolve the defendant from liability.

But, where the act of the stranger comes to the knowledge of the defendant, and the damage can be prevented, the defendant must, take due care and prevent the damage. If he fails to avoid such damage, he shall be liable for it. In Northwestern Utilities v. London Guarantee and Accident Co. (1936) AC, the appellants were a public utility co. carrying gas at a high pressure. During the construction of sewer by the city authorities a gas pipe leaked, resulting in fire which destroyed the hotel insured by the respondents.

Since the operations of the city authorities were conspicuous and the danger to the gas pipes could have been reasonably foreseen and guarded against the failure to do that was considered to be negligence on the part of the appellants and they were held liable.

 

Statutory Authority

The rule in Rylands vs. Fletcher is excluded by statute. However, statutory authority cannot be pleaded as a defence when there is negligence.

In Green vs. Chelsea Water Works Co., (1894), a main belonging to a waterworks co. which was authorised by parliament to lay the main, burst without negligence on the part of the co. and the plaintiff’s premises were flooded. The company was not held liable.

 

The Rule of Absolute Liability

The rule of absolute liability was laid by the Supreme Court in the famous case, M.C. Mehta v. Union of India, 1987. SC 1086, (Oleum gas leakage

case).

The facts of the case are as follows – On 4th and 6th December 1985, Qleum gas leaked from one of the units of Shri Ram Foods and Fertilisers Industries, in Delhi. Due to this leakage, an advocate died and many people had hazardous effect.

The action was brought by public interest litigation under Article 32 of Constitution.

The Supreme Court evolved the rule of absolute liability, suitable to the social and economic conditions, prevailing in India at the present day. Supreme Court expressly declared that the rule of absolute liability was not subject to any of the exception under the rule in Rylands vs. Fletcher.

The court summed up the rule in the following words — Where an enterprise is engaged in a hazardous or inherently dangerous activity and harm results to anyone on account of an accident, in the operation of such hazardous or inherently dangerous activity resulting for example in the escape of toxic gas, the enterprise is strictly and absolutely liable to compensate all those who are affected by the accident and such liability is not subject to any of the exceptions which operate vis-à-vis the tortious principle of strict liability under the rule in Rylands vs. Fletcher.

The court gave two reasons justifying the rule:

  1. Firstly, that the enterprise carrying on such hazardous and inherently dangerous activity for private profit) has a spcial obligation to compensate those suffering there from and it should absorb such loss as an item of overheads, and
  2. Secondly, the enterprise alone has the resources to discover and guard against such hazard and danger. The principle is also sustainable on the ground that the enterprise also has the resource to discover and guard against hazards, so that the same can have the deterrent effect.