DIRECTORATE OF LEGAL STUDIES

Chennai - 600 010

3 Year B.L., Course

Semester System

Ist Year
I - Semester

SI.No Subject Subject Code Page No.

1. English TJA 3
2. Jurisprudence TJB 117
3. Law of Contracts - I TJC 133
4. Law of Torts TJD 185
5. Family Law - I TJE 209
6. Law of Crimes TJF 237

COURSE MATERIALS 2013 - 2014

Compiled by:
Dr. N. Kayalvizhi M.L., Ph.D.,
Asst. Professor,
Dr. Ambedkar Govt. Law College, Chennai - 600 104
First Compilation : Dec 2012
Second Compilation of Re-edition : Oct 2013
Copyright Director of Legal Studies, Chennai - 600 010.
For Your Information :
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THE TAMIL NADU Dr. AMBEDKAR LAW UNIVERSITY
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Chennai - 600 028.
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Tele - Fax : (044) 2461 7996
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: registrar@tndalu.ac.in
Website : http://www.tndalu.ac.in
THE DIRECTORATE OF LEGAL STUDIES,
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 1. ENGLISH
I. THE DIVISIONS OF THE LAW
Law is the element of society and also an essential medium of change. A knowledge of law
increases ones understanding of public affairs. Its study promotes accuracy of expression, facility in
argument and skill in interpreting the written word as well as some understanding of social values.
DISTINCTION BETWEEN CRIME AND CIVIL WRONG
The distinction between crime and a civil wrong is in essence quite simple. The distinction does
not lie in the nature of the wrongful act itself. In very many cases, the same act may be both a civil
as well as a criminal wrong. For example if a cloak room employee runs away with a bag entrusted
to him, he commits the crime of theft and two civil wrongs namely the tort of conversion and breach
of contract. As a result two sorts of legal proceedings can be taken against him, a prosecution for
the crime and a civil action for the tort and breach of contract. The above illustration clearly shows
that the true distinction between a crime and a civil wrong resides not in the nature of the wrongful
act but in the legal consequences that may follow it. In criminal proceeding there is a prosecutor
prosecuting a defendant and the result of the same prosecution, if successful, is the conviction and
the accused may be punished by one of a variety of punishments ranging from fine to death. In civil
proceedings the person instituting a suit is called plaintiff and the opposite party is the defendant.
The proceedings if successful, will result in judgment for the plaintiff by way of order for payment of
compensation, specific performance, declaration of title, recovery of possession, injunction etc.
THE CLASSIFICATION OF CIVIL WRONGS
Civil wrongs are broadly classified into three categories namely the breach of contract, tort and
breach of trust. Breach of contract implies failure on the part of one of the parties to perform his part
of legal obligations arising out of the contract. In this context it is important to note that a contract
need not be in a formal document. It can be oral also. Every time a transaction is made a contract is
entered.
Tort is a civil wrong independent of contract. It gives rise to an action for damages irrespective
of any agreement not to do the act complained of. It includes such wrongs as assault, battery, false
imprisonment, trespass, conversion, defamation, negligence and nuisance.
A trust is an obligation enforced by courts. A trustee who fails to fulfill his obligation is liable for
the breach of trust. In the case of the private trusts the beneficiaries may be determinate where as
the beneficiaries under the public trust are indeterminate. For example, in case of a charitable trust
there need not be any definite beneficiary but the property is held on trust for the public as a whole
or for some section of it.
Apart from these three classes of civil wrongs there is another type of civil obligation called the
Quasi contractual obligation. In quasi contact, though the parties are not liable in contract, they are
liable for injustice. For example, if A pays some amount to B by mistake thinking that A owes the
amount to B it can be recovered as the law treats it as if B had contracted to repay it.
SUBSTANTIVE AND ADJECTIVAL LAW :
A distinction cutting across between civil and criminal law is that between substantive and
adjectival law. Substantive law lays down peoples rights, duties, liabilities, and powers. Adjectival
Law relates to the enforcement of rights and duties. It is mainly concerned with procedural laws. For
example, Civil procedure, Criminal procedure and Evidence.
THE TITLE OF CASES.
It is important to know the rules for naming of cases. Criminal trials are differently named
based on the two main divisions of crimes as indictable offences and summary offences. Indictable
offences are more serious offences triable in the crown court. Trials on indictment are in the name
of the Queen or the King who is on the throne. Reg (Regina) or Rex respectively both conveniently
abbreviate to R. Thus Reg V Sikes or Rex V Sikes may both be written R V Sikes. In some types of

3 ENGLISH
criminal cases the title of the cases will not contain Reg or Rex before V, but will contain the name
of a private person. This happens when the case is tried summarily before magistrates i.e. justices
of peace.
Civil cases will usually be cited by the names of the parties (eg) Rylands V Fletcher. If the
Queen or the King as representing the Government, is a party, she is, in civil cases called The
Queen and similarly with the King, thus British Coal Corporation V The King; but R may also be
used, when an appeal is taken to the Court of Appeal(Civil Division) the name of the appellant is
put first. This means that the names may become reversed, in some cases where a will is being
interpreted, the name of the case is In re (in the matter of) somebody or something; for instance In
re Smith. Certain applications to the court are called Ex Parte. Ex P smith means on the application
of Smith. In the probate cases i.e. cases concerned with the proof of a will, the title In Bonis i.e. in the
Goods of- In bonis Smith may be used.
COURTS WITH CIVIL JURISDICTION
The Courts with original jurisdiction are the High Courts and County Courts. The High Court
is divided into three divisions : The Queens division, the Chancery division and Family division. The
First administers primarily the common law, the second equity and the third probate, divorce and
admiralty cases.
A civil trial in the High Court is before a single judge, generally sitting without a jury. The judges
may sit in London or Provinces. High court cases outside London are often taken by Deputy High
Court Judges or plain Barristers. The less important civil cases are tried in the county courts. Appeals
from both the High Courts and the County courts lie to the Court of appeal. The Court of appeal
generally sits with three members, and there will be several such courts in action at the same time.
When an appeal is taken to the court of appeal either from the High Court or from the County court,
a further appeal lies, with leave, to the House of Lords. However the system of two appeals is subject
to criticism among the jurists.
A civil case may go on appeal direct from the High Court to the House of Lords under the
Leap Frog procedure introduced by the Administration of Justice Act 1960. This can happen with
the consent of the parties and on certificate from the judges, if the case involves the interpretation of
the legislation or is governed by a previous decision of the court of appeal or House of Lords which
one of the parties wishes to overturn.
COURTS WITH CRIMINAL JURISDICTION
The crown court is the main criminal court in England. It was created by The Courts Act 1971.
A criminal trial in the crown court is always by jury. The court is normally presided over by a circuit
judge or recorder who controls the trial and directs the jury; but it may also be constituted with a
High Court Judge. Appeal from the crown in the criminal cases lies to the court of appeal (criminal
division). The appeal may be on law or fact or against sentences, but only the defendant can appeal
and not the crown. On a successful appeal against conviction the court will quash the conviction; but
it may substitute a conviction of some other offences of which the jury could have convicted. From the
court of appeal a further appeal lies in important cases with leave, to the House of Lords. The lower
appellate court must certify that a point of law of general public importance is involved and it must
appear to the House of Lords that the point ought to be considered by the House.
Summary offences i.e. crimes not triable on indictment, are triable without a jury by magistrates
courts. Many crimes though falling within the category of indictable offences, can be tried in
magistrates courts if certain conditions are satisfied; they are said to be triable both ways. Appeal
from Magistrates courts in criminal cases are similar to those in civil cases. The defendant may
appeal to the crown court, which rehears the whole case, there is no jury, but atleast two magistrates
sit with the judge or recorder. A case may also be stated on a point of law for the decision of a
divisional court of the Queens Bench Division and a further appeal may be taken from the divisional
court, subject to restrictions, to the House of Lords. An appeal by way of case stated is open not only
to the defendant but also to the prosecutor, whereas in trials on indictment there is no appeal from
an acquittal.

4 ENGLISH
 The Hierarchy of courts, both civil and criminal, can be represented diagrammatically as follows:
The Hierarchy of Courts in England

Civil Criminal

House of Lords Summary offence Indicatable

and Indicatable offence tried on Indictment
Court of Appeal
(civil of Division) Offence tried Summarily House of Lords

Leap Frog County Court House of Lords Court of Appeal
(civil of Division)
High Court Divisional Court Crown Court
of High Court
(on cases stated)

Crown Court
Magistrate Court

The Supreme Court of United Kingdom.

The Supreme Court of United Kingdom was established by part 3 of the Constitutional Reforms
Act 2005 and started work on 1st of October 2009. It assumed the judicial function of the House of
Lords which were executed by the lords of appeal in ordinary, commonly called Law Lords. It is
the apex court in all matters under English Law, Northern Irish Law and Scottish Civil Law. It is the
Court of last resort and the highest appellate court in the United Kingdom. It is located in Middlesex
Gvildhall, London.
2. COMMON LAW AND EQUITY
Common law and equity are two important legal terms that are likely to confuse the students of
law. Glanville Williams explains the tenor of these terms with illustrative examples.
THE COMMON LAW
The phrase common law seems a little bewildering because it is always used to point a contrast
and its precise meaning depends upon the contrast that is being pointed. Originally common law
meant the law that was not local law, that is, the law that was common to the whole of England.
This may still be its meaning in a particular context, but it is not the usual meaning. More usually the
phrase will signify the law created by the custom of the people and decisions of the judges. When
the phrase Common law is used in this sense it may include even the local law in the form of local
custom which in meaning is not common law. Again the phrase may mean the law that is not equity,
in other words it may mean the law developed by the old courts of the common law as distinct from
the system technically called equity developed by the old court of Chancery. In this sense it may even
include statutory modifications of the common law. Finally it may mean the law that is not the foreign
law. Thus it is seen that the precise meaning of the phrase common law depends upon the particular
context in which it is used and the contrast that is made.
COMMON LAW AS MADE BY JUDGES
When the term common law is used in contrast to the statutory law, it may mean the body of
law produced by decided cases without the aid of legislation. It refers to the power of judges to create
new law under the guise of interpreting the existing common law.

5 ENGLISH
EQUITY
Some words have legal meaning very unlike their ordinary one. In ordinary language equity
means natural justice. Originally, indeed, this system was inspired by ideas of natural justice and that
is why it acquired its name; but nowadays equity is no more natural justice than the common law. It
is in fact a particular branch of law in England; it is not law only in the sense that it is not part of the
common law.
The development of equity could be traced to the middle ages when the courts of common
law failed to give redress in certain types of cases where redress was needed. This disappointed
litigants petitioned the king, who was the fountain of justice, for extraordinary relief. The king through
his chancellor eventually set up a special court, the court of chancery to deal with the petitions.
The rules applied by the court of Chancery became regular part of the law of the land. The most
important branch of equity is the law of trusts but equitable remedies such as specific performance
and injunction are also much used. In case of conflict between the rules of the common law and rules
of equity came to prevail. This was by means of what was called common injunction. Defiance of the
order of the court of Chancery was considered contempt of court.
THE JUDICATURE ACT OF 1873
As a result of the Judicature Act of 1873, the old courts of common law and the court of Chancery
were abolished and in their place a single Supreme Court* of Judicature was established. It had full
power to administer both law and equity. The common injunctions were abolished and instead it was
enacted that in cases of conflicts between the rules of equity and the rules of common law, the rules
of equity should prevail. In this context it has to be understood that though the Judicature Act fused
the administration of law and equity, it did not fuse law and equity themselves. To be more precise,
the two streams have met and now are in the same channel, but their waters do not mix.
In some cases there may be difficulty in distinguishing between law and equity. The rule of
equity has to be read in the light of the whole complex of rules developed by chancellors. To take
an illustration of an equity rule he who comes to equity must come with clean hands. This rule will
apply wherever the plaintiff is relying upon an equitable right but not necessarily when he is relying
on a common law right. In order to explain this vividly, the author refers to an eviction case brought
by a land lord on his tenant. The tenant had an equitable lease of the premise, i.e. not a formal lease
under seal, but an informal lease valid only in equity. The tenant, however, had broken the terms of
his equitable lease, for shortly after receiving it he had assigned it to be a company by the name of
Saxon Ltd. The defendants main defence was that, although he might be liable in damages for having
broken his covenant not to assign, he could not be evicted from the premises. Had the document
been a legal lease this defence would have been a good one, for the lease did not contain a proviso
for reentry on breach of covenant. In the present case, it was an equitable lease, and by breaching
an important term the tenant had soiled his hands and therefore lost his lease. Consequently the
action succeeded.
It is to be seen that the principles of common law and equity, the two essential elements of
the law of England need to be properly understood by the student of law. The reason is that these
principles are inextricably inter oven with the legal systems of all civilized nations.

3. METHODS OF STUDY
A law student has two important aims. His primary and the most important aim is to become
a lawyer and the secondary aim is to pass law examinations with credit. In order to achieve both the
objects one has to read cases in the reports and also to read text books. Glanville Williams examines
the relative importance of these two modes of study.
The two aims can be pursued by the same means. One must study cases, either in the original
law reports or in case books. It is through applying oneself to cases that one gets, to understand
how legal problems present themselves and how legal argument is conducted. That understanding is
important whether ones object is to solve examination problems or to give sound opinions on points
of legal practice.

6 ENGLISH
 There is a difference between preparation for practice and preparation for examinations. What
the practitioner needs is a grasp of general legal principles, a sound knowledge of practice and
procedure, an ability to argue and general knowledge of-where to find the law he wants. But it is not
essential for him to carry much law in the mind. To shine at examinations, on the other hand, one
must not only know how to argue and be able to display a first hand knowledge of the sources; one
must also be able to memorise a considerable number of rules and authorities. The introduction of
problems into examination papers has done something to redress the balance between intelligence
and memory but too much memorising is still required. Copies of statutes are now allowed to be used
in some law examinations. It is indeed not to lower the standard of the examinations but to raise it,
for it means that the examinations can be made more truly a test of intelligence and lawyerly ability.
There is no reason why case books should not be permitted, or atleast lists of names of cases. In
the United States, some teachers allow their students to take in to the examination hall materials that
they have prepared themselves.
READING TEXT BOOKS
Repeated reading of text books is essential for a law student to understand and assimilate the
legal materials. When a book on an unfamiliar subject is read for the first time it is rather heavy going
and one seems not to remember much of it. The second reading is both interesting and easier and
more is remembered. It is better that a student reads the book a third fourth and fifth time. Learning
by heart is best performed in short periods distributed over as long a time as possible. For example,
it is better to devote one hour a day to revision than six hours at a stretch in once a week. Learning
can be Increased by sleep or rest period. When every reading is followed by an attempt to recall the
efficiency of learning and retention is enormously enhanced. Tests have shown that when time is
distributed between reading and recall, fifty percent more is remembered than when the same time
is spent merely in reading the passage over and over.
READING CASE BOOKS
The author says that some law teachers do not recommended the use of case books. In their
view, the only way to proficiency is to read the cases in full. But , considering the amount of time
actually available to a law student, the use of case books has two advantages. First, the case book
saves him the trouble making his own notebook of cases. Secondly it does something to remove
the immaterial facts thus helping in the search of facts that are legally material. However, it must
be remembered that the use of case books by no means dispenses with the need for reading the
original reports. For example, there may be latest cases, not covered by the case book, which the
student may be keen to read in reports.
LECTURE AND CLASSES
The question whether the age - old lecture method of teaching should be continued any more,
has been the subject of debate across the world. The author is of the opinion that it depends upon
the particular lecture and the particular lecturers. The lecture method as a means of instruction
has several merits. Lectures can quicken interests. The lecturers can give the basis and essentials
of the subject and elucidate the broad principles. By varying his emphasis a lecturer can make
himself more easily understood than the toneless words of a book can. Moreover, a lecturer can
bring textbooks up-to-date and in a small class he can solve the individual difficulties. However,
average lectures are of not much use and it is waste of time to sit through such lectures and to make
notes mechanically without thinking what they are about. Some teachers are blamed for telling too
many valuable things in too short a time.
DISCUSSION CLASS
The discussion classes generally called a class supervision or tutorial is considerably more
important and useful than an average lecture. The discussion which is centred on legal problem is
more beneficial to the students. In the discussion classes the students must entirely participate by
attempting to work out problems rather than remaining passive listeners. Smaller strength is ideal for
discussion classes. The author advises the students to develop the habit of working a full morning

7 ENGLISH
and stresses that alcohol is totally inconsistent with study. Instead of using bound lecture note books,
the author recommends loose-leaf system where the student needs to take with him only a single
loose leaf note book. Notes taken in this form can be rearranged and expanded at pleasure. Finally,
the author suggests that the law students need to have a grasp of history in the study not only of
constitutional but of pure legal history.

4. CASE LAW TECHNIQUES

In English legal system previous decisions are followed within more or less well -defined limits.
The like cases shall be decided alike and therefore mentioned as precedents. A decision on a point
of law followed as the correct exposition of law in subsequent decisions is called a precedent on the
point. A judicial precedent speaks in England with authority. It is not merely evidence of the law but a
source of it and the courts are bound to follow the law that is so established .
Ratio decidendi and obiter dictum.
It is not everything said in a judgement that is reckoned as law . Only the ratio decidendi therein
forms law. The ratio decidendi of a case can be defined as the materiel facts of the case plus the
decision thereon. What facts are legally material depends on the particular case. For example , in an
action for injuries sustained through negligent driving, the defendants name, complexion, address
etc., are facts which are not material. On the other hand the fact that the defendant drove negligently
and the fact that in consequence he injured the plaintiff are material and a decision in favour of
the plaintiff on such facts will be an authority for the proposition that a person is liable for causing
damage through the negligent driving of a vehicle.
Glanville Williams, for better illustration of the way ratio decidendi is extracted , cites a case
that is Wilkinson vs. Downton, decided in 1897. In this case, the defendant represented to the plaintiff
that her husband was smashed up in an accident and was lying with both legs broken. All this was
false. The effect of the statement on the plaintiff was a violent shock to her nervous system resulting
in weeks of suffering and medical care. The essential facts of the pith of the judgement were The
defendant by way of what was meant to be a joke told the plaintiff that the latters husband had
been smashed up in an accident . The plaintiff who has previously been of normal health, suffered a
shock and serious illness. The decision was that the defendant was liable not perhaps for the tort of
deceit but because the defendant had wilfully done an act calculated to cause physical harm to the
plaintiff and had in fact caused such harm. However from the whole thing that is material facts plus
the decision, the wider ratio that can be extracted is whoever wilfully does an act which is calculated
to and does cause physical harm is liable in tort. The above ratio in Wilkinsons case was applied in
a subsequent case in 1919 that is Janvier vs. Sweeney, wherein the defendant threatened to arrest
and prosecute the defendant, a foreign servant girl, if she did not give certain information.
Distinction between ratio decidendi and obiter dicta.
As it is the ratio decidendi that is reason for the decision of a case that alone creates a binding
precedent, it is very essential to understand the distinction between ratio decidendi and obiter dicta.
Ratio decidendi
Ratio decidendi means that legal principle which has been formulated and applied in deciding
a point of controversy in the cases. However, in the process of interpreting a decision for the purpose
of extracting the Ratio, a judge may be restrictive or non restrictive. Restrictive distinguishing is the
process of cutting down the expressed ratio decidendi so as to interpret it as narrowly as possible.
Non-restrictive distinguishing occurs where a court accepts the express ratio decidendi of the earlier
case without curtailing it, but finds that the case before it does not fall with in the ratio decidendi
because of some material difference of the fact.
Obiter dicta
Obiter dictum is a mere saying by the way, a chance remark, which is not binding upon future
courts. To be more precise, obiter dictum is a legal principle discussed in the judgment but not
applied to the case. It may be respected according to the reputation of the judge, the eminence of

8 ENGLISH
the court and the circumstances in which it came to be pronounced. The reason for not regarding
an Obiter dictum as binding is that it was probably made without consideration of the cases on the
point. In some cases a judge may illustrate his general reasoning with reference to hypothetical
situations and the law which he considers to apply to them. These observations, though not binding,
are important because they not only help to rationalise the law but also suggest solutions to problems
not yet decided by the courts.
DIVERGENT OPINIONS
The extraction of ratio decidendi becomes more complicated when different members of a
composite court express different opinions. Where the opinion of different judges differs so greatly
that there is no majority for any single view, all that can be done, to ascertain the ratio decidendi, is
to add up to the facts regarded as material by any group of judges whose votes constitute a majority,
and to base the ratio on these facts.
THE HIERARCHY OF AUTHORITY - BINDING FORCE OF PRECEDENTS
The general rule is that every court is bound to follow any case decided by a court above it in
the hierarchy. When the appellate court reverses or overrules a case decided by the court below, the
case so reversed or overruled loses all authority. Reversal means the same case is decided the other
way in appeal, whereas overruling takes place when a decision of a lower court is considered in a
different case taken on appeal and held to be wrongly decided.
In 1966 the House of Lords, departing from its earlier practise, declared that it would not be
bound by its own decision. The court of appeal generally, binds itself both on civil and on criminal
sides. However, in exceptional cases it can refuse to follow its own previous decisions. Such situations
arise where the earlier decision was inconsistent by inadvertence or otherwise, an earlier decision
that has been overruled by the House of Lords or where the earlier decision was Per Incuriam (i.e)
by oversight - non - consideration of a relevant statute, contrary to the provisions of the statute or non
- consideration of a relevant decision of the House of Lords. As a special rule the Criminal Division
of Court of Appeal sitting as a full court of five judges, instead of the usual three can overrule its
own previous decision rendered against the defendant. But the court is bound by its own decision
rendered in favour of the defendant on a point of substantive law.
Towards the close of the 20th century, there was a strong current of judicial opinion spearheaded
by Lord Denning in favour of general freedom from the courts own past decisions which appear to be
clearly wrong. Nevertheless, Dennings views could not prevail for want of appeal from the House of
Lords. The position maintained by the House of Lords was that the exceptional rules freeing the court
of appeal from the authority of its own previous decisions did not operate to free it from the authority
of the House of Lords. The House of Lords never does anything per incuriam.
The decisions of the Divisional Courts are binding precedents for magistrates courts in other
cases. Also, Divisional Courts bind themselves. However, in criminal cases they exercise the same
freedom as the Court of Appeal.
But the Divisional Court does not bind the Crown Court judges who try cases with juries
because they do not form part of the same judicial hierarchy. The Crown Court is the branch of the
Supreme Court having equal status with the High Court therefore with a Divisional Court of the High
Court.
Single judges of the High Court trying civil cases bind County Courts and the magistrates is in
their jurisdiction but they do not absolutely bind other High Court judges. One High Court judge may
refuse to follow another judge. This may result in conflict of decisions which have to be settled by the
Court of Appeal. Decisions of court inferior to the High Court do not create binding precedents, nor
do they bind themselves.
CIRCUMSTANCES AFFECTING THE WEIGHT OF A DECISION AS A PRECENDENT
There are certain circumstances that increase or diminish the authority of a decision as the
binding precedent. The eminence of the particular judge or judges, reserved judgement, frequently
followed judgments, judgements creating expectations in commercial or proprietary matters are the

9 ENGLISH
important factors that add to the authority of a decision. Among the circumstances that diminish the
authority of a decision are the presence of the strong dissenting judgements; the fact that majority
do not agree in reasoning but only in their result; the failure of counsel to cite an inconsistent case
in argument etc.
The above circumstances are not relevant if the case is absolutely binding on the court before
which it is cited and if it is incapable of being distinguished. But they are of great importance if the
case is not binding, or if on the facts of the later case it is capable of being distinguished or extended
at the pleasure of the court.
A judge is not under any obligation to decide a case in a particular way when he is free. He then
has to chose between notions of justice, convenience, public policy, morality, analogy and so on. He
has to balance too opposing needs in the law; the need for stability and certainty and the need for
changes.
5. WORKING OUT PROBLEMS
I scarce think it is harder to resolve very difficult cases in law, than it is to direct a young
gentleman what course he should take to enable himself so to do.
Sir Roger North, On the Study of the Laws.
[Since much of the value of this chapter must depend upon the concrete illustrations it gives, I
have been forced to assume the readers knowledge of a certain amount of elementary law. He should
postpone reading it until he has made a start with the study of a case-law subject like Constitutional
Law, Criminal Law, Contract or Tort.]
The object of including problems in the examination paper is to discover legal ability. But it is not
easy even for an intelligent candidate in the heat of the examination to show the calm judgment that
a problem requires. It is, therefore, most important to train oneself in problem answering beforehand.
In doing so the student will not merely be preparing in the best possible way for his examination: he
will also be developing his mind as a working instrument and preparing himself for legal practice.
The technique of solving academic problems is almost the same as the technique of writing a legal
opinion upon a practical point. The chief difference is that in practical problems the material facts
often lie buried in a much larger mass of immaterial detail, while the examination problem contains
comparatively little beyond the material facts.
If the student is studying under a tutor or supervisor an adequate number of problems will be
supplied to him. If not, he will have to buy or otherwise get sight of copies of past examination papers.
Perhaps the most important piece of advice with problems, as with all examination questions,
is to read every word of the problem. Almost every word has been put in for a purpose and needs
to be commented upon. In the law of contract, for instance, the word orally or verbally or on the
telephone, in describing the formation of a contract for the sale of land, will invite discussion of
section 40 of the Law of Property Act 1925. Even if you are of opinion that a fact stated in the problem
is immaterial, you should not (in general) pass it by in silence but should express your opinion that
it is immaterial, and, if possible, give reasons. However, there is no need to deal in this way with an
argument that, if raised, would not receive a moments serious consideration from the court.

FACTS STATED IN THE PROBLEM ARE CONCLUSIVE

A common query on the part of the novice, when he reads an examination problem is: How
could such facts ever be proved? The teachers answer is that the student must assume this
proof. (Actually, it is surprising how facts often can be proved in practice that at first sight seem to
be unprovable if the defendant is prepared to contradict them. But in any case the student is not
concerned with this question.)
The student should not assume facts contrary to those stated in the problem for the purpose
of giving the examiner a piece of information for which he did not ask. Also, there is generally no
need to assume facts that go clean beyond those given in the problem: had the examiner wanted a
discussion of such facts he would have inserted them himself. Here is an example of a problem in
criminal law where the examiner clearly wanted to confine the facts to a narrow compass.

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 X and Y, discovering that Z intended to commit a burglary in As house, arranged together to
persuade him to steal therefrom certain articles for them. Have X, Y or Z committed an offence?
The fact that the question is thrown into the perfect tense shows beyond doubt that no other
facts than those stated in the first sentence are to be assumed. The question is: have they on those
facts alone committed an offence? An answer that assumes that X and Y have persuaded Z to steal,
or that Z has stolen, will therefore miss the mark. The correct answer to the question is that X and
Y are guilty of conspiring to incite (or, indeed, of conspiring to commit) burglary or theft. (There are
technical points relating to the charge that need not be considered here.)

OMITTED FACTS
Although supplementary facts should not, in general, be added to a problem, the case is
different with what may be called omitted facts. One of the marks of a competent lawyer is his ability
to know what gaps there are in the facts of his case. The solicitor, for example, when interviewing a
client has to draw from him by questions many legally relevant facts that the client has not thought
of disclosing. The barrister, too, may find that such facts are missing from his brief, and have to
extract them from his instructing solicitor in conference. In order to test the candidates perspicacity
a problem may deliberately omit something that is important. Always look for such omissions and
state how your answer will be affected by the presence or absence of the fact in question. Here is a
simple illustration from the law of tort.
B is As employee. Discuss As liability for an accident caused by Bs negligence in the following
cases:
(i) B, when driving As van, picks up his friend C and gives him a lift to the station. An
accident happens by Bs negligence.
(ii) [etc.]
Two vital facts are omitted from this casually stated problem. First, we are not told who was
injured. We are to understand that owing to Bs negligence an injury was sustained either by C or
by some other user of the highway. But the answer may differ according as the person injured was
C or some other user of the highway. This distinction should therefore be taken, and each of the two
possibilities discussed separately.
Secondly, we are not told whether the station lay on or near Bs proper route, or whether it
was so much off the route that every yard he went was a yard away from his employment and not
to it. This distinction, coupled with the previous one, yields four possible combinations of fact, each
needing discussion.
Another example of an economically worded problem, this time taken from criminal law:
A killed his baby thinking that it was a rabbit. Discuss As criminal responsibility.
Here As mistake is so extraordinary that we are justified in wondering whether he was not insane
at the time of the deed, his insanity being an omitted fact. On the other hand we are not positively
told that he was insane, and so we must also consider the unlikely hypothesis that the mistake was
merely an act of folly. (As a matter of fact, nature imitates not only art but examination questions;
not long ago a man of my acquaintance shot his wife in the leg, in the shrubbery, thinking she was a
rabbit.) Or there is the possibility that A killed his baby in the course of a dream. The answer, then,
again falls into two parts:
(i) on the assumption that A was sane, (ii) on the assumption that he was insane. However, it
is not justifiable to discuss a problem from the angle of insanity if there is no indication of insanity in
the facts of the problem.
One more example, again from criminal law:
A, a mountaineer, roped to his fellows, cut the rope in order to prevent them from dragging the
leader of the party to death. Discuss.
Presumably A is being prosecuted for murder; but the question does not actually say that
As fellows were killed as a result of what he did. We must assume that they were killed, or at least
injured, in order to create a legal problem. Presumably, too, A sets up the defence of necessity; we

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are not expressly told that there was (or that A thought there was) no other way of saving the leaders
life, but this is a fair inference from the question. Finally, the question tells us that As object was to
save the leader; it does not tell us whether his object was also to save himself. In other words it does
not tell us whether he cut the rope above or below himself. If he cut it below himself his object was
presumably to save himself as well as his leader. If he cut it above himself he presumably fell, and
in that case his life was evidently saved by something approaching a miracleat any rate, we know
that he was saved because otherwise he would be beyond the jurisdiction and the question would
have no legal interest. Perhaps this last doubt is irrelevant; it may not matter whether As object was
entirely altruistic or partially self- interested. But on the other hand it may, and so the point ought to
be taken.
Having thus discussed the interpretation of this problem, you would, of course, go on to consider
the law relating to it.
If, as in the last illustration, you decide that a fact can be inferred from what is given, though not
explicitly stated, it is wise to guard yourself by stating expressly that you assume the fact to exist. For
the examiner may not agree that the fact is implied in the question; but he will not mind about this if
he sees that your assumption is not the result of carelessness but is your considered interpretation
of the question. If you are in any doubt whether a fact is implied you should play safe and take the
problem each way, that is, first on the assumption that the fact exists and then on the assumption
that it does not exist.
Even if all the relevant facts (in one sense of the word facts) are stated, what is legally called
a question of fact may still arise on the probleme.g. a question whether the defendant has, on
the facts, been negligent, or whether a lapse of time is reasonable. In a real case these would be
questions for the jury (if the case were tried with a jury), although the judge might withdraw the issue
from the jury if satisfied that there was no evidence of negligence or unreasonableness. On such a
problem, although you may venture an opinion as to the proper verdict on the point, and argue your
opinion to the best of your ability, you should not, in the last resort, usurp the function of the jury (or
of the judge when there is no jury). The most you should say is that on these facts there is evidence
of negligence (or unreasonableness) , and that a finding to that effect would clearly be right (or
conversely). If the point is at all doubtful, take the facts each way and state the legal result following
on each possible finding. The following problem in the law of contract illustrates the importance of
this.
A telegraphed an offer to sell his library to B for 1,000. B telegraphed in reply: Will give 900.
B. A day elapsed in which nothing further occurred. Then at 9 a.m. A handed to the post office a
telegram to B: You can have the library for 900. A. At exactly the same moment B handed to the
post office a telegram to A: Cancel my first telegram. I will take the library for 1,000. B. A received
Bs telegram at 9.30 a.m. B received As telegram at 9.40 a.m. What contract, if any, exists?
Everything in this problem turns on the unobtrusive sentence: A day elapsed. ... The question
is whether this was an unreasonable delay on the part of A in replying to Bs counter-offer of 900.
If it was unreasonable, the offer (i.e. Bs counter-offer) has lapsed, and there is no contract. If it
was not unreasonable, the offer was still alive when A handed in at the post office his telegram of
acceptance, and the contract was therefore completed at that moment. Now it is not possible to give
a confident answer to the question whether the delay was unreasonable. The only rule of law is that
an offer by telegram raises a presumption that a speedy reply is expected (Quener- duaine v. Cole ),
and therefore the lapse of a whole day would normally be too long. But it is to be noticed that in our
problem the telegraphing business was started not by B but by A. B may have sent his counter-offer
by telegram simply out of politeness, and not because he was in any hurry. It is not certain, therefore,
whether the rule in Quenerduaine v. Cole would apply, though on the whole I think it would, because
I do not think that a court would speculate on the reasons that moved B to telegraph rather than write.
There is more to say about this problem, but the essence of it is this question of fact. (Although
telegrams are now little used in business matters, the question could arise in connection With
international cables.)
It may be added that where facts are given from which the negligence or unreasonableness (or
absence of it) may be inferred, you should argue from these facts in much the same way as if you

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were addressing a jury. But, as I have said, your opinion on this should not (except in a completely
unarguable case) deter you from taking the problem each way.

TWO POINTS OF TECHNIQUE

Some examiners conclude the statement of facts in a problem with the direction to discuss
it: others adopt the mannerism of requesting you to advise one of the parties. This second form of
question does not mean that you are expected to bias your answer in favour of the particular party; the
legal advice you give in your answer will generally be the same whichever party you are supposed to
be advising. However, there may be some practical advice to be given to the party you are supposed
to be advising, and you should certainly comply with the examiners direction as far as you are able.
By the way, do not use the second person in your answermake the answer impersonal, thus you
should say X is liable, not You are liable.
If the examiner has exercised his fancy by using fictitious names, like Tomkins, you are perfectly
entitled to abbreviate them to the initial letterunless, of course, two parties in the same problem
have the same initial letter.
RULES AND AUTHORITIES
Next, a few remarks upon the giving of reasons and authorities for an opinion. A bald answer to
a problem, even though correct, will not earn many (perhaps not any) marks, because the examiner
cannot tell whether the student has knowledge or is just guessing. Reasons and authorities should,
therefore, always be given. Pretend to yourself that the examiner will disagree with your point of view,
and set yourself to win him over by argument.
One of the most important of a lawyers accomplishments is the ability to resolve facts into
their legal categories. The student should therefore take pains to argue in terms of legal rules and
concepts. It is a common fault, particularly in criminal law, to give the impression that the answer is
based wholly upon common sense and a few gleanings from the Sunday newspapers. The following
illustration of a question and answer in criminal law may show this.
Q.A fire-engine driven at full speed to a lire knocks down and kills somebody. Discuss the
criminal responsibility of the driver.
Students answer.If the driver has been careful he is not responsible. (1) It is a well-known
custom that as soon as the siren of a fire-engine is heard, other vehicles should pull up at the side
of the road, in order to afford free passage. It is therefore safe for a fire-engine driver to proceed at a
higher speed than would be possible for other drivers. Further (2) it is reasonable for a fire-engine to
proceed quickly to a fire, for life and property may be in danger. But I do not put much weight on this
second ground, for great as may be the importance of putting out a fire, it is not sufficiently great to
justify the driver in leaving a trail of destruction behind him.
Upon reading this answer the examiner may well comment: A commendable effort by an
intelligent student who has not read the textbook and knows no criminal law. The answer, to be
complete, should have stated the crimes for which the driver may be prosecuted (manslaughter,
causing death by reckless driving, or, in the magistrates court, driving without due care and attention);
it should have stated the requirements of each crime, so far as relevant; and it should have pointed
out that the burden of proving these requirements beyond reasonable doubt lies on the prosecution.
It should also have discussed the possible defence of necessity, referring to it expressly by that
name, not vaguely as the last two sentences of the answer do. Put into this legal setting the answer
would have been first-class.
It is bad style to begin an answer to a problem by citing a string of cases. Begin by addressing
yourself to the problem. If the law is clear, first state the law and then give the authorities for your
statement. If the law is not clear, first pose the legal question and then set out the authorities bearing
on it.
When citing cases, the mere giving of the name is of little use. What is wanted is not only the
name but a statement of the legal points involved in the decision, and perhaps also a consideration
of its standing - i.e. whether it has been approved or criticised. This is so even though the case

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directly covers the problem. Still more is it so when the case is not on all fours with the problem. New
points often occur in the law, and the lawyer in advising his client must, in effect, predict the probable
decision of the court. So also in examinations: a problem is often set upon some point of law that
is not covered exactly by authority. No candidate who fails to see this point can get a first class on
that question. The late Dr. Coulton, in his autobiography, told a tale of a great mathematical teacher
at Cambridge who met a candidate in the College court just after the Tripos. That was a d good
answer of yours, A, to the sixteenth question. Yes, sir, but it was a be good question, wasnt it? In
order to create this relationship of mutual esteem between yourself and your examiner, pay him the
compliment of searching for the point of his problem. Ask yourself what is the point it raises that is
not precisely covered by authority.
Failure to follow this common-sense rule is a frequent error of the tyro. Take again, for instance,
the mountaineering problem already given (p.115). Most raw beginners think that they have
adequately solved this problem if they quote R. v. Dudley and Stephens and declare that necessity
is no defence. But if they paused to reflect, they would discover several differences between R. v.
Dudley and Stephens and the facts of their problem. It cannot be asserted with confidence that every,
or even any, of these distinctions would find favour with a judge, but at any rate they are possible
distinctions which would certainly be made much of by an experienced counsel for the defence. They
are as follows:
(1) In Dudley and Stephens there was a choice as to who was to die. It will be remembered
that Dudley and Stephens was the case where three men and a cabin-boy were compelled to take
to an open boat after the wreck of their yacht Mignonette. On the twentieth day after the wreck two
of the men killed the boy for food; four days later they were rescued. The two men were convicted of
murder. It may be said that these facts are materially different from those in our problem, for in our
problem there seems to be no choice as to who is to die: it is simply (one supposes) a question of
some or all. It is true that in Dudley and Stephens the jury found that the boy was in a much weaker
condition than the others and was likely to have died before them. But the jury did not find that the
boy might not have been revived had one of the others been killed to provide food for him. So long as
the boy was alive and had a chance of survival he was as much entitled to retain that chance as the
others; whereas in our problem it may be that the men who are cut away have no chance of survival
at all.
(2) It is not certain on the facts of Dudley and Stephens that the two defendants would
have died had they not killed the boy. All that the jury found was that had they not done so they would
probably not have survived to be rescued. It may be that on the facts of our problem the death of
the leader is certain, hot merely probable, if the rope is not cut. But it must be admitted that this is
not a very strong distinction, for in Dudley and Stephens the jury also found that at the time of the
act there was no sail in sight, nor any reasonable prospect of relief; and it would seem that if the
law recognises necessity as a defence it should proceed upon the facts as they appeared to the
defendant at the time.
(3) In Dudley and Stephens the cabin-boy was not by his own conduct, voluntary or
involuntary, bringing the others nearer to death. In our problem the men whom the defendant
presumably sends to death are themselves dragging the leader to what will otherwise be his death.
It is true that they cannot help it; but does that matter? If a lunatic attacks me, I am surely entitled
to defend myself, even though he is not criminally responsible for his conduct. Also, I am entitled to
defend another. Is not our problem a case of defending another?
Another illustration, this time from the law of contract, is as follows:
A writes to B offering to sell him his horse Phineas for 100. B posts a letter accepting, but
he misdirects it and in consequence it is a week late in being delivered to A. Meanwhile A has sold
Phineas to C. Discuss.
The ordinary beginner answers this problem simply by quoting Household Fire Insurance Co.
v. Grant,6 or some other authority to the same effect, and saying that by our law an offeror can be
landed with a contract even though he never receives an acceptance, since the contract is held to be
complete on the posting of the letter of acceptance. But the whole point of the question is whether
Grants case applies to a misdirected letter of acceptance. I cannot help thinking that the booby who

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so completely misses the point of the question is often actuated by some hidden (and mistaken)
motive of self-preservation. He really scents the difficulty but thinks it too hard for discussion and so
conveniently pretends that he has not seen it. If this ostrich only knew, he would gain more marks
by posing the legal difficulty, even though he suggested no solution, than he ever could by blinking
it completely. If, in addition to posing the difficulty, he could say that there is no authority in point
and that Grants case is distinguishable, and could also suggest some reasons why on these facts it
ought to be distinguished, he would get a first class on that question instead of a very doubtful pass.
One of the techniques of argument is to take an extreme case. I took an extreme case, was
Alices tearful reply. My excellent preceptress always used to say, When in doubt take an extreme
case. And I was in doubt. The technique need not always result in tears. Let us make our problem
into a more extreme case. A weeks delay in a letter does not sound inordinately long, but to isolate
the question of principle let us make it longer. Suppose that the misdirected letter of acceptance had
taken two months on its way, or had never arrived. Had it been properly directed there would have
been a good contract and A would have been liable in damages to B for not delivering the horse. That
is a harsh rule from As point of view (I think a stupid rule, and I hope that if you are the reader of this
book who is destined to become Lord Chancellor you will get it changed), but it would be even worse
if the same rule were applied where B has carelessly misdirected his letter, resulting in gross delay
or loss. The rule in Grants case cannot possibly apply to such circumstances. If this be conceded,
the next question is . . . what? Close your eyes and think deeply. If you have done that, compare your
answer with mine. The next question is whether Bs letter is to be regarded as an acceptance from
the time when A receives it. If that is the rule, then there will be a good contract if the lapse of a week
before acceptance is not thought to be an unreasonable time; and, on these assumptions, A not
having revoked his offer before acceptance is liable to B for breach of contract if he does not deliver
the horse. If the lapse of time is held to be unreasonable, there is no contract.
But an alternative rule is possible. This is that Bs letter is a nullity even if it arrives on time.
When A posts the offer to B he impliedly authorises B to conclude the contract by posting a letter of
acceptance, but only on the assumption that the acceptance is properly addressed; if it is not, there
is no acceptance even though the Post Office cleverly delivers it on time. I do not myself think that
this alternative is correct, but it would be worth putting forward in court.
The general lesson from this is in all legal problems use your brain and have the courage to
argue.
If a case falls midway between two authorities, this may indicate that there is a fundamental
conflict of principle between the two authorities, and that it is necessary to hold that one of them
was wrongly decided. Alternatively, you may come to the conclusion that there is a real distinction
between the authorities, and in this event the problem must be looked at from the point of view of
general legal principle or public policy to decide whether it should be brought under the one head or
the other. The situation was characterised by Paley, an eighteenth-century divine, as the competition
of opposite analogies.
To sum up, when the problem is possibly distinguishable from the authority or authorities
nearest in point, a careful analysis of the possible distinction or distinctions should always be given.
This is particularly important if the authority in question has been doubted by judges or criticised by
legal writers. It may be that the student does not feel competent to discuss the various distinctions,
but even so the existence of the possible distinctions should be pointed out in the answer. Moreover,
distinctions should be pointed out even though in the opinion of the student they are not material, if
it could conceivably be argued that they are material: of course the student should express his own
opinion that they are not material.
If there is a possibility of the authority in question being overruled, it is more important than
ever to mention its status in the judicial hierarchy, as well as stating any objections that have been
urged against it.
When you have a number of cases to quote, it is generally best to quote the nearest authority
first and to allot it the most space; the other cases can be brought more casually into the discussion,
as you have time. When you have read a case in the reports or in a case book, do your best to convey

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this fact by referring to some apposite passage in the judgment or some other relevant detail of the
report which will indicate that you have not merely relied on a textbook.
If you know that there is no case bearing directly upon the problem, say so. The fact that the
problem is not covered by authority is in itself a valuable piece of information. If the authority for a
proposition is a statute, say this also, even though you have forgotten the name of the statute.

DOUBT
Where the law is doubtful, a categorical statement that the rule is one way or the other will earn
few, if any, marks. This is particularly important in answering problems. If the answer to the problem is
doubtful, say so, and then suggest what the answer ought to be. It is a mistake to simulate confidence
where you have no certain knowledge.
After discussing a mooty problem, try to avoid the weak conclusion that A is perhaps liable.
Your conclusion may be that if the facts are so-and-so, he is liable; if they are such and such, he is
not. Or, if the court follows Smith v. Jones, then A will be liable, but if it follows Robinson v. Edwards,
which is to be preferred for reasons previously given, then A will not be liable.
A point can often be scored by demonstrating that the law applicable to a problem may depend
upon the court before which the case comes. For example, there are some decisions of the Court of
Appeal, like that in Musgrove v. Pandelis, that would probably be reluctantly followed by the Court
of Appeal but would almost certainly be overruled by the House of Lords. Consequently, the law on
the subject of Musgrove v. Pandelis (strict liability for petrol in the tank of a car) may depend upon the
number of appeals that the client is prepared to take.

PROBLEMS ON STATUTES
A problem may be set on a statute as well as on a case. You must then recall the words of the
statute as best you can, apply them to the problem and, as in all problems, look for the catch. Here
is an illustration from constitutional law:
Aikenhead J., a judge of the High Court, is convicted of driving under the influence of drink.
Can he be dismissed from his judicial office, and if so by whom?
The attitude of students towards a problem like this varies. Some, though knowing the terms of
the Act of Settlement, or of the similar statute now in force, steer clear of the problem because they
are afraid of it. Others write down simply:
By the Act of Settlement 1701, Judges Commissions [shall] be made quamdiu se bene
gesserint, but upon the Address of both Houses of Parliament it may be lawful to remove them.10
Aikenhead J. can be removed under this provision.
This is not a bad answer and would win a pass. Had the candidate added that dismissal was
actually effected by the Crown he might have risen to a second. To obtain a first class, one needs to
do a little thinking. Aikenhead J. was appointed during good behaviour. He has been convicted of
crime, and we shall assume for the moment that he has not behaved himself within the meaning of
these words. Clearly he can be dismissed if both Houses present an Address to that effect. But can he
not, in this case, be dismissed even without an Address? What the examiner is evidently after is the
correct interpretation of the words of the Act of Settlement, or rather of the Act now in force replacing
the Act of Settlement. Do these words mean that judges can be dismissed by the Crown only upon
an Address of both Houses (with a direction to the Houses that they are not to present an Address
unless the judge has misbehaved himself)? Or do the words mean that judges can be dismissed
by the Crown either if they have not behaved themselves (e.g. been convicted of crime) or on an
Address of both Houses? In other words, are the Houses the sole judges of the correctness of the
judges behaviour, or not? The second interpretation can be arrived at by reading the provision in two
parts: (1) judges commissions are to be made for as long as they behave themselves, implying that if
they misbehave they may be dismissed by the Crown; (2) they may be removed by the Crown on an
Address of both Houses, even though they have not misbehaved themselves. The first interpretation
can be arrived at by reading the provision as a whole (judges are appointed during good behaviour,
and the two Houses are the sole judges of bad behaviour).

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 A good lawyer, who reads carefully, ponders meanings and is prepared to discuss difficulties,
might be able to see this point in the problem even though he had read nothing upon it. When one
studies the literature one finds that, surprising as it may seem, the weight of legal opinion is in favour
of the second view; and it is not even clear what is the proper legal means that the Crown should
use to establish misbehaviour before dismissing a judge. A, further question that arises (and that
might be perceived on the face of this problem) is whether dismissal by the Crown can only be for
misbehaviour in office or whether it can be for an offence not related to judicial office or affecting
judicial ability. If the latter, can it be for any offence or only for a serious one, and is the offence in
the problem sufficiently serious? In practice the Crown would now be unlikely to dismiss a judge
without an Address, and it would be for the two Houses to decide whether the misbehaviour justified
dismissal.
This example shows how it is possible to display the qualities of a good lawyer without knowing
much law. Here is another problem in constitutional law to reinforce the point.
A statute is passed giving power to make Orders in Council for the public safety and defence
of the realm. Would it be a valid objection to an Order made under this statute that it imposes a tax?
The type of answer to be expected from the Painful Plodder would be as follows:
A statute similar in terms to that in the problem was DORA, passed in the First World War.
By Regulations under this statute the Food Controller was empowered to regulate dealings in any
article. Under these powers the Food Controller ordered that no milk should be sold within certain
counties except under licence. In Att.-Gen. v. Wilts United Dairies the question arose whether the
Food Controller was entitled to charge for the granting of a licence under this Order. It was held by
the H.L. that he was not. This case was approved by the Court of Appeal in Congreve v. Home Office.
* The answer to the question is therefore Yes.
This answer exhibits a common defect: it cites a case without explaining the legal principle
involved in it, i.e. the legal ground on which the case was decided. Plodder says that in Att.-Gen. v.
Wilts U.D. it was held that the Food Controller could not charge for the licence. This is true, but we
need to know why. The facts of the case contained three elements: (1) DORA, giving power to make
Regulations for the public safety and defence of the realm; (2) the daughter Regulations made under
DORA, allowing the Food Controller to regulate dealings in any article; and (3) the Food Controllers
Order (granddaughter of DORA) that no milk should be sold without licence, coupled with his grant
of a licence on condition of receiving payment. Now the decision was that the money promised by the
dairy company could not be recovered by the Crown, for the reason that (a) any prerogative power
to tax had been taken away by the Bill of Rights 1689, and that (b) as for the statutory powers of
DORA, the Regulations under which the Food Controller was acting did not on their wording enable
him to impose a tax. The Regulations enabled him to regulate dealings in an article, but regulation of
dealings is one thing, taxing another. Order (3) was therefore ultra vires15 the Regulations (2). Had
the candidate understood these reasons he would at once have seen that the decision in Att.-Gen. v.
Wilts U.D. did not conclude the question he was asked. All that the case decided was that the Food
Controller was acting outside the Regulations since the Regulations did not give the power to tax.
The question whether a Regulation that expressly gave the power to tax would itself be ultra vires
DORA was not decided.
Now here is the answer of a gentleman who may be called the Discerning Dilettante. He knows
nothing about the Bill of Rights or the decision in Att.-Gen. v. Wilts U.D., but he addresses himself to
the question and uses his intelligence.
It may be that the Order is intra vires16 the statute. The statute gives power to make Orders
for the public safety and defence of the realm: in other words for the waging of war. Obviously you
cannot wage war without taxing. Money, it is said, makes the sinews of war.
To this it may be objected that although it is necessary to tax in order to wage war, it is not
necessary for the Executive to tax without a statute. Parliament is still in being; why not leave taxation
to Parliament?
I think that a valid reply to this objection would be that it is a political objection to the passing of
a statute worded in this wide way, not a legal objection to the validity of the Order, if a statute worded

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so widely has been passed. If the objection were legally valid it could be used to defeat almost all
Orders made under this statute, which would be absurd. Suppose that under this defence statute
the Government makes an Order requisitioning land for anti-aircraft missile sites. It would obviously
be no valid objection to such an Order that the Order is not necessary for public safety because
Parliament could have passed it. The object of the defence statute is to delegate to the Executive
what in peacetime would be the function of Parliament. Surely the question whether Parliament could
have passed the particular legislation is logically irrelevant to the question whether the legislation is
for the public safety and defence of the realm.
At the same time I do not suppose that a court would take the view that I am here expressing.
The English tradition that it is for Parliament to do the taxing is so deep-seated that the court would
probably assert a legal presumption, as a matter of statute interpretation, that powers of taxation
are not included in a statutory delegation of power unless clear words are used, and that a general
formula like that in the statute stated in the question is not sufficient.
Or, as Atkin L.J. (as he then was) put it in Att.-Gen. v. Wilts U.D. in the Court of Appeal, in view
of the historic struggle of the legislature to secure for itself the sole power to levy money upon the
subject, its complete success in that struggle, the elaborate means adopted by the representative
House to control the amount, the conditions and the purpose of the levy, the circumstances would
be remarkable indeed whch would induce the court to believe that the legislature had sacrificed all
the well-known checks and precautions, and, not in express words, but merely by implication, had
entrusted a Minister of the Crown with undefined and unlimited powers of imposing charges upon
the subject for purposes connected with his department. The point is reinforced by Congreves case
(above), where the Court of Appeal assumed that Att.-Gen. v. Wilts U.D. was an authority on the
application of the Bill of Rights.
In thus unfavourably contrasting Plodders answer with Dilettantes, I am not, of course,
suggesting that book work is useless. As I have already said, book knowledge should always be
used to provide a starting-point. Dilettantes answer would have been better if he could have shown
that the Wilts case, though apparently relevant, was not conclusive on the question. The point is that
although book knowledge is in itself a good thing, it is useless and worse than useless if it deflects
your attention from the question that you are being asked.

RELEVANCY
When answering a problem, never preface your answer with a general disquisition on the
department of law relating to the problem. Start straight away to answer the problem. Problems are
set chiefly to test your ability to apply the law you know, and the examiner will speedily tire of reading
an account of the law that is not brought into direct relation to the problem. Where the problem
contains several persons, say A and B as possible plaintiffs and C and D as possible defendants,
the best course is to begin your answer by writing down the heading: A. v. C. When you have dealt
with this, write (say) B.C, referring back to your previous answer for any points that do not need to be
repeated. Then you will deal with Av.D and B v. D.
The advice to plunge into the specific problem, on the model of counsels opinion, applies even
where the problem is divided into several parts, all of which are on the same general department
of law. For instance, suppose that in criminal law a question consists of a chain of short problems
on insanity numbered (i), (ii), (iii), etc. In my opinion it is not advisable to preface the answer with
a discussion of McNaghtens case,18 even though McNaghtens case is relevant to each of the
numbered problems. The examiner is impatient to see you answering the problems, and he may
even ignore altogether anything you write before writing down figure (i). You should therefore write
the figure (i) at the very beginning of your answer, and begin to tackle problem (i). In the course of
doing so you can, of course, set out and discuss McNaghtens case. When you come to (ii), (iii) and
the rest, it will be easy enough to put a back reference, if necessary, to your previous discussion of
the case.
Although a problem is not an invitation to launch out into a general disquisition on the department
of law on which the problem is set, it is important in working out the problem to state all the rules
of law that are really relevant to it. A frequent blemish upon an otherwise good answer is that the

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relevant rule of law is not expressly stated but is left to be implied from the candidates conclusion.
Much the better practice is first to state the rule of law and then to apply it to the facts. Do not write:
D is liable on the contract because he did not communicate his revocation of his offer. It is better
style to write: An Uncommunicated revocation of an offer is ineffective. Here Ds revocation did not
come to the notice of the offeree, so the offerees acceptance of the offer was valid, and D is liable
on the contract. Here is another illustration of the point, from the law of tort.
Q.A, finding B, a stranger of rough appearance, in his shed, locks the door in order to keep
B there while he fetches the police. Can B sue A?
Students answer.B can sue A for false imprisonment because no arrestable offence has
been committed by anyone.
The answer reveals some knowledge of the law, and would be correct in many cases. But the
law is not fully stated (not even the important provision in the Criminal Law Act), and some facts can
be imagined that would make the arrest lawful. To earn marks you must state the law and imagine
variations of fact. Here is a model:
There is no power to arrest for trespass. But under the Criminal Law Act 1967 19 anyone can
arrest on reasonable suspicion of an arrestable offence, save that where the arrest is by a private
person (as here) he must show either (1) that the arrested person was in fact in the act of committing
the offence for which he was arrested, or he reasonably suspected the arrested person to be in the
act of committing it, or (2) the arrested person had in fact committed the offence, or he reasonably
suspected the arrested person of having committed the offence and (in this last case) the offence
had in fact been committed by someone. An arrestable offence is defined as one for which a person
may by virtue of any statute be sentenced to imprisonment for at least five years, or an attempt to
commit such an offence. Theft comes within the definition.
A will have the statutory power of arrest if B was in fact attempting to steal something in the
shed, or if A reasonably suspected him of being in the act of attempting to steal something in the
shed. As defence on the latter ground would of course be assisted if there was something in the shed
worth stealing. If there was not, A might still believe that B was looking for something to steal, which
could constitute an attempt to steal under the Criminal Attempts Act 1981 notwithstanding that there
was nothing there that B would have stolen.
Suppose, now, that the shed was clearly bare of everything and As suspicions did not relate
to theft in the shed. A might still suspect B of having stolen something from him elsewhere (e.g. if
he has just discovered that a bunch of keys is missing from the hall table). The arrest could then be
lawful if B had in fact stolen the thing in question or if A reasonably suspected B of having stolen it,
provided (in the last case) that the thing had in fact been stolen by someone. If it turned out that Mrs A
had gathered up the keys, the arrest would be unlawful. This is obviously a trap for private arresters.
Even if A has the power of arrest, he must ordinarily inform the person arrested that he is being
arrested and the reason for it, i.e. the act for which arrest is made: Christie v. Leachinsky 20 [facts].
So A must shout to tell B that he is under arrest and why.
Not one candidate in a hundred gives an answer comparable with this; students regularly fail to
consider what it is exactly that A suspects. The Vagrancy Act 1824 section 4 could also be referred
to, but those taking an examination in the law of tort would not be expected to know it.
The question just considered asked: Can B sue A? This formula, very common in law
examinations, means Can B sue A successfully! Examinees sometimes answer it by saying: B can
sue A but he will fail. This displays the writers common sense but also his lack of knowledge of legal
phraseology. It is true that there is virtually ho restriction upon the bringing of actions: for instance, I
can at this moment sue the Prime Minister for assaultthough I shall fail in the action. But when a
lawyer asserts that A can sue B, what he means is that A can sue B, successfully; if he meant his
words to be taken literally, they would not have been worth the uttering.
For much the same reason, you should never write a sentence like: B can argue that...but
the argument will fail, or B has committed such-and-such a crime, but he has a good defence. The

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proper way to put the last sentence would be to say: If B is charged with such-and-such a crime, he
will have a good defence.
When a problem is based on a rulee.g. the rule in Derry v. Peek21 or Rylands v. Fletcher22
it is usually advisable to state the whole rule in a sentence or two, even though some parts of the
rule are not material to the problem. No further details should be given of parts of the rule that are
not material.
Where the problem turns on an exception to a rule (e.g. an exception to the rule in Rylands v.
Fletcher), there is usually no need to state any exceptions other than the one that is relevant.

QUESTIONS DIVIDED INTO PARTS

Questions are frequently divided into two or more parts, and this division raises difficulties of
its own for the inexpert candidate.
Sometimes the problem begins with a common opening part before branching out into its
subdivisions. The following is an example:
A writes to B offering to sell him his horse Phineas for 100.
(i) B posts a letter accepting, but he misdirects it and in consequence it is a week late in
being delivered to A. Meanwhile A has sold Phineas to C.
(ii) B, after posting a letter of acceptance to A, sends A a telegram cancelling my letter now
in the post. The telegram is delivered to A before Bs letter.
Discuss.
It should be obvious that in this type of problem (i) and (ii) are alternative possibilities, to be
dealt with separately; (ii) is not meant to follow upon and include the facts of (i). Yet I have known
students to suppose that this is all a single problem, to be disposed of in a single breath.
Another mistake that one student made with this particular problem was to suppose that the
opening sentence was itself a question, inviting a general disquisition on the legal nature of an offer.
This, of course, is not so.
A different type of two-part problem is one in which the second part commences: Would it
make any difference to your answer if . . . ? This means that the second part of the question is the
same as the first part, except for the variation expressly stated. An illustration is as follows:
(i) A is firing with an air gun in his garden at a target on a tree. The shot glances off the tree
and hits As gardener, B. Can B sue A?
(ii) Would your answer be different if the shot had been fired by As son, C?
Most students assume that (ii) is a question as to the liability of C. Clearly on its wording the
question is the same as in (i), namely, as to the liability of A.
Sometimes a problem is so worded as to involve two successive questions, but the second
question logically arises only if the first is answered in a certain way. Suppose that the student has
answered the first question in the other way; is he now to answer the second? The answer is Yes.
For the purpose of answering the second part of the question he should state that he is assuming
that he is wrong in his answer to the first. An example from the law of contract:
Pickwick, who manufactures cricket bats, affixed a signboard on the boundary of the field
belonging to the Dingley Dell Cricket Club, stating that if any batsman hit the signboard with a batted
ball during the course of a match Pickwick would pay him the sum of 5. Podder hit the board whilst
batting in a match between Dingley Dell and Muggleton, and afterwards orally requested Pickwick
to pay 5 to Mrs Jingle, to whom Podder was indebted for board and lodging. Mrs Jingle demands
payment of the 5 from Pickwick but is refused. Discuss the rights of the parties.
This problem involves two issues: (i) whether there is a contract between Pickwick and Podder,
resulting in a debt owed by Pickwick to Podder; (ii) whether Podder has validly assigned the debt to
Mrs Jingle. Issue (i) turns on the difficult distinction between consideration and the performance of a
condition precedent to a gratuitous promise, or if you like on the equally difficult question of intent to
contract. It may well happen that the student in considering this comes to the conclusion that there is

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no contract between Pickwick and Podder. If this view is correct, issue (ii) does not really arise. All the
same, it should be dealt with. It may be that the examiner disagrees with the candidate in his answer
to (i), and although that may not affect the candidates marks on (i), the candidate will lose the marks
on (ii) if he does not deal with it. Even if the examiner agrees with the candidate in his answer to (i),
the examiner must have meant (ii)to be dealt with, or else he would not have troubled to put it in.
A fourth kind of two-part question consists of a book-work question followed by a problem. The
difficulty here is often that it is not clear whether the problem is meant to bear a relation to the book-
work question or not. No universal rule can be stated, because examiners differ in their practice,
but nearly always there is meant to be a connection, at least if the two parts of the question are not
subdivided by numbers or letters. I am conscious that this may not sound very helpful advice. But
some examinees fail to search for a connection between the book-work question and the rider, thus
missing the point intended by the examiner, while other examinees, finding no connection between
the two (in fact there being none), avoid the question altogether. The student must be left to steer his
own course between this Scylla and Charybdis.

THE OVERLAPPING OF SUBJECTS

In a problem on criminal law, make no statement as to the law of tort, unless of course the
question whether a crime has been committed involves a question of tort. Similarly, in a problem on
tort make no statement as to the law of crime, unless again the existence of a tort depends on the
law of crime.
This mutual exclusiveness of subjects does not hold between tort and contract. Where a
problem is set in a tort paper or in a contract paper involving both a possible tort and a possible
breach of contract, both aspects of the matter should be discussed. This is because a tort and a
breach of contract can be proceeded upon in the same action, whereas the distinction between
criminal and civil law is more deeply marked. The overlap between tort and contract should be looked
for particularly in problems involving the negligent carriage of passengers by rail, road or sea, and
the sale (or repair) of goods or houses that turn out not to be of merchantable quality or reasonably
fit and that cause physical injury to the buyer (or owner).
In problems on tort and criminal law the student is expected to enumerate and discuss all
the possible torts or crimes that may have been committed on the facts given in the problem, and
also all the possible defences that may be raised. In this respect the answering of an examination
question differs somewhat from the giving of an opinion in legal practice. A practitioner will not argue
legal points unnecessarily. He will not, for example, argue the question whether there exists a tort
of offensive invasion of privacy, if his client has a clear remedy in defamation. But an examiner will
usually be disappointed if, in an appropriate problem, both points are not discussed. In other words,
if a point is relevant, discuss it, even though it be not necessary.

THE ANSWERING OF PROBLEMS IN CRIMINAL LAW

Always consider all the possible crimes that have been committed, by all possible persons,
and all the possible defences open to them. By possible I mean seemingly possible to an ignorant
person. If you consider that such-and-such crime has not been committed, or that such-and-such
defence is not available (though an ignorant person might think it is), do not pass it by in silence
but state your opinion expressly. You should also give the reason for your opinion as shortly as
the importance of the point seems to require. The reason for this advice is that quite possibly the
question was set as a trap, and if you refrain from commenting upon the trap the examiner may think
that you have avoided it by good luck rather than good management.
Never come to the defences until you have stated the crime for which the defendant is in your
opinion being charged. Start with the responsibility of the perpetrator (principal), taking accessories
afterwards.
If you think that the problem leaves open some question of fact, state the law according as the
fact is present or absent.
If the outcome is clear you can say so - e.g. D is guilty of murder. But if the application of law

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to fact is not clear, you need not state a definite opinion or even submit that the position is so-and-
so. For example, the question may state that the defendant shot at a burglar when a bystander was
standing dangerously close, and hit the bystander. It is not for you to say that the defendant foresaw
the possibility of hitting the bystander: that is for the jury. Never assume that the defendant had a
particular state of mind unless the question states that he had it. Instead, consider whether there
is any evidence for the jury (sufficient to require the judge to leave the case to the jury); if there is,
explain how the judge would direct the jury, and state whether a verdict of guilty would be likely to
be upheld or. upset on appeal. It is at these points in a jury trial that the legal Opinion is important: a
lawyer is not directly concerned with the work of the jury.
Often the problem will be found to fall short of one of the major crimes. In such a case it will very
frequently involve a lesser or lesser-known crime. The student should note these lesser or narrower
crimes very carefully when they are mentioned in his book. Here is a short list of them.

An Act that falls short of : may be:

Manslaughter Assault and battery (O.A.P.A. 1861. s. 47).
Offences under Road Traffic Act 1972 as amended:
section 1. causing death by reckless driving;
section 2. reckless driving;
section 3. careless driving;
section 5. driving under the influence.
Excessive speed (Road Traffic Regulation Act 1967,
s. 78A, inserted by Act of 1972, s. 203).
Murder Abortion (O.A.P.A. 1861 s. 58).
Child destruction (Act of 1929).
Concealment of birth (O.A.P.A. 1861 s. 60).
Infanticide (Act of 1938).
Manslaughter (O.A.P.A. 1861 s. 5).
Manslaughter on account of diminished
responsibility (Homicide Act 1957 s. 2).
Attempted murder (Criminal Assault and battery.
Law Act 1981, ss 1,4) Wounding, etc.. with intent (O.A.P.A. 1861 s. 18 as amended).
Malicious poisoning resulting in danger to life, etc. (O.A.P.A. 1861
s. 23).
Malicious wounding, etc. (O.A.P.A. 1861 s. 20).
Occasioning actual bodily harm by an assault (O.A.P.A. 1861
s. 47).
Malicious poisoning with intent to injure, etc. (O.A.P.A. 1861
s. 24).
Robbery (Theft Act 1968 s. 8).
Offence under Prevention of Crime Act 1953 or Firearms Act 1968.
Possessing an article with intent to commit an indictable offence
against the person (O.A.P.A. 1861 s. 64, as amended by C.L.A.
1967 Sched. 2).
Criminal damage Cruelty to animals (Protection of Animals Act 1911).
(Criminal damage Act 1971) Theft (Theft Act 1968).
Using threat (Criminal Damage Act 1971 s. 2).
Having custody of article with intent (ibid. s. 3).

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Theft Taking articles on public display (Theft Act 1968 s. 11).
(Theft Act 1968 s. 1) Taking motor-vehicle or other conveyance (Theft Act 1968
s. 12).
Obtaining property by deception (Theft Act
1968 s. 15).
Obtaining services by deception (Theft Act 1978 s. 1).
Making off without paying (Theft Act 1978 s. 3).
False accounting (Theft Act 1968 s. 17).
Corruption (Prevention of Corruption Act 1906 as amended).
Being found on private premises for an unlawful purpose (Vagrancy
Act 1824 s., 4).
Going equipped for stealing etc. (Theft Act 1968 s. 25).
Robbery Assault, and battery: aggravated assaults; carrying weapons.
(Theft Act 1968 s. 8) Blackmail (Theft Act 1968 s. 21).
Threatening letters (O.A.P.A. 1861 s. 16).
Obtaining Property by Obtaining services by deception (Theft Act 1978 s. 1).
deception (Theft Act Deception in relation to liabilities (Theft Act 1978 s. 2).
1968 ss. 15, 16) False accounting (Theft Act 1968 s. 17).
Offences under Trade Descriptions Act 1968.
Obtaining making of valuable security (Theft Act 1968 s. 20(2)).
False document to mislead principal (Prevention of Corruption Act
1906 s. 1(1)).
Forgery Coining Theft; obtaining property by deception.
(Forgery and Counterfeiting False trade description (Trade Descriptions Act 1 1968 s. I).
Act 1981)
When several crimes appear to emerge from the facts of a problem, it is best to start your
answer with the gravest crime that seems clearly to have been committed. For it would be absurd to
open your answer by considering some summary offence of which the defendant is guilty, and then to
wind up with the conclusion that he has also committed, say, murder! The murder should come first,
and the summary offence as a rather casual postscript. If the defendant is clearly guilty of a crime like
wounding with intent, and only doubtfully guilty of murder, it is sensible to start with the clear crime
before coming to the doubtful one.
Problems in criminal law often start with an inchoate crimeconspiracy, attempt or incitement.
Even though the problem shows that the full crime was consummated, the culprits may be convicted
of attempt or incitement, so that it may be relevant to mention these crimesthough normally, of
course, the indictment would be for the completed crime, not for a mere attempt or incitement. If you
mention the possibility of a conspiracy charge, it would be wise to add that the addition of conspiracy
counts when the crime is consummated must be specially justified. As for incitement, if the crime is
actually committed the inciter becomes an accessory to it. In other words, the difference between (i)
incitement and (ii) being a participant in a crime as one who has counselled or procured it is that in
(i) the main crime has not been (or need not have been) committed by the person so incited, and in
(ii) it has.

THE ANSWERING OF PROBLEMS IN TORT

As in criminal law, look for all the possible torts that may have been committed, and consider
whether their essentials have been satisfied. Draw into your net all possible defendants, and then
turn round and consider all the possible defences open to them on the facts given.
There are not so many obscure torts as there are obscure crimes, but a considerable overlap
occurs between some of the leading torts. The following are the chief examples:

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 Nuisance. Negligence.
Rylands v. Fletcher. Contractual duty to use care.
Negligence.
Negligence.
Breach of statutory duty.
Defamation. Conversion
Offensive invasion of privacy Trespass to goods.
[at present non-existent.]
Slander of title.
Malicious falsehood.
In the tort of negligence, it is frequently necessary to consider the machinery as to proof
of negligencethe burden of proof, functions of judge and jury, res ipsa loquitur. Questions of
negligence, contributory negligence and remoteness of damage are frequently wrapped up together,
and so are questions of contributory negligence and volenti non fit injuria, and of necessity and
private defence.
If the problem appears to be a novel one, it may raise the theory of general liability in tort.

6. MOOTS AND MOCK TRIALS

Glanville Williams in Moots and Mock Trials underlines the significance of the moots and
mock trials and outlines the procedure usually followed in arranging them for the students of law.
The literal meaning of the term moot is subject to debate. To moot means to put forward for
discussion. Moots are legal problems in the form of the imaginary cases which are argued by two
student counsels, a leader and the junior, on each side with a bench of three judges or perhaps only
one representing the court of Appeal or sometimes the House of Lords. Participation in moots helps
the law students in many ways. It gives them experience in the art of persuasion and putting a case
succinctly and intelligibly. Mooting not only gives practice in court procedure but helps to develop the
self confidence that every advocate should possess.
ARRANGEMENT OF MOOTS
The arrangement of moots is usually the responsibility of the students law society known as
the Moot Society. A law teacher or a practising lawyer usually presides on the bench. Law students
themselves also may preside on the bench. The moot should ideally have two separate points for
arrangement, one each for each of the two sides. The opposing counsel must be notified of the main
proposition and of all the authorities relied on by the counsel. The Master of Moots or other organizer
should also be informed of the authorities to be cited, in order that he may arrange for such reports
or case books which are available to be brought to the court room. Since the moot is attended by an
audience it is important to confine the proceedings to a reasonable length of time between half an
hour and 40 minutes.
MOOT COURT PROCEDURE
In the court hall the counsels for the appellants are seated on the left side of the judge and
those for the respondents on the right side. The presiding judge calls upon the leading counsel
for the appellant to argue the case first and then calls his junior and after that the two counsels
for the respondent argue the case. The appellant is supposed to have a right of reply subject to
the availability of time. Alternatively, the speaking order can be leading counsel for the appellant;
both counsels for the respondent, junior counsel for the appellant who has the last word. Both the
counsels and the judge strictly follow the procedure and conduct of the court. Counsels rise to their
feet when addressing or being addressed by the court. In the course of the proceedings, interruption
should be avoided as far as possible. Learned junior; learned friend, Learned judge etc are the
phrases to be used to refer to the other counsel. My Lordship and Your Lordship are the polite ways
of addressing a judge. The difference between My Lord and Your Lordship is that the former is used

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in vocative cases and the later is the mode of referring to the judge in the course of sentence (i.e) as
a polite substitute for You. Female judges are addressed as My Lady or Your Ladyship.
Another important etiquette to be followed in the proceedings is that a counsel may submit and
suggest as strongly as he likes and he may state law and fact, but he should not express his own
belief or opinion. As an advocate one is paid to present the clients case and not to offer a sincere
opinion as a judge.
PRESENTATION OF THE CASE
Address to the court must be as brief as possible. Points must be enumerated and the part of
the argument that is left to junior must be clearly stated. Once the court appears to be convinced
on a particular point, argument on that point may be closed. The court may be appraised of all the
important points without waste of time. Eye contact of the judge is very important in order to make
sure that the argument is heard. Argument must be full of expression and reading must be avoided.
Reading out the long passages from text and treatises must be avoided and authorities must be
quoted with proper periods and emphasis.
CITATION OF CASES
Mooters are expected to produce authorities for the cases cited. The reports of cases or case
books must be produced in the moot. While citing the cases, reference must be pronounced in full,
not in abbreviated form. The facts of the case should be read in full unless the case is relied upon
only for an obiter dictum. Citation of a long list of cases is a monotonous thing and therefore the
author advises the mooters to limit it to six cases on each side. The object of a moot is to provide
practice in developing an argument and citing of cases is only a means to this end.
THE ROLE OF JUDGES
All moot court judges are expected to interject the counsels by questions and objections. The
objections need not represent the judges real opinion; he makes it in order to see how the student
counsel responds. After counsels have concluded their argument the presiding judge may invite
members of the audience to express their opinions upon the legal problem Amicus curiae (friends
of the court). The judge may then deliver the judgment and also declare which counsel or side
performed best.
MOCK TRIALS
A mock trial differs from a moot in that it is a mock jury -trial, with jury and witnesses. Jury
means a group of people attending on a legal case and giving a verdict on the basis evidence given
in court. It is not an argument on law. It may look like court proceedings with witnesses dressing
themselves up as counsels in ropes. The audience may consist of non -lawyers who often come to
be entertained. Since the trial is un rehearsed, it requires forensic ability on the part of the student
counsel to take part in it.
There are two ways in which the case may be conducted. It may have been enacted beforehand
by the witness so that they testify as to what they have witnessed. The second method is that the
organizers may simply have given to each witness a statement of his evidence which he is expected
to remember. The former method is more realistic when it comes to cross examination. The actual
trial is a valuable experience for budding advocates who take part in it as counsels.
The trials may be conducted in law schools. The cases may be modeled upon an actual trial
case. It is advisable to keep the number of witness down to five or six. The participants must have
attended real trials in order to learn how things are done. The clerk of the court must know his job.
THE GAME OF ALIBI
The game of alibi, like moots and mock trials, is arranged by the members of the students law
society. The gathering divides into groups of four, each group being composed of two prosecuting
counsels and two defendants. It is assumed that the two defendants have committed some crime at a
stated time and have set up an alibi. They go out of the room for not more than 10 minutes in order to
prepare their story. Then they return for cross examination by the prosecution counsel. The counsels

25 ENGLISH
aim is to break down the alibi by asking some unexpected questions. After the cross examinations,
the two counsels put their heads together and then one of them address the jury and submits that the
alibi has been broken. The jury signify their verdict by a show of hands. The opinion of the majority
is. taken.
FALSE EVIDENCE
False evidence is a game somewhat similar to alibi. Three masked defendants are questioned
on their day to day lives by the counsels. One of these defendants has assumed a completely false
name and occupation and it is jurys-task to decide which. Each defendant must submit to counsel a
week in advance a couple of hundred words summarizing his life and this enables counsels to prepare
their questions. The witness is not in court during the interrogation of the defendant. The counsels
try to shake the evidence and establish discrepancies between the defendant and his witness. The
judge sums up briefly to the jury who consider and announces their verdict. The imposter then
declares himself and it is interesting to see if the judicial process has succeeded in ascertaining the
truth of the matter.
THIRD DEGREE
Third degree is yet another variant of moots and mock trials. One member of the society is
selected as the defendant and he is given the outline of an alibi defence. His alibi may relate to a
period between 2 and 5 pm on a day when he left for a town and joined his friend for a tea. The
defendant must immediately fill in the details and amplify it under questioning. The object of the rest
of the company, who questioned him for 15 minutes, is to establish a self contradiction. Leading
questions may be asked. The significance of this game is that it can be played by two players only
and it may help to bring out unexpected ability as an implacable interrogator.

Due Process of Law

- Lord Denning

1. Part One - Keeping the Streams of Justice clear and Pure.

1. In the face of Court
2. The Victimisation of witnesses
3. Refusing to answer questions
4. Scandalising the Court
5. Disobedience to an order of the Court
6. Prejudicing a fair trial

1. In the Face of Court

1. In my own presence
It is an old phrase contempt in the face of the Court. It means a contempt which the Judge
sees with his own eyes: so that he needs no evidence of witnesses. He can deal with it himself at
once.
The most quoted case goes back to the year 1631. It was at Salisbury on the Western Circuit.
A prisoner threw a brickbat at the Judge of Assize. It was originally reported in Norman-French. That
was the language which was commonly in use by lawyers and reporters at that time. But put into
English, the translation is given in 3 Dyer at 1881):
Richardson Chief Justice of C. B. at the assizes at Salisbury in the summer of 1631 was
assaulted by a prisoner condemned there for felony, who after his condemnation threw a brickbat
at the said Judge which narrowly missed; and for this an indictment was immediately drawn by Noy
against the prisoner, and his right hand cut off and fixed to the gibbet, upon which he was immediately
hanged in the presence of the Court.

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 I have often told of that case to the students with the apocryphal addition:
The Judge had his head on one side on his hand as the brickbat whizzed past. Straightening
himself up, he said, If Id been an upright judge, I should no longer be a judge.
Leaving reported cases I can give evidence of what I have seen with my own eyes. I was a junior
waiting in the Court of Appeal for my case to be reached. It was in the Court next to Carey Street.
Just before the midday adjournment, a man got up from the row behind me. He threw a tomato at
the Judges. It was not a good shot. It passed between Lords Justices Clauson and Goddard It hit the
panelling with a loud squish. They were taken aback. They adjourned for a few minutes. Then they
returned, had him brought up, and sentenced him straightaway to six weeks imprisonment.
Later on, when I was sitting as a Lord Justice in the same Court with Lord Justice Bucknill, it
was similar but not the same. It was a hot day. Counsel were talking a lot of hot air. A man got up
with his stick and smashed the glass window. To let in some fresh air. I suppose. At any rate we did
not commit him for contempt of court. We sent him off to Bow Street to be dealt with for malicious
damage.
Still later, when I was presiding, we became more lenient. On every Monday morning we hear
litigants in person. Miss Stone was often there. She made an application before us. We refused it.
She was sitting in the front row with a bookcase within her reach. She picked up one of Butterworths
Workmens Compensation Cases and threw it at us. It passed between Lord Justice Diplock and
me. She picked up another. That went wide too. She said, I am running out of ammunition. We took
little notice. She had hoped we would commit her for contempt of court just to draw more attention
to herself. As we took no notice, she went towards the door. She left saying: I congratulate your
Lordships on your coolness under fire.
2. The Welsh students invade the Court
It was a dramatic case. Students of Wales were very enthusiastic about the Welsh language
and they were very upset because the programmes to Wales were being broadcast in English and
not in Welsh. They demonstrated to make a protest. They came up to London. They invaded the
Court. I could see their point of view: for I have a special relationship with Wales. During the First
World War I was a second lieutenant in the Royal Engineers. I myself am, of course, English on both-
sides, from time without memory. But I was posted to the 151st Field Coy. of the Royal Engineers
which was attached to the 38th (Welsh) Division. I wore on my arm-flash the Red Dragon of Wales.
I served with them in France. One of my proudest records (I was just 19) is an entry in the history
of the Welsh Division recording the night of 23/24 August 1918 when we advanced across the river
Ancre under heavy shell and rifle fire:
Meanwhile two battalions of the 115th Brigade had crossed the Ancre at Aveley over a bridge
made by the 151st Field Company RE under the supervision of Lieutenants Denning and Butler and
formed up on a one battalion frontage on the left of 113th Brigade.
A simple entry of a brave occasion. But I record it now because of some comments I received
after the case of the Welsh students, Morris v Crown Office.([1970] 2 QB 114).
It was the first case in which the Court of Appeal had to consider contempt in the face of the
Court. Eleven young students had been sentenced to prison. Each for three months. They were all
from the University of Aberystwyth. They were imbued with Welsh fervour. They had been sentenced
on Wednesday, 4 February 1970. I always see that urgent cases are dealt with expeditiously. We
started their appeal on Monday, 9 February and decided it on Wednesday, 11 February. I also have
some say in the constitution of the Court. So I arranged for one of the Welsh Lords Justices to sit.
Lord Justice Arthian Davies was well qualified. He was not only Welsh. He could speak Welsh. He
sat with Lord Justice Salmon and me. We heard the argument on the Monday and Tuesday. We
discussed the case on Wednesday morning and delivered judgment on the Wednesday afternoon.
We had to do it so quickly that I hope you will excuse its imperfections. But these are some extracts
from it.
Last Wednesday, just a week ago, Lawton J, a judge of the High Court here in London, was
sitting to hear a case. It was a libel case between a naval officer and some publishers. He was trying

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it with a jury. It was no doubt an important case, but for the purposes of today it could have been the
least important. It matters not. For what happened was serious indeed. A group of students, young
men and young women, invaded the court. It was clearly prearranged. They had come all the way
from their University of Aberystwyth. They strode into the well of the court. They flocked into the
public gallery. They shouted slogans. They scattered pamphlets, They sang songs. They broke up the
hearing. The judge had to adjourn. They were removed. Order was restored.
When the judge returned to the court, three of them were brought before him. He sentenced
each of them to three months imprisonment for contempt of court. The others were kept in custody
until the rising of the court. Nineteen were then brought before him. The judge asked each of them
whether he or she was prepared to apologise. Eight of them did so. The judge imposed a fine of 50
on each of them and required them to enter into recognisances to keep the peace. Eleven of them
did not apologise. They did it, they said, as a matter of principle and so did not feel able to apologise.
The judge sentenced each of them to imprisonment for three months for contempt of court.
In sentencing these young people in this way the judge was exercising a jurisdiction which
goes back for centuries. It was well described over 200 years ago by Wilmot J in an opinion which
he prepared but never delivered. It is a necessary incident, he said, to every court of justice to
fine and imprison for a contempt of the court acted in the face of it. That is R v Almon (1765) Wilm
243, 254. The phrase contempt in the face of the court has a quaint old- fashioned ring about it;
but the importance of it is this: of all the places where law and order must be maintained, it is here
in these courts. The course of justice must not be deflected or interfered with. Those who strike at it
strike at the very foundations of our^ society. To maintain law and order, the judges have, and must
have, power at once to deal with those who offend against it. It is a great power a power instantly
to imprison a person without trial-- but it is a necessary power. So necessary, indeed, that until
recently the judges exercised it without any appeal. There were previously no safeguards against a
judge exercising his jurisdiction wrongly or unwisely. This was remedied in the year 1960. An appeal
now lies to this court; and, in a suitable case, from this court to the House of Lords. With these safe-
guards this jurisdiction can and should be maintained.
Eleven of these young people have exercised this right to appeal: and we have put all other
cases aside to hear it. For we are here concerned with their liberty: and our law puts the liberty of the
subject before all else.
At this point I would pay a tribute to the way in which Mr. Watkin Powell conducted this appeal
on their behalf. He did as well as any advocate I ever heard. We have been much assisted too by
the Attorney-General, who came here, not as prosecutor, but as a friend of the court. He put all the
relevant considerations before us to our grateful benefit.
I hold, therefore, that a judge of the High Court still has power at common law to commit
instantly to prison for criminal contempt, and this power is not affected in the least by the provisions
of the Act of 1967. The powers at common law remain intact. It is a power to fine or imprison, to
give an immediate sentence or to postpone it, to commit to prison pending his consideration of
the sentence, to bind over to be of good behavior and keep the peace, and to bind over to come
for judgment if called upon. These powers enable the judge to give what is, in effect, a suspended
sentence. I have often heard a judge say at common law, for ordinary offences, before these modern
statutes were passed.
I will bind you over to come up for judgment if called upon to do so. Mark you, if you do get
into trouble again, you will then be sentenced for this offence. I will make a note that it deserves six
months imprisonment. So that is w;hat you may get if you do not accept this chance.
That is the common law way of giving a suspended sentence. It can be done also for contempt
of court.
I come now to Mr. Watkin Powells third point. He says that the sentences were excessive. I do
not think they were excessive, at the time they were given and in the circumstances then existing.
Here was a deliberate interference with the course of justice in a case which was no concern of
theirs. It was necessary for the judge to show and to show to all students every where that this
kind of thing cannot be tolerate. Let students please, for the causes in which they believe. Let them

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make their protests as they will. But they must do it by lawful means and not by unlawful. If they strike
at the course of justice in this land and I speak both for England and Wales they strike at the
roots of society itself, and they, bring down that which protects them. It is only by the maintenance
of law and order that they are privileged to be students and to study and live in peace. So let them
support the law and not strike it down.
But now what is to be done? The law has been vindicated by the sentences which the judge
passed on Wednesday of last week. He has shown that law and order must be maintained, and
will be maintained. But on this appeal, things are changed. These students here no longer defy the
Jaw. They have appealed to this court and shown respect for it. They have already served a week
in prison. I do not think it necessary to keep them inside it any longer. These young people are no
ordinary criminals. There is no violence dishonesty or vice in them. On the contrary, there was much
that we should applaud. They wish to do all they can to preserve the Welsh language. Well may they
be proud of it. It is the language of the bards - of the poets and the singers more melodious by far
than our rough English tongue. On high authority, it should be equal in Wales with English. They have
done wrong very wrong in going to the extreme they did. But, that having been shown, I think
we can, and should, show mercy on them. We should permit them to go back to their studies, to their
parents and continue the good course which they have so wrongly disturbed.
There must be security for the future. They must be of good behavior. They must keep the
peace. I would add, finally, that there is power in this court, in case of need, to recall them. If it should
become necessary, this court would not hesitate to call them back and commit them to prison for the
rest of the sentence which Lawton J passed on them.
Subject to what my brethren will say in a few moments, 1 would propose that they be released
from prison today, but that they be bound over to be of good behavior, to keep the peace and to come
up for judgment if called upon within the next 12 months.
Now I return to the commentators. The reaction from England was expressed in two anonymous
postcards that I received. One said You lousy coward. The other said You ought to resign. But the
reaction from Wales was one of entire satisfaction. The newspapers applauded us. A Dean of Divinity
wrote simply, Thank you for doing justice by our young people.
3. The Official Solicitor comes in with the Devil
That contempt was done in the face of the Court. The Judge saw it with his very eyes. He
witnessed it. So he needed no evidence to prove it. Is this kind of contempt limited to what the Judge
himself sees? Suppose he sees nothing himself, but he has to have witnesses to prove it. Can the
Judge then try it summarily? Is the offender entitled to legal representation? Is he entitled to claim
trial by jury? Those important questions came up for decision in another case. It is Balooh v St.
Albans Crown Court. Mr. Balogh was a young man of whom the newspapers took some notice: for
he was the son of the distinguished economist Lord Balogh. He played a practical joke and found
himself sentenced to prison. Melford Stevenson J sentenced him to six months imprisonment. As Mr.
Balogh wished to j appeal lie wrote to the Official Solicitor.
Now the Official Solicitor is a most useful person. He looks after the interests of those who
cannot, or will not, look after themselves. Such as infants and persons in need of care and protection.
He takes a special interest in persons committed for contempt of court: because people are some
times a bit obstinate. Quite often a wife gets an order against her husband for the sale of the house
he disobeys it and is committed for contempt. He would rather stay in prison indefinitely than give
up the house to his wife. In such a case the Official Solicitor takes up the case for him and gets him
released, as in Danchevsky v Danchevsky. Such persons often refuse to do anything to purge their
contempt. They take no steps to appeal. They sit sullenly aggrieved in their prison cells. They may
sit there indefinitely unless somebody does something to bring their case before the Court. So the
Official Solicitor does it.
The Official Solicitor took up the case of Mr. Balogh. He lodged notice of appeal. But who was to
be respondent to the appeal? It could not be the Judge. No judge can be sued, served or summoned
for anything he does as a judge. So we invited the Attorney-General to appoint a counsel as amicus
curiae that is, as a friend of the Court to help us. That is the practice. The Attorney-General

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appointed the Treasury Devil, Mr. Gordon Slynn. A devil, in the eyes of the law, is an unpaid hack.
When I started at the Bar, I often looked up cases and even wrote opinions for a barrister senior
to me and was not paid a penny. I devilled for him. I did it to get experience. It is different now. A
devil is always paid for his work. The Treasury Devil is the best of devils. He is the pick af the juniors
at the Bar with a reversion to a judgeship. Mr. Gordon Slynn was outstanding. The best I have ever
known. Hie will go far.
4. The laughing gas does not escape
Mr. Baloghs practical joke is so entertaining and the Judges handling of it so instructive
that I would simply quote from it and let my judgment speak for itself.
There is a new Court House at St. Albans. It is air-conditioned. In May of this year the Crown
Court was sitting there. A case was being tried about pornographic films and books, Stephen Balogh
was there each day. He was a casual hand employed by solicitors for the defence, just as a clerk at
5 a day, knowing no law. The case dragged on and on. He got exceedingly bored. He made a plan
to liven it up. He knew something about a gas called nitrous oxide (N20). It gives an exhilarating effect
when inhaled. It is called laughing gas. He had learned all about it at Oxford. During the trial he took
a half cylinder of it from the hospital car park. He carried it about with him in his brief case. His plan
was to put the cylinder at the inlet to the ventilating system and to release the gas into the court. It
would emerge from the outlets which were just in front of counsels row. So the gas, he thought, would
enliven their speeches. It would be diverting for the others. A relief from the tedium of pornography.
So one night when it was dark he got on to the roof of the court house. He did it by going up from the
public gallery. He found the ventilating ducts and decided where to put the cylinder. Next morning,
soon after the court sat, at 11.15, he took his brief case, with the cylinder in it, into court no. 1. That
was not the pornography court. It was the next door court. It was the only court which had a door
leading up to the roof. He put the brief case on a seat at the back of the public gallery. Then he left for
a little while. He was waiting for a moment when he could slip up to the roof without anyone seeing
him. But the moment never came. He had been seen on the night before. The officers of the court had
watched him go up to the roof. So in the morning they kept an eye on him. They saw him put down his
brief case. When he left for a moment, they took it up. They were careful. There might be a bomb in it.
They opened it. They took out the cylinder. They examined it and found out what it was. They got hold
of Balogh. They cautioned him. He told them frankly just what he had done. They charged him with
stealing a bottle of nitrous oxide. He admitted it. They kept him in custody and reported the matter
to Melford Stevenson J who was presiding in court no. 1 (not the pornography court). At the end of
the days hearing, at 4.15 p.m., the judge had Balogh brought before him. The police inspector gave
evidence. Balogh admitted it was all true. He meant it as a joke. practical joke. But the judge thought
differently. He was not amused. To him it was no laughing matter. It was a very serious contempt of
court. Balogh said:
I am actually in the wrong court at the moment. . . . The proceedings which I intended to
subvert are next door. Therefore, it is not contempt against your court for which I should be tried.
The judge replied:
You were obviously intending at least to disturb the proceedings going on in courts in this
building, of which this is one. . . . You will remain in custody tonight and I will consider what penalty I
impose on you ... in the morning.
Next morning Balogh was brought again before the judge. The inspector gave evidence of his
background. Balogh was asked if he had anything to say. He said:
I do not feel competent to conduct it myself. I am not represented in court. I have committed no
contempt. I was arrested for the theft of the bottle. No further charges have been preferred.
The judge gave sentence:
It is difficult to imagine a more serious contempt of court and the consequences might have
been very grave if you had carried out your express intention. I am not going to overlook this and
you will go to prison for six months. ... I am not dealing with any charge for theft. ... I am exercising
the jurisdiction to deal with the contempt of court which has been vested in this court for hundreds of

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years. That is the basis on which you will now go to prison for six months. Balogh made an uncouth
insult: You are a humourless automaton. Why dont you self-destruct? He was taken away to serve
his sentence.
Eleven days later he wrote from prison to the Official Solicitor. In it he acknowledged that his
behavior had been contemptible, and that he was now thoroughly humbled. He asked to be allowed
to apologise in the hope that his contempt would be purged. The Official Solicitor arranged at once
for counsel to be instructed, with the result that the appeal has come to this court.
But I find nothing to tell us what is meant by committed in the face of the court. It has never
been defined. Its meaning is, I think, to be ascertained from the practice of the judges over the
centuries. It was never confined to conduct which a judge saw with his own eyes. It covered all
contempt for which a judge of his own motion could punish a man on the spot. So contempt in the
face of the court is the same thing as contempt which the court can punish of its own motion. It
really means contempt in the cognizance of the court.
Gathering together the experience of the past, then, what ever expression is used, a judge of
one of the superior courts or a judge of Assize could always punish summarily of his own motion for
contempt of court whenever there was a gross interference with the course of justice in a case that
was being tried, or about to be tried, or just over no matter whether the judge saw it with his own
eyes or it was reported to him by the officers of the court, or by others whenever it was urgent and
imperative to act at once. This power has been inherited by the judges of the High Court and in turn
by the judges of the Crown Court,
This power of summary punishment is a great power, but it is .a necessary power. It is given
so as to maintain the dignity and authority of the court and to ensure a fair trial. It is to be exercised
by the judge of his own motion only when it is urgent and imperative to act immediately so as to
maintain the authority of the court to prevent disorder to enable witnesses to be free from fear
and jurors from being improperly influenced. and the like. It is, of course, to be exercised with
scrupulous care, and only when the case is clear and beyond reasonable doubt: see R v Gray [1900]
2 QB 36, 41 by Lord Russell of Killowen CJ. But properly exercised it is a power of the utmost value
and importance which should not be curtailed.
Over 100 years ago Erie CJ said that . . these powers, ... as far as my experience goes, have
always been exercised for the advancement of justice and the good of the public: see Ex parte
Fernandez (1861) 10 CBNS 3, 38. I would say the same today. From time to time anxieties have been
expressed less these powers might be abused. But these have been set; at rest by section 13 of the
Administration of Justice Act 1960, which gives a right of appeal to a higher court.
As I have said, a judge should act of his own motion only when it is urgent and imperative to
act immediately. In all other cases he should not take it upon himself to move. He should leave it
to the Attorney-General or to the party aggrieved to make a motion in accordance with the rules in
R.S.C., Ord. 52. The reason is so that he should not appear to be both prosecutor and judge: for that
is a role which does not become him well.
Returning to the present case, it seems to me that up to a point, the judge was absolutely
right to act of his own motion. The intention of Mr. Balogh was to disrupt the proceedings in a trial
then taking place. His conduct was reported to the senior judge then in the court building. It was very
proper for him to take immediate action, and to have Mr. Balogh brought before him. But once he was
there, it was not a case for summary punishment. There was not sufficient urgency to warrant it. Nor
was it imperative. He was already in custody on a charge of stealing. The judge would have done well
to have remanded him in custody and invited counsel to represent him. If he had done so counsel
would, I expect, have taken the point to which I now turn.
When this case was opened, it occurred to each one of us: Was Mr. Balogh guilty of the offence
of contempt of court? He was undoubtedly guilty of stealing the cylinder of gas, but was he guilty of
contempt of court? No proceedings were disturbed. No trial was upset. Nothing untoward took place.
No gas was released. A lot more had to be done by Mr. Balogh. He had to get his brief case. He had
to go up to the roof. He had to place the cylinder in position. He had to open the valve. Even if he
had done all this, it is very doubtful whether it would have had any effect at all. The gas would have

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been so diluted by air that it would not have been noticeable. . . . So here Mr. Balogh had the criminal
intent to disrupt the court, but that is not enough. He was guilty of stealing the cylinder, but no more.
On this short ground we think the judge was in error. We have already allowed the appeal on
this ground. But, even if there had not been this ground, I should have thought that the sentence
of six months was excessive. Balogh spent 14 days in prison: and he has now apologised. That is
enough to purge his contempt, if contempt it was.
Conclusion
There is a lesson to be learned from the recent cases on this subject. It is particularly appropriate
at the present time. The new Crown Courts are in being. The judges of them have not yet acquired
the prestige of the Red Judge when he went on Assize. His robes and bearing made, everyone
alike stand in awe of him. Rarely did he need to exercise his great power of summary punishment.
Yet there is just as much need for the Crown Court to maintain its dignity and authority. The judges
of it should not hesitate to exercise the authority they inherit from the past. Insults are best treated
with disdain save when they are gross and scandalous. Refusal to answer with admonishment
save where it is vital to know the answer. But disruption of the court or threats to witnesses or to
jurors should be visited with immediate arrest. Then a remand in custody and, if it can be arranged,
representation by counsel. If it comes to a sentence, let it be such as the offence deserves with
the comforting reflection that, if it is in error, there is an appeal to this court. We always hear these
appeals within a day or two. The present case is a good instance. The judge acted with a firmness
which became him. As it happened, he went too far. That is no reproach to him. It only shows the
wisdom of having an appeal.

2. The Victimisation of witnesses

1. The trade union member is deprived of his office
Now I turn to a closely related topic. Every Court has to depend on witnesses. It is vital to the
administration of justice that they should give their evidence freely and without fear. Yet everyone
knows that witnesses may be suborned to commit perjury they may be threatened with dire
consequences if they tell the truth they may be punished afterwards for telling the truth. You might
think it obvious that it was a gross contempt of court for anyone to intimidate or victimise a witness.
Yet it was not until 1962 that this was fully debated and considered. It was in Attorney- General v
Butterworth [1963] 1 QB 696. Mr. Butterworth and others were on the Committee of the branch of
a trade union. One of the members had given evidence which they disliked. He had given it before
the Restrictive Practices Court. Mr. Butterworth and others determined to punish him for it. They
deprived him of his office as branch delegate and treasurer. It was reported to the Attorney-General:
because he has a public duty to prosecute for contempt of court. He considered that the action of Mr.
Butterworth and the others was a contempt. He applied to the Restrictive Practices Court. They held
it was not a contempt. The Attorney- General appealed to our Court.
Now I remember this case for a particular reason. It was argued for three days on Wednesday,
Thursday and Friday, 11, 12 and 13 July 1962. It was the night of the long knives. The Prime Minister,
Mr. Harold Macmillan, dispensed with most of his ministers, at a minutes notice; they included the
Lord Chancellor, Lord Kilmuir. That left him very sore. Now one of the duties of the Master of the Rolls
is that he has to swear in any new Lord Chancellor. One day I was warned that I would have to swear
in a new Lord Chancellor. I was not told who he was. But during that morning the Attorney General,
Sir Reginald Manningham-Buller (who was arguing the case himself), asked to be excused for an
hour or two. We guessed the reason. He was to be the new Lord Chancellor. So on one day he was
arguing before us as Attorney-General. The next day he was Lord Chancellor above us. We decided
in his favour but on the merit of his argument not because he had become Lord Chancellor.
Things like that make no impact on us. As in all these cases we do not delay. We prepared our
judgments over the weekend and gave them on the Monday morning. He was sworn in before us on
the Tuesday. In the judgment we sought to enunciate the relevant principles [1963] 1 QB 696 at 717.
In the case of Butterworth, Bailey and Etherton, the pre-dominant motive in the minds of each
of those gentlemen was to punish Greenlees for having given evidence in the R.E.N.A. case. . . .

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 I cannot agree with the decision of the Restrictive Practices Court. It may be that there is no
authority to be found in the books, but if this be so, all I can say is that the sooner we make one the
better. For there can be no greater contempt than to intimidate a witness before he gives his evidence
or to victimise him afterwards for having given it. How can we expect a witness to give his evidence
freely and frankly, as he ought to do, if he is liable, as soon as the case is over, to be punished for it by
those who dislike the evidence he has given? Let us accept that he has honestly given his evidence.
Is he to be liable to be dismissed from his employment, or to be expelled from his trade union, or to
be deprived of his office, or to be sent to Coventry, simply because of that evidence which he has
given? I decline to believe that the law of England permits him to be so treated. If this sort of thing
could be done in a single case with impunity, the news of it would soon get round. Witnesses in other
cases would be unwilling to come forward to give evidence, or, if they did come forward, they would
hesitate to speak the truth, for fear of the consequences. To those who say that there is no authority
on the point, I would say that the authority of Lord Langdale MR in Littler v Thomson (1839) 2 Beav
129 at 131 is good enough for me:
If witnesses are in this way deterred from coming forward in aid of legal proceedings, it will be
impossible that justice can be administered. It would be better that the doors of the courts of justice
were at once closed.
I have no hesitation in declaring that the victimisation of a witness is a contempt of court,
whether done whilst the proceedings are still pending or after they have finished. Such a contempt
can be punished by the court itself before which he has given evidence, and, so that those who think
of doing such things may be warned where they stand, I would add that if the witness has been
damnified by it he may well have redress in a civil court for damages.
Whilst I agree that there is no authority directly on the point, I beg leave to say that there are
many pointers to be found in the books in favour of the view which I have ex-
In most of the cases which I have mentioned the witness had finished his evidence but the case
itself was not concluded at the time when the step was taken against him. Nevertheless the principle
was laid down, as I have shown, in terms wide enough to cover cases where the proceedings were
concluded. And I must say that I can see no sense in limiting this species of contempt to punishment
inflicted on a witness while the case is still going on. Victimisation is as great an interference with
justice when it is done after a witness gets home as before he gets there. No such distinction is drawn
in the case of interference with a juror. Nor should it be drawn in the case of a witness. In R v Martin
(1848) 5 Cox CC 356. the jury convicted one John Martin; the foreman of the Jury had scarcely
reached home and gone upstairs when the prisoners brother, James Martin, called and challenged
the foreman to mortal combat for having bullied the jury. This was held by the court in Ireland to be
a contempt of court, as indeed it surely was. It does not matter whether the challenge was before or
after he got home. Nor could it matter in the case of a judge. Nor in the case of a witness.
But when the act is done with mixed motives, as indeed the acts here were done, what is the
position? If it is done with the predominant motive of punishing a witness, there can be no doubt
that it is a contempt of court. But even though it is not the predominant motive, yet nevertheless if it
is an actuating motive influencing the step taken, it is, in my judgment, a contempt of court. I do not
think the court is able to, or should, enter into a nice assessment of the weight of the various motives
which, mixed together, result in the victimisation of a witness. If one of the purposes actuating the
step is the purpose of punishment, then it is a contempt of court in everyone so actuated.
We take into account the apology which has been offered by the members of the union who
have been brought here, and, as it is a case of considerable importance which the Attorney-General
has thought right to bring to this court, we do not think it necessary to impose the whole burden of
costs on these gentlemen. . . .
... In the result, therefore, three will pay 200 apiece and the other three will pay 100 apiece,
making 900 in all payable by them towards the Attorney-Generals costs.

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2. The tenant is evicted from his home
Now there is an important point which arises when a witness is victimised and suffers loss
on account of it. The contemner can be punished by the Courts by fine or imprisonment. But can
the sufferer sue the contemner for damages? I should have thought he could, or at least, should
be able to do so. The victimisation is not only a criminal offence. It is, to my mind, a civil wrong a
tort as lawyers call it. This point was much discussed a few months later: and I regret to say that I
found myself in a minority. It was to my mind a shocking case. A house was let out by a landlord in
tenement flats. The landlord forcibly evicted one tenant called Harrand. That tenant sued the landlord
for damages for wrongful eviction. Chapman, the next-floor tenant, had seen what had happened.
Then these were the facts reported Chapman v Honig [1963) 2 QB 502 at 504.
. . . Chapman had been tenant since 1959. He had seen something of what happened on the
second floor, and Harrand wanted him to give evidence in his action against the landlord described
above. Chapman, fearing what might befall him if he gave evidence against his landlord, did not go
voluntarily to the court. He was subpoenaed to do so, and only gave evidence in obedience to the
subpoena. He gave evidence on 22 June 1962, at the hearing before Judge Baxter. On the very next
day, 23 June 1962, the landlord served on Chapman notice to quit his first-floor flat on 28 July 1962.
The reason he did that was simply because Chapman had given evidence for Harrand. The object of
the landlord was, the judge found, to punish or victimise Mr. Chapman for having given evidence.
. . . . The judge gave judgment for the plaintiff for 50 damages for contempt of court.
. . . . On the judges findings the landlord gave this notice to quit and attempted to evict the
tenant vindictively in order to punish Chapman for having given evidence against him. That is in itself
a contempt of court a criminal offence and punishable accordingly (see Attorney-General v
Butterworth) ([1963] 1 QB 696, [1963] LR 3 RP 327, [1962] 3 All ER 326, [1962] 3 WLR 819 CA)
and, being done by father and son in a combination to injure, it may also have been a conspiracy:
see Crofter Hand Woven Harris Tweed Co Ltd v Veitch [1942] AC 435, [1942] 1 All ER 142, 58 TLR
125, HL. It was in any case unlawful. My brother Pearson L J has, however, some doubt about it.
He thinks that the victimisation of a witness is not a contempt of court in itself. It is only a contempt
if other people are likely to get to know of it and be deterred from giving evidence in other actions. If
that is right, it would mean this, that if the tenant proclaims his grievance upon the housetops, telling
everyone about it, the landlord is guilty of contempt. But if the tenant should keep his suffering to
himself, without telling his neighbors why he is evicted, the landlord does no wrong. That cannot be
right. . . .
The principle upon which this case falls to be decided is simply this. No system of law can
justly compel a witness to give evidence and then, on finding him victimised for doing it, refuse to give
him redress. It is the duty of the court to protect the witness by every means at its command. Else the
whole process of the law will be set at naught, if a landlord intimidates a tenant by threatening him
with notice to quit, the court must be able to protect the tenant by granting an injunction to restrain
the landlord from carrying out his threat. If the landlord victimises a tenant by actually giving him
notice to quit, the court must be able to protect the tenant by holding the notice to quit to be invalid.
Nothing else will serve to vindicate the authority of the law. Nothing else will enable a witness to give
his evidence freely as he ought to do. Nothing else will empower the judge to say to him: Do not fear.
The arm of the law is strong enough to protect you.
It is said, however, that to hold the notice invalid is a pointless exercise, because the landlord
can give another notice next day or next week or next month: and that notice will be valid. I do not
agree, if the landlord has been guilty of such a gross contempt as to victimise a tenant, I should
have thought that any court would hold that a subsequent notice to quit was invalid unless he could
show that it was free from the taint. The landlord can at least be required to purge his contempt
before being allowed to enforce the contractual rights which he has so greatly abused. The tenant,
of course, has to pay his rent and perform his covenants: so there is no injustice in requiring the
landlord to clear his conscience.
The case was put of the valet who gives evidence against his master in a divorce suit. Next
day the master, out of spite, dismisses him by a months notice. Clearly the notice is unlawful. But the

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servant cannot stay on against the masters will. The law never enforces specifically a contract for
personal service. But what are the damages? They would, I think, be such damages as a jury might
assess to recompense him for the loss of the chance of being kept on longer, if he had not been
victimised. Thus only can the law give adequate redress, as it should, to an innocent person who has
been damnified for obeying its commands. . . .
The truth is, however, that this is a new case. None like it has ever come before the courts
so far as I know. But that is no reason for us to do nothing. We have the choice before us. Either to
redress a grievous wrong, or to leave it unremitted. Either to protect the victim of oppression, or to
let him suffer under it. Either to uphold the authority of the law, or to watch it being flouted. Faced
with this choice I have no doubt what the answer should be. We cannot stand idly by. The law which
compels a witness to give evidence is in duty bound to protect him from being punished for doing it.
That was the view of Judge Sir Alun Pugh when he granted an injunction. It was the view of Judge
Baxter when he gave damages of 50. It is my view too. I would not turn the tenant away without
remedy. I would dismiss this appeal.
That was not the view of my two colleagues. They held that the notice to quit was valid: and that
the tenant had no remedy in damages. They overruled Judge Sir Alun Pugh and Judge Baxter who
I know are very good and experienced judges. They also overruled me though that does not matter
so much. They even suggested that as a general proposition there can never be a right of action for
damages for contempt of court. Pearson LJ said significantly (at page 522):
The general proposition (that there can never be a right of action) might well be correct, but
in the present case it is enough to say that there can be no such right of action in respect of an
act which, as between the plaintiff and the defendant, has been done in exercise of a right under
a contract or other instrument and in accordance with its provisions .... The same act as between
the same parties cannot reasonably be supposed to be both lawful and unlawful in the sphere of
contract, valid and effective to achieve its object, and in the sphere of tort, wrongful and imposing a
tortuous liability.
That decision went no further. My two colleagues went so far as to refuse the tenant leave to
appeal to the Lords. No doubt because only 50 was involved. The tenant was legally aided and the
landlord was not: and it would be hard on the landlord to have him taken to the Lords over such a
small sum. The case is a disturbing reflection on our doctrine of precedent as recently proclaimed
by the Lords. The majority decision in Chapman v Honig is binding on all Courts for the future unless
someone comes along with the time and money and I may add the courage to take it to the
Lords. I would venture to ask my lawyer readers: Would you advise your client to take it to the Lords?

3. Refusing to answer questions

1. Two journalists are sent to prison
Next there came a case of intense public interest. Two journalists refused to answer questions
asked of them in the witness-box. They were sent to prison. Were they guilty of contempt of court?
Newspapers had been saying there was a spy in the Admiralty. Parliament ordered an inquiry.
Lord Radcliffe presided over it. One of the journalists had written that it was the sponsorship of
two high ranking officials which led to Vassall avoiding the strictest part of the Admiraltys security
vetting. Lord Radcliffe asked the journalist: What was the source of your information? Where did you
get it from? The journalist said: I decline to answer. Lord Radcliffe asked: Will you inquire from the
source whether he is willing for it to be divulged? The journalist still declined to answer.
Lord Radcliffe informed the Attorney-General. He moved the Court to punish the journalist for
contempt of court. Mr. Justice Gorman sentenced him to six months. The journalist appealed to our
Court. It raised the question whether a journalist has any privilege in the matter.
A preliminary point arose as to the relevancy of the question. A witness is only bound to
answer a relevant question, not an irrelevant one. The cases, heard together, were Attomey-General,
v Mulholland; Attorney-General v Foster. [1963] 2 QB 477 at 487 I dealt with the point in this way:

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 Was the question relevant to the inquiry? Was it one that the journalist ought to answer?
It seems to me that if the inquiry was to be as thorough as the circumstances demanded, it was
incumbent on Mulholland to disclose to the tribunal the source of his information. The newspapers
had made these allegations. If they made them with a due sense of responsibility (as befits a press
which enjoys such freedom as ours) then they must have based them on a trustworthy source.
Heaven forbid that they should invent them! And if they did get them from a trustworthy source, then
the tribunal must be told of it. How otherwise can the tribunal discover whether the allegations are
well founded or not? The tribunal cannot tell unless they see for themselves this trustworthy source,
this witness who is the foundation of it all. The tribunal must, therefore, be entitled to ask what was
the source from which the information came.
The question of privilege (Ibid at 489)
But then it is said (and this is the second point) that however relevant these questions were
and however proper to be answered for the purpose of the inquiry, a journalist has a privilege by
law entitling him to refuse to give his sources of information. The journalist puts forward as his
justification the pursuit of truth. It is in the public interest, he says, that he should obtain information
in confidence and publish it to the world at large, for by so doing he brings to the public notice that
which they should know. He can expose wrongdoing and neglect of duty which would otherwise go
un-remedied. He cannot get this information, he says, unless he keeps the source of it secret. The
mouths of his informants will be closed to him if it is known that their identity will be disclosed. So he
claims to be entitled to publish all his information without ever being under any obligation, even when
directed by the court or a judge, to disclose whence he got it. It seems to me that the journalists put
the matter much too high. The only profession that I know which is given a privilege from disclosing
information to a court of law is the legal profession, and then it is not the privilege of the lawyer but of
his client. Take the clergyman, the banker or the medical man. None of these is entitled to refuse to
answer when directed to by a judge. Let me not be mistaken. The judge will respect the confidences
which each member of these honourable professions receives in the course of it, and will not direct
him to answer unless not only it is relevant but also it is a proper and, indeed, necessary question
in the course of justice to be put and answered. A judge is the person entrusted, on behalf of the
community, to weigh these conflicting interests to weigh on the one hand the respect due to
confidence in the profession and on the other hand the ultimate interest o f the community in justice
being done or, in the case of a tribunal such as this, in a proper investigation being made into these
serious allegations, if the judge determines that the journalist must answer, then no privilege will avail
him to refuse.
It seems to me, therefore, that the authorities are all one way. There is no privilege known to
the law by which a journalist can refuse to answer a question which is relevant to the inquiry and
is one which, in the opinion of the judge, it is proper for him to be asked. I think it plain that in this
particular case it is in the public interest for the tribunal to inquire as to the sources of information.
How is anyone to know that this story was not a pure invention, if the journalist will not tell the tribunal
its source? Even if it was not invention, how is anyone to know it was not the gossip of some idler
seeking to impress? It may be mere rumour unless the journalist shows he got it from a trustworthy
source. And if he has got it from a trustworthy source (as I take it on his statement he has, which I
fully accept), then however much he may desire to keep it secret, he must remember that he has
been directed by the tribunal to disclose it as a matter of public duty, and that is justification enough.
. . . . We have anxiously considered the sentences of six months and three months respectively
which Gorman J passed on Mulholland and Foster, and after full consideration we have felt unable to
adopt the view that the sentences are disproportionate to the serious nature of the offence.
2. The New Statesman is angry
That case made some journalists very angry. The New Statesman published an article by one
of them against us Judges in which he suggested that the press would retaliate:
Any judge who gets involved in a scandal during the next year or so, must expect the full
treatment.

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 To which the Daily Mirror retorted with a nice piece of satire:
Is it likely that Lord Denning will be copped in a call-girls boudoir, or Lord Justice Danckwerts
be caught napping flogging stolen cigarettes, or Lord Justice Donovan be caught pinching a Goya
from the National Gallery? Is Mr. Justice Gorman, who sentenced the two silent journalists, likely to
be discovered running a Soho strip-tease club when the Courts are in recess?
The possibility is laughably remote.
The Mirror recognises that it is the duty of a judge to administer the law as the law stands, and
not as some would like it to be.
Thanks be to the Daily Mirror !
4. Scandalising the Court
1. Lord Mansfield is criticised
When the Judges of a Court are criticised or defamed or as it is put scandalised they
can punish the offender. They do it, they say, not to protect themselves as individuals but to preserve
the authority of the Court. It was so stated in one of the most eloquent passages in our law books
in a judgment which was prepared but never delivered. The Judge who was criticised was one of
our greatest. It was Lord Mansfield himself in 1765. He had made an amendment to an information
against John Wilkes. Now Mr. Almon had a shop in Piccadilly. He published a pamphlet entitled A
Letter concerning Libels, Warrants, Seizure of Papers, & c.. He sold it in his shop for Is 6d. In it he
said that Lord Mansfield had made the amendment officiously, arbitrarily, and illegally. Nowadays
we are used to criticisms of that kind but in those days the Attorney-General moved to commit Mr.
Almon for contempt of court. The case was argued and Mr. Justice Wilmot prepared a judgment of
28 pages in length ready to punish Mr. Almon. But Mr. Almon apologised. The Attorney- General
resigned. The proceedings were dropped. So Mr. Justice Wilmots judgment was never delivered.
Forty years later it was published in a volume of Wilmots cases under the title R v Almon (1765) wilm
243-271. In it he said (at page 259):
If their authority (i.e. of the Judges) is to be trampled upon by pamphleteers ana news-writers,
and the people are to be told that the power given to the Judges for their protection, is prostituted to
their destruction, the Court may retain its power some little time, but I am sure it will instantly lose all
its authority; and the power of the Court will not long survive the authority of it: is it possible to stab
that authority more fatally than by charging the Court, and more particularly the Chief Justice, with
having introduced a rule to subvert the constitutional liberty of the people? A greater scandal could
not be published.
2. Mr. Justice Avory comes under fire
We have travelled far since that time. In the 1920s the offence of scandalising the Court was
regarded as virtually obsolete. But it was revived in a case in 1928 when I was four years called to
the Bar. I was in chambers at No. 4 Brick Court. I had few briefs. I spent much of my time editing or
helping edit a new edition of Smiths Leading Cases. But I did find time to go across the Strand to
listen to this cause clbre. The New Statesman had published an article criticising Mr. Justice Avory.
Now he was a Judge held by the profession with respect, almost with awe. He was a small man but
resolute and stern. It showed in his face with his firm mouth and piercing grey eyes. He had tried a
libel action with a jury. They had awarded 200 damages against Dr. Marie Stopes, the advocate of
birth control - then much frowned upon see Sutherland v Stopes [1925] AC 47. The New States-
man denounced the case and added these words:
The serious point in this case, however, is that an individual owning to such views as those of
Dr. Stopes cannot apparently hope for a fair hearing in a Court presided over by Mr. Justice Avory
and there are so many Avorys.
Proceedings were taken against the editor of the New Statesman for contempt of court. They
are reported in R v New Statesman (1928) 44 TLR 301. On the one side was the Attorney-General,
Sir Douglas Hogg KC. On the other, Mr. William Jowitt KC. Each was a brilliant advocate.
Each was afterwards Lord Chancellor. But how different. Jowitt tall, handsome and distinguished

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with a resonant voice and clear diction. Hogg looked like Mr. Pickwick and spoke like Demosthenes.
Jowitt put it well for the New Statesman. He quoted a judgment by a strong Board of the Privy Council
in 1899 saying:
Committals for contempt of Court by scandalising the Court itself have become obsolete in
this country. Courts are contented to leave to public opinion attacks or comments derogatory or
scandalous to them (McLeod v St. Aubyn) [1899] AC 549 at 561.
Hogg replied by quoting a passage from Wilmots undelivered judgment upholding the offence
on the ground that to be impartial, and to be universally thought so, are both absolutely necessary.
Jowitt saw that the Court were against him. So he handled them tactfully. Whilst he submitted
there was no contempt, he excused the article by reason of the haste in which it was written: and
apologised humbly if it were held to be a contempt. That pleased the Court. They did not send the
editor to prison. They adjudged that he was guilty of contempt: but they did not fine him. They only
ordered him to pay the costs.
3, We ourselves are told to be silent
Oddly enough, the last case on this subject concerned Sir Douglas Hoggs son, Mr. Quintin
Hogg, as he then was. In his full title, the Rt. Hon. Quintin Hogg QC, MP. Now Lord Hailsham of
St. Marylebone, the Lord Chancellor, he is the most gifted man of our time. Statesman, Orator,
Philosopher he has no compare. Whilst out of office, he is by turns author, journalist, and television
personality. In his exuberance he wrote for Punch and in 1968 found himself brought up by Mr.
Raymond Blackburn on the charge that he was guilty of contempt of court. He criticised the Court of
Appeal in words which were quite as strong as those in which Mr. Almon criticised Lord Mansfield.
His words are set out fully in the report of the case, R v Commissioner of Police of the Metropolis
[1968] 2 QB 150 at 154, He said:
The Legislation of 1960 and thereafter has been rendered virtually unworkable by the
unrealistic, contradictory and, in the leading case, erroneous, decisions of the courts, including the
Court of Appeal .... it is to be hoped that the courts will remember the golden rule for judges in the
matter of obiter dicta. Silence is always an option.
The case came before us on a Monday morning, 26 February 1968. Mr. Blackburn applied in
person. Mr. Hogg was in Court but was represented by the most graceful advocate of our time, Sir
Peter Rawlinson QC, now Lord Rawlinson. He told us that Mr. Hogg in no way intended to scandalise
the Court or the Lords Justices whom he held in the highest personal and professional regard
but he maintained that the article constituted a criticism which he had a right to state publicly. We
accepted the submission. We delivered judgment straightaway, as we usually do. We did not write
twenty eight pages as Mr. Justice Wilmot did. This is what I said (at page 154):
This is the first case, so far as I know, where this court has been called on to consider an
allegation of contempt against itself. It is a jurisdiction which undoubtedly belongs to us but which we
will most sparingly exercise: more particularly as we ourselves have an interest in the matter.
Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity.
That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We
do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no
less than freedom of speech itself.
It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to
make fair comment, even outspoken comment, on matters of public interest. Those who comment
can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our
decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who
criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We
cannot enter into public controversy. Still less into political controversy. We must rely on our conduct
itself to be its own vindication.
Exposed as we are to the winds of criticism, nothing which is said by this person or that,
nothing which is written by this pen or that, will deter us from doing what the occasion requires,
provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.

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 So it comes to this: Mr. Quin tin Hogg has criticised the court, but in so doing he is exercising
his undoubted right. The article contains an error, no doubt, but errors do not make it a contempt of
court. We must uphold his right to the uttermost.
I hold this not to be a contempt of court, and would dismiss the application.

5. Disobedience to an order of the Court

1. Strict proof
One of the most important powers of a court of law is its power to give orders. Very often it has
to make an order commanding a person to do something or restraining him in some way. If he
disobeys, the Court has one weapon in its armoury which it can use. It can punish him for contempt
of court. Either by fine or by imprisonment. This kind of contempt has the characteristics which are
common to all contempt of court. It is a criminal offence. It must be proved beyond reasonable doubt.
We laid that down in Re Bramblevale Ltd (1970) 1 Ch 128. But in addition the Court insists on
several requirements being strictly observed.
2, The three dockers
This strictness was very much in evidence in the case oft|ie three dockers, Churchman v Shop
Stewards [1972] 1 WLR 1094. It arose out of the Industrial Relations Act 1971 which set up a new
court, the industrial Relations Court. It was bitterly opposed by the trade unions and their members.
So much so that they refused to recognise the new court: or to obey the orders issued by it. A crisis
arose when the dockers in the East End of London picketed a depot. The Court issued an order
comm an ding them to stop the picketing. The dockers did not appear before the Court nor were
they represented. They continued the picketing. The Industrial Relations Court gave judgment on
Wednesday, 14 June 1972 (which is quoted at page 1097):
The conduct of these men, as it appears at present, has gone far beyond anything which could
appropriately be disposed of by the imposition of a fine. Unless we receive some explanation we
have no alternative but to make orders committing them to prison. But we wish to give them every
opportunity to explain their conduct, if it can be explained.
The Court then set a dead-line for an explanation to be given:
If they have not appeared before us tomorrow morning or applied to the Court of Appeal before
2 p.m. on Friday, 16 June, the warrants will issue.
Now everyone knew that the dockers would take no notice of the Court. They would continue
to disobey. They would continue their picketing. They would not appear before the Industrial Court
to give an explanation. They would not apply to the Court of Appeal. The warrants would issue. They
would go to prison. They would be martyrs. The trade union movement would call a general strike
which would paralyse the country.
It was averted. But how was it done? The Official Solicitor appeared from nowhere. He applied
to us in the Court of Appeal asking us to quash the order of the Industrial Court. We did so. The
dockers were very disappointed. They were at the gates of the depot expecting to be arrested.
Instead there were no warrants, no arrests, no prison, no martyrdom, no strike.
Everyone asked at once: Who is the Official Solicitor? Who put him up to this? What right had
he to represent the men when they wished for no representation and what right had he to come to
the Court and ask for the committal order to be quashed? On what ground was it quashed? I gave
the reasons in my judgment on the fateful Friday (at page 1097):
The Industrial Court gave them until 2 p.m. today, Friday, in which to apply to the Court of
Appeal. The three dockers have not applied themselves, nor have they instructed anyone to apply on
their behalf. But the Official Solicitor has done so. He has authority to apply on behalf of any person
in the land who is committed to prison and does not move the court on his own behalf. Likewise, on
behalf of any person against whom an order for committal is made, he is authorised to come to this
court and draw the matter to its attention. He has instructed Mr. Pain, and Mr. Pain has submitted to
us that the evidence before the Industrial Court was not sufficient to warrant the orders of committal.

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 I pause here to say that Mr. Pain was very conversant with trade union matters. He was a very
effective advocate. He used to assume a disarming air of diffidence as if to say, Please help me.
And of course we did.
I went on:
. ... In exercising those powers, and particularly those which concern the liberty of the subject,
I would hold, and this court would hold, that any breach giving rise to punishment must be proved
in the Industrial Court with the same strictness as would be required in the High Court here in this
building. So we have to see whether the orders were properly proved, and the breaches of them
proved, according to that degree of strictness.
It seems to me that the evidence before the Industrial Court was quite insufficient to prove
with all the strictness that is necessary in such a proceeding as this, when you are going to deprive
people of their liberty a breach of the courts order.
. ... It may be that in some circumstances the court may be entitled, on sufficient information
being brought before it, to act on its own initiative in sending a contemnor to prison. But, if it does
so think fit to act, it seems to me that all the safeguards required by the High Court must still be
satisfied. The notice which is given to the accused must give with it the charges against him
Particularity which this court or the High Court here ordinarily requires before depriving a person of
his liberty. The accused must be given notice of any new charge and the opportunity of meeting it.
Even if he does not appear to answer it, it must be proved with all the sufficiency which we habitually
before depriving a man of his liberty.
Having analysed the evidence as it has been put before us in this case, I must say that it
falls far short of that which we would require for such a purpose. In my opinion, therefore orders of
committal should be set aside and the warrants should not be executed.
3. The five dockers
Just over five weeks later, 26 July 1972, that story almost repeated itself. But this time it was
five dockers, not three. They picketed the container depot. The industrial court ordered that they
were to be imprisoned for contempt. Again there was the threat of a general strike. Again we were
ready to hear an immediate appeal by the Official Solicitor. But he was told by someone to hold
his hand. The reason was because the House of Lords rushed through a decision which was said
to affect the matter. It was Heatons Case [1973] AC 15. They were busy amending their drafts - in
typescript - right up to the last moment. Their decision was telephoned at once to the President of the
Industrial Court. It gave him sufficient reason to revoke the order for committal. He revoked it. The
general strike was averted. Another emergency was over. The lesson to be learned from the dockers
cases is that the weapon of imprisonment should never be used - for contempt of court in the case
of industrial disputes. Some better means must be found. Can anyone suggest one ?
4 . The ward of court
Under this head of disobedience there are cases where a newspaper publishes a report of
proceedings which are held in private. Most cases are and are bound to be heard in public
and there is no bar to a fair and accurate report of them. But some cases are held in private: and a
newspaper is guilty of a contempt of court if it publishes a report of what took place. Particularly is
this the case in wardship proceedings which are usually held in private. The point arose in 1976 in a
case reported as Re F [1977] Fam 58. A girl of 15 ran away with a man of 28. He gave her drugs and
had sexual intercourse with her, knowing that she was only 15. Her parents were so worried that they
applied for her to be made a ward of court. The girl was placed in a hostel. A social worker advised
that the man of 28 should be allowed to visit her there. The Daily Telegraph got to know of this and
published an article headed, Jailed lover should visit hostel girl, 16
The Official Solicitor thought that this article disclosed some of the proceedings which had
taken place in private. He moved to commit the Daily Telegraph for contempt. The Judge held that it
was a contempt. We reversed it. I said (at page 88):
. . . . There are cases to show that it was a contempt of court of publish information relating to
the proceedings in court about a ward. . . . The court was entitled to and habitually did hear the

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case in private. It could keep the proceedings away from the public gaze. The public were not admitted.
Nor even the newspaper reporters. Only the parties, their legal advisers, and those immediately
concerned were allowed in. When the court thus sat in private to hear wardship proceedings, the
very sitting in private carried with it a prohibition forbidding publication of anything that took place,
save only for the formal order made by the judge or an accurate summary of it: ... .
A breach of that prohibition was considered a contempt of court. It was a criminal offence
punishable by imprisonment. But what were the constituents of the offence? ....
This kind of contempt is akin to the contempt which is committed by a person who disobeys an
order of the court. Such as occurs where a party breaks an injunction ordering him to do something or
to refrain from doing it. But there are differences between them. When one party breaks an injunction,
it is the other party the aggrieved person who seeks to commit him for contempt. It is for his
benefit that the injunction was granted, and for his benefit that it is enforced: .... The offender is not
to be committed unless he has had proper notice of the terms of the injunction and it is proved,
beyond reasonable doubt, that he has broken it: ... . But when a newspaper editor or anyone else
for that matter publishes information which relates to wardship proceedings, it is very different.
He is no party to the proceedings. No order has been made against him. No notice has been given
to him of any order made by the courts. He may or may not know whether the proceedings
were in private or in open court. He may or may not be aware that there is a prohibition against
publication. On what ground, therefore, is he to be found guilty? On what ground is he to be punished
and sent to prison? What are the constituents of the offence?
On principle, it seems to me that, in order to be found guilty the accused must have had a guilty
mind some guilty knowledge or intent mens rea, as it is called. This question of mens rea often
comes up. Much depends on the nature. The mental elements of different crimes differ widely: ....
What then is the mental element here? In considering it, it must be remembered that the offence
is not restricted to newspaper editors or reporters. Anyone who publishes information relating to
wardship proceedings may be found guilty. The girl herself, or her parents, or the lawyers in the case,
may find themselves charged with the offence. Even if they only tell the story by word of mouth to a
friend, they may be guilty of an offence: for that would be a publication of it. Seeing that the offence
is of such wide scope, it seems to me that a person is only to be found guilty of it if he has published
information relating to wardship proceedings in circumstances in which he knows that publication
is prohibited by law, or recklessly in circumstances in which he knows that the publication may be
prohibited by law, but never the-less goes on and publishes it, not caring whether it is prohibited, or
not. As if he said: I dont care whether it is forbidden, or not. I am not going to make any inquiries. I
am going to publish it. Proof of this state of mind must be up to the standard required by the criminal
law. It must be such as to leave no reasonable doubt outstanding.
This test affords reasonable protection to ordinary folk, while, at the same time, it does not give
a newspaper any freedom to publish information to the world at large. If a newspaper reporter knew
that there were, or had recently been, wardship proceedings, he would be expected to know that
they would be held in private and would know or as good as know that there was a prohibition
against publication. Once he did know that there were, or had been, ward- ship proceedings, the
prohibition would, I think, apply, not only to information given to the judge, at the actual hearing, but
also to confidential reports submitted beforehand by the Official Solicitor, or social workers, or the
like.
It remains to apply those principles to the newspapers in this case. The parents told the Daily
Telegraph that the wardship order had been a temporary one and that it had expired. The newspaper
thought that there was no longer any prohibition on publication. They made inquiry at the local council
without getting any enlightenment. The Evening Mail made inquiries all round, including the Official
Solicitor; and no one told them that the girl was a ward of court, Furthermore, both newspapers took
the view that the matter was of such public interest that it should be brought to the notice of people
in general unless it was clearly prohibited by law. That was a legitimate view to take. They made
inquiries. Finding no such prohibition, they published the information. In the circumstances, I do not
think there was any guilty knowledge or intent on their part such as to warrant a finding that they were
in contempt of court.

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 6. Prejudicing a fair trial
1. Vampire Arrested
The freedom of the press is fundamental in our constitution. Newspapers have and should
have the right to make fair comment on matters of public interest. But this is subject to the law
of libel and of contempt of court. The newspapers must not make any comment which would tend
to prejudice a fair trial, if they do, they will find themselves in trouble. The most spectacular case is
one that is not reported in the Law Reports but which I remember well. Not that I usually read the
newspapers much. Only The Times when it happens to appear. Its reports of legal decisions are
unique. No other newspaper in the world has anything like it. They are written by barristers and are
quoted in the Courts. But on this occasion the Daily Mirror went beyond all bounds. It came out with
a banner headline after a man called Haigh had been arrested and before he was charged
VAMPIRE ARRESTED
It said that Haigh had been charged with one murder and had committed others and gave the
names of persons who, it was said, he had murdered.
Lord Goddard was the Chief Justice. He said: There has been no more scandalous case. It
is worthy of condign punishment. He fined the newspaper 10,000. He sent the editor to prison for
three months. He added: Let the directors beware. If this sort of thing should happen again, they may
find that the arm of the law is strong enough to reach them too.
2. The Thalidomide case
By far the most important case in recent years is the Thalid-omide case. It is reported in the
Court of Appeal in AG v Times Newspapers Ltd [1973] 1 QB 710 and in the House of Lords in [ 1974
] AC 273. Mothers when pregnant had taken the drug thalidomide. Their children has been born
deformed. That was in 1962. Actions were started at once for damages. Distillers, who distributed
the drug, tried to settle the actions. All parents agreed to a settlement except five. An application
was made to our Court to remove those five parents as next friends so as to get the children
represented by the Official Solicitor. It was known that he would agree to a settlement. If that move
had succeeded, all the cases would have been settled. There would have been no reported case
anywhere. But we refused to remove those five parents. Our refusal is reported in Re Taylors
Application [1972] 2 QB 369. It was the turning point of the case. The rest is best told by what I said
in the Court of Appeal [1973] 1 QB 710. (at page 736):
The editor of the Sunday Times. tells us that the report of that case caused him great
anxiety. Over 10 years had passed since the children were born with these deformities, and still
no compensation had been paid by Distillers. He determined to investigate the matter in depth and
to do all he could, through his newspaper, to persuade Distillers to take a fresh look at their moral
responsibilities to all the thalidomide children, both those where writs had been issued and those
where they had not. He had investigations made and launched a campaign against Distillers.
On 12 October 1972, the Attorney-General issued a writ against the Sunday Times claiming
an injunction to restrain them from publishing the draft article.
It is undoubted law that, when litigation is pending and actively in suit before the court, no
one shall comment on it in such a way that there is a real and substantial danger of prejudice to the
trial of the action, as for instance by influencing the judge, the jurors, or the witnesses, or even by
prejudicing mankind in general against a party to the cause. That appears from the case before Lord
Hardwicke LC in 1742 of In re Read and Huggonson {St. James Evening Post Case) (1742) 2 Atk
469, and by many other cases to which the Attorney-General drew our attention. Even if the person
making the comment honestly believes it to be true, still it is a contempt of court if he prejudges the
truth before it is ascertained in the proceedings: see Skipworths Case (1873) LR 9 QB 230, 234, by
Blackburn J. To that rule about a fair trial, there is this further rule about bringing pressure to bear on
a party: None shall, by misrepresentation or otherwise, bring unfair pressure to bear on one of the
parties to a cause so as to force him to drop his complaint, or to give up his defence, or to come to

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a settlement on terms which he would not otherwise have been prepared to entertain. That appears
from In re William Thomas Shipping Co Ltd [1930] 2 Ch 368 and Vine Products Ltd v Green [1966]
Ch 484, to which I would add an article by Professor Goodhart on Newspapers and Contempt of
Court in English Law in (1935) 48 Harvard Law Review, pp. 895, 896.
I regard it as of the first importance that the law which I have just stated should be maintained
in its full integrity. We must not allow trial by newspaper or trial by television or trial by any medium
other than the courts of law.
But in so stating the law, I would emphasise that it applies only when litigation is pending and
is actively in suit before the court. To which I would add that there must appear to be a real and
substantial danger of prejudice to the trial of the case or to the settlement of it. And when considering
the question, it must always be remembered that besides the interest of the parties in a fair trial or a
fair settlement of the case there is another important interest to be considered. It is the interest of the
public in matters of national concern, and the freedom of the press to make fair comment on such
matters. The one interest must be balanced against the other.
There may be cases where the subject matter is such that the public interest counterbalances
the private interest of the parties. In such cases the public interest prevails. Fair comment is to
be allowed. It has been so stated in Australia in regard to the courts of law: see Ex parte Bread
Manufacturers Ltd (1937) 37 SR (NSW) 242 and Ex parte Dawson [1961] SR (NSW) 573. It was so
recommended by a committee presided over by Lord Salmon on The Law of Contempt in Relation to
Tribunals of Inquiry: see (1969) Cmnd. 4078, para 26.
Take this present case. Here we have a matter of the greatest public interest. The thalidomide
children are the living reminders of a national tragedy. There has been no public inquiry as to how it
came about. Such inquiry as there has been has been done in confidence in the course of private
litigation between the parties. The compensation offered is believed by many to be too small. Nearly
12 years have passed and still no settlement has been reached. On such a matter the law can and
does authorise the newspapers to make fair comment. So long as they get their facts right, and keep
their comments fair, they are without reproach. They do not offend against the law as to contempt of
court unless there is real and substantial prejudice to pending litigation which is actively in suit before
the court. Our law of contempt does not prevent comment before the litigation is started, nor after
it has ended. Nor does it prevent it when the litigation is dormant and is not being actively pursued.
If the pending action is one which, as a matter of public interest, ought to have been brought to trial
long ago, or ought to have been settled long ago, the newspapers can fairly comment on the failure
to bring it to trial or to reach a settlement. No person can stop comment by serving a writ and letting
it lie idle: nor can he stop it by entering an appearance and doing nothing more. It is active litigation
which is protected by the law of contempt, not the absence of it.
Apply these considerations to the present case. Take the first 62 actions which were settled
in February 1968. The newspapers can fairly comment on those settlements, saying that in making
them the Distillers company did not measure up to their moral responsibilities. Take the last 123
children in regard to whom writs have never been issued. The newspapers can fairly press for
compensation on the ground that Distillers were morally responsible. That leaves only the 266 actions
in which writs were issued four years ago but have never been brought to trial. Does the existence of
those writs prevent the newspapers from drawing attention to the moral responsibilities of Distillers?
if they can comment on the first 62 or the last 123, I do not see why they cannot comment on these
intervening 266. There is no way of distinguishing between them. The draft article comments on all
the thalidomide children together. It is clearly lawful in respect of the first 62 and the last 123. So also
it should be in respect of the middle 266.
I have said enough to show that this case is unique. So much so that in my opinion the public
interest in having it discussed outweighs the prejudice which might thereby be occasioned to a party
to the dispute. At any rate, the High Court of Parliament has allowed it to be discussed. So why
should not we in these courts also permit it? There is no possible reason why Parliament should
permit it and we refuse it.
Our decision was reversed by the House of Lords. I hope that I will be forgiven for not quoting
from their judgements. They stated a new principle. It was that newspapers should not publish

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comments or articles which prejudged the issue in pending proceedings. This new principle was
criticised by the Committee over which our dear friend Lord Justice Phillimore presided (1974) Cmnd.
5794. It was a very good Committee. Harry Phillimore as we knew him affectionately, devoted his
last years to it. They heard much evidence and disposed of the House of Lords by saying (at page
48):
, The simple test of prejudgment therefore seems to go too far in some respects and not far
enough in others. We conclude that no satisfactory definition can be found which does not have direct
reference to the mischief which the law of contempt is and always has been designed to suppress.
That mischief is the risk of prejudice to the due administration of justice.
Hitherto we have always expected a decision of the House of Lords to be final and conclusive.
But the Thalidomide case showed the contrary. The Sunday Times took it to the European Court of
Human Rights. They relied on Article 10 of the European Convention to which the United Kingdom
has adhered. It says that:
Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public authority and
regardless of frontiers.
The European Court of Human Rights, by a majority of 11 to 9, upheld the claim of the Sunday
Times. It had a right to impart information about the Thalidomide case. Inferentially they thought
that the House of Lords were wrong and that the Court of Appeal were right. Three cheers for the
European Court. But what will the House of Lords do now? Will they still regard themselves as
infallible? They have Francis Mann on their side, see The Law Quarterly Review for July 1979, pp.
348-354.
3. A gagging writ
Let us hope too that the public interest will prevail so as to stop what has been called a
gagging writ. There was a company director called Wallersteiner. He tried to stop criticism of him
at a shareholders meeting. He issued a writ against the complaining shareholder: and then sought
to shut him up by saying the matter was sub judice. I dealt with this once and for all, I hope, in
Wallersteiner v Moir [1974] 1 WLR991 at 1004-1005.
I know that it is commonly supposed that once a writ is issued, it puts a stop to discussion. If
anyone wishes to canvass the matter in the press or in public, it cannot be permitted. It is said to be
sub judice. I venture to suggest that is a complete misconception. The sooner it is corrected, the
better. If it is a matter of public interest, it can be discussed at large without fear of thereby being
in contempt of court. Criticisms can continue to be made and can be repeated. Fair comment does
not prejudice a fair trial. That was well pointed out by Salmon J in Thomson v Times Newspapers
Ltd [1969] 1 WLR 1236, 1239-1240. The law says and says emphatically that the issue of a
writ is not to be used so as to be a muzzle to prevent discussion. Jacob Factor tried to suppress
the Daily Mail on that score, but failed: see R v Daily Mail (EditorJ, ex parte Factor (1928) 44 TLR
303. And Lord Reid has said that a gagging writ ought to have no effect: see Attorney-General v
Times Newspapers Ltd [1974] AC 273, 301. Matters of public interest should be, and are, open to
discussion, not with standing the issue of a writ.
So here I would hold that a discussion of company affairs at a company meeting is not a
contempt of court. Even if a writ has been issued and those affairs are the subject of litigation,
the discussion of them cannot be stopped by the magic words sub judice. It may be there are
newspaper reporters present so that the words will be published at large next day. Nevertheless,
the shareholders can discuss the company affairs quite freely without fear of offending the court.
The reason is simple. Such discussion does not prejudice fair trial of the action. No judge is likely to
read the newspaper reports, let alone be influenced by them. Nor are the members of a jury, if there
should be a jury. They do not read the reports of company meetings. In any case, they would not
remember them by the time of the trial. Mr. Lincoln suggested that someone at the meeting might use
words such as to bring improper pressure to bear on the litigants or on witnesses. If that were so, I
have no doubt the court could intervene. But that suggestion cannot be admitted as an excuse for
stifling discussion. And Lord Reid said in Attorney-General v Times Newspapers Ltd [1974] AC 273,

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296: there must be a balancing of relevant considerations. The most weighty consideration is the
public interest. The shareholders of a public company should be free to discuss the company affairs
at the company meetings, if a shareholder feels that there have been, or may be, abuses by those in
control of the company, he should be at liberty to give voice to them.
I can well see, of course, that this freedom of discussion must not be carried too far. It must
not deteriorate into disorder. The chairman must control the meeting. He must keep order. After time
enough has been allowed, he can bring the discussion to a close. If his own conduct is under fire, he
could vacate the chair, and allow it to be taken by another. If these rules are observed, there should
be no trouble.
4. The Exclusive Brethren
There remains one last point. Which are the courts to be- protected by the law of contempt?
Hitherto the question has arisen in regard to the superior courts. But do the same principles apply to
the inferior courts? We had to consider it recently when a case was pending in a local valuation court
about rates. It is Attorney-General v British Broadcasting Corporation [1979] 3 WLR 312 at 319. A
religious sect sought to stop a television broadcast which was disparaging of them. It all depended
if the Local Valuation Court was a court which the law would protect. My colleagues thought it was.
I thought it was not. I ventured to summaries the principles in these words:
How far do these principles apply to the inferior courts? I pause to say that the word inferior
is a mis-description. They are not inferior in the doing of justice: nor in the judges who man them: nor
in the advocates who plead in them. They are called inferior only because they try cases of a lesser
order of importance as it is thought. But the cases which they try are often of equal concern, to
the parties and the public. I see no reason whatever why the principles which have been evolved
for the superior courts should not apply equally to the inferior courts. The stream of justice should
be kept pure and clear in all the courts, superior and inferior, alike. That is the way in which the law
seems to be developing, as is shown by the cases on contempt of court: . . . and the cases on the
liability of judges: . . . and on absolute privilege of advocate and witness:. . . . The only qualification is
in the manner of enforcing those principles. Where there is contempt of court, if it comes to granting
injunctions or inflicting penalties, this is left to the superior courts: . . . . But otherwise the principles
should be the same for all.
But the principles which confer immunity and protection have hitherto been confined
to the well-recognised courts, in which I include, of course, not only the High Court, but also the
Crown Court, the county courts, the magistrates courts, the consistory courts and courts-martial.
The principles have not hitherto been extended to the newly established courts, of which we have so
many. The answer cannot depend on whether the word court appears in the title. There are many
newly formed bodies which go by the name of tribunal but which have all the characteristics of the
recognised courts, such as the industrial tribunals, and the solicitors disciplinary tribunal. To my
mind, the immunities and protections which are accorded to the recognised courts of the land should
be extended to all tribunals or bodies which have equivalent characteristics. After all, if the principles
are good for the old, so they should be good for the new. I would, therefore, be venturesome. I would
suggest that the immunities and protections should be extended to all tribunals set up by or under the
authority of Parliament or of the Crown which exercise equivalent functions by equivalent procedures
and are manned by equivalent personnel as those of the recognised courts of the land: ....
Applying this test, I would suggest that commercial arbitrations are excluded because they are
not set up by or under the authority of Parliament or of the Crown. Planning inquiries are excluded
because their function is not to hear and determine, but only to inquire and report. Licensing bodies
are excluded because they exercise administrative functions and not judicial: .... Assessment
committees are excluded because they are manned by laymen and not by lawyers. And so on.
What then about a local valuation court? It is the successor of the old assessment committees,
which are certainly not courts: ....
In any case, to my mind this body lacks one important characteristic of a court. It has no one
on it or connected with it who is legally qualified or experienced. To constitute a court there should
be a chairman who is a lawyer or at any rate who has at his elbow a clerk or assistant who is a

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lawyer qualified by examination or by experience, as a justices clerk is. The reason is that a lawyer
is, or should be, by his training and experience better able than others to keep to the relevant and
exclude the irrelevant; to decide according to the evidence adduced and not be influenced by outside
information; to interpret the words of statutes or regulations as Parliament intended; to have recourse
to legal books of reference and be able to consult them; and generally to know how the proceedings
of a court should be conducted.
It is for this reason that it is my opinion that the local valuation court is not a court properly so
called. . ..
My two colleagues differed from me. They held it was a court: but they agreed with me on a
more important matter. In the case of a civil action which ^ to be tried by a judge, it is very rare indeed
that a newspaper would be guilty of contempt by making comments on it. As I said (at page 319):
No professionally trained judge would be influenced by anything he read in the newspapers or
saw on television.
Conclusion
Looking at it broadly, the process of Contempt of Court is designed to secure that every person
has a fair trial; or, to put it in other words, it is a procedure by which the Court condemns any
conduct which tends to prejudice a fair trial. The Courts will restrain it by injunction beforehand or by
punishment afterwards. The present tendency is to say that the process should be left in the hands
of the Attorney- General: that he is the person who should decide whether it should be invoiced or
not. It is no doubt proper for any complaint to be laid before the Attorney-General so that he may, if
he thinks fit, institute proceedings for contempt. But it should not be exclusively in his hands. Some
cases wear a political complexion. The Attorney-General may be reluctant to take proceedings for
fear of repercussions affecting his party. So the Courts should be able to take steps at the instance
of anyone who has a sufficient interest in the matter.

2. Part two - Inquiries into conduct

1. Into the Conduct of Judges
2. Into the Conduct of Ministers
3. Into the Conduct of Directors
4. Into the Conduct of Gaming Clubs
5. Into the Conduct of Aliens
6. Into the delays of Lawyers

1. Into the conduct of judges

1. The judge who talked too much
Once upon a time there was a judge who talked too much. He asked too many questions. One
after another in quick succession. Of witnesses in the box. Of counsel in their submissions. So much
so that they counted up the number. His exceeded all the rest put together. Both counsel made it a
ground of appeal.
He was The Honourable Sir Hugh Imbert Periam Hallett whose initials gave him the nickname
Hippy* Hallett. He had been a judge for 17 years. He earned a big reputation as a junior at the bar:
and in silk for his knowledge of the law. He used to appear in the Privy Council where Lord Maugham
appreciated his talents and appointed him a judge in 1939. He started his judicial career quietly
enough but as often happens as his experience grew so did his loquacity. He got so interested
in every case that he dived deep into every detail of it. He became a byword.
The climax came in an ordinary sort of case. It is Jones_v National Coal Board [1957] 2 QB
55. The roof of a coal-mine had fallen in. A miner had been buried by it and died. The widow claimed
damages. The case was tried by Hallett J at Chester. He rejected the widows claim. She appealed
on the ground, among others, that the Judges interruptions had made it impossible for her counsel

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to put her case properly. The Board put in a cross-appeal including among others that the Judges
interruptions had prevented the Board from having a fair trial. The appeal was argued before us by
Mr. Gerald Gardiner QC (afterwards Lord Chancellor) for the widow. He was the most able advocate
I have known. On the other side side Mr. Edmund Davies QC (afterwards Lord Edmund- Davies). He
was the most resourceful. We usually in such a case give judgment straightaway at the end of the
argument. But on this occasion we reserved it for just over three weeks. We realised that it might lead
to the end of the Judges career; as it did. So we took special care. This is what I said, speaking for
the whole Court. Ibid. at 61.
We much regret that it has fallen to our lot to consider such a complaint against one of Her
Majestys judges: but consider it we must, because we can only do justice between these parties if
we are satisfied that the primary facts have been properly found by the judge on a fair trial between
the parties. Once we have the primary facts fairly found, we are in as good a position as the judge
to draw inferences or conclusions from those facts, but we cannot embark on this task unless the
foundation of primary facts is secure.
No one can doubt that the judge, in intervening as he did, was actuated by the best motives. He
was anxious to understand the details of this complicated case, and asked questions to get them clear
in his mind. He was anxious that the witnesses should not be harassed unduly in cross- examination,
and intervened to protect them when he thought necessary. He was anxious to investigate all the
various criticisms that had been made against the board, and to see whether they were well founded
or not. Hence, he took them up himself with the witnesses from time to time. He was anxious that the
case should not be dragged on too long, and intimated clearly when he thought that a point had been
sufficiently explored. All those are worthy motives on which judges daily intervene in the conduct of
cases, and have done for centuries.
Nevertheless, we are quite clear that the interventions, taken together, were far more than
they should have been. In the system of trial which we have evolved in this country, the judge sits to
hear and determine the issues raised by the parties, not to conduct an investigation or examination
on behalf of society at large, as happens, we believe, in some foreign countries. Even in England,
however, a judge is not a mere umpire to answer the question Hows that? His object, above all,
is to find out the truth, and to do justice according to law; and in the daily pursuit of it the advocate
plays an honourable and necessary role. Was it not Lord Eldon LC who said in a notable passage
that truth is best discovered by powerful statements on both sides of the question?: see. Ex parte
Lloyd (1822) Mont 70 at 72n. And Lord Greene MR who ^explained that justice is best done by a
judge who holds the balance between the contending parties without himself taking part in their
disputations? If a judge, said Lord Greene, should himself conduct the examination of witnesses, he,
so to speak, descends into the arena and is liable to have his vision clouded by the dust of conflict:
see Yuill v Yuill [1945] P 15 at 20, [1945] 1 All ER 183, 61 TLR 176.
Yes, he must keep his vision unclouded. It is all very well to paint justice blind, but she does
better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear
to see which way lies the truth: and the less dust there is about the better. Let the advocates one
after the other put the weights into the scales the nicely calculated less or more but the judge
at the end decides which way the balance tilts, be it ever so slightly. So firmly is all this established
in our law that the judge is not allowed in a civil dispute to call a witness whom he thinks might throw
some light on the facts. He must rest content with the witnesses called by the parties: see In re Enoch
& Zaretzky, Bock & Co.,[1910] 1 KB 327. So also it is for the advocates, each in his turn, to examine
the witnesses, and not for the judge to take it / on himself lest by so doing he appear to favour one
side or ;
the other: see R v Cain, (1936) 25 Cr App Rep 204. R v Bateman (1946) 31 Cr App Rep
106. and Harris v Harris (1952), Times, 9 April; Judgments of the Court of Appeal, 1952, No. 148,
by Birkett LJ especially. And it is for the advocate to state his case as fairly and strongly as he can,
without undue interruption, lest the sequence of his argument be lost: see R V Clewer (1953) 37 Cr
App Rep 37. The judges part in all this is to hearken to the evidence, only himself asking questions
of witnesses when it is necessary to clear up any point that has been overlooked or left obscure; to
see that the advocates behave themselves seemly and keep to the rules laid down by law; to exclude

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irrelevancies and discourage repetition; to make sure by wise intervention that he follows the points
that the advocates are making and can assess their worth; and at the end to make up his mind where
the truth lies. If he goes beyond this, he drops the mantle of a judge and assumes the robe of an
advocate; and the change does not become him well. Lord Chancellor Bacon spoke right when he
said that Essays or Counsels Civil and Moral: Of Judicature.Patience and gravity of hearing is an
essential part of justice; and an over-speaking judge is no well-tuned cymbal.
Such are our standards. They are set so high that we cannot hope to attain them all the time.
In the very pursuit of justice, our keenness may outrun our sureness, and we may trip and fall. That is
what has happened here. A judge of acute perception, acknowledged learning, and actuated by the
best of motives, has nevertheless himself intervened so much in the conduct of the case that one of
the parties nay, each of them has come away complaining that he was not able properly to put
his case; and these complaints are, we think, justified.
In these circumstances, we think we must grant the widow a new trial. There is one thing to
which everyone in this country is entitled, and that is a fair trial at which he can put his case properly
before the judge. The widow and the National Coal Board stand in this respect on the level. No cause
is lost until the judge has found it so; and he cannot find it without a fair trial, nor can we affirm it.
At that time Lord Kilmuir was Lord Chancellor. Of course he did not speak to me of the case
beforehand, but afterwards he told me that he was grateful to us. He sent for the Judge. It was
arranged that he should continue to sit for a little while and then resign. That he did at the end of
the summer term. It was a poignant case; for he was able and intelligent but he asked too many
questions.
After that case, there were several appeals which came before us from other judges on
similar grounds. The lawyers used to get the shorthand notes, count up the number of questions
asked by the judge and by counsel, and then ask for a new trial. But I do not remember any appeal
that succeeded on that ground. Hippy Hallett stands in isolation. Let others take heed.
2 The judge who made a mistake
In that case the mistake of the judge gave rise to a new trial and caused much expense to the
parties. No one would dream of making the judge personally liable for such an innocent mistake. But
suppose a judge makes a mistake owing to a misunderstanding; and as a result a man is wrongly
detained in prison. Can the judge be made liable in damages? The point arose in Sirros v Moore
[1974] 3 WLR 459.
Sirros was a Turk. He was given leave to come into England as a visitor. He overstayed his
leave. The magistrate recommended him for deportation and meanwhile directed that he be not
detained. Sirros appealed to the Crown Court against the recommendation for deportation. His
appeal was heard by a circuit judge and two magistrates. Sirros went into the Appeal Court a free
man. He had a solicitors clerk with him. He asked that the recommendation be reversed. The judge
dismissed his appeal. So in due course Sirros would be deported; but pending deportation, he was
not to be detained. He was still entitled to go free. But the judge cannot have realised this. He must
have thought that Sirros was already in custody. Then this happened (page 464):
. . . . The judge then announced his decision: The appeal is dismissed. Thereupon Sirros and
the solicitors clerk got up from their seats and made their way out of the court. The case was to all
appearances over. After a little while, the judge looked up. He saw Sirros leaving the court: or rather
he saw the back of his head disappearing. A minute or two later the judge called out Stop him.
Police officers hurried out after him. But he had gone. He went out of the court building in St. Jamess
Square. He got as far as Jermyn Street: but then Sergeant Moore and other police officers caught
him and brought him back. He was put in the cells. The judge meanwhile had gone to lunch.
On the judges return, counsel submitted that Sirros should not be detained, and he asked for
bail. He called witnesses as to his character. It took about an hour. The judge refused to grant bail.
So Sirros was taken away in custody.
On the very next day, Sirross counsel applied for a writ of habeas corpus....
The Divisional Court ordered that a writ of habeas corpus was to be issued. So he went free.
Ashworth J said:

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 On one matter I have no doubt whatever, and that is that the detention of this applicant was
wholly unauthorised. .
Ten days later, Sirros issued a writ against the judge and the police officers claiming damages
for assault and false imprisonment. He specified two things against the judge: (1) the order to stop
him in the morning; (2) the order in the afternoon when the judge refused to grant bail, thus continuing
the detention. He claimed against the police officers as acting on the judges orders.
Those facts raised distinctly the question whether a judge could be made liable for making a
mistake which he ought not to have made if he had been taking proper care. No such case had
arisen for 100 years or more. Sirross case was taken up by one of our new law centres for helping the
poor. It was the North Kensington Law Centre; and they instructed Lord Gifford. His great-grandfather
was Master of the Rolls 155 years ago but he is still a junior who takes up cases for the poor. The
judge was represented by the Treasury Devil, Mr. Gordon Slynn. As you might expect, it was well
argued on both sides. Then we sought to state the modern position (page 467):
Ever since the year 1613, if not before, it has been accepted in our law that no action is
maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which
belongs to him. The words which he speaks are protected by an absolute privilege. The orders which
he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings
against him. No matter that the judge was under some gross error or ignorance, or was actuated by
envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the
party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or
certiorari, or take some such step to reverse his ruling. Of course, if the judge has accepted bribes
or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the
criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not
because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able
to do his duty with complete independence and free from fear. It was well stated by Lord Tenterden
CJ in Garnett v Ferrand (1827) 6 B & C 611, 625: This freedom from action and question at the suit
of an individual is given by the law to the judges, not so much. for their own sake as for the sake of the
public, and for the advancement of justice, that being free from actions, they may be free in thought
and independent in judgment, as all who are to administer justice ought to be.
Those words apply not only to judges of the superior courts, but to judges of all ranks, high or
low. . . .
In the old days, as I have said, there was a sharp distinction between the inferior courts and the
superior courts. Whatever may have been the reason for this distinction, it is no longer valid. There
has been no case on the subject for the last one hundred years at least. And during this time our
judicial system has changed out of all knowledge. So great is this change that it is now appropriate
for us to reconsider the principles which should be applied to judicial acts. In this new age I would
take my stand on this: as a matter of principle the judges of superior courts have no greater claim
to immunity than the judges of the lower courts. Every judge of the courts of this land from the
highest to the lowest should be protected to the same degree, and liable to the same degree. If
the reason underlying this immunity is to ensure that they may be free in thought and independent
in judgment, it applies to every judge, whatever his rank. Each should be protected from liability to
damages when he is acting judicially. Each should be able to do his work in complete independence
and free from fear. He should not have to turn the pages of his books with trembling fingers, asking
himself: if I do this, shall I be liable in damages? So long as he does his work in the honest belief
that it is within his jurisdiction, then he is not liable to an action. He may be mistaken in fact. He may
be ignorant in law. What he does may be outside his jurisdiction in fact or in law but so long
as he honestly believes it to be within his jurisdiction, he should not be liable. Once he honestly
entertains this belief, nothing else will make him liable. He is not to be plagued with allegations of
malice or ill-will or bias or anything of the kind. Actions based on such allegations have been struck
out and will continue to be struck out. Nothing will make him liable except it be shown that he was not
acting judicially, knowing that he had no jurisdiction to do it.
This principle should cover the justices of the peace also. They should no longer be subject
to strokes of the rodde or spur. Aided by their clerks, they do their work with the highest degree of

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responsibility and competence to the satisfaction of the entire community. They should have the
same protection as the other judges.
The judge had no jurisdiction to detain Sirros in custody. The Divisional Court were right to
release him on habeas corpus. Though the judge was mistaken, yet he acted judicially and for that
reason no action will lie against him. Likewise, no action will lie against the police officers. They are
protected in respect of anything they did at his direction, not knowing it was wrong: ...
2. Into the conduct of ministers
So much for a judge when he is acting as a judge. But there are times when a judge is invited
by the Government of the day to undertake an inquiry or to chair a committee. He has then no special
privilege or immunity. So it behoves him to act with circumspection. The Government usually asks a
judge to do such a task when it is in a quandary. There is public unease: and the only person who can
be trusted to be impartial is a judge. He is independent of the executive: and thus can speak his mind.
Thus I was called upon in June 1963. The Government was indeed in a quandary. The Secretary
of State for War, The Rt. Hon. John Profumo, OBE, had resigned during the Whitsun recess. The
Sunday Mirror had published a photographic copy of his letter to Christine Keeler. It started Darling
and ended Love J. The newspaper had paid her for it. Rumours spread like wildfire. Not only about
Mr. Profumo and the Russian Naval Attache. But many other ministers also. Their morale was shaken
to the core. The security of the realm was said to be endangered. Nothing like it has been seen since
Titus Oates spread his lies in 1678 when Macaulay tells us the capital and the whole nation was mad
with hatred and fear. The members of the House of Commons held a debate on Monday, 17 June
1963. On the Friday, 21 June 1963, the Prime Minister (Mr. Harold Macmillan) asked me to inquire
into the security situation. Some have since said that, as a judge, I should not have accepted the
task because of its political overtones. But I felt, and still feel, that when the security of the State
was involved, it was my duty to do what I was asked. I still have a copy of my reply on 24 June 1963:
Dear Prime Minister,
It is a great responsibility with which you have entrusted me and I feel very apprehensive of
my ability to carry it out. All I can say is that I will do my very best faithfully to perform the task.
Yours sincerely,
Denning.
As it was so urgent and important, I put everything else aside. I did it alone. Just two secretaries
and two shorthand- writers. I had a room in the Treasury in Whitehall. There I saw Ministers of the
Crown, the Security Service, rumour- mongers and prostitutes. They all came in by back doors and
along corridors secretly so that the newspapers should not spot them. Some of the evidence I heard
was so disgusting even to my sophisticated mind that I sent the lady shorthand-writers out and
had no note of it taken. On one occasion the photographers were allowed in to see me at work. I
kept them at a far distance so that they should not see what I was writing. Afterwards they blew up
the photograph and published me writing a letter Dear Minister. They accused me the guardian
of security of lack of proper care in security. Quis custodiet ipsos custodes who will guard the
guards themselves? (Afterwards they were rebuked by the Press Council.) One young lady, Mandy
Rice- Davies, said to the newspapers, Quite the nicest Judge I have ever met.
Every weekend I went home and worked there on the papers. Invariably the journalists arrived
with photographers. On the day when I made my report, a score or more of them were on our
country station. They took photographs showing the chickens on the platform. They travelled up in the
same train. Independent television made a film about me with the refrain running through, Onward,
Christian soldiers.
If you are interested in the story itself, you can read it all in .r y Report of 16 September 1963. It
was a best-seller. The Daily Telegraph published it in full as a supplement to their paper. There were
queues at the Stationery Office wanting to buy it. Right up till midnight. It became a common joke that
B.C. and A.D. stood for Before Christine and After Denning.
But, for those of the new generation who will not have read the Report, I will set out the
principles on which I conducted the inquiry. Cmnd. 2 1 5 2 , paras. 5 9 .

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 It has been much debated what is the best way to deal with matters such as those referred to
me. The appointment of a tribunal under the Tribunal of Inquiries Act 1921 is an elaborate and costly
machine, equipped with all the engines of the law counsel, solicitors, witnesses on oath, absolute
privilege, openness to the public (so far as possible) and committal for contempt but it suffers from
the invincible drawback, in doing justice, that there is no prosecution, no charge, and no defence.
The appointment of a Select Committee of one or both Houses of Parliament is a very representative
body, but it is said to suffer from the drawback (to some eyes) that the inquisitors are too many and
may be influenced in their, often divergent, views by political considerations, so that there may be
too much dissent to carry authority. Now there is this inquiry which I have been entrusted with alone.
It has the advantage that there can be no dissent, but it has two great disadvantages: first, being
in secret, it has not the appearance of justice; second, in carrying out the inquiry, I have had to be
detective, inquisitor, advocate and judge, and it has been difficult to combine them. But I have come
to see that it has three considerable advantages. First, inasmuch as it has been held in private and
in strict confidence, the witnesses were, I am sure, much more frank than they would otherwise
have been. Secondly, I was able to check the evidence of one witness against that of another more
freely. Thirdly^ and most important, aspersions cast by witnesses against others (who are not able
to defend themselves) do not achieve the publicity which is inevitable in a Court of Law or Tribunal
of Inquiry.
You were good enough to say that, if I needed further powers, I was to ask for them. I have
not felt the need. Every witness whom I asked to come, has come, without being subpoenaed. Every
witness has answered the questions I put to him, without being threatened with contempt. I have
been told as much truth without an oath as if it were on oath. It was not the lack of powers which
handicapped me. It was the very nature of the inquiry with which I was entrusted.
At every stage of this inquiry [ have been faced with this great anxiety: How far should I go
into matters which seem to show that someone or other has been guilty of a criminal offence, or of
professional misconduct, or moral turpitude, or even incompetence? My inquiry is not a suitable body
to determine guilt or innocence. I have not the means at my disposal. No witness has given evidence
on oath. None has been cross examined. No charge has been preferred. No opportunity to defend
has been open. It poses for me an inescapable dilemma: On the one hand, if I refrain from going
into such matters, my inquiry will be thwarted. Questions that have been asked in the public interest
will not be answered. Suspicions that have already fallen heavily on innocent persons may not be
removed. Yet, on the other hand, if I do go into these matters I may well place persons under a cloud
when it is undeserved: and I may impute to them offences or misconduct which they have never had
the chance to rebut. Above all I have to remember that the information that I have been given has
been given in confidence. In order to enable every witness to speak frankly and truly to me, I have
assured each one that what they tell me is in strict confidence and will be used only for the purposes
of my inquiry and report. This means that, whatever I say in this report, it should not be used for
any other purpose: in particular none of it should be used for the purposes of any prosecution or
proceeding against anyone. But I cannot, of course, prevent anyone from seeking evidence aligned
and acting on it.
Such being the inescapable difficulties inherent in this form of inquiry, I have come to the
conclusion that all I can do is this:
When the facts are clear beyond controversy, I will state them as objectively as I can, irrespective
of the consequences to individuals: and I will draw any inference that is manifest from those facts. But
when the facts are in issue, I must always remember the cardinal principle of justice that no man is to
be condemned on suspicion. There must be evidence which proves his guilt before he is pronounced
to be so. I will therefore take the facts in his favour rather than do an injustice which is without remedy.
For from my findings there is no appeal.
To those who in consequence will reproach me for white-washing, I would make this answer:
While the public interest demands that the facts should be ascertained as completely as possible,
there is a yet higher public interest to be considered, namely, the interest of justice to the individual
which overrides all other. At any rate, speaking as a Judge, I put justice first.
Next I will set out one sentence in which I reached my conclusion, adverse, I fear, to the Prime
Minister and his colleagues (para. 286):

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 . ... It was the responsibility of the Prime Minister and his colleagues, and of them only, to deal
with this situation: and they did not succeed in doing so.
Finally, in my conclusion I dealt with the rumours which had caused so much disturbance in
the country (paras. 339 343):
I know that Ministers and others have felt so aggrieved by the rumours about them that they
have contemplated bringing actions for libel or slander in respect of them. I know, too, that they
have refrained from doing so pending my inquiry. I hope, however, that they will not feel that honour
requires them to pursue these matters further. My findings will, I trust, be accepted by them as a full
and sufficient vindication of their good names. It is, I believe, better for the country that these rumours
should be buried and that this unfortunate episode should be closed.
Equally I trust that all others will now cease to repeat these rumours which have been proved
so unfounded and untrue: and that newspapers and others will not seek to put names to those whom
I have deliberately left anonymous. For I fear that, if names are given, human nature being what it is,
people will say theres no smoke without fire a proposition which in this instance is demonstrably
untrue.
This brings me to the end. It might be thought indeed it has been thought by some that
these rumours are a symptom of a decline in the integrity of public life in this country. I do not believe
this to be true. There has been no lowering of standards. But there is this difference today. Public men
are more vulnerable than they were: and it behoves them, even more than ever, to give no cause for
scandal. For if they do, they have to reckon with a growing hazard which has been disclosed in the
evidence I have heard. Scandalous information about well-known people has become a marketable
commodity. True or false, actual or invented, it can be sold. The greater the scandal the higher the
price it commands. If supported by photographs or letters, real or imaginary, all the better. Often
enough the sellers profess to have been themselves participants in the discreditable conduct which
they seek to exploit. Intermediaries move in, ready to assist the sale and ensure the highest prices.
The story improves with the telling. It is offered to those newspapers there are only a few of them
who deal in this commodity. They vie with one another to buy it. Each is afraid the other will get it first.
So they buy it on chance that it will turn out profitable. Sometimes it is no use to them. It is palpably
false. At other times it is credible. But even so, they dare not publish the whole of the information. The
law of libel and the rules of contempt of court exert an effective restraint. They publish what they can,
but there remains a substantial part which is not fit for publication. This unpublished part goes round
by word of mouth. It does not stop in Fleet Street. It goes to West minister. It crosses the Channel,
even the Atlantic and back again, swelling all the time. Yet without the original purchase, it might
never have got started on its way.
When such deplorable consequences are seen to ensue, the one thing that is clear is that
something should be done to stop the trafficking in scandal for reward. The machinery is ready to
hand. There is a new Press Council already in being.
Although I have felt it necessary to draw attention to this matter, I would like to say that I have
had the greatest cooperation and assistance from the newspapers and all concerned with them; and
not least from those whose practices I hold to be open to criticism.
Following the Report, Mr. Harold Macmillan fell ill; and resigned. Sir Alec Douglas-Home
became Prime Minister. There was a debate on 16 December 1963 in the House of Commons on
Security and the Denning Report. In the course of it Mr. Harold Macmillan said 686 HC Official
Report (5th Series), col. 911 (16 December 1963).
This debate takes place in circumstances very different, as far as I personally am concerned,
from what I had envisaged up to two months ago, .... I wished to express publicly what I have, of
course, expressed, privately, my gratitude to Lord Denning for undertaking the delicate and difficult
task which I asked him to perform. I am sure that is the universal view in the House and in the country.
Later on it was made clear that there ought never to be an inquiry like it again. A Royal
Commission on Tribunals of Inquiry under the Chairmanship of Lord Justice Salmon, reporting in
1966, made this comment.
Lord Dennings Report was generally accepted by the public. But this was only because of
Lord Dennings rare qualities and high reputation. Even so, the public acceptance of the Report may
be regarded as a brilliant exception to what would normally occur when an inquiry is carried out
under such conditions.

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 3. Into the conduct of directors
1. Behind the curtain
Our system of company law has only been in existence for some 120 years. It is the universal
medium of business. Most merchants and most traders are now limited liability companies. Not only in
England but also in countries overseas. The law, however, has let down a curtain which conceals the
goings on of the directors and managers of a company. Beneath this curtain all sorts of fraud can be
perpetrated on customers, on creditors and on shareholders. In many cases in the Court of Law,
I have myself sought to pull aside the curtain: but the majority view is against it. The only machinery
so far provided by Parliament is for the Department of Trade to appoint inspectors to hold an inquiry.
The inspectors are usually an eminent Queens Counsel all Queens Counsel are by definition
eminent and a distinguished chartered accountant equally all are distinguished. They have a
very unenviable task. They have to investigate all that the directors and managers have done and to
report upon it. These inquiries have been known to take years. They involve great expense. And at
the end as often as not the inspectors are criticised. It is said that they acted unfairly: and that
their report should be ignored. The matter is of such importance that we have endeavoured to lay
down the principles on which inspectors should act.
2. The Pergamon Press
The issues were raised acutely when there was an inquiry into the affairs of Pergamon Press
Ltd. It was held by two good men. Mr. Owen Stable QC - a son of Mr. Justice Stable and himself of
judicial calibre: and Mr. Ronald Leach CBE, (now Sir Ronald Leach, GBE), the senior partner of Peat
Marwick. You could not find a better pair anywhere. They had trouble with Mr. Robert Maxwell from
the very start. When he came to give evidence, this is what happened (see Re Pergamon Press Ltd
[1971] Ch 388 at 398):
A little later the inspectors called on the directors to give evidence. Each of them refused.
Typical was the attitude of Mr. Robert Maxwell himself. He came with his solicitor, Mr. Freeman, to
the place where the inspectors were meeting. He gave his name and address and said that he was
the holder of the Military Cross and a member of Parliament. Then Mr. Stable, a Queens Counsel,
one of the inspectors, asked him this simple question. When did you first become associated with
Pergamon Press Ltd? to which Mr. Maxwell replied: Mr. Stable, in view of the submissions made on
my behalf by Mr. Freeman, I respectfully refuse to answer any further questions unless I am ordered
to do so by the court. This attitude left the inspectors with no alternative but to report the refusal to
the court.
This is how we concluded (at page 401):
They had promised full co operation, yet when asked the simple question: When did you first
become associated with Pergamon Press Ltd? each of them refused to answer. No wonder the
inspectors certified their refusal to the court. No wonder the court held their refusal to be unjustified.
The judge was merciful to them. I le did no more than order them to pay the costs of the application.
If they should seek to take again such unwarranted points, they can expect no mercy. They will be
treated in like manner as if they had been guilty of contempt of court.
Afterwards the inspectors proceeded with their inquiry and made an interim report Mr. Maxwell
made complaint about it. He asked for an injunction to restrain the inspectors going on with the
inquiry. There was a difference between the two Judges about the Iegal position. This I sought to
solve in this way (see Maxwell v Department of Trade [1974] QB 523 at 533):
In view of this difference between the judges, I will try to state the considerations which are to
be borne in mind in respect of an inquiry under the Companies Act 1948. First and foremost: when a
matter is referred to an inspector for investigation and report, it is a very special kind of inquiry. It must
not be confused with other inquiries which we have had to consider. Remember what it is not. It is not
a trial of anyone, nor anything like it. There is no accused person. There is no prosecutor. There is no
charge. It is not like a disciplinary proceeding before a professional body. Nor is it like an application
to expel a man from a trade union or a club, or anything of that kind. It is not even like a committee
which considers whether there is a prima facie case against a person. It is simply an investigation,
without anyone being accused.

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 Second: there is no one to present a case to the inspector. There is no counsel for the
commission. The inspector has to do it all himself. He has himself to seek out the relevant documents
and to gather the witnesses. He has himself to study the documents, to examine the witnesses and to
have their evidence recorded. He has himself to direct the witnesses to the relevant matters. He has
himself to cross- examine them to test their accuracy or their veracity. No one else is there to cross
examine them. Even if a witness says things prejudicial to someone else, that other does not hear it
and is not there to cross examine him.
Third: the investigation is in private. This is necessary because witnesses may say something
defamatory of someone else, and it would be quite wrong for it to be published without the party
affected being able to challenge it. The only persons present are the inspectors and their staff, the
shorthand writer, the witness and his lawyers, if he desires them.
Fourth: the inspectors have to make their report. They should state their findings on the
evidence and their opinions on the matters referred to them. If their report is to be of value, they
should make it with courage and frankness, keeping nothing back. The public interest demands it. It
may on occasion be necessary for them to condemn or criticise a man. Before doing so, they must
act fairly by him. . . .
. ... It must be remembered that the inspectors are doing a public duty in the public interest.
They must do what is fair to the best of their ability. They will, of course, put to a witness the points
of substance which occur to them so as to give him the chance to explain or correct any relevant
statement which is prejudicial to him. They may even recall him to do so. But they are not to be
criticised because they may on occasion overlook something or other. Even the most skilled advocate,
expert in cross examination, forgets now and again to put this or that point to a witness. And we all
excuse him, knowing how difficult it is to remember everything. The inspector is entitled to at least
as much consideration as the advocate. To borrow from Shakespeare, he is not to have all his faults
observed, set in a notebook, learned, and connd by rote, to make a lawyers holiday. His task is
burdensome and thankless enough as it is. It would be intolerable if he were liable to be pilloried
afterwards for doing it. No one of standing would ever be found to undertake it. The public interest
demands that, so long as he acts honestly and does what is fair to the best of his ability, his report is
not to be impugned in the courts of law.
In conclusion, I would say this: I have studied all the points of detail which have been put to
us. And I have read the judgment of Wien J upon them. I would like to express my appreciation of it
and endorse all that he said. This is nothing more nor less than an attempt by Mr. Maxwell to appeal
from the findings of the inspectors to the courts. But Parliament has given no appeal. So Mr. Maxwell
has tried to get round it by attacking the conduct of the inspectors themselves. In this he has failed
utterly. To my mind the inspectors did their work with conspicuous fairness. They investigated all
the matters with the greatest care. They went meticulously into the details of these complicated
transactions. They put to Mr. Maxwell ail the points which appeared to call for an explanation or an
answer. They gave him every opportunity of dealing with them. If there were one or two points which
they overlooked, these were as nothing in relation to the wide field which they covered. I regret that,
having done their work so well, they should now be harassed by this attack upon them. It has never
been done before in all the many inquiries under the Companies Acts. And I hope it will never happen
again. .
3. Can the directors stop it?
In the next case the company hit out at an early stage. They tried to stop the inspectors from
starting an inquiry at all. They said that the Secretary of State had done wrong in appointing them. It
was in Norwest Holst v Secretary of State for Trade [1978] Ch 201 at 223. This is how we dealt with it:
It is important to know the background of the legislation. It ? sometimes happens that public
companies are conducted in a way which is beyond the control of the ordinary shareholders. The
majority of the shares are in the hands of two or three individuals. These have control of the companys
affairs. The other shareholders know little and are told little. They receive the glossy annual reports.
Most of them throw them into the wastepaper basket. There is an annual general meeting but few of
the shareholders attend. The whole management and control is in the hands of the directors. They
are a self-perpetuating oligarchy: and are virtually unaccountable. Seeing that the directors are the

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guardians of the company, the question is asked: Quis custodiet ipsos custodes -- Who will guard
the guards themselves?
It is because companies are beyond the reach of ordinary individuals that this legislation has
been passed so as to enable the Department of Trade to appoint inspectors to investigate the affairs
of a company. . . .
. . . . There are many cases where an inquiry is held not as a judicial or quasi-judicial inquiry
but simply as a matter of good administration. In these circumstances there is no need to give
preliminary notice of any charge, or anything of that sort. Take the case where a police officer is
suspected of misconduct. The practice is to suspend him pending inquiries. He is not given notice of
any charge at that stage, nor any opportunity of being heard. The rules of natural justice do not apply
unless and until it is decided to take proceedings. Other instances can be given in other fields. For
instance, The Stock Exchange may suspend dealings in a companys shares. They go by what they
know, without warning the company beforehand.
We know that, when these inquiries are held, those persons who are the subject of them often
complain about them. They say that the machinery operates unfairly against them. Such complaints
are usually unfounded. They are made so as to delay the inquiry, or to lessen the effect of the
report of the inspectors. But, whether well founded or unfounded, it is no reason for abandoning
this machinery. It is the only means given to the public by which the conduct of companies can be
investigated. Parliament has clearly enacted that there should be power under the control of the
Board of Trade, on behalf of the public at large for an inquiry to be made into the conduct of the
affairs of a company, if there are circumstances which appear to the minister to suggest fraud,
misfeasance or other misconduct. I do not think we should encourage or support any attempt to
delay or hold up the inquiry. To my mind the action is without foundation. The judge was quite right
to strike it out.
4. A useful weapon
Parliament has, however, given a weapon which may be useful sometimes to detect fraud. It is
something akin to a search warrant. It is given by section 441 of the Companies Act 1948. It enables
a judge to make an order for the inspection of a companys books in cases where it is suspected
that there has been an offence in connection with the management of a companys affairs.
It came to our notice when a company contracted to do work on the terms that it should be paid
on cost plus terms: that is, it should be paid the amount it had paid to its subcontractor, plus a profit
of 20 per cent for itself. Instead of making out this account honestly, they entered into their books a
higher sum as cost than they had actually paid the subcontractor. Whilst this fraudulent method was
being perpetrated, they took on a new employee in their accounts department. He discovered the
fraud. He told the management they ought not to do it. He was dismissed. He told the police. They
told the Director of Public Prosecutions. He could do nothing unless he could see the companys
books of account to see what they paid the subcontractor and so forth. If the company were
warned beforehand, the evidence might soon disappear. So the Director of Public Prosecutions took
advantage of section 441 of the Companies Act 1948. He went to a High Court judge and applied ex
parte for an order authorising his officers to inspect the books and requiring the Secretary to produce
them. The judge felt that the statute should be construed narrowly and refused to make any such
order.
The Director of Public Prosecutions wanted to appeal to us. He gave notice and we were all
ready to hear it. Then to our surprise we were told the appeal would not be effective. It would only be
put into the list to be mentioned and then withdrawn. When it was mentioned, counsel got up and
told us the reason. It was because there was a clause in section 441 which said: The decision of a
judge of the High Court on an application under this Section shall not be appealable. We exploded
at once. We could not allow such a clause to prevent us hearing an appeal if the judge had gone
wrong in his law. That only applied if he had gone wrong on the facts. So we h id it put into the list for
a full hearing. We had the assistance of the Official Solicitor who instructed counsel. As it was urgent,
we heard it on the last day of the summer term. We allowed the appeal and authorised the Director of
Public Prosecutions to go ahead. He was empowered to inspect the books and require the Secretary
to produce them. The case is entitled Re a Company. (1979) 123 Sol Jo 584, CA.

55 ENGLISH
 4. Into the conduct of gaming clubs
In most inquiries, the rules of natural justice apply. If the conduct of a person is under investigation
he is entitled to know what is said against him so that he can answer it. But there are exceptions:
especially where information is given by informers. Their names may have to be kept secret else
the source of information would dry up. Even the information itself may have to be limited. It is a nice
question which came up for discussion in the case of JR v Gaming Board (1970) 2 WLR 1009.
Crockfords is one of the most famous gaming clubs in London. It has premises of distinction
at 16 Carlton House Terrace, They play there the familiar games: chemin-de-fer, baccarat, roulette,
blackjack and craps. (Some years after this case I went there myself not to play any game whatever:
but to open a display of Magna Carta: and to have a good dinner). By the Gaming Act 1968 all these
gaming clubs had to have a licence and for this purpose they had to apply to the Gaming Board
for a certificate of consent. Crockfords duly applied, but the Gaming Board refused it. They said
that those who ran the club were associated with certain persons of unacceptable background and
reputation.
The Board refused to disclose some confidential information which they had. Thereupon
Crockfords instructed that redoubtable advocate, Mr. Quintin Hogg QC (as he then was). The Board
instructed a first-class opponent, Mr. Raymond Kidwell QC. We had on that occasion Lord Wilber
force with us. On very rare occasions if the House can spare us a Law Lord, he comes to help us. It
was an infinite advantage to have Lord Wilberforce the best judicial mind of the day. There were
several points in the case but on this matter of disclosure of the source of information, this is what I
said (at page 1017):
I do not think they need tell the applicant the source of their information, if that would put their
informant in peril or otherwise be contrary to the public interest. Even in a criminal trial, a witness
cannot be asked who is his informer. The reason was well given by Lord Eyre CJ in Hardys case [R
v Hardy] 24 State Trials 199, 808:
. . . . there is a rule which has universally obtained on account of its importance to the public
for the detection of crimes, that those persons who are the channel by means of which that detection
is made, should not be unnecessarily disclosed.
And Buller J added, at p.818: . . . . if you call for the name of the informer in such cases, no
man will make a discovery, and public justice will be defeated .... That reasoning applies with equal
force to the inquiries made by the Gaming Board. That board was set up by Parliament to cope
with disreputable gaming clubs and to bring them under control. By bitter experience it was learned
that these clubs had a close connection with organised crime, often violent crime, with protection
rackets and with strong-arm methods. If the Gaming Board were bound to disclose their sources of
information, no one would tell on those clubs, for fear of reprisals. Likewise with the details of the
information. If the board were bound to disclose every detail, that might itself give the informer away
and put him in peril. But, without disclosing every detail, I should have thought that the board ought
in every case to be able to give to the applicant sufficient indication of the objections raised against
him such as to enable him to answer them. That is only fair. And the board must at all costs be fair. If
they are not, these courts will not hesitate to interfere.
Accepting that the board ought to do all this when they come to give their decision, the
question arises, are they bound to give their reasons? I think not. Magistrates are not bound to give
reasons for their decisions: see R v North umber land Compensation Appeal Tribunal,ex parte Shaw
[1952] 1 KB 338 at 352. Nor should the Gaming Board be bound. After all, f the only thing that they
have to give is their opinion as to the capability and diligence of the applicant. If they were asked by
the applicant to give their reasons, they could answer quite sufficiently: In our opinion, you are not
likely to be capable of or diligent in the respects required of you. Their opinion would be an end of
the matter.
Tested by those rules, applying them to this case, I think that the Gaming Board acted with
complete fairness. . ..x
That ruling came up for consideration by the House of Lords two years later. Henry Rogers
wanted to manage bingo halls. He applied to the Gaming Board for consent. They refused. It appears

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that they had asked the Chief Constable of Sussex for a report about Rogers. The Chief Constable
had given the Gaming Board information which was highly defamatory of Rogers. The Board had
this report before them but did not show it to Rogers. Afterwards, someone in some way very
devious, no doubt abstracted it from the file and gave a copy of it to Rogers. Rogers sought to take
proceedings for libel. He failed. The case went as far as the House of Lords. It is R v Lewes JJ [1973]
AC 388 at 402. in which Lord Reid approved our decision, saying:
Natural justice requires that the board should act in good faith and that they should, as far as
possible, tell him the gist of any grounds on which they propose to refuse his application so that he
may show it to be unfounded in fact. But the board must be trusted to do that: we have been referred
to their practice in the matter and I see nothing wrong with it.

5. Into the conduct of aliens

Now there is one type of inquiry in which natural justice is excluded. It is when it is necessary
in the interests of national security. There is some information which is so secret that it cannot be
disclosed except to a very few. This country, like all others, has its own intelligence service. It
has its own spies or agents, just as others have. Their very lives may be endangered if there is the
slightest hint of what they are doing. In one case (of which the public know nothing) many of our
agents disappeared. They were lost beyond trace. They were eliminated by a foreign power. The
information is known to the Security Service but to no one outside.
It is information of this kind which was hinted at no more than hinted at in the case of
Mark Hosenball, R Home Secretary, ex parte Hosenball [1977] 1 WLR 766. We did not compel
disclosure of it and for it we have been criticised in many quarters. So I would like to explain it.
Mark Hosenball was an American journalist. He came here when he was only 18 and took part
in investigative journalism. He had permission from the Home Office to be here. His permit had four
weeks to go when (page 777):
. . . he received a letter from the Home Office. It told him that he could no longer stay because
the Secretary of State had decided to deport him. The reason was because it was in the interests of
national security. I will read the statement / which was enclosed with the letter. ...
That statement is couched in official language: but translated into plain English it means that
the Secretary of State believes that Mr. Hosenball is a danger to this country. So much so that his
presence here is unwelcome and he can no longer be permitted to stay. This belief is founded on
confidential information which has been placed before the Home Secretary. It is to the effect that
Mr. Hosenball is one of a group of people who are trying to obtain information of a very sensitive
character about our security arrangements. Their intention is to publish it, or some of it, in a way
which will imperil the lives of the men in our secret service. The crucial charge against him is that he
has information prejudicial to the safety of the servants of the Crown and is proposing to publish
it. If that charge be true, he should certainly be deported. We cannot allow our mens lives to be
endangered by foreigners.
Now I would like to say at once that if this were a case in which the ordinary rules of natural
justice were to be observed, some criticism could be directed upon it. For one thing the Home
Secretary himself, and I expect the advisory panel also, had a good deal of confidential information
before them of which Mr. Hosenball knew nothing and was told nothing: and which he had no
opportunity of correcting or contradicting, or of testing by cross examination. In addition, he was not
given sufficient information of the charges against him so as to be able effectively to deal with them
or answer them. All this could be urged as a ground for upsetting any ordinary decision of a court of
law or of any tribunal, statutory or domestic. . . .
But this is no ordinary case. It is a case in which national security is involved: and our history
shows that, when the state itself is endangered, our cherished freedoms may have to take second
place. Even natural justice itself may suffer a set-back. Time after time Parliament has so enacted
and the courts have loyally followed. In the first world war in R v Halliday [1917] AC 260
at 270. Lord Fin lay LC said: The danger of espionage and of damage by secret agents .... had to
be guarded against. In the second world war in Liversidge v Sir John Anderson [1942] AC 206 at
219. Lord Maugham said:

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 . . . there may be certain persons against whom no offence is proved nor any charge formulated,
but as regards whom it may be expedient to authorise the Secretary of State to make an order for
detention.
That was said in time of war. But times of peace hold their dangers too. Spies, subverters
and saboteurs may be mingling amongst us, putting on a most innocent exterior. They may be
endangering the lives of the men in our secret service, as Mr. Hosenball is said to do.
If they are British subjects, we must deal with them here. If they are foreigners, they can be
deported. The rules of natural justice have to be modified in regard to foreigners here who prove
themselves unwelcome and ought to be deported.
The information supplied to the Home Secretary by the Security Service is, and must be,
highly confidential. The public interest in the security of the realm is so great that the sources of the
information must not be disclosed nor should the nature of the information itself be disclosed if
there is any risk that it would lead to the sources being discovered. The reason is because, in this
very secretive field, our enemies might try to eliminate the sources of information. So the sources
must not be disclosed. Not even to the House of Commons. Nor to any tribunal or court of inquiry
or body of advisers, statutory or non-statutory. Save to the extent that the Home Secretary thinks
safe. Great as is the public interest in the freedom of the individual and the doing of justice to him,
nevertheless in the last resort it must take second place to the security of the country itself. So
much so that arrests have not been made, nor proceedings instituted, for fear that it may give away
information which must be kept secret. This is in keeping with all our recent cases about confidential
information. When the public interest requires that information be kept confidential, it may outweigh
even the public interest in the administration of justice. . . .
There is a conflict here between the interests of national security on the one hand and the
freedom of the individual on the other. The balance between these two is not for a court of law. It is
for the Home Secretary. He is the person entrusted by Parliament with the task. In some parts of
the world national security has on occasions been used as an excuse for all sorts of infringements
of individual liberty. But not in England. Both during the wars and after them, successive ministers
have discharged their duties to the complete satisfaction of the people at large. They have set up
advisory committees to help them, usually with a chairman who has done everything he can to
ensure that justice is done. They have never interfered with the liberty or the freedom of movement
of any individual except where it is absolutely necessary for the safety of the state. In this case we
are assured that the Home Secretary himself gave it his personal consideration, and I have no
reason whatever to doubt the care with which he considered the whole matter. He is answerable to
Parliament as to the way in which he did it and not to the courts here.
6. Into the delays of lawyers
1. Into the Courts of Law
Ever since lawyers have been going, the layman has complained of their delays: and for just so
long, the lawyers have been making excuses. The most common excuse is their busyness. You will
remember that some 600 years ago Chaucer said of the Sergeant of the Lawe:
No-wher so bisy a man as he ther nas,
And yet he semed bisier than he was.
It is, I know, a common ploy among barristers to seme bisier than they are. If you are busy, you
are successful: if you are not busy, you are a failure. So it is important to seme bisy. I well remember
when I was young at the bar and expecting a client I would set out on my table the briefs and
cases for opinion, all tied up in red tape, so as to seem busy. But most of them would be dead. They
had been finished and done with long before. It was only after ten years or so that my table would be
crowded out with live* instructions piling one on another.
The real reason for the delays of lawyers is not slackness or dilatoriness. They are as a class
the most hardworking of all professional men. It often lies in their choice of priorities. Each case is
important and must be dealt with. Each letter must be answered the same day or at any rate the next.
A sudden call puts something else out of mind. Sometimes it is that he is a slow worker. More often

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that he is too meticulous. Sometimes it is that he does not know enough, and has to look it all up.
Sometimes that he is short of staff or someone falls ill. All these are excuses which may avail him
before the Almighty. But none of them avail him before the individual client. Nor before us. The courts
expect each clients case to be dealt with expeditiously. At any rate they have so expected since our
great case of Allen v Mc Alpine [1968] 2 QB 229, [1968] 2 WLR 366. I describe it as a great case
because we reserved it over the Christmas vacation: and at the time Lord Justice Diplock remarked
to me that it was the most important we had done.
Let me explain first that, in a civil case, the pace is set by the plaintiff who is making the claim. It
is he who has to issue the writ and to serve it. It is he who has to put in the statement of claim and to
serve it. It is he who can call upon the defendant to put in a defence or else suffer the consequences.
If the plaintiff himself takes a long time over the things he has to do, the case may drag on indefinitely.
And so it used to be before Allen v Mc Alpine. The Rules laid down a timetable with which the plaintiff
was supposed to comply: but he never suffered for his non-compliance. He always got an extension
of time for the asking. I cannot do better than set out the opening pages of our judgment [1968] 2
WLR 366 at 369-371.
In these three cases the laws delays have been intolerable. They have lasted so long as to
turn justice sour. I will give details later, but in outline they stand thus. In the first case a widow lost
her husband nearly nine years ago. He was killed at his work. She had a good claim to compensation
from his employers for herself and her two small children. Her case has not yet been set down for
trial. In the second case, a nurse complained that she strained her back over nine years ago whilst
lifting a patient. It meant a year off work. If her story is true, she was entitled to compensation from
the hospital authorities. They have not even yet put in a defence to the claim. In the third case, a man
of business bought shares nearly fourteen years ago for 20,000. He brought an action complaining
that he was deceived in the deal, and that his company was let down by the solicitors. The man who
sold the shares has since died. His estate cannot be administered whilst this suit is hanging over it.
His widow cannot receive the money he bequeathed to her. Yet the suit has not yet been entered for
trial.
In none of the three cases has the party himself been at fault. The widow, the nurse and the
man of business, each one of them wanted to get on. The fault, I regret to say, has been with the
legal advisers. It is not that they wilfully neglected the cases. But they have put them on one side,
sometimes for months, and even for years, because of the pressure of other work or of other claims on
their time. Hence these ills. And these are not the only examples. A few months ago we had a couple
of cases of like sort. One was on 9 March 1967, Reggentin v Beecholme Bakeries Ltd (1967) 111 Sol
Jo 216. The other was on 17 March 1967, Fitzpatrick v Batger & Co Ltd [1967] 2 All ER 657, [196-?]
1 WLR 706, CA. We said (1967) 111 Sol Jo 216, CA. Delay in these cases is much to be deplored.
It is the duty of the plaintiffs advisers to get on with the case. Every year that passes prejudices the
fair trial. We struck out those cases for want of prosecution. This meant that the injured plaintiffs
could not recover their compensation from the defendants. But they could recover it from their own
negligent solicitors. These cases have brought home to lawyers that they must get on. A note in the
Supreme Court Practice (1967) 2nd supp., p.4, para. 25/1/3, says that: These emphatic decisions
of the Court of Appeal, which lay down a more stringent practice than was formerly followed, have
injected a new element of expedition in the conduct and preparation of cases before trial, especially
in relation to accident cases. Plaintiffs solicitors who do not get on with their cases will be at risk
of having the plaintiffs action dismissed for want of prosecution and themselves rendered liable for
negligence to the plaintiff as their own former client.
Following those decisions, several other cases have been struck out for delay. These three are
among them. The plaintiffs appeal to this court. I say the plaintiffs appeal, but we cannot shut our
eyes to the fact that the plaintiffs solicitors and their insurers are very much concerned in the appeals
lest they be held liable for negligence. The Law Society too are concerned, for counsel appeared
for them and asked to be heard. We permitted him as amicus curiae to address us on the issues of
public policy involved.
It was urged that we ought not to strike out a mans action without trial because it meant
depriving him of his right to come to the Queens Courts. Magna Carta was invoked against us as if

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we were in some way breaking its provisions. To this there is a short answer. The delay of justice is
a denial of justice. Magna Carta will have none of it. To no one will we deny or delay right or justice
Magna Carta, ch. 40.
All through the years men have protested at the laws delay and counted it as a grievous
wrong, hard to bear. Shakespeare ranks it among the whips and scorns of time Hamlet, Act III, sc.
1. Dickens tells how it exhausts finances, patience, courage, hope Bleak House, ch. 1. To put right
this wrong, we will in this court do all in our power to enforce expedition: and, if need be, we will
strike out actions when there has been excessive delay. This is a stern measure. But it is within the
inherent jurisdiction of the court. And the Rules of Court expressly permit it. It is the only effective
sanction they contain. If a plaintiff fails within the specified time to deliver a statement of claim, or to
take out a summons for directions, or to set down the action for trial, the defendant can apply for the
action to be dismissed, see R.S.C. (Rev. 1965), Ord. 19, r. 1; Ord. 25, r. 1; Ord. 34, r. 2. It was argued
before us that the court should never, on the first application, dismiss the action. Even if there was
long delay, the court should always give the dilatory solicitor one more chance. The order should be
that the action should be dismissed unless he takes the next step within a stated time. Such has
been the practice, it was said, for a great many years. It was confirmed by Sir George Jessel MR in
Eaton v Storer (1882) 22 Ch D 91 at 92. and it should not be changed without prior notice. I cannot
accept this suggestion. If there were such a practice, there would be no sanction whatever against
delay. The plaintiffs solicitor could put a case on one side as long as he pleased without fear of the
consequences.
If you read Eaton v Storer (1882) 22 Ch D 91. carefully, you will see that the practice described
by Sir George Jessel applies only to moderate delays of two or three months. It does not apply when
there is some special circumstance such as excessive delay Ibid. at 92. The principle upon which we
go is clear: When the delay is prolonged and inexcusable, and is such as to do grave injustice to one
side or the other or to both, the court may in its discretion dismiss the action straightaway, leaving
the plaintiff to his remedy against his own solicitor who has brought him to this plight. Whenever
a solicitor, by his inexcusable delay, deprives a client of his cause of action, the client can claim
damages against him; as, for instance, when a solicitor does not issue a writ in time, or serve it in
time, or does not renew it properly. We have seen, I regret to say, several such cases lately. Not a few
are legally aided. In all of them the solicitors have, I believe, been quick to compensate the suffering
client; or at least their insurers have. So the wrong done by the delay has been remedied as much as
can be. I hope this will always be done.
But it was not my judgment which carried the day. It was perhaps too general. It was the
judgments of Lord Justice Diplock and Lord Justice Salmon. They spent it out more precisely. In order
to dismiss an action for want of prosecution there must have been inordinate and inexcusable delay
which was such as to cause serious prejudice to the defendant. We did not realise it at the time but
this formulation gave rise to great difficulties in regard to the Statutes of Limitation.
In cases of personal injury the plaintiff had to issue his writ within three years of the accident
and serve it within a further one year. If the plaintiff took the whole of that time four years before
he served his writ, the defendant would have suffered an immense prejudice by that delay. Now this
is the point which divided the Court of Appeal:
In one division of the Court, presided over by Russell LJ, It was said that the plaintiff had a right
to take those four years: and that delay and prejudice in that time did not matter much. That was in
Parker v Hann [1972] 1 WLR 1583. But in the division presided over by me, we rejected that view. In
Sweeney v Sir Robert Me Alpine & Sons [1974] 1 WLR 200 at 205. I said:
. . . The plaintiff has no such right. He is not entitled to delay at all. It is his duty to make his claim
and bring his proceedings with all expedition at all stages. If he is guilty of inordinate and inexcusable
delay finishing up with a failure to observe the Rules of Court as to time he is liable to have
his action dismissed for want of prosecution, if the total delay is such as seriously to prejudice the
defendants. .
That view became accepted generally. It was applied by the Court of Appeal in Birkett v James
[1978] AC 297 at 301. but afterwards, I regret to say, it was reversed by the House of Lords. The
story is so illuminating that I will tell it. The plaintiff, Mr. Birkett, alleged that the defendant, Mr. James,

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agreed orally in November 1969 to pay him ,1,000,000 on 1 April 1970. That very allegation makes it
look a doubtful case. Nothing in writing to support an agreement for ; 1,000,000! The plaintiff did not
show much confidence in it himself. He did nothing for over two years. Then in July 1972 the plaintiff
got legal aid and issued a writ claiming the 1,000,000. But he or his then solicitor delayed for many,
many months to pursue the claim. So much so that in July 1975 the defendant issued a summons to
dismiss it for want of prosecution. The Judge did dismiss it. So did the Court of Appeal. They held that
the delay was altogether inordinate and inexcusable and that the defendant was seriously prejudiced
by it. They refused leave to appeal. Now I pause here to say that, in cases of this kind, being what we
call into locutory matters, the view of the Court of Appeal is usually regarded as final. But in this case
the plaintiff, with the help of legal aid, went to the House of Lords, got leave to appeal, did appeal,
and succeeded in his appeal. The House were much influenced by the fact that, in cases of breach
of contract, the period of limitation is six years. So that, although more than five years had elapsed
since 1 April 1970, the plaintiff could issue another writ. In those circumstances the House allowed
the stale action to continue. They made the defendant pay all the costs. The action went for trial.
The rest of the tale is not told in the Law Reports. At the trial the plaintiffs claim was held to be
hopeless. I believe that it was dismissed without even calling upon the defendant. It shows that much
injustice can be done when the House grants leave to appeal. It meant that the defendant had to pay
the very great expense of appeal to the Lords without getting a penny back from the plaintiff who had
sued him without any real foundation for his claim.
Since that time the Court of Appeal has done all it can to mitigate the effect of Birkett v James.
Notably in Biss v Lambeth Health Authority [1978] 1 WLR 382. and Mahon v Concrete (Southern)
Ltd (1979) 6 July (not yet reported). But its unfortunate influence was most marked in Tolley v Morris
[1979] 1 WLR 592. There, in May 1964 a little girl of 21/2 was injured in an accident by a motorcar.
Three years later a writ was issued on her behalf, by her father as her next friend- It was served
within another year. That was in March 1968. But, then nothing more was done for nine years until
July 1977. That is 13 years after the accident. By that time the witnesses had disappeared all
memory had gone the police record files had been destroyeda fair trial was impossible. It was
clearly a case where it would have been dismissed for want of prosecution but for Birkett v James.
Yet because the little girl was still under 18 and so the period of limitation had not expired the
action Was allowed to continue. But it was only by a majority of 3 to 2 in the House of Lords. Lord
Wilberforce and Lord Dilhorne dissented. Many would have thought that their view should have
prevailed.
I have often thought that the argument that the plaintiff can issue another writ is fallacious.
If the first action should be dismissed, then let it be dismissed. The plaintiff may not have the hardihood
to start another: nor should he get legal aid for it. Even if he should start a second action, he ought
to pay the defendant all the costs incurred in the first.
Since the Limitation Act 1975, the period of three years is not an absolute bar. The Court has
a discretion to extend the time but still in exercising its discretion, the delay of the plaintiff or his
solicitors is the most important consideration in deciding whether or not the action should be allowed
to continue. It may be that the ruling in Birkett v James can be discarded and the principles of the
Court of Appeal applied in their full force.
2. Can anything be done about arbitration?
Thus far I have spoken about delays in litigation before the Courts. If a plaintiff is guilty of
inordinate and inexcusable delay, his action can be dismissed for want of prosecution. But many
disputes are referred to arbitration. In commerce and industry today, most contracts of any magnitude
contain provisions for arbitration. Disputes about ships or building works all go to arbitration. Huge
sums are in issue. Some awarded. Some rejected.
Suppose now that a claimant in an arbitration is guilty of inordinate and inexcusable delay
and that the delay is so serious that a fair hearing is impossible has the other side any remedy?
Until recently it was thought that there was none. In Crawford v Prowting Ltd [1973] QB 1. Bridge
J held that an arbitrator had no power to dismiss a claim for want of prosecution. An arbitrator was
bound to allow the claimant no matter how long his delay more time to get on with his case.

61 ENGLISH
The Commercial Court Committee took the same view. They thought that it was a great deficiency
that there was no sanction against delay in arbitrations. One or other side could drag its feet and
put off the day of judgment or rather of the award indefinitely. Mr. Justice Donaldson was the
Chairman of that Committee. (He was at one time Chairman of the Industrial Relations Court and
did it splendidly - though much abused in some quarters.) Yet it was he who recently held there was
a remedy available in respect of delay in arbitration. It was in two cases just reported in Brenier
Vulkan v South India Shipping [1979] 3 WLR 471. He declined to follow the previous decision of
Bridge J. He held that arbitrators had the same power as a Court to dismiss for want of prosecution;
and further that where the claimant had been guilty of inordinate and inexcusable delay, the other
side could apply to the Court for an injunction: and that the Court could order the claimant to desist
from proceeding further with the arbitration. In the two cases he granted injunctions stopping the
arbitrations. That was in April 1979. His decision was followed a few weeks later by Lloyd J in The
Splendid Sun.(1979) 4 May (not yet reported).
We must reserve our views on the correctness of these decisions: because they are under
appeal to the Court of Appeal. They are, as Donaldson J said, of fundamental importance to English
arbitration. To some extent the Legislature has already gone along the same road as Donaldson J. By
Section 5 of the Arbitration Act 1979 an arbitrator may in future have like power as a Court to dismiss
for want of prosecution. So progress is being made.
LINGUISTICS
1. PHONETICS
In English there are 26 letters of alphabet but 44 sounds (phonemes). The phonemes are given
below. These are in accordance with International Phonetic Alphabet (IPA). Classification of vowels
and consonants are based on the sound and not alphabet.
Received Pronunciation (R.P.) - This is in accordance with the phonetic style used by the
people living around the twin cities of Oxford and Cambridge.
Classification of Sounds (Phonemes)
Speech sounds are classified into two: Vowels and Consonants
Vowels :
Daniel Jones defines a vowel as a voiced sound in forming which the air issues in a continuous
stream through the pharynx and mouth, there being no obstruction and no narrowing such as would
cause audible friction. A complete list of vowels is as follows
1. /i:/ as in seat 11. / :/ as in girl
2. /i/ as in sit 12. // as in about
3. /e/ as in set 13. /ei/ as in play
4. // as in sat 14. /U/ as in go
5. / / as in hot 15. /ai/ as in buy
U U

6. / :/ as in all 16. /aU/ as in cow

7. /a:/ as in card 17. / i/ as in boy
U

8. /U/ as in book 18. /i/ as in here

9. /U:/ as in soon 19. // as in there
10. /^/ as in cup 20. /U/ as in poor.
The first twelve are called pure vowels because in their production the point of articulation
does not change. The remaining eight are called diphthongs, because in their production the tongue
glides from one point of articulation to another. These are further classified as closing diphthongs
and centering diphthongs.

62 ENGLISH
 PURE VOWELS
Front Centre Back
Closed i: u

i. u
Half - Closed
e
:
Half - Open
:

U

^

U
Open
a:

CLOSING DIPHTHONGS
Front Centre Back
Closed

Half - Closed
ei
Half - Open u:

i

U
Open
ai au:

CENTERING DIPHTONGS
Front Centre Back
Closed
u:

Half - Closed

Half - Open i:

E
Open

63 ENGLISH
 Diphthongs are also called double vowels. Due to the fact that there are two vowel sounds in
each diphthong.

Semi Vowels:
These are two consonant sounds which are called semi vowels. They are j and w.
When we articulate the two consonant sounds they are produced not by full contraction, friction
or modification. Hence there are no explosive or friction sounds produced.
These two sounds are produced in the way of the vowels but the difference in contraction in
some part of the mouth and lips has made them classifiable under consonants.
Consonants :
Sounds which are not vowels are called consonants. In their production there is an audible
friction or modification at some place in the mouth. Consonants are classified on the basis of (a) the
place of articulation and (b) the manner of articulation.
The place of articulation :
a) Bilabial: articulated by the two lips.
b) Labiodental: articulated by the lower lip against the upper teeth.
c) Dental: articulated by the tip of the tongue and the back of the upper teeth.
d) Alveolar: articulated by the lip or the blade of the tongue against the teeth ridge.
e) Palato - alveolar : articulated by raising the main body of the tongue and touching the
teeth ridge with the blade of the tongue.
f) Palatal: articulated by the front of the tongue against the hard palate,
g) Velar: articulated by the back of the tongue against the soft palate,
h) Glottal: articulated in the glottis.
CLASSIFICATION OF CONSONANTS alveobar

alveobar
Alveolar

Palatal
Bilabid

diental

Dental

Glottal
Palato
Labio-

Post-

Velar
i) Plasive
Unvoiced P t k
Voiced b d g
ii) Affricate
Unvoiced tf
Voiced d3
iii) Fricative
Unvoiced f 0 s f h
Voiced V X z 3
iv) Nasal m n n
v) Lateral 1
vi) Semi- Vowel w j
vii) Frictionless Continuant r

64 ENGLISH

65 ENGLISH
 Questions are asked as given below :
1. Identify the vowels -10 Marks.
eat - i:
mat - a.
2. Transcription Exercises - 10 Marks.
eat - i: t
mat - m t
about - bout

TABLE OF CONTENTS
The pronunciation of the alphabet The pronunciation table: vowel and consonant sounds
1) PAN/PAl N The sounds / / and / ei /
2) BEST/PEST The sounds / / and / /
3) SUE/ZOO The sounds / s / and / z /
4) DOWN/TOWN The sounds / d / and / t /
5) SEAT/SET The sounds / i: / and / e /
6) CARROT/CABBAGE The sounds / / and / /
7) FEW/VIEW/WINE The sounds / f / / v / and / w /
8) CAP/GAP/HAT The sounds / k / / g / and / h /
9) YEAR The sound / j /
10) PHONETIC TEST recap
11) TIME/TJM The sounds / a / and / /
12) SHEEP/JEEP/CHEAP The sounds / / / d / and / t /
13) COLLECT^CORRECT The sounds / l / and / r /
14) BARS/BAR The sounds / : / and / e /
15) SOME/SUN/SUNG The sounds / m / / n / and / /
16) COAT/COT The sounds / / and / /
17) BREATHE/BREATH The sounds / / and / /
18) BUN/BULL/BOON The sounds / / / / and / u: /
19) SHtRT/SHORT The sounds / : / and / : /
20) COY/COW The sounds / / and / a /

English phonetic symbols

66 ENGLISH
 2. Language Acquistion
The author Justice David Annoussamy has attempted to assess, review and explore
improvements relating to the acquisition of knowledge of a language, need for knowledge of languages
other than the mother tongue, importance of the mother tongue, the medium of instruction, language
planning and the necessary teaching aids. His essays that bring to light the need for solving the
problem of language planning is relevant where the learning population is not homogenous. The
language planning policy shall be susceptible to periodical assessment, review and attunement. The
language riddle should be solved with the help of the scientific knowledge available.
Anatomy of Language
The structure of the language is based on the different registers of language. Registers are
modes of expression which differ from person to person based on the different social status of the
persons. Formalism and colloquialism are the different registers and one has to adopt the appropriate.

1. Acquisition of Language by Children

a) Universality of acquisition
The largest group of those involved in the process of acquisition of language consists of
children. It is common know ledge that no human being fails in learning spontaneously a language
with the exception of two categories: the deaf and the dumb. So universal is the phenomenon all
over the world, whatever the language, that one tends to believe that the ability to speak is innate.
It is only apparently so; language is actually acquired. Children without any exposure to language,
for instance, those who are brought up by animals or in total isolation, do not have any language.
Acquisition of a language by children is achieved within a relatively short period between the ages
of 1 and 3 in spite of the complexity of the task. Those who get on best are those who are exposed
well to good language; however, there is an optimum exposure for each age and for each child. When
the child is exposed to too much of language there may be adverse reaction. Language is acquired
successfully regardless of the level of general intelligence. Children who later fail in other spheres
like arithmetic, swimming, and gymnastics acquire the mother tongue with the same ease like others
and continue to improve their skill in language.
The result is remarkable for its perfection. When learning is almost complete, there is not
much difference among illiterate people, whatever be their social rank or avocation. Only a faulty
pronunciation of some words is occasionally noticed due to physiological defects in the vocal organs.
Some children having psychological problems develop stammering. In spite of the generality of
success, one might have noticed that there is variation indeed in volubility or extent of vocabulary.
In fact each one has got a ceiling in respect of expression. But there is no such variation as regards

67 ENGLISH
the knowledge of the main features of the language and its sentence patterns. So in respect of
understanding, all are almost at the same level. Of course, children do not acquire the skills in written
language without teaching. The level of performance is subject to great differences in that skill.
b) No teaching
Since the acquisition of mother tongue by children is a universal success, il is of utmost interest
to analyse how such acquisition takes place in order to devise methods of teaching other languages
in the classroom Acquisition of language by children does not get explained by learning theories. Of
course, parents are impatient to hear their child speak, especially they are looking eagerly for his
first word.
However, they do not proceed to teach the language and if any teaching were imparted it
would be of no avail. They want their child to understand what they say to him and they use for the
purpose a simplified language known as caretakers speech. To help the child understand, they use
profusely extra-linguistic support like facial expressions, tone of the voice, and gestures. Regarding
the subject dealt with, they confine themselves to what is necessary at the moment, following the
here and now principle. The language used by parents is also syntactically simple. It becomes more
and more complex as the linguistic maturity of the child increases. The progression in the parents
language is unconscious and very slow. The child picks up language simply by listening attentively to
the language spoken to him or around him. In the first stage he is interested only in what is spoken to
him. Later he shows interest in the talk going about him. Similarly, in the beginning, he is interested
only in communicating with members of the family. Later the circle of communication widens. When
the child gets out of the cocoon of the family and discovers other forms of expression, his interest
to learn is triggered. The impulse of the child to communicate is so strong that acquisition is almost
an uninterrupted process for him. Through such communication, acquisition takes place without any
teaching.

c) Understanding precedes expression

The child, before he knows the meaning of words, even before he realizes that they could
have a meaning, is interested in the sound combination of words. Each word has for him its features,
which he is able to recognise and words have life for the children. This special relation of the child
with words explains his interest in poetry which is sought to be satisfied by lullabies, rhymes and
various sorts of traditional poetical compositions accompanying childrens plays. However, in most of
the children the enjoyment of sounds vanishes slowly as they start perceiving the meanings of words
and become more and more interested in them. This is subject to individual variations. Those having
a poetical bent of mind do not completely lose the phonal aspect of words and if they happen to start
writing poetry, they try to recapture their first sensations, to enjoy again those first flavours. It is often
said that poets are like children or that children are poets. This is true not only in their global vision
of the world, but also in respect of their common enjoyment of sounds.
The language heard is stored and remains latent in the brain and it takes some time to put
to actual use, first for understanding. This starts from the 12th month or even earlier; the child is
able to recognise a known voice or familiar sounds indicating certain facts concerning him like the
preparation of his food. His hearing system gets sharper even,- day. During 12-18 months the child is
able to follow simple commands and he responds to interdictions; 90% of the comprehension ability
is attained at the age of 3.
Though parents are aware that the child understands what he is told or what is going on around
him, they do not press him to speak except on rare occasions like greeting visitors or thanking them
for the present offered, or when the child weeps and the parents are anxious to know the reason
in order to console him effectively. When pressed to speak, the child remains resolutely silent; the
parents impute obstination to him but the truth is otherwise. Either he is too afflicted to be able
to speak,or speech, especially among children, being a spontaneous act cannot be obtained by
external solicitation which causes only inhibition. One can sometimes come across children who
understand everything, but do not speak at all. It has also been reported that, very rarely, children
are able to read newspapers although they do not speak.

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 Understanding is possible without speaking, but not the reverse. Understanding is a less active
process than speaking. The latter requires a better know ledge of the language. Understanding
amounts only to guessing the meaning of what is stated. Speaking requires the mental framing of a
sentence and its utterance in clear and accepted sounds, which is a more complex operation. It is to
be borne in mind that speaking takes place only several months after understanding.
d) Phases in expression
Speaking requires in the first place the preparation of the vocal organs and the acquisition
of full command thereof. Preliminary exercises take place in a phased manner. They start at birth
with crying. Between 4 and 6 months the baby cooes or laughs in a broken manner to express his
inner feeling. Between 6 and 9 months he babbles and emits distinct common sounds. This oral
exercise,which is by far more developed in human babes, appears to be the response or rather the
imperfect imitation of the linguistic rhythm they are exposed to. This constant phonal activity mixed
with pleasure prepares the organs concerned for the language purpose. At the age of 3 the child is
in possession of the phonological requirements of his mother tongue.
While engaged in this preparatory exercise the child starts communicating with people around.
The first exteriorisation of his feelings takes place without speaking. He cries, he pushes what is
not desired, he gesticulates with anger, he smiles and laughs. He responds to familiar sounds and
noises like the knocking at the door, the sound of the clock, etc..
At about one year, first words are uttered, sometimes modified to suit his pronouncing capability.
The words do not usually carry the meaning which adults attribute to them. The child speaks to
himself profusely a language of his own. When the child wants to communicate with others, he starts
using the same word for several things. Then single words, with their actual meaning, appear. When
he attempts sentences, he shortens them according to his cognitive attainment. First, two-word
sentences appear: dog comes, daddys pen, etc.. Then sentences with more words are used. Even
then the adult language is modified according to his age, his mental and linguistic development. It is
worth noting that whilst the utterance of words precedes the knowledge of corresponding concepts,
the utterance of sentences follows the conception of corresponding ideas. At about the age of 3, he
is able to use about 1000 words following the syntactic rules.
e) Process of acquisition
It would be interesting and useful to investigate further how the acquisition as described above
takes place. It is not mere soaking up a language as one would be tempted to think. Unconsciously
and without any deliberate action, there is a concomitant storing and organisation of the raw material.
Between the age of 2 and 3 while storing the language, the child has at its command an innate
hypothesis - forming faculty which enables him to devise grammatical rules unconsciously in respect
of the language. This explains the discontinuity in learning which is observed.
In the process of learning there are certain backward steps. The child who initially was saying
did, told, all of a sudden starts saying doed, telled, but reverts after a certain time to the correct
forms. The learning of a language by the child is not like the addition of bricks. Each time there is a
structuration of the language by the child with the help of memory and logic, placing reliance on one
or the other. Logic, being more economical in terms of effort than memorising, the child starts placing
reliance on it as soon as he acquires this second faculty. When he discovers that verbs end with ed
in the preterite, he makes use of the logic. Afterwards, when he finds that logic lias failed in some
cases, he takes note of the exceptions and stores them with the help of memory.
Before attaining perfection, the language of the child, though it comes out only after sufficient
maturation, is faulty as compared to the standard language, in pronunciation as well as sentence
patterns. Except by some perverted parents, the child is not scolded nor is he laughed at. The product
of the child is very much appreciated. Out of affection and for the novelty it brings to the language,
some of his modifications become part of the language of the family; especially the surnames of
elder children remain as modified by the younger ones. Though parents do not correct the faulty
language immediately, the} instinctively repeat in the correct way what the child has said. It is thus
found that the child in his attempt to learn a language resorts to the trial and error method, the error
being inevitable in the process and ultimately, in course of time, errors disappear and the learning of
language by the child is always a success.

69 ENGLISH
f) Effort involved
On account of the apparent ease with which the child acquires a language, one is tempted to
think that there is no effort. In reality, it is otherwise. With some attention one can perceive the amount
of effort spent by the child in uttering the first words, the first sentences, and even thereafter in saying
certain unusual words. The apparent ease gets explained by the total involvement of the child in
the process. Speaking is vital for him to satisfy- all his needs which are varied, including the urge to
participate in the family life, to understand it, to be a full partner and play his role. His whole energy
is harnessed. It is accompanied by the pleasure arising out of the success in his new experience of
expression. So, effort is there, but it is not manifest on account of those factors. Language learning
without effort by the child is nothing but a myth due to lack of close observation.
g) Simultaneous acquisition of more than a language
A child can pick up more than a language at a time, if placed in a multi-lingual environment.
Only two conditions are required: the child should be normal and a particular person should always
speak the same language. A child who is very eager to get what he wants uses different registers
of language according to the nature of his links with the person concerned, even when only one
language is practised. When he has to communicate with persons speaking different languages,
he acquires all of them. Between 3 and 4 the child is able to speak to each of his interlocutors
the language of the latter. When a word is not known, the child does not use the w ord of another
language, he resorts instead to a periphrasis in the language of the interlocutor, so keen is he to get
understood. He acquires in the process a very high skill of distinguishing languages. He is even able
to serve occasionally as an interpreter.
If exposure to two languages is equal, the progress achieved is also equal and the child has
two mother tongues. But rarely exposure is equal. Even if each of the parents speaks a different
language to the child, they have usually a common language between them, which would be one
of the two languages. The influence of the language of the other members of the family, servants,
media, children in the street and parks may also tilt the balance in favour of one language which
therefore takes the lead. But the other can override it if circumstances change This often happens
when the language of the school is the other one.
People sometimes wonder whether it is not harmful to expose the child to more than a language.
The observations so far made have not indicated any harmful effect except in the case of children
having mental defects or linguistic difficulties. Such children should not be subjected to such an
effort. If the child is normal or above normal, the fact of learning simultaneously two languages
entails a better development of his mind. Parents cannot transmit to their children their knowledge,
but they can transmit easily a language, which, even if it is not very useful in his life, will render easy
the acquisition of any other language later.
Though the process of learning by children is laborious, they all succeed in learning one or more
languages. The process is therefore worth emulating, or at least lessons may be drawn therefrom.

2. Picking up Another Language

a) When does it operate?
Acquisition of more than one language at a time by children is the proof, if need be, that human
brain is programmed to learn more than one language. Picking up a new language by a person
knowing already one or more languages by mere exposure without any teaching or study is more
and more prevalent. It happens mostly in the case of migrants and transferred officers and also their
children and servants. This way of learning has proved successful for persons of all ages. Language,
though most intimately linked to a group and being its most important characteristic, can be acquired
by an outsider fairly well.
b) Conditions of acquisition
Such a result is not attained by all. Acquisition depends first on the duration of exposure to the
language. Below a certain minimum, there is no acquisition worth the name. If the contact is lost,
the language acquired is progressively forgotten. Secondly, the target language should be the only
possible vehicle of communication with some of the persons with whom one has to communicate. If

70 ENGLISH
the need to communicate is absent, or if communication can be achieved through another language
or through an interpreter, there is no learning. Thirdly, the result depends also on the extent of
involvement in the activities and the social life in the new language. The urge is greater among
youngsters, for playing or for spending time in a pleasant manner. The result depends finally on
the degree of motivation to learn. There should be eagerness to learn the language and to learn it
perfectly. One has to get immersed in the language, to be interested in storing words and sentences
the usefulness of which he has noticed in actual life, to listen attentively, and to catch the correct way
of expression in the place of his tentative one.
These above factors and others explain the differences in the level attained in picking up a
language. Some, though compelled to learn a language to survive, are unable to learn it correctly.
Among them, there are two categories. The first one consists of those who do not have a good
hearing ability; their pronunciation remains defective. The second one consists of those who continue
to commit the same mistakes and use the same defective sentence patterns.
It appears that a ceiling is reached and there is no further progress possible. Either they are
at least vaguely conscious of their defective speech, but are not motivated enough to acquire the
correct forms, or they are unable to identify- some patterns of expression unknown in their mother
tongue and they short-circuit them while listening as well as speaking. There are also people who,
though exposed continuously to a language, succeed in remaining impervious. They do not listen to
what is being spoken around them. They are not interested in learning it.
c) Comparison with acquisition of first language by the child
The process of picking up languages is more or less the same as the acquisition of mother
tongue by the child. There are however some noticeable differences. Usually, people around speak to
the learner normally, not like parents to a child with a desire that he learns; they do not repeat. There
is no caretakers speech except in circumstances when one wants to get absolutely understood.
Secondly, the need to communicate, however important it may be, is not as vital as for the child.
A third difference which is fundamental but often not clearly perceived is that the learner knows
already a language. This has some advantages. There is no need of acquisition of new concepts
Cognitive development is complete. One is accustomed to express what he wants to say. The hearing
and vocal apparatuses are already fully developed . In that way the task is easy but this situation
also has its disadvantages. The mother tongue acts as a screen. The vocal organs do not have the
same flexibility for the new sounds. The hearing system stands less awakened. There is a tendency
to assimilate the sounds of the new language with the nearest ones in the mother tongue. There is
also an unconscious resentment to have to make an effort to acquire a new code of communication
when that is imposed by necessity. But when one has occasion to pick up a language, he should not
miss it. What is required is only wholehearted acceptance.

3. Learning in Nursery School

A nursery school catering for learning a second language has to provide for acquisition of only
oral language. The process then is very similar to picking up a language. It is an organised picking
up. In such a school, the typical school exercises would not have a place. There will be no written
language at all. Everything should be oral. Children are engaged in playful activities with the target
language as the medium; simple crafts, organised play, drawing, singing, recitation of some poems,
commented observation of things, simple scientific experiments explained, reading of picture books,
telling stories, films, etc. Questioning can start when pupils have sufficiently developed the skill of
expression; however, questions should require at the beginning only simple answers. There will be
no teaching of language as such.
If the nursery school is programmed in that way, the acquisition of a new language is fairly
successful. Only 10 - 15 per cent of the children have been found not to be able to pick up a second
language in this way. Trained kindergarten teachers are able to spot such children within a period
of one month. It is not useful and it may even prove dangerous to continue the experience for such
children. They should be put in the kindergarten in the mother tongue and they will learn the second

71 ENGLISH
language later. Thus they will make satisfactory progress in their studies. If, on the contrary, they are
left in the same foreign language kindergarten with the feeling of failure from the start, they will not
go far in their studies.
Learning a language in a nursery school is a good proposition, but it should be nurtured later
properly.
4. Learning through Language Teaching
a) Not a successful enterprise
Acquisition of a language by the child without any teaching has _ proved to be a universal
and perfect success. Picking up is fairly successful. So also is learning in the nursery school. But
acquisition through teaching has been found to be an immense failure in all countries including ours.
The result is worse than in the general education, because language learning is a very delicate
process. After many years of toil, the student is not even able to read a newspaper in the language.
Orally he is able to say only a few salutations. One can easily come across educated Indians saying
apologetically: I studied French (or German) for my Intermediate, (or B.A.) but I cannot speak.
There is a resentment for the waste of time caused to them. What is more distressing is that failure
in English entails failure in the general examination as well, undue importance being given to English
at a wrong place.
b) Reasons for failure
For the purpose of teaching, a foreign language is being considered as a subject like others,
ignoring the peculiar nature of language learning. Language cannot be learnt in the usual sense
of the word like other subjects. Learning theories are irrelevant for language. However, the words
learning and learners are here used for the purpose of convenience. Language is always acquired.
In other subjects, one is asked to understand, to memorize, and to use the knowledge stocked as
and when required. The whole process takes place through the medium of a known language which
is a tool. Language is not a matter of knowledge. It is a matter of skill, a very complex one.
In considering the language as a subject, teaching ignores the natural process of acquisition
of language. In the natural process, acquisition follows the flow of circumstances in actual life. The
language learner chooses what is of interest to him whereas in teaching, the choice is not that of the
learner but that of the teacher. Exposure to natural language as such is too meagre. Language is
rather presented as a set of formal elements to be apprehended outside any communicative context
and without real communicative purpose, in the form of model sentences arranged in a rational
progression. The focus is on die grammatical rules rather than on vocabulary.
But in actual life, rules never precede performance. They are useful to control the correctness
of performance; they cannot effectively help in learning the language. Students are subjected to drills
which do not produce the expected results, because they are mechanical without communicative
value. Reeling off conjugations does not help much in learning the language. Language is presented
as an artificial construction, something different from the mother tongue. Students are not made to
react authentically to the real language. So there is a low intake and only fragments of language are
learnt. The focus being on the form of language rather than on its communicative interest, what is
learnt cannot be put to use for communication, especially for oral communication.
When language is taught, learning of both oral and written languages is simultaneously
attempted,which is against the natural course of language learning. This complicates the process.
Though it is now possible to teach only oral language with the help of audiovisual equipment, this
takes place only in specialized institutions which remain islands in the ocean of language teaching.
Usually, written language takes the pride of place. The teacher finds it easier. Grown up pupils and
adults are also keen on having the written support. Oral language alone appears to them somewhat
evanescent. They want something which they could grapple immediately. Written language has got
that advantage in their eyes. Thus teaching slips easily in traditional school exercises which can help
only in learning written language and more especially reading. No wonder that the other skills arc
not acquired.
A fundamental defect in classroom teaching is that it does not allow time for maturation, so
essential in the process of language acquisition. The fact that there is a big gap between understanding

72 ENGLISH
and expression and that a good span of time should be allowed between them is lost sight of. Students
are compelled to speak and write prematurely, which has a disastrous and paralysing effect. Such
an obnoxious practice is the result of assimilating the teaching of language to the teaching of other
subjects, where interrogation on the next day on the previous lesson is a common feature.
Language teaching should diverge from the teaching of other subjects and imitate as far as
possible the process of picking up. There is always a shortfall between teaching and learning in all
subjects. In the matter of language, learning through teaching has proved so far an immense failure
altogether. But better success can be achieved in that way of learning as well, if teaching is modified,
drawing lessons from the way the language is picked up and from the analysis of the reasons for the
failure in the present way of teaching. The lessons drawn lead us to enunciate some principles to be
followed, which are called here Maws to underline their importance. Any language learner with or
without the help of a should bear them in mind and follow them to achieve success.

Language Register
Registers of Language
A person using his mother tongue resorts to the proper register of language instinctively. In fact,
there are different ways of expression of the same thing by persons of different social status or by the
same person in different settings and in different circumstances of life. The drawing room conversation
is not like the market place bargain. The workshop instructions do not resemble Government orders.
Conversation between persons of the same sex does not resemble the conversation between
persons of opposite sexes.
To illustrate better these different modes of expression, called registers of language, let us take
an example and show how the same thing would be expressed by persons of different social status:
Formal prayer : Give us this day our daily bread.
Common man : Please give us bread everyday.
Beggar : Some bread please, I am hungry.
Militant : Bread daily ! Bread !
Politician : The priority of priorities is food for all.
Poet : Let this world perish if food is not assured for all.
Moralist : Your daily bread is the fruit of your daily work.
Pious lady in the drawing room : From my heart of hearts I implore the divine
munificence for the whole mankind perennially.
The Political Science Professor : Among the various duties of a Welfare State there is
one which, 1 should say, is paramount, that is
to ensure food to each and every citizen without
interruption.
Laywer : We respectfully request you and pray that due and
adequate provision be made this day and all the
days to follow, for the satisfying of the petitioners
maintenance, that the aforesaid provision be quantified
and that the opposite party be ordained to
supply uninterruptedly the provision so quantified.

Usually one does not become conscious of these different registers of language in the mother
tongue though one uses them daily. Thus written language is not the transcription of the oral
language. Conversely, oral language is not something like the reading of written language, except
on some occasions like lectures, speeches. Even then, one can perceive the difference between

73 ENGLISH
a speech delivered with or without notes (compromise between written and oral language) and
a speech consisting of reading a fully written text. Written language reproduced orally generally
causes boredom, the vividness expected in oral language being missing. The word groups, the way
in which the idea units are reproduced, are not the same in the written and oral language. Intonation,
repetition of words, pauses, and all other ways of giving full expression for the emotion and sentiment
which are available in oral language cannot be found in the written language. So even in the mother
tongue, some are better in written language; some others in oral language. Even children become
unconsciously aware of the difference in registers at a relatively young age. First graders do not use
the same register while speaking with their parents, their teachers, and their playmates.
If use of the appropriate register of language is something naturally acquired in the mother
tongue, one has to pay attention to it while learning and using a second language. Between persons
of different countries, the register will ordinarily be more formal than between natives of the same
country. The foreigner is therefore expected to start learning and speaking the standard language.
Too colloquial a language in the mouth of a foreigner arouses surprise. But when one is speaking
in the foreign language to a close friend, he has to give up the standard language and adopt the
appropriate register. Similarly, when one talks to his cook in the foreign language, he should speak
in the corresponding register. Therefore, in the process of communication in the second language as
well, one has to respect the register of language.
Language varieties
Da history of da word pigeon is Iidis- Wen da French- speaking Normans wen conquer England
in da year ten-six-six, dey wen bring along wit dem da word pigeon, for da type of bird it was. Da
resident Anglo-Saxons used da word dove, or D-u-f-e, as dey used to spellum, to mean da same
bird. It just so happened dat terms in Norman-French wen blend wit Old English sentence structure,
to form what we know as Middle English. In da process, da French word became da one dat referred
to da pigeon as food. Today in England, if you look for dem, you can find recipes for pigeon pie.
Food for taught, eh-Even back den, da word pigeon wen blend with pigeon for get some moa
pigeon.
So now days get pigeon by da zoo-get pigeon on da beach-get pigeon in town-get pigeon in
coups-and no madda wat anybody try do, dey cannot get rid of pigeon-I guess wit such a wide blue
sky, everything deserves to fly.
Joseph Balaz (1988)
In many of the preceding chapters, we have treated languages, such as English, as if all
speakers of the particular language used that language in a uniform way. That is, we have largely
ignored the fact that every language will have more than one variety, especially in the way in which
it is spoken. Yet this variation in speech is an important and well-recognized aspect of our daily lives
as language-users in different regional and social communities. In this chapter we shall consider
the type of variation which has been investigated via a form of linguistic geography, concentrating
on regional varieties,and in the following chapter we shall consider the factors involved in social
variation in language use. First, we should identify that particular variety which is normally meant
when the general terms English, Italian, Japanese,Spanish,and so on are used.
The Standard Language
When we described the sounds, words and sentence of English,we were in fact, concentrating
on the features of only one variety,usually labeled Standard English. This is the variety which forms
the basis of printed English in newspapers and books, which is used in the mass media and which
is taught in schools. It is the variety we normally try to teach to those who want to learn English as
a second language. It is clearly associated with education and broadcasting in public contexts and is
more easily described in terms of the written language (i.e. vocabulary spelling, grammar) than the
spoken language.
If we are thinking of that general variety the used in public broadcasting in the United States, we
can refer more specifically to Standard American English or, in Britain, to Standard British English.
There is no reason why other national varieties such as Standard Australian English. Standard
Canadian English should not be recognized also.

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Accent and dialect
Whether or not you think you speak a standard variety of English, you will certainly speak with
an accent. It is a myth that some speakers have accents while others do not some speakers have
distinct or easily recognized types of accent while others do not, but every language-user speaks
with an accent. The term accent,when used technically,is restricted to the term description of aspects
of pronunciation which identify where an individual speaker is from, regionally or socially. It is to be
distinguished from the term dialect which describes features of grammar and vocabulary, as well as
aspects of pronunciation. For example, the sentence You dont know what you re talking about will
generally look the same whether spoken with an American or Scottish accent. Both speakers will
be using Standard English forms,but have different pronunciations. However,this next sentence - Ye
dinnaee ken whit yer haveerin aboot- has same meaning as the first,but has been written out in an
approximation of what a person who speakes one dialect of Scottish English might say. There are,of
course,different in pronunciation(e. g. whit,aboot)but there are also examples of different vocabulary
(ken,haverin) and a different grammatical form (dinnae)
While differences in vocabulary are often easily recognized,dialect variations in the meaning
of grammatical constructions are less frequently documented. Here is an example, quoted in Trudgill
(1983), of an exchange between two British English speakers (B and C), and a speaker from Ireland
(A), which took place in Donegal, Ireland:
A : How long are youse here?
B : Till after Easter.
(Speaker A looks puzzled)
C : We came on Sunday.
A : Ah. Youse re here a while then.
It seems that the construction How long are youse here?, in speaker As dialect, is used
with a meaning close to the structure How long have you been here?, rather than with the future
interpretation (How long are you going to he here?) made by speaker B.
Despite occasional difficulties of this sort, there is a general impression of mutual intelligibility
among many speakers of different dialects, or varieties, of English. The important point to remember
is that, from a linguistic point of view, no one variety is better than another. They are simply different.
From a social point of view, however, some varieties do become more prestigious. In fact, the variety
which develops as the Standard Language has usually been one socially prestigious dialect, originally
connected with a political or cultural center (e.g. London for British English, and Paris for French). Yet,
there always continue to be other varieties of a language, spoken in different regions.
Regional dialects
The existence of different regional dialects is widely recognized and often the source of some
humor for those living in different regions. Thus, in the United States, someone from Brooklyn may
joke about the Southerners definition of sex by telling you that sex is foless than tin, in his best
imitation of someone from the Southern states. The Southerner can, in return, wonder what a tree
guy is in Brooklyn, since he has heard Brooklyn speakers refer to doze tree guys. Some regional
dialects clearly have stereotyped pronunciations associated with them.
Those involved in the serious investigation of regional dialects are fairly uninterested in such
stereotypes, however, and have devoted a lot of research to the identification of consistent features
of speech found in one geographical area rather than another. These dialect surveys often involved
painstaking attention to detail and tended to operate with very specific criteria in identifying acceptable
informants. After all,it is important to know if the person whose speech you are tape-recording really is
a typical representative of the regions dialect. Consequently, the informants in many dialect surveys
tended to he NORMS, or non-mobile, older, rural, male speakers. Such speakers were selected
because it was believed that they were less likely to have influences from outside the region in their
speech. One unfortunate consequence of using such criteria is that the dialect description which
results is probably more accurate of a period well before the time of investigation. Nevertheless,
the detailed information obtained has provided the basis for a number of Linguistic Atlases of whole
countries (e.g. England) or of regions (e.g. the New England area of the United States).

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Isoglosses and dialect boundaries
Let us take a look at some examples of regional variation found in one survey, that which
resulted in the Linguistic Atlas of the Upper Midwest of the United States. One of the aims of such a
survey is to find a number of significant differences in the speech of those living in different areas and
to be able to chart where the boundaries are,in dialect terms, between those areas. If it is found, for
example, that the vast majority of informants in one area say they take their groceries home in a paper
bag while the majority in another area say they use a paper sack, then it is usually possible to draw
a line across a map separating the two areas, as shown on the accompanying illustration. This line
is called an isogloss and represents a boundary between the areas with regard to that one particular
linguistic item. If a very similar distribution is found for another two items, such as a preference for pail
to the north and for bucket to the south, then another isogloss, probably overlapping, can be drawn
in. When a number of isoglosses come together in this way. a more solid line indicating a dialect
boundary,can be drawn.
In the accompanying illustration, the small circles indicate where paper bag was used and the
plus sign (+) shows where paper sack was used. The broken line between the two areas represents
an isogloss. Using this dialect boundary information, we find that in the Upper Midwest of the USA,
there is a Northern dialect area which includes Minnesota, North Dakota, most of South Dakota, and
Northern Iowa. The rest of Iowa and Nebraska show characteristics of the Midland dialect. Some of
the noticeable pronunciation differences,and some vocabulary differences, are illustrated here:
(taught) (roof) (creek) (greasy)
Northern: [c] [] [I] [s]
Midland: [a] [u] [i] [z]
Northern: paper bag pail kerosene slippery get sick
Midland: paper sack bucket coal oil slick take sick
So, if an American English speaker pronounces the word greasy as [grizi] and takes groceries
home in a paper sack, then he is not likely to have grown up and lived most of his life in Minnesota. It
is worth noting that the characteristic forms listed here are not used by everyone living in the region.
They are used by a significantly large percentage of the people interviewed in the dialect survey.
The dialect continuum
Another note of caution is required. The drawing of isoglosses and dialect boundaries is quite
useful in establishing a broad view of regional dialects, but it tends to obscure the fact that, at most
dialect boundary areas, one variety merges into another. Keeping this in mind, we can view regional
variation as existing along a continuum, and not as having sharp breaks from one region to the next.
A very similar type of continuum can occur with related languages existing on either side of a political
border. As you travel from Holland into Germany, you will find concentrations of Dutch speakers
giving way to areas near the border where the Dutch dialects and the German dialects are less
clearly differentiated; then, as you travel into Germany, greater concentrations of distinctly German
speakers occur.
Speakers who move back and forth across this border, using different varieties with some ease,
may be described as bidialectal (i.e.speaking two dialects). Most of us grow up with some form of
bidialectalism, speaking one dialect in the street and having to learn another dialect in the school.
However, if we want to talk about people knowing two distinct languages, we have to describe them
as being bilingual.
Bilingualism
In many countries, regional variation is not simply a matter of two dialects of a single language,
but a matter of two quite distinct and different language, Canada, for example, is an officially bilingual
country, with both French and English as official languages. This recognition of the linguistic rights
of the countrys French speakers, largely in Quebec, did not come about without a lot of political
upheaval For most of its history, Canada was essentially an English-speaking country, with a French-
speaking minority group. In such a situation, bilingualism, at the individual level, tends to be a feature

76 ENGLISH
of the minority group. In this form of bilingualism, a member of a minority group grows up in one
linguistic community, primarily speaking one language, such as Welsh in Wales, Gaelic in Scotland
or Spanish in the United States, but learns another language, such as English, in order to take park
in the larger dominant linguistic community.
Indeed, many members of linguistic minorities can live out their entire lives without ever seeing
their native language appear in the public domain. Sometimes political activism can change that. It
was only after English notices and signs were frequently defaced or replaced by scribbled Welsh-
language versions that bilingual (English-Welsh) signs came into wide-spread use in Wales. One
suspects that many henoed never expected to see their first language on public signs like this one,
photographed recently in Wales. (But why,you might ask,are we being warned about them?)
Individual bilingualism, however, doesnt have to be the result of political dominance by a group
using a different language. It can simply be the result of having two parents who speak different
language. If a child simultaneously acquires the French spoken by her mother and the English
spoken by her father, then the distinction between the two languages may not even be noticed,There
will simply be two ways of talking according to the person being talked to. However, even in this
type of bilingualism, one language tends eventually to become the dominant one, with the other in a
subordinate role.
Language planning
Perhaps because bilingualism in Europe and North America tends to be found only among
minority groups, a country like the United States is often assumed to be a single homogeneous
speech community where everyone speaks English and all radio and television broadcasts and all
newspapers use Standard English. It appears to be a monolingual country. This is a mistaken view.
It ignores the existence of large communities for whom English is not the first language of the home.
As one example, the majority of the population in San Antonio,Texas, are more likely to listen to radio
broadcasts in Spanish than in English. This simple fact has quite large repercussions in terms of the
organization of local representative government and the educational system. Should elementary
school teaching take place in English or Spanish?
Consider a similar question in the context of Guatemala where, in addition to Spanish, there
are twenty-six Mayan languages spoken. If, in this situation, Spanish is selected as the language of
education, are all those Mayan speakers put at an early educational disadvantage within the society?
Questions of this type require answers on the basis of some type of language planning. Government,
legal and educational bodies in many countries have to plan which varieties of the languages spoken
in the country are to be used for official business. In Israel,despite the fact that Hebrew was not
the most widely used language among the population, it was chosen as the official government
language. In India, the choice was Hindi, yet. In many non- Hindi-speaking regions, there were riots
against this decision.
The process of language planning may be seen in a better light when the full series of stages
is implemented over a number of years. A good modern example has been provided by the adoption
of Swahili as the national language of Tanzania in East Africa. There still exist a large number of tribal
languages as well as the colonial vestiges of English, but the educational, legal and government
systems have gradually introduced Swahili as the official language. The process of selection
(choosing an official language) is followed by codification in which basic grammars, dictionaries
and written models are used to establish the Standard variety. The process of elaboration follows,
with the Standard variety being developed for use in all aspects of social life and the appearance of
a body of literary work written in the Standard. The process of implementation is largely a matter of
government attempts to encourage use of the Standard, and acceptance is the final stage when a
substantial majority of the population have come to use the Standard and to think of it as the national
language, playing a part in not only social, but also national, identity.
Pidgins and Creoles
In some areas, the Standard chosen may be a variety which originally had no native speakers.
For example, in Papua New Guinea, most official business is conducted in- Tok Pisin, a language
sometimes described as Melanesian Pidgin. This language is now used by over a million people,

77 ENGLISH
but it began as a kind of contact language called a Pidgin. A Pidgin is a variety of a language (e.g.
English) which developed for some practical purpose, such as trading among groups of people who
had a lot of contact, but who did not know each others languages. As such, it would have no native
speaker. The origin of the term Pidgin is thought to be from a Chinese Pidgin version of the English
word business.
There are several English Pidgins still used today. They are characterized by an absence of any
complex grammatical morphology and a limited vocabulary. Inflectional suffixes such as -s(plural)and
-s (possessive) on nouns in Standard English are rare in Pidgins, while structures like tu buk (two
books) and di gyal pleis (the girls place) are common. Functional morphemes often take the place
of inflectional morphemes found in the source language. For example, instead of changing the form
of you to your, as in the English phrase your book, English-based Pidgins use a form like bilong,and
change the word order to produce phrases like buk bilong yu.
The origin of many words in Pidgins can be phrases from other languages, such as one word
used for ruin, destroy which is bagarimap (derived from the English phrase bugger him up), or for
lift which is haisimap (from hoist him up), or for us which is yumi (from you plus me). Original
borrowings can be used creatively to take on new meanings such as the word ars which is used for
cause- or source, as well as bottom, and originated in the English word arse.
The syntax of Pidgins can be quite unlike the languages from which terms were borrowed and
modified, as can be seen in this example from an earlier stage of Tok Pisin:
Baimbai hed bilongyu i-arrait gain
(by and by) (head) (belong you) (he-alright) (again)
Your head will soon get well again
There are considered to be between six and twelve million people still using Pidgin language
and between ten and seventeen million using descendants from Pidgins called Creoles.When a
Pidgin develops beyond its role as a trade language and becomes the first language of a social
community, it is described as a Creoie. Tok Pisin. for example, would more accurately be described
nowadays as a Creole. Although still locally called pidgin, the language spoken by large numbers of
people in Hawaii is also a Creole, A Creole develops as the first language of the children of Pidgin
speakers. Thus, unlike Pidgins, Creoles have large numbers of native speakers and are not restricted
at all in their uses. A French-based Creole is spoken by the majority of the population in Haiti and
English-based Creoles are used in Jamaica and Sierra Leone.
The separate vocabulary elements of a Pidgin can become grammatical elements in a Creole.
The form baimbai yu go (by and by you go) in early Tok Pisin gradually shortened to bai yu go,
then to yu baigo, and finally to yu bigo, with a grammatical structure not unlike that of its English
translation equivalent,you will go.
The Post-Creole continuum
In many contemporary situations where Creoles evolved, there is usually evidence of another
process at work. Just as there was development from a Pidgin to a Creole, known as cv reolization,
there is now often a retreat from the use of the Creole by those who have greater contact with a
standard variety of the language. Where education and greater social prestige are associated with
a higher variety, used as a model (e.g. British English in Jamaica), many speakers will tend to use
fewer Creole forms and structures. The process, known as decreolization, leads, at one extreme, to
a variety that is closer to the external standard model and leaves, at the other extreme, a basic variety
with more local Creole features. The more basic variety is called the basilect and the variety closer
to the external model is called the acrolect. Between these two extremes may be a range of slightly
different varieties, some with many and some with fewer Creole features, known as mesolects. This
range of varieties, evolving after (= post) the Creole has been created, is called the Post-Creole
continuum.
Thus, in Jamaica, one speaker may say a fi mi bttk dat (basilect), another may put it as iz mi
buk (mesolect) or yet another may choose its my book (acrolect). It is also common for speakers

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to be able to use a range of features associated with different varieties and appropriate to different
situations.
It is predictable that these differences will be tied very much to social values and identity. In
the course of discussing language varieties in terms of regional differences, we have excluded, in
a rather artificial way, the complex social factors which are also at work in determining language
variation. In the final chapter, we shall go on to consider the influence of a number of these social
variables.
Language, society and culture
When the anchorwoman Connie Chung was asked a fairly insensitive question by a new co-
worker about the relationship between her position as an Asian-American woman and her rapid rise
in the field, her response was both pointed and humorous: I pointed to the senior vice president and
announced, Bill likes the way I do his shirts.
Regina Barreca(1991)
We have already noted that the way you speak may provide clues, in terms of regional accent
or dialect, to where you spent most of your early life. However, your speech may also contain a
number of features which are unrelated to regional variation. Two people growing up in the same
geographical area, at the same time, may speak differently because of a number of social factors. It
is important not to overlook this social aspect of language because, in many ways, speech is a form
of social identity and is used, consciously or unconsciously, to indicate membership of different social
groups or different speech communities. A speech community is a group of people who share a set
of norms, rules and expectations regarding the use of language. Investigating language from this
perspective is known as Sociolinguistics.
Sociolinguistics
In general terms,sociolinguistics deals with the inter-relationships between language and
society. It has strong connections to anthropology, through the investigation of language and culture,
and to sociology, through the crucial role that language plays in the organization of social groups and
institutions. It is also tied to social psychology, particularly with regard to how attitudes and perceptions
arc expressed and how in-group and out-group behaviors are identified. All these connections are
needed if we are to make sense of what might be described associal dialects.
Social dialects
In modern studies of language variation, a great deal of care is taken to document, usually via
questionnaires, certain details of the social backgrounds of speakers. It is as a result of taking such
details into account that we have been able to make a study of social dialects, which are varieties
of language used by groups defined according to class, education, age, sex, and a number of other
social parameters.
Before exploring these factors in detail, it is important to draw attention to one particular
interaction between social values and language use. The concept of prestige, as found in discussions
about language in use, is typically understood in terms of overt prestige, that is, the generally
recognized better or positively valued ways of speaking in social communities. There is, however, an
important phenomenon called covert prestige. This hidden type of positive value is often attached
to non-standard forms and expressions by certain sub-groups. Members of these sub-groups may
place much higher value on the use of certain non-standard forms as markers of social solidarity.
For example, schoolboys everywhere seem to attach covert prestige to forms of bad language
(swearing and tough talk) that are not similarly valued in the larger community. It is nevertheless,
within the larger community that norms and expectations are typically established.
Social class and education
Two obvious factors in the investigation of social dialect are social class and education. In
some dialect surveys, it has been found that, among those leaving the educational system at an early
age, there is a greater tendency to use forms which are relatively infrequent in the speech of those
who go on to college. Expressions such as those contained in Them boys throwed some-thin are
much more common in the speech of the former group than the latter. It seems to be the case that a
person who spends a long time going through college or university will tend to have spoken language

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features which derive from a lot of time spent working with the written language. The complaint that
some professor talks like a book is possibly a recognition of an extreme form of this influence.
The social classes also sound different. A famous study by Labov (1972) combined elements
from place of occupation and socioeconomic status by looking at pronunciation differences among
salespeople in three New York City department stores, Saks (high status), Macys (middle status)
and Kleins (low status). Labov asked salespeople questions that elicited the expression fourth floor.
He was interested in the pronunciation (or not) of the [r] sound after vowels. There was a regular
pattern: the higher the socioeconomic status the more [r] sounds, and the lower the socio-economic
status, the fewer [r] sounds were produced. So, the difference in a single consonant could mark
higher versus lowah social class. That was in New York.
In Reading, England,Trudgill (1974) found that the same variable (i.e. [r] after a vowel) had the
opposite social value. Upper middle class speakers in that area tended to pronounce fewer [r] sounds
than lower/working class speakers. You may have encountered individuals who seem to have no [r]
sound in Isnt that mahvellous. dahling!
Actually, a more stable indication of lower class and less education, throughout the English-
speaking world, is the occurrence of [n] rather than [r] at the end of words like walking and going.
Pronunciations represented by sittin and drinkin arc associated with lower social class.
Another social marker is [h]-dropping, which results in ouse and ello. In contemporary English,
this is associated with lower social class and less education. For Charles Dickens, writing in the
middle of the nineteenth- century. it was one way of marking a characters lower status, as in this
example from Uriah Heep (in David Copperfield).
lam well aware that I am the umblest person going, said Uriah Heep, modestly; ... My mother
is likewise avery umble person. We live in numble abode, Master Copperfield, but we have much to
be thankful for. My fathers former calling was umble.
Age and gender
Even within groups of the same social class, however,other differences can be found which
seem to correlate with factors such as the age or gender of speakers. Many younger speakers living
in a particular region often look at the results of a dialect survey of their area (conducted mainly with
older informants) and claim that their grandparents may use those terms, but they do not. Variation
according to age is most noticeable across the grand- parent-grandchild time span.
Grandfather may still talk about the icebox and the wireless. Hes unlikely to know what rules,
what sucks, or whats totally stoked, and he doesnt use like to introduce reported speech, as his
granddaughter might do: Were getting ready, and hes like, Lets go, and Im like, No way Im not
ready, and he splits anyway, the creep!
Variation according to the gender of the speaker has been the subject of a lot of recent research.
One general conclusion from dialect surveys is that female speakers tend to use more prestigious
forms than male speakers with the same general social background. That is, forms such as I done
it, it growed and he aint can be found more often in the speech of males, and I did it, it grew and he
isn t in the speech of females.
In some cultures, there are much more marked differences between male and female speech.
Quite different pronunciations of certain words in male and female speech have been documented in
some North American Indian languages such as Gros Venire and Koasati. Indeed, when Europeans
first encountered the different vocabularies of male and female speech among the Carib Indians,
they reported that the different sexes used different languages. What had in fact, been found was an
extreme version of variation according to the gender of the speaker.
In contemporary English, there are many reported differences in the talk of males and females.
In same gender pairs having conversations, women generally discuss their personal feelings more
than men. Men appear to prefer non-personal topics such as sport and news. Men tend to respond
to an expression of feelings or problems by giving advice on solutions, while women are more likely
to mention personal experiences that match or connect with the other womans. There is a pattern
documented in American English social contexts of women co-operating and seeking connection via

80 ENGLISH
language, whereas men are more competitive and concerned with power via language. In mixed-
gender pairs having conversations, the rate of men interrupting women is substantially greater than
the reverse. Women are reported to use more expressions associated with tentativeness, such as
hedges (sort of, kind of) and tags (isnt it?, dont you?), when expressing an opinion: Well, em, I
think that golf is kind of boring, don t you?
There have been noticeable changes in English vocabulary (e.g. spokesperson, mail carrier
instead of spokesman, mailman) as part of an attempt to eliminate gender bias in general terms, but
the dilemma of the singular pronoun persists. Is a friend to be referred to as he or she, s/he, or even
they in sentences like: Bring a friend if..................can come. In some contexts it appears that they
is emerging as the preferred term (but you can be sure that somebody will complain that they dont
like it!).
Ethnic background
In the quote that introduces this chapter, both the gender and the ethnicity of an individual
are alluded to. The humorous response plays on the stereotyped image of how a female member
of one ethnic minority might succeed in society. In a more serious way, we can observe that, within
any society, differences in speech may come about because of different ethnic backgrounds. In very
obvious ways, the speech of recent immigrants, and often of their children, will contain identifying
features. In some areas, where there is strong language loyally to the original language of the group,
a large number of features are carried over into the new language.
More generally, the speech of many African-Americans, technically known as Black English
Vernacular (BEY), is a widespread social dialect, often cutting across regional differences. When
a group within a society undergoes some form of social isolation, such as the discrimination or
segregation experienced historically by African-Americans, then social dialect differences become
more marked. The accompanying problem, from a social point of view, is that the resulting variety
of speech may be stigmatized as bad speech. One example is the frequent absence of the copula
(forms of the verb to be) in BEV, as in expressions like They mine or You crazy. Standard English
requires that the verb form are be used in such expressions. However, many other English dialects
do not use the copula in such structures and a very large number of languages (e.g. Arabic, Russian)
, have similar structures without the copula. BEV, in this respect, cannot be bad any more than
Russian is bad or Arabic is bad. As a dialect, it simply has features which are consistently different
from the Standard.
Another aspect of BEV which has been criticized, sometimes by educators, is the use of double
negative constructions as in He dont know nothing. or I aint afraid of no ghosts. The criticism is
usually that such structures are illogical. If that is so, then French, which typically employs a two-part
negative form, as exemplified by il NE sait RIEN (he doesnt know anything), and Old English, also
with a double negative, as in lc NAHT singan NE cude (I didnt know how to sing), must be viewed
as equally illogical. In fact, far from being illogical, this type of structure provides a very effective
means of emphasizing the negative part of a message in this dialect. It is basically a dialect feature,
present in one social dialect of English, sometimes found in other dialects,but not in the Standard
Language.
Idiolect
Of course, aspects of all these elements of social and regional dialect variation are combined,
in one form or another, in the speech of each individual. The term idiolect is used for the personal
dialect of each individual speaker of a language. There are other factors, such as voice quality and
physical state, which contribute to the identifying features in an individuals speech, but many of the
social factors we have described determine each persons idiolect. From the perspective of the social
study of language, you are, in many respects, what you say.

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 STYLE, REGISTER AND JARGON
All of the social factors we have considered so far are related to variation according to the user
of the language. Another source of variation in an individuals speech is occasioned by the situation
of use. There is a gradation of style of speech, from the very formal to the very informal.Going for
a job interview, you may say to a secretary Excuse me. Is the manager in his office? I have an
appointment. Alternatively, speaking to a friend about another friend, you may produce a much less
formal version of the message: Hey,is that lazy dog still in bed? I gotta see him about something.
This type of variation is more formally encoded income languages than others. In Japanese, for
example, there are different terms used for the person you are speaking to depending on the amount
of respect or deference required. French has two pronouns (tu and vons) corresponding to singular
you with the first reserved for close friends and family. Similar distinctions are seen in the you forms
in German (du and Sic) and in Spanish (tu and usted).
(Differences in style can also be found in written language, with business letters(e.g. I am
writing to inform you ...) versus letters to friends (Just wanted to let you know...) as good illustrations.
The general pattern,however, is that a written form of a message will inevitably be more formal in
style than its spoken equivalent. If you see someone on the local bus, eating, drinking and playing
a radio, you can say that what hes doing isnt allowed and tha he should wait until he gets off the
bus. Alternatively,you can draw his attention to the more formal language of the printed notice which
reads:
The city has recently passed an ordinance that expressly prohibits the following while aboard
public conveyances, Eating or Drinking. The Playing of Electronic Devices.
The formality of expressions such as expressly prohibit, the following, and electronic devices is
more extreme than is likely to occur in the spoken language.
Variation according to use in specific situations is also studied in terms of register. There is
religious register in which we expect to find expressions not found elsewhere, as in Ye shall be
blessed by Him in times of tribulation. In another register you will encounter sentences such as.
The plaintiff is ready to take the witness stand. The legal register, however, is unlikely to incorporate
some of the expressions you are becoming familiar with from the linguistics register,such as The
morphology of this dialect contains fewer inflectional suffixes.
It is obvious that one of the key features of a register is the use of special jargon, which can
be defined as technical vocabulary associated with a special activity or group. ln social terms, jargon
helps to connect those who see themselves as insiders in some way and to exclude outsiders. If
you arc familiar with surfing talk, youll know whether the following answer to an interview question
was yes or no.
Q: Would you ride a bodyboard if a shark bit off your legs?
A: Hey, if you can get tubed, nobodys bumming.
The answer means,Yes,of course!. Even when dictionaries are created for certain activities,
the entries often explain jargon with other jargon, as in this example from The New Hackers
Dictionary (Raymond,1991)compiled from the expressions used by those who spend a lot of time
with computers.
juggling eggs. Keeping a lot of state in your head while modifying a program.Dont bother me
now, I m juggling eggs, means that an interrupt is likely to result in the programs being scrambled.
You may actually feel that this idiom could apply equally well on many occasions in your daily
life!
Diglossia
Taking all the preceding social factors into account, we might imagine that managing to say
the right thing to the right person at the right time is a monumental social accomplishment. It is. It
is a major skill which language-users must acquire over and above other linguistic skills such as
pronunciation and grammar. In some societies, however, the choice of appropriate linguistic forms
is made a little more straightforward because of diglossia. This term is used to describe a situation

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in which two very different varieties of language coexist in a speech community, each with a distinct
range of social functions. There is normally a High variety, for formal or serious matters, and a Low
variety, for conversation and other informal uses)
A form of diglossia exists in most Arabic-speaking countries where the high, or classical, variety
is used in lectures, religious speech and formal political talk, while the low variety is the local dialect
of colloquial Arabic. In Greek, there is also a high and a low (or demotic) variety. In some situations,
the high variety may be a quite separate language. Through long periods of Western European
history, a diglossic situation existed with Latin as the high variety and local languages such as French
and English as the low variety.
Language and culture
Many of the factors which give rise to linguistic variation are sometimes discussed in terms
of culti al differences. It is not unusual to find linguistic features quoted as identifiable aspects of
working class culture or African- American culture, for example. In many respects, this view has been
influenced by the work of anthropologists who tend to treat language as one element among others,
such as beliefs, within the definition of culture as socially acquired knowledge. Given the process of
cultural transmission by which languages are acquired, it makes a lot of sense to emphasize the fact
that(linguistic variation is tied very much to the existence of different cultures)
In the study of the worlds cultures, it has become clear that different groups not only have
different languages, they have different world views which are reflected in their languages. In very
simple terms, the Aztecs not only did not have a figure in their culture like Santa Claus, they did
not have a word for this figure either. In the sense that language reflects culture, this is a very
important observation and the existence of different world views should not be ignored when different
languages or language varieties are studied. However, one quite influential theory of the connection
between language and world view proposes a much more deterministic relationship.
Linguistic determinism
If two languages appear to have very different ways of describing the way the world is, then it
may be that as you learn one of those languages,the way your language is organized will determine
how you perceive the world being organized. That is your language will give you a ready-made
system of categorizing what you perceive, and as a consequence, you will be led to perceive the
world around you only in those categories. Stated in this way, you have a theory of language which
has been called linguistic determinism and which, in its strongest version, holds that language
determines thoughtIn short, you can only think in the categories which your language allows you to
think in.
A much quoted example used to support this view is based on the (claimed) number of words
the Eskimos have for what, in English, is described as snow. When you, as an English speaker, look
at wintry scenes, you may see a single white entity called snow. The Eskimo, viewing similar scenes,
may see a large number of different entities, and he does so, it is claimed, because his language
allows him to categorize what he sees differently from the English speaker. We shall return to this
example.
The Sapir-Whorf hypothesis
The general idea we are considering is part of what has become known as the Sapir-Wherf
hypothesis. Edward Sapir and Benjamin Whorf produced arguments, in the 1930s, that the language
of American Indians, for example, led them to view the world differently from those who spoke
European languages. Let us look at an example of this reasoning. Whorf claimed that the Hopi
Indians of Arizona perceived the world differently from other tribes (e.g. the English-speaking tribe)
because their language led them to do so. In the grammar of Hopi, there is a distinction between
animate and inanimate, and among the set of entities categorized as animate were clouds and
stones. Whorf concluded that the Hopi believe that clouds and stones are animate (living) entities
and that it is their language which leads them to believe this. Now, English does not mark in its

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grammar that clouds and stones are animate,so English speakers do not see the world in the same
way as the Hopi. In Whorfs words(We dissect nature along lines laid down by our native languages)
A number of arguments have been presented against this view. Here is one from Sampson
(1980). Imagine a tribe which has a language in which differences in sex are marked grammatically,
so that the terms used for females have special markings in the language. Now, you find that these
female markings are also used with the terms for stone and door. We may then conclude that this
tribe believes that stones and doors are female entities in the same way as girls and women. This
tribe is probably not unfamiliar to you. They use the terms la femme (woman), la pierre (stone) and
la porte (door). It is the tribe which lives in France. Do you think that the French believe that stones
and doors are female in the same way as women?
The problem with the conclusions in both these examples is that there is a confusion between
linguistic categories (animate,feminine) and biological categories (living, female). Of course,
there is frequently a correspondence in languages between these categories, but there does not
have to be. Moreover, the linguistic categories do not force you to ignore biological categories. While
the Hopi language has a particular linguistic category for stone, it does not mean that a Hopi truck
driver thinks he has killed a living creature when he runs over a stone with his truck.
Returning to the Eskimos and snow, we realize that English does not have a large number
of single terms for different kinds of snow. However, English speakers can create expressions, by
manipulating their language, to refer to wet .mow, powdery snow, spring snow, and so on. The average
English speaker probably does life a very different view of snow from the average Eskimo speaker.
That is a reflection of their different experiences in different cultural environments. The languages
they have learned reflect the different cultures. In Tuvaluan (spoken in some central Pacific islands),
they have many different words for types of coconut. In another Pacific culture, that of Hawaii, the
traditional language had a very large number of words for different kinds of rain. Our languages
reflect our concerns.
The notion that language determines thought may be partially correct, in some extremely
limited way, but it fails to take into account the fact that users of a language do not inherit a fixed set of
patterns to use. They inherit the ability to manipulate and create with a language, in order to express
their perceptions. If thinking and perception were totally determined by language, then the concept of
language change would be impossible. If a young Hopi boy had no word in his language for the object
known to us as a computer, would he fail to perceive the object? Would he be unable to think about
it? What the Hopi does when he encounters a new entity is to change his language to accommodate
the need to refer to the new entity. The human manipulates the language, not the other way around.
Language universals
While many linguists have recognized the extent to which languages are subject to variation,
they have also noted the extent to which all languages have certain common properties. Those
common properties, called language universals, can be described, from one point of view, as those
definitive features of language which we investigated in Chapter 3.
Specifically, every human language can be learned by children, employs an arbitrary symbol
system, and can be used to send and receive messages by its users. From another point of view,
every language has nounlike and verblike components which are organized within a limited set of
patterns to produce complex utterances. At the moment, much of what is known about the general
character of languages is in the form of certain established relationships. For example, if a language
uses fricative sounds, It invariably also uses stops. If a language places objects after verbs, it will
also use prepositions. By discovering universal patterns of this type, it may be possible one day to
describe, not just the grammars of all languages, but the single grammar of human language.

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 3. LOGIC

Definitions of Logic
It is the power to reason which makes man different from all other living beings. In many
ways man and animals behave similarly, but the difference between their ways of behaviour lies in
the fact that man can judge whether his actions are right or wrong, and his ideas are true or false,
while animals cannot. It is this ability that gives man the right to be called the crown of all creation.
This power to reason is dependent on the power to gain knowledge. Man not only perceives things
and objects, but thinks about them, analyses them, finds out their peculiar characteristics. This is
knowledge. Man acquires knowledge by using his thinking powers. Thinking is the tool that man
makes use of to arrive at knowledge. So, in order to know what is knowledge, we must first know what
thinking is. Mans behaviour consists of thinking, feeling and willing. What we refer to as the mind
of man is made up of these three functions. Whenever we are trying to find a solution to a problem,
we are thinking. When we appreciate beauty of different kinds, whether it be a painting, a piece of
music, or nature, we are feeling. When we are faced with a moral crisis, we decide upon a particular
course of action which seems to be right, and this is the function of willing. But it is not enough if we
merely think, feel and will. As rational beings we should think, feel and will rightly. The enquiry into
right thinking is logic which is the science of thought. The study of right feeling is known as aesthetics
or the science of emotions. And the study of what is right willing is ethics or the science of conduct.
As students of logic, we have to study the science of thought. It is by thinking that we arrived
at knowledge. But what is knowledge ? Knowledge is a system of ideas, which we again as a result
of thinking. For example, we look at an object which is brown in colour, has a certain length, breadth,
height and weight. It is used for certain purposes such as for writing or to place things on. So we
have a system of ideas which jointly refers to the object and that object has the name table. This is
knowledge. It is reached as a result of our own intellectual activity. We know something only when
we think about it and relate it to the rest of our experience. Therefore, while considering knowledge,
we have to distinguish between knowledge which we get as a result of our thinking and a mere
report or hearsay. We usually say I heard that A is dishonest, but I do not rally know it. Here, the
dishonesty of A is something that someone else has told us. We have not experienced it ourselves.
Such knowledge which is acquired by hearsay is not considered true knowledge, because it may be
found to be false in actual experience. True knowledge is that which is arrived at as a result of our
own thinking activity. Logic is the science of thought and studies those processes of thinking whose
aim is to attain truth.
As the science the logic must be concerned with the nature and conditions of truth. Hence
the research for truth. Logic lays down certain standards which when followed, lead the individual
to truth. Such standards are known as norms. There is a great deal of difference between things as
they are actually and things as they ought to be. Between the actual and the ideal there is a vast
difference. For example, the ideal, as everyone knows it, is that we thought to tell the truth always. But
very often we do not do so. Therefore, Logic also lays down standards or norms for thinking. Logic
tells us how we ought to think, if our thought processes are going to give us truth.
It gives us the ideal form which thinking ought to take; and other forms are judged by comparing
them with this ideal form. Since Logic gives us these norms for thinking, it is defined as the normative
science of thought or a systematic enquiry into the principles which govern correct thinking.
Logic and Psychology
Logic is not the only science whose subject-matter is thinking. There are other sciences like
Psychology which also study thought. Both Logic and Psychology are interested in the mental
process known as thinking. But there is an important difference in their approach to the subject-
matter. We have already seen how Logic as a normative science is interested in studying the ideal
or to their attainment. Positive sciences are those which study things as they describe them. All
natural sciences like Physics, Chemistry, Botany etc., are positive sciences. Normative sciences are
those which study things as they ought to be with reference to an ideal. Therefore, it follows, that the
interest of Psychology is only in the processes of thought whereas the interest of Logic lies in the

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product of thought. To the former what is important is the nature of thought and the meaning. It is with
this meaning side of thought that Logic is concerned.
Logic differs from Psychology in another way also. The subject matter of Logic is thinking alone.
It has not direct concern with the other aspects of the mind. But Psychology, which is the science
of behaviour, is interested not only in thinking but also in feeling and willing. Psychology describes
pleasure and pain, acts of will, as well as logical thinking. All these are studied for their own sake,
whereas Logic studies thinking alone, and that too with a definite ideal, viz., the attainment of truth
Hence there is a twofold difference between Logic and Psychology. In method Logic is normative and
Psychology is positive, and with regard to subject-matter Logic deals with thinking alone, whereas
Psychology has to cover the entire behaviour.
Logic and Ethics
If Logic deals with thinking from a normative standpoint, ethics deals with the willed activity of
man from a normative standpoint. Mans actions are judged to be right or wrong, by referring them
to a standard of goodness. Just as in Logic, the reasonings of man are judged to be true or false by
referring them to a standard form of reasoning, so also in Ethics, we judge mans willed behaviour to
be good or bad by referring it to the ideal of goodness. Ethics gives us the norm for willing and Logic
gives us the norm for thinking. Both are concerned with what ought to be. Both Logic and Ethics
agree in method, but the subject-matter is different.
Logic, as a normative science of thought, has set for itself a difficult problem. It has to think
about thought and discover laws which govern thought in its search for truth. But how is this done ?
Whose thoughts are we to take as the pattern for logical study ? We cannot, definitely, take our own
thoughts as the subject-matter of Logic. Because it is difficult to observe thought when it is actually
being thought. Also, we cannot take our own thinking as an example of all thinking. It is also not
possible for us know exactly and correctly the thoughts of others through direct observation.
It may be asked : What is the practical use of a study of Logic? People have been thinking
correctly throughout the ages without logical training. Also those who have received logical training
may go wrong in their thinking. Even then, it is useful to study Logic, for it will help its student in
recognizing his mistakes in thought and grading himself against them in the future. Thus logic is
indirectly and negatively useful. And, positively, Logic gives its student intellectual discipline and
helps him to think correctly. The most important characteristic of man is his thinking power and a
study of the principles of correct thinking must be of great importance to him.
The Principle of Thinking and the Syllogism
The word Logic is derived from the Greek word logos which means thought and word as
expression of thought. From this the definition of Logic may be understood the science of thought
expressed in language. That is, thought, as such in the abstract, can never be studied. We have to
deal with the results of thinking, rather than with the thought-processes themselves. The ideas and
thoughts that are already there must be combined in such a way that their result leads to certainty.
This is known as reasoning. In reasoning we have certain basic facts given to us, and from these we
derive a knowledge which follows from them. Reasoning is always from what is given to something
that is not given. At every stage of our experience, we are explaining things in terms of ideas and
meanings. Sometimes we change old ideas into new meanings. To know a thing means, then, to
transform it into ideas and meaning which connect that thing with other things either positively or
negatively. We say an object belongs to one class of things or is different form another class of
things or is different from another class. So in every reasoning we have these three parts : (i) A given
statement, fact or idea; (ii) A statement, fact or idea which follows from the given idea; (iii) The basis
or ground on which we draw (ii) from (i).
Such thinking is done in the form of judgements. Judgement is the way in which the mind
interprets the facts supplied to it by sensations. It is one single act of thought. When we look at the
rose and understand the colour red as belonging to the object rose, we are making a judgement
in terms of ideas and meanings about an external object rose. This is purely mental. But ideas, as
we have already stated, cannot be known in the abstract unless we think in languages. Reasoning

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has always to be done in language. Aristotle, the famous Greek Logician, said that a statement
in which something is said either positively or negatively about something else, is a proposition.
Taking this as a simple and preliminary definition of a proposition we find that statements like a
rose is red, crows are not white are propositions. We affirm or deny some quality of some object. In
reasoning we make use of such propositions to arrive at knowledge. We affirm or deny some quality
of some object. In reasoning we make use of such proposition from one or more given proposition,
the reasoning process is known as inference. To draw a conclusion from the given statement, there
must be something that is common between the conclusion and the given statements. For example, I
am inferring a conclusion because of the universal fact that my body is similar to all the other bodies
which are mortal. The common element or the ground of inference is the physiological similarity of all
mortal beings. Therefore, without such a universal ground, inference is impossible.
There are two types of inference. If one proposition is all that is given and from that if we draw
a conclusion, the inference is known as immediate inference. For example, if we say A is B because
B is A, it is a case of immediate inference. By this we mean that because B is A, the conclusion
A is B must follow. On the other hand, if the given propositions are more than one which lead to
a conclusion, the inference is called mediate inference. In immediate inference the conclusion is
reached directly, whereas in mediate inference the conclusion is reached after some comparison
with a common factor is done. So the conclusion is reached mediately or indirectly. For example, if we
argue S is P because M is P and S is M, it is a case of mediate inference. Here the relation between
S and P is determined because each of them is related to a third term M. A typical example of such a
mediate inference is made up of three propositions. The third proposition is derived from the first and
the second proposition. Aristotle called this type of mediate inference syllogism. This word means
thinking two propositions together. But every pair of propositions do not lead to a third proposition as
conclusion. For example, from the statements dogs are animals, and men are rational no conclusion
can be drawn, because they have nothing in common. There must be something that is to be drawn
from them. In the following argument :
All men are mortal
Socrates is a man
Socrates is mortal
There is a passage from the facts given in the first two propositions to the third. In this example
man is the basis on which it is maintained that Socrates is mortal. So we think together the first two
propositions as a result of which thinking, we arrive at a conclusion given in the third proposition. The
whole is one piece of argument, although for the sake of convenience, we can divide it into two parts.
But the most important fact to be remembered here is that the first two given propositions are to be
taken as true. These two given propositions are known as premises, and the third proposition which
we draw from these two, is known as the conclusion, Socrates is mortal. This type of syllogism is the
simplest example of mediate inference. The word premise means the starting point which is taken
as true. Therefore in a syllogism the first two statements are called premises because they are the
starting points for the argument and also because they are taken as true. The conclusion is derived
from such true premises and therefore, is true.
Each proposition of a syllogism consists of two terms and a copula. The terms are the extremes
of the proposition and are known as the subject and the predicate of the proposition. Thus in the
proposition the weather is pleasant, the weather is the subject, pleasant, is the predicate and the
word is, which connects the subject and the predicate, is called the copula. In the syllogism given
above, we are said that the first two propositions have a common term. The common term is man
and is known as the middle term. The reason for this name is clear. It is the mediating term or the
term to which the subject and predicate and referred.
It has already been pointed out that for inference there must be a common element binding
the two terms, before we can say anything about their relation. In the example given above, mortal
beings are much larger in number than men and includes men within it. That is, man is to a certain
extent identical with those beings which are mortal. Again we find that human beings are larger in
number, and Socrates is only one of them. That is, since Socrates belongs to the species of man, we

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say, he also has the characteristic of mortality which belongs to all men. This whole relationship may
be illustrated by means of circles.

Here the most important to remember is that man is the connecting link between a mortal
being and Socrates, Such a link is known as the middle term.
In the syllogism we have just considered, there are two other terms, viz., Socrates and mortal,
which have to be explained. These form the subject and predicate of the conclusion and are known
as minor term and major term. These get their names from the fact that major term always has the
greatest extension and that which has the least extension is the subject term. As already shown by
circles we find that mortal which is the predicate or the major term has the largest extension and
Socrates the subject of the conclusion has the least extension.
Now, if we look at the syllogism as a whole ;
All men are mortal
Socrates is a man
Socrates is mortal,
We find that the major term mortal appears in the first premise, all men are mortal. Therefore
that premise is known as the major premise. The minor term Socrates appears in the second
premise. That premise in which the minor term appears is known as the minor premise. When the
major premise is first, the minor premise second and the conclusion third. Thus :
All men are mortal - Major premise.
Socrates is a man - Minor premise.
Socrates is mortal - Conclusion
It will be convenient to use symbols for the terms and represent the syllogism symbolically. We
shall use the letter P,S and M.S. (which is the subject of the conclusion) will indicate the minor term,
P (which is the predicate of the conclusion) will indicate the major term and M will indicate the middle
term. Making use of these symbols, we have
M-P
S-M
S-P
This is the general pattern of the argument known as syllogism. Aristotle maintained that this
is the most important form of reasoning. Here we proceed to draw a conclusion from the given
premises. We deduce a conclusion from something that is given. Deduce means to draw out. Hence
this process of logical arguing from the known and the unknown. The facts that are given are such
that they are related to a common ground. It is this common ground or mediating fact which helps
us to reason out the relationship between the known facts. That is why it is usually maintained by
logicians that in deductive arguments, we always have something new in the conclusion which we did
not have something new in the conclusion which we did not have before. But it is not new in the sense
that we did not know anything about it completely before. We had also known their independent
relationship with the mediating term. Now, on that basis, we have gathered because it is drawn from
premises which are given as true. In deduction, we always proceed to include the particular instance
under a general rule. So it is proceeding from universal truths to truth of the particular.

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 THE PROPOSITION
The proposition and parts
A judgement, which is the mental act of thought, when expressed on language is known as a
proposition. In the last chapter it was said that a proposition consists of two terms and a copula. The
two terms are known as subject and predicate. The subject is that about which some thing is affirmed
or denied. In the proposition rose is red we say that the rose has the red colour. Hence rose is the
subject of the proposition. The predicate is that which is affirmed of denied of the subject. Redness
is the colour which is said to belong to the subject rose. Hence it is the predicate of the proposition.
Similarly in the proposition, The black board is not white we are denying the quality of white as not
belonging to the subject blackboard. Hence, the copula is is the sign of relation between the subject
and the predicate. For the form wherein the two terms are related by some form of the verb to be,
preferably is, is not, are, are not. Such propositions can be shown symbolically thus :
S P
Rose is red
where S stands for subject and P stands for predicate and the copula is shown marked off
from S and P.
Such a logical proposition must be distinguished from the grammatical sentence. The logical
proposition is the verbal form of a judgement. It gives a form to thought, and as such may be true
or false. But a grammatical sentence is not so limited. We can express not only thoughts, but also
wishes, commands and feelings etc., in sentences. Therefore questions like Breathes there the man
with soul so dead ?, commands like do thy duty without caring for the reward and exclamations like
horrible! are not logical propositions as they stand. But each implies a logical proposition. Thus all
grammatical sentences are not propositions as they stand. But each implies a logical proposition.
So, when a sentence is given for logical treatment, the foremost thing to be done is to change
the sentence in such a way that it becomes a correct proposition with a subject and a predicate
connected by a copula which on in the chapter, it will be shown how to change sentences into logical
propositions.
Classification of propositions
(a) According to quality : We have defined a proposition as a statement in which
some thing is said either positively or negatively about something else. That is
every proposition either affirms or denies something of the subject. This is called the
quality of the proposition. Qualitatively, therefore, propositions are either affirmative
or negative. In an affirmative or negative, In as affirmative proposition the predicate
is affirmed as belonging to the subject. Such an affirmative proposition is always of
the form S is P where S and P stand for subject and predicate of the proposition.
The negative proposition is of the form S is not P. Taking a concrete example, in the
proposition Roses are red, the predicate red is affirmed of the subject roses. In the
proposition Man is not perfect, the predicate perfect is denied of the subject man.
(b) According to quantity : Propositions are also divided according to quantity. The quantity
of a proposition is always determined by referring to the subject of the proposition.
When the proposition refers to all the individuals belonging to the class signified by
the subject, the proposition is said to be universal in quantity. Thus in the proposition
all men are mortal, the predicate mortal is affirmed of the whole group of men.
Similarly in the proposition No men are perfect, the predicate perfect is denied of
the entire class of men. In the both cases, since the whole of the class is referred
to, these propositions are called universal propositions. But when the predicate is
affirmed or denied only of the part so the class signified by the subject, then the
proposition is said to be particular. Thus in some men are wise, the predicate wise
is affirmed only of a portion of the class of men, and in the proposition some men are

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 not wise the predicate is denied again only of a portion of the class of men. Hence
these propositions are known as particular propositions. Apart from these two types
of propositions, there is also another type of proposition where the subject is a proper
name of only one of its sort in the world. For example in the proposition Socrates is
mortal, the subject Socrates is a proper name and thus refers to only one particular
individual. Such propositions are called singular propositions. Their subjects cannot
be divided into parts and must be referred to as a complete whole always. Such
propositions are also called universal for the sake of convenience. These quantitative
differences in logical propositions are always shown by the words all and some - all if
the predicate speaks of the whole of the subject and some if it speaks only for a part
of the subject. Universal propositions are also stated without the sign of quantity thus
: Man is mortal.
We have now seen that all propositions have quantity and quality. They are either affirmative
or negative; universal or particular. Combing these we have four different types of propositions.
They are usually represented by the vowels A,E,I and O.A and I are the first two letters stand for
universal affirmative and particular affirmative propositions represented by A. Universal affirmative
propositions are of the form, A; S is P (SAP); and particular affirmative propositions are of the form
Some S in P (SIP). Similarly E and O are the vowels in the Latin word nego (I deny) and they stand
for universal negative and particular negative propositions respectively e.g., no men are perfect is
a universal negative proposition. Symbolically stated it is of the form No S is P (SEP). A particular
negative is of the form Some S not P (Sop).
The form of the E proposition requires explanation. It is expressed as No S is P. If we look at
the copula is, it will be seen as though the proposition is affirmative. But it is not so. The subject of
the E proposition is All S and the copula is is not. Still the proposition is not written in the form All
S is not P because this statement in the English language means some S is not P. Therefore, the
form No S is used for the universal negative.
A part from the division of propositions according to quality and quantity, there is another
division into categorical and conditional. This is also a very important division in the study of deductive
logic. In a categorical proposition the predicate is either affirmed or denied or the subject definitely,
without any condition. We definitely say the sun is shining, Socrates is a man. There is no doubt
or condition. On the other hand, conditional propositions are those where we affirm something only
under some conditions. We do not say anything directly about the subject itself, but only under certain
conditions. Such conditional propositions are of two kinds, the hypothetical and the disjunctive. The
hypothetical proposition is expressed in the form : (1) If A is B, C is D. If there is rain, the roads will be
wet. (2) k If A is B, then A is C If one is intelligent, one will pass the examination. In these two forms,
If A is B is the condition and is called the antecedent. An antecedent is that which comes first or is
the condition. The disjunctive propositions are also expressed is one of two forms. (1) Either A is B or
C is D. Either all wars should be stopped or humanity will perish. (2) Either A is B or A is C. The signal
lights are either red or green. All these different types of propositions may be expressed as follows :

Propositions

Categorical Conditional
(S is P)

1. SAP Hypothetical Disjunctive

2. SEP
3. SIP
4. SOP

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Reeducation of Sentences to Logical Form
We have already stated that form the purposes of Logic every sentence must be changed into
a logical proposition. Here are some suggestions which will help in this :
1. A,E,I,O are the four types of logical propositions. Sentences which are not given in
these forms must be reduced to none of these four types.
2. The meaning of the given sentence must not be changed while changing the form of
the sentence.
3. When compound sentences like Gold and silver are costly metals are given, they
must be split up into simpler propositions like Gold is a costly metal and Silver is a
costly metal.
4. There are some propositions where the subject term is limited by words like alone,
only, none but, none except, none who is not, etc. For example, Graduates alone
are eligible : Such sentences can be changed into logical form in two days.
(a) By interchanging the subject and predicate of the give proposition, an A
proposition is formed. The example given above, becomes All those who are
eligible are graduates.
(b) By taking the contradictory of the given subject as the subject, and keeping the
predicate as it is, an E proposition is formed. Thus the above example will take
the form No non-graduates are eligible.
5. In some sentences we find words like unless, except, but etc. If we know to what
extent these limitations are used, the sentences can be changed into an A proposition,
eg., All metals except mercury are solid. If we do not know this limitation, then the
proposition is to be a particular proposition, e.g., All metals except one are sol i d
= Some metals are solid.
6. Words like all, every, each, any, when joined to the subject, mean and A proposition;
e.g., Every soldier fought bravely = All soldiers are persons who fought bravely.Each
and every student should study hard = All students are those who should study hard.
7. Propositions with words like all, every, each, any and having the negative sign of
not, are generally changed into particular negative. E.g., All is not gold that glitters =
Some things that glitter are not gold.
8. Words like no, none when added to the subject given an E proposition.
9. When there is no sign of quantity in the subject, the proposition is to be treated as a
universal. Blessed are the pure in heart=All those who are pure in heart are blessed.
10. Propositions with words such as most, a few, certain, many, almost all, all but
one, several, are to be treated as particular. E.g., Most of the legislators did not
attend the meeting = Some of the legislators are not those who attended the meeting.
A few students have come prepared with their lessons = Some students are those
who have prepared their lessons.
11. The word few means almost none, and logically it means some not. Thus a sentence
beginning with few and not containing the sign of negation is to be reduced to an O
proposition. E.g., Few books on Logic are easy to read = Some books on Logic are
not easy to read.
But is the sentence contains the sign of negation, then, because two negatives be
come a positive, the sentence is to be treated as an I proposition. E.G., Few person
are not selfish = Some persons are selfish.
12. Words like seldom, hardly, scarcely have a negative meaning. As before, if there
is no negative sign it is to be changed into an I proposition, E.g., Unasked advice is
seldom accepted = Some unasked advice is not accepted.
Prosperous merchants are not seldom honest = Some prosperous merchants are
honest.

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 Apart from these particular hints, there are some general facts to be remembered when
reducing a sentence into the logical form. The real subject of the proposition is always got in answer
to the question What is being spoken about? The logical predicate is also got in answer to the
question What is being spoken about? The logical predicate is also got in answer to the question
What is stated about the subject ? The copula must be clearly given in the logical form and it must
always be the present tense of the verb to be with or without the negative sign. We must determine
the quality of the subject by asking the question Does the predicate apply to the whole of the subject
or only to a part ? If the answer be the former, then the proposition is universal; If is the latter, it is
particular. The most important rule is the meaning should not be changed while reducing sentences
to logical form.
Distribution of terms
We have said that a proposition consists of a subject term, a predicate term and a copula. We
have also said that propositions can be divided into universal and particular based on the nature
of the subject. Now we have to consider the relation existing between the two terms, subject and
predicate, more fully. Every term can be understood in two ways. It can be understood as having
certain characteristic. It can also be understood as representing a class of objects. For example, the
term rose may be understood as the sweet smelling, pond coloured flower which grows on thorny
bushes. It can also stand as a mark for all the roses in the world. The former is known as the intorsion
of the term and the latter is known as extension of the term. In categorical propositions both the
terms are taken only in their extension. That is, the subject and predicate are always regarded either
as individual or as classes of objects. If this is so, then it follows that, in the propositions taken as a
whole, the relation between subject and the predicate is one of either inclusion or exclusion. That
is, the group of things indicated by the subject must be either wholly or partly within or without the
group of things indicated by the predicate. For example, when we say all men are mortal beings, the
class of men, which is the subject, is meant to fall entirely within the class of mortal beings which is
the predicate. The is an A proposition. It must be noted here that we are not given any information
about the whole of the predicate. It is only shown that there are some moral beings who are identical
with all men. The propositions means all men are some mortal beings. That is, the predicate of an
A proposition is only taken partially or only in a limited way. The subject as universal term refers
to all the things of its kind. So we say the subject is distributed and the predicate is undistributed.
Generally speaking, we say a term is distributed when the whole extent of the term is referred to and
undistributed when the reference is only limited. There are four types of categorical prepositions and
two terms in each. We shall see which of them are distributed and which not.
In the universal affirmative (A) proposition, we have already seen, that the subject is distributed
and the predicate is undistributed.
The universal negative proposition (E) distributes both subject and predicate. For example, in
the proposition No men are angles, the subject men is referred to fully. The proposition says that
these two classes of being, viz., men and angels, are entirely separate, each excluding the other.
That is, the whole class of men is excluded from the whole class of angels. Hence both subject and
predicate are distributed.
In the particular affirmative proposition (I) both subject and predicate are undistributed. For
example, in the particular proposition Some students are hard working, we are not referring to all
the students, not are we referring to all the people who are hard-working. It is only a part of the class
of students who are identical with a part of the class of hard-workers. This identical with a part of the
class of hard-workers. This identical part may be either large of small. But still it is only a part. Hence
in a particular affirmative both the subject and the predicate are undistributed.
In the particular negative proposition (O) the subject is undistributed and the predicate is
distributed. For example, in the proposition Some men are not wicked a part of men is excluded
from the whole of wicked beings. The whole class of wicked being is referred to by the predicate
whereas only some men are referred to by the subject. Hence the subject is undistributed whereas
the predicate is distributed.

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 To sum up these results : Universals (A and E) distribute their subjects, particulars (I and O) do
not; negatives (E and O) distribute their predicates, affirmatives (A and I) do not,
Proposition A : Subject distributed, predicate undistributed.
Proposition E : Subject and predicate distributed.
Proposition I : Subject and predicate undistributed.
Proposition O : Subject undistributed, predicate distributed.
These results may be summarized in the code word Asebionp, which means A distributes
subject only; E both; I neither and O predicate only.

THE OPPOSITION OF PROPOSITIONS

We have already shown the difference between mediate and immediate inference in the
last chapter. When we proceed to draw a conclusion from only one proposition which is given, he
argument is known as opposition. We have already seen that categorical propositions are four kinds
asked on the differences of quality and quantity. When any two of these four types (A,E,I and O)
of propositions, having the same terms as subject and predicate, differ in quantity of quality or in
both they are said to be opposed. The word opposition normal means, disagreeing. When two
things are so much against each other that they cannot go together, we say there is opposition
between them. But logically, the word opposition has a wider meaning. It includes here some cases
of propositions which are not really in conflict. Propositions with the same subject and predicate but
different in quantity of quality are said to be propositions which are opposed to each other. E.g., The
propositions all men are wise and no men are wise are opposed because they differ in quality. Such
opposition of propositions is of four kinds. If two propositions differ both in quantity and quality, the
opposition is called contradiction. If the difference is only in quality, and if both the propositions are
universal, the opposition is known as subcontrariety. Lastly if the two propositions agree in quality
but differ in quantity the opposition is known as sub-alternation. Let us examine these oppositions
one by one in detail.
Contradiction : Two prepositions which differ both in quantity and in quality are in contradictory
opposition. A and O,E and I are the two pairs of contradictories. All men are wise is the contradictory
of some men are not wise, No men are perfect is the contradictory of Some men are perfect. Of
these two pairs of contradictories, it follows that if one proposition is accepted as true, the other
cannot be true. For example if the proposition all men are wise is true, then definitely the proposition
Some men are not wise cannot be true, because the latter proposition contradicts the truth of the
former proposition. Hence the rule of contradiction says that of a contradictory opposites, one must
be true and the other false. They cannot both be true, nor can they both be false. If the proposition
A is accepted as true, then the proposition O must be rejected as false. Similarly the agreement is
applied to the other paid of contradictors E and I. Of the two propositions No politician are honest
and Some politicians are honest, both cannot be true. If one is true, the other must definitely be
false.
Contradictory : If two propositions differ in quality and if they are both universal, there is
contrary opposition between them. Thus the propositions A and E are contraries, All men are perfect
and No men are perfect are true, but both may be false. If one is false, the other is doubtful, i.e., may
be either true or false. But if one is true, the other must be false.
Subcontrariety : This opposition is present between two particular propositions I and O which
differ in quality alone. Since they may refer to different groups of things, both may be true, Some men
are not wise, may or may not be true. But if the former proposition is false, the latter must be true.
Therefore, of the subcontractors both may be accepted as true, but both cannot be rejected as false.
Subalternation : Two propositions which differ in quantity only are in subalter opposition. The
universal and the corresponding particular are related by way of subalternation. A and I, and E
and O are the two parts of subalterns. The universal is called the subalternant and the particular
subalternate. Thus A is the subalternant of I and I is the subalternant and the particular subalternate.
Thus A is the subalternant of I and I is the subalternate of E. In this opposition of propositions if the

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universal is true, the particular must be true, but if it is false the particular may or may not be true. If
All men are mortal, then it follows that Some men are mortal. But from the truth of the statement
Some men are wicked, we cannot say anything about all men. If the universal is not accepted, the
particular may or may not be accepted. If the particular is not accepted, the universal also must not
be accepted; if the particular is accepted, the universal may or may not be accepted.
The Square of Opposition
All the four types of relations we have explained above are usually represented in a
diagram which is called the Square of Opposition. Contraries
1. Contradictories : A and O ; E and I

Subalterns
C
Subalterns

ie
on

r
to
2. Contraries : A and E

tra
ic
d
tra
ic
3. Subcontraries : I and O

on

to
r
C

ie
s
4. subalterns : A and I ; E and O Subcontraries
The result of oppositions that we have obtained may be summed up in the following table :
A E I O
If A is true... True False True False
If A is false... False Doubtful Doubtful True
If E is true... False True False True
If E is false... Doubtful False True Doubtful
If I is true... Doubtful False True Doubtful
If I is false... False True False True
If O is true... False Doubtful Doubtful True
If O is false... True False True False
Conversion and obversion
One form of immediate inference we have so far studied. When two prepositions are logically
opposed to each other, we can, in some cases, know the truth or falsity of one of them, given the
truth or falsity of the other. There are also other processes of immediate inference, where we infer
the truth of one proposition from the truth of another. These processors are all called educations. The
word educe means drawing out and education is the process of drawing out. This name is given to
these immediate inferences because they try to draw out the meaning of the given proposition and
make it plain.
There are two main kinds of such edicts, viz., Conversion and Obversion. Conversion is the
process whereby we draw a new proposition from the given proposition without changing the meaning
of that given preposition by interchanging the subject and predicate of the given proposition. For
example, symbolically, if the given preposition is S-P then the new preposition will be P-S. Thus the
proposition No men are perfect is converted into No perfect beings are men. The given preposition
is called the convertend and the inferred proposition is called the converse. While conversion, the
quality of the proposition is not changed. While interchanging subject and predicate, we have to be
careful to see that no term which is undistributed in the original is distributed in the converse. The
reason for this is plain. An undistributed term is limited in its application where as a distributed term
is universal in its application. Just a little way above we showed how it is illogical to infer the more
from the less. The undistributed term which is more in extension from it. But on the other hand, if the
term, is distributed in the convertend and not distributed in the converse, there is no harm, for hare,
we are inferring the less from the more. Therefore, the rules of conversion are :
1. The quality (affirmative or negative) of the original proposition is unchanged in the
converse.
2. No term must be distributed in the converse which is not known to be distributed in the
convertend.

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 The first rule is necessary, because if the quality is changed, the meaning of the proposition will
be changed. Then there can be no inference. The need for the second rule will be clear, if we try, for
example, the conversion of the proposition. All monkeys are animals into All animals are monkeys.
The converse is absure because monkeys are not the only animals. This absurd conclusion is got
because animals which is undistributed in the converted is wrongly distributed in the converse.
There are two kinds of conversion usually recognised : (1) Simple conversion, (2) Conversion
by limitation of per accidents.
1. We have simple conversion, when we directly interchange subject and predicate
without any other change. The propositions E and I can be converted this way. The
converse of No S is P is No P is S. The proposition None of the books here are
novels can be converted simple as No novels are the books here. Similarly Some
S is P becomes Some P is S when converted. For example. Some men are wise
becomes, when converted. Some wise beings are men.
2. Conversion by limitation or per accidents is applied only to the A proposition. We have
already seen that A proposition distributes only its subject and not its predicate. If we
interchange subject and predicate for conversion, then applying the second rule, P
which is undistributed in the original must also be undistributed in the converse. Thus
All S is P becomes Some P is S. All rose are sweet smelling flowers therefore, when
converted, becomes Some sweet- smelling flowers are roses.
The O proposition is the only proposition which cannot be converted. We have seen that E and
I can be converted simply; A is converted per accidents. But from an O proposition Some S is not
P it is not possible to derive another O proposition with S as predicate. This is because, negative
propositions distribute their predicates and S in the Original as subject is undistributed and cannot be
distributed in the converse where takes the place of P, according to rule 2. But it is not so distributed,
we cannot get an O proposition. So now we have :-
1. The Qyality (affirmative or negative ) of the original proposition is unchanged in the
converse.
2. No term must be distributed in the converse which is not known to be distributed in
the convertend.
The first rule is necessary, because if the quality is changed, the meaning of the proposition
will be changed. Then there can be no inference. The need for the second rule will be clear, if we
try, for example, the conversation of the proposition. All monkeys are animals into All animals are
monkeys. The converse is absure because monkeys are not the only animals. This absurd conclusion
is got because animals which is undistributed in the converted is wrongly distributed in the converse.
There are two kinds of conversion usually recognised : (1) Simple conversion, (2) Conversion
by limitation or per accidents.
Simple conversion
We have simple conversion, when we directly interchange subject and predicate without any
other change. The propositions E and I can be converted this way. The converse of No S is P is No
P is S. The proposition None of the books here are novels can be converted simple as No novels
are the books here. Similarly Some S is P becomes Some P is S when converted. For example,
Some men are wise becomes, when converted, Some wise beings are men.
Conversion by limitation or per accidents
Conversion by limitation or per accidents is applied only to the A proposition. We have already
seen that A proposition distributes only its subject and not its predicate. If we interchange subject and
predicate for conversion, then applying the second rule, P which is undistributed in the original must
also be undistributed in the converse. Thus All S is P becomes Some P is S. All rose are sweet-
smelling flowers therefore, when converted, becomes Some sweet-smelling flowers are roses.
The O proposition is the only proposition which cannot be converted. We have seen that E and
I can be converted simply; A is converted per accidents. But from an O proposition Some S is not
P it is not possible to derive another O proposition with S as predicate. This is because, negative

95 ENGLISH
propositions distribute their predicates and S in the original as subject is undistributed and cannot be
distributed in the converse where takes the place of P, according to rule 2. But it is not so distributed,
we cannot get an O proposition. So now, we have :
S a P
1 . A- Convertend : All S is P All men are mortal
P i S
Converse: some P is S Some mortals are men
S e P
2 . E- Convertend : No S is P No men are perfect
P e S
Converse: No P is S No perfect beings are men
S i P
3. I- Convertend : Some S is P Some men are wise
P i S
Converse: some P is S Some wise beings are men

4. O-has no converse.
Obversion : This is the name of the immediate inference where the proposition is changed in
quality without changing the meaning. In the process of this change, the subject of the proposition
is kept as it is, while changing the predicate to its contradictory. Now, we infer from a proposition
of the form S-P another proposition of the form S is not-P. This is based on the principle that all
statements can be made both affirmatively and negatively. It is all the same whether we say All men
are mortal or No men are non-mortal. In such an obversion the original proposition 89s called the
obvertend and the inferred proposition is called the quality of the proposition, keep the subject as it is
and substitute for the predicate its logical contradictory. Applying this to the four types of categorical
propositions, we get the following results.

S a P
1. A- Obvertend : All S is P - All men are mortal
S e P
Observe : No S is not - P - No men are non-mortal
(where P represents the contradictory of P)
S e P
2. E- Obvertend ; No S is P - No men are perfect
S a P
Observe ; All S is not - P - All men are non perfect
S i P
3. I - Obvertend : Some S is P - Some men are wise
S o P
Observe : Some S is not not P-Some men are not non-wise
S o P
4. O- Obvertend : Some S is not P - Some men arenot intelligent
S i P
Obvertend : Some S is not P - Some men are non-intelligent

From these examples it will be clear that the logical contradictory of the term is got by use such
phrases as other than. But it should always be remembered that just as non-P is the contradictory
of P, P is the contradictory of not-P. If the obvertend is of the form S is not - P, the obverse will be of
the form S is not P.

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 THE SYLLOGISM
Introduction
In the last chapter we considered some of the forms of immediate inference. The various
forms of immediate reference show that there are different ways in which the same truth can be
expressed. That is, if the given statement is true, then without changing its meaning, we can express
it in other forms of propositions also. But this is not all. There is also the other kind of inference
known as mediate inference, where we cannot go so directly from one proposition to another. In
mediate inference, as we have already seen in the first chapter, we must have a mediation fact which
connects the subject and predicate. It is based on this relation that the predicate is either asserted or
denied of the subject in the conclusion. The whole argument is known as a syllogism. We have also
seen that the parts of a syllogism are the major premise, the minor premise and the conclusion. The
major premise gets its name from the major term and the minor premise from the minor terms. These
major and minor terms are the predicate and the subject of the conclusion. In the premises there is
also another term which is known as the middle term, which supplies the mediating fact. If we form
the syllogism now, we have.
M a
All men are mortal
S a M
Socrates is a man.
S a P
Socrates is mortal.
In this syllogism,
Man = Middle term - M
Socrates = Minor term - S
mortal = Major term - P.

Representing symbolically, we have

M a P
S a M
S a P
since all the three propositions are universal affirmative propositions.
These three propositions that are the parts of a syllogism can be any one of the three kinds
of proposition, viz., categorical, hypothetical and disjunctive. First let us consider that which is made
up of purely categorical propositions. Such a syllogism is known as a categorical syllogism. It is
necessary that any such arrangement of propositions with the purpose of drawing a conclusion
which is true, must be governed by rules and laws. The categorical syllogism is governed by eight
such rules which are as follows :-
A. Rules relating to the structure of the syllogism
1. A syllogism must contain three and only three terms.
2. A syllogism must contain three and only three propositions.
B. Rules relating to quantity
3. The middle term must be distributed in one, at least, of the premise.
4. No term must be distributed in the conclusion which is not distributed in the
premise.
C. Rules relating to quality
5. From two negative premises there can be no conclusion, i.e., one at least of the
premises must be affirmative.

97 ENGLISH
 6. If one premise is negative, the conclusion must be negative, and if the conclusion is
negative, one premise must be negative.
D. Rules which follow from to above rules
7. From two particular premises there can be no conclusion
8. If one premise is particular, the conclusion must be particular.
Explanation of the above rules.
The first two rules tell us what a syllogism is. A syllogism is an argument in which from two
given propositions we infer a third proposition. Hence there must be only three propositions. If there
are more than three propositions, we have more than one syllogism; if less than three, we have no
syllogism. We have also seen that a logical argument of these type is the result of comparing two
terms with a common third term. It is on the basis of the middle term that the major term is either
affirmed of denied of the minor term in the conclusion. If there are more than three terms, then no
such comparison is possible. Hence there must be only three terms in a syllogism. When leads to
wrong conclusions. Such wrong syllogisms are fallacious reasonings. Sometimes the same term
is used having a double meaning. Such usage may be with reference to all the three terms. For
example,
The end of a thing is its perfection
Death is the end of life
Therefore: Death is the perfection of life.
Here the word end is used first in the sense of goal and then in the sense of termination.
Hence it ceases to be a middle term. The middle term is used in an ambiguous way. In such cases
also we have four terms and the syllogism is not valid. So in determining the terms of a syllogism, we
must be careful to see that no word is used in a double sense.
The third rule that the middle term must be distributed at least once in the premises is a very
important rule. The whole syllogistic argument centres round the middle term and the rule demands
that the whole extend of the middle term must be referred to at least once. If this is not done, the
major term may refer to another part. This will make it impossible for us to compare the major and the
minor terms to another part. This will make it impossible for us to compare the major and the minor
terms and arrive at a conclusion. This may be illustrated by means of three diagrams where each one
breaks this rule and thus leads to wrong conclusions.

M S
S
P S M
M P P

In figure 1, we find the S which is the minor term has no connection at all with P which is the
major term because they both represent different parts of the middle term M. Similarly Figures 2
and 3 also show that unless the whole extent of M is referred to in connection with either S or P, we
cannot say anything the relation between S and P. Let us consider a practical example.
All men are mortal
All monkeys are mortal
All monkeys are men.
We see the absurdity of this conclusion that all monkeys are men. Such absurdity arises
because the middle term mortal is undistributed. Consequently the major term refers to a portion
of it and the minor term refers to a completely different part of it. Thus when the middle term is not
distributed even once, we get wrong conclusions.
The fourth rule is a double rule. (a) The minor term should not be distributed in the conclusion
unless it is distributed in its premise. When the rule is broken we have the fallacy known as illicit

98 ENGLISH
process of the minor term or shortly as illicit minor. (b) The major term should not be distributed in
the conclusion unless it is distributed in its premise. If the rule is broken, we have the fallacy known
as illicit process of the major term or shortly as illicit major. The reason for these double rule is very
clear. We can never say something about the universal by knowing only a part of it. If the major and
minors terms are undistributed in their premises, it means that only a part of their extension in the
conclusion and this is what is done if these terms are distributed in the conclusion. The argument.
M a P
All men are mortal
M a M
All men are rational
S a P
All rational being are men
commits the fallacy of illicit minor. Here we are saying something about all rational beings in the
conclusion, whereas in the minor premise where rational is the predicate, it remains undistributed.
From less we are deriving more. From part, we are saying something about the whole which is wrong
syllogism. Similarly about the major term in the argument.
All cruel men are cowards.
No college men are cruel.
No college men are cowards.
Where the major terms remains undistributed in its premise while it is distributed in the
conclusion.
While applying this rule of distribution, we should note that the mistake is only when we take
more of a term in the conclusion than is referred to in the premise. But there is nothing wrong if we
take less from more. If the terms are distributed in their premises and undistributed in the conclusion
there is no fallacy.
The fifth rule states that from two negative premises no conclusion can be reached. In a
negative statement the predicate is always denied of the subject either wholly or partly. If both the
premises are negative, it means that both the major term and the minor term are excluded from the
middle term. Hence, we can conclude no thing as regards the relation between major and minor
terms. The negative statements give us no ground for inference. Therefore at least one premise must
be affirmative. For example.
Anger is not good.
Calmness is not anger.
From these two premises it is not possible to say whether calmness is or is not good. But
sometimes, the premises appear to be negative while they are not really negative statements in
meaning. For example,
Whatever is not a compound is an element.
Gold is not a compound.
Gold is an element.
In this argument both the premises seem to be negative. But examining them closely, we find
that neither of them is negative. They can written as follows :
Whatever substance is not a compound is an element.
Gold is a substance that is not a compound.
Gold is an element.
The sixth rule says that if one premise be negative the conclusion must be negative. In a
syllogism the middle term occurs in both the premises. If one premise is negative, then it means that
of the major and minor terms one agrees with the middle term whereas the other does not agree with
the middle term. From such a syllogism the inference that can be drawn is that the minor and major
terms do not agree with each other.
That is, the conclusion is bound to be negative. For example,

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 No men are perfect.
X is a men
X is not perfect.
Here the negative; premise says that the major term perfect is excluded from the middle term
man. The affirmative premise states that the minor is connected with the middle term. From this
it follows that the two terms S and P are not related. Similarly if the conclusion (S-P) is given as
negative, then one of the premises must be negative. In the conclusion there is exclusion of P from
S. This exclusion must be shown to be drawn from the premises themselves. That can happen only
when one of the premises is negative.
The seventh rule is that from two particular premises no conclusion is possible. This may be
seen to follow as a consequence from the above discussed rules. There are two particular positions,
I and O. As either of them may be major of minor premise, there are four possible combinations,
II,IO,OI, and OO. Of these, OO is not possible because of the fifth rule which says that from negative
premises no conclusion can be drawn. The combination II also has to be given up as it does not
distribute any term. According to rule 3, the middle term must be distributed at least once in the
premises. In IO and OI only one term is distributed, viz., the predicate of O. This must be middle
term as per rule 3. Then neither the major term nor the minor term is distributed. But as one of the
premises is negative, as per rule 6, the conclusion must be negative. If this is so, then the predicate
of the conclusion which is the major term is not distributed in the premise, since only one term can
be distributed in the premises and that has already been taken to be the middle conclusion without
being distributed in its premise. Thus illicit major occurs, breaking rule 4. Hence from the particular
propositions no conclusion can be drawn.
Similarly the eighth rule, that if one premise is particular, the conclusion must be particular may
be proved by examining the different combinations of the premises possible : AI and IA, AO and OA,
EI and IE, EO and OE. Of these combinations EO and OE are not possible because they are both
negative premises and according to rule 5, there can be no conclusion. In combination AI and IA
only one term is distributed which is the subject of the A proposition. This must be the middle term to
satisfy rule 3. No other term is distributed in the premises. Hence the major and minor terms which
from the predicate and subject of the conclusion cannot be distributed. Hence the conclusion must
be a particular conclusion, for particular propositions alone do not distribute their subjects.
In the prepositions AO and OA, two terms are distributed, viz., the subject of A and the
predicate of O. One of these distributed terms must be the middle term. That leaves us only with one
more distributed term which can be either the major or the minor term. As one of the premises is
negative, the conclusion must also be negative according to rule 6. All negative premises distribute
their predicates as already explained. That is, the conclusion which is negative will distribute their
predicates as already explained. That is, the conclusion which is negative will distribute its predicate
which is the major term. To avoid the illicit prices of the major term. To avoid the illicit process of the
major and the minor term must be distributed in its premise. So know the middle term and major term
are distributed in the premises. In the premises, the minor term is not distributed. That means the
subject of the conclusion cannot be distributed, which, therefore, makes it a particular proposition.
Similarly the combination EI also lead to a particular conclusion. The leaves us with the combination
of IE alone. From these two propositions, only a negative conclusion is possible, because one of
the premises is negative. Negative propositions distribute their predicates. So in the conclusion the
major term is distributed. To avoid the illicit process of the major, it must be distributed in its premises
which is I, a particular affirmative proposition, which does not distribute any term. Hence no valid
conclusions is possible.
The rules that have been so far discussed give us the conditions for a valid syllogism. There
are three terms in a syllogism and two premises in which these three terms must be place. In every
premise there are two terms and hence there are four places in which the three terms, the middle
term, the major term and the minor terms have to be placed. But the middle term must occur in both
the premises either as subject or predicate. Hence there are four possible ways of arranging the terms
in an argument. These four forms of syllogistic reasoning are called the figures of the syllogism. It is
the position of the middle term in the premises that determines the figures of a syllogism. The four

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figures may be symbolically represented as follows :
Fig.I Fig.II Fig. III Fig.IV
M-P P-M M-P P-M
S-P P-M M-S M-S
~ S-P ~ S-P ~ S-P ~ S-P
In the first figure the middle term is subject in the major premise and predicate in the minor
premise.
In the second figure the middle term is predicate in both the premises.
In the third figure the middle term is subject in both the premises.
In the fourth figure the middle term is predicate in the major premise and subject in the minor
premise.
There are three propositions in a syllogism; and each of the propositions may be of any one
of the four forms. A,E,I and O. Syllogism thus vary in respect of the quantity and quality of the
propositions which constitute them. This character of the propositions which constitute them. This
character of the propositions which go to form a syllogism is called the Mood of the syllogism. As
there are three propositions in each syllogism, and as each of the propositions may assume any one
of the four form A, I and O, the total number of possible moods is 43 or 64. Thus of each figure we
have 4*4*4 or 64 possible varieties. We may write out these 64 combinations and determine which of
them are valid. But it is must easier to determine the valid combinations of premises selves. In each
syllogism there are two premises, and each premise may take any one of the four forms, A,E,I or O.
Thus we get sixteen combinations in all.
AA EA IA OA
AE EE IE OE
AI EI II OI
AO EO IO OO
Some of these combinations will not be correct according to the rules of the syllogism. We
know that from the negative premises no conclusion is possible; hence the combinations ES, EO,
Oe, and OO are to be ruled out. From two particular premises no inference can be drawn; hence the
combinations II, IO and OI are invalid. As we have already seen the combination IE does not lead to
a valid conclusion. After all the combinations are removed, there are eight valid ones left over;
AA EA IA OA
AE .. .. ..
AI EI .. ..
AO .. .. ..
When these combinations are used in the four figures we get nineteen valid moods in all- four
in the first figure, four in the second, six in the third, and five in the fourth figure. These moods are
represented by code words which show the combination of the premises.
Fig. I-Barbare, Celerent, Darii, and Ferioque.
Fig. II-Cesare, Camestres, Festino and Baroco.
Fig. III-Darapti, Disamis, Datisi, Felepton, Bocardo and Ferison.
Fig. IV-Bramantip, Camenes, Dimaris, Fesapo, and Fresison.
The vowels contained in each word signify the quality and quantity of the three propositions
of the syllogism. Thus in Barbara, the three propositions are all universal second figure whose
propositions are EAE.
Hypothetical and Disjunctive Syllogisms
We have so far been studying the categorical syllogism. But a syllogism can also be made
up of propositions which are other than categorical proposition, viz., hypothetical and disjunctive
propositions. We have already seen in the last chapter that there are two forms of the hypothetical
proposition : (a) If A is B, C is D; (b) If A is B, A is C. The first part which begins with If is the condition
down as the antecedent and the second part the condition is the consequent. Of the two forms of the
hypothetical proposition given above, in the first, the subject of the antecedent which is A is different

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from the subject of the consequent which is C. But in the second form, the subject of the antecedent
which is A is the same as the subject of the consequent which is also A. The antecedent and the
consequent in both the forms are either the antecedent or the consequent may be negative. For
instance, the first form need not always be If A is B,C, is D. It can also be : If A is not B,C is D,
If A is B, it is not D, If A is not B, C is not D. In the case of the categorical proposition the quality
of the proposition is shown by the copula. How are we to determine the quality of the hypothetical
proposition ? Can them are negative, the preposition is negative ? No. Because the distinction of
affirmative and negative does not apply to the hypothetical proposition. The proposition affirms that
the consequent follows upon the condition which is given in the antecedent. The antecedent or the
consequent may be by itself either negative or affirmative. In all cases, the function of hypothetical
proposition is only to say that if the condition that is given by the antecedent is there, then the fact
that is given by the consequent will also be there. Similarly there are also no quantitative differences.
We have seen that in the categorical proposition, the reference is always to individuals or groups
of individuals. There, the predicate which is a quality is said to either belong or not belong to the
subject which is an individual. If we say that the quality belongs to the whole of the subject, then the
proposition is universal; if only to a part of the subject, then it is a particular proposition. No such
quantitative differences are there in hypothetical propositions. Here the consequent depends on the
decedent. That is, the relation between antecedent and that the qualities of a mortal being are elated
hypothetical propositions is only concerned with qualities and hence quantities have no place in it.
The disjunctive propositions also are given in two forms : (1) A is either B or C. (2) Either A is B
or C is D. Whatever is the form in which the disjunctive propositions given the principle of disjunction
is the same. This always gives us the alternatives of any system and makes use of the words either-
or. For example, Signal lights are either red or green. But he alternatives given need not be only
two as in the above example. There may be many more alternatives as in the example, triangles
are either equilateral, isosceles, or scalene. From this it is clear that in disjunctive propositions there
is neither quantity nor quality. The principle of disjunction gives us the alternatives of any system.
Hence it always positive. There can also be no quantity here, because there is no reference to any
individuals here. But the disjunctive gives us the alternatives of any system. Hence it always positive.
There can also be no quantity here, because there is no reference to any individuals here. But the
disjunctive has a condition. That is, the alternatives of a disjunction must be mutually exclusive and
exhaustive. If we take the example A is either B or C, the alternatives B and C must tell us all that
there is to be known of A, both positive and negative. This is what is meant by saying the alternatives
must be exhaustive. Also, the alternatives A and B must be completely different from each other, and
they must not have any fact common between them. For example, in the proposition Signal lights are
either green or red, in the system of signal lights, within it is a green light is completely excludes the
red light. Hence the alternatives here are mutually exclusive.
We have so far seen the nature of hypothetical and disjunctive propositions. These propositions
can take the place of categorical propositions in syllogistic arguments. Let us examine first that
syllogism in which the propositions are hypothetical in nature. In a hypothetical syllogism, ordinarily,
the major premise would be a hypothetical proposition, the minor premise would be a categorical
proposition and the conclusion again a categorical proposition. Its general symbolic form is
If A is B, C is D
A is B
~ C is B
For example :
If he is Madras, he will come to see me.
He is in Madras
~ He will come to see me.
The rule of the hypothetical syllogism is : either affirm the antecedent or deny the consequent.
The major premise which is the hypothetical proposition has two parts, the antecedent and the
consequent. The minor premise which is categorical must either affirm the antecedent or deny the
consequent of the major hypothetical proposition. Depending on this the conclusion takes shape. If the

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minor affirms the antecedent, the conclusion will affirm the consequent. If it denies the consequent,
the conclusion will deny the antecedent.
For example :
If it rains, he will be wet.
It rains.
~ The roads will be wet.
Here the minor premise affirms the antecedent of the major hypothetical premise and the
conclusion affirms the consequent. Again
If it rains, the road will be wet.
The roads are not wet.
~ It has not rained.
The reason for this rule is that the antecedent is only one of the conditions and not only
condition for the consequent. For example, heat is given out by electric current, burning of coal,
wood and from sunshine. So if any one of these causes are present heat with be produced. That is,
if the antecedent is present, we can say the consequent is also present. But from the absence of the
antecedent we cannot definitely say the consequent will also be absent, because the consequent
may be present because of conditions other than the given angeceern being present. If electric
current is not present, we cannot say heat will not be present, because heat may be caused by other
conditions. Similarly we cannot conclude that the antecedent is present because of the presence
of the consequent, for the consequent may be present because of other causes being present. So
now we see the reason for the rule of the hypothetical syllogism which says present. So now we see
the reason for the rule of the hypothetical syllogism which says that either the antecedent should be
affirmed or consequent be denied. Here affirming means stating what is given in the major premise.
Applying this rule, we have two types of hypothetical syllogisms; one in which the minor premise
affirms the antecedent and the other in which the minor premise denies the consequent. These two
are known as Modus ponens and Modus tollens or the constructive hypothetical syllogism (modus
ponens) and the destructive hypothetical syllogism (modus tollens). Symbolically these two forms
are :
Modus ponens :
If A is B, C is D
A is B
~ C is D.
If it rains, the roads will be wet.
It rains.
~ The roads are wet.
Modus tollens :
If A is B, C is D
C is not D
~ A is not B
If he is in Madras, he will call on me.
He has not called on me.
~ He is not in Madras.
These reasons for affirming the consequent and denying the antecedent of the hypothetical
syllogism have an exception. Ordinarily, we have stated, the antecedent is one of the conditions of
the consequent. But if it is known that the antecedent is the only condition of the consequent, then it
is not wrong to infer the absence of the consequent from the absence of the antecedent or presence
of the antecedent from the presence of the consequent.
E.g., Only if a triangle is equilateral it is equiangular
This triangle is not equilateral.
~ This is not equiangular.
Similarly,
Only if it is a magnet, it will attract iron.
This bit of iron is attracted.
~ This is magnet.

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 While deciding on the syllogism which comes under this exception, it must be carefully examined
if the antecedent is an essential and necessary condition. In the above example, it is essential and
necessary that an equilateral triangle must also be an equiangular triangle. Similarly, it has been
known that magnets invariably attract iron. So, the consequent and the antecedent may be denied or
affirmed irrespective of the rules of the hypothetical syllogism.
The disjunctive syllogism is an argument where the major premise is a disjunctive proposition,
the minor premise a categorical proposition and the conclusion is another categorical proposition.
We have said that the disjunctive proposition must be of the form Either A is B or C is D. Here the
alternatives or disjunction are A is B and C is D.
In the disjunctive syllogism the minor premise which is categorical either affirms or denies one
of the alternatives and if the minor premise denies one alternatives, the conclusion will affirm the
other alternative. Let us first state this symbolically.
Either A is B or C is D - Major : disjunctive premise.
A is B - minor : categorical premise.
~ C is not D - conclusion : categorical.
Here one of the alternatives A is B is affirmed in the minor premise and the other alternatives
C is D is denied in the conclusion.
Either A is B or C is D
A is not B
~ C is D.

FALLACIES
Introduction
The purpose of Logic is to give us valid principles of thinking. Thinking must be done correctly
if we are to get conclusions. This is done when thought conforms to the laws of systematic reasoning.
The function of logic is only to give us the rules of standards for right thinking. Not only should we
know positively what is right, we should also know negatively what is wrong. Such wrong inferences
are known as fallacies. A fallacy may be defined as a conclusion resulting from thought which claims
to be valid but which violates the principles of reasoning. As we have already seen, thinking always
proceeds in two ways. We have general, universal judgements from which we argue about the truth
of a particular. We include the particular statement under the universal. This type off reasoning we
have called deduction. We deduce the truth of the particular from the given universal. The other way
of thinking is known as Induction where are arrive at a universal truth as a result of such observation.
Both these form of thinking are governed by laws. When these laws are violated, we have fallacies.
We shall examine the fallacies of deductive reasoning first.
Deductive Fallacies :
We may divide all deductive fallacies into formal fallacies and material fallacies. Formal
fallacies are those where the forms of inference are incorrect. There are two types of inference, the
immediate and the mediate. When the rules governing these inferences are not followed, we have
formal fallacies. But inference not only obeys certain formal laws, it also has a meaning and content.
When the contents of a syllogism are absurd, although the form is valid, we have material fallacies.
These may be because the words in the premises are wrongly used and interpreted or may be
because the premises assume truths which they should not do so.
(a) Formal fallacies :
(i) We have seen the obversion and conversion are forms of immediate inference. When
the rules of these are violated, we have Illogical education. In obversion the logical
contradictory of the predicate is taken in the place of the original predicate. Instead
of this, if the logical contrary is used, the observe will be fallacious. For example, if
from the proposition Honesty is always a good policy, we draw the conclusion that
Di-honesty is always a bad policy, we are having a wrong inference. Again the A
proposition should be converted per accidents. When this is not done, we have an

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 illogical conversion e.g., all men are mortal, when simply converted. Becomes all
mortals are men, which is materially wrong, for, mind are not the only mortal beings.
ii) There are fallacies which result from the violation of the rules of the syllogism in
mediate inference.
(1) Quaternio Terminorum or the fallacy of four terms :
The first rule of the syllogism states that a syllogism must contain three and only three terms.
When this rule is not followed, we have the fallacy of four terms.
For example :
Cultured men are reasonable
Logicians are wise-men
Logicians are reasonable
This argument, although in the form as syllogism, is not a syllogism at all, since the premises
contain four terms which have nothing in common between them. In some cases, the four
terms will not be so differently and clearly stated. The same word may be used with different
meanings.
For example
Gold can be expelled by heat
Govindas illness is cold
Govindas illness can be expelled by heat.
Here the word cold is used in the two senses. First as showing temperature condition and
second as an illness. So, although the argument looks like a good syllogism, it is not so as it
has four terms. Just like this, even the major and minor terms may have double meaning, in
which are the fallacy will be Quaternion Terminorum.
(2) Undistributed middle :
The third rule of the syllogism says that the middle term must be distributed in one, at least,
of the premises. When this is not observed, the fallacy of undistributed middle arises. For
example,
All Punjabis are Indians
All Bengalis are Indians
All Bengalis are Punjabis
The argument is fallacious because the middle term Indians is not distributed even once. The
middle term should be such that it relates the minor and the major terms and this it will not be
able to do if it is undistributed in both the premises.
(3) Illicit major :
The fourth rule of the syllogism says that no term must be distributed in the conclusion which
is not distributed in the premise, If the major term is distributed in the conclusion and not in its
premise, it means we are inferring more from the less. It is called illicit process of the major
term or shortly illicit major. For example :
All rational beings are responsible people Brutes are not rational beings Brutes are not
responsible people.
(4) Illicit minor :
This fallacy also occurs when the forth rule is broken. This happens when the minor term
remains undistributed in its premise and becomes distributed in the conclusion E.g.,
All generous people are loved by the poor
All generous people are polite
All polite people are loved by the poor.
Here are the minor term polite people, which as the predicate of an A proposition is
undistributed, becomes distributed in the conclusion. This is a fallacy if illicit process of the
minor term or shortly illicit minor.
(5) Negative premises :
The fifth rule of the syllogism says that from two negative premises there can be no conclusion.
When this rule is broken, we have the fallacy of two negative premises.E.g.,
Anger is not good

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 Calmness is not anger
From these two negatives, we cannot draw any conclusion.
(6) Particular Premises :
The seventh rule states that from two particular premises there can be no conclusion.
Some Asians are Indians
Some Asians are Chinese
Some Chinese are Indians
Here, since the middle term remains undistributed, the conslusion does not follow from the
premises.
(7) Denying the Antecedent :
This is a fallacy in hypothetical reasoning. In a hypothetical proposition, the antecedent is only
one of the conditions. Because it is absent, we cannot say the consequent also must be absent
for the consequent may have other conditions. Hence the rule : Affirm the antecedent. Instead
of doing this, if the antecedent is denied in the minor premise, the syllogism will be fallacious.
Such a fallacy is known as the fallacy of denying the antecedent. For example :
If my friend is in need,
he would come to me
He is not in need He will not come to me
Here the antecedent is denied and the conclusion is given as negative. We do not know, if
being in need is the only condition under which he would come. Just as we know, if there is fire
there is heat, we cannot say wherever there is heat, there must be fire. Hence the conclusion
is wrong.
(8) Affirming the consequent :
This is the other fallacy in hypothetical reasoning which occurs when the minor premise affirms
the consequent. For example,
If there is rain, he will not go out
He has not gone out
There is rain.
Here again the antecedent is only one of the reasons and not the only reason. Rain is a cause
of the person not going out, but it is not the only cause, for he may not go out on account of
other reasons also. Hence this a fallacy of affirming the consequent.
(9) Improper Disjunction :
The condition of a disjunctive syllogism is that the alternatives must exclude each other and
that they must together exhaust all possible alternatives. When this is not so, we have an
improper disjunction which is the fallacy of disjunctive syllogism. For example,
He will either pass in the first class or fail.
He has not passed in the first class
He has failed.
This is improper, because there are other ways of passing also such as passing with a second
class or a third class. So the disjunction does not give all the alternatives. Hence it is a fallacious
argument. Similarly,
He is either an orator or a musician.
He is an orator
He is not a musician.
Here the alternatives are not exclusive of each other. A man can be both an orator and a
musician. Hence such argument are also fallacious.

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(b) Material fallacies :
An argument may be correct in form, and still may be invalid. This is because the matter of the
syllogism is wrong. For example,
All men are monkeys
X is a man
X is a monkey.
Here, though the form of the syllogism satisfies all the rules, still it is not a valid syllogism
because the meaning is nonsensical. There are two important principles of logical reasoning
which should not be violated, if materially the argument is to be correct. The first principle is
that the terms used in an argument should not be ambiguous. That is, the terms should not be
doubtful in their meaning. The second principle is that what is to be proved, must be proved
strictly from the premises. Nothing that is not given in the premises must be assumed or taken
for granted. If the first rule is broken, we have the following fallacies.
(1) Fallacy of ambiguous and shifting terms :
Here the various terms of the syllogism are used in an ambiguous manner. For example, He
who is most hungry eats most,
He who eats least is most hungry,
He who eats least eats most.
In this example since the meaning of words used is not definitely fixed. We arrive at an absurd
conclusion. Such a fallacy can also be included under the formal fallacy of four terms. When
the same term is used with different meanings in the syllogism, it becomes a syllogism with
four terms.
(2) Fallacy of Composition :
An argument in which words, which should be taken separately, are taken together, commits
the fallacy of composition. The fallacy is one where, from a statement about where, from
a statement about a class of things distributively, we pass to a statement about the whole,
collectively. When a word used detractively, we refer to the whole class represented by the word.
When a word is used collectively, we refer to a group which is made up of similar individuals
taken as a whole. In arguments where the fallacy of composition is committed, a term is first
used in a distributive sense and then used in a collective sense. This happens because the
word all is misleading. For example,
All the angles of a triangle are less than two right angles
A, B, and C are all the angles of this triangle
A,B, and C are less then two right angles.
Here the word all is used in the major premise in the distribute sense, and in the minor in a
collective sense. Another example of this fallacy is A regiment of a hundred men is composed
of soldiers who are all six feet high; therefore the whole regiment is six hundred feet high.
(3) Fallacy of Division :
This is the opposite of the fallacy of composition. Words which must be taken together are here
taken separately. For example, Hindus and Muslims are men and brethren. Therefore Hindus
are men and Muslims are men and brethren. That is, the fallacy of division occurs when we
pass from a statement about the class considered collectively to the same statement about
each every member of the class taken distributively. For example All the plays of Kalidasa
cannot be acted in a day. The Sakuntala is play of Kalidasa; therefore the Sakuntala cannot be
acted in a day.

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(4) Fallacy of Accident :
This fallacy has two forms (a) the direct or simple fallacy of accident and (b) the converse
fallacy of accident.
(a) the direct fallacy of accident consists in arguing that what is true as a general rule is
true also under special circumstances. For example, What is bought in the market is
eaten : raw meat is bought in the market; therefore raw meat is eaten.
(b) This is the opposite of the direct fallacy of accident. If consists in arguing that what
is true under special circumstances is true also generally. For example, When a
person is ill, staying in bed is good for his health. Therefore staying in bed is
always good.
When the second rule concerning the matter of the syllogism is broken, we get certain fallacies.
That is, when the conclusion that is drawn is not strictly based on the premises, we have the
following fallacies.
(1) Petitio Principle or begging the question :
Here we assume the conclusion in the premises. We prove the conclusion by premises which
can be proved by the conclusion by premises which can be proved by the conclusion itself. For
example, Virtue is right; to give to beggars is a virtue; therefore to give to beggars is right. Here the
conclusion is only a restatement of the minor premise. The major premise is a repetition; because to
call charity a virtue and to call it right are the same. And so, to say that to give to beggars is a virtue is
not to prove that it is right. Another form of this fallacy is where we argue in a circle. Two propositions
are used, each in turn, to prove the other. For example.
I should not tell a lie, because I know that I should not tell lies
So we must be always careful to see that the conclusion is not assumed in the premises and
that the conclusion must always follows the premises.
(2) Ignoratio Elenchi or irrelevant conclusion :
There are several forms of this, but we shall examine only two of them.
(a) Argumentum ad hominem : This is arguing about the person instead of about the
proposition which he puts forward. For example, This man followed the principle of non-violence
all these days, now he wants to follow violent methods to put down riots. So we cannot follow him.
Here instead of arguing about the proposition whether violence is good or bad under the given
circumstances, we are arguing about the person of the man. Hence it is a wrong argument known as
argumentum ad hominem.
(b) Argumentum ad verecundiam : Another form of the irrelevant conclusion is the fallacy
of verecundiam. This is an appeal to authority or long-established custom in favour of, or against,
a proposition. To argue that we must agree to a proposal because so and so approves of it is to
commit this fallacy. Instead of arguing and giving reasons for arriving at a conclusion, if authorities
are quoted in support of the argument, we have the fallacy of verecundiam. The reference here if to
authority and now to reason.
(3) Non-Sequitur :
This is otherwise known as the fallacy of false cause, non cause pro cause. It is committed
whenever the conclusion does not follow from the premises. For example. Australians usually win
cricket test matches in India. Therefore Indians must be a civilized people. Here although there is a
form of argument, it is not correct. The conclusion does not follow from the given statement. Hence
the argument contains the fallacy of non-sequitur.
Inductive Fallacies
We have so far been discussing fallacies which occur in Deduction. Now we shall consider some
fallacies which occur in Induction. Induction is the process whereby we arrive at universal statements
by an analysis of particular instances. This process is strictly governed by the law of causation.
Several processes have been shown already to be employed in arriving at such universals. Scientific

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Induction is that where the causal relation is established without doubt between two phenomena. The
processes used are enumeration, observation, analogy, and explanation. In every one of these, it is
possible to have wrong applications. We shall deal with these one by one.
(i) Based on enumeration: we have two fallacies. (1) Perfect induction, (2) Simple
enumeration.
1. Perfect Induction: Sometimes we infer a conclusion by the method of complete
enumeration. This is known as perfect induction. For example, after carefully
going through the list of members, I infer that they are all Hindu. This way if
arriving at the conclusion is not satisfactory. The conclusion which is reached
through perfect induction is not her result of generalization. There is no inductive
leap.
2. Simple Enumeration : Our generalizations are very often based on incomplete
enumeration or simple enumeration. We count some instances and make a
general statement which is true, not only of the observed cases but also of the
unobserved ones. For example, after seeing several crows which are black, we
generalize all crows are black. This generalization is not well-established. There
is no analysis here to show why crows must be black. It can easily be disproved
by one contradictory instance. Hence the conclusion cannot be accepted as
certain.
(ii) Errors of Observation : Observation is the process where we count instances and
examine them to see if they can support a theory or build up a theory. While doing this,
it is quite possible to omit to notice instances which would contradict our hypotheses.
We have a tendency to consider only those facts which would support our theory and
neglect those which would go against it. This error in observation is known as non-
observation. Those who believe that number thirteen is not an auspicious number
will always give instances of cases where the number was associated with failure or
disaster. But, it will be noticed that they will purposely omit to mention cases where.
Although the number thirteen was present, no disaster has occurred. Such observation
is known as non-observation.
Sometimes, we also misinterpret facts so as to suit the theory which we want
to prove. Such wrong observation is known as mal- observation. A person who is
always afraid of snakes will see a snake in anything that has got that shape. Such
misinterpretation of facts is a fallacy of observation.
(iii) Fallacies of Analogy : Whenever words are wrongly used in metaphors, we have
fallacies of analogy. By using analogy we arrive at conclusions about facts which are
similar to a large extent. For example, the city is compared to the heart and the country
is compared to the body. Then it is said that, since the heart is diseased, the body also
becomes bad, so also when the city is bad, the country is also bad. Here the error in
reasoning is due to the metaphorical use of the words heart and body. If we devote
some thought to it, we will know the difference between a living body and a country. A
second form of unsound analogy is in not distinguishing between essential and non-
essential properties. Sound analogy is always based on a comparison of essential
points. For example, A child has come to know that, when the dog is pleased, he
wags his tail. On this, the child argues that, when the cat wags its tail, it must be
pleased. The childs argument here is a case of analogical reasoning. He observes a
resemblance between the dog and the cat as regards wagging of the tail. He knows
that the dog wags when he is pleased and therefore concludes that the cat also wags
because it is pleased. But the resemblance is not an essential one. Hence the analogy
is unsound.
(iv) Fallacies of Explanation : There are two important fallacies of explanation:
(a) The fallacy of non-observation may also be said to be a fallacy off explanation
known as hasty generalization. Sufficient number of instances are not observed.

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 Negative instances are omitted from the enumeration and a generalization is
arrived at. Such a generalization, as it does not cover all instances, is known as
hasty generalization or illicit generalization.
(b) A second error of explanation is in mistaking as cause and effect what merely
follow each other. This fallacy is known as post hoc ergo propter hoc or the fallacy
of false cause. One form of it we have already discussed as a non- sequitur. To
argue that A is because of C since it is after C is fallacious. For example to say
that since night follows day, day is the cause of night, is an absurd argument
which commits the fallacy of post hoc propter hoc.
Conclusion
We have come to the close of our study of the fundamentals of logic. The nature of thought, the
principle that govern its processes, the mistakes in reasoning that we most commonly make when
we stray away from the path of truth-these and other related topics have been discussed. Thinking
is what each one of us is intimately concerned with. Even without our knowledge we employ logical
principles in our daily conversation and arguments. The science of logic appears difficult and strange
at first. But when once its principles are understood, we realize that we have been using them,
however imperfectly, in our commonest thoughts and expression.
SUSTAINABLE DEVELOPMENT
The affluence of developed countries of the world and the desperate poverty of under-developed
countries is injurious to the life support system on our planet. Human life in developed countries of
the world requires large amounts of energy and material inputs while a ceaseless stream of wastes is
generated which damages the environment and results in rapid depletion of resources of our planet.
Life in under-developed countries strives to survive on a meager share, clamoring for the basic
necessities and in ignorance or desperation often damages the very resource base on which rests
the entire life support system of this planet. We have to build a sustainable world - a world which
should last forever. There should be a fair sharing of global resources among the living beings of the
world. Everyone in this world should get at least the basic amenities of everyday life - food, clothing,
drinking water, shelter etc. in such a way that there could be no damage to other life-forms and the
environment. Man should learn to live in harmony with nature.
The resources of this world, if properly managed, distributed and utilized economically, are
sufficient for all living beings-as the biosphere stands today. In future, how-ever, we may require
sharp decline in growth rate of human population, which we are capable of bringing about with a little
more efforts (Khoshoo, 1990).
To build up a sustainable world, a world of permanence in which all living beings live in perfect
harmony with each other and with the environment we shall have to adopt certain basic practices
which can be enumerated as under:
1. Protecting and augmenting regenerability of the life support system on this planet
which can be achieved by :(a) Rationalized husbanding of all renewable resources.
(b) Conserving all non-renewable resources and prolonging their life by recycling
and reuse (c) Avoiding wasteful use of natural resources.
2. Fair sharing of resources, means and products of development between and within
the nations of the world. This should lead to a significant reduction in disparity in re
source use, in its economy and shall curtail the associated environmental damage
all the world over.
3. Educating people regarding the concealed economic and environmental costs of
over-consumption of resources with particular reference to its impact on developing
countries of the world.
4. Adopting willingly sustainability as a way of life by encouraging frugality (to be con
tent with less) and fraternity (sharing things with others in a fair way).
5. Meeting all the genuine social needs and legitimate aspirations of people by blending
economic development with environmental imperatives to remove poverty.
Today the environment is no longer a concern about a locality or wild-life or deforestation or

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pollution; it is crisis about the developmental pattern which we have followed so far. It is a global issue
which forces us to think as to where we are going? What shall happen if we do not stop, re-consider
and make necessary modifications in our means, methods and objectives. It is high time that we
should rethink and take proper steps to build up a world of permanence - a sustainable society which
lasts forever.
EDUCATION FOR ALL
The World Bank has envisaged a programme to aid the Education for All movement in India.
Large sums of money are being made available and offices, better equipped and much better
furnished have been established in almost all the states. U.R has received its due share and so must
have other States too. But it is not money alone that makes the mare go. How if the mare, at the start
of the race, gallops fast but then stumbles and falls and is lamed and there remains no will in it to go
any further?
There has ever been so much of talking about universalization of education at least at the
primary level. Great thoughts have been quoted; great schemes have been formulated; a number of
commissions have been commissioned to make their recommendations regarding education; a lot
of experimentation has continued to be conducted particularly in the field of education during these
sixty years of the countrys independence, but the results achieved are far from satisfactory.
Ever since 1951, India has been making an all-out effort to universalize primary education. In
this direction and to fulfill this ambitious plan, steps have planned Educational facilities within easy
walking distance of the child, encouraging parents towards a compulsory enrolment of children in the
schools, taking due note of the drop-outs among children and to avoid such a situation in the best
possible way and improving the quality of education at the primary level and making it more attractive
in order to allure the child to come to the school.
The greatest problem on all fronts has always been felt in the rural area and particularly in the
matter of the girl child there. The number of primary schools was estimated to have been in 1950-51,
209671, to when it was estimated to have been increased in 1984-85 to 6, 03,741. This records an
increase of about 150 per cent. The effort of making the school facilities available within a walking
distance has also borne fruit and nearly 90 per cent of children are to walk from 1 km to at the most
3 kms.
The enrollment in the primary classes I to V also increased to 77,039 million in 1982-83
from 19.153 million in 1950-51 while the latest figures have shown a still greater increase. But the
whole scheme seems to flounder at the level of the Union Territories and at the level of the Scheduled
castes and the Scheduled tribes. The position particularly in the matter of girls among the scheduled
castes and scheduled tribes is still worse.
Children of such groups do not get enrolled inspire of all efforts and all incentives. The girl child
is considered necessarily as a handmaid to the mother in the household chores and in looking after
the younger siblings. In some parts of the country, the girl is not sent to a co-educational school due
to social inhibitions. On this accounts girls even if they join in the earlier age group drop out as soon
as they grow a little older. Under the World Bank Education for All project even educational kits have
been distributed free of costs; education, otherwise, is of course free but the results still are not that
encouraging.
The problem of dropouts is a very major problem. The child as he grows above the age of
8 years or 10 years is treated in the rural families as one to be an earning supplement, hence
education for him and for the family seems to be an undue luxury. The state of dropouts thus goes
up to 60%. In order to meet this situation part-time short duration classes, especially for girls have
been evolved as an alternative to the formal system of education. The major thrust of this non-
formal education programme has been undertaken in the States like Andhra Pradesh, Assam, Bihar,
Madhya Pradesh, Jammu and Kashmir, Orissa, Uttar Pradesh and West Bengal.
Every type of effort has been made, from inducing and attracting children to schools through
entertaining shows, to rewarding staff at the Panchayat level for showing encouraging results in the
enrollment of children and for carrying out non-formal education programmes. Even free textbooks
and stationery, free dresses to girls, midday meals and such other allurements have been given in
order to successfully implement this education for all programmes.

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 But there are, among other problems, two major problems hindering this programme. The one
is non-availability of women teachers in the far-flung interior areas of the country. Women teachers
would attract girls more to schools and also give a sense of security and confidence to the parents.
The second major drawback is the lack of commitment on the part of teachers. The male teachers try
their level best to get themselves attached or posted to a school in the closest vicinity of their home
villages.
Having got this done, they remain on roll of the school while they are attending more to their
own farming or home. Absence from the school is difficult to be checked due to the lack of the
supervisory staff and due to the inaccessibility of certain areas and regions. Where the teacher lacks
the sense of commitment he or she can hardly inspire students to feel that sense. Their absence from
the schools gives leisure and license to children to indulge in playfulness or run back to their homes.
It is only one State Kerala which has shown the best results as far as the universalization
of elementary education is concerned. It is a small State as far as the size is concerned and
the general population has awareness towards education. That is the reason that the State has
successfully implemented the programme of education for all. Otherwise, inspire of all efforts and all
good intentions, the programme of education for all has not caught up in the country and this still,
after sixty years of dependence remains a distant dream.
CORRUPTION IN INDIA
Now-a-days corruption can be seen everywhere. It is like cancer in public life, which has not
become so rampant and perpetuated overnight, but in course of time. A country where leaders like
Mahatma Gandhi, Sardar Patel, Lai Bahadur Shastri and Kamraj have taken birth and led a value-
based is now facing the problem of corruption.
When we talk of corruption in public life, it covers corruption in politics, state governments,
central governments, business, industry and so on. Public dealing counters in most all government
offices are the places where corruption most evident. If anybody does not pay for the work it is sure
work wont be done.
People have grown insatiable appetite for money in them and they can go to any extent to get
money. Undoubtedly they talk of morality and the importance of value-based life but that is for outer
show. Their inner voice is something else. It is always crying for money. It has been seen the officers
who are deputed to look into the matters of corruption turn out to be corrupt. Our leaders too are not
less corrupt. Thus the network of corruption goes on as usual and remains undeterred.
Corruption is seen even in the recruitment department where appointments are ensured through
reliable middle agencies. Nexus between politicians and bureaucrats works in a very sophisticated
manner. Nexus does also exist between criminals and police. Everybody knows that criminals have
no morals, hence nothing good can we expect from them. But police are supposed to be the symbol
of law and order and discipline. Even they are indulged in corruption. This is more so because they
enjoy unlimited powers and there is no action against them even on complaints and sufficient proof
of abuse of office atrocities and high handedness.
Corruption can be need-based or greed-based. Better governance can at least help to
check need-based corruption. Better governance can check greed based corruption also because
punishment for the corrupt will be very effective and prompt in a better-governed country. The steps
should be taken to correct the situation overall. Declarations of property and assets of the government
employees are made compulsory and routine and surprise inspections and raids be conducted at
certain intervals.
Though it seems very difficult to control corruption but it is not impossible. It is not only the
responsibility of the government but ours too. We can eliminate corruption if there will be joint effort.
We must have some high principles to follow so that we may be models for the coming generation.
Let us take a view to create an atmosphere free from corruption. That will be our highest achievement
as human beings.

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 JUSTICE MUST REACH THE POOR
Justice is a concept of moral rightness based on law, rationality, ethics, rationality, natural law,
equity or religion. It is also the act of being fair and just. The question is how many are following the
path of justice. We live in a materialistic world, where ethics, laws and order etc. are less cared about.
Everything can be purchased with money even love and respect. People are generally measure
others on the scale of richness, the more rich a person is the more will be his love and respect in the
society and vice-versa.
In a country well governed, poverty is something to be ashamed of. In a country badly
governed, wealth is something to be ashamed of- Confucius.
People with lack of money suffers everywhere, they not only struggle for their survival but also
find it hard to earn respect in the society. Being poor is a curse, people with no money end up doing
low paid jobs with no bright future. We can see examples of many domestic works who works hard
day and night in the same household throughout their life.
Money can buy anything such as joy, freedom, respect and even justice. The culture of bribe is
prevalent everywhere, if you have money in your pocket you can get any work done. High officials are
bribed in cash or kind, which makes rich becoming richer and poor becoming poorer.
The idea of honesty and hard-work can hardly make a person rich. How can a poor even dream
of changing his financial status. More than half of his day is wasted in doing lower level and low paid
jobs. Next even if he tries to find new work or start a business he has no capital or money to bribe
higher officials.
There is need to change the system of bribe and unjust. Justice must reach the poor. Everyone
has equal rights for justice, but the problem is many times poor are uneducated are unaware about
the injustice happening with them. They work on lower wages and feel grateful to their masters,
unaware of the fact that their masters are the one exploiting them.
Imagine a country where all citizens are aware of their rights, and work only at those places
where they are paid fairly. No one will be able to mold law and order for their selfish interest and have
to pay fairly and treat their workers fairly in order to get the work done. Heaven will fall on earth if
every citizen no matter rich or poor follow rules and regulation of the country and treat others with
love and respect. Justice can only take place if we can increase the dignity of labour and get rid of
the unethical practices like bribe.
We are the one responsible for our world. Change from us can ultimately change our society
for better. Pay fairly to your workers at home and office, treat them with respect. It is only because of
their hard work we lead a peaceful life. Educate them about their rights. Even encourage your kids
to treat them nicely.
CHILD LABOUR
Child labour in my view is a spiritual disease, infact an epidemic that is caused and even spread
because of the lack of compassion. All the activities, those of which can degrade the future and
motivational levels of children to a considerable extent come under the menace of child labour and it
needs to be curbed at an exponential rate to transform our developing nation in to a superpower. It has
been a major hurdle for our country since the time of independence and the inefficient methodologies
adopted for the past several decades resulted in an impotent workforce needed to build the nation
in the new century.
Child labour usually means work that is done by children under the age of 15, which restricts
or damages their physical, emotional, intellectual, social, or spiritual growth as children. There are
many reasons for the existence of child labour in our country. Majority of child labour hail from the
rural, tribal and slum areas of our country and are forced in to labourage because of poverty and
worst economic conditions of their families and by failure to realise the importance of education by
their parents. Also child labour is encouraged by some vested interests in order to get cheap labour.
Child Labour is the mother of many ailments such as poverty, illiteracy, inequalities and poor
workforce. For the elimination of poverty in our country, education is the primary weapon which can
only be promoted by rooting out child labour. We have to realise that child labour and poverty are
inevitably bound together and if we continue to use the labour of children as the treatment for the
social disease of poverty, we will have both poverty and child labour to the end of time.

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 On the humanitarian side, it is an utter injustice that the education and future of a child depends
on the economic condition of the family he is born in to rather than his own vices and virtues. Children
do not constitute anyones property: they are neither the property of their parents nor even of society.
They belong only to their own future freedom. It is time for parents to realize that education for
children is not only their right, but a passport to a better future - for their families and for the country.
The problems of child labour if listed can fill in terabytes of memory, for everything is a problem
in the country with the existence of technology and illiteracy (fruit of child labour) side on side. Child
labour in our country has two faces - One face is the with regard to the children who were labour
aged in the fields of rural, tribal and slum areas and the other face is regarding children who were
undergoing labour age in the name of education in schools and colleges. These two need to be
tackled at an alarming rate for providing assured results for our future generations.
According to the statistics only around 64% [optimistic view] of child population are enrolled
in schools in our country. Many of them are being forced into work from a very early age of 8 years
to support their families. The result of decades of child labour is clearly visible at present in the form
of poor economy that resulted because of poor agricultural economy, backbone of our nation. Child
labour in fact creates a vacuum, for the cyclone of destruction to sweep the whole nation. It is not a
problem but rather the problem as it can give rise to many more inequality disturbances. Any major
problem in our country is intertwined with child labour and all steps for tackling those problems can
go futile unless this menace is curbed off to the most possible extent.
The emergence of black markets for basic commodities is also a branch of child labour as the
illiterate farmers are taken advantage of by the middle men whose pose themselves as the mediators
between rural and urban areas. The illiteracy of farmers is not only a bane for them but also for the
urban people who buy basic commodities at the whim of these middle men. The tree of child labour is
turning our farmers into poor peasants and then into daily workers as they enter into slavery norms of
stringent money lenders who advantage their backwardness to their own greed. The low agricultural
productivity in our country is also a fruit of child labour. The traditional agricultural practices used in
our country are extinct in other countries with the development of technology and the methods of
high yielding and harvesting.
Despite ours being an agricultural country unfortunately the technical advancement is on the
negative side. The basic cause for this trend is the lack of skills for farmers to bring in on the innovation
into farming practices and their inability to bring in-smart-work in place of hardwork. For example,
majority of farmers in our country plough their fields with the help of oxen which is very much time
taking, while the technology arrived where a plough machine can be installed on motor bikes which
can plough 10 acres of land in just a couple of hours compared to the week work in the former case
at a very affordable cost.
The advent of child labour also prevents the coming generation from actively participating in the
politics or other services that can directly constitute the growth of our nation. Because of prevalence
of child labour over the past few decades, the number of persons in various competitive exams such
as UPSC or IIT-JEE from rural areas is very less. The development of the country can be exponential
when the farmers participate in its process directly rather than indirectly.
Moreover, child labour curbs off the confidence and motivational levels of our young children
which can cost a fortune for our nation. For country to reach in par with world super powers the
morals and attitude of the people must be very high and competent in various fields. The leaders
arise only when child grows in an environment of knowledge and morals. The child labour prevents
a set of generation to analyze the problems with the modern developments day when fellow citizens
of our villages can understand the basic terms such as economy, GDP, inflation, etc. - that day my
country, our country is transformed into a super power. This is possible only we can devour the
menace of child labour from its roots.

THE INTERPRETATION OF STATUTES

The interpretation of statutes is the primary function of the court. The legislature can only pass
an enactment. The individual members of the legislature cannot be required to explain or interpret
what has been enacted. Therefore the interpretation is entirely within the province of judiciary. In this
respect, courts are to be guided by the well established canons of interpretation. The object of the

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interpretation is to give effect to the intention of the legislature and in that process dictionary meaning
the use of similar words in an earlier enactment on the subject, the definition section etc. may be
considered.
Interpretation in the light of policy Fringe Meaning*
When interpreting the statutes the courts often try to discover the intention of the legislature.
In fact it is very hard to find out the intention exactly so as to know whether a particular situation
comes within the words of a statute. Hence in many cases the intention of the legislature is a fiction.
In case of doubt the court has to guess what meaning parliament would have picked on if it had
thought of the point. The intention is not actual but hypothetical. For example, the general notion of
building is clear, but a judge may not find it easy to decide whether a temporary wooden hut or a
telephone kiosk or a wall or a tent is a building. In whatever way he decides the case, the judge is
discharging a legislative function rather than interpretative one. Therefore it has to be approached
with the help of the policy implicit in the Act or by reference to the convenience or social requirements
or generally accepted principles of fairness. This kind of interpretation may be legally and socially
sound. However the result, in some cases, may be surprising. Thus the word murder was construed
as accident in the context of workmens compensation Act and the result of the decision was that
the widow of the deceased workman was entitled to compensation from the employer; because the
murder in question arose out of and in the course of employment. In preferring this wider meaning of
the term accident the court looked to the general purpose of the Act.
THE MISCHIEF RULE:
Interpretation with reference to social policy does not always command universal assent.
However the judges are in fairly safe ground if they apply the mischief rule otherwise known as the
rule in Heydons case, a 16th century case which related to the construction of leases, life estates and
statutes. The mischief rule is based on the principle that the interpretation of a statute should be so
as to advance the remedy and suppress the mischief The courts must take in to consideration factors
like the history of the statute, reasons for the enactment the mischief intended to be suppressed and
the remedy proposed to be conferred. If the apparent meaning of a statute leads to an absurdity, then
the courts must resort to a reasonable construction and see whether a logical result can be arrived
at. This rule has been followed in a host of decisions especially in interpreting penal statutes. Thus,
in Smith v. Hughes a provision in the Street Offences Act 1959 came up for interpretation: Under the
said Act it is a crime for prostitutes to loiter or solicit in the street for the purpose of prostitution. Some
prostitutes were charged for soliciting from balconies and tapping on windows. They claimed that
they were not guilty as they were not in the street. The judge applied the mischief rule to come to the
conclusion that they were guilty as the intention of the Act was to cover this mischief or harassment
from prostitutes.
THE LITERAL RULE:
The rules of interpretation have no function when the words of a statute are clear enough and
admit of no other construction. Every statute must be constructed in its primary and etymological
sense. All rules of interpretation come in only when the wording of a statute is not clear and the
intention of the legislature cannot be gathered without recourse to the well known cannons of
interpretation. According to this rule, Courts should use the mischief rules when the statute is plain
and unambiguous. They can use it if the statue is ambiguous but must not invent fancied ambiguities
in order to do so. However, the literal rule cannot be used where the words are used in the widely
differing contexts of human or social situations. Professor Zander gives the example of parents
asking a child minder to keep the children amused by teaching them a card game. In the parents
absence the child minder teaches the children to play strip poker. Though strip poker is a card game
it is not the sort of card game intended by the instructions given. One knows this not from anything
the parents have said but from customary ideas as to proper behavior and upbringing of children.
Nevertheless according to Lord Diplock it is improper to deviate from the statutory provision
by interpreting words and phrases if the meaning of the statute is plain. The phrase in motion
under the Factories act was interpreted to mean mechanical propulsion. Lord Diplock opines that
the interpretation was uncalled for as the phrase was very plain. Hence the interpretation was the
result of a fancied ambiguity. The chief merit of the literal rule lies in the definiteness and certainty

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of parliamentary enactments. If it is left to the judges to interpret and give meaning to words and
phrases statutes will become more complex. People are entitled to follow statutes as they are, they
should not have to speculate as to parliaments intention. Moreover if the courts intend to rewrite
statutes it would encourage people who objected to the litigation to try their luck with the courts.
There may be differences of opinion as to what is expedient, just and morals. But the parliaments
opinions on those questions is paramount. However the hard truth is that parliament generally pays
little attention to the working of the law. It is not merely that parliament fails to keep old law under
continuous revision. It loses interest in its new creations as soon as they are on the statute book.
THE GOLDEN RULE : INTERPRETATION TO AVOID ABSURDITY:
The rule that a statute may be constructed to avoid absurdity is conveniently called the golden
rule. The courts sometimes allow themselves to construe a statute in such a way as to produce a
reasonable result, even though this involves deviating from the prima facie meaning of the words.
The golden rule allows the court to prefer a sensible meaning to an absurd meaning, where both are
linguistically possible. It does not matter that the absurd meaning is the more natural and obvious
meaning of the words. This is definitely in contrast to Lord Diplocks opinion that inexpediency, injustice
or immorality of the proposed application of the statute cannot in itself be a reason for finding a
powerful motivating force leading the court to detect such ambiguity.
PRESUMPTIONS:
In interpreting statutes, various presumptions may be applied. They are the background of
legal principles against which the act is viewed and in the light of which parliament is assumed
to have legislated without being expected to express them. The important presumptions are the
rule that a statute is presumed not to be retrospective, the presumption against interference with
vested rights, the presumption against taking of property without compensation and the presumption
against interference with contract.
The function of a Judge is also to do justice in accordance with certain settled principles of
law in a free society and he is entitled to assume that parliament does not intend to subvert these
principles* unless there is a clear statement that it does. The rules of natural justice, self defence,
duress etc. are judge-made principles required by our ideas of justice grafted on the statute by
Implication although there may be no words in the statute to suggest them.
The common law provides a lot of principles which bold judges will make use of, in order to do
complete justice. For example, the principle that a murderer cannot take under his victims will was
established as early as 1775. Therefore it was easy for the judges to apply the rule in the case of
Re Sigsworth that involved the question as to whether a son who murdered his mother was entitled
to her estate as issue under the Intestates Estates Act.
Casus Omissus (case of omission) is another principle of interpretation which can be applied
where there is a genuine omission in a statue. Certain phrase in the Official Secret Act, 1920 was
considered in Adler v. George. Section 3 of the Act prohibits persons in the vicivity of any prohibited
place from impeding sentries. The defendant impeded a sentry when he was inside a prohibited
place. The argument for the defence was that the defendant, being inside, was not in the vicivity of
the place which meant outside. The court rejected the argument holding that the statute was to be
read as if it were in or in the vicinity of . This shows that statutes may be read not only against the
background of notions of justice and settled legal principle but also against the background of notions
of ordinary common sense.
There is a long standing presumption that Acts of parliament are not intended to derogate
from the requirement of international law. The modern movement for legislative recognition of human
rights, based on various international conventions, is in fact a movement for the increased control of
legislatures by the judiciary.
Thus it is seen that enacted law requires proper interpretation by judges so that, a sensible
result can be achieved in the interest of justice. Nevertheless much will depend on the legal knowledge
and the integrity of the counsel and the court, as well as on the readiness of the court to take a liberal
view.

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 2. JURISPRUDENCE
Jurisprudence is the theory and philosophy of law. Scholars of jurisprudence hope to obtain
a deeper understanding of the nature of law, legal reasoning, legal systems and legal institutions.
Modern jurisprudence began in the 18th century and was focused on the first principles of the law of
nature, civil law, and the law of nations.
General Jurisprudence can be broken into categories both by the types of questions scholars
seek to address and by the theories of jurisprudence or schools of thought regarding how those
questions are best to be answered.
Contemporary philosophy of law, which deals with general jurisprudence, addresses problems
in two rough groups.
1) Problems internal to law and legal systems.
2) Problems of law as a particular social institution as it relates to the larger political and
social situation in which it exists.
Answers to these questions come from four primary schools of thought in general jurisprudence:
Natural law
Natural law is the idea that there are rational objective limits to the power of legislative rulers.
The foundations of law are accessible through human reason and it is from these laws of nature that
human created laws gain whatever force they have.
Legal positivism
Legal Positivism, by contrast to natural law, holds that there is no necessary connection
between law and morality and that the force of law comes from some basic social facts although
positivists differ on what those facts are.
Legal Realism
Legal Realism is a third theory of jurisprudence which argues that the real world practice of law
is what determines what law is. the law has the force that it does because of what legislators, judges,
and executives do with it.
Critical Legal Studies is a younger theory of jurisprudence that has developed since the 1970s
which is primarily a negative thesis that the law is largely contradictory and can be best analyzed as
an expression of the policy goals of the dominant social group.
The English term is based on the Latin word jurisprudentia: juris is the genitive form of jus
meaning law, and prudentia means knowledge. The word is first attested in English in 1628, at
a time when the word prudence had the now obsolete meaning of knowledge or skill in a matter.
Nature of Jurisprudence
Philosophers of law ask what is law? and what should it be?
Nature and scope of Jurisprudence depends upon the ideology and nature of the society and
the jurist according to their own notion, Growth of the Law is different and it differs according to
social and political condition. There are different meaning for the word Law for example in French =
Jurisprudence means case Law.
Due to the evolution of the society it is difficult to accept definition by all. The study of
Jurisprudence started from Romans. Latin word Jurisprudence evolved = knowledge of Law or
skill in law.
Ulpian = The knowledge of things divine and human.
The science of the just and unjust.
Paulus = The law is not to be deducted from the rule, but the rule from the law.
But these definitions are vague and inadequate but they put forth the idea of a legal science.

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England:
During formative period of the common law the word Jurisprudence was in use. Meaning is
little more than the study of or skill in law.
Early part of the 19th century the word began to acquire a technical significance among English
lawyers.
Bentham distinguished
1. Expositorial Jurisprudence.
2. Censorial Jurisprudence.
Austin occupied himself with expository Jurisprudence. (His work consisted mainly at a formal
analysis of the structure of English law).
Bentham analytical exposition or pioneered and Austin developed. Hence the word
Jurisprudence has come to mean in English almost exclusively an analysis of the formal structure of
law and its concepts.
Buckland: The analysis of legal concepts is what Jurisprudence meant.
Julius Stone: The lawyers extraversion, It is the lawyer examination of the precepts, ideas and
techniques of the law in the light derived from present knowledge in discipline other than the law.
Austin:
He says the science of Jurisprudence is concerned with positive law. It is no matter whether it
is good or bad law.
Austin divides the law as general jurisprudence and particular jurisprudence. General
Jurisprudence is common to all systems.
Particular Jurisprudence confined only to the study of any actual system of law or any portion
of it.
General Jurisprudence = science which is concerned with the exposition of the principles
notions and distinctions which are common to all system of law.
Particular Jurisprudence is the science of any system of positive law actually obtaining in a
specifically determined political society.
General Jurisprudence is a province of pure abstract jurisprudence to analyze and systematize
the essential elements underlying the indefinite variety of legal rules without special reference to the
institution of any particular country.
Particular Jurisprudence is a science of particular law General and particular jurisprudence
differs from each other in this scope but not in its essence.
Generally it takes data from the system of more than one state while particular takes the data
from a particular system of law.
Both are positive only.
Example: Possession is one of the fundamental legal concepts recognised by all system of
law.
Criticism by Salmond Holland
1. Impracticability.
2. Error in Austins idea of general jurisprudence.
3. Jurisprudence is the integral social science and the distinction between general and
particular jurisprudence is not proper.
4. There may be many schools of jurisprudence but there are not different kind of
Jurisprudence.
5. He says it is not correct to use English Jurisprudence as Hindu jurisprudence.
6. We are dealing with different systems of law and not different kinds of jurisprudence.
7. He says jurisprudence is a social science which deals with social institutions governed
by law it studies them from the point of view of their legal significance.

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Holland
1. Error on particular Jurisprudence.
2. We can classify a material into general and particular but we cant classify the
science hence the study of particular legal system is not a science.
3. Example Geology of England Geology of India etc.
Lord Bryce The law of every country is the outcome and result of the economic and social
conditions of that country as well as the expression of its intellectual capacity for dealing with these
conditions.
Savigny Law grows with the growth and strengthens with the strength of people and its
standard of excellence will generally be found of any given period to be in complete harmony with
the prevailing ideas of the best class of citizens
Progress in the formation of law keep pace with the progress in the knowledge of the people.
Holland
Jurisprudence is the formal science of positive law.
It is a formal or analytical science rather than material science.
He terms the positive law as the general rule of external human action enforced by a sovereign
political authority.
He follows the definition of auction but he adds the term formal which means that which
concerns only the form and not its essence.
A formal science is one, which describes only the form or the external side of the subject and
not it internal contents.
Salmond:
Jurisprudence as the science of law means civil law or law of the land. Jurisprudence is of 3
kinds.
Expository or systematic jurisprudence deals with the contents of an actual legal system as
existing at any time whether past or present.
Legal history says about the process of historical development which helps us to set forth law
as it ought to be. It deals with the ideas of the legal system and the purpose for which it exists.
Salmond makes distinction as generic Jurisprudence and specific Jurisprudence Generic
Jurisprudence includes the entire body of legal doctrines and specific jurisprudence deals with a
particular department of those doctrines.
He defines Jurisprudence as the science of the first principles of the civil law.
Specific Jurisprudence has three branches
1. Analytical Jurisprudence.
2. Historical Jurisprudence.
3. Ethical Jurisprudence.
Keeton
Jurisprudence the study and systematic arrangement of general principles of law. Jurisprudence
deals with the distinction between public and private laws and considers the contents of the principal
departments of law.
Pound
Jurisprudence the science of law using the term law in the juridical sense as denoting the body
of principles recognized or enforced by public and regular tribunals in the administration of justice.
Gray
Jurisprudence is the science of law the statement and systematic arrangement of the rules
followed by the courts and principles involved in those rules.

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 Jurisprudence is the study of fundamental legal principles it is any thought or writing about law
and its relation to other disciplines such as philosophy, psychology, economics etc.
Scope of Jurisprudence
No unanimity of opinion regarding its scope.
However it covers moral and religious precepts but that has created confusion. Credit goes to
Austin who distinguished law from morality and theology.
He also restricted the term to the body of rules set and enforced by the sovereign or supreme
law making authority within the realm.
In the present view its scope includes all the conduct of human order and human conduct in
state and society.
Nature of Law
Natural law
Aristotle is often said to be the father of natural law. Socrates Plato and Aristotle posted the
existence of natural justice or natural right.
Natural law theory asserts that there are laws that are imminent in nature, to which enacted
laws should correspond as closely as possible. This view is frequently summarized by the maxim an
unjust law is not a true law, lex iniusta non est lex, in which unjust is defined as contrary to natural
law. Natural law is closely associated with morality and, in historically influential versions, with the
intentions of God.
Natural law theory attempts to identify a moral compass to guide the lawmaking power of the
state and to promote the good. Notions of an objective moral order, external to human legal systems,
underlie natural law. What is right or wrong can vary according to the interests one is focussed upon.
Natural law is sometimes identified with the maxim that an unjust law is no law at ali.
Thomas Aquinas was the most important Western medieval legal scholar. Main article: Thomas
Aquinas.
He is the foremost classical proponent of natural theology. Aquinas distinguished four kinds of
law. These are:
1. The eternal law
2. Natural law
3. Human law and
4. Divine law.
Eternal law is the decree of God which governs all creation.
Natural law is the human participation in the eternal law and is discovered by reason.
Natural law is based on first principles: this is the first precept of the law, that good is to be
done and promoted, and evil is to be avoided. All other precepts of the natural law are based on
this The desire to live and to procreate are counted by Aquinas among those basic (natural) human
values on which all human values are based.
Human law is positive law:
The natural law applied by governments to societies. Divine law is the law as specially revealed
in the scriptures and teachings of the apostles
Thomes Hobbes
He was an English enlightenment scholar.
Hobbes expresses a view of natural law as a precept, or general rule, found out by reason,
by which a man is forbidden to do that which is destructive of his life, or takes away the means of
preserving the same; and to omit that by which he thinks it may best be preserved. Hobbes was a
social contrarian and believed that the law gained peoples tacit consent.

120 JURISPRUDENCE
 He believed that society was formed from a state of nature to protect people from the state of
war between mankind that exists otherwise. Life is, without an ordered society, solitary, poor, nasty
and short.
Legal positivists
Positivism simply means that the law is something that is positive: laws are validly made
in accordance with socially accepted rules. The positivist view are Firstly, that laws may seek to
enforce justice, morality, or any other normative end, but their success or failure in doing so does not
determine their validity. Provided a law is properly formed, in accordance with the rules recognized
in the society concerned, it is a valid law, regardless of whether it is just by some other standard.
Secondly, that law is nothing more than a set of rules to provide order and governance of society. No
legal positivist, however, argues that it follows that the law is therefore to be obeyed, no matter what.
This is seen as a separate question entirely.
What the law is - is determined by social facts
What obedience the law is owed - is determined by moral considerations.
Hans Kelsen is considered one of the pre-eminent jurists of the 20th century. He is most
influential in Europe, where his notion of a Grundnorm or a presupposed ultimate and basic legal
norm, still retains some influence.
It is a hypothetical norm on which all subsequent levels of a legal system such as constitutional
law and simple law are based. Kelsens pure theory of law described the law as being a set of social
facts, which are normatively binding too. Laws normativity, meaning that we must obey it, derives
from a basic rule which sits outside the law we can alter. It is a rule prescribing the validity of all
others.
H. L. A. Hart
H. L. A. Hart, who argued that the law should be understood as a system of social rules.
Hart rejected Kelsens views that sanctions were essential to law and that a normative social
phenomenon, like law, cannot be grounded in non-normative social facts.
Hart divided into primary rules (rules of conduct) and secondary rules (rules addressed to
officials to administer primary rules). Secondary rules are divided into rules of adjudication (to resolve
legal disputes), rules of change (allowing laws to be varied) and the rule of recognition (allowing laws
to be identified as valid). The rule of recognition, a customary practice of the officials (especially
judges) that identifies certain acts and decisions as sources of law.
Legal realism
Oliver Wendell Holmes was a self-defined legal realist.
The law should be understood and determined by the actual practices of courts, law offices,
and police stations, rather than as the rules and doctrines set forth in statutes or learned treatises.
SOURCES OF LAW
1. Legislative.
2. Precedents.
3. Customs.
4. Opinion juris (statutory interpretation and preparatory works).
5. Justice equity and good conscience.
Sources of law means the origin from which rules of human conduct come into existence and
derive legal force or binding characters. It also refers to the sovereign or the state from which the law
derives its force or validity. Several factors of law have contributed to the development of law. These
factors are regarded as the sources of law.

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 LEGISLATION
Legislation is that source of law which consist in the declaration of legal rules by a competent
authority. Legislature is the direct source of law. Legislature frames new laws, amends the old laws
and cancels existing laws in all countries. In modern times this is the most important source of law
making. The term legislature means any form of law making. Its scope has now been restricted so
a particular form of law making. It not only creates new rules of law it also sweeps away existing
inconvenient rules.
1. Supreme legislation.
2. Subordinate Legislation.
1. Supreme legislation
Supreme legislation is the expression of the legislative will of a supreme authority in a state. It
is supreme because no authority can annual, modify or control it. It proceeds from the sovereign or
supreme legislative power in the state, and which is therefore, incapable of being abrogated by any
other legislative authority.
2. Subordinate legislation
Subordinate legislation is that which proceeds from any authority other than the sovereign
legislation power, and is, therefore, dependent for its existence or validity on some superior or supreme
legislative authority. It comes from a subordinate legislature or any authority and is subject to the
repealing or sanctioning control of a superior legislation. In England all form of legislative activity
recognized by law, other than the power of parliament are subordinated and subject to parliamentary
control.
Types of subordinate legislation
The chief forms or types of subordinate legislation are five in number. These are:
1. Colonial legislation
It means legislation by the legislature of the colonies or other dependencies. The parliament
can repeal, alter or supersede any colonial enactment.
2. Executive legislation
Though the main function of the executive is to enforce laws, but in certain cases, the power of
making rules is delegated to the various departments of the government, which is called subordinate
delegated legislation.
3. Judicial legislation
It means rules of procedure made by superior courts for their own guidance under authority
delegated to them for the purpose. In other words the superior courts have the power of making rules
for the regulation of their own procedures.
4. Municipal legislation
Sometimes municipal authorities are provided with the power of establishing special laws for
the districts under their control. They are allowed to make bye-laws for limited purposes within their
areas. These are legislation of local bodies such as municipal or corporations.
5. Autonomous legislation
It is the process of law making by persons not by the state for their own guidance. Legislation
thus made by private persons and the law created may be distinguished as autonomic view. These
are autonomous bodies like municipal councils, universities etc.

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 PRECEDENT
Precedent is one of the sources of law. The judgements passed by some of the learned jurists
became another significant source of law. when there is no legislature on particular point which
arises in changing conditions, The judges depend on their own sense of right and wrong and decide
the disputes. such decisions become authority or guide for subsequent cases of a similar nature
and they are called precedents. The dictionary of English law defines a judicial precedent as a
judgement or decision of a court of law cited as an authority for deciding a similar state of fact in the
same manner or on the same principle or by analogy. Precedent is more flexible than legislation and
custom. It is always ready to be, used.
Precedent is other wise called case law judicial decision judge made law it is the sources of
law.
It enjoyed a high authority precedent plays a vital role when law is unwritten English common
law is based on precedent.
Kinds of precedent
1. Authoritative precedents or absolute precedent.
2. Conditional precedent.
3. Persuasive precedents.
1. Authoritative precedents or absolute precedent
Whether judge approve it or not this king of precedent must be followed.
2. Conditional precedents
The judge may disregard either by dissenting or by over ruling it known as conditional precedent.
3. Persuasive precedents
Judges have no obligation to follow can take into consideration. Precedent of other court.
Foreign court.
Theories of precedent
1. Declaratory theory
Declaration of existing law by the judges is known as declaratory theory. Judge only declare
the existing law.
2. Original precedent theory
Law making by the judge known as original precedent theory judge are the law makers the role
of judge is creative particularly when the law is absent.

Principles of precedent
1. Ratio decidendi
Reason for the decision - An authoritative principle of a judicial decision It contains a the
principle of law formulated by a judge it is Essential for the decision of a case. It has force of law and
binding on the courts.
Prof Keeton. Ration decidendi is a principle of law which forms the basis of decision in a
particular case.
Bridges vs hawkeshworth
Customer found money on the floor of a shopping complex both customer and shopkeeper
claim that money.
Court treated shop as a public place and applied rule finder keeper and it favoured the customer.
Here the ratio decidendi is the finder of goods is the keeper principle.

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2. Obiter dictum
Some thing said by the judge, does not have any binding authority. Judge may declare some
general principles relating to law but that may be unnecessary and irrelevant to the issues before
him.
Those unnecessary statements of law which lay down a rule is called Obiter dictum.
3. Stare decisis
Means let the decision stand in its rightful place. During 17 th century a progress made in the
law reporting system. Reporting of the decisions of the court Act to stare decisis a principle of the
law which has become settled by a series of decisions is generally binding on the courts and should
be followed in similar cases. It is based on expediency and public policy.
4. Prospective overruling
Reversing the lower courts decision by supreme court can over rule their own earlier decisions
by another bench of judges consisting of more number of judges than previous one. it is a modern
trend which enables the court to correct its errors without affecting its past transactions.
CUSTOMS
A custom is a rule which in a particular family or in a particular district or in a particular section,
class or tribe, has from long usage obtained the force of law. The dictionary of English law defines
custom as a law not written, which being established by long use and consent of our ancestors has
been and daily is put into practice. Custom as a source of law got recognition since the emergence of
savigny on the horizon of jurisprudence. It is an exemption to the ordinary law of the land, and every
custom is limited in its application.
A study of ancient shows that law-making was not the business of the kings. Law of the
country was to be found in the customs of the people which developed spontaneously according to
circumstances. It was felt that a particular way of doing things was more convenient then others when
the same things was done again and again in a particular way, it is of custom.
According to salmond custom is the legal source of law.
According to Salmond:
Custom is the embodiment of those principles which have commended themselves to the
national and national conscience as the principles of justice and public utility.
According to Austin:
Custom is a rule of conduct which the governed observed spontaneously and not in pursuance
of law set by political superior.
According to Holland:
Custom is a generally observed course of conduct.
Kinds of Custom:
Custom are of two kinds:
I. Legal Custom.
II. Conventional Custom.
I. Legal Custom:
According to Salmond, a legal custom is one whose legal authority is absolute, one which in
itself and propria vigore possesses the force of law:
Kinds of legal Custom: (a) General Custom (b) Local Custom
(a) General Custom:
General customs are those which have force of law throughout the territory. The common law
of England is based upon general customs of the realm.

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(b) Local Custom:
The local custom are those which operate have the force of law in a particular locality. The
authority of a local custom is higher than that of general custom.
II. Conventional Custom:
A Conventional custom is one whose authority is conditional on its acceptance in the agreement
between the parties to be bound by it. There is a process by which conventional usage comes to
have the force of law.
Conditions for a valid custom:
Certain conditions must be satisfied before a court is entitled to incorporate the usages into
contracts.
i) The usage must be so well-established as to be notorious.
ii) The usage must be reasonable.
iii) Usage cannot alter general law of land.
iv) A usage should not nullify or very the express term of the contract.
Requisites of Valid Custom:
Following are the requisites for a valid custom, treated as law.
I. Immemorial :
A Custom to be valid must be proved to be immemorial. According to Blackstone:
A custom in order that in may be legal and binding, must have been used so long that the
memory of man runneth not to the contrary, so that if anyone can show the beginning of it, it is
good custom.
II. Reasonable:
Another essential of a valid custom is that it must be reasonable. The unreasonableness of
custom must be so great that its enforcement results in greater harm than if there were no
custom at all.
According to Prof. Allen: The unreasonableness of custom must be proved and not its
reasonableness.
III. Continuous:
A custom must not continuously observed and if it has not been continuously and uninterruptedly
observed, the presumption is that it existed at all.
IV. Peaceable enjoyment:
The enjoyment of a custom must be a peaceable one.
V. Certainty:
A valid custom must be certain and definite, if there is any ambiguities in it or it keeps change,
it is not a valid custom.
VI. Compulsory Observance:
A custom is valid if its observance is compulsory. An optical observance is ineffective.
According to Blackstone: A custom that all the inhabitants shall be rated towards the
maintenance of a bridge, will be good, but a custom that every man is to contribute thereto at
his own pleasure is idle and indeed no custom at all.
Vll. General Or Universal:
The custom must be general or universal. According to custom: In the absence of unanimity of
opinion, custom becomes powerless or rather dose not exist.
A valid custom must not be opposed to public policy or the principles of morality.

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IX. Not Opposed With Statute Law:
(A) valid custom must be conflict with the statute law of the country. According to Coke:
No custom or prescription can take away the force of an Act of parliament.
(B) According to Blackstone customs must be consistent with each other, one custom cannot
be set up in opposition to another.
Theories of customs
There are two theories regarding the question as to when a question is transformed into law:
(i) Historical theory (ii) Analytical theory
(i) Historical theory:
According to the historical theory, the growth of law does not depend upon the arbitrary will of
any individual. It dose not depend upon any accident. It grows as a result of the intelligence of
the people. Custom is derived form the common consciousness of the people.
According to Puchta: Custom is not only self-sufficient and independent of state imprimatur but
is a condition to all sound legislation.
Criticism:
According to Paton: The growth of most of the customs is not the result of any conscious
thought but of tentative practice.
According to Allen: All customs cannot be attributed to the common consciousness of the
people. In many cases, customs have arisen on account of the convenience of the ruling class.
(ii) Analytical theory:
Austin, Holland, and Gray are the advocates of analytical theory.
According to Austin:
Customs is a source of law and not law itself. Customs are not positive laws until their existence
is recognized by the decisions of the Courts.
According to Holland:
Customs are not laws when they arise but they are largely adopted into laws by state recognition.
Criticism:
By Allen:
Custom grows by conduct and it is therefore a mistake to measure its validity solely by the
elements of express sanction, accorded by Courts of law of by other determinate authority.
Reasons for Custom is given the force of law:
Following are the reasons, why custom is given the force of law.
(i) Principles of National Conscience:
Custom is the embodiment of those principles which have commended themselves to the
national conscience as principles of truth, justice and public policy.
According to Salmond:
Custom is to society what laws is to the state. Each is the expression and realization of the
measure of man, insight and ability, of the principles of right and justice.
(ii) Expectation of continuance:
Another reason for the binding force of custom is the expectation of its continuance is the
future. Justice demands that this expectation should be fulfilled and not frustrated.
(iii) Observance by a large number of people:
Sometimes a custom is observed by a large number of persons in society and in course of time
the same come to have the force of law.

126 JURISPRUDENCE
(iv) Interests of Society:
Custom rests on the popular conviction that it is in the interests of society. This conviction is so
strong that it dose not found desirable to go against it.
(v) Useful to the law giver:
According to paton:
Custom is useful to the law-giver and codifier is two ways. It provides that material out of which
the law can be fashioned. There is a tendency to adopt the maxim whatever has been authority
in the past is a safe guide for the future.
OWNERSHIP
According to Austin ownership means a right, which avails against everyone who is subject to
the law conferring the right to put thing to user of indefinite nature.
It is right in rem which is available to the owner against the world at large. It includes ownership
over both corporeal and incorporeal things. The former refers to physical objects and the latter refers
to all claims.
According to Hibbert ownership is a comprehensive right in rem. It is a bundle of four rights.
1. Right to use a thing
2. Right to exclude others from using the thing
3. Right to dispose of the thing and
4. Right to destroy the thing
Holland ownership is a plenary control over a object.
Salmond the relation between a person and any right that is vested and an object forming the
subject matter of his ownership
Ownership denotes the relation between a person and right that is vested in him. Nothing can
be owned except the right over a thing. In other words a thing cannot be owned but a right over such
thing can be owned. Therefore owning a right is called ownership.
Austin
1. Owner can use in many ways or indefinite in point of user
2. Owner has right of transfer or unrestricted in point of desposition
3. Ownership is permanent or unlimited in point of duration
Modes of acquisition of ownership:
The ownership is acquired in two ways
1. Original mode
2. Derivative mode
1. Original mode:
In this mode the owner acquires the ownership over the owner less objects. They are called
res nullis. Such object belonged to no one. It may be acquired by means of accession, occupation
and specification.
2. Derivative mode:
In this mode the owner acquires the ownership by purchasing from the original or previous
owner. The purchaser becomes the owner. It is merely a transfer of existing ownership but not a
relation of the ownership ex buyer derives ownership from seller.
Kinds of ownership
1. Corporeal and incorporeal ownership
2. Trust and Beneficial ownership
3. Legal and Equitable ownership
4. Vested and Contingent ownership

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 5. Sole and co- ownership
6. Absolute and limited ownership
1. Corporeal and incorporeal ownership:
The ownership over a tangible or material object is called corporeal ownership
2. Trust and Beneficial ownership
The ownership of a trustee is called trust ownership
3. Legal and Equitable ownership
The ownership which originated from the rules of common law is called legal ownership. A
assigned a debt to B. A is the legal owner and B becomes an equitable owner.
4. Vested and Contingent ownership:
The ownership which comes into existence immediately is called vested ownership. A transfer
his property to B an unmarried daughter for life and to C, an unborn make child. Cs ownership
Is contingent because Cs birth is uncertain.
5. Sole and Co-ownership
An exclusive ownership of an individual as against the whole world is called sole ownership
single owner. The ownership of two or more persons having interest in the same property or
thing is called co ownership
6. Absolute and limited ownership
The ownership which vests all the rights over a thing to the exclusion of all is called absolute
ownership. Ownership which imposes limitations on user duration or disposal of rights of
ownership is called limited ownership.

POSSESSION
Possession means custody or control. The idea of ownership developed slowly with the growth
of civilization.
According to Salmomd possession establishes the relationship between men and the material
things. It is a mere fact.
According to Pollock possession is a physical control over a thing.
According to Savigny possession is the physical power of exclusion. Protection of possession
is a branch of protection to the person. Freedom of will is the ground for the protection of possession.
According to Ihering possession is de facto exercise of a claim over a thing.
According to Roman law possession is a prima facie evidence of ownership. It supports the title
of ownership. The possessor of a thing is presumed to be the owner. Long enjoyment of a property
creates ownership. This is known as prescription hence possession in nine points in law.
Kinds of Possession
1. Possession in fact
2. Possession in law
1. Possession in fact:
The actual or physical possession of a thing is called Possession in fact. Also known as de
facto possession. It indicates physical control of a person over a thing. There may be a physical
relation with the object and the person. That physical relation or control need not be continuous.
2. Possession in law
Possession which is recognized and protected by law is called Possession in law. It is also
know as de jure possession it is a possession in the eye of law.
Elements of possession
1. Animus possidendi
2. Corpus possessionis

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 1. Animus Possidendi:
Means intention to possess a thing. It deals with subjective and mental intention to posses a
thing. It deals with subjective and mental element. It denotes a strong desire to possess a thing. Here
the possessor must have strong intention to posses a thing he must have an exclusive claim, Animus
Possidendi need not be a claim or right and need not be a own claim and it need not be specified.
2. Corpus Possessionis
Corpus Possession is means physical possession of a thing it deals with objective element.
According to savigny the actual physical control over a thing is called corpus possessionis. The
physical control gives to an assumption that others will not interfere with it. Possessor must present
personally and physically possess. The possession of a thing extends to accessories too. Possession
includes protection and secrecy of thing
Acquisition of possession
1. By taking
2. By delivery
3. By operation of law
Types of Possession
1. Corporal and incorporeal possession
The possession of a material object is called Corporeal possession. Actual use or control over
such material object is not necessary e.g. possession of car. The Possession of other than a material
object is called incorporeal possession. Actual use and enjoyment of right is necessary.
2. Immediate and Mediate Possession
The direct or primary possession of a material object is called Immediate possession. The
possessor holds thing personally without any intermediary e.g. possession of a car owner.
Indirect or secondary possession of a material object is called Mediate possession the
possessor of a material object is called Mediate possession. The possessor holds the thing on behalf
of another. e.g. possession of a car driver.
3. Representative Possession
The Possession of a thing through an agent or a servant is called Representative Possession.
The representative is not the real possessor e.g. masters money in the servant pocket.
4. Concurrent Possession
Two or more persons may jointly possess a thing at the same time. This Is known as Concurrent
possession e.g. B may have right of way on the A land.
5. Derivative Possession
The possession of the holder of a thing is called Derivative possession. He derives title from
the person who entrusts the thing. e.g. a watch repairer. He need not return the watch until the repair
charges are paid.
6. Constructive possession
The possession in law is called constructive possession. It is not an actual possession. It is a
possession in law and not a possession in fact. Possession of keys of a car implies the possession
of car.
7. Adverse possession
The possession against every other person having or claiming to have a right to the possession
of that property is called Adverse possession. It is a possession of a thing without the permission of
its real owner. Lessee possession after expiry of lease period.
8. Duplicate possession
The possession of a thing by two persons is called Duplicate possession. The possession of
one persons is compatible with the possession of another person. It is possible only when two claims
are not mutually adverse. Possession of co owners.

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Distinction between Ownership and Possession
Ownership Possession
1. It is an absolute right 1. It is an evidence of ownership
2. It is de facto exercise of fact 2. It is de jure recognition of claim
3. It is the guarantee of the law 3. It is the guarantee of the fact
4. It is related to a right 4. It is related to a fact
5. It includes possession 5. It does not include ownership
6. It excludes interference 6. It excludes other except owner
7. It developed on possession 7. It is developed with civilization
8. It provides proprietary remedies 8. It provides possessory remedies
9. Its transfer is too technical 9. Its transfer is less technical

LEGAL PERSONALITY
In the common law tradition, only a person could sue or be sued. This was not a problem
in the era before the Industrial Revolution, when the typical business venture was either a sole
proprietorship or partnership the owners were simply liable for the debts of the business. A feature
of the corporation, however, is that the owners/shareholders enjoyed limited liability the owners were
not liable for the debts of the company. Thus, when a corporation breached a contract or broke a
law, there was no remedy, because limited liability protected the owners and the corporation wasnt
a legal person subject to the law. There was no accountability for corporate wrongdoing.
To resolve the issue, the legal personality of a corporation was established to include five legal
rights
1. The right to a common treasury or chest (including the right to own property),
2. The right to a corporate seal (i.e., the right to make and sign contracts),
3. The right to sue and be sued (to enforce contracts),
4. The right to hire agents (employees) and
5. The right to make by-laws (self-governance).
Legal personality
Legal personality (also artificial personality, juridical personality, and juristic personality also
commonly called as a vehicle) is the characteristic of a non-living entity regarded by law to have the
status of personhood.
A legal person has a legal name and has rights, protections, privileges, responsibilities, and
liabilities under law, just as natural persons (humans). The concept of a legal person is a fundamental
legal fiction.
Legal personality allows one or more natural persons to act as a single entity (a composite
person) for legal purposes. Legal personality allows that composite to be considered under law
separately from its individual members or shareholders. They may sue and be sued, enter contracts,
incur debt, and own property. Entities with legal personality may also be subjected to certain legal
obligations, such as the payment of taxes. An entity with legal personality may shield its shareholders
from personal liability.
The concept of legal personality is not absolute. Piercing the corporate veil refers to looking
at the individual natural persons acting as agents involved in a corporate action or decision; this may
result in a legal decision in which the rights or duties of a corporation are treated as the rights or
liabilities of that corporations shareholders or directors. Generally, legal persons do not have all of
the same rights - such as the right to freedom of speech - that natural persons have.
Types of legal persons
1. Cooperatives
A corporation sole is a corporation constituted by a single member, such as The Crown in the
Commonwealth realms.

130 JURISPRUDENCE
2. Corporation
A corporation aggregate is a corporation constituted by more than one member. Municipal
corporations (municipalities) are creatures of statute. Other organizations may be created
by statute as legal persons. business association that carries on an industrial enterprise, are
usually corporations, although some companies may take forms other than a corporation,
such as associations, partnership, unions, joint stock companies, trusts, and funds. Limited
liability companies are unincorporated associations having certain characteristics of both a
corporation and a partnership or sole proprietorship.
3. Sovereign states are legal persons.
4. International legal systems
Various organizations possess legal personality. These include intergovernmental organizations
(e.g. U.N)
5. Temples
Temples, in some legal systems, have separate legal personality.
Not all organizations have legal personality. For example, the board of directors of a corporation,
legislature, or governmental agency typically are not legal persons in that they have no ability
to exercise legal rights independent of the corporation or political body which they are a part of.
There are limitations to the legal recognition of legal persons. Legal entities cannot marry, they
usually cannot vote or hold public office and in most jurisdictions there are certain positions
which they cannot occupy. The extent to which a legal entity can commit a crime varies from
country to country. Certain countries prohibit a legal entity from holding human rights; other
countries permit artificial persons to enjoy certain protections from the state that are traditionally
described as human rights.
Special rules apply to legal persons in relation to the law of defamation. Defamation is the
area of law in which a persons reputation has been unlawfully damaged. This is considered
an ill in itself in regard to natural person, but a legal person is required to show actual or likely
monetary loss before a suit for defamation will succeed.
Theories of corporate personality
There are five theories which explains the nature of corporate personality
1. Fiction theory
2. Realistic theory
3. Concession theory
4. Bracket theory
5. Purpose theory

ADMINISTRATION OF JUSTICE
Punishment according to dictionary- involves the infliction of pain or forfeiture, it is infliction
of penalty. chastisement or castigation by the judicial arm of the state. If the sole purpose behind
punishment is to cause physical pain to the wrongdoer, it serves little purpose. However, if punishment
is such as leads him to realize the gravity of the offence committed by him, and to repent at once for
it, it may be said to have achieved its desired effect.
There are many theories of concerning the justification of punishment. It is clear that the
philosophy of punishment will affect the actual standards of liability laid down by the law.
The ends of criminal justice are four in number, and in respect of the purpose so served by it,
punishment may be distinguished as
1 . Deterrents
2. Preventive
3. Reformative
4. Retributive.
1. Deterrent theory:
Punishment is before all things deterrent and the chief end of the law of crime is to make the
evil-doer an example and warning to all who are like minded with him. According to this theory,
offences are result of a conflict between the interests of the wrong-doer and those of society.

131 JURISPRUDENCE
 The aim of punishment is to dissolve the conflict of interests by making every offence. This
theory has been criticized on the ground that it is ineffective in cases where crime is committed
under severe mental stress. In such cases to punish the wrongdoer to deter him is meaningless.
2. Preventive theory:
Punishment is, preventive or disabling. Its primary and general purpose being to deter by fear,
its secondary and special purpose is wherever possible and expedient, to prevent a repetition
by wrongdoer by the disablement of the offender. The most effective mode of disablement is
the death penalty, which in practice, in time of peace, is confined to the crime of murder, though
it is legally possible for treason and certain form of piracy and arson.
A similar secondary purpose exists in sub penalties as imprisonment and forfeiture of office,
the suspension of driving licenses and in the old penalty of exile. The aim of this theory is not
to repeat the crime the crime but this theory takes no note of criminal. It prefers to disable
the wrong-doer from committing any more crime but it ignores one of the basic object of the
criminal law, i.e. to reform the criminal.
3. Reformative theory:
A crime is committed as a result of the conflict between the character and the motive of the
criminal. One may commit a crime either because the temptation of the motive is stronger or
because the restrain imposed by character is weaker.
The deterrent theory by showing that crime never pays separate the motive., while the
reformative theory seems to strengthen the character of the man so that he may not become
victim of his own temptation. This theory would consider punishment to be curative or to perform
the function of medicine.
According to this theory crime is like a disease .. This theory maintains that you can cure by
killing.
The ultimate aim of reformists is to try to bring about a change in the personality and character
of the offender, so as to make him a useful member of society.
4. Retributive theory:
Retributive punishment, in the only sense in which it is admissible in any rational system of
administering justice, is that which serves for the satisfaction of that emotion of retributive
indignation which in all healthy communities is strived up by injustice. This was formerly based
on theory of revenge.- tooth for tooth and eye for eye.
The idea behind the retributive punishment is that of the restoration of the moral character,
the appraisement of the disturbed conscience of society itself and the maintenance of the
sovereign power of the state which becomes aggrieved when a crime is committed and inflicts
punishment to set matters of right. Though the system of private revenge has been suppressed,
the instincts and emotion that lay at the root of these feelings are yet present in human nature.
Therefore, according to this moral satisfaction that the society obtains from punishment can
not be ignored.
On the other hand, if the criminal is treated very leniently or even in the midst of luxury, as the
reformative theory would have it, the spirit of vengeance would not be satisfied and it might find
its way through private vengeance. According to this theory eye for eye and tooth for tooth is
deemed to be a complete and really sufficient rule of natural justice.
In the last, we can easily say that the only logical inference from the reformative theory, if
akin itself, is that they should be abandoned in despairs as no fit subject for penal discipline.
The deterrent and disabling theories on the other hand, regard such offenders as being pre-
eminently those with whom the criminal law is called upon to deal.
The application of purely reformative theory, therefore would lead to astonishing and inadmissible
results. The perfect idea of criminal justice is based on neither reformative nor the deterrent
principle exclusively, but the result of comprise between them.
In this it is the deterrent principal which possesses predominant influence. It will not be out of
place to mention here that Gandhiji hate the sin and not the sinner, is merely a philosophical
assertion and can not furnish a practical guide in the administration of justice.

132 JURISPRUDENCE
 3. LAW OF CONTRACTS - I
INDIAN CONTRACT ACT, 1872
Commencement and applicability:-
Short Title, Extent and commencement :
Prior to this English law of contract was followed in India.
It has XI chapters.
Law of contract creates jus in personam and not jus in rem.
The Indian Contract Act consists of the following two parts:
(a) General principles of the Law of Contract.
(b) Special kinds of contracts.
The general principles of the Law of Contract are contained in Sections 1 to 75 of the
Indian Contract Act. These principles apply to all kinds of contracts irrespective of their
nature.
Special contracts are contained in Sections 124 to 238 of the Indian Contract Act. These
special contracts are Indemnity, Guarantee, Bailment, Pledge and Agency.
Sources of Mercantile Law in India
English Mercantile
Indian Statutes Law
Judicial Decisions
Customs and Usages
INDIAN CONTRACT ACT, 1872
The Indian Contract Act 1872 Applicable to whole of India except the state of Jammu & Kashmir
First day of September 1872(1st Sept. 1872)

Contracts as Defined by Eminent Jurists

1. Every agreement and promise enforceable at law is a contract. - Pollock
2. A Contract is an agreement between two or more persons which is intended to be
enforceable at law and is contracted by the acceptance by one party of an offer made to
him by the other party to do or abstain from doing some act. - Halsbury
3. A contract is an agreement creating and defining obligation between the parties
- Salmond
ESSENTIALS OF A VALID CONTRACT
All agreements are contracts, if they are made -
by free consent of the parties, competent to contract,
for a lawful consideration and
with a lawful object, and
not hereby expressly declared to be void. - Sec.10.
Offer + acceptance = Promise
+
consideration
=
Agreement
+
enforceability By Law

133 LAW OF CONTRACTS - I
Contract
1. Proper offer and proper acceptance with intention to create legal relationship: Cases:-
A and B agree to go to a movie on coming Sunday. A does not turn in resulting in loss of Bs time B
cannot claim any damages from B since the agreement to watch a movie is a domestic agreement
which does not result in a contract.
In case of social agreement there is no intention to create legal relationship and there the
is no contract (Balfour v. Balfour)
In case of commercial agreements, the law presume that the parties had the intention to
create legal relations.
[an agreement of a purely domestic or social nature is not a contract ]
2. Lawful consideration :- consideration must not be unlawful, immoral or opposed to the
public policy.
3. Capacity:- The parties to a contract must have capacity (legal ability) to make valid contract.
Section 11:- of the Indian contract Act specify that every person is competent to contract
provided.
(i) Is of the age of majority according to the Law which he is subject, and
(ii) Who is of sound mind and
(iii) Is not disqualified from contracting by any law to which he is subject.
Person of unsound mind can enter into a contract during his lucid interval.
An alien enemy, foreign sovereigns and accredited representative of a foreign state.
Insolvents and convicts are not competent to contract.
4. Free consent :- consent of the parties must be genuine consent means agreed upon
something in the same sense i.e. there should be consensus - ad - idem. A consent is said to be free
when it is not caused by coercion, undue influence, fraud, misrepresentation or mistake.
5. Lawful object :
The object of agreement should be lawful and legal.
Two persons cannot enter into an agreement to do a criminal act.
Consideration or object of an agreement is unlawful if it
(a) is forbidden by law; or
(b) is of such nature that, if permitted, would defeat the provisions of any law; or
(c) is fraudulent; or
(d) Involves or implies, injury to person or property of another; or
(e) Court regards it as immoral, or opposed to public policy.
6. Possibility of performance:
The terms of the agreement should be capable of performance.
An agreements to do act, impossible in itself cannot be enforced.
Example : A agrees to B to discover treasure by magic. The agreement is void because the act
in itself is impossible to be performed from the very beginning.
7. The terms of the agreements are certain or are capable of being made certain [29]
Example : A agreed to pay Rs.5 lakh to B for ultra-modern decoration of his drawing room. The
agreement is void because the meaning of the term ultra - modern is not certain.
8. Not declared Void
The agreement should be such that it should be capable of being enforced by law.
Certain agreements have been expressly declared illegal or void by the law.
9. Necessary legal formalities
A contract may be oral or in writing.
Where a particular type of contract is required by law to be in writing and registered, it must
comply with necessary formalities as to writing, registration and attestation.

134 LAW OF CONTRACTS - I
 If legal formalities are not carried out then the contract is not enforceable by law.
Example : A promise to pay a time-barred debt must be in writing.
Agreement is a wider term than contract where as all contracts are agreements. All
agreements are not contracts.
The various agreements may be classified into two categories:
Agreement not enforceable by law / Agreement enforceable by law
All Contracts are Agreements, but all Agreements are not Contracts
Any essential of a valid contract is not available.
Distinction between Contract & Agreement
1. Section : Sec. 2(h) Sec. 2(e)
2. Definition : A contract is an agreement Every promise or every set of
enforceable by law. promises forming consideration
for each other is an agreement.
3. Enforceability : Every contract is enforceable. Every promise is not enforceable.
4. Inter-relationship : A contract includes an agreement. An agreement does not include
a contract.
5. Scope : The scope of a contract is limited, Its scope is relatively wider, as it
as it includes only commercial includes both social agreement
agreements. and commercial agreements.

6. Validity : Only legal agreements are called An agreement may be both legal
contracts. and illegal.
7. Legal Obligation : Every contract contains a legal It is not necessary for every
obligation. agreement to have legal
obligation.

TYPES OF CONTRACTS :
b. Unilateral contract
On the Basis of creation
(a) Express contract :- A contract made by word
a. Express contract
b. Implied contract
c. Tacit contract
d. Quasi contract
e. E contract
On the Basis of Validity
a. Valid contract
b. Void contract
c. Voidable contract
d. Unenforceable contract
e. Illegal contract
On the Basis of execution
a. Executed contract
b. Executory contract
c. Partly executed and party executory

135 LAW OF CONTRACTS - I
 On the Basis of Liability
a. Bilateral contract
b. Unilateral contract
c. Express contract :- A contract made by word spoken or written. According to sec 9 in so
for as the proposal or acceptance of any promise is made in words, the promise is said
to be express.
d. Example : A says to B will you purchase my bike for Rs.20,000? B says to A Yes.
e. (b) Implied contract :- A contract inferred by
The conduct of person or
The circumstances of the case.
f. By implied contract means implied by law (i.e.) the law implied a contract through parties
never intended. According to sec 9 in so for as such proposed or acceptance is made
otherwise than in words, the promise is said to be implied. Example: A stops a taxi by
waving his hand and takes his seat. There is an implied contract that A will pay the
prescribed fare.
c. Tacit contract: -
A contract is said to be tacit when it has to be inferred from the conduct of the parties. Example
obtaining cash through automatic teller machine, sale by fall hammer of an auction sale.
d. Quasi Contracts are contracts which are created -
Neither by word spoken
Nor written
Nor by the conduct of the parties.
But these are created by the law.
Example :
If Mr. A leaves his goods at Mr. Bs shop by mistake, then it is for Mr. B to return the goods or
to compensate the price. In fact, these contracts depend on the principle that nobody will be
allowed to become rich at the expense of the other.
(e). e - Contract: An e - contract is one, which is entered into between two parties via the
internet.
On the basis of validity
(a) Valid contract:- An agreement which satisfies all the requirements prescribed by law
On the basis of creation
(b) Void contract (2(j)):- a contract which ceases to be enforceable by law because void
when of ceased to be enforceable
When both parties to an agreement are:-
Under a mistake of facts [20]
Consideration or object of an agreement is unlawful [23]
Agreement made without consideration [25]
Agreement in restraint of marriage [26]
Restraint of trade [27]
Restrain legal proceeding [28].
Agreement by wage of wager [30]
(c) Voidable contract 2(i) :- an agreement which is enforceable by law at the option of
one or more the parties but not at the option of the other or others is a voidable
contract.
Result of coercion, undue influence, fraud and misrepresentation.

136 LAW OF CONTRACTS - I
 (d) Unenforceable contract :- where a contract is good in substance but because of some
technical defect i.e. absence in writing barred by imitation etc one or both the parties
cannot sue upon but is described as unenforceable contract.
Example: Writing, registration or stamping.
Example: An agreement which is required to be stamped will be unenforceable if the same is
not stamped at all or is under stamped.
(e) Illegal contract:- It is a contract which the law forbids to be made. All illegal agreements
are void but all void agreements or contracts are not necessary illegal.
Contract that is immoral or opposed to public policy are illegal in nature.
Unlike illegal agreements there is no punishment to the parties to a void agreement.
Illegal agreements are void from the very beginning but sometimes valid contracts may
subsequently becomes void.
On the basis of execution
(a) Executed contract :- A contract in which both the parties have fulfilled their obligations
under the contract.
Example: A contracts to buy a car from B by paying cash, B instantly delivers his car.
(b) Executory contract:- A contract in which both the parties have still to fulfilled their
obligations.
Example : D agrees to buy Vs cycle by promising to pay cash on 15th July. V agrees to
deliver the cycle on 20th July.
(c) Partly executed and partly executory:- A contract in which one of the parties has
fulfilled his obligation but the other party is yet to fulfill his obligation.
Example : A sells his car to B and A has delivered the car but B is yet to pay the price.
For A, it is executed contract whereas it is executory contract on the part of B since the
price is yet to be paid.
On the basis of liability for performance:-
(a) Bilateral contract:- A contract in which both the parties commit to perform their respective
promises is called a bilateral contract.
Example : A offers to sell his fiat car to B for Rs.1,00,000 on acceptance of As offer by B, there
is a promise by A to Sell the car and there is a promise by B to purchase the car there
are two promise.
(b) Unilateral contract:- A unilateral contract is a one sided contract in which only one party
has to perform his promise or obligation party has to perform his promise or obligation to
do or forbear.
Example :- A wants to get his room painted. He offers Rs.500 to B for this purpose B says to
A if I have spare time on next Sunday I will paint your room. There is a promise by A to
pay Rs 500 to B. If B is able to spare time to paint As room. However there is no promise
by B to Paint the house. There is only one promise.
Difference Between Void and Voidable Contract
Matter Void contract Voidable contract
Definition It means contract which cease It means an agreement
to be enforceable. enforceable by law by one or
more parties.
Nature Valid when made subsequently It remains voidable until
becomes unenforceable. cancelled by party.
Rights or remedy No legal remedy. Aggrieved party has remedy to
cancel the contract.

137 LAW OF CONTRACTS - I
Performance of contract Party cant demand If aggrieved party does not
performance of contract cancel it within reasonable
time, performance
Reason Due to change in law or If consent is not obtained freely.
circumstances
Damages Not available Can demand in certain cases.

Difference between Void and illegal Agreement

Matter Void agreement Illegal agreement
What Void agreement is not prohibited It is prohibited by law.
by law.
Effect on collateral transaction Enforced Not enforced.
Punishment No Yes
Void ab initio May not be void ab initio Always void ab-initio
Contract of record:
It is either a judgment of a court or a Recognizance.
A Judgment is an obligation imposed by a Court upon one or more persons in favour of another
or others. In real sense, it is not a contract, as it is not based upon any agreement between two
parties.
Recognizance is a Bond by which a person undertakes before a Court of Magistrate to observe
some condition e.g. to appear on summons.
Contracts of record derive their binding force from the authority of the Court.
Contract under Seal:
(a) A contract under Seal is one which derives its binding force from its form alone.
(b) It is in writing and signed, sealed and delivered by the parties.
(c) It is also called a Deed or a Specialty contract.
OFFER
Offer(i.e. Proposal) [section 2(a)] :- 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 either
to such act or abstinence, he is said to make a proposal.
To form an agreement, there must be at least two elements - one offer and the other acceptance.
Thus offer is the foundation of any agreement.
The person who makes an offer is called Offeror or Promisor and the person to whom
the offer is made is called the Offeree or Promised.
Example
Mr. A says to Mr. B, Will you purchase my car for Rs.1,00,000? In this case, Mr. A is making
an offer to Mr. B. Here A is the offeror and B is the offeree.
Essentials elements of an offer:-
(1) There must be two parties.
(2) The offer must be communicated to the offeree.
(3) The offer must show the willingness of offeror. Mere telling the plan is not offer.
(4) The offer must be made with a view to obtaining the assent of the offeree.
(5) A statement made jokingly does not amount to an offer.
(6) An offer may involve a positive act or abstinence by the offeree.
(7) Mere expression of willingness does not constitute an offer.
A tells B that be desires to marry by the end of 2008, if does not constitute an offer of marriage
by A to B A further adds will you marry me. Then it become offer.

138 LAW OF CONTRACTS - I
Legal Rules as to valid offer:-
1. Offer must be communicated to the offeree: The offer is completed only when it has been
communicated to the offeree. Until the offer is communicated, it cannot be accepted. Thus, an offer
accepted without its knowledge, does not confer any legal rights on the acceptor.
Example:
As nephew has absconded from his home. He sent his servant to trace his missing nephew.
When the servant had left, A then announced that anybody who discovered the missing boy,
would be given the reward of Rs.500. The servant discovered the missing boy without knowing
the reward. When the servant came to know about the reward, he brought an action against A
to recover the same. But his action failed. It was held that the servant was not entitled to the
reward because he did not know about the offer when he discovered the missing boy. [Lalman
Shukla v. Gauri Datt (1913) All LJ 489]
2. The offer must be certain, definite and not vague, unambiguous and uncertain.
Example:
A offered to sell to B. a hundred tons of oil. The offer is uncertain as there is nothing to show
what kind of oil is intended to be sold.
3. The offer must be capable of creating legal relation. A social invitation is not create legal
relation.
Example:
A invited B to a dinner and B accepted the invitation. It is a mere social invitation. And A will not
be liable if he fails to provide dinner to B.
4. Offer may be express and implied
The offer may be express or implied; An offer may be express as well as implied. An offer which
is expressed by words, written or spoken, is called an express offer. The offer which is expressed by
conduct, is called an implied offer [Section 9].
5. Communication of complete offer
Example:
A offered to sell his pen to B for Rs.1,000. B replied, I am ready to pay Rs.950. On As refusal
to sell at this price, B agreed to pay Rs.1,000. held, there was not contract at the acceptance to
buy it for Rs.950 was a counter offer, i.e. rejection of the offer of A. Subsequent acceptance to
pay Rs.1,000 is a fresh offer from B to which A was not bound go give his acceptance.
6. Counter offer - A counter offer amounts to rejection of the original offer
7. Cross offer do not conclude a contract
8. An offer must not thrust the burden of acceptance on the offeree.
Example:
A made a contract with B and promised that if he was satisfied as a customer he would favorably
consider his case for the renewal of the contract. The promise is too vague to create a legal
relationship.
The acceptance cannot be presumed from silence.
Acceptance is valid only if it is communicated to the offeror.
9. Offer must be distinguished from invitation to offer.
Example:
Menu card of restaurant is an invitation to put an offer.
Example:
Price - tags attached with the goods displayed in any showroom or supermarket is also an
invitation to proposal. If the salesman or the cashier does not accept the price, the or the
cashier does not accept the price, the interested buyer cannot compel him to sell, if he wants
to buy it, he must make a proposal.

139 LAW OF CONTRACTS - I
 Example:
Job or tender advertisement inviting applications for a job or inviting tenders is an invitation to
an offer.
Example
Standing Open and Continuous offer
Counter offer
An advertisement for auction sale is merely an invitation to make an offer and not an offer for
sale. Therefore, an advertisement of an auction can be withdrawn without any notice. The persons
going to the auction cannot claim for loss of time and expenses if the advertisement for auction is
withdrawn.
10. Offeror should have an intention to obtain the consent of the offeree.
11. An answer to a question is not a offer.
Offer Invitation to offer
Show his readiness to enter into a contract, it Person invites offer to make an offer to him.
is called as an offer
Purpose of entering contract Purpose of enter offer
Results in a contract Results in offer.
Example Application filled in by a prospective Example Issue of prospectus by a Company,
applicable to the Institution, a student seeking an education Institution
admission in educational Institution.
KINDS OF OFFER
1. Express offer
2. Implied offer
3. Specific offer
4. General offer
5. Standing Open and Continuous offer
6. Counter offer
7. Cross offer
I. Express offer
When the offeror expressly communicate the offer, the offer is said to be an express offer. The
express communication of the offer may be made by:
Spoken word; Written word
II. Implied offer -
When the offer is not communicated expressly. An offer may be implied from:- The conduct of
the parties or The circumstances of the case
III. Specific:
It means an offer made in
(a) a particular person or
(b) a group of person: It can be accepted only by that person to whom it is made.
Communication of acceptance is necessary in case of specific offer.
IV. General offer:
It means on offer which is made to the public in general.
General offer can be accepted by anyone.
If offeree fulfill the term and condition which is given in offer then offer is accepted.
Communication of acceptance is not necessary in case of general offer

140 LAW OF CONTRACTS - I
 Example
Company advertised that a reward of Rs.100 would be given to any person who would suffer
from influenza after using the medicine (Smoke balls) made by the company according to the printed
directions.
One lady, Mrs, Carlill, purchased and used the medicine according to the printed directions of
the company but suffered from influenza, She filed a suit to recover the reward of Rs.100. The court
held that there was a contract as she had accepted a general offer by using the medicine in the
prescribed manner and as such is entitled to recover the reward from the company.
Carlill v Carbolic Smoke Ball Co. 1893
V. Cross offer:-
When two parties exchange identical offers in ignorance at the time of each others offer the
offers are called cross offer.
Two cross offer does not conclude a contract. Two offer are said to be cross offer if
1. They are made by the same parties to one another
2. Each offer made in ignorance of the offer made by the
3. The terms and conditions contained in both the offers are same.
Example : A offers by a letter to sell 100 tons of steel at Rs.1,000 per ton. On the same day, B
also writes to A offering to buy 100 tons of steel at Rs.1,000 per ton.
When does a contract come into existence: - A contract comes into existence when any of
the parties, accept the cross offer made by the other party.
VI. Counter offer :-
When the offeree give qualified acceptance of the offer subject to modified and variations in the
terms of original offer. Counter offer amounts to rejection of the original offer.
Legal effect of counter offer:-
(1) Rejection of original offer
(2) The original offer is lapsed
(3) A counter offer result in a new offer.
In other words an offer made by the offeree in return of the original offer is called as a counter
offer.
Example:
A offered to sell his pen to B for Rs.1,000. B replied, I am ready to pay Rs.950. On As refusal
to sell at this price, B agreed to pay Rs.1,000. Held, there was not contract as the acceptance
to buy it for Rs.950 was a counter offer, i.e. rejection of the offer of A. Subsequent acceptance
to pay Rs.1,000 is a fresh offer from B to which A was not bound to give his acceptance.
VII. Standing, open and continuous offer:-
An offer is allowed to remain open for acceptance over a period of time is known as standing,
open or continuous offer. Tender for supply of goods is a kind of standing offer.
Example:
When we ask the newspaper vendor to supply the newspaper daily. In such case, we do not
repeat our offer daily and the newspaper vendor supplies the newspaper to us daily. The offers
of such types are called Standing Offer.
LAPSE OF AN OFFER
An offer should be accepted before it lapses (i.e. comes to an end). An offer may come to an
end in any of the following ways stated in Section 6 of the Indian Contract Act:
1. By communication of notice of revocation: An offer may come to an end by communication
of notice of revocation by the offeror. It may be noted that an offer can be revoked only before its
acceptance is complete for the offeror. In other words, an offeror can revoke his offer at any time

141 LAW OF CONTRACTS - I
before he becomes bound by it. Thus, the communication of revocation of offer should reach the
offeree before the acceptance is communicated.
2. By lapse of time : Where time is fixed for the acceptance of the offer, and it is not accepted
within the fixed time, the offer comes to an end automatically on the expiry of fixed time. Where no
time for acceptance is prescribed, the offer has to be accepted within reasonable time. The offer
lapses if it is not accepted within that time. The term reasonable time will depend upon the facts and
circumstances of each case.
3. By failure to accept condition precedent: Where, the offer requires that some condition
must, be fulfilled before the acceptance of the offer, the offer lapses, if it is accepted without fulfilling
the condition.
4. By the death or insanity of the offeror: Where, the offeror dies or becomes, insane, the
offer comes to an end if the fact of his death or insanity comes to the knowledge of the acceptor before
he makes his acceptance. But if the offer is accepted in ignorance of the fact of death or insanity of
the offeror, the acceptance is valid. This will result in a valid contract, and legal representatives of the
deceased offeror shall be bound by the contract. On the death of offeree before acceptance, the offer
also comes to an end by operation of law.
5. By counter - offer by the offeree: Where, a counter - offer is made by the offeree, and then
the original offer automatically comes to an end, as the counter - offer amounts to rejections of the
original offer.
6. By not accepting the offer, according to the prescribed or usual mode: Where some
manner of acceptance is prescribed in the offer, the offeror can revoke the offer if it is not accepted
according to the prescribed manner.
7. By rejection of offer by the offeree: Where, the offeree rejects the offer, the offer comes to
an end. Once the offeree rejects the offer, he cannot revive the offer by subsequently attempting to
accept it. The rejection of offer may be express or implied.
8. By change in law: Sometimes, there is a change in law which makes the offer illegal or
incapable of performance. In such cases also, the offer comes to an end.
ACCEPTANCE
Acceptance 2(b):- When the person to whom the proposal is made, signifies his assent there
to , the proposal is said to be accepted.
1. Acceptance must be absolute and unqualified
Example: A offers to sell his house to B for rupees two lakhs. B accepts the offer and promises
to pay the price in four installments. This is not the acceptance as the acceptance is with variation in
the terms of the offer.
2. Acceptance must be communicated:
Mere mental acceptance is no acceptance, But there is no requirement of communication of
acceptance of general offer.
Example: The manager of Railway Company received a draft agreement relating to the supply
of coal. The manager marked the draft with the words Approved and put the same in the
drawer of his table and forgot all about it. Held, there was no contract between the parties as the
acceptance was not communicated. It may however, be pointed out that the Court construed
a conduct to parties as railway company was accepting the supplies of coal from time to time.
3. Manner of acceptance
General rule say that it must be as per the manner prescribed by offeror. If no mode is prescribed
in which it can be accepted, then it must be in some usual and reasonable manner.
4. If there is deviation in communication of an acceptance of offer, offeror may reject such
acceptance by sending notice within reasonable time. If the offeror doesnt send notice of rejection,
he accepted acceptance of offer.
Example: A offers B and indicates that the acceptance be given by telegram. B sends his
acceptance by ordinary post. It is a valid acceptance unless A insists for acceptance in the prescribed
manner.
5. Acceptance of offer must be made by offeror.

142 LAW OF CONTRACTS - I
 Example : A applied for the headmastership of a school. He was selected by the appointing
authority but the decision was not communicated to him. However, one of members in his individual
capacity informed him about the selection. Subsequently, the appointing authority cancelled its
decision. A sued the school for breach of contract. The Court rejected the As action and held
that there was no notice of acceptance. Information by unauthorized person is as insufficient as
overhearing from behind the door.
6. Acceptance must be communicated to offeror
7. Time limit for acceptance
If the offer prescribes the time limit, it must be accepted within specified time.
If the offer does not prescribe the time limit, it must be accepted within reasonable time.
Example : A applied (offered) for shares in a company in early June. The allotment (Acceptance)
was made in late November. A refused to take the shares. Held, A was entitled to do so as the
reasonable time for acceptance had elapsed.
8. Acceptance of offer may be expressly (by words spoken or written); or impliedly (by
acceptance of consideration); or by performance of conditions (e.g.in case of a general offer)
9. Mere silence is not acceptance of the offer
Example: A offers to B to buy his house for Rs.5 lakhs and writes If I hear no more about
it within a week, I shall presume the house is mine for Rs.5 lakhs. B does not respond. Here, no
contract is concluded between A and B.
10. However, following are the two exceptions to the above rule. It means silence amounts as
acceptance of offer.
Where offeree agrees that non - refusal by him within specified time shall amount to acceptance
of offer.
When there is custom or usage of trade which specified that silence shall amount to acceptance.
11. Acceptance subject to the contract is no acceptance
If the acceptance has been given subject to the contract or subject to approval by certain
persons, it has no effect at all. Such an acceptance will not create binding contract until a formal
contract is prepared and signed by all the parties.
1. In case of acceptance by post
Where the acceptance is given by post, the communication of acceptance is complete as
against the proposer when the letter of acceptance is posted. Thus, mere posting of letter of
acceptance is sufficient to conclude a contract. However, the letter must be properly addressed
and stamped.
2. Delayed or no delivery of letter
Where the letter of acceptance is posted by the acceptor but it never reaches the offeror, or
it is delayed in transit, it will not affect the validity of acceptance. The offeror is bound by the
acceptance.
3. Acceptance by telephones telex or Fax
If the communication of an acceptance is made by telephone, tele-printer, telex, fax machines,
etc, it completes when the acceptance is received by the offeror. The contract is concluded as
soon as the offeror receives the acceptance.
4. The place of Contract
In case of acceptance by the post, the place where the letter is posted is the place of contract.
Where the acceptance is given by instantaneous means of communication (telephone, fax,
tele-printer, telex etc.), the contract is made at the place where the acceptance is received,
5. The time of Contract
In case of acceptance by post, the time of posting the letter of acceptance to the time of

143 LAW OF CONTRACTS - I
 contract. But in case of acceptance by instantaneous means of communication, the time of
contract is the time when the offeror gets the communication, the time of contract is the time
when offeror gets the communication of acceptance.
6. Communication of acceptance in case of an agent.
Where the offer has been made through an agent, the communication of acceptance is
completed when the acceptance is given either to the agent or to the principal. In such a case,
if the agent fails to convey the acceptance received from offeree, still the principal is bound by
the acceptance.
7. Acceptance on loudspeakers
General Rules as to Communication of Acceptance
Acceptance given on loudspeaker is not a valid a acceptance.
Particulars Offer Acceptance
When Communication is Communication of a proposal is As against the offerer/
complete [Sec.4] complete when it comes to the Proposer: When it is put in a
knowledge of the person to whom course of transmission to him
it is made. so as to be out of the power of
Example : A proposes by letter, to the Acceptor.
sell his Tonga to B at Rs.10,000. As against the Offeree/
Communication of the proposal Acceptor: When it comes to
is complete when B receives the the knowledge of the Proposer.
letter. (See separate question above)

When Revocation can Offer/proposal may be revoked at Acceptance may be revoked

be made [Sec.5] any time before the communication
of its acceptance is complete,
as against the proposer, but not
afterwards.
Example: U sends a letter to Y
proposing to sell his land. Y sends
his acceptance by post. U can
revoke the offer at any time before
or at the moment when Y posts
his letter of acceptance, but not
afterwards. afterwards.
When communication of As against the offeror: When it is
revocation is complete put into a course of transmission
[Sec.4] to the person to whom it is made,
so as to be out of the power of the
person who makes it.
Example : S proposes to H by
letter. H sends his acceptance
by letter. Suddenly, S sends
a telegram revoking his offer.
Revocation is complete as against
S when the telegram is dispatched;
Hs revocation of acceptance is
complete when S receives such
telegram.
at any time before the
communication of acceptor, but
not afterwards.
Example: T sends to S by
post, an offer to sell his cycle. S
sends his acceptance via post,
S could revoke his acceptance,
upto any time before or at the
moment when he posts his
letter of acceptance, but not
As against the Offeree:
When it comes to his knowledge.
Example : Communication
of revocation is complete
only when H receives the
telegram. When H revokes his
acceptance, it is complete when
he dispatches the telegram.

Accepted is lighted match, while offer is a train of gun powder- Sir willian Anson

144 LAW OF CONTRACTS - I
 CAPACITY TO CONTRACT
Parties unable to Enter into a contract
1. Minor
2. A person of unsound mind, Person disqualified by law
3. Lunatic Idiot, Drunken and Intoxicated
4. Alien enemy, Foreign Sovereign, Convict, Corporation and Company Insolvent
1. Who is competent to make a contract:-
Section 11. Every person is competent to contract who is of age of majority according to the
Law to which he is subject, who is of sound mind and not is disqualified from contracting by any
Law to which he is subject.
Age of majority:- According to section 3 of Indian majority Act-1875 every person domiciled
in India attains majority on the completion of 18 years of age.
Exception: - 21 years- in the following cases.
a. Where a guardian of a minors person or property is appointed under the Guardian and
wards Act, 1890.
b. Where minors property has passed under the superintendence of the court of wards.
Position of Agreements by Minor:-
1. Validity:
- An agreement with a minor is void-ab-initio [Mohiribibee v. Dharm das Ghose]
Example :
Mr. D, a minor, mortgaged his house for Rs.20000 to a money - lender, but the mortgagee, i.
e. the money - lender, paid him a sum of Rs.8000. Subsequently, the minor sued for setting
aside the mortgage. Held that the contract was void, as Mr. D was minor and therefore he is not
liable to pay anything to the lender.
2. If a minor has received any benefit under a void contract, he cannot be asked to return the
same.
3. Fraudulent representation by a minor- no difference in the status of agreement. The contract
remains void.
4. A minor with the consent of all the partners, be admitted to the benefits of an existing partnership.
5. Contracts entered into by minors are void-ab-initio. Hence no specific performance can be
enforced for such contracts.
6. Minors parent/guardians are not liable to a minors creditor for the breach of contract by the
minor.
7. A minor can act as an agent but not personally liable. But he cannot be principal.
8. A minor cannot become shareholder of a the company except when the shares are fully paid
up and transfer by share.
9. A minor cannot be adjudicated as insolvent.
10. Can enter into contracts of Apprenticeship, Services, Education, etc:
(a) A minor can enter into contract of apprenticeship, or for training or instruction in a special
art, education, etc.
(b) These are allowed because it generates benefits to the Minor.
11. Guarantee for and by minor
A contract of guarantee in favour of a minor is valid. However, a minor cannot be a surety
in a contract of guarantee. This is because, the surety is ultimately liable under a contract of
guarantee whereas a minor can never be held personally liable.
12. Minor as a trade union member
Any person who has attained the age of fifteen years may be a member of registered trade
union, provided the rules of the trade union allow so. Such a member will enjoy all the rights of
a member.

145 LAW OF CONTRACTS - I
Contract for the benefit of a minor.
Contract by Guardian
Benefit of a minor by his guardian or manager of his estate.
a. within the scope of the authority of the guardian.
b. Is for the benefit of the minor.
Contract for supply of Necessaries.
Example :
Food, clothes, bed, shelter, shoes, medicines and similar other things required for the
maintenance of his life or for the life of his dependents, expenses for instruction in grade or arts;
expenses for moral religions or intellectual education, funeral expenses of his deceased family
members, marriage expenses of a dependent female member in the family; expenses incurred
in the protection of his property or personal liberty, Diwali pooja expenses, etc. have been held
by courts to be necessaries of life. However, the things like earrings for a male, spectacles
for a blind person or a wild animal cannot be considered as necessaries.
Liability for tort: A minor is liable for a tort, i.e., civil wrong committed by him.
Example :
A, a 14 - year - old boy drives a car carelessly and injures B. He is liable for the accident
i.e., tort.
EXCEPTION
PERSON OF UNSOUND MIND
Lunatic Idiot Drunken and Intoxicated
Person of Unsound Mind
A person who is usually of unsound mind, but occasionally of sound mind can make a contract
when he is of sound mind. Similarly, a person who is usually of sound mind, but occasionally of
unsound mind, may not make a contract when he is of unsound mind.
At time of entering into a contract, a person must be sound mind.
Law presumes that every person is of sound mind unless otherwise it is proved before court.
An agreement by a person of unsound mind is void. The following are categories of a person
considered as person of a unsound mind.
An idiot
An idiot is a person who is congenital (by birth) unsound mind. His incapacity is permanent
and therefore he can never understand contract and make a rational judgment as to its effects
upon his interest. Consequently, the agreement of an idiot is absolutely void ab initio. He is not
personally liable even for the payment of necessaries of life supplied to him.
Delirious persons
A person delirious from fever is also not capable of understanding the nature and implications
of an agreement. Therefore, he cannot enter into a contract so long as delirium lasts.
Hypnotized persons
Hypnotism produces temporary incapacity till a person is under the effect of artificial induced sleep.
Mental decay
There may be mental decay or senile mind to old age or poor health. When such person is
not capable of understanding the contract and its effect upon his interest, he cannot enter into
contract.

146 LAW OF CONTRACTS - I
 Lunatic is not permanently of unsound mined
He can enter into contract during lucid intervals i.e., during period when he is of sound mind.
Generally of Occasionally of Capacity to Contract Example
Unsound Mind Sound Mind Can enter into a A patient in a lunatic
Contract when he is of asylum, who is at
Sound Mind. intervals of sound
mind, may contract
during those intervals.
Sound Mind Unsound Mind Cannot make a A sane man, who is
Contract when he is of delirious from fever or
Unsound Mind. who is so drunk that
he cannot understand
terms of a contract
or form a judgment,
cannot contract while
such delirium or
drunkenness lasts.
Drunken person
An agreement made by intoxicated person is void.

PERSON DISQUALIFIED BY LAW

Alien enemy, Foreign Sovereign, Convict, Corporation and Company Insolvent
Person Disqualified by Law
Body corporate or company or corporation
Contractual capacity of company is determined by object clause of its memorandum of
association. Any act done in excess of power given is ultra - virus and hence void.
Alien enemy
An alien is a person who is a foreigner to the land. He may be either an alien friend or an alien
enemy. If the sovereign or state of the alien is at peace with the country of his stay, he is an
alien friend. And if a war is declared between the two countries he is termed as an alien enemy.
During the war, contract can be entered into with alien enemy with the permission of central
government.
Convict cant enter into a contract while he is undergoing imprisonment. But he can enter into
a contract with permission of central government while undergoing imprisonment. After the
imprisonment is over, be becomes capable of entering into contract. Thus the incapacity is only
during the period of sentence.
Insolvent
When any person is declared as an insolvent, his property vests in receiver and therefore,
he cant enter into contract relating to his property. Again he becomes capable to enter into
contract when he is discharged by court.
Foreign sovereigns, diplomatic staff and representative of foreign staff can enter into
valid contract. However, a suit cannot be filed against them, in the Indian courts without the
prior sanction of the central Government.
Only those persons, who are parties to a contract, can sue and be sued upon the contract. This
Rule is called Doctrine of privity of contract. Exception.
Trust:- In case of trust a beneficiary can sue upon the contract.

147 LAW OF CONTRACTS - I
Example:
Third party to a contract cannot sue or a stranger to a contract cannot sue.
A transferred certain properties to B to be held by him in trust for the benefit of C. In this case,
C although not a party to the trust, can sue for the benefits available to him under the trust.
This exception to the rule of Privity of Contract has been recognised in a well known case of
khwaja Mohd. Khan v. Hussaini Begum (1910) 32 All 410.
Family settlement / Marriage contract:- In case of family settlement members who were not
originally party to the contract can also sue upon it.
A female member can force a provision for marriage expenses made on partition of HUF.
Example:
H sued her father - in - law K to recover Rs.15,000 being arrears of allowance called Pin money
payable to her by K under an agreement between K and Hs father, consideration being Hs
marriage to Ks son D. Both H and D were minors at the time of marriage. Held, the promise
can be made enforceable by H.
Provision of marriage expenses of female members of a Joint Hindu Family, entitles the female
member to sue for such expenses on a partition between male members.,
Two brothers, on partition of family joint properties, agreed to invest in equal shares for their
mothers maintenance. Held, the mother was entitled to require her sons to make the investment.
Acknowledgement of liability:- Where a person admits his Liability thereafter if he refused he
will be stopped from denying his liability.
Example
X receives money from Y for paying it to Z. X admits the receipt of that amount to Z. Z can
recover the amount from X, even though the money is due from Y.
Assignment of contract. Assignee (the person to whom benefits of contract are assigned)
can enforce upon the contract..
Contract entered into through an agent.
Covenants running with land.
Stranger to consideration:- Stranger to contract must be distinguished from a stranger to
consideration need not necessarily be provided by the promises it may flow from a third party
also such a person is stranger to consideration,.
(Chinnaya Vs Ramayya).
CONSIDERATION
1. (a) Consideration is a quid pro quo i,e something in return it may be -
(i) some benefit right, interest, loss or profit that may accrue to one party or,
(ii) some forbearance, detriment, loss or responsibility suffered on undertaken by
the other party [Currie V Mussa]
(b) According to Sir Frederick Pollock, consideration is the price for which the promise of
the other is bought and the promise thus given for value is enforceable.
2. Definition [Sec 2(d)]:- when at the desire of the Promisor, the promise of any other
person.
(a) has done or abstained from doing, or [Past consideration]
(b) does or abstains from doing, or [Present consideration]
(c) promises to do or abstain from doing something [Future consideration] such act or
abstinence or promise is called a consideration for the promise.
3. Example
(i) P agrees to sell his car to Q for Rs.50,000 Here Qs Promise to pay Rs50,000 is the
consideration for Ps promise and Ps promise to sell the car is the consideration for Qs
promise to pay Rs.50,000.
(ii) A promises his debtor B not to file a suit against him for one year on As agreeing to
pay him Rs.10,000 more. Here the abstinence of A is the consideration for Bs Promise
to pay.

148 LAW OF CONTRACTS - I
1. Consideration must move at the desire of the promisor.
D constructed a market at the instance of District collector. Occupants of shops promised to
pay D a commission on articles sold through their shops. Held, there was no consideration
because money was not spent by Plaintiff at the request of the Defendants, but at instance of
a third person viz. the Collector and, thus the contract was void. Durga Prasad v. Baldeo
2. Consideration may move from the promisee or any other person who is not a
party to the contract. [Chinnayas Vs Ramayya]
A owed Rs.20,000 to B. A persuaded C to sign a Pro Note in favour of B. C promised B that he
would pay the amount. On faith of promise by C, B credited the amount to As account. Held,
the discharge of As account was consideration for Cs promise. National Bank of Upper India
v. Bansidhar
3. Consideration may be Past, Present, Future:
Under English law, Past consideration is no consideration.
Present consideration :- cash sale
Future or executory consideration:- A Promises to B to deliver him 100 bags of sugar at a future
date . B promise to pay first on delivery.
4. Consideration should be real and not illusory. Illusory consideration renders
the transaction void consideration, is not valid if it is.
(i) Physically impossible
(ii) Legally not permissible
(iii) Uncertain
(iv) illusory (fulfillment of a pre existing obligation)
5. Must be legal:-
Consideration must not be unlawful, immoral or opposed to public policy.
6. consideration need not be adequate. A contract is not void merely because of
the fact that the consideration is inadequate. The law simply requires that contract should
be supported by consideration. So long as consideration exists and it is of some value,
courts are not required to consider its adequacy.
Example:
A agreed to sell a watch worth Rs.500 for Rs.20, As consent to the agreement was freely
given. The consideration, though inadequate will not affect the validity of the contract. However,
the inadequacy of the consideration can be considered in order to know whether the consent
of the promisor was free or not. [Section 25 Explanation II]
7. The performance of an act what one is legally bound to perform is not
consideration for the contract means something other than the promisors existing
obligation -
A contract not supported by consideration is void.
Exceptions to the Rule No consideration. No contract.
1. Written and registered agreements arising out of love and affection:- [25 (1)]
Expressed in writing and registered under law for the time being in force for registration
of document
Natural love and affection
Between parties standing in a near relation to each other
Example:
An elder brother, on account of natural love and affection, promised to pay the debts of
his younger brother. Agreement was put to writing and registered. Held, agreement was
valid.
Exception: Rajlukhy Dabee Vs Bhootnath Mukharjee

149 LAW OF CONTRACTS - I
 Example:
A Hindu husband by a registered document, after referring to quarrels and disagreements
between himself and his wife, promised to pay his wife a sum of money for her maintenance
and separate residence. Held that the promise was unenforceable since natural love and
affection was missing.
2. Promise to compensate [25(2)]
Promise to compensate wholly or in part
Who has already voluntarily done something for the promisor
Ex. Nudo Pacto non oritur actio i,e, an agreement without consideration is void.
Something which the promisor was legally compellable to do.
Example :-
A finds Bs purse and give to him. B Promise to give A Rs.500. This is a valid contract.
3. Promise to pay a time - barred debt. [Sec 25(3)]
A debt barred by limitation can not recovered. Hence, a promise to pay such a debt is
without any consideration.
Can be enforced only when - in writing and sighed by Debtor or his authorized agent.
Examples
A owes B Rs.10,000 but the debt is barred by Limitation Act. A signs a written promise to
pay B Rs.8,000 on account of debt. This is a valid contract.
4. Completed gift- gift do not require any consideration.
5. Agency (185) - According to the Indian contract Act. No consideration is necessary to create
an agency.
6. Bailment (148)- consideration is not necessary to effect a valid bailment of goods. It is Called
Gratuitous Bailment.
7. Remission (63).
8. Charity - If a person promises to contribute to charity and on this faith the promises undertakes
a liability to the extent not exceeding the promised subscription, the contract shall be valid.

FREE CONSENT
Free consent
Consent is said to be free when it is not caused by [ Section 14]
(a) coercion [Section 15]
(b) Undue influence [Section 16]
(c) Fraud [Section 17]
(d) Misrepresentation [ Section 18]
(e) Mistake [Section 20, 21,22]
Effect of absence of Free Consent :-
If consent is through coercion, undue influence, fraud , Misrepresentation the contract is
voidable at the option of party whose consent was not free [19, 19A]
(a) Committing any act which is forbidden by the IPC
(b) Threatening to commit any act which is forbidden by the IPC.
(c) Unlawful detaining of any property or
(d) Threatening to detain any property.
Essential elements of coercion
Above four [a - d]
(e) coercion need not necessarily proceed from party to contract.
(f) Coercion need not necessarily be directed against the other contracting party.
(g) It is immaterial whether the IPC is or is not in force at the time or at the place where the
coercion is employed [Bay of Bengal caption]

150 LAW OF CONTRACTS - I
Effect of threat to file a suit:-
A threat to file a suit (whether civil or criminal) does not amount to coercion unless the suit is on
false charge. Threat to file a suit on false charge is an act forbidden by the IPC and thus will amount
to an act of coercion.
UNDUE INFLUENCE [SECTION 16]
No. Presumption of Domination of will:-
Effect of Threat to commit suicide:- Threat to commit suicide amounted to coercion and the
release deed was example discussed in class.
Therefore voidable. [Chikham Ammiraju v Seshama]
Duress V Coercion
English Law - Duress does not include detaining of property or threat to detain property.
- Duress can be employed only by a party to the contract or his agent.
Effect:- when coercion is employed to obtain the consent of a party the contract is voidable at
the option of the party where consent was obtained by coercion.
A threat to strike by employees in support of their demands is not regarded as coercion. This
is because the threat to strike is not an offence under the I.P.C. it is a right given under the Industrial
Disputes Act.
Detaining property under mortgage: Detention of property by a mortgagee until the payment of
loan does not amount to coercion.
Meaning of undue influence :- dominating the will of the other person to obtain an unfair
advantages over the others.
(a) Where the relation subsisting between the parties must be such that one party is in
position to dominate the will of the other.
(b) The dominant party use his position.
(c) Obtain an unfair advantage over the other .
Presumption of domination of will:-
Circumstances Examples
Where he holds a real or apparent authority over Master and servant, parent and child, Income Tax
the other officer and assesses, principal and a Temporary
Teacher.
Where he stands in a Trust fiduciary (benefit) Trustee and beneficiary Spiritual Guru and his
relation to the other disciples, solicitors and clients. Guardian and
wards
Mental Capacity of a person is temporarily or Relationship between medical attendant and
permanent effected by reason of age, illness or ward.
mental or bodily distress
Effect of undue Influence:- [Section 19A]
When consent to an agreement is caused by undue influence, the contract is voidable at the
option of the party whose consent was so caused.
Burden of Proof:- A contract is presumed to be induced by undue influence if the following
two condition:-
A party has the position to dominate the will of the others
The transaction is unconscionable (unreasonable)
In such a case dominant party is under the burden to prove that undue influence was not
employed.

151 LAW OF CONTRACTS - I
 [Unconscionable transactions:- if transaction appears to unreasonable the dominant party
to prove that there is no undue influence. ]
Any other transaction:- weaker party to prove the influence was employed]
Where some transaction is entered into in the ordinary course of business, but due to certain
contingencies, one party is able to make the other party agree to certain terms and conditions then
it is not undue influence.
Example:
A applies to a banker for a loan at a time when there is stringency in the money market. The
banker declines to make the loan except at an unusually high rate of interest. A accepts the loan on
these terms. This is a transaction in the ordinary course of business, and the contract is not induced
by undue influence.
A spiritual guru induced his chela to donate all his property to the ashram and said that in
return of it, he will certainly get salvation. The chela did the same. Held, that this is a case, of undue
influence so it becomes void.
Induced by undue influence
Burden of Proof - Full disclosure is made to pardanashin women
Pardanashin Women - Understand the contract
- Receipt of competent independent advice .
Dominant party - full disclosure
Price was adequate
Receipt of competent independent advice before entering into contract - weaker party.
Rebutting presumption:-
Contract with Pardanashin woman;-
Undue influence Vs Coercion
Similarities: - Voidable at the option of aggrieved party:-
Coercion (15) Undue Influence (16)
Meaning - using or threat to use physical force Involves use of moral force (mental pressure)
Obtain the consent of party (intention) Obtain an unfair advantage (intention)
Punishment under IPC Not criminally liable
Parties - Stranger Between the parties to the contract
Relationship - Immaterial One party dominate the other party
Voidable at the option of aggrieved party Voidable or court set aside
Benefit - Back Benefit - order of court - Back
FRAUD (17)
The term fraud means to make representation of facts made willfully with a view to deceive
the other party.
Sec.17- fraud means any act committed by a party to a contract or with his connivance or by
his agent with intent to deceive another party there to or his agent or to induce to enter into contract.
Essentials of fraud :-
(a) By a party to the contract
(b) There must be representation - [an opinion a statement of expression - does not fraud]
(c) The representation must be false.
(d) Before conclusion of contract.
(e) The misrepresentation must be made willfully.
(f) The misrepresentation must be made with a view to deceive the other party.

152 LAW OF CONTRACTS - I
 (g) The other party must have actually been deceived.
(h) The other party have suffered a loss.
Fraud - definition include
The suggestion, as to fact, of that which is not true by one who does not believe it to be
true.
The active concealment of a fact by one having knowledge or belief of the fact.
Ex. A furniture dealer conceals the cracks in furniture by polish work.
A promise made without any intention of performing it.
Any other act fitted to deceive.
Effect of Fraud:-
Any such act or omission as the law specially declared to be fraudulent.
Ex:- T bought a cannon from H. It was defective, but H had plugged it. T did not examine
the cannon, but it burst when he used it. Held as the plug had not deceived T, he
was liable to pay for the cannon.
Ex.: Where the representation was true at the time of when it was made but becomes
untrue before the contract is entered into and this fact is known to the party who
made the representation. If must be corrected. If it is not so corrected it will amount
to be fraud.
When the silence amount to fraud:-
(a) General rule:- Mere (only) Silence as to facts likely to affect the willingness of a person to
enter into a contract is not fraud where the circumstances of the case are such that regarding
being had to them. It is duty of the person keeping silence to speak. Such duty arises in the
following two cases.
(1) Duty to speak exists where the parties stand in a fiduciary relationship, e.g. father and son,
guardian and ward, trustee and beneficiary etc. or where contract is a contract of ubberimae
fidei (requiring utmost good faith), e.g. contracts of insurance.
Ex.:- A sells by auction to B a horse which A knows to be unsound. B is As daughter and has
just come of age. Here the relation between the parties would make it As duty to tell B, the
horse is unsound.
(2) When silence itself equivalent to speech. B says to A if you do not deny it I shall assume
that the horse is sound. A say nothing - As silence equivalent to speech. A can held liable to
fraud.
[Half Truth is worse than a blatant: - Example - company pay dividend - in class room]
Sec. 19: A contract induced by fraud is voidable at the option of the party defrauded. Till the
exercise of such option, the Contract is valid.
1. Rescinds of contract
2. Right to insist upon performance
3. Right to claim damages - if he suffered loss.
Exception : The contract is not voidable in the following cases.
When the party whose consent was caused by silence amount to fraud and he has the
means of discovering the truth with ordinary diligence.
When the party give the consent in ignorance of fraud.
When the party after become aware of fraud takes a benefit.
When the parties cant be restored to their original position.
Where interests of third parties intervene before the contract is avoided.

153 LAW OF CONTRACTS - I
 MISREPRESENTATION (SECTION 18)
Misrepresentation is when a party (person) asserts something which is not true though he
believes is to be true. In other words misrepresentation is a false representation made innocently. An
agreement is said to be influenced by misrepresentation if all the following conditions are satisfied.
(a) The party makes a representation of a fact [The representation by a stranger (By anyone
with his connivance or by agent) to the contract does not affect the validity of the contract.
(b) The misrepresentation was made innocently i.e. it was not made with a view to deceive
the other party.
(c) The other party has actually acted believing the misrepresentation to be true.
Misrepresentation include:-
Unjustified statement of facts - positive assertion - Believe true really not true no basis
misrepresentation
Breach of duty.
Inducing other to make mistake as to qualify or nature of subject matter.
(1) Right to Rescind contract:-
Cant do
Discovering the truth with ordinary diligence.
Give consent in ignorance of misrepresentation
Become aware of misrepresentation, takes a benefit
Where an innocent third party before the contract is rescinds acquires consideration
some interest in the property passing under the contract.
Where the parties cant be restored to their original position.
(2) Right to insist upon performance.
Ex.:- Unlike Fraud he cannot sue for damage.
Fraud (17) Misrepresentation (18)
meaning :- wrongful representation is made Meaning - innocently without any intention to
Willfully to deceive the party. Deceive the other party.
Knowledge of falsehood. The person making the wrong statement
The person making the wrong statement does believes it to be true.
not believe it to be true.
Right to claim damage
Means of discovering of truth Cant claim damage
In case of fraud the contract is voidable even In case of misrepresentation the contract is not
though the aggrieved party had the means of voidable if the aggrieved party had the means
discovering the truth with ordinary diligence. of discovering the truth with ordinary diligence....
Exception :- Silence
MISTAKE
Mistake Erroneous Belief about some facts
Mistake of Fact Mistake of Law [21]
Unilateral [22] Bilateral [20] Mistake of Indian Mistake of foreign Law
One party Under Both parties under
Mistake of fact Mistake of facts the contract is valid same as mistake fact
The contract is valid the contract is void
[Not voidable and void] Both parties under mistake
Exception: - Where contract is not valid (void)

154 LAW OF CONTRACTS - I
1. Identity of persons contract with
Ex.:- A woman, falsely misrepresenting herself to be wife of a well known Baron obtained two
pearl necklaces from a firm of jewelers on the pretext of showing them to her husband
before buying. She pledged them with a broker who took them in good faith. Held that
there was no contract between jeweler and woman and even an innocent buyer or a
broker did not get a good title. Broker must return necklaces to jeweler. Jeweler intended
to deal not with her but with quite a different person, i.e., wife of a Baron.
2. As the nature of the contract
Ex.:- Illiterate man sign Bill of exchanges by means of false, representation that it was a mere
guarantee. It was held that he was not liable for bill of exchange because never intended
to sign the bill of exchange
Bilateral Mistakes:-
Subject matter Possibility
Existence Quantity Quality Prices Identity Title Legal Physical
(a) It is forbidden by law - law would also include the rules regulations, notifications etc. or issued
under the authority given by a statute.
Ex.:- A sold liquor without license to B. The sale is unlawful as the sale of liquor without license
is forbidden by the law, i.e., The Excise Act. Hence, A cannot recover the price.
Ex.:- a Hindu already married and his wife alive entered into a marriage agreement with Y
an unmarried girl. The agreement is void because the second marriage is forbidden by
Hindu Law.
(b) If it defeats the Provisions of any Law.
- not directly prohibited by any Law
Ex.:- As estate is sold for arrears of revenue under the provision defaulter is prohibited from
purchasing the estate upon an understanding with A becomes the purchaser and agrees
to convey the estate to A . Upon receiving from him the price which B has paid. The
agreement is void.
(c) If it is Fraudulent
Ex.:- Object or consideration of an agreement is fraudulent. An agreement with such an object
or consideration is unlawful and void.
(d) If it involves or Implies injury to a person or property of another.
Ex. :- Where it create injury to a person or to the property of another. An agreement with such
an object or consideration is unlawful and void.
(e) If the court regards it as immoral.
X gave Rs. 10,000 to Y a married woman to obtain a divorce from her husband. X agrees
to marry when divorce taken. X would not recover the amt.
1. Partially unlawful Object or consideration [Sec. 24]: An Agreement is void if -
(a) any part of a single consideration for one or more objects is unlawful; or
(b) any one or any part of one of several consideration for a single object, is unlawful.
2. Example: B is a licensed manufacturer of permitted chemicals. A promise B to supervise
B s business and combine it with the production of some contraband items together with
the permitted items. B promises to pay A, Salary of Rs.10,000 p.m. Agreement is void,
object of As promise and consideration for B s promise being partially unlawful.
3. Lawful Consideration enforceable: When there are several distinct promises made for
one and the same consideration and one or more of them are of such nature that law will
not enforce it, only such of the promises as are unlawful cannot be enforced. Other which
are lawful, can be enforced.

155 LAW OF CONTRACTS - I
 4. Test of Severability:
(a) If illegal part cannot be severed from legal part of a covenant, contract is altogether void.
(b) If it is possible to severe them, whether the illegality be due to Statute or Common Law,
bad part alone may be rejected and good retained.
In case of pre - existing civil liability, the dropping of criminal proceedings need not
necessarily be a consideration for the agreement to satisfy that liability. Union Carbide
Corpn. v. UOI
EVERY AGREEMENT OF WHICH THE OBJECT OR
CONSIDERATION IS UNLAWFUL IS VOID [SEC 23]
Illegal agreement - Void - ab - intio
Punishable by the criminal Law of the country or by any special legislation regulation effect of
illegal agreement.
Collateral transactions - illegal
No action can be taken for the recovery of money paid or property transferred.
If illegal part cant be separated from the legal part.
Whole agreement is altogether illegal. [Sec.57]
If separated
Legal part - enforces illegal part - reject.
Reciprocal promises - In respect of reciprocal promises the agreement as to illegal promise is
void.
Agreement opposed to public policy:-
Alternative promises: where in alternative promises one part is illegal, only the legal part can
be enforced. [Sec. 58]
Champerty & Maintenance :
2(g) - Void agreement is an agreement which is not enforceable by Law - void - ab - inito.
(1) Agreement by or with person incompetent to contract [10, 11]
(2) Agreement entered into through a mutual mistake [20]
(3) Object or consideration - unlawful [23]
(4) Consideration or object partially, unlawful [24]
(5) Without consideration [25]
(6) Restraint of marriage [26]
(7) Restraint of trade [27]
(8) Legal proceeding [28]
(9) Consideration identified [29]
(10) Wagering agreement [30]
(11) Impossible agreement [56]
(12) An agreement to enter into an agreement in the future.
Every agreement in restraint of marriage of any person other than a minor, is void, Any restraint
of marriage whether total or partial is opposed to public policy.
Ex. A promised to marry else except Mr. B, and in default pay her a sum of Rs.1,00,000. A
married someone else and B sued A for recovery of the sum. Held, the contract was in restraint of
marriage, and as such void.
Ex. The consideration under a Sale Deed was for marriage expenses of a minor girl aged
12. Held the sale was a void transaction being opposed to public policy.
Ex. Two co-widows - agreement - if one of them remarried - she should forfeit her eight to her

156 LAW OF CONTRACTS - I
share in the deceased husbands property was not void because no restraint was imposed upon
either of the two widows from remarrying.
Ex. Wife to divorce herself and to claim maintenance from the husband on his marrying a
second wife was not void because no restraint was imposed upon husband from marrying a second
wife.
Every agreement by which anyone is restrained from exercising a Lawful profession, trade or
business of any kind is void .
Burden for Proof :-
Party supporting the contract:- must show that the restraint is reasonably necessary to protect
public interest. Party challenging the contract:- restraints is injurious to the public.
Ex. : In Patna, 29 out of 30 manufacturers of combs agreed with R to supply combs only to him
and not to anyone else. Under the agreements R was free to reject the goods if he found no market
for them. Held, the agreement amounted to restraint of trade and void.
VOID AGREEMENT
Agreement in Restraint of marriage [26]
Agreement in Restrain of trade [27]
Exception to Sec. 27
(1) Sale of goodwill: - Seller of goodwill of a business may agree with the buyer to restrain
from carrying on business.
(a) Must relate to same business
(b) Restriction shall apply within specified Local limits.
(c) Restriction shall apply within a reasonable time period
(d) The specified local limits - depends on nature of business.
(a) Restriction on existing partner [11(2)]
Not carry on business other than business of the firm till he is partner.
(b) Restriction on outgoing partner [36]
Not carry on a similar business after retirement
Local limits + specified period - local limit - nature of business
(c) Sec. 54: Upon or in anticipation of dissolution of Firm. Partners may agree that some or
all of them will not carry on business similar to that of the Firm within specified periods or
local limits.
(d) Sec. 55(2) : Partner may agree with due buyers of Goodwill, not to use the Firm name or
carry on Firms business or solicit clients of the Firm.
(e) Sec. 55(3): Upon sale of Firms Goodwill, a partner may agree that he will not carry on
any business similar to Firms within specified periods or local limits.
Exception under judicial interpretations :-
(a) Trade combination.
Traders may form associations among them to regulate the business or to fix prices.
Such agreement like opening and closing of business venture, licensing of traders,
supervision and control of dealers, etc. are valid even if they are in restraint of trade.
But, a Combination that tends to create monopoly; or when two enter into an agreement
to avoid competition, they are against public policy and hence void.
(b) Sale dealing agreement: - Agreements to deal in the products of a single
manufacturer or to sell the whole produce to a single dealer are valid if their terms are
reasonable.

157 LAW OF CONTRACTS - I
 Ex.: (Discuss in class)
Agreement - buyer of goods for Delhi market not to sell them in Chennai is valid.
Not to sell to any other firm - valid.
(c) Service agreement.
Agreement: Employers may enter into agreements with employees - (i) not to engage in
other work during the tenure of his employment; or (ii) not to engage in similar work after
his termination.
During Employment: The first restraint is always valid, e.g. doctors may be paid non
practicing allowances to avoid practicing when they are employed in a hospital.
After termination of service: The second restraint is valid only if it is to protect the
trade interests of the employer. It may be imposed to prevent the outgoing employee
from using trade secrets he had learnt during his tenure, to the detriment of his previous
employer.
Valid Agreements : Requiring employees to serve the organization for a few years after
training leaving; or execution of a bond requiring employees leaving the organization to
pay compensation to the employer are valid.
Use of Personal Skills: The employer cannot prevent the employees from using his
personal skills and knowledge to his benefit; e.g. an employer cannot restrain an employee
to act in theatre plays or in performing an art.
Agreement restricting enforcement of rights:
An agreement by which any party is restricted absolutely from enforcing his legal rights under
any contract is void.
Agreements Limiting period of limitation:- An agreement which limits the time within which an
action may be brought is void.
A partial restrain is not void, eg.
Ex. 1: A clause in a contract that any dispute arising between the parties shall be subject to
jurisdiction of a court at a particular place only, is valid.
Ex. 2: An agreement is not void merely because if provides that any dispute arising between
two or more person shall be referred to arbitration.
That has arises.
Which may arise
Which has already arisen?
Ex. 3: An agreement not to go in appeal to higher court against the judgment of a lower court
not amount to restraint of legal proceeding.
1. An agreement is called an uncertain agreement when the meaning of that agreement is
not certain or capable of being certain. Such agreements are declared void u/s 29.
2. Areas of uncertainty: Uncertainty may relate to - (a) Subject Matter of Contract; or (b)
Terms of contract.
(a) Subject Matter: There may be uncertainty as regards - (i) existence; (ii) quantity
(iii) quality; (iv) price; or (v) title to the subject matter.
(b) Terms of Contract: There may be uncertainty as regards - (i) existence (ii) quality;
(iv) price; or (v) title and other terms in the contract.
Example:
1. A says to B I shall sell my house; will you buy? A says, Yes, I shall buy. Due to
uncertainty of price, the agreement is void and unenforceable. There is no binding
contract.
2. A agreed to pay a certain sum, when he was able to pay. Held, the agreement was void
for uncertainty.
3. D agrees to sell his white horse, for Rs.5,000 or Rs.10,000. - void.

158 LAW OF CONTRACTS - I
 AGREEMENT IN RESTRAINT OF LEGAL PROCEEDINGS [28]
An agreement the meaning of which is not certain (Sec 29):
An agreement between two persons under which money or moneys worth is payable by one
person to another on the happen or non happening of a future uncertain event is called a wagering
agreement.
X promise to pay Rs. 1000 to Y if it is rained on a particular day, and Y promise to pay Rs.1000
to X if it did not.
Wagering agreement is promise to give money or moneys worth upon the determination of
uncertain event.- Sir Willian Anson.
(1) There must be a promise to pay money or moneys worth
(2) Performance of a promise must depend upon determination of uncertain event. It might
have already happened but the parties are not aware about it.
(3) Mutual chances of Gains or Loss.
(4) Neither party to have control over the events
(5) Neither party should have any other interest in event.
(6) One party is to win and one party is to lose.
Ex. 1:- Agreement to settle the difference between the contract price and market price of
certain goods or shares on a particular day.
Ex. 2: A lottery is wagering agreement. Therefore, an agreement to buy and sell lottery tickets
is a wagering agreement. Section 294 - A of the Indian Penal Code declares that drawing
of lottery is an offence. However, the government may authorize lotteries. The persons
authorized to conduct lotteries are exempt from the punishment. But, the lotteries still
remain a wagering transaction.
Ex. 3: However, if the crossword puzzle prizes depend upon sameness of the competitors
solution with a previously prepared solution kept with the organizer or newspaper editor,
is a lottery and, therefore, a wagering transaction.
Ex. 4: However, when any transaction in any commodity or in shares with an intention of paying
or getting difference in price, the agreement is a wager.

Prize in terms of Prize competition Act, 1955 not exceeding Rs.1000 is not wagering
agreement.
Horse race [500] - An agreement to contribute a plate or prize.
WAGERING AGREEMENT [30] :-
Agreement not held as wagers:-
Essential elements of wagering agreements
Contract of insurance utmost in good faith eg. Favour in public policy.
Share market transaction A commercial transaction should always be distinguished
from a pure speculative transaction. A commercial transaction is done with an intention
of delivery of goods (commodity or security) and payment of price. Therefore, it is not
wagering agreement.
Crossword competition involving skill for its solution. If skill plays an important role in the
result of a competition and prize depend upon the result, the competition is not Involve
applications of skill and prizes are awarded to the participants on the basis of merit of
their solutions and not on chance. Therefore, such competitions are valid and are not
wagers.
Athletic Competitions also fall in the category of games of skill. Therefore, these are also
not wagers.

159 LAW OF CONTRACTS - I
 Example:
A and B, two wrestlers, agreed to enter into a wrestling contest in Ahmedabad on a
certain day. They further agreed that a party failing to appear on the fixed day was to
forfeit Rs.500 and the winning party will receive a sum of Rs.1,000. Held, it was not a
wagering agreement.
Contribution to chit fund is not wager - contributions made by the members are refunded
by draw of lots.
Agreement is void.
No suit can be filed for any recovery of the amount won on any wager.
It is not illegal. Any agreement collateral to wagering agreement is valid.
However, it is illegal in state of Maharashtra and Gujarat.
Agreement which is prohibited by law is illegal agreement. Example Agreement to commit
crime.
Effects of illegal agreement:
It is always void.
Any collateral transaction to illegal agreement is also void.
No action is allowed on illegal agreement.
Void Agreement Illegal agreement
Meaning Not enforceable by Law Forbidden by any law
One in another All void agreement is not illegal All illegal agreement are void
Reason 10,29,56 Against the provisions of law
Punishment Not liable to punished Party are criminally liable
Void - ab - initio A valid - collateral - is not void Illegal, collateral - illegal
CONTINGENT CONTRACT
A contingent contract is a contract, to do or not to do something. If some event, collateral to
such contract does or does not happen
A contract to pay B Rs.10,000 if B house is burnt.
A promise to pay B Rs.1,00,000 if a certain, ship does not return within a year.
Essential features of a contingent contract :-
(a) It is a contract to do or not to do something
(b) Dependent on happening or non happening of an event
(c) Such on event is a collateral event (i.e. it is collateral) to the contract i.e. the event must
not depend upon the mere will of party.
(d) The event is uncertain
CONTINGENT UPON
1. Happening of Uncertain Future Even [Sec. 32].
2. Non - Happening of Uncertain Future Event [Sec. 33]
3. Future conduct of a living person [Sec. 34]
4. Happening of Specified Uncertain Event within Fixed time [Sec.35] [
5. Non happening of Specified Uncertain Event within Fixed Time [Sec.36]
(1) Contracts contingent upon the happing of an event enforced - such event has happened [32]
Void - such event because impossible [happening of such event]
Ex.:- A contract to pay B a sum of money when B marries he dies without being married to B
contract - void
(2) Non happening of a future event:- [33]
Enforced :- when the happening of such events becomes impossible.
Void:- such event has happened.
Ex.:- A agrees to pay B sum of money if a certain ship does not return. This ship is sunk. The
contract can be enforced when the ship sinks.
Happening of Uncertain Future Event

160 LAW OF CONTRACTS - I
 Future conduct of a living person
Non - Happening of Uncertain Future Event
Non - Happening of Specified Uncertain Event within Fixed Time
Happening of Specified Uncertain Event within Fixed time
Impossible Events
Rules regarding contingent contract.
(3) Happening of an event within a specified time [35]
Enforce :- when such event has happened within the specific time.
Void :- When the happening of such event because impossible before the expiry of specified
time.
When such event has not happened within specified time.
A promise to pay B sum of money if a certain ship return within a Year
Enforce :- ship returns within the year .
Void :- If the ship is burnt within the year / not come within the year.
(4) Non - happening of an event within a fixed time [35]
Enforce :- When the happening of such event because impossible before the expiry of specified
time.
When such event has not happened within the specified time.
Void:- When such event has happened within the specified period.
(5) Future conduct of a living person. [34]
Enforced:- When such person acts in the manner as desired in the contract.
Void :- When such person does anything which makes the desired future conduct of such
person - impossible - dependent upon certain contingency.
A agrees to pay B a sum of money if B marries C . C married D. The marriage of B to C must
now considered impossible, although it is possible that D may die any that C may afterwards
marry B.
(6) Impossible events [36]
Such an agreement can not be enforced since it is void whether the impossibility of the
event was known to the parties or not is immaterial.
A agrees to pay B Rs.1,000 if two parallel straight lines should enclose a space.
Agreements are void.
A agrees to pay B Rs.1,000 if B will marry As daughter C and C was dead at the time of
the agreement. Agreement is void.
Wagering agreement Contingent agreement
1. Defined Not defined u/s 30 Defined o/s 31
2. Meaning Promise to give money or To do or not to do something
moneys worth upon the if some event. Collateral to
determinative of an uncertain such contract does or does not
event. happen.
3. Nature of uncertain event
Contingent nature Not be a wagering nature
4. Void / valid.
Void Valid
5. Interest
No other interest in the subject Have real interest outcome of
matter of the agreement except the uncertain gain. A contingent
within of loss of wagering contract the not be a wagering
amt. A wagering agreement nature. Not consist a reciprocal
is essentially of a contingent promises future event is fully
nature. Consists of reciprocal collateral.
promises futures event is the
sole determine factor

161 LAW OF CONTRACTS - I
 Sec 37:- That the parties to a contract must either perform or offer to perform, their respective
promises unless such performance is dispensed with or excused under the provisions of contract
Act, or of any other law.
Performance: - Two types
1. Actual performance - actually performed - liability of such a party comes to an end.
2. Attempted performance or tender of performance refusal to accept offer of performance
by promise [38]
Promisor performance of Offer promisee accept not Does attempted performance
Promisor is not responsible for non performance and they can sue the promisee for breach of
contract - nor he (promisor) thereby lose his rights under the contract.
A. Tender or offer of performance to be valid must satisfy the following conditions:-
(i) It must be unconditional
Ex :- X offers to Y the principal amount of the loan. This is not a valid tender since the
whole amount of principal and interest is not offered.
(ii) It must be made at a proper time and place.
Ex:- If the promisor wants to deliver the goods at 1 am. This is not a valid tender unless
it was so agreed;
(iii) Reasonable opportunity to examine goods.
Ex:- Delivery of something to the promisee by the promisor. Promisee must have
reasonable opportunity of inspection.
(iv) It must be for the whole obligation :- goods and amount.
Ex:- X a debtor, offers to pay Y the debt due in installments and tenders the first
installment. This is not a valid tender minor deviation - not invalid [Behari lal v ram gulam]
(v) It must be made to the promisee or his duly authorized agent.
Ex:- It must be person who is willing to perform his part of performance.
(vi) In case of payment of money, tender must be of the exact amount due and it must be in
the legal tender.

PERFORMANCE
Essential of Valid tender
Unconditional
At a proper place
For whole obligation
Of exact amount and in legal tender money
At proper time
Reasonable opportunity to Promisee
Tender or offer of performance to be valid must satisfy the following conditions:-
(i) It must be unconditional
Ex :- X offers to Y the principal amount of the loan. This is not a valid tender since the
whole amount of principal and interest is not offered.
(ii) It must be made at a proper time and place.
Ex:- If the promisor wants to deliver the goods at 1 am. This is not a valid tender unless
it was so agreed;
(iii) Reasonable opportunity to examine goods.
Ex:- Delivery of something to the promisee by the promisor promisee must have
reasonable opportunity of inspection.
(iv) It must be for the whole obligation :- goods and amount.
Ex:- X a debtor, offers to pay Y the debt due in installments and tenders the first
installment. This is not a valid tender minor deviation - not invalid [Behari lal v ram gulam]

162 LAW OF CONTRACTS - I
 (v) It must be made to the promisee or his duly authorized agent.
Ex:- It must be person who is willing to perform his part of performance.
(vi) In case of payment of money, tender must be of the exact amount due and it must be in
the legal tender.
Who can demand performance
[who will perform the contract ]
1. Promisor himself :- include personal skill, taste or art work.
Ex:- A promises to paint a picture for B as this promise involves personal skill of A. It
must be performed by A.
2. Promisor or agent :- [does not involves personal skill]
3. Legal Representative:- [does not involve personal skill and taste]
Type of Tender
Tender of goods and services
When a promisor offers to delivery of goods or service to the promisee, it is said to be tender
of goods or services, if promisee does not accept a valid tender, It has the following effects:
(i) The promisor is not responsible for non - performance of the contract.
(ii) The promisor is discharged from his obligation under the contract. Therefore, he need
not offer again.
(iii) He does not lose his right under the contract. Therefore, he can sue the promise.
Tender of money
Tender of money is an offer to make payment. In case a valid tender of money is not accepted,
it will have the following effects:
(i) The offeror is not discharged from his obligation to pay the amount.
(ii) The offeror is discharged from his liability for payment of interest from the date of the
tender of money.
Person by whom promise is to be performed Sec 40.
1. Promisor himself :- include personal skill, taste or art work.
Ex:- A promises to paint a picture for B as this promise involves personal skill of A. If
must be performed by A.
2. Promisor or agent :- [does not involves personal skill]
3. Legal Representative:- [does not involve personal skill and taste]
Performance of Joint Promises:-
4. Third person [Sec 41] :- Acceptance of promise from the third party:-
If the promisor accepts performance of a contract by a third party, he cant after wards enforce
the performance against the promisor although the promisor had neither authorized not ratified the
act of the third party.
[In other meaning once the promisee accepts the performe from a third person, he cannot
compel the promisor to perform the contract again]
Two or more person make a promise
Performed by all the joint promisor [42]
All the joint promisor - liable
Thus in India the liability of joint promisors is joint as well as several.
In England, however the liability of the joint promisors is only joint and not several and accordingly all
the joint promisors must be sued jointly.
Liability of joint promisor [43]
1. Liability - joint as well as several [unless express A + B + C 900 D. D may compel either
A, B or C or any of two of them or all of them.
2. Where a joint promisor has been compelled to perform the whole promise, be may

163 LAW OF CONTRACTS - I
 compel every other joint promisor to contribute equally with himself to the performance
of the promise (unless a contrary intention appears from the contract).
C - 9000 - D A + B - C
3000 3000
3. If any one of the joint promisors make default in such contribution, the remaining joint
promisors must bear the loss arising from such default in equal shares
A + B + C - 9000 (A) - Insolvent
B + C = 4500 + 4500 = 9000
Sec 44:- Release of one joint promisor :-
Where one of the joint promisors is released other joint promisors shall continue to be liable. [In
English law if one joint promisor - discharge then all the joint promisors discharge]
Sec 45:-
Rights to claim performance of joint [Devolution of joint rights]
1. During their joint lives - all the joint promisors .
2. After the death of any of them - The representative of such deceased promise jointly with
the surging promise
3. With the representatives of all jointly.
Ex:- A in consideration of Rs 50,000 lent to him by B and C promises B and C jointly
to replace them that sum with interest on a day specifies.
B dies. The right to claim performance rests with B representatives jointly with c
during C life.
And after Cs death with the representatives of B and C jointly .
1. No time is specified for performance [Sec 46]
Time of performance is not specified + promisor agreed to perform without, a
demand from the promisee the performance must be made within a reasonable
time. Reasonable time - in each particulars case - a question of fact.
2. Time specified but hour not mentioned [47].
Time of performance specified + promisor agreed to perform without application by the
promisee
Performance must perform on the day fixed during the usual business hours and at
the place at which the promise ought to be performed.
3. Where Time is fixed and application to be made [48]
Proper place and within the usual hour of business
Promisee to apply for performance
4. Performance of promise where no place is specified and no application is to be
made by the promise [49]
It is the duty of the promisor to apply to the promisee to appoint a reasonable place
for the performance and perform it at such appointed place.
5. Performance in manner or at time prescribed or sanctioned by promise [50]
In such prescribed manner and
Prescribed time
Ex:- A desires B who owes him Rs 10,000 to send him a promissory note for Rs 10,000
by Post. The debt is discharged as soon as B puts into the post a letter containing the
promissory note duly addressed to A.
Reciprocal Promise :-
Promises which form the consideration or part of consideration for each other as called
reciprocal promises.
1. Mutual and Independent:- Such promises all to be performed by each party independently
without waiting for the other party to perform his promise cant excuse himself on the
ground of non-performance by the default party.

164 LAW OF CONTRACTS - I
 Y - Price - non Payment
X - goods delivered
2. Mutual and Dependent:- Sue damage . The performance of promise by one party
depended on the prior performance of the promise by other party.
[The party at fault becomes liable to pay compensation to the other party may sustain by
the non performance of the contract - [54]
3. Mutual and concurrent: - when reciprocal promises are to be performed simultaneously
a promisor need not perform his part unless the promisee is ready and willing to perform
[51]
TIME PLACE AND MANNER OF PERFORMANCE[46-50]
PERFORMANCE OF RECIPROCAL PROMISES
Order of performance of reciprocal promises [52]
Where the order in which reciprocal promises one to be performed is expressly fixed by
the contract - they must be performed in that order.
Order is not expressly fixed - nature of transaction requires
Ex :- A and B contract that A shall build a house for B at a fixed price A promise to
build the house must be performed before its promise to pay for it.
Sec 53 :- One party preventing - voidable at the option of the other party so prevented.
Compensation for loss
Sec 54 :- Legal and illegal
Legal - valid, illegal - void
Sec 58:- alternative promise, one branch being illegal legal branch alone can be enforced.
A - B - 1000 rupees
Deliver - rice + smuggled goods
Where time is essence - the concerned parties must perform their respective promises
within the specified time.
Time are fact :- time is specified for the performance of the contract is not by itself
sufficient to prove that time is essence of the contract.
Intention of the parties.
TIME IS GENERALLY CONSIDERED TO BE THE ESSENCE OF THE CONTRACT :-
(a) where the parties have expressly agreed to treat as the essence of the contract.
(b) Delay operates as an injury to the party and
(c) Nature and necessities of the contracts requires it to be performed within the specified
time. Delivery of the goods - considered - essence of the contract payment of the price -
No
[However in case of sale and purchase of an immoral property, the time is presumed to
not the essence of the contract]
Time is essence of the contract - party fails to perform
In time - the contract becomes voidable at the option the other party.
Time is not essence - only claim damages for delay in performance
TIME AS THE ESSENCE OF THE CONTRACT (SEC 55):-
Assignment of contract :-
(a) By - operation of law
Death
Insolvency
(b) By an act of parties
Assignment is a mode of transferring rights.
Assignment and transferring of rights from one person to another.Rules regarding assignment
(a) The liabilities or obligations under a contract cant be assigned

165 LAW OF CONTRACTS - I
 (b) The rights and benefits under a contract which not of a personal nature can be assigned.
(c) An actionable claim can always be assigned
Succession Assignment
Meaning Deceased person - Legal Person - another person
represent
Time On the death of a person During the life time of a person
Voluntary Act Not voluntary automatic by Voluntary
operation of law
Written document Not required Required assignment deed
Scope Liability and rights Rights
Appropriation means application of payments - The question of appropriation of payments
arises when a debtor owes several debts to the same creditor and make a payment that is not
sufficient to discharge the whole indebtedness.
1. Appropriation of Payments
Sometimes, a debtor owes several distinct debts to the same creditor and he makes a payment
which is insufficient to satisfy all the debts. In such a case, a question arises as to which
particular debt the payment is to be appropriated. Section 59 to 61 of the Act lay down following
rules as to appropriation of payments which provide an answer to this question.
Appropriation as per express instructions
Every debtor who owes several debts to a creditor has a right to instruct his creditor to which
particular debt, the payment is to be appropriated or adjusted. Therefore, where the debtor expressly
states that the payment is to be applied to the discharge of a particular debt, the payment must be
applied accordingly.
Example : A owes B three distinct debts of Rs.2,000, 3,000 and 5,000. A sends Rs.5,000 and
instructs B that the payment should be appropriated against the third debt. He is bound to appropriate
the payment against the third debt only.
Appropriation of Payments :- [ Sec 59 - 61]
2. Application of payment where debt to be discharge is not indicated [60]
If section 60 is attracted, the creditor shall have the discretion to apply such payment for
any lawful debt which is due to him from the person making the payment.
Example: A owes to B, among other debts, the sum of Rs.520. B writes to A and demands
payment of this sum. A sends to B Rs.520. This payment is to be applied to the discharge
of the debt of which B had demanded payment.
3. Application of payment where neither party appropriates [61]
The payment shall be applied in discharge of the debts in order of time whether they
are or are not based by the limitation Act 1963, if the debt are of equal standing (i.e.
payable on the same date) the payment shall be applied in discharge of each of these
debt proportionately.
First interest then principle
Director of payer not receiver.
Right primary of the debtor
[whatever is paid, paid according to the intention of paying it]
[Quickquid soivitur , sovitur secundum modem solvents]
Example: A owes B, the following debts:
Amount of Positions of the debt the debt
Rs.2,000 Time barred

166 LAW OF CONTRACTS - I
 Rs.1,000 Time barred
Rs.2,000 Due on 10th June
Rs.3,000 Due on 20th September
A sends Rs. 1,500 in the month of June. He neither expressly intimates nor circumstance of the
case imply as to which debt the amount is to be applied. Moreover, B also does not appropriate the
payment at his own discretion. Therefore, the payment will be appropriated in order of time. However,
here in this case two debts are of equal standing. The payment will, therefore, be appropriated in
order of time but to all equal standing debts. In this case, Rs.1,500 will be appropriated towards the
first two debts of equal standing proportionately, i.e. in the ratio of 2:1.
Discharge by performance
Discharge of a contract means termination of contractual relation between the parties to a
contract in other words a contract is discharged when the rights and obligations created by it are
extinguished (i.e. comes to an end). Fulfillment of obligations by a party to the contract within the time
and in the manner prescribed in the contract.
(a) Actual performance - no party remains liable under the contract. Both the parties
performed.
(b) Attempted performance or tender.:- Promisor offers to perform his obligation under
the contract but the promise refuses to accept the performance. It is called as attempted
performance or tender of performance
But the contract is not discharged.

DISCHARGE OF A CONTRACT
Mode of discharge of contract
1. By performance
Actual
Attempted
By impossibility of performance
By lapse of Time
By breach of contract
Actual
Anticipatory
2. By mutual agreement
(By implied consent)
1. Novation - Sec 62
2. Rescission - Sec 62
3. Alteration - Sec 62
4. Remission - Sec 63
5. Waiver
6. Merger
3. By Operation of law
1. Death
2. Merger
3. Insolvency
4. Unauthorized alteration
4. Discharge by mutual agreement
(a) Novation [Sec 62] - Novation means substitution of a new contract in the place of
the original contract new contract entered into in consideration of discharge of the old
contract. The new contract may be.
Between the same parties (by change in the terms and condition)

167 LAW OF CONTRACTS - I
 Between different parties (the term and condition remains same or changed)
Following conditions are satisfied :-
(1) All the parties must consent to novation
(2) The novation must take place before the breach of original contract.
(3) The new contract must be valid and enforceable.
Example:
A owes B Rs.50,000. A enters into an agreements with B and gives B a mortgage of his estate
for Rs.40,000 in place of the debt of Rs.50,000. (Between same parties)
A owes money Rs.50,000 to B under a contract. It is agreed between A, B & C that B shall
henceforth accept C as his Debtor instead of A for the same amount. Old debt of A is discharged,
and a new debt from C to B is contracted. (Among different parties)
(b) Rescission [62]:- Rescission means cancellation of the contract by any party or all the
parties to a contract. X promises Y to sell and deliver 100 bales of cotton on 1st oct at
his go down and Y promises to pay for goods on 1st Nov. X does not supply the goods. Y
may rescind the contract.
(c) Alteration [62] :- Alteration means a change in one or more of the terms of a contracts
with mutual consent of parties the parties of new contracts remains the same.
Ex:- X Promises to sell and delivers 100 bales of cotton on 1st oct. and Y promises
to pay for goods on 1st Nov. Afterwards X and Y mutually decide that the goods shall
be delivered in five equal installments at is godown . Here original contract has been
discharged and a new contract has come into effect.
(d) Remission [63]:- Remission means accepting a lesser consideration than agreed in the
contract. No consideration is necessary for remission. Remission takes place when a
Promisee-
(a) dispense with (wholly or part) the performance of a promise made to him.
(b) Extends the time for performance due by the promisors
(c) Accept a lesser sum instead of sum due under the contract
(d) Accept any other consideration that agreed in the contract
A promise to paint a pictured for B. B after words for him to do so. A is no longer bound
to perform the promise.
(e) Waiver:- Intentional relinquishment of a night under the contract.
Discharge by operation of law
(f) Merger :- conversion of an inferior right into a superior right is called as merger.(Inferior
right end)
Basis Novation Alteration
1. Meaning It is substitution of an existing It is alteration to some of the
contract with new one. terms and conditions of the
original Contract.
2. Change in parties It is made by - (a) change in Terms of the contract may be
the terms of the contract or altered by mutual agreements
(b) change in the Contracting by the same contracting parties.
Parties. So, there is no change in the
parties.

3. New Contract A New Contract comes into It is not essential to substitute a

existence in place of the old new contract in place of the old
one. contract.

168 LAW OF CONTRACTS - I
 4. Performance Old contract need not be Old contract as per the altered
performed New contract must terms shall be performed.
be performed.
Discharge by operation of law
(a) Death :- involving the personal skill or ability, knowledge of the deceased party one
discharged automatically. In other contract the rights and liability passed to legal
representative.
Example : A promises to perform a dance in Bs theatre. A dies. The contract comes to
an end.
(b) Insolvency:- when a person is declared insolvent. He is discharged from his liability up
to the date of insolvency.
Example: A contracts to sell 100 bags of sugar to B. Due to heavy loss by a major fire
which leaves nothing to sell, A applies for insolvency and is adjudged insolvent. Contract
is discharged.
(c) By unauthorized material alteration - without the approval of other party - comes to an
end - nature of contract substance or legal effect.
Example : A agrees upon a Promissory Note to pay Rs.5,000 to B. B alters the amount
as Rs.50,000. A is liable to pay only Rs.5,000.
(d) Merger: When an inferior right accruing to a party in a contract mergers into a superior
right accruing to the same party, then the contract conferring inferior right is discharged.
Example: A took a land on lease from B. Subsequently, A purchases that land. A becomes
owner of the land and ownership rights being superior to rights of a lessee, the earlier
contract of lease stands terminated.
5. Rights and liabilities vest in the same person:
Where the rights and liabilities under a Contract vest in the same person, the contract is
discharged.
Example: A Bill of Exchange which was accepted by A, reaches As hands after being
negotiated and endorsed through 4 other parties. The contract is discharged.
Discharge by Lapse of time
Where a party fails to take action against the other party within the time prescribe under the
limitation Act, 1963. All his rights to come end. Recover a debt - 3 Years recover an immovable
property - 12 years
Ex.:- On 1st July 2001 X sold goods to Y of Rs 1,00,000 and Y had made no payment till
August 2004. State the legal position on 1st August 2004
(a) If no. credit period allowed and
(b) If 2 month credit period allowed.
Failure of a party to perform his part of contract
(a) Anticipatory Breach of contract :- Anticipatory breach of contract occurs when the part
declares his intention of not performing the contract before the performance is due .
(i) Express repudiation: - 5 agrees to supply B 100 tunes of specified category of
iron on 15.01.2006 on 31.12.2005. 5 express his unwillingness to supply the iron to
B.
(ii) Party disables himself: - Implied by conduct.
Ex.:- A agrees to sell his fiat car to B on 15.01.2006 on 31.12.05 A sells his fiat car
to T.
(b) Actual Breach of contract :- If party fails or neglects or refuses to perform his obligation
on the due date of performance or during performance. It is called as actual breach.

169 LAW OF CONTRACTS - I
During performance - party has performed a part of the contact.
Consequences of Breach of contract:- The aggrieved party (i.e. the party not at face it ) is
discharged from his obligation and get rights to proceed against the party at fault. The various
remedial available to an aggrieved party.
(a) Effect of Initial Impossibility
(b) Effect of supervening. Impossibility
(a) Initial Impossibility - at the time of making contract
Both parties know - put life into dead body - void .
Both dont know - void.
One know - compensate to other party
(b) Effect of super vanity Impossibility:-
Where an act becomes impossible after the contract is made - void
Becomes unlawful, beyond the control of promisor - void
Promisor alone knows about the Impossibility - compensate loss.
When an agreement is discovered to be void or where a contract becomes void
DISCHARGE BY BREACH OF CONTRACT
Remedies for Breach of contract.
Remedy means course of action available to an aggrieved party when other party breaches
the contract.
1. Rescission of contract
2. Suit for damage
3. Suit for specific performance
4. Suit for Injunction
5. Quantum Meruit
Cases when a contract is discharged on the group of super vent Impossible
(a) Distraction of subject matter - Failure of the ultimate purpose of contract - king coronate
process.
(b) Death of personal Incapacity
(c) Declaration of war
(d) Change of Law
(e) Non existence or Non occurrence of a particular state of thing necessary for performance.
No Super Impossibility - does not become void
Difficulty of performance - coal - transport
Commercial Impossibility
Default of a third party
Strikes, knockout and civil disturbance.
Partial Impossibility - coronation of king and to sailing around the lake by boat.
RESCISSION OF CONTRACT - SEC 39
SUIT FOR DAMAGES
Remedies for Breach of contract
5. Quantum Merit
4. Suit for Injunction
Remedy means course of action available to an aggrieved party when other party breaches
the contract.
It means right to party to cancel contract.
In case of breach of contract, other party may rescind contract.

170 LAW OF CONTRACTS - I
Effect of Rescission of Contract
Aggrieved party is not required to perform his part of obligation under contract.
Aggrieved party claims compensation for any loss.
Party is liable to restore benefit, if any.
When can Court Grant Rescind Contract?
Court can rescind the contract in the following situation:
Contract is voidable.
Contract is unlawful.
It means monetary compensation allowed for loss.
Purpose is to compensate aggrieved party and not to punish party as fault.
In India, rules relating to damages are based on English judgment of Hadley vs
Baxendale.
The facts of case were - Hs mill was stopped due to the breakdown of the shaft. He delivered
the shaft to common carrier to repair it and agree to pay certain sum of repair it and agree to pay
certain sum of money for doing this work. H has informed to B that delay would result into loss of
profit. B delivered the shaft after reasonable time after repair. H filed suit for loss of profit. It was held
that B is not liable for loss of profit. The court laid down rule that damage can be recovered if party
has breach of contract.
1. Rescission of contract
2. Suit for damage
3. Suit for specific performance

REMEDIES FOR THE BREACH OF CONTRACT

The following are the different kinds of damages:
Ordinary damages
These are the damages which are payable for the loss arising naturally and directly as result of
breach of contract. It is also known as proximate damage or natural damage.
Special damages
These are damages which are payable for loss arising due to some special circumstances.
It can be recovered only if special circumstances which result in special loss in case of breach of
contract and party have notice of such damage.
Example: A sends sample of his products for exhibition to an agent of a railway company
for carriage to New Delhi for an exhibition. The consignment note stated: Must be at New Delhi,
Monday Certain. Due to negligence of the company, the goods reached only after the exhibition was
over. Held, the company was liable for the loss caused by late arrival of the products because the
companys agent was aware of the special circumstances.
Exemplary or punitive or vindictive damages
These damages are allowed not to compensate party but as mean of punishment to defaulting
party. The court may award these damages in the case of:
Breach of contract to marry - loss based on mental injury.
Wrongful dishonor of cheque - smaller amount, larger the damage.
Nominal damages
Where party suffers no loss, the court may allow nominal damages simply to establish that
party has proved his case and won. Nominal damage is very small in amount.
Damages for inconvenience
If party has suffered physical inconvenience, discomfort for mental agony as result of breach
of contract, party can recover the damage for such inconvenience.
Example: A photographer agreed to take photographs at a wedding ceremony but failed to do
so. The bride brought an action for the breach of contract. Held, she was entitled to damages for her
injured feelings.

171 LAW OF CONTRACTS - I
 Liquidated damages and penalty
Party may specify amount at the time of entering into contract. The amount so specified may
be (a) liquidated damage, or (b) penalty.
If specified sum represent, fair and genuine pre - estimate damages likely to result due to
breach, it is called liquidated damage.
But if specified sum is disproportionate to the damages, it is called as penalty.
As regard the payment of liquidated damages and penalty court cant increase amount of
damages beyond the amount specified in the contract.
KINDS OF DAMAGES
Example : A gives B, a bond for the repayment of Rs.1,000 with interest at 12 per cent, at the
end of six months, with a stipulation that, in case of default, the interest shall be payable at the rate
of 75 per cent, from the date of default. This is a stipulation by way of penalty, and B is only entitled
to recover from A such compensation as the Court considers reasonable.
Forfeiture of security deposit
Any clause in contract entitling the aggrieved party to forfeit security deposit in the nature of
penalty and court may award reasonable compensation.
Payment of interest
It is permissible.
If interest is in nature of penalty, court may grant relief.
If no rate of interest is specified in contract party shall be liable to pay as per the law in
force or as per custom or usage of trade.
Cost of suit or decree
The court has also discretion to award cost of suit for damages in addition to the damages for
breach of contract.
It means, demanding an order from court that promise agreed in contract shall be carried out.
SUIT FOR SPECIFIC PERFORMANCE
When is specific performance allowed?
Where actual damages arising from breach is not measurable.
Where monetary compensation is not adequate remedy.
When specific performance is not allowed?
When damages are an adequate remedy.
Where performance of contract requires numbers of minute details and therefore not
possible for court to supervise.
Where contract is of personal in nature.
Where contract made by company beyond its power. (ultra - vires)
Where one party to contract is minor
Example : A agree to sell B, an artist painting for Rs.30,000. Later on, he refused to sell it. Here
B can file suit against A for specific performance of the contract.
It means stay order granted by court. This order prohibits a person to do particular act.
Where there is breach of contract by one party and order, of specific performance is not granted
by court, injunction may be granted.
Example: Film actress agreed to act exclusively for W for a year and for no one else. During
the year she contracted to act for Z.
SUIT FOR INJUNCTION
It means stay order granted by court. This order prohibits a person to do particular act.
Where there is breach of contract by one party and order, of specific performance is not granted
by court, injunction may be granted.
Example: Film actress agreed to act exclusively for W for a year and for no one else. During
the year she contracted to act for Z.

172 LAW OF CONTRACTS - I
 QUASI CONTRACT
[Contracts implied in law or implied contract]
It means a contract which lacks one or more of the essentials of a contract.
Quasi contract are declared by law as valid contracts on the basis of principles of equity i.e.
no person shall be allowed to enrich himself at the expense of another the legal obligations of parties
remains same.

Nature of Quasi contracts:-

(a) A quasi contract does not arise from any formal agreement but is imposed by law.
(b) Every quasi contract based upon the principle of equity and good conscience.
(c) A quasi contract is always a right to money and generally though not always to a liquidated
sum of money.
(d) A suit for its breach may be filed in the same way as in case of a complete contract.
(e) The right grouted to a party under a quasi contract is not available to him against the
whole world but against particular person(s) only.
(f) A suit for breach of a quasi contract may be filed in the same way as in case of an
ordinary contract
(g) Although there is no contract between the parties under a quasi contracts, yet they are
put in the same position as if he were a contract between them .
Provisions relating to various quasi contracts are contained in section 68 to sec 72
of the contract Act, 1872.
Sec. 68 Sec. 69 Sec. 70 Sec. 71 Sec.72
Supply of Reimbursement Obligation to pay Responsibility of Person receiving
Necessaries of money due for benefit out of Finder of Goods goods are money
non-gratuitous act by mistake

Sec. 68:
If a person, incapable of entering into a contract, or anyone whom he is legally bound to
support, is supplied by another person, with necessaries suited to his condition in life, the person
who has furnished such supplies is entitled to be reimbursed from the property of such incapable
person.
1. Meaning of Necessaries:
(a) Necessaries normally include articles required to maintain a particular person in the
state, degree and station in life in which he is.
(b) They are essentials to run a life.
(c) An item will not be considered necessary, if a person already has sufficient supply of
things of such kind.
(d) Necessaries include Services rendered to a person.
(e) What constitutes necessaries depends on the circumstances of each case.
2. Only property liable: person not liable:
(a) It is only the property (movable and immovable) of the incapable person they shall be
liable.
(b) He cannot be held liable personally.
(c) Where he doesnt own any property, nothing shall be payable.

173 LAW OF CONTRACTS - I
3. Example:
(i) A supplies B, a lunatic, with necessaries suitable to his condition in life. A is entitled to be
reimbursed from Bs property.
(ii) A who supplies the wife and children of B, a lunatic, with necessaries suitable to their
condition in life, is entitled to be reimbursed from Bs Property.
Payment By a person who is interested in a transaction [69]
Condition of section [69]
Sec. 69 : A person, who is interested in the payment of money and pays such money, which
another is bound by low to pay, is entitled to be reimbursed by the other.
(a) One party is legally bound to make a payment
(b) Some other persons make such payment
(c) The person making such payment is not legally bound to make such payment
(d) The person making such payment is interested in paying such amount
Legal effect of sec 69.:-
If all the conditions of sec 69 are satisfy the person who is interested in paying such amount
shall be entitled to recover the payment made by him.
Ex.:- The goods belonging to A were wrongfully attached in order to realize arrears of
Government revenue due by G. A paid the amount to save the goods from sale at was held that A
was entitled to recover the amount from G.
Obligation of person enjoying benefit of non-gratuitous act [70]
Conditions of section 70.
Sec.70 : Where a person, lawfully does anything for another person, or delivers anything to
him; not intending to do so gratuitously, and such other person enjoys the benefits thereof, then he is
bound to make compensation to the other in respect of, or to restore the thing so done or delivered.
(a) A person has lawfully done something for another person or delivered something to
another person.
(b) Such person must have acted voluntarily and non - gratuitously.
(c) The other person has enjoyed the benefit of the act done for him or the thing delivered to
him.
Legal effect of sec 70.
If the conditions of sec70 are satisfied, there will be quasi contract between the parties.
Consequently, the party who has done something or delivered a thing shall be entitled to
recover its value from the person who obtained the benefit of the same.
Ex.:- A a trades man leaves goods at Bs house by mistake, B treat the goods as his own,
He is bound to pay A for them.
A saves Bs property from fire. A is not entitled to compensation from B if the circumstances
show that be intended to act gratuitously.
GENERAL PRINCIPLES OF SPECIFIC RELIEF
Specific Relief or Specific Performance/Meaning Scope of the Specific Relief Act
THE OBJECT OF Specific Relief Act, 1963 is to provide remedies and reliefs for the violation of
legal rights. Specific Relief Act deals with large number of remedial aspects of law. A mere declaration
of rights and duties is not sufficient to give protection to life or property. There should be appropriate
legal mechanism which can hold the persons to enforce their rights. Specific Relief Act was enacted
to provide reliefs in cases relating to contracts, tort and other cases. Specific Relief Act was enacted
to provide reliefs in cases relating to contracts, tort and other cases. Specific Relief Act, 1877 was
amended as Specific Relief Act, 1963 by Parliament of India and came into force on March 1, 1964.

174 LAW OF CONTRACTS - I
Specific Relief Act, 1963 applies to the whole of India except the State of J&K.
According to Section 4, specific relief can be granted only for the purpose of enforcing individual
civil right and not for enforcing a penal law. The act provides the following reliefs:
1. Recovery of possession of immovable and movable property;
2. Specific performance of contracts; Section 9-25
3. Rectification of Instruments; Section 26
4. Rescission of Contract Section; 27-30
5. Cancellation of Instruments; Section 31-33
6. Declaratory decrees; Section 34-35
7. Preventive relief or injunctions; Section 36-42
In Adhunik Steels Ltd. v. Orissa Manganese and Minerals (P) Ltd., (2007) 7 SCC 125 the
Supreme Court stated that injunction by way of specific relief is covered by the Specific Relief Act,
1963. The Court further explained the nature and scope of various kinds of remedies available to the
breach of contract.
In Sita Ram & Others v. Radhey Shyam AIR 2008 SC 143
The Court held that any person seeking benefit of the specific performance of contract must
not be a non-guilty party.
Recovery of Possession of Property Section 5-8
RECOVERY OF POSSESSION of specific immovable property: Section 5 and 6: According
to Section 5 a person with a better title is entitled to possession on the basis of ownership or
possession. A person can bring an action for recovery of possession of specific immovable property
as per the manner (Institution of Suit and execution of decree under Order 21, Rule 35 and 36)
prescribed by the Code of Civil Procedure 1908.
Illustration: If A enters into peaceful possession of land claiming it as his own although he
might have no title to it, still he can sue such person who has forcibly removed him from possession
and who has no better title to it, because A although he has no legal title as owner, has at least a
possessory title. The burden of proof is on the plaintiff to prove that he has a better title (Annapoorani
Ammal v. G. Thangapalam (1989) 3 SCC 287)
Essentials
1. Defendant must possess a specific movable property.
2. He must not be the owner.
3. The plaintiff must be entitled to immediate possession.
4. Property must be capable of being seized and delivered.
5. Recovery of possession must be made in the same manner provided in C.P.C
In PratapraiN. Kothari v. John Brganza AIR 1999 SC 1666 the defend Defendant was in the
possession of an immovable property for a very long and continuous possession. It was held that
such person can protect his possessory right by applying an injunction against any person in the
world except the true owner. Such true owner can get back his possession only by restoring to the
due process of law.
In Adapa Tatarao v. Chamantula Mahalakshmi 2006 the Court held that the plaintiff is not
entitled for recovery of possession and perpetual injunction at the same time and in the same claim.
Suits by Person Dispossessed of Immovable Property
Section 6
SECTION 6 IS ENACTED with an object that a person in the possession of specific immovable
property can be dispossessed only by filing a regular suit in a regular Civil Court by the person whose
possession is valid. Thus a trespasser cannot recover possession under the section. Possession is
nine points in law. Thus possession confers good title against all the persons in the world except the
real owner. The civil suit for recovery of possession must be brought within 6 months, from the date of

175 LAW OF CONTRACTS - I
dispossession. The real owner is entitled only for re-possession of the property but not mesne profits.
The relief provided under this section is summary remedy.
In S.R. Ejaz v. T.N. Handloom Weavers Co-op. Society Ltd. (2002) 3 SCC 137 The
tenant proved that he was disposed and kept the matter pending for a long period. The Supreme
Court held that it was wrongful because it had defeated the very purpose of the summary remedy.
Essentials
1. Possession of plaintiff must be valid, at the time of dis-possession.
2. Plaintiff must have been disposed of immovable property.
3. To dispossession must not have been made as per law.
4. Recovery suit must have been filed within six months.
5. Suit for recovery of possess cannot be filed against Government.
6. No appeal or review is allowed from any order or decree.
7. Process of recovery must be as per C.P.C
In Saraswathi v. S. Ganapathy AIR 2001 SC 1844 The Appellant and respondent had purchased
land in adjacent survey numbers. The Appellant encroached into the land of respondents and was in
the possession of more than what was purchased. The Appellant filed a suit to claim possession of
property, which they had never purchased under sale deed. The Supreme Court therefore held that
the appellant was not entitled for possession of property therefore the appeal was dismissed.
Recovery of Specific movable property:
Section 7 deals with recovery of specific movable property. It provides that a person is entitled
to the possession of specific movable property may recover it in the manner provided by the Code
of Civil Procedure 1908. The burden of proof was on the plaintiff to prove his case. He cannot take
advantage of the weakness of the defendants case.
Essentials
1. The plaintiff must have right to possession.
2. The property must be specific movable property.
3. Specific movable property must be seized and delivered.
4. Recovery suit must be made within three years
5. Specific property must have been wrongfully dispossessed.
6. The process of recovery must be as per C.P.C
Who can Sue?
1. A trustee may sue under this Section for the possession of movable property for the
benefit of person for whom the trust is created. Hence if trust property is taken away by
someone, he can recover it.
2. A person who has a special or temporary right to the present possession of movable
property is sufficient to support a suit under the Section.
In Bridge v. Hawkeswoth (1851) 21 LJ OB 75. The Defendant while purchasing some goods
in the plaintiff ship found some currency notes on the floor. Both the parties claimed the possession
of the currency notes. The Court held that even though the shop belonged to the defendant, the
premises should be treated as public place due to the accumulation of large number of customers.
The defendant had no possessory title. Hence the plaintiff was entitled to possession of currency
notes found by him.
Liability to deliver possession to person entitled: Section 8: According to section 8 any
person having possession or control of a particular article of movable property without ownership,
may be compelled to deliver it to the person who is entitled to its immediate possession in any of the
following cases:
1. When the thing claimed is held by defendant as the agent or trustee of plaintiff
2. When compensation is inadequate relief for loss of thing claimed.
3. When it would be extremely difficult to ascertain actual damage caused by its loss
4. When possession of thing claimed has been wrongfully transferred from plaintiff. E.g. A

176 LAW OF CONTRACTS - I
 gives his watch to Z to for necessary repairs. Z retains it and does not return it to A. Z may
be compelled to deliver it to A.
Essentials
1. Defendant must have possession of specific movable property.
2. He must not be the owner.
3. The plaintiff must be entitled to immediate possession.
4. Property must be capable of being seized and delivered.
5. The recovery of possession must be made as per C.P.C
Differences between Section 7 and 8
1. A person having/who has a special or 1. No suit can be brought against the owner
temporary right to possession may bring the suit
even against the owner of the property.
2. A decree is for either the return of movable 2. The decree is passed only for the return of the
property or for the money value may be passed. specific articles
Specific Performance of Contracts
Austin: Specific Performance is an equitable relief given by a Court in case of breach of
contract in the form of a judgment that the defendant is to actually perform the contract according to
its terms and stipulations. (Nelson, Specific Relief Act).
Nelson: The aggrieved party is entitled to insist on the actual performance of the contract or to
obtain satisfaction for the non-performance of it.
According to Austin the aggrieved party is entitled to insist on the actual performance of the
contract or to obtain satisfaction for the non-performance of it. There are two types of decrees of
specific performance in the following circumstances:
1. When compensation is neither adequate relief or nor it is proper and reasonable to grant
compensation.
2. When it become difficult and impractical to ascertain compensation.
Principles of specific enforcement:
Section 20: Granting of specific performance is an equitable relief and based on the principles
incorporated under Section 20 of the Specific Relief Act, 1963. The grant of a decree for specific
performance is subject salutary guidelines. The following fundamental principles are recognized and
generally applied by the Courts.
1. The grading the decree of specific enforcement is purely discretion of the Court.
2. The remedy of specific enforcement is not granted in cases where compensation is an
adequate relief.
3. Courts do not grant the decree of specific enforcement in cases, which require constant
supervision of the Court.
The specific performance of contract is an obligation enforceable by law. It is based on the
principle of equity. According to Section 9 the defendant may take all those defences, which are
available to him under any law relating to contract. e.g. defences such as incapacity of parties, fraud,
mistake, undue influence, coercion etc. provided under the Indian Contract Act.
Essentials:
In order to obtain the decree of specific performance the following must be fulfilled:
1. It is necessary to prove that are enforceable contract is in existence
2. It is necessary to prove that important provisions of the contract were certain
3. It is necessary to prove that the terms of the said agreement had been agreed or
4. It is necessary to prove that terms are settled orally but it need not be in writing
5. It is necessary that the contract in question should valid and enforceable

177 LAW OF CONTRACTS - I
 In Bishandayal & Sons v. State of Orissa AIR 2001 SC 544
It was held that a Government contract which is concluded without fulfilling the requirements
prescribed by Article 299 of the constitution of India cannot specifically enforced.
In Raj Kishore (Dead) by Legal Representatives v. Prem Singh and others 2011 i SCC
657 it was held that in a suit for specific performance, it is mandatory for plaintiff to assert that he
was always ready and willing to perform essential terms of contract sought to be enforced against
defendant.
In Pramod Buildings and Developers Private Ltd. v. Shanta Chopra 2011 4 SCC 741 the
Supreme Court held that in a suit for specific performance, burden lies on plaintiff to prove readiness
and willingness to perform his obligations in terms of contract.
In Aloka Bose v. Parmata Devi and Others 20092 SCC 582 the buyer made part payment
on a condition that the sale deed would be executed within three months and balance consideration
money would be paid at the time of execution of the sale deed. When buyer is ready to pay the
balance amount but seller did not execute the sale deed. Held the buyer entitled to decree for specific
performance.
Contracts which are Specifically Enforceable
When can specific performance of a contract be enforced?
CONTRACTS WHICH ARE specifically enforceable: Section 10 deals with the cases in which
specific performance of contracts enforceable. Enforceability of contract is purely discretion of the
Court in the following cases.
I. No standard to as actual damage: Section 10:
1. When there is no standard for ascertaining the actual damage caused by non-performance
of the act agreed to be done, or
2. When the act agreed to be done is such that compensation in money for its non-
performance would not afford adequate relief. e.g. A agrees to buy, and B agrees to sell,
a picture by a dead painter and two rare chine Vases. A may compel B specifically to
perform this contract, for there is no standard for ascertaining the actual damage which
would be caused by its non-performance.
II. No Standard to ascertain damages: Section 10(a):
Where there is no standard for ascertaining the actual damage caused by non-performance of
the act agreed to be done specific performance can be enforced.
III. Inadequacy of monetary compensation: Section 10(b):
When the act agreed to be done is such that compensation in money for its non-performance
would not afford adequate relief specific performance is permissible. e.g. A contract with B to sell
him a house for Rs.1,00,0000/- B is entitled to a decree directing A to transfer the house to him, he
paying the purchase money.
In Veerayee Ammal v. SeeniAmmal (2002) 1SCC 134: AIR (2001) SC 2920 The parties
did not conclude the contract. The Supreme Court held that where there is no concluded contract
between the parties to the contract, the relief of specific performance cannot be enforced. Therefore
the defendant was not liable.
In Maharshi Dayananda University v. Anand coop L/C Society Ltd 2007AIR (SC) 2441 it
was held that so long as a formal agreement has not been entered into, it may be open to contend
that there was no concluded contract between the parties.
In Pramod Buildings and Developers Private Ltd vs Shanta Chopra 2011 4 SCC 741
held, in a suit for specific performance, burden lies on plaintiff to prove readiness and willingness to
perform his obligations in terms of contract.
In Pramod Buildings and Developers Private Ltd vs Shanta Chopra 2011 4 SCC 741 the
Supreme Court held that in a suit for specific performance, burden lies on plaintiff to prove readiness
and willingness to perform his obligations in terms of contract.

178 LAW OF CONTRACTS - I
 In Abdul Rashid Khan v. P.A.K.A. Shahul Hamid (2000) 10 SCC 636 A joint owner of the
property executed a sale deed to the extent of his 5/6th share, who his co- sharer has not joined him
to do so. The Supreme Court upheld the decree passed by that the plaintiff is entitled for decree for
specific performance to the extent of his share.

IV. Specific performance of trust: Section 11(1):

The Contract connected with trusts can be specifically enforced either at the instance of the
beneficiaries or at the instance of the trustees, but a contract made by a trustee in excess of his
powers or in breach of trust cannot be specifically enforced. Specific performance is granted in case:
1. Agreement to sell or transfer immovable property
2. Agreement to make lease
3. Agreement to sell with a condition for repurchase
4. Agreement to partition
5. Compromise of doubtful claims
6. Family settlement and agreement for sale of shares
7. A contract for the purchase of the share of a partner
V. Specific performance of part of contract: Section 12:
According to Section 12 provides the Court shall not grant specific performance of a part of a
contract.
Exceptions: Clauses (2) to (4) are the exceptions to such rule. Where the part which cannot
be performed bears only a small portion to the whole in value and the unperformed part can
compensated adequately in terms of money, the Court may order specific performance of one part
and compensation for the other.
In Surjit Kaur v. Naurata Singh AIR 2000 SC 2927 It was held that specific performance
cannot be granted to a party who has not been ready and willing at all stages to perform the contact.
In such case there can be no specific case there can be no specific performance of a part of the
contract at a later stage.
VI. Acquiring power of performance subsequently: Section 13: When a person enters into
a contract without the power for performing that contract and subsequently be acquire the power of
performing the same, he is bound to perform it. This Section applies only to sale and lease.
Contracts which Cannot be Specifically Enforced
Section 14
CONTRACTS WHICH CANNOT be specifically enforced: Section 14 deals with contracts,
which cannot be specifically enforced, or which cannot be compelled for specific performance.
According to Section 14, the following contracts cannot be specifically enforced.
1. Contracts with adequate monetary compensation: Section 14 (1) & (9) provides that a
contract for the non-performance of which compensation in money is an adequate relief, cannot
be specifically enforced.
2. Contracts involving personal skills: Section 14(1)(b) provides that contracts depending on
minute, or numerous details or volition (Personal skill or qualifications of the parties cannot be
specifically enforced. e.g. contracts involving performance of artistic skills, like contract to sing,
to paint, to act, etc cannot be enforced, but the only remedy available is to save for damages.
In Lumley v. Wagner 1 DM & G 604 : 91 RR 193 A singer the defendant agreed to sing only
at the plaintiffs theatre for certain period, but within such period she entered into agreement to
sing at some other theatre and refused to sing at the plaintiffs theatre. The plaintiff filed a suit
for specific performance of contract. The Court held that such contract cannot be specifically
enforced therefore the relief available for the plaintiff is only to claim damages for breach of
contract.

179 LAW OF CONTRACTS - I
 In Ram Sahan Rai v. Sachin Samanaya Prabandhak AIR 2001 SC 1173
A District Co- operative Bank having the authority of State without following Rules, Regulation
and principles of natural justice, illegally dismissed an employee and the employee sued the
bank and requested the Court to declare that the order of his removal as illegal, null and void.
The trial Court and High Court dismissed the suit and found that the suit must not maintainable.
Finally Supreme Court set aside the judgment and decree of High Court and held that the
dismissal of employee was illegal.
3. Contracts, which are determinable by their nature: Section 14(1)(c) provides that contracts
which are determinable (ascertainable) by this nature cannot be specifically enforced.
4. Contracts requiring continuous constant supervision: Section 14(1)(d) provides that a
contract the performance of which involving continuous duty which the Court cannot supervise,
cannot be specifically enforced.
5. Contracts to refer arbitrator: Section 14(2) provides that a contract to refer present or future
differences to an arbitrator cannot be specifically enforced. An arbitration agreement operates
as a bar to the filling of a suit.
6. Other contracts which cannot be specifically enforced:
1. Contract without consideration or
2. Contracts based one illegal or immoral agreement
3. Contracts without mutuality
4. Contract to selling or letting the property without title S.17
5. Contracts against the terms and stipulations Sec 18
6. Suit for performance of contract based on false and incorrect facts Sec 2
7. Contracts giving unfair advantage to plaintiff over the defendant. Sec 20(2)(a)
8. Contract involving hardship on defendant, which he did not foresee Sec 20(b)
9. Inequitable contract or one-sided contracts. Sec 20(2)(c)
10. Contract for personal service
11. Contract based an illegal motive Evaluation
12. A contract to build or repair a house
13. Void agreements or contracts
Rectification of Instruments
Section 26
RECTIFICATION MEANS CORRECTION, amendment, adjusting. Rectification of instrument
means correction of mistake in a document. Such mistake may be a fraud or by a mutual error.
According to Section 26(1) when a written contract of other document which does not express the
real intention through fraud or a mutual mistake of the parties, either party or their representatives
may approach the Court for rectification of such document. If the mistake is unilateral then the relief
of cannot be obtained. An order for rectification can be made when the intention of both the parties
is same.
Object: Sometimes the real intention of the parties may not be expressed in a document by
slip or mistake. In such case rectification is allowed. The mistake in the instrument of a contract is
corrected by the Court to bring out the real intention of the parties. The mistake may be either of fact
or of law.
Effect of Rectification: The instrument represents the true intention of the parties and after
rectification. Rectification removes all previous defects, ambiguities and uncertainties.
Who can apply for rectification?
1. Either party to the suit or his represent. Sec 26(1) (a)
2. The plaintiff. Sec 26(1)(b)

180 LAW OF CONTRACTS - I
 3. The defendant. Sec 26(1)(c)
In Subhadra and Others v. Thankam 2010 11 SCC 514 it was held that the relief of rectification
can be claimed where contract was entered either by through fraud or a mutual mistake of the parties.
Cancellation of Instruments : Section 31-33
CANCELLATION OF INSTRUMENTS: When a contract is void or voidable, and has reasonable
apprehension or fear that such instrument may cause him serious injury may sue for cancellation
of instrument and the Court may, in his discretion declare the contract as that void or voidable and
cancel that instrument.
Essentials
1. The contract must be in writing
2. The contract must be void or voidable
3. The party must have reasonable apprehension of causing injury if not cancelled
Such party must file a suit and party to declare the contract as void or voidable. A conveys land
to B, who bequeath it to C and dies. There upon D gets possession of the land and produces a forged
instrument stating that the conveyance was made to B in trust for him. C may obtain the cancellation
of the forged instrument.
Partial cancellation: As per Section 32: The Court may cancel the written instrument partially
based on the evidence of different rights or different obligation.
Effect: The parties are restored to their original position. Any benefit received from the other
party must be restored to such party.
Object: The relief of cancellation of instruments is granted to prevent the use of any vexation
or injurious instruments which causes the future injury or loss.

Essentials:
1. The written instrument must be void or voidable
2. The plaintiff must face apprehension of harm or injury by theft of instrument
3. The case must be fit for the exercise of the Courts discretion to grant the order
Limitation: A suit for cancellation of an instrument must filed within 3 years from the date when
the fact entitling the plaintiff where the instrument cancelled first becomes known to him.
Declaratory Decrees
Section 34 and 35
DECLARATORY DECREES: LAW relating to declaratory decrees is dealt under Section 34
and 35. A declaratory decree of Court is a decree, which declares that the plaintiff is entitled to
any legal character, or to right as to any property against defendant, who denies his title. It is a
declaration by way of a decree that the plaintiff is entitled to specific legal right to property. The object
of declaratory decree is to prevent future litigation by removing the existing cause of the controversy.
Essentials
1. Plaintiff must be entitled to any legal character or to any right as to any property.
2. Defended must have denied or is interested to deny character or title of plaintiff
3. Plaintiff must pray for declaration of his legal character or title
4. Plaintiff must not pray for further relief

181 LAW OF CONTRACTS - I
 Is declaratory decree a right? A declaratory decree cannot be claimed as a right. The Court
has discretion either to grant or not to grant. It is granted only to put an end to disputes but not to
cause hardship to the parties.
In Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon and Others AIR 2008 SC 306 the Court
held that mere fact that probate of will was granted by competent Court in respect of property and it
does not bar civil suit for declaration of title and permanent injunction in respect of the same property
under Specific Relief Act, 1963.

When Court may not grant declaratory relief?

1. When the conduct of plaintiff has been fraudulent
2. When the plaintiff interest is too remote
3. When the right is claimed in anticipation of a contingency, which may never arise
4. When the allegation of the plaintiff is false and baseless
5. When the defendant does not deny plaintiffs right or claim
6. When the plaintiffs not the real parties but those who are behind the litigation
7. When the suit is of a speculative nature
8. When the plaintiff seeks a negative declaration so as to infringe right of defendant

Injunction
Preventive Relief
INJUNCTION IS AN order of the Court, which prohibits commencement, or continuance of
a wrongful act. According to Lord Halsbury an injunction is a judicial process whereby a party is
ordered to refrain from doing or to do a particular act or thing.
Illustration: A lets certain land to B, and B contracts not to dig sand or gravel there out. A may
sue for an injunction to restrain B from digging in violation of his contract.
While exercising its discretionary powers the Court must keep in mind in well-settled principles
of justice, equity of and fair play. An injunction will not be granted in the following circumstances:
1. Where damages are the appropriate remedy
2. Where injunction is not the appropriate relief
3. Where the plaintiff is no entitled to an injunction
4. Where the contract cannot be specifically enforced
5. Where the injunction would operate inequitably
Kinds of Injunction: Section 37:
1. Temporary or Interlocutory injunction
2. Perpetual or Permanent injunction
When Temporary Injunction is granted? Section 37:
Temporary injunction may be granted if it is proved:-

182 LAW OF CONTRACTS - I
 1. That any property in dispute in a suit is in danger of being wasted, damaged or alienated
by any party to the suit, or wrongfully sold in execution of a decree, or
2. That the defendant threatens, or intends, to remove or dispose of his properties with a
view to defraud his creditors.3. That the defendant threatens to dispossess the plaintiff or
otherwise cause injury to the plaintiff in relation to any property in dispute in the suit. or

Conditions to grant temporary injunction: Section 37:

1. The plaintiff must establish a prima facie case. The clear title need not be established
but there must be a substantial question to be investigated and that matters should be
preserved in status quo until the injunction is finally disposed of.
2. An irreparable loss or injury would result it the injunction is refused and there is no other
remedy open to the applicant by which he could protect himself from the consequences
of the apprehended injury.

When perpetual injunction is granted? Section 38:

1. Perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation
existing in his favour, whether expressly or by implication
2. When any such obligation arises from the specific performance of contracts
3. When the defendant invades or threaten to invade the plaintiffs right to or enjoyment of
property,

Condition to grant perpetual injunction

1. There must be a legal right express or implied in favour of the applicant.
2. Such right must be violated or there should be a threatened invasion.
3. Such right must be in existence.
4. The case should be fit for exercise of Courts discretion.

When injunction cannot be granted: Section 41:

An injunction cannot be granted:
1. To restrain any person from prosecuting a judicial proceeding pending at the institution
of the suit in which the injunction is sought, unless such restraint is necessary to prevent
a multiplicity of proceedings.
2. To restrain any person from instituting or prosecuting any proceedings is Court not
subordinate to that which the injunction is sought.
3. To restrain any person from applying to any legislative body.
4. To restrain any person from prosecuting any proceedings in a criminal matter.
5. To prevent the breach of a contract the performance of which would not be specifically
enforced.

183 LAW OF CONTRACTS - I
 Breach of Injunction: Section 94(C) and Rule 2-A of Order 39, Civil Procedure Code provide
the consequences of breach of injunction. The Court may order the property of the person to attached
and also order such person yet to be detained in the civil prison for a term not exceeding three
months, unless in the meantime the Court directs his release. The disobedience or breach continues,
the property attached may be sold and out of the proceeds the Court may award such compensation
as it thinks fit to the injured party.

Grant of injunction: The Court is not bound to grant an injunction in every case. Sunil Kumar
v. Ram Prakash (1988) 2 Sec 773. A coparcener field a suit for permanent injunction to restrain
the Karta of the Joint Hindu Family from transferring the joint family property in pursuance of a sale
agreement with a third party. The Court held that such an injunction could not be granted. Therefore
the plaintiff was not entitled for grant of injunction.

184 LAW OF CONTRACTS - I
 4. LAW OF TORTS

Nature of Torts
Tort is a species of civil injury or wrong. The distinction between civil and criminal wrongs
depends on the nature of the appropriate remedy provided by law. An action for damages is the
essential mark of tort.
Liquidated and unliquidated damages.
Salmonds definition of tort. Winfields criticism and definition.
Is there a general principle of liability?
The views of Salmond, Winfield and others.
General characteristics of tortious liability.
Forms of action and liability.
The meaning of intention, negligence, strict liability and vicarious liability. Is fault an essential
condition of liability.
The standard of reasonable man and its relevance in the law of torts.
Essential of a Tort
1) Act or Omission
2) Legal Damage
Injuria Sine Damno
Darnnum Sine injuria
Malice in the sense of action determined by improper motive is generally irrelevant in the law
of torts. Bradford (Mayor of) V. Pickles.
Assault and Battery
Nature and limits.
Cases: Coward Vs Baddeley
Kadar Vs. Alagarswamy
Tuberville Vs. Savage
Lunes Vs. Savage
Stephens Vs. Myers
False imprisonment - Means complete deprivation of his liberty for any time without lawful
cause.
Meaning of false ways of committing the tort of false imprisonment. Can a man be imprisoned
without knowing it?
Grainger Vs Hill
Meering Vs Graham white aviation company
Ram Pyare Lal Vs Om prakash
Restraint must be complete:
Bird Vs. Janes
Mee Vs. Cruikshank
Means of escape to be reasonable.
Imprositian of reasonable conditions:
Robinson Vs. Balmain Ferry Co.
Herd Vs. Weardale etc., Ferry Co.

185 LAW OF TORTS
 Remedies: Judicial and extra - judicial
i) self help, 2) Habeas Corpus 3) Action for damages
Nervous Shock
A form of personal injury far which damages may be recovered in certain circumstances.
Cases: Wilkinson Vs. Downton
Dulieu Vs. White-Contrasted with
Hambraok Vs. Stokes Brothers
King Vs. Philips
Bourhill Vs. Young
Dooley Vs. Cammeli Laid & Co.
Defamation
It consist in the publication of a false statement concerning the plaintiff which tends to lower
him in the estimation of right thinking members of society or which tends to make them shun or avoid
him.
Clay Vs Robert
1. Libel: Representation made in some permanent form (e.g.) writing, printing on pictures.
2. Slander: Publication of a defamatory statement in a transient form (e.g.) words or
gestures.
Under Indian Law
South Indian Railway Co., Vs Ramakrishnan
Libel and slander.
Youssoupoff Vs M.G.M. Pictures Ltd.
Dunlop Rubber Co. Vs Dunlop
Byrene Vs Deane
Ingredients of defamation
Reference to the plaintiff :
Le Fanu Vs. Malcolmson
Innocence no defence:
Hulton & Co. Vs. Jones
Newstead Vs. London Express Newspapers Ltd.
Words to be defamtory.
Capital and
Counties Bank Vs. Henty
Lews Vs. Daily Telegraph Ltd.
Innuendo, meaning of
1. Capital and Counties Bank Vs. Henty and sons.
2. Morrison Vs. Ritihie & Co.,
3. Newstead Vs. London Express Newspaper Ltd.
4. T.V. Ramasubha Iyer Vs. A.M.A. Mohindeen.
Defamation of a class of persons. Defamation of the deceased person.
Pullman Vs Hill.
Communication between Husband and Wife.

186 LAW OF TORTS
 1. T.J. Ponner Vs. M.C. Verghese
2. Theaker Vs. Richardson.
Defences
1. Justification or Truth
2. Fair Comment
3. Privilege which may be either absolute or qualified
Rajinder Singh Vs. Durga Sahi
Tolley V.J.S. Fry & Sons Ltd., knowledge of the defendant is immaterial. Cassidy Vs. Daily
Mirror Newspapers Ltd., Juxtaposition: Monson Vs. Tussauds Ltd.
Unintention defamation: Provisions of defamation Act. 1952 (of England)
Publication:
Theaker Vs. Richardson
Sadgrove Vs. Hole
Huth Vs. Huth
Emmens Vs. Pattie
Vzetelly Vs. Mudies select Library
Martin Vs. Trustees of British Museum
Defences: Justification literal truth unnecessary
Alexander Vs. North Eastern Railway Co.
Fair Comment:
Dakhyl Vs. Labouchee
Kemsley Vs. Foot
Privilege, absolute and qualified, consent and apology.
Negligence
Negligence means either (1) a mode of committing certain other torts e.g. nuisance or trespass
or (2) an independent wrong that is a breach of a legal duty to take care which results in damage,
undesired by the defendant, to the plaintiff. Nature and extent of the duty to take care. Vaughan
Vs. Menlove; Rule in Donoghue Vs. Stevenson; You must take reasonable care to avoid acts or
omissions which you can reasonably foresee would be likely to injure your neighbour. Who, then,
in law is my neighbour? The answer seems to be persons who are so closely and directly affected
by my act that I ought reasonably to have them in contemplation as being so affected when I am
directing my mind to the acts or omissions are called in question.
1. Donoghue Vs. Stevenson.
2. Rural Transport Service Vs. Bezlum
3. The Municipal Board Vs. Brahm Kishore.
No liability when injury not foreseeable
1. Cates Vs. Mongini Bros.
2. Ryan Vs Young.
Reasonable foreseeability does not means remote possibility
Cases: In Fardon Vs. Harcourt - Rivington
Home Office Vs. Dorset Yacht Co.
Glasgow Corporation Vs. Muir
Booker Vs. Wenborn
Carmarthensive

187 LAW OF TORTS
 Country Council Vs. Lewis
Fardon Vs. Harcourt. Revington
Bourhill Vs. Young
Weller & Co. Vs. Foot and mouth Disease Research Institute
Haley Vs. London Electricity Board
Impertia culpa adnumeratur. It is a negligent act to voluntarily do a thing which can be safely
done only by a person with special skill. Dr. Laxman Barkrishna joshi Vs. Dr. Trimback Bapu Godhole.
Standard of Care:
Cases: Bolton Vs. Stone
Hilder Vs. Associated Portland Cement Manufacturers Ltd.,
Paris Vs. Stepney Borough Council
Weithers Vs. Perry Chain Co.,
Watt Vs. Hertfordshire Country Council
Latimer Vs. A.E.C. Ltd.,
The Magnitude of Risk
1. In Nirmala Vs. Tamil Nadu Electricity Board
2. Veeran Vs. Krishnamoorthy
3. Pandian Roadways Corporation Vs. Karunanidhi.
4. Glasgow Corporation Vs. Taylor.
Res Ipsa loquitur. The ancient speaks for itself. A rule of evidence and not of liability,
Conditions for the operation of this principles as laid down in Scott. Vs.
London and St. Catherine Docks Co.
Cases: Gee Vs. Metropolitan Railway Co.
Eassen Vs. L.N.E. Railway Co.
Byrne Vs. Boadle.
Words Vs. Duncan
Municipal Corporation
of Delhi Vs Subhagwanti
Alka Vs. Union of India
Karnataka State Road
Transport Corporation Vs. Krishnan
Gangaram Vs Kamlabai

POSITION AT COMMON LAW

Contributory Negligence : If the plaintiffs own negligence was the decisive cause of the
accident or so closely implicated with the negligence of the defendant as to make it impossible to
determine whose negligence was the decisive cause, the plaintiff cannot recover.
Butterfield Vs. Forrester
Changes made by law reform (contributory Negligence) Act 1945
Davies Vs. Swan Motor Co. (Swansea) Ltd.
Davies Vs. Mann, the last opportunity rule British Columbia Electric Railway
Vs. Loach fee constructive Last opportunity rule
Oliver Vs. Birmingham & Midland Motor Omni bus Ltd.
Stapley Vs. Gypsum Mines Ltd.

188 LAW OF TORTS
 Yachuck Vs. Oliver Blais Co. Ltd.,
Rural Transport
Service Vs. Bezlum Bibi
Yoginder Paul
Chowdhury Vs. Durgadas
The Last Opportunity Rule: Radley Vs. L&N W.R. Railways
The occupier of land who brings and keeps upon it anything likely to do mischief if it escapes
is bound at his peril to prevent its escape, and is liable for all the direct consequence, of its escape,
even if he has been guilty of no negligence.
Rylands Vs. Fletcher
Escape necessary: Land must have been put to non-natural user. Exceptions to the rule.
Cases: Read Vs. Lyons
Hele Vs. Jennings Bros.
Carstairs Vs. Taylor
Box Vs. V.Jubb
Northwestern
Utilities Vs. London Guarantee and Accident Co.,
Nichols Vs. Marsland
Green Vs. Chelsea water works Co.,
Charing Cross
Electricity supply Co. Vs. Hydraulic Power Co.,
Ponting Vs. Noakes.
Rules of Absolute Liability
(i) Sochacki Vs. Sas
(ii) Noble Vs Harrison
(iii) Richards Vs Lothian
(iv) Green Vs. Chelsea Water Works Co.,
(v) M.C. Mehta Vs. Union of India
Dangerous Animals
1. Ordinary liability in tort 2. Cattle trespass 3. Liability under the scienter rule.
Two classes of animals: 1 ) Ferae nature 2) Mansuetae nature.
Nature of liability,
Defence:
1. Contributory negligence.
2. Act of God.
3. Plaintiff of trespasser.
4. Valenti non fit injuria
5. Fault of the plaintiff.
Cases: Buckle Vs. Holmes
Tirlett Vs. Holmes
May Vs. Burdett
Behrens Vs. Bertram Mills Circus Ltd.
Mequaker Vs. Goddard

189 LAW OF TORTS
 Hudson Vs. Roberts
Fitzgerald Vs. Cooke Bourne (Farms)
Rands Vs. Mc Nell
In Animals Act, 1971 animals ferae nature become animals which belong to dangerous species
and animals man suetae nature become animals not belonging to dangerous species provisions, of
the Act.
TRESPASS TO GOODS AND CONVERSION
Trespass to goods consists in wrongful physical interference with possession of goods.
Remedies: 1. Detinue 2. Replevin
Conversion: Wrong against ownership
Kinds of conversion. (a) Conversion by taking: Fouldes Vs. Willough by (b) Conversion by
detention, (c) Conversion by wrongful destruction. (d) Miscellaneous forms of conversion. Defence
(a) Lien (b) Right of stoppage in transit (c) jus tertii (d) goods taken under distress or under execution
(e) Retaking good in wrongful possession of another.
Finders: If true owner is not discoverable finder has a better title than any person.
Armony Vs. Delamirie
Bridges Vs. Hawhesworth.
Hannah Vs. Peel Exception.
Kirk Vs. Gregory.
Conversion or Trover
(i) Richardson Vs. Atkinson
(ii) Rooplal Vs. Union of India
If the article found is attached to or lying under the surface of the landowner of the land is
entitled to it in priority to its finder:
Cases:
Elwes Vs. Briggs Gm Co.
Southstaffordshire
water works Co., Vs. Sharman
London Corporation Vs. Appleyard
Interference with a Subsisting Contract:
(a) By direct persuasion: Lumley Vs. Gye. But no action will lie for inducement of a breach of
contract which is void; ego wagering contract, contract in restraints of trade (b) direct interference;
G.W.K. Ltd. Vs. Dunlop Rubber Co. (c) Indirect action J.T. Stratford & Sons Ltd Vs. Lindley.

Deceit :
This tort was first stated in pasley Vs. Freeman. If the defendant makes wilfully a false statement
with the intention that the plaintiff shall act relying on it, with the result that he so acts and suffers
harm as a consequence, he is guilty of wrong of deceit. Misrepresentation must be a false statement
of fact & not a more broken promise.
If, at the time when defendant made the statement, he had no intention of fulfilling it, he is liable
for deceit. Edington Vs. Fitmaurice.
Blundering but honest belief in an honest allegation cannot be deceit, Derry Vs. Peek.
False statement must be made with the intention that the statement shall be acted upon by
plaintiff. Peek Vs. Gurney Exceptions to rule in Derry Vs. Peek.
Nocton Vs. Ashburton : Negligent Misstatement: Hedley Byrne & Co., Ltd. Vs. Heller & Partners
Ltd.

190 LAW OF TORTS
Liability for Dangerous Premises:
Liability based on occupancy or control, and not on ownership: Four kinds of visitors under
common law. 1) Contractor 2) Invitee 3) License and 4) Trespasser Duties to them. Changes made
by the Occupiers Liability Act 1957.
Cases: Francis Vs. Cockrell
Indermaur Vs. Dames
Fairman Vs. Perpetual Building Society
Mumford Vs. Naylor
Hardcastle Vs. South Yorkshire Railway Co.
Bird Vs. Holbrook
Duty to children
Coote Vs. Midland Great Western Railway of Ireland
Lathan Vs. V.R. Johnson & Nephew Ltd.
Phillips Vs. Rochester Corporation
Moloney Vs. Lambeth Borough Councill
Trespass to Land
Ways of committing the wrong of trespass to land. Trespass to subsoil. Trespass on highway.
Hickman V. Maisey, Trespass and Nuisance. Trespass by relation : immediate right to pass. Continuing
trespass. Holmes V. Wilson Interference with air space. Wilson V. Imperial Tobacco Co. Trespass ab
initio: Six carpenters case Elias Vs. Pasmore Defence: justification by law licence Remedies: 1. Re-
entry 2. Ejectment 3. Jus tertii. 4. Action for Mesne profits cases
(i) Hemmings Vs. Stoke Pogs Golf Club
Distress Damage Pheasant
Nuisance is unlawful interference with a persons use or enjoyment of land or of some right over
or in connection with it, public nuisance and private nuisance. Nuisance to incorporeal property. Right
of support, Right to light and air: Right to water. Relevance of malice in nuisance: Who can sue for
nuisance? Who can be sued for nuisance?
Nuisance Cases:
Dr. Ramraj Singh Vs. Babulal
Radhey Sham Vs. Guruprasad
Stone Vs. Bolton
St. Helens Smelting Co. Vs. Tipping
Case Law:
Barber Vs. Penley
Nuisance on highway
Defences: Valid and invalid defence
Cases: Rose Vs. Milles
Health Vs. Mayor of Brighton
Robinson Vs. Kilvert
Coil Vs. Home & Colonial Service
Christie Vs. Davey
Hollywood Silver
Fox Form Ltd. Vs. Emmett
Fay Vs. Pentice

191 LAW OF TORTS
 Fritiz Vs. Hobson
Noble Vs. Harrison
Tarry Vs. Ashton
Bliss Vs. Hall
Adams Vs. Ursell
Sturges Vs. Bridgman
Dangerous Chattels:
There is really no category of dangerous things: there are only some things which require more
and some which require less care. Liability to immediate transferee: Godley Vs. Perry:
Liability to ultimate transferee liable for fraudulent representation misleading the recipient into
causing damage to the plaintiff.
Langridge Vs. Levy
Liability for negligence liable if he has been guilty of a breach of a duty of care owed to the
plaintiff. Rule in Donoghue Vs. Stevenson a manufacturer of products, which he sells in such a form
as to show that he intends them to reach the ultimate consumer in the form in which he left him with
no reasonable possibility of an intermediate examination and with the knowledge that the absence of
care in the preparation or putting up of products will result in injury to the consumers life or property,
owes a duty to the consumer to take that reasonable care.
Cases: Brown Vs. Cotteril
Andres Vs. Hopkinson
Grant Vs. Australian knitting Mills Ltd.
Evans Vs. Triplex Safety-Glaxo Co.
Kubach Vs. Ho
Injurious Falsehood:
It consists in false statement made to other about the plaintiff as a result of which he suffers
loss through the action of the others.
Ratcliffe Vs. Evans
Passing off: One trader represent in his goods or services as those of another. While Hudson
& Co. Ltd. Vs. Asian organization Ltd.
Hendriks Vs. Mantaque
Reddaway Vs. Benhan
Fels Vs. Hedley & Co.
Benme & Co, Ltd Vs. Moore Ltd.
Jays Ltd. Vs. Jacobi
Parker-Knold Ltd Vs. Knoll international Ltd
Day Vs. Brownrigg
Conspiracy
It consists in agreement of two or more persons to do an unlawful act, or to do a lawful act by
unlawful means.
The Moghul case
Allen Vs. Flood
Quinn Vs. Leatham
Moghul steamship Co. Vs. Mcgregor Gow & Co.
Crafter Hand Woven

192 LAW OF TORTS
 Harris Tweed Co. Ltd. Vs. Veitch.
Soreil Vs. Smith
Scala Ball room
(oliver hampton) Ltd. Vs. Ratcliffe.
Malicious Prosecution:
It consists in instituting unsuccessful preceding maliciously and without reasonable and
probable cause against a person which result in damage to him.
Abrath Vs. North-eastern Railway
Infringement of privacy, It is interference with another persons seclusion of himself, his family
or his property from the public.
Williams Vs. Settle
Monson Vs. Tussands Ltd.
Gokul Prasad Vs. Radho
Komathy Vs. Gurunanda
MINOR: A minor can sue for torts committed against him just like an adult. He is as much liable
to be sued for torts as it and adult.
Gorley Vs. Codd
OBrain Vs. McNamee
An action based on contract cannot be converted into an action of tort.
Leslie Vs. Sheil
Jennings Vs. Rundall
Branard Vs. Haggis
Batlet Vs. Mingay
Parents are not as such responsible for their childrens torts
Newton Vs. Edgerley
Goriey Vs. Codd
INSANITY: It is not in itself a ground of exemption from liability for tort.
Morris Vs. Marsden
CORPORATION: A corporation can sue for torts committed against it. It is liable for torts
committed by its agents or servants provided the tort is committed in the course of doing that act
which is within the scope of the powers of the Corporation.
Poulton Vs. L.& N. W. Railway Company
Compbell Vs. Paddington Corporation.
JUDICIAL ACTS: If the judge acts within his jurisdiction no action lies for acts done or words
spoken by him in exercise of his judicial office, although his motive is malicious and the acts or words
are not done or spoken in the honest exercise of his office.
Judicial officers Protection Act, 1850
Sailajanand Pande Vs. Suresh Chandra Goel, State of U.P. Vs. Tulasiram protection is only for
judicial acts, and not for administrative or ministerial acts.
JOINT WRONGDOERS: Their respective shares in the Commission of the wrong are done in
furtherance of the common design.
Brooke Vs. Bool
Liability is joint and several Nature of liability
Brinsmead Vs. Harrison
Provisions of Law Reform (Married Women And Tort Feasors) Act, 1935

193 LAW OF TORTS
 Whether one wrongdoer, who had paid damages, has a right to claim compensation from other
wrongdoers?
Merryweather Vs. Nixon
Adamson Vs. Jarvis
The law Reform (Married Women and Tort Feasors) Act, 1935 enables a wrongdoer to claim
contribution from the other wrongdoers. Successive actions on the same facts of the case:
More than one action will not lie on the same cause of action.
Fritter Vs. Veal
If there are two distinct causes of action successive actions will be permitted.
GENERAL DEFENCES
VOLENTI NON FIT INJURIA - That to which consent is given cannot be complained of as an
injury. It applies to intentional and negligent harm. The consent must be real.
Cases: Hall Vs. Brooklands Auto Racing Club.
LIMITATION
Rescue Cases :- Haynes Vs. Harwood
(1) Mere knowledge of the risk is not the same as consenting to the risk. The Maxim is volenti
non fit injuria not scienti non fit injuria.
Smith Vs. Baker & Sons (1981) 60 L.J.Q.B. 683 (1981) A.C. 325.
Smith was employed by Baker & Sons in their stone Ouarry. He worked in a cutting operation.
On his top a crane often jobbed (swing) heavy stones over his head while he was drilling the rock
facing in the cutting. Both he and his employers knew that there was a risk of the stone falling, but
no warning was given to him of the movement at which any particular jibbing was to commence. A
stone from the Crane fell upon and injured him, HELD by a majority of the House of Lords that (1)
Smith had not voluntarily undertaken the risk; (2) there was negligence on the part of his employers
and therefore (3) the employers were liable.
In the case of Master and Servant the maximum should be applied with very great caution
where a person undertakes to do work which is intrinsically dangerous, now withstanding that
reasonable care has been taken to render it as little dangerous as possible, he no doubt voluntarily
submits himself to the risk inevitably accompanying it; but in the case of ordinary occupations, mere
knowledge of the risk does not necessarily amount to consenting to the risk). Imperial Chemical
Industries V. Sharwell.
Dann Vs. Hamilton (1939) I.K.B. 509.
The plaintiff voluntarily chose to travel by motor car though she knew that the driver of the car
was under the influence of drink and though she could have her journey by bus. She was injured in
an accident caused by the drivers drunkenness.
HELD She could recover damages. Mere Knowledge of the risk is not the same as consenting
to the risk.
Insurance Commissioners Vs. Joyce.
(2) The maxim has no application to Rescue cases.
Haynes Vs. Harwood (1935) I.K.B. 146.
The defendants servants had left his van and horses unattended in a crowded street. The
horses bolted when a baby threw a stone at them. The plaintiff was a police constable who was on
duty in a nearby police station. He saw that if nothing was done a woman and children were in grave
danger, and with great personal risk he managed to stop the horses but in doing so he suffered
serious injuries to rescue cases.
In an action against the defendants it was held that the plaintiff was entitled to recover damages.
The maxim Volenti non fit injuria has no application to rescue cases.

194 LAW OF TORTS
M Vs. Aylen
The plaintiff was in the habit of accompanying a small child home from school. One day when
returning from school the child has stepped on to the road from the pavement when the plaintiff saw
the defendant who was riding his motorcycle approaching at a rash speed. The child was in great
danger of being knocked down, when the plaintiff rushed on to the road to try to save the child but in
the process she herself was knocked down by the motor cyclist and injured.
It was held that she was entitled to recover damages from the motor cyclist as the maximum
volenti non fit injuria has no application to rescue cases.
Cutlet Vs. United Diaries
Baker Vs. T.E. Hopkines & Sons Ltd.
Videan Vs V. British Transport Board.
INEVITABLE ACCIDENT
An accident not avoidable by any such precaution as a reasonable man, doing such an act
then are there, could be expected to take - Polock.
The Nitro - Glycerine Case 15 Wall 524 (1872).
The defendants, a firm of carriers, received a wooden case at New York to be carried
to California. There was nothing in its appearance calculated to awaken any suspicion as to its
contents. On arriving at San Franciseo it was found that the contents were leaking. The case was
then, according to the regular course of business, taken to the defendants office (which they had
rented from the plaintiffs (or) examination. A servant of the defendants proceeded to open the case
with mallet and chisel the contents being Nitro-Glycerine exploded, and all the persons present were
killed and the plaintiffs building damaged. The action was brought by the plaintiff for damage to his
building. It was found as a fact that the defendants had not, nor had any of the person concerned in
handling the case, knowledge or means of knowledge of its dangerous character, and that the case
had been dealt with in the same way that other cases of similar appearance were usually received
and handled and the mode that men of prudence engaged in the same business would have handled
cases having similar appearance in the ordinary course of business when ignorant of their contents.
HELD: Defendant was not liable as the damages was due to an inevitable accident.
(No one is responsible for injuries resulting from unavoidable accident whilst engaged in a
lawful business.)
Brown Vs. Kendall 6. Cush. 292. 1850
The plaintiffs and defendants dogs were fighting. The defendant was beating them with a stick
in order to separate them while the plaintiff was looking on. The defendant retreated backwards from
before the dogs, striking them as to be and as he approached the plaintiff, with his back towards
him, in raising his stick over his shoulder in order to strike the dog he accidentally hit the plaintiff in
his eye thus causing him a severe injury.
In an action for trespass for assault and battery the Supreme Court of Massachusetts held
that this act of defendant in itself was a lawful and proper act which he might do by proper and
safe means; and that in doing this act, using due care and all proper precaution necessary to the
exigencies of the case to avoid hurt to others, in raising his stick for the purpose, he accidentally, hit
the plaintiff in the eye and wounded him, this was the result of pure accident, or was involuntary and
unavoidable, and therefore the action would not
All that could be required of the defendant was the exercise of due care adopted to the exigency
of the case.
Holmes Vs. Mather L. R. 10 Ex 44. (1875)
The defendant was out with a pair of horses driven by his groom. The horses ran away and the
groom being unable to stop them, guided them as best as he could. But he failed to get them round
the corner and they knocked down the plaintiff.

195 LAW OF TORTS
 The jury found there was no negligence. It was argued on the authority of the old cases that a
trespass has been committed. The court refused to take this view, but said nothing about inevitable
accident in general.
For the convenience of mankind in carrying on the affairs of life, people as they go along roads
must expect, or put up with, such mischief as reasonable care on the part of other cannot avoid.
Stanley Vs. Powell (1898) I. Q. B. 86
The plaintiff and the defendant were members of a shooting party. The defendant fired his gun
a peasant which rose, but not in the direction of the plaintiff, but a pellet from the cartridge glanced
off the bough of a tree and destroyed the eye of the plaintiff who was employed in carrying cartridges
for the shooting party.
The plaintiff sued the defendant who was held not liable for negligence because there was
none, nor for trespass to the person because the harm was accidental in the same that there was
no negligence or want of due caution in its occurrence. Denman J. based his decision on the ground
that even if the action were in trespass, not case, the injury being accidental the defendant could not
be liable.
MISTAKE: Mistake, of law, of fact, no excuse, Consolidated Co. Vs. Curtis.
ACT OF GOD
Not a general defence like inevitable Accident but restricted to caution based upon the rule in
Rylands Vs. Fletcher and other instances of Strict or Absolute liability. It is due of operation of Natural
forces in which there is no human agency involved.
Nichols Vs. Marsland (1876) 2 Ex. D.1.
The defendant had constructed several artificial ornamental lakes on her land and filled it with
water by damming a natural stream. The embankment were well and carefully constructed and were
adequate for all ordinary occasion. An extraordinary rainfall greater and more violent than any within
human memory broke down the artificial embankment and the rush or escaping water carried away
from country bridges belonging to the plaintiff, in respect of which the plaintiff sued the defendant.
Judgement was given for the defendant, the jury had found that she was not negligent and
the court held that she ought not be liable for an extraordinary act of nature which they could not
reasonably anticipate.
Greenock Corporation Vs. Caledonian Railway (1917) A. C. 556
The Corporation in laying out a park had constructed paddling pool for children in the bed of a
stream and thereby altered its course and obstructed its natural flow.
Owing to rainfall of extraordinary violence the stream overflowed at the pond and a great
volume of water, which would have been safely carried away by the stream in its natural course
flooded the property of the Railway Company.
HELD by the House of Lords that this was not an Act of God and the corporation was liable.
Flour of the law, Lords cast doubt upon the finding of the jury in Nichols Vs. Marsland and two of them
distinguished his case on the ground that no one could say that such rainfall was unprecedented in
Scotland where the case arose.
Necessity: If the defendant is acting under necessity to prevent a great evil he may not be liable
even for damage done intentionally. Cope Vs. Sharpe.
STATUTORY AUTHORITY
May be of two kinds (i) Absolute Authority (i.e.) authority to do the act not withstanding the fact
that if necessarily causes a nuisance or other injuries to third parties, Or (ii) ,Conditional Authority to
do the act provided it can be done without causing a nuisance or other injurious consequence.
1) Green Vs. Chelsea Water Works Co.
2) Vaugham Vs. Taff Vale Railway (1806) 5 H.N.679

196 LAW OF TORTS
 The defendant Railway Company has statutory authority to use steam engine for their trains. A
spark escaped from one of their engines and set fire to the plaintiffs which was alongside the railway
lines.
It was proved that the engines were constructed with all due care and skill and that it was
impossible wholly to prevent the escape of sparks.
HELD: Defendants were not liable. They had absolute statutory, authority, Metropolitan Asylum
District Vs. Hill (1881) 6. A. C. 193.
A local authority had been authorised by statute to erect a hospital for patients suffering from
Smallpox and other infectious diseases. They constructed a hospital near the plaintiffs property. This
constituted nuisance to the plaintiff and, he brought an action for an injunction to stop the defendant
from using the building as a small pox hospital.
HELD the defendant could be restrained. The statutory authority was construed, not a absolute
authority to erect a hospital where the defendants pleased and whether a nuisance was thereby
created or not, but as a conditional authority to erect one if they could obtain a suitable site where no
nuisance would result to others.
Private defence: Of person and property. Law permits a man to use reasonable degree of force
for the protection of himself on others against unlawful use of force.
MOTIVE - MALICE
In general, motive is irrelevant in the law of Torts. An act which is not otherwise tortuous will not
become wrongful because it is done with a malicious motive.
Mayor of Bradford Vs. Pickles (1895) 64 L. J. Ch. 759 (1895) A. C. 597
Pickles was annoyed at the refusal of the Bradford Corporation to purchase his land in
connection with a water supply scheme. Therefore, animated by the most spiteful and revengeful
motive, Pickles deliberately sank shafts on his land pumped out all the under ground penolating
water as a result of which the corporations water supply became dry and polluted.
Held in action for an injunction to restrain the defendant that Pickles was not liable. The act,
done by him was one which he was entitled to do. The mere fact that the act was done with an evil
motive will not convert his otherwise lawful act into a wrongful one.
No use of property which would be legal if due to a proper motive can become illegal because
it is promoted by a motive which is improper or even malicious
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 motive, however reprehensible it may be, will
not supply that element.
CAPACITY OF PARTIES
1) Act of State
2) Corporations
3) Minor
4) Independent and Joint Tort feasors (composite Tort-feasors)
5) Husband and wife
1. THE STATE (a) England
The law in England on this matter has been greatly changed by the crown proceedings Act
1947, Section 2 (1 ) of the Act provides as follows:
Subject to the provisions of the Act, the Crown shall be subject to all those liabilities in tort to
which, if it were a private person of full age and capacity it would be subject.
(a) In respect of torts committed by its servants or agent;
(b) In respect of any breach of their duties which a person owes to his servants or
agent in common law by reason of being employer; and
(c) In respect of any breach of the duties attaching at common law to the ownership,
occupation, possession or control of property.

197 LAW OF TORTS
 The liability of the crown is of course conditional on the agent or servant being liable in tort for
such conduct. There are several exceptions provided by the Act such as that no action will be against
the kind in his personal capacity, no action possible in respect of act or omissions of its servants or
agents in relation to a postal packer or telephonic communications or respect of an act or omission
of a member of the Armed forces causing death or personal injury to another member of the Armed
Forces etc.
(b) India
Article 300 of the constitution of India provides for suits against the Government.
A distinction is made between mercantile or private function of the Government on the one
hand and Sovereign Act on the other. For acts done in former capacity Government can be sued,
but not for acts done in sovereign capacity just as in the case of the East India Company provisions
to 1858.
P & 0 Steam Navigation Company Vs. Secretary of State for India (1861) Born. H. C. R.
The plaintiffs horse was injured owing to the negligence of the servants employed in the
Governments dockyard on the river Hoogly who had allowed a heavy piece of machinery on the
horse while it was being led along the dockyard in a action brought in by the plaintiff against the
Government.
HELD: Government would be liable, as the maintenance of the dockyard was an act done by
the Government in its mercantile capacity.
Secretary of State for India Vs. Cockraft (1914) I.LR. 39 Mad. 351
The Government was maintaining a military road in Malabar. Owing to the negligence of
servants employed by the Government a heap of gravel was left in the middle of the road on which
the plaintiffs carriage dashed and capasized and the plaintiff was injured. In an action against the
Government.
HELD: No action would lie as the maintenance of a military road was an act done by the
Government in its sovereign capacity.
ETTI Vs. Secretary of State for India I. L. R. (1939) Mad. 843
The plaintiff has taken his infant son for treatment at the Government women and childrens
hospital in Egmore. He was asked to come back some days later to take away his child. When he
went there he was informed that by mistake his child had been given away to some other person. For
the negligence of the hospital staff the plaintiff brought an action against the Government.
HELD: That since the hospital was maintained by the Government out of a public Revenue and
for the benefit of the Public, the Government was acting in the exercise of their sovereign functions
and so no action would lie.
State of Rajasthan Vs. Vidhyawati A.I.R. 1962 / S.C. 1933
The driver of a jeep which was owned and maintained by the State of Rajasthan for the official
use of the collector of a district; drove the Vehicle negligently while bringing it back from a workshop
after repairs and knocked down a pedestrian who died subsequently. In an action by the widow
against the state of Rajasthan ..
HELD: As the maintenance of the jeep for the Collectors use not an act done in the exercise
of sovereign powers by the Government of the State of Rajasthan, it could be made liable for the
negligent act of the driver.
Kasturi Lal Ralia Ram Jain Vs. State of U. P. :
The Supreme Court held that the State is not liable for the acts done by its servants in the
exercise of statutory duties.
ACT OF STATE
An act injurious to the person or to the property of some person who is not at the time of that
act a subject of Her Majesty; which act is done by an representative of Her Majestys authority, civil or
military, and is either previously sanctioned or subsequently by Her Majesty - Sir Fitzames Stephon.
For an act of State neither the State nor its representative is liable.

198 LAW OF TORTS
BURON Vs. DENMAN (1948) 2 EX. 167.
The plaintiff a Spaniard was a slave trader who owned some slaves and some buildings,
housing the slaves in the West Coast of Africa. The defendant who was a captain the British Navy
released the slaves and set fire to the plaintiffs property. He had no authority to do so but his act was
ratified by the British Government who congratulating him on his Spirited and able conduct granted
him a reward of $ 4,000.
It was held that Buron had no remedy for lies Paris as it was an act of State.
An Act of State can only be justified against foreigners.
JOHNSTONE Vs. PEDLAR (1921) 2A, C.262.
Pedlar, an Irishman, became a naturalised American citizen, returned to Ireland in 1916, took
part in a rebellion there, and was deported. In 1917 he returned to Ireland and in 1918 was arrested
there for illegal drilling. A sum of money found upon his was confiscated by the police, the action
being ratified by the Chief Secretary for Ireland. Pediar sued the Chief Commissioner of Police for
wrongful detention of the money are alternatively for damages for conversion of it. The defendant
pleaded act of State.
The House of Lords; held the defence bad, as there cannot be an act of State between a
Government and its own subjects. A friendly alien residing in Britain is in the same position as a
British subject even if a resident alien flagrantly violates his allegiance to the Crown as Pediar had
done.
MASTER AND SERVANT
The master is liable for any tort which the servant commits in the course of this employment.
The Servant is also liable.
WHO IS A SERVANT?
A servant is one whose work under the control of another. He must be distinguished from an
independent contractor who undertakes to produce a given result but so that in the actual execution
of the work he is not under or control of the person for whom he does it and may use his own
discretion in things not specified beforehand.
Performing Right Society Vs. Mitchell 1924, I. K. B. 762
The plaintiffs were the proprietors of the sole right of performing in public certain musical work.
They alleged that the defendants infringed their copyright in two musical works by allowing
their band to play these musical items in public in a dance ball owned by them without getting the
plaintiffs consent.
HELD: Mc Carida J. that the defendants were vicariously liable for the act done by the band
who were servants of the defendants and not independent.
The agreement between the defendants and the band made the band the servants of the
defendants ... It provides for seven hours daily service. It mentions salary .. it mentions pay. It
uses the word employ. It provides for a period of employment. It provides that the band shall play at
any place in London where the defendants may direct. It provides that the services shall be at the
exclusive disposal of the defendants. It gives the defendants the right of immediate dismissal for the
breach of any reasonable instruction or requirements. Above all it gives 1 think, to the defendants the
right of continuous dominant and detailed control on every point including the music to be played. In
my opinion this is not a case of an independent contractor agreement with some features of service
agreement, it is a case rather of a service agreement with several peculiar features appropriates to
the employment of a band ...
Hospital Cases
Hilleyer Vs. The Governors of St. Barthalomews Hospital (1909) 2 K. B. 820 (C. A.):
The plaintiff had gone for treatment at the defendants hospital. He was taken to the operating

199 LAW OF TORTS
theatre for examination and placed under an anaesthetic. When he recovered consciousness he
found that his arm had been brushed by coming into contact with, hot water can, due to the negligence
of the hospital staff. The staff concerned consisted of a consulting Surgeon, a house surgeon, an
anesthetist and three nurses. The plaintiff claimed damages from the hospital authorities for the
negligence of their staff.
It was held that hospital authorities were not liable as the members of their staff involved were
not servants for the purpose of liability ..
Farwell L. J. .... The first question then is : Were any of the persons at the examination servants
of defendants ?. It is impossible to contend that Mr. Lockwood the surgeon, or the acting assistant
surgeon, or the acting house surgeon, or the administrator of anesthetics or any of them were
servants in the proper sense of the world: they are all professional men employed by the defendants
to exercise their profession to the best of their abilities according to their own discretion: But in
exercising if they are in no way under the orders or bound to obey the direction of the defendant. .. It
is true that the defendants have power to dismiss them, but it has this power not because they are its
servants but because of its control of the hospital where their services are rendered. They would not
recognise the right.. While retaining them, to stand on a somewhat different of patients. The three
nurses and the two carriers stand on a somewhat different footing, and I will assume that they are the
servants of the defendants. But although they are such servants for general purposes, they are not
so for the purposes of operations and examination by the medical officers. It and so long as they are
bound to obey the orders of the defendants. It may be that they are their servants, but as soon as the
door of the theatre or operating room has closed on them for the purposes of an operation (in which
term (i) include examination by the surgeon) they cease to be under the orders of the defendants,
and are the disposal and under the sole orders of the operating surgeon until the whole operation
has been completely finished .. The nurses and carriers therefore, assisting at an operation cease for
the time being to be the servants of the defendants, in as much as they take their orders during that
period from the operating surgeon alone and not from the hospital authorities.
Gold Vs. Essex Country Council (1942) 2.K.8. 293 (C. A)
The plaintiff, a child of 5 was taken to the defendants hospital for treatment for warts on her
face. She was seen by the visiting dermatologist of the hospital who prescribed treatment by 1000
units Grenz rays and sent the plaintiff to the radiology department. The department was in charge of a
radiologist, but the treatment was given to the plaintiff by a qualified and competent radiographer who
was employed under a full time contract of service. In the course of the treatment the radiographer
was admittedly negligent in that he covered the plaintiffs face only with a piece of lint while submitting
her to the Grenz ray treatment. As a result the plaintiffs face permanently disfigured.
HELD that the hospital authorities were liable for the negligence of the radiographer even
though he was a skilled professional man.
The Court of Appeal in this case repudiated the opinion expressed in Hiltyer Vs. St. Barthalomews
Hospital that a hospital was not responsible for the negligence of its professional staff (including
trained nurses) in matters involving professional care and skill as distinct from matters of a purely
administrative nature.]
Cassidy Vs. Ministry of Health (1951) 2 K. B. 343 (C. A.)
The plaintiff, a general labourer was suffering from a contraction of the third and fourth fingers
of his left which was diagnosed as Dupuytrens conditions. He went to a hospital belonging to the
defendants where an operation was performed by Dr. Fahrni, a highly qualified surgeon who was a
whole time assistant medical officer of the hospital. After the operation the patient hand and lower
arm was kept rigid in a splint for about 14 days although the patient had complained and his hand
was to all intents and purpose useless. The post operative treatment was under the case of Dr.
Fahrni, a house surgeon and the hospitals nursing staff.
The plaintiff claimed damages from the hospital authorities for their negligence on the part of
the staff.
HELD that the hospital authority would be liable for the negligent post operational treatment
afforded by the full time staff (assistant medical officer, house surgeon and nurses) each of whom were

200 LAW OF TORTS
employed under a contract of service. The fact that these employees were exercising professional
care and skill was held to be no defence.

LENDING OF A SERVANT
Where a servant is lent by his master to another person, and the servant commits a tort against
a third person in the course of his work for that other person, the question as to which of his two
masters will be responsible will depend on which of them had the right to control his work at the time
he committed the tort in the sense that he is entitled to order the servant, not only what he is to do,
but also how he is to do it.
Mersey Locks and Harbour Board Vs. Goggin and Graffiths Ltd., (1947) A. C. I.
The appellant Harbour owned a number of mobile cranes, each driven by a skilled workman
(driver) engaged and paid by them for the purpose of letting out the cranes so driven, to applicants for
unloading cargo from ships. There was a clause in the conditions of hiring. The drivers so provided
shall be the servants of the applicants. The Respondents Coggins and Griffiths Ltd. Were a firm of
stevedore who had hired a mobile crane together with its driver from the Harbour board. While the
crane driver was opening the crane for the hirers, he was negligent and a serious injury was caused
to one Mc. Farlane who was trapped and struck by the cranes.
The question was whose servant was the crane driver at the time of the accident.
It was held that not withstanding the clause in the contract of hiring it was the permanent
employers of the crane driver (i.e.) the Harbour Board who was vicariously liable because they had
the control of the servants work at the time of the accident.
Lord Porter in his judgement stated:
Many factors have a bearing on the result. Who is a paymaster, who can dismiss, how long
the alternative service lasts, what machinery is employed, have all be kept in mind ... But the ultimate
question is not what specific orders, or whether any specific orders were given but who is entitled to
give the orders as to how the work should be done. Where a man driving a mechanical device, such
as a crane is sent to perform a task, it is easier to infer that the general employer continues to control
the method of performance since it is his crane and the driver remains responsible to him for its safe
keeping ....
Lord Ushwatt in the course of his judgement said:
..........The manner in which the crane was to be operated was an remained exclusively the
workmans affair as the servant of the appellant board. The workman (crane driver) in saying in his
evidence I take no orders from anybody he asserted what was involved in the hiring out of the crane,
committed to his charge by the appellant board, arid so far as the respondent Company (Coggins
and Griffiths Ltd. was concerned gave an accurate legal picture of his relations to the respondent
company. The respondent ,Companys part was to supply him with work; he would do that work, but
he was going to do it for the appellant board as their servant in his own way.........
Casual delegation of Authority: A, while still retaining his right of control of his chattel allows
B to use it for a purpose in which A has some interest and B negligently injures C. with it. A is
liable to C.
Hull Vs. Lees
Ormrod Vs. Crosville Motor Service Ltd.,
Scarsbrook Vs. Mason
Britt Vs. Galmoye
COURSE OF EMPLOYMENT
Unless the servant has committed the wrong in the course of his employment the master will
be liable. Cases
National Insurance Co. Kanpur Vs. Yogendra Nath

201 LAW OF TORTS
1) Mistake of Servant
A servant may be acting in the course of his employment even if he makes a mistake as to the
scope of the authority conferred on him by his master
Baylay Vs. Manchester, Sheffield and Linconshire Rly. (1873) 42 L. J. C. P. 75
A porter employed by the defendant Railway Company asked plaintiff, a passenger who had
taken his seat in a railway Carriage, where he was going. The plaintiff replied, To Maccles field and
in fact that was there the train was going. But the porter mistakenly thinking that he was in the wrong
train told him so and violently pulled him out of the train as it started moving off and the passenger
fell on the platform and was injured.
The plaintiff sued the defendant Railway Company on the ground that the porters tort was
Committed in the course of his employment.
HELD that the Railway company was vicariously liable. It was part of the porters duty to see
that passengers were travelling in the right trains. One of the rules of the Railway Company was that
porters are to do all in their powers to promote the comfort of the passengers and the interests of
the Company. No doubt the porter made a blunder, but he had authority to prevent passengers going
by a wrong train. So since he was doing an authorised act but in an unauthorised manner., he was
acting within the course of his employment and his master would be liable.
Poland Vs. Parr & Sons
(2) Negligence of Servant
Williams Vs. Jons (1896) 3 H and C. 602
A Carpenter employed by X to make a wooden sing board while working in Ys shed lit his pipe
and carelessly threw away the lighted match which set fire to the wooden shavings and burned Ys
shed,
HELD that the first was not caused in the course of the carpenters employment and therefore
X was not liable to Y.
Jafferson Vs. Derbyshire Farmers Ltd. (1921) 2 K. B. 281
The defendants were using the plaintiffs premises as a garage. A servant of the defendants
while transferring motor spirit from a drum into some tins, lit a cigarette and threw the match on the
floor. The spirit caught fire and the shed was burnt.
The defendants were held liable as the servants act was a negligent performance of his work
(i.e.) drawing motor spirits.
In one sense it may be said that the act of the boy in lighting and throwing away the match
was not done in the course of his employment; .... but that is not the way in which to approach
the question. It was in the scope of his employment to fill the tin with motor spirit from the drum.
The work required special precautions. The act which caused the damage was an act done while
he was engaged in this dangerous operation, and it was an improper act in the circumstances.
That is to say, the boy was doing the work of his employers in an improper way and without taking
reasonable precautions; and in that case the employers are liable. Williams Vs. James 3.H. and C.
602 is distinguishable, because the making of a sign-board is not in itself a dangerous operation
demanding the exercise of any precautions. The act of the Carpenter in lighting his pipe had no
connection with the work he was engaged to perform. The act was no breach of any duty to exercise
due care and caution in the work on which he was engaged because the work on which he was
engaged was not dangerous Per. Warrington L.J.
Century Insurance Co. Ltd., Vs. Northern Ireland Road Transport Board (1942) A. C. 509
(House of Lords).
The driver of a petrol lorry, employed by the defendants, while transferring petrol from a lorry
to an underground tank in the plaintiffs garage, struck a match to light a cigarette and threw it on the
floor and caused a fire and an explosion which damaged the plaintiffs property.
The defendants were held liable, for the careless act of the driver was done in the course of
his employment. Lord Wright pointed out that the act of the driver in lighting his cigarette was done

202 LAW OF TORTS
for his own comfort and convenience was in itself both innocent and harmless. But the act could not
be treated in abstraction from the circumstances as separate act; the negligence was to be found by
considering the time when and circumstances in which the match was struck and thrown down, and
this made it a negligent method of conducting his work.
Sitaram Vs. Santanuprasad
Station Vs. National Coal Bound
Storey Vs. Ashton
(3) Wilful Wrong of Servant
Limpus Vs. London General Omnibus Co. (1862) I. H. & C. 526
The driver of the defendants bus had printed instruction not to race with or obstruct other
vehicles. In disobedience to this order the driver obstructed a rival bus by driving across the road,
and caused a collision which injured the plaintiffs bus.
The defendants were held liable because what the driver did was merely a wrongful, improper
and unauthorised mode of doing an act which he was authorised to do namely to promote the
defendants passenger carrying business in competition with their rivals. The driver whose conduct
was in question was engaged to drive and the act which did the mischief was a negligent modof
driving for which his employers must answer, irrespective of any authority or of any prohibition.
Twine Vs. Beans Express Ltd. )1946) 62 T. L. R. 155
The employers had expressly forbidden the driver of one of their vans from giving a lift to any
unauthorised persons and had affixed a notice to this effect on the dash board of the van. Despite
this the driver gave a lift to a person, who knew of the breach of instructions and was killed by reason
of the drivers negligence. The Court of appeal held that the driver was acting outside the scope of
his employment and so his employers were not liable.
He was doing something that he had no right whatsoever to do, and qua the deceased man
he was as much as a frolic of his own as if he had been driving somewhere on some amusement of
his own quite unauthorised by his employers.
Giving a lift to an unauthorised person was not merely a wrongful mode of performing the act
of the class this driver and employed to perform but was the performance of an act of a class which
he was not employed to perform at all.
It may be otherwise in the cases of stray passengers, picked up by a driver to whom no contrary
instruction had been given. Or if the plaintiff could show that the defendants had acquiesced in their
servants branches of his instructions.
A master is liable if the tort is committed in the course of employment even though it was not
committed for the benefit of the master.
Fraud of Servant
Lloyd Vs. Grace Smith & Co. (1912) A. C. 716 House of Lords
The plaintiff was a widow who owned some cottages. Being dissatisfied with the income
which they produced, and from a mortgage on other property and wishing to find a more profitable
investment, she went to the office of the defendant, Frederick Smith, who was then the sole member
of Grace Smith & Co., a firm of solicitors. There she saw one Sandles whom she thought to be
a partner, but who was the managing clerk who conducted all the conveyancing business of the
defendants without supervisors. Acting on his advice she directed him to sell the cottages and call
in the mortgage. Sandles then fraudulently induced her to sign certain documents, on the pretence
that documents were necessary for the sale of the property. Actually there was a conveyance of the
cottage to Sandles. He then dishonestly disposed of the property for his own benefit.
Smithon J. gave judgement 1 ; for the plaintiff. The Court of Appeal reversed this. But the House
of Lords unanimously reversed the decision of the Court of Appeal and restored the judgement of
smithon J.

203 LAW OF TORTS
 It was held that the fraudulent act committed by the clerk was done in the course of his
employment and the employers would be vicariously liable even though the tort was committed for
the servants own benefit and the master did not stand to give anything .
.... The general rule is, that the master is answerable for every such wrong of the servant or
agent as if committed in the course of the service and for the masters benefit though no express
command or privity of the master be proved ... But it is a very different proposition to say that the
master is not answerable for the servant or agent committed in the course of the service, if it be not
committed for the masters benefit.
... It would be absolutely shocking to my mind if Mr. Smith was not held liable for the fraud of
his agent in the present case. When Mrs. Lloyd put herself in the hands of the firm, how was she
to know that the exact position of Sandles was? Mr. Smith carries on business under a style of firm
which implies that unnamed persons are, or may be, included in its members. Sandles speaks and
cut as if he were on of the firm. He points to the deed boxed in the room and tells her that deeds are
quite safe in our hands. Naturally enough she signs the documents he puts before her while trying
to understand what they were. Who is to suffer for this mans fraud? The person who relied on Mr.
Smiths accredited representative, or Mr. Smith who put this rogue in his place and cloth him with
his authority. If Sandles had been a partner in fact. Mr. Smith would have been liable for the fraud of
Sandles as his agent. It is a hardship to be liable for the fraud of your partner. But that is the law under
the partnership Act. It is less a hardship for a principal to be held liable for the fraud of his agent or
confidential servant. You can hardly ask your partner for a guarantee of his honesty. But there are
such things as fidelity policies. You can assure the honesty of the person you employ in a confidential
situation, or you can make your confidential agent to obtain a fidelity policy Per Lord Macnaughten.
(4) Criminal offence of Servant
Warren Henlys 1948) 2 All E. R. 935
The defendants who were the owners of a service station employed a petrol pump attendant.
The attendant erroneously believing that the plaintiff who was a customer would drive away
his car without paying money for petrol he had filled in his car and without surrendering the coupons,
entered into a violent quarrel with him. The plaintiff after paying the bill and giving the coupons called
in a policeman who tried to pacify the parties. Subsequently the plaintiff told the attendant assaulted
him on his face.
HELD by Hilbery J. that the employers were not liable for this assault committed by the servant
because the assault was an act of personal vengeance and not within the course of employment
Peterson Vs. Royal Oak Hotel Ltd. (1948) N. Z. L. R. 136
Court of Appeal of New Zealand.
The plaintiff was in the bar of Royal Oak Hotel when an elderly customer who had been refused
a drink by the barman named Price. The customer resenting the refusal, threw an empty glass at
the barman, who in his turn took a portion of the broken glass and hurled at back at the resentful
customer. A fragment of the glass became detached from the main piece and struck the plaintiff who
was standing nearby, in his eye.
(5) Negligent delegation of authority by the Servant
If a servant negligently delegates his authority and instead of himself carefully performing
a duty allows it to be negligently performed by another person, the master will be liable for such
negligence of the servant. Thus if a driver instead of himself driving the bus allows somebody else to
drive the same it would amount to negligent mode of performance of the duty by the driver.
Case Laws: 1) Baldeo Raj Vs. Deowali
2) Ilkiw Vs Samuels.
Cases :- Baldeo Raj Vs. Deowali
Indian Insurance Co. Vs. Radhabai
Ilkiw Vs Samuel
Ricketls Vs. Thomas Tilling Ltd.

204 LAW OF TORTS
 It was argued that the employers were not liable for this act of the barman was not done in the
course of his employment, as the barman threw the piece of glass not to ensure the troublesome
customer leaving the hotel but owing to his personal resentment and anger against the customer.
HELD that the employers were liable at the act done by barman was done in the course of his
employment. The barman had been authorised to maintain order in the hotel and his act in throwing
the glass could be considered as a wrongful act through unusual method of maintaining order.
... In the Century case the smoking and lighting of the cigarette was for the servants own
pleasure, yet the master was liable because the servants act was a wrongful mode of doing his
work. In the present case even if it was because of resentment alone, the throwing of the glass was
nevertheless a wrongful mode of keeping order, and liability is imposed on the employer
Doctrine of Common Employment Position in England
1) Priestly Vs. Fowler
Under English common law, a master was not responsible for negligent harm done by one of
his servant to fellow engaged in a common employment with him.
This rule has now been abolished by the law reform (Personal Injuries) Act 1948. The rule is
also no now applicable in India.
2) Radcliffe Vs. Ribble Motor Service Ltd. (1939) A. C. 515
A and B Were motor drivers employed by the defendants to take parties by their buses
from Liverpool to New Brighton .. B had been told to return to the defendants garage to Bottle, the
particular route of his return journey being left to his own discretion. On the return journey he stopped
at a particular point for some unknown reason. A happened to be returning by the same route and
in pulling out to pass Bs vehicle, he negligently knocked down and killed B who was standing by his
own vehicle. Bs personnel representatives sued the defendants under the Fatal Accidents Act 1846
and also under the Law Reform. (Miscellaneous). (Provisions) Act 1934.
The defendants pleaded common employment.
HELD that at the time of the accident, drivers A and B were not in common employment and
so the employers were liable to pay damages.
Lord Wright: The consideration that the risk of injury to one servant is the natural and
necessary consequence of misconduct in the other implies that the skill and care of the one is of
special importance to the other by reason of the relation between these services ... In my opinion
the circumstances here, as found by the judge are such that having regard to the nature of the
employment, there was no common work justifying the conclusion that the deceased mans contract
of employment was subject to the fictitious implied term that he assumed the risk of his fellow
servants negligence while driving the employers coach on the high way on a separate job. I think
there was no such term. The two drivers concerned when they were on the road separately driving
their motor coaches were engaged on independent piece of work. There was no common work. The
deceased man was not exposed to the risk of the negligence of another employee of the respondent
driving another of the companys coaches in any greater degree or in any different sense than he
was exposed to the risk of any drivers negligence on the road. The risk was the general risk of the
highway not the specific risk of the fellow servants negligence.
Position in India
1) Secretary of State Vs. Rukminibai.
2) Governor General in Council Vs. Constance Zena Wells
REMOTENESS OF DAMAGE It means the defendant is liable only for those consequences
which are not too remote from his conduct.
Cases: 1) Scott Vs. Shepherd
2) Lynch Vs. Nurdin.
Two tests have been applied to decide whether the damage is too remote
1. Test of reasonable foresight:
Consequence are too remote if a reasonable man would not have foreseen them.
1) Wagon Mound Case

205 LAW OF TORTS
 2) Hughes Vs. Lord Advocate
3) Doughty Vs. Turner Manufacturing Co. Ltd.,
2. Test of Direct Consequence
If a reasonable man would have foreseen any damage as likely to result from his act, then he
is liable for all direct consequences of it suffered by the plaintiff, whether a reasonable man would
have foreseen them or not.
Reasonable foresight is relevant to the question was there any legal duty owned by the
defendant to the plaintiff to take care. It is irrelevant to the question. If the defendant broke a legal
duty, was the consequence of this breach too remote ?
Smith Vs. London and South Western Rly. Co. 1870 A. R. 6
In a dry and hot summer, the defendants had cut the grass growing near the railway line and
placed it in small heaps between the line and an edge. A spark from an engine of the defendants
ignited the pole of grass and fanned by a strong wind carried across a field and burnt down the
plaintiffs cottage which was at a distance of 200 years.
HELD: That the defendants were liable. Although no reasonable man would have foreseen this
consequence, once the defendants were aware that the heaps of grass were lying by the side of the
line and that it was a hot season and therefore the heaps were likely to catch fire, they were bound to
provide against all circumstances which might result from this and were responsible for all the natural
consequences of it.
.... I think then there was negligence in the defendants in not removing these trimmings and
that they thus became responsible for all the consequence of their conduct, and that the mere fact
of the distance of his cottages from the point where the fire broke out does not affect their liability.
Re Polemis Vs. Furness Withy & Co. Ltd., (1921) 3 K. B. 560
The owners of the steamship. Thrasy Voulos chartered the ship Furness Withy. The charter
expected both the ship owner and the charters free from liability from fire. Among other cargo the
charterers loaded a quantity of benzine and petrol in tins. Owing to leakage there was petrol vapour
in the hold of the ship. At a port of call while some of the benzene tins were being shifted by the
charters servants a wooden plank was negligently allowed to fall in the hold of the ship. A fire resulted
and the ship was totally destroyed. The Court of Appeal unanimously held the charters liable to the
owners for the loss which amounted to nearly Rs. 2,00,000. For, to allow the plank to fall into the
hold was in itself an act of negligence, in as much as it would not improbably cause some damage
to the ship or cargo. The charters therefore being guilty of negligence were held liable for the direct
consequence of that negligence though in nature and magnitude those consequence were such as
not reasonable man would have anticipated.
Scruttion L. J. said I cannot think it useful to say the damage must be that natural and probably
result. .. To determine whether an act is negligent, it is relevant to determine whether any reasonable
person would foresee that the act would cause damage; if he would not, the act is not negligent. But
if the act would or might probably cause damage, the fact that the damage that is, in fact causes
is not the exact kind of damage one would expect is immaterial, so long as the damage is in fact
directly traceable to the negligent act, and not due to the operation of independent causes having
no connection with the negligent act, except that they could not avoid its results. Once the act is
negligent the fact that its exact operation was not foreseen is immaterial.
Liesbosch Dredger Vs. Edision S.S. (1933) A. C. 448
By negligent navigation, the ship Edison collided with and snak the dredger Liesbosch the
owners of which were under a contract with a third party to complete a piece of work within a given
time failure to do which would entail them with heavy penalties. Ordinarily the owners of the dredger
would have brought a substitute dredger but owing to their poverty they were unable to do so and
they were put to much greater expense in fulfilling this contract because they had to hire a dredger
at an exorbitant rate. They sued the owners of the Edison for negligence. Among their claim for
damages they also claimed this extra expense which they had incurred owing to their impeniosity.

206 LAW OF TORTS
 The House of Lords held that they could recover as damages the mark price of a dredger
comparable to the Liesbosch and compensation for loss in carrying out the contract between the
sinking of the Liesbosch and the date on which substituted dredger could reasonably have been
available for work, for the measure of damages in such case is the value of the ship to her owner as
a going concern at the time and place of the loss, and in assessing that value, regard must be paid
to her pending arrangement. But the claim for extra expenses due to poverty was rejected, because
the plaintiffs lack of means was an extraneous matter which made this loss too remote. The case
of Re Polemis was distinguished on the ground that there the injuries suffered were the immediate
physical consequences of the negligent act. Lord Wright stated ... Nor is the appellants financial
disability to be compared with that physical delicacy or weakness which may aggravate the damage
in the case of personal, injuries, or with the possibility that injured man in such a case may be
either a poor labourer or a highly placed professional man. The former class of circumstances to the
extend of actual physical damage and the later consideration goes to interference with profit earning
capacity; whereas the appellants want of means was as already stated extrinsic.,
Overseas Tankship (UK) Ltd., Vs. Morts Dock & Engineering Co. Ltd., (The Wagon Mound)
Privy Council (1916) A. C. 388
The appellants, the Overseas Tankship Ltd., were the charters of the Wagon Mound an oil
burning vessel which was moved as the Clatex Wharf in Sydney harbour for the purpose of taking on
fuel oil. Owing to the carelessness of the Overseas Tankship Ltd.s servants, a large quantity of fuel
oil was split on to water and after a few hours this had spread to the Morts Dock Ltd.s Wharf about
600 ft. Away whether another ship, the Corimal was under repair. Welding operations were being
carried out on the Corimal, but when the Mort Dock Ltd.s manager became aware of the presence
of the oil he stopped the welding operation and enquired of the manager of the Caltex oil company
whether they could safely continue their operations on the wharf or upon Corimal. The results of the
enquiry coupled with his own belief as to the inflammability of furnace oil in the open, led him to think
the respondents could safely carryon their operation. He gave instruction accordingly, but directed
that all safety precaution should be taken to prevent inflammable material falling off the wharf into
the oil. Two days later the oil caught fire and extensive damage was done to Morts Dock Ltd.s wharf.
The case was dealt with on the footing that there was a breach of duty and direct damage, but
that danger caused was unforeseeable.
The Privy Council reversing the decision of the Supreme Court of New South Wales held that
the defendants were not liable as the damage was too remote as it was not reasonably foreseeable.
They held that Re Polemis should no longer be regard as good law. It is the foresight of the reasonable
man which alone can determine responsibility. The Polemis rule by substituting direct for reasonable
foreseeable consequences leads to a conclusion equally illogical and unjust.
Smith Vs. Leech Brian and Co. Ltd., (1961) 3 All E.R.1159
Smith was a workman employed by the defendants in their iron works: His work involved
lowering articles into a containing of metallic Zinc and flux. The articles were lowered into the tank by
means of an overheads crane from behind a position behind a sheet of corrugated iron. One day as
he lowered the article into the tank he turned round to see and his head was outside the protective
shield when a piece of molten lead struck him on the lip causing a burn. The burn was the promoting
agent of cancer developed subsequently and the work man died about 3 years later. The cancer
developed in tissues which had already a premalignant condition. But for the burn, the cancer may
never have developed although there was a possibility that might have developed at a much later
stage in life.
In an action by the widow claiming damages from the defendants under the Fatal Accidents
Act and the Law Reform (Miscellaneous Provisions) Act 1934.
Lord Parker C. J., held the defendants liable.
But for the Wagon Mound it seems to me perfectly clear, that assuming negligence proved,
assuming that the burn caused in whole or in part the cancer and the death, this plaintiff would be
entitled to recover ..
... For my own part, I am quite satisfied that the Judicial Committee in The Wagon Mound did
not have what I may call loosely, the thin skul causes in mind. It has always been the law of this
country that a tort feasor takes his victim as he finds him ......

207 LAW OF TORTS
 It is necessary to do more refer to the short passage in the decision of Kennary J, In Dulien Vs.
White ......... Where he said.
If a man is negligently run over or otherwise negligently injured in his body, it is no answer to
the sufferers claim for damages that he would have suffered less injury, or no injury at all, if he had
not had an unusually thin skull or an unusually heart.
... The judicial Committee were, I think, disagreeing with the decision in re polemis that a man
is no longer liable for this type of damage which he could not reasonably anticipate. The Judicial
Committee were not. I think, saying that a man is only liable for the extent of damage which he could
anticipate, always assuming the type of injury could have been anticipated .....
.... In those circumstances, it seems to me that this is plainly a case which comes within the
old principle. The test is not whether these defendants could reasonably have foreseen that a burn
would cause cancer and that Mr. Smith would die. The question is whether these defendants could
reasonably foresee the type of injury which he suffered, namely, the burn. What in the particular case,
is the amount of damage which he suffers as a result of the burn depends on the characteristics and
constitution of the victim. Accordingly I find that the damages which the plaintiff claims are damages
for which these defendants are liable.
Warren Vs. Scrutons Ltd. (1962) I Lloyds Rep. 497
A stevedore sued his employers in respect of personal injuries he had suffered whilst he was
helping to unload a cargo in the London docks. The employers were negligent in permitting the use
of defective wire in a set of ropes, which had become frayed and dangerous to anyone holding it. The
plaintiff scratched his finger on the frayed wire and it became poisoned and a
piece of the finger had to be cut off. Unfortunately, the infection spread to one of his eyes where
an ulcer developed and his vision become blurred. It appeared that when he was a young man this
eye had been injured and he had an ulcer on it and he had a predisposition to further ulcers if there
came into his body some condition which caused a high temperature due to any infection.
It was argued on behalf of the defendants that according to the principle laid down in the
Wagon Mound case, the wrong doer is only liable for reasonably foreseeable damage and as it was
not reasonable for the employers to foresee that if a finger was picked, the eye may become infected
and as it was not reasonable for them to know that the stevedore had this condition, they could not
be held liable for the damage to the eye.
HELD by Paull J. that the defendants were liable even for the damage to the eye. The type of
damage in the present case was a picked finger; and as this could have been reasonably anticipated,
then any consequence which resulted because the particular individual had some peculiarity was a
consequence for which the tort feasor was liable.
Novus actus intervenience. Liability when intervening act is foreseeable. No liability when it is
not foreseeable.
Cases: Cob. Vs. Great western Railway.
Harnett Vs. Bond.
S.S. Singletor Abbey Vs. S.S. Paludina.
The Ororpesa case
Stanstre Vs. Troman
Mckew Vs. Holland and Hannan and
Cubitts (Scotland) Ltd.

208 LAW OF TORTS
 5. FAMILY LAW - I
HINDU LAW
I. UN CODIFIED HINDU LAW
1. Sphere of Personal Law
Personal Law and territorial law distinguished - scope of Personal Law - Towards a civil code
codification of Hindu Law - Personal Law distinguished from Territorial Law.
2. Persons governed by Hindu Law
Who is a Hindu - Hindu by birth - Offshoots of Hinduism - Persons who are not Parsis, Muslim,
Christian or Jews - converts to Hinduism - Reconverts to Hinduism - Effects of Conversion.
Case : Ratanji Moraji Vs. Admn. Gen. of Madras
Case : Perumal Vs Ponnusamy
Case : Abraham Vs Abraham.
3. Sources of Hindu Law
Meaning of Source of Law = Traditional Sources : The Vedas : Their contribution to Law - The
Smritis - Digests and Commentaries - Custom as a source of Hindu law. Modern Sources : Justice,
Equity and Good Conscience, Precedent and Legislation.
4. Schools of Hindu Law
Origin of the schools of Hindu Law - Mitakshara and Dayabhaga Schools - Sub-schools of the
Mitakshara - Effect of Migration from one sub-school to another.
5. The Hindu Joint Family
i) Nature of Hindu Joint Family & Joint Family Property.
The joint and undivided family is the normal condition of Hindu Society. Every Hindu family is
presumed to be joint, unless and until a partition takes place. A Hindu Joint family consists of
individual bound together by kinship: All agnatic (male descendants from a common ancestor;
their wives and daughters are the members of a joint family. Husband and wife alone do not
form a joint family, a son is essential for its existence, In a joint family the property is owned
jointly. The jointness of ownership of property is due to the undivided status of the family. It is
not the result of any agreement but the creation of law. The joint family can exist even without
owning joint family property. Anyhow, property acquired by the Hindu joint family becomes the
joint family property.
ii) Apprathibandha Daya Saprathibandha Daya :
Apprathibandha daya is known as unobstructed heritage. Mitakshara school of Hindu law
believed in the birth right of Hindu sons; in the joint family property. Exercising their rights
the son can claim partition of his share at any stage. The fact that the father is alive in no
obstruction for the son to claim partition of his share. Hence the joint family property is known
as unobstructed heritage. Saprathibandha Daya is known as obstruction heritage. According
to Dayabhaga school of Hindu Law, the Hindu father is the absolute owner of the entire joint
family property and of his separate property. Under Mitakshara he is the absolute owner of
his separate property alone. His sons acquire rights in the property only on his death. Thus
the fact that the father is alive is an obstruction for the sons to claim rights in these properties.
Hence the joint family property under Daya Saprathibandha and the separate property under
Mitakshara is known as obstructed heritage.
Coparcenary : A Hindu family is a larger unit within which we come across the smaller unit
known as coparcenary. Coparcenary includes those members in a Hindu Joint Family who are
entitled to share the family property, Hence joint family property is visually allowed coparcenary
property. A coparcenary extends to three degrees from the senior most, male member. For

209 FAMILY LAW - I
 example, in a Hindu Joint Family A is father and B is his son. B has a son C and C has son D.
D has two sons E and F. The coparcenary includes A, B, C and D, E, F are not coparceners,
since they are beyond three degrees.
Types of Joint family properties :
Ancestral Property is the first kind of coparcenary property. It is the property inherited from three
paternal ancestors fathers father, a fathers fathers father - (a) Joint Family Property in the hands of
sole surviving coparcener under partition are also ancestral properties of the said coparcener who
have son., sons son, or sons sons son. In the ancestral property the coparcener, son, sons son,
and sons sons son acquire birth right.
Property with Ancestral nucleus :
Property acquired by utilizing coparcenary property is also coparcenary property. The
acquisition may be by an individual in the joint family or by all members. For example, a coparcener
insures his life. He pays the premium out of the income of the coparcenary property. When he dies
the insurance amount becomes coparcenary.
Blended Property : Often in the interests of the family, coparcenary merges his separate
property by the process of merger which is known as blending.
In the case of blending two conditions should be satisfied :
1. The coparcener blending his separate property must have an intention to merge it with
coparcenary property.
2. The merged property must be treated by joint family as part and parcel of the coparcenary
property.
Nature of Coparcenary Property
Ownership of the Coparcenary property remains with the entire coparcenary, therefore no
displacement of ownership when an individual coparcener dies: The interest of the deceased
coparcener devolves upon the surviving coparcener. This principle is known as the Principle of
Survivorship. The interest of a coparcener in the coparcenary property is indefinite. When a coparcener
dies the interest of the other coparcener are increased; when a new coparcener is born the interest
of the other coparcener are reduced. Thus a coparcener interest in the coparcenary property is a
fluctuating one and fluctuation exists till partition.
Separate Property or self-acquired property
Separate property was unknown in early days of Hindu society. In passage of time, a coparcener
was permitted to acquire separate property of his own. He is able to enjoy the property. In
short, all properties acquired by a coparcener, without detrimental to the coparcenary property
is recognized as his separate property.
Originally, even this separate property of a coparcener developed on his death upon the
surviving coparcener. Only during his life time he could enjoy the separate property absolutely
with rights to alienate it. However; this position of law was reversed by the ruling in the famous
Sivaganga case. According to the ruling when a Hindu coparcener dies leaving separate
property only his heirs can inherit it.
In a Hindu coparcenary there is joint ownership of property. If one coparcener dies, the
surviving coparcener succeed to his interest in this property. This rule is known as Doctrine
of Survivorship. For example, A, B and C are brother composing a coparcenary. If A dies
undivided B and C jointly succeeded to As share. Till the decision in Sivaganga case ruling of
survivorship was applied to the self-acquired property of a coparcener. The owner of the self-
acquired property could be the absolute owner, during lifetime only. This case settled the rule
that the acquired property of an undivided coparcener is inherited by his heirs.
a) Property Inherited from collaterals another relations.
This property is the separate property of a coparcener, who inherits it. For example, A Hindu

210 FAMILY LAW - I
father and his two sons B and C compare a joint family. The son inherit some properly, from their
paternal grand mother B dies and the surviving coparceners claim his interest in the property by
survivorship. Bs widow claim the property as As heir. Only Bs widow can inherit Bs half shore in the
said property, since the property is a separate property of B and C.
b) Property received by gift from Paternal Ancestor.
A Hindu son may receive some property from his father under a will or gift, whether this
property is coparcenary property or self-acquired property, in the hands of A, depends upon
the intention of the father. The intention is gathered from the language of the document of
transfer. The father gives the property not as to a son but as any donee, the son takes it as
separate property. When the father gives the property and the son takes it in his capacity as
son. The property is ancestral property. These rules have been laid down in the leading SC
case Arunachala Mudaliar Vs. Muruganatha Mudaliar.
c) Share allotted at Partition and Coparcenary property in the hands of the sole
surviving coparcener.
These properties are separate properties so long as their owner do not begin sons. The moment
sons are born, together these properties become coparcenary properties.
II. HINDU MARRIAGE
Conditions for valid marriage under Dharma Shastras and under the Hindu Marriage
Act, 1955.
The, Hindu marriage is samskara or a sacrament. The Hindu Marriage Act of 1955 has however
brought about many changes in their conception of Hindu Marriage. Under prior law these were
many qualifications prescribed in the texts for a valid marriage. Chastity, auspicious marks, young
age, freedom from disease, difference in gotra, absence of sapinda relationship, are some for the
qualifications found in the text of Yajnavalkya. Most of these conditions were only rules of caution and
advice, They were recommendatory and their violation did not affect the validity of marriage. Now the
conditions for a valid Hindu marriage are laid down in Sec. 5 of the Hindu Marriage Act. Violations of
these conditions render a Hindu Marriage void a voidable.
1. MONOGAMY :
Under the Act, neither party to the marriage should have a spouse living at the time of marriage.
Hence persons competent to marry are (1 ) Unmarried persons (2) divorced man or woman (3)
Widow or widower. A bigamous marriage is valid under Sec. 7 of the Act. Besides it is punishable
under Indian, Penal Code, according to Sec. 494 of the Act.
When a person is not heard for seven years by these who would have naturally heard of him,
he is presumed to be dead under Sec. 108 of the Indian Evidence Act. Upon this presumption a wife
a husband can remarry, and such marriage is valid.
Under earlier Hindu Law the Shastras held monogamy as an ideal to be followed by all Hindus,
however polygamy was recognized for valid reasons like ill-health miss conduct or ill- temperament
of the first wife. In some communities remarriage of widows was recognized by custom, though for
long period, remarriage of widows was not approved by Hindu Law. However in 1856 the Widows
Remarriage Act was passed and their remarriage was legalized. Polyandry was not recognized
under prior law.
2. LUNACY AND IDIOCY
Under prior law the marriage of a lunatic or an idiot was valid. Such marriage was brought
about by his guardian. The only condition was that such marriage should be performed according to
the rites and ceremonies prescribed by the shastras.
Under the Act it was provided originally that Neither party to marriage should, be idiot or a
lunatic at the time of marriage. These provisions has been amended by Act 68 of 1976. After the
amendment the conditions are that neither party.

211 FAMILY LAW - I
 1. Is incapable of giving a valid consent to the marriage, in consequences of unsoundness
of mind. (or)
2. Has been suffering from mental disorder rendering him or her unfit for marriage and the
procreation of children has been subject to recurrent attacks of insanity.
Marriage violating this condition is voidable under Sec. 12 of the Act. If the party to marriage
develops mental disorder subsequent to the marriage, it is a ground for judicial separation under
Sec.10 and for Divorce under Sec.13 of the Act.
3. AGE LIMIT
Under prior law no age limit was prescribed for the parties to marriage. Child marriages were
common and valid however some age limit could be inferred from other condition for valid marriage. A
male was to mercy after completing his study of vedas and a girl was to marry after attaining puberty.
Under the Act the bride should complete 18 years of age, and the bridegroom should complete
21 years of age. If the bride is below 18 years age, consent of the guardian is necessary for her
marriage.
Even prior to the present Act, in 1929 the Child Marriage Restraint Act was passed. It prescribed
18 years of age for the bride.
Surprisingly violation of the condition relating to age limit does not make the marriage void
avoidable. Neither the Act of 1929 nor the Act of 1955 provides for the legal effect of child marriage.
However under Sec. 18 of the present Act, parties participating in child marriage are punished.
4. SAPINDA RELATIONSHIP
Under the Act, the parties to the marriage should not be sapindas of each other. However the
custom governing the parties may permit marriage between Sapindas. Sapinda relationship extends
to 3 degrees on the mothers side and to 5 degrees on the fathers side. The concerned party to
marriage and the common ancestor are counted as two degrees. Sapinda marriage is void. (Sec. 11).
Under the prior law also sapinda relationship was prohibited among parties to marriage. But
the sapinda relationship extended to five degrees on the mothers side and to seven degrees on
the fathers side. Relationship through father meant relationship completely through males. When a
female intervened the relationship was on the mothers side:
5. DEGREES OF PROHIBITED RELATIONSHIP
Under the Act, the parties to the marriage should not be within Prohibited Degrees of
Relationship. There is prohibited degree of relationship in the following cases.
1. If one is a lineal ascendant of the often.
2. If one is the wife or husband of a lineal ascendant or descendant of the other.
3. If one is the wife of the others (a) brother (b) fathers brother (c) mothers brother(d)
grand fathers brother (e) grand mothers brother.
4. If two are brother and sister, uncle and niece, aunt and nephew or children of brother and
sister, children of two sisters, children of two brothers.

6. CEREMONIES AND FORMALITIES

Performance of ceremonies is essential for the validity of a Hindu Marriage. Without ceremonies
only the relationship of concubinage can be created. Mere agreement between a man and woman,
to live as wife and husband forever cannot bring about any martial relationship between them. The
ceremonies may be (1) Shastriac (2) Statutory (3) Customary.
Mostly shastriac ceremonies and customary ceremonies consist of 2 parts (1 ) Betrothal and
(2) Performance of Marriage. Betrothal is only an agreement to give the girl in marriage to a boy. This
ceremony does not create any martial relationship. In case of breach of agreement in the Betrothal,
damages can be claimed by the injured party; apart from recovery of the expenses incurred. The
second part of the ceremony relates actual performance of marriage in accordance with the rites,

212 FAMILY LAW - I
and rituals prescribed by Shastras or customs. Kanyathan, Vivaha Homam and Saptapathi are some
of the essential ceremonies in the shastraic form of marriages.
Sec. 7 of the Act does not provide any particular ceremony a formality for performance of a valid
hindu marriage. It states that marriage may be solemnized in accordance with the customary rites
and, ceremonies of the party. When Saptapathi is part of such ceremonies the marriage is complete,
only when the seven step is taken by the bride and the bridegroom jointly before the sacred fire.
Case Law : Deivanai Achi Vs Chidambaram Chettiar
A Hindu widow & widower were members of a society known as Anti Prohit society. They got
married without performing any rite or ceremony. They merely convened a meeting of relatives and
friends, and made a declaration that they became wife & husband they lived together subsequently
as husband and wife for several years. Later on, the question areas whether they were lawfully
married. The court decided that there was no valid Hindu Marriage between them.
In 1967, the Hindu Marriage (Madras Amendment) Act 1967 was passed, and Sec. 7A
was introduced into the Hindu Marriage Act of 1955. This section validates Suyamariyathai and
Seerthirutha Marriages solemnized between two Hindus, the conditions of such marriages are:
1. The marriage should take place in the presence of relatives, friends or other persons
(or)
2. Each party to the marriage should declare that he a she takes the other as wife a
husband. (or)
3. Each party to the marriage should garland the other or put a ring upon any finger of the
other. (or)
4. The bridegroom should tie a thali around the neck of the bride.
Sec. 7A was given retrospective effect, and so even marriages performed earlier have become
valid, if they followed the formalities laid down here. For example the marriage in Deivanai Achi case
becomes valid after the introduction of Sec. 7A.
VOID AND VOIDABLE MARRIAGES
Sec. 11 and 12 of the Hindu Marriage Act deals with void & voidable marriages. A marriage is
void when it is good for no legal purpose. It does not create lawful mantal relationship between the
parties to marriage. The courts regard the marriage be maintained in any proceeding in any court
and between any parties. If may be maintained either in the life time or after the death of the parties
to marriage the children born of void marriages are illegitimate:
Either party to the void marriage may obtain a decree of nullify from the court on a petition
against the other party.. The following are the grounds for obtaining the decree or nullify.
1. That the marriage is bigamous marriage.
2. The parties to the marriage are sapindas of each other.
3. The parties to the marriage are within degrees of prohibited relationship.
A voidable marriage is valid until and unless it is annulled by the court, at the instance of
either party to such marriage. Both parties enjoy the option to set aside this marriage. There is an
imperfection or defect in the voidable marriage and on this account it is liable to be avoided by either
party. Such marriage can be set aside only by the party to the marriage; and during the lifetime of
both parties. Children born of voidable marriages are legitimate, provided they are born before the
marriage is set aside by either party.
Either party to the voidable marriage may annull it by a decree of nullify from the count, on a
petition against the other party. The following are the grounds for obtaining the decree of nullify under
Sec. 12 of the Act.
1. If the marriage violates the condition relating to mental disorder mentioned in Sec.5 of
the hindu marriage act.
2. If the marriage is not consummated owing to the impotence of the wife or the husband.
Before the amendment in 1976, the respondent must be impotent at the time of marriage
and still the filing of the petition.

213 FAMILY LAW - I
 3 a. If the consent of the party to marriage, or consent of the guardian; is obtained (1) by
force by fraud as to the nature of the ceremony or as to any material fact circumstance
concerning the respondent. Before the amendment in 1976, the nature of the fraud was
not specified.
In this case the petition must be presented within one year after the cessation of force,
or after the discovery of fraud. The petition cannot be presented, if the petitioner lives
with the respondent with full consent, after the cessation of force, or after the discovery
of fraud.
4. If the respondent was at the time of marriage pregnant by some person other than the
petitioner.
In this case petition can be filed only when.
a) The petitioner was at the time of marriage ignorant of the pregnancy..
b) No material intercourse taken place with the consent of the petitioner, after the
petitioners discovery of the existence of this ground for a decree of nullity.
c) One year has not elapsed (1) after the date of marriage, in the case of marriage
performed after the Act, and (2) after the commencement of the Act, in the case of
marriage performed before the Act.
JUDICIAL REMEDIES
1. Restitution of Conjugal Rights (Sec. 9 of the Act)
As a legal consequence of marriage, the spouses one entitled to mutual consortium company.
When one spouse deserts the other without legal justification, the deserted spouse can see for
Restitution of Conjugal rights. Thus a remedy is provided by the matrimonial law for presentation of
marriage relationship. Hindu texts did not provide this remedy, but British courts have been granting
the remedy to deserted spouses. Sec. 9 of the Act provides this remedy. For seeking this remedy,
(a) There should be a subsisting lawful marriage between the parties
(b) One party, should have deserted the other, (withdrawn from the society of the other
without remarkable causes.)
(c) Petition should be filed by the deserted party.
The court grants this remedy (1) If it is satisfied of the truth of the statements in the petition. (2)
If there is no legal ground for refusing the remedy.
The order of Restitution of Conjugal Rights directs the deserting spouse to resume cohabitation
with deserted spouse. However there is no effective machinery for enforcing the order of the court. If
the deserting spouse violates the order of the court, Cr. P.C. provides for attachment and sale of his
her property. The decree holder is entitled to compensation out of the sale proceeds. Therefore this
remedy is criticized as physically undesirable and morally unwanted.
Any how violation of the order of the restitution of conjugal rights entitles the petitioner to claim
maintenance. Besides failure to resume cohabitation within one year after the decree for restitution
of conjugal rights, is a ground for divorce under Section 13.
Defences :
The defences to the petition for the remedy are (1) reasonable excuse for desertion: (2) any
just cause (3) that the petition is not sincere and that he does not desire bonafide resumption of
cohabitation. The reasonable excuse implies any cause fit and property in the opinion of the count for
denying the remedy. When the relations of parties are so strained that further peaceful cohabitation
is impossible, their remedy is not granted by the court: Almost all grounds for judicial separation and
divorce under the Act, can be raised as defences to the petition for this remedy.
Judicial Separation (Sec. 10)
Judicial separation is a halfway house between marital status and complete dissolution of
marriage. Judicial separation does not put an end to the matrimonial relationship. It effects a physical
separation between the spouses in their own interests; and it is a stepping stone to the remedy of

214 FAMILY LAW - I
divorce. At any time there many be reconciliation, and the parties may rescind the decree of judicial
separation and resume cohabitation, Even under early law the husband was permitted to keep apart
an ensuring wife and to maintain her.
After the Amendment in 1976, all the grounds available for the remedy of Divorce Under Sec.
13 are grounds for Judicial Separation. Either party to marriage may file the petition for Judicial
Separation After the passing of the decree the parties are not under legal obligation to cohabit,
with each other. However at any time either party may file petition for residing the decree. Divorce.
(Sec.13, 13A,138)
Hindu Marriage was a sacrament, and a divine union. Hence the Hindu believed that it is not to
be dissolved. The Hindu Marriage Act provides the remedy of divorce in Secs. 13, 13A, 138. Either
party to the marriage cane file a petition for divorce in the following grounds:
Section 13 (1):
1. Respondent has voluntary sexual intercourse with another person after the marriage:
2. The Respondent has treated the petitioner with cruelty, after the marriage.
3. The respondent has deserted the petitioner for a continuous period of not less than 2
years prior to the petition.
4. The respondent has become a convert to a non-Hindu religion.
5. The respondent has been (a) incurable of unsound mind (b) or suffering continuously or
intermittently from mental disorder rendering cohabitation difficult.
6. The respondent has been suffering from a virulent and incurable form of leprosy.
7. The responded has been suffering from venereal disease in a communicable form.
8. The respondent has renounced the world by entering any religious order.
9. The respondent is not held of for 7 years or more by these persons who would naturally
have heard of him or her.
10. If there is no resumption of cohabitation between the parties of one year, after the passing
of the decree for judicial separation.
11 . If there is no restitution of conjugal rights between the parties for a period of one year, after
the passing of the decree for Restitution of conjugal rights.
Section 13 (2):
The wife alone may file a petition for divorce on the following grounds.
1. If the husband marries again after the commencement of the Act, or of any other wife of
the husband married before the Act was alive at the time of petitioners marriage and the
other wife is alive at the time of filing the petition.
2. If the husband in guilty of rape, sodomy or bestiality, after the solemnization of marriages.
3. If there is no cohabitation between the parties for one year or more after a decree is
passed for maintenance to the wife, under Hindu Adoptions and Maintenance Act a
under Cr. PC.
4. If the marriage was solemnized before 15 years of age. If she repudiated the marriage
after attaining 15 years. and before reaching 18 years.
Sec. 13 A (1976 Amendment):
This section provides an alternate relief in divorce proceedings. On a petition for divorce the
court may grant an alternate remedy of judicial separation. The petition must have been filed on any
of the grounds in Sec. 13, except the following grounds:
1. Conversion of the respondent to non-Hindu religion.
2. The respondents renunciation of worldly life.
3. The respondent not being heard of for seven years. (Sec. 13B).
Provides the remedy of divorce by mutual consent. Both parties to the marriage may present a
petition together to the District Court for the remedy of divorce by mutual consent.

215 FAMILY LAW - I
 1. If they have lived separately for a period of one year or more:
2. If they are not able to live together.
3. If they have mutually agreed to have the marriage dissolved.
Within 18 months and after 6 months from the date of the petition under this section, the parties
must make a motion. On the motion, the court hears the petition, makes enquiry and grants the
decree of divorce by mutual consent.
Time Limit :
No petition for divorce can be presented within one year of marriage. However the parties may
obtain permission from the court premature applications for divorce.
1. If there is exceptional hardship to the petitioner.
2. Or, if there is exceptional depravity on the party of the respondent. If such permission is
obtained through mis representation, or concealment of the nature of the case, the court
(1 ) may either dismiss the divorce petition, or (2) shall pass a decree on condition that
the divorce shall take effect only after one year. In granting permission for premature
petitions for divorce, the court considers interests of the children of marriage, and the
possibilities of reconciliation between the parties.
Divorced persons, can remarry (1) after one year from the date of the decree (2) or from
the confirmation of the decree by the Appellate Court, before the Amendment 1976.

LAW OF ADOPTION
Basis and Objects of Adoption :
Ancient Hindu lawyers recognized twelve kinds of sons. They were broadly classified into three
groups :
1. Atmaja son (sons born of oneself)
2. Paraja sons (sons born of others and)
3. Adopted sons.
The basis of the Hindu Law Adoption is spiritual and not secular. The ancient sage Atri has
state the two fold objects of adoption; as (1) Offering spiritual benefit (Pinda or oblation of food and
udaka or labation of water) to the ancestors (2) and perpetuation of the lineage. These objects are
obviously spiritual in character. In fact the adopted son becomes a coparcener with the adoptive
father, and acquire share in coparcenary property. On the death of the adoptive father he inherits
his properties. But these property rights are only secondary, and they are the secular objects of
adoption. Dharma Sutra also expresses the spiritual theory of adoption.
Amarendraman Singh Vs. Sannothan Singh
A Hindu son died unmarried, living his widowed mother Indumati. By a family custom females
were excluded from succession to immovable property. Hence, on his death, his estimate was
inherited not by his mother but by a collateral Banamali. Thereafter, Indumati adopted Amarendra as
her son Banamali questioned the validity of adoption. The Privy Council upheld the adoption on the
basis of the spiritual theory of adoption.
The spiritual theory of adoption was explained by the Privy Council. For every hindu a son is
essential to offer spiritual benefit to him on his death. The spiritual benefit is essential for attainment
of Salvation, recording to hindu faith. Only for fulfillment of this spiritual purpose, continuation of male
line is indispensable in a hindu Family.
Whenever a male dies without a son, he casts a duty upon his widow to provide for the
continuance of male line. Naturally, the widow adopts a son and allows the male line to continue.
When a son dies unmarried, the widowed mother adopts a son.

216 FAMILY LAW - I
 CONDITIONS OF A VALID ADOPTION
Valid and void Adoption
Hindu Law of adoption has been codified in the Hindu Adoptions and Maintenance Act of 1956.
After the Act, an adoption has to be made according to the provisions contained in the Act. Any
adoption made in contravention of the said provisions shall be void. But adoption made before 1956
according to prior Hindu Law, are valid under Sec. 5 of the Act.
An adoption is either valid or void, and there is no voidable adoption. It cannot be also partly
valid arid partly void. A void adoption brings about no legal change in the status of the adopted
person. The adopted does not acquire any right in the adoptive family. Likewise his rights in the
natural family are not lost. After adoption, suppose the natural father alienates family property. If the
adoption is valid the alienation cannot be impeached by the son. If the adoption is void, the adopted
son can attack the alienation as not binding on him. Similarly, after adoption the adoptive father may
gift away some property to the adopted when the adoption becomes void, the gift fails, if the intention
of the adoptive father was to benefit the adopted solely because of adoption. But the gift is valid, if
the adoptive father intends to benefit the adopted under all circumstances as a person designate.
Conditions of a Valid Adoption
Sec. 6 of the Act states the conditions for a valid adoption
1. The person adopting must have capacity and right to adopt.
2. The person giving in adoption must have capacity to adopt.
3. The adopted must have capacity to be adopted.
4. Other conditions in the Act must be fulfilled.
Capacity of the Person Adopting
Formalities : Before the Act ceremonies for adoption were not uniform Physical Act of giving
and receiving was essential in all ceremonies. In the case of Brahmins alone performance of the
ceremony of Datta Homam was insisted.
After the Act under Sec. 11 the child to be adopted must be actually given and taken in adoption
by the parent and guardians. This corporeal delivery can be effected even by third person under the
authority of the parents. In the Corporeal delivery there must be an intention to transfer the child from
the natural family to the adoptive family. However; the performance of Datta Homam is not essential
to the validity of an adoption. But there is nothing to prevent the performance of datta homam, and in
some communities data homam is still performed.
Illus :
A sent his son through his agent to house of B in another town for the purpose of education.
B had already an intention to adopt As son. Now B presumed that A was willing to give the child
in adoption to him. After sometime, A brought back the son, and B raised the question of adoption.
Court decided that there was no valid adoption. Even through the child was physically delivered by A
is agent to B, there was no intention to give in adoption.
Capacity of the person adopting
Under the prior Hindu law a sonless male could adopt a son. A man was sonless if he had
no son, sons or sons sons son. An illegitimate son was not recognized as a son at all and so
the putative father could adopt a son. Even bachelors and widowers could make adoption of son.
There was no possibility for the adoption of a daughter. However custom recognized the adoption of
daughters in certain communities. For e.g.., in the case of dancing girls of South India.
Under prior law females could not adopt to themselves. However, a wife was allowed to adopt
a son to her husband, as the agent of her husband.
The person adopting should full two qualifications (1) he should not be minor (2) he should not
be a lunatic.
Under Sec. 7 of the Act a Hindu male has capacity to adopt if he is of sound mind and a major

217 FAMILY LAW - I
(18 years). If he has a wife living he can adopt only with her consent. If he has more than one wife
living, the consent of all the wives is necessary. But the wifes consent is not necessary if (1) she has
finally and completely renounced the world (2) or she has renounced Hindu Religion (3) or she has
been declared by court to be of unsound, mind.
FEMALE : Under prior Hindu Law a female could not adopt to herself. However, a wife could
adopt to her husband as his agent or surviving half. When the husband was alive his permission was
necessary. If the husband was a lunatic the wife could not adopt, since consent was not possible.
When the husband was an ascetic his consent was presumed and the wife could adopt depended
upon the school of Law to which she belonged.
Under Sec. 8 of the Act a female Hindu has how the capacity to adopt, if she is of sound mind
and a major (18 years). Thus even unmarried woman can adopt to themselves. A married woman
can adopt
(1) if she obtains a divorce;
(2) if her husband is dead;
(3) if her husband completely and finally renounces the world;
(4) if her husband becomes a convert to non-Hindu Religion;
(5) if her husband is declared a lunatic by a competent court. Females can adopt either a
son or a daughter.
Capacity of persons giving in adoption :
Under prior law the parents alone could give the boy in adoption. The father enjoyed the prior
right and he could give in adoption without the consent of the mother. The mother could give in
adoption only when the husband was dead or became an ascetic. However, the widowed mother was
not entitled to give in adoption her son by the first husband after her marriage.
Now under Sec.9 of the Act the father or the mother or the guardian of a child has capacity
to give the child in adoption. He father enjoys prior right to give in adoption, but he should secure
the consent of the mother. Unless (1) the mother completely and finally renounces the world (2) the
mother becomes, a convert to non-Hindu faith, (3) the mother is declared by a court of competent
jurisdiction to be a of unsound mind. The mother can give the child, in adoption if -
(1) the father is dead;
(2) the father completely and finally renounce the world;
(3) the father becomes a convert to non-Hindu religion;
(4) the father is declared by a court of competent jurisdiction to be of unsound mind.
In the following circumstances the guardian, the child can give the child in adoption, with the
previous permission of the Court -
1. when both the father and mother are dead; or
2. when they completely and finally renounce the world;
3. when they are declared by a Court of competent jurisdiction to be of unsound mind.
Before granting permission to a guardian the Court shall be satisfied that -
1. the adoption is for the welfare of the child
2. the guardian has not received or agreed to receive any reward or consideration for
the adoption.
Capacity of the Adopted :
The prior Hindu Law permitted adoption of son alone. There were many qualifications prescribed
by the Texts regarding his capacity to be adopted.
(1) The boy must be of the same caste.
(2) He should be a near relation and living close by.
(3) He should be affectionate towards the adaptor.
Generally, a boy could be adopted at any time before Upanayana among the regenerate casts
and before marriage among Sudhras. Adoption of only son or the eldest son was prohibited. Besides,
an illegitimate son, already adopted son, congenitally deaf and dumb son and an Orphan could not
be adopted.

218 FAMILY LAW - I
 Under sec. 10 of the Act there is provision for adoption of a son as well as a daughter. There is
no restriction as to caste. The child to be adopted should be a Hindu, unmarried and below 15 years
of age However, there are customary adoptions of married boys and boys about 15 years. When a
Hindu adopts a child of the opposite sets there must be a difference of at least 21 years between the
adaptor and the adopted.
Effect of valid Adoption :
Sec. 12 and 13 of the Act deal with the Legal effects of valid adoption. When there is valid
adoption, the child is deemed to die in the natural family, and to be reborn in the adoptive family. His
rights in the natural family are destroyed, and he acquires in the adoptive family. An adopted child
becomes the child of the adoptive family for all purposes from the date of adoption. In fact, he is
deemed to be natural son.
Marriage :
To adopted childs relationship with the natural family continues for purpose of marriage. A child
cannot marry anybody whom he or she could not have married in the natural family.
Vesting in Natural Family :
Any property vested in the adopted child prior to adoption is not divested by adoption for e.g.,
A, B and C are brothers in a hindu joint family. All of them inherit some properties from their maternal
grandmother. They hold these properties in common; with rights so equal share. A is adopted. Now,
the one third share vested in A is not divested by adoption. He takes his one third share to the
adoptive family, but subject to obligations attached to the property. (obligation to maintain a member
etc.).
Divesting in Adoptive Family :
When the adopted son acquires a right by birth to the ancestral property in the hands of the
adoptive father. But in the self-acquired property of the adoptive father the adopted son does not
acquire any right. The adoptive father con freely dispose of his self-acquired property.
Rights of adopted son as against aurasa son :
A natural son may be born to the adoptive father, after adoption of a son, Under prior law,
based on the text of Vasishta the adopted son was entitled only to a limited share. Vasishtas text was
interpreted differently in different schools of law. In Madras the adopted son was entitled 1/5 of the
share of a natural son. But among the Sudras adopted son and Aurasa son took equally. After the
Act the adopted son ranks equally with the aurasa son among all castes and takes an equal share.
Right by theory of relation back :
According to the Theory of Relation back an adopted son is deemed to be alive at the time of
death of the adoptive father. Under this, a valid adoption divested the property vested in the adopting
widow or in the heirs of the deceased adoptive father. After the Act, this theory is not applied an
adoption cannot divest any property vested before adoption. For example (1) A Hindu dies leaving
behind some properties and his widow. The properties are vested in the widow as heir to husband.
She is absolute owner of the properties under Hindu Succession Act 1956. In 1957 the widow adopts
a son. The adopted son does not acquire any right to the properties in the hands of adoptive mother.
If adoption is made before 1956, the adopted son can divest the property vested in the widow.
Windows Power to Adopt
Under prior law only son could be adopted. But a maiden was not qualified to adopt, a son to
herself. Similarly, a married lady also could not adopt a son to her husband during her husbands life
time. However, after her husbands death a widow could adopt a son to her husband. The widows
power to adopt depended on the school to which she belonged. This power was derived from the text
of Vasishta. Now let a woman give or accept a son, unless with the assent of her Lord.
Collector of Madura Vs. Muthuramalinga Sethupathy (PC)
The Raja of Ramnad died leaving behind his widow and some properties. The widow adopted
a son with the consent of her mother-in-law. The adoption was attacked invalid. It was argued that the
widow adopted without, the assent of her husband. Regarding the nature of the assent of husband,
the text of Vasishta was relied upon. The different view expressed by various schools of law.

219 FAMILY LAW - I
 Mithila School - Assent of Lord means husbands consent to his wife for adoption of son,
during his life time. Hence a widow can adopt with such consent.
Dravida School - Assent of Lord can be secured during his life time and it can be exercised
by the widow, after his death. Or consent can be obtained to adopting after his death also from
his kindred.
Bengal School - Assent of Lord is consent secured during his life time. It can be exercised by
the widow, after his death.
Thus in Madras where the Dravida School is applied, a widow could adopt a son to her husband,
either with her husbands consent, or with the consent of his kindred. In this basis made by the widow
with the consent of mother-in-law was valid.
Extension of a widows Power to Adopt
Under Sastriac Hindu Law there was no limit of time for the widow to make an adoption of a
son to her deceased husband. The Privy Council on grounds of public police imposed a limit upon the
widows powers to adopt. The limit is not a durational limit measured in years. It is a contingent limit,
a limit measured in contingencies. The famous Bhoobun Mayees case lays down thus limit imposed
upon a widows power to adopt.
Bhoobun Mayee Vs. Ram Kishore (Privy Council)
A had a son B through his wife C. A gave authority to C to adopt a son, in case he died in
future without male issue. Firstly, A died leaving B and C. B married C1, but soon he also died
leaving his widow C1. The properties acquired by B from his father A were not in the hands of C1.
After sometime C adopted a son to her deceased husband A. Thereafter, C1 also adopted a son to
her deceased husband B. The adopted son of the mother-in-law sued for possession of the family
property: The adopted son of the daughter in law C1 also claimed the property. In order to solve the
conflict between the two adopted sons the validity of the adoptions had to be decided. The Court
decided Cs adoption was invalid, since at time of the adoption her power to adopt was extinct. The
following are the rule of law declared in this case.
1. The primary object of adoption is to provide for spiritual benefit (Pilla and Udaka) to the
ancestors.
2. When a male Hindu dies he casts a duty upon his son to offer spiritual benefit to him and
his ancestor.
3. When his son dies unmarried, or leaving son or widow, his widowed mother can adopt a
son to her husband and provide for spiritual benefit.
4. Similarly, when a male dies sonless he casts the duty to offer spiritual benefit, upon his
widow. The widow adopts a son to her husband and fulfill this duty.
5. Her son B leave his widow C1. C1 can adopt a son to her husband and provide for
spiritual benefit. When she adopts Cs potential power to adopt becomes extinct and her
adoption is invalid.
After the Act :
Under Section 8 of the Act a widow enjoys the absolute power to adopt a son or daughter to
herself. The only conditions are that at the time of adoption :
1. She should not have a son, sons son or sons sons son, if she adopts a son and
2. She should not have a daughter or sons daughter, if she adopts a daughter.
DOCTRINE OF RELATION BACK
Under the Doctrine of Relation Back, the adopted son was treated as posthumous son. He
was deemed to be in existence at the time of death, of the adoptive father. In result the male line was
deemed to continue without any break. In result the adopted son acquires his rights in the adoptive
family from the death of the adoptive father, and not merely from the date of adoption.
When a male Hindu dies sonless his properties became vested either in his widow or in
his surviving coparceners. When the widow adopted, a son to her husband the adoption divested

220 FAMILY LAW - I
properties already vested to the widow or surviving coparcener. In other words, the adopted son and
right to recover the adoptive fathers property from the widow or the surviving coparcener. This right
of the adopted son was recognized under the Doctrine of Relation Back.
One Limitation :
A limitation was imposed upon the doctrine. Sometime for a legal necessity binding on the
estate of the adoptive father, the estate might be alienate. Such alienation was binding the adopted
son, and he could not recover the property from the alliance.
Krishnamurthi Vs. Dhruwaraja :
A was the father and B was his son. Both were the coparceners in a Hindu Joint Family. B
died leaving his widows X. As surviving coparcener A acquired Bs interest by survivorship. Later,
A also died and the property was inherited by collateral C. The property passed through many
hands and ultimately, Krishnamurthy became the absolute owner by inheritance. Then the widow
X adopted a son Dhruwaraja to her deceased husband B. Dhruwaraja sued to recover the property
from Krishnamurthy. On the basis of Doctrine of relation Back, the adopted son claimed that he was
legally is existence when B died. He argued that he could divest the estate of his adoptive father,
already vested in A and his heirs. The Court recognized the claim of the adopted son on the basis of
Doctrine of Relation Back.
LAW OF GUARDIANSHIP
The Law relating to minority and guardianship among Hindus is now codified by the Hindu
Minority and Guardianship Act of 1956. The provisions and Act shall apply in addition to the Guardians
and wards Act of 1890.
1. Minor and Guardian :
The Act defines a minor as one who has not completed the age of 18 years. When a Hindu
minor has guardian appointed by Court., or were he is a ward of the Court of Wards, the minority
continues up to 21 years. Guardian is a person having the care of -
(1) the person of the minor; or
(2) his property; or
(3) both his person and property.

The Act recognizes four kinds of guardians -

(1) Natural Guardian
(2) Testamentary Guardian
(3) Guardian appointed by Court
(4) Guardian under Guardians and Wards Act.
2. Delegation of Custody and Guardianship :
The Guardianship is the nature of a sacred trust. Therefore he cannot during the life time
substitute another to be a guardian in his place. But he can entrust the custody of his minors to
another, but this authority can be revoked by him. Thus delegation of custody is recognized by law,
but delegation of guardianship is not recognized.
Anne Besant Vs. Narayanath :
The father entrusted the custody of his two minor boys to Mrs. Besant. He agreed that she
alone should be guardian of their person during their minority. The boys were taken over and they
had a course of tuition in England. Therefore the father demanded restoration of the custody of the
boys to him. Mrs. Besant refused to restore the boys to his custody, and so she was sued. The Court
ordered restoration and made certain observations. Custody can be delegated and the delegation
can be revoked. But delegation cannot be revoked, if revocation is not in the welfare of the children.

221 FAMILY LAW - I
 NATURAL GUARDIANS
Under Sec. 6, of the Act, the following are the natural Guardians.
1. In the case of a boy or unmarried girl the father and after him the mother.
2. In the case of illegitimate boy or unmarried girl, the mother and after her the father.
3. In the case of a married girl, the husband.
The custody of a minor below 5 years shall be with the mother. Though mother has preferential
right to custody, father alone continues as guardian. For just reasons the father can move the Court
to return the custody of a minor below 5 years of him.
Qualifications for a Natural Guardian
1. He should not be a minor.
2. He should not convert himself to another religion.
3. He should not renounce the worldly life and become an ascetic.
Powers of a Natural Guardian :
1. Powers of alienation of minors property :- The Natural guardian could transfer minors
property for legal necessity of the minor of for the benefit of the minors estate. His powers of alienation
of minors property are-explained by the Privy council in the following case.
Hanumanth prasad Vs Mussat Babuyee :
A was a minor son. His widowed mother acted as natural guardian and mortgaged the minors
property to B. On attaining majority A used to set aside the mortgage transaction. The Privy Council
decided that the mortgage was binding upon A, and declared the following rules of Law :
1. The Natural guardian has limited power to create burden on the minors property, or to
transfer the same.
2. This power can be exercised by the guardian only for the legal necessity of the minor or
for the benefit or necessity of the minors estate.
3. The interest of the transferees from the guardian are protected if they act bonafides. They
should enquire and satisfy themselves that the guardian is acting for the welfare of the
minor or for benefit of the minors estate. They need not look to the actual application of
the money received by the money received by the guardian under the transfer.
Under the Guardians and wards Act of 1890 and Sec. 8 of the Guardianship Act of
1950:
The natural guardian should obtain prior permission from the Court for the following transfers
affecting minors property.
1. The mortgage, or charge, or transfer by sale, gift or exchange or Otherwise any part of
the immovable property of the minor.
2. To lease any part of minors property for a term exceeding five years, or for term extending
more than one year beyond the date of minors majority.
The Court grants prior permission for the above transfers by the guardian, only in the case
of necessity or for an evident benefit to the minor. If the natural guardian transfers minors property
without the prior permission from Court, the transfer is voidable, at the instance of the minor or any
person claiming under him.
Other Powers of the Natural Guardian :
Both under the prior law, and under Sec. 8 of the Act, the Natural Guardian has rights to do all
acts necessary and proper for welfare of the minor, or for the benefit of the minor estate.
1. Contract for purchase by Guardian :
Before the Specific Relief Act contract for purchase by guardian was not binding on the minor.
Likewise the minor was not entitled to enforce such agreements. This ruling was based on the
doctrine of mutuality.

222 FAMILY LAW - I
Sarwarajan Vs. Fakhruddin Mohamed (P.C.)
A minors guardian entered into a contract for purchase of some immovable property for the
minor. The contract was in fact for the benefit of the minor. Attaining majority, the minor sued for
Specific Performance of this contract. The Court refused specific Performance and observed as
follows :
For Specific Performance of a contract there should be mutuality: The doctrine of mutuality
means that both the parties to the contract should be able to mutually enforce the contract against
each other. This mutuality should exist at the time of formation of the contract, In this case the Vendor
can not enforce the contract against the minor. Therefore the minor alone cannot enjoy the right to
Specific Performance. ,
2. Contract for sale by the Guardian
Before the Specific Relief Act of 1963 and also after the Act. Contract for sale the guardian was
binding on the minor. Likewise he was entitled to enforce the contract against the vendee.
Subramanian Vs. Subba Rao (P.C.)
This Privy Council reversed the doctrine of mutuality. The mother of a minor son entered into
a contract for sale of minors estate. The intended purchaser was put in possession of the estate, in
pursuance of the contract. The minor, on attaining majority, sued for recovery of possession on the
ground that the guardians contract for sale was not binding upon him. The Privy Council decided
that a contract for not recover possession. Now under the Act of 1890 and the Act of 1956 Courts
permission is necessary for this contract.
The Specific Relief Act of 1963
This Act has done away with the doctrine of mutuality. Sec. 20 of the Act states that one party
to contract is entitled to Specific Performance, even when the contract is not specifically enforceable
by the other party. The only question is whether the guardian has power to enter into a particular
contract. When he has the power, his contract can be specifically enforced both by and against the
minor.
3. Purely Personal Covenants
Under earlier law and under Sec.8 of the Act of 1956, a natural guardian can in no case bind
the minor by a personal covenant, However if the personal covenant is made by the guardian for the
legal necessity of the minor, or for the benefit of the minors estate, the minors estate may be made
liable.
Vagheela Vs. Sheik Maiudin (P.C.)
Certain debts were charged upon the estate of the minor. The guardian mother of the minor,
transferred some of the Villages in the estate, in discharge of debts. She covenanted that (1) the
villages were rent free; and (2) she and the minor would be liable to pay the revenue, in case of
assessment by the Government. Later the villages were assessed to revenue. The purchaser used
for recovering the revenue from the minor. The Privy Council decreed that the minor was not liable,
since his guardian had no power to blind the minor by purely personal covenants.
TESTAMENTARY GUARDIANS
Under prior law, the father alone had the power to appoint a guardian for his minor child by Will.
The testamentary guardian was appointed for the custody of the minor or for his property. The mother
of the minor had no power to appoint the testamentary guardian. In respect of the undivided interest
of the minor in the joint family property, testamentary guardian could not be appointed:
Under Sec.9 of the Act of 1956 the father can appoint the testamentary guardian for the person
or property of his minor child (son or daughter). If the mother survives the father, this appointment
made by the father has no effect. The mother can act as the guardian of the minor. She can also
appoint a testamentary guardian for the minor. If she dies without appointing a testamentary guardian,
the testamentary guardian appointed by the father can function.

223 FAMILY LAW - I
 Even during the fathers life time, the mother can appoint a testamentary guardian for the minor.
(1) by conversion to a non-Hindu faith, or (2) by renunciation of wordly life, if the father is disqualified
to act as guardian. In the case of illegitimate children only the mother can appoint the testamentary
guardian. Such testamentary guardian can function, even if the putative father survives the mother.

In all cases no testamentary guardian can be appointed in respect of the undivided interest of
the minor in the joint family property. In the case of an unmarried girl, the testamentary guardian can
function only till her marriage.
Powers : The testamentary guardian enjoys all the powers of the natural guardian. His powers
can in no case exceed those of the natural guardian. However his powers can be curtailed by the
testament itself. Besides, the powers are subject to Sec.8 of the Act.
Ramanathan Vs. Palaniappa
A executed a will appointing B as the executor of the will, and authorizing his widow to adopt a
son. Till the adopted son became a major the executor was to manage the property of the family viz.
a money lending business. In course of business B appointed an agent to conduct the business. The
agent borrowed money from a Bank jointly with C, under a promissory note. The bank recovered the
whole amount from C; and so C sued the adopted son for contribution. The adopted son argued
that his testamentary guardian B had no powers to bind him by the personal covenant created by
the agent. The Court held the adopted son liable to contribute on grounds. (1) that the testamentary
guardian has all the powers of a natural guardian; (2) that the transaction was for the benefit of the
minor, since the amount borrowed was invested in the money tending business.
DE -FACTO GUARDIANS
Old Law
The term de facto guardian is a misnomer for the de facto manager of the minors person and
property. When a minor has no legal guardian, usually some near relation voluntarily looks after his
person and property. He may also apply under the Guardians and Wards Act of 1890 for appointment
by the Court as a Guardian. Without doing so if he possesses and Manages the minors property, he
is the de facto manager. The de facto guardian enjoyed powers of dealing with minors property. But
his acts could bind the minor only when they were for the minors benefit:
1. A de facto guardian could incur liability on behalf of the minor. The liability could bind the
minor, if it was for his benefit, or for the benefit of his estate.
2. An acknowledgment of debt made by a de facto guardian could not bind the minor or his
estate. He could not acknowledge even debts contracted by lawful guardians.
3. The de facto guardian could not bind the minor or his estate by his contracts with third
parties, Besides he had no powers to bind the minor or his estate by personal covenants.
LAW OF MAINTENANCE
Definition of Maintenance :
The Hindu Law of Maintenance has been codified under. The Hindu Adoption and Maintenance
Act of 1956
According to Sec. 3 of the Act maintenance includes -
(1) in all cases provision for food, clothing, residence; education and medical attendance
and treatment; and
(2) in the case of unmarried daughter, also the reasonable expenses, of her marriage, and
expenses incidental to her Marriage expenses cover the actual expenses in performing
the marriage and expenses incurred in the betrothal function and nuptial ceremonies:
The obligation of a Hindu to maintain others arises on account of personal relationship or
ownership of property, Personal obligation is recognized in favour of virtuous wife, infirm, and aged
parents, and minor children. The personal obligation is a legal, obligation, existing irrespective of
ownership of property. Obligation based on ownership of property relates to other members in the
Joint Hindu Family, like the females.

224 FAMILY LAW - I
 MAINTENANCE OF WIFE
Grounds of Maintenance :
It is the duty of husband to maintain his chaste wife in the matrimonial home. Generally, if the
wife deserts her husband she lase her fight to maintenance. However for certain just reasons the
wife can live separate and claim maintenance from the husband. The just reasons are set forth in
Sec. 18 of the Act:
1. When the husband is guilty of desertion. Desertion means abandoning the wife without
reasonable cause, and without her consent or against her wish, or wilfully neglected her.
2. When the husband treats the wife with cruelty. The cruelty must cause reasonable fear in
the wifes mind that it will be harmful or injurious to live with him.
3. If the husband is suffering from a virulent form of leprosy.
4. If the husband keeps a concubine in the same house, or habitually resides with a
concubine elsewhere.
5. If the husband ceases to be a Hindu by conversion to another religion.
6. If there is any other cause justifying the wifes separate living. The expression justifying
cause is elastic, and includes any situation (a) making the wifes life in the matrimonial
home miserable (b) making it unjust for the courts to compel the wife to live with the
husband. The court decides upon a satisfying cause on principles of justice, equity and
good conscience.
Disqualification :
The section enacts that the wife loses her right to maintenance, if she becomes unchaste or
becomes a convert to another religion. However under Old Law bare pittance or starving maintenance
was allowed to an unchaste wife or separate maintenance is altogether denied. But the husbands
condonation of the wifes unchastity can cure her disqualification. In the case of conversion to another
religion, the wife cannot recover her right to maintenance, by reconversion to Hinduism.
Maintenance of aged parents and major unmarried daughters :
Under Sec. 20 Hindu parents are bound to maintain their unmarried daughters till their
marriage. Likewise, Hindu sons and daughters are bound to maintain their aged and infirm parents.
Aged parents and major unmarried daughter can claim maintenance only when they are unable to
maintain themselves out of their own earnings or other property.
Even under Old Law there was obligation upon a Hindu male to maintain his major unmarried
daughter and aged parents. After the Act this obligation has been imposed upon females also,i. e .
daughter and mother. Now the step mother also is included as a parent to be maintained by the step
son or step daughter:
Maintenance of illegitimate children
Under old Law an illegitimate son could claim maintenance from his putative father. After the
act he can claim it also from his mother. When his father died, he could receive maintenance of his
life time out of his fathers property, This right was recognized as substitute for a share.
Under the Old Law illegitimate son by non-Hindu concubine could not claim maintenance. Now
also Sec. 24 requires that a claim to maintenance should be a Hindu, and thus there is no change
in the law.
Now under Sec. 20 of the Act an illegitimate male child can claim maintenance only during
minority. Prior to 1956 an illegitimate daughter could not legally claim maintenance. Now she can
claim maintenance during her minority and till her marriage both from her mother and putative father.
After death of her parents maintenance can be claimed from the parents property in the hands of
heirs.

225 FAMILY LAW - I
Dasi putra and avarudha sri
An illegitimate son by a permanently and exclusively kept concubine was called Dasi Putra.
Among the Sudras a Dasi Putra was entitled to inherit the heritable property of his Putative father,
after his death. He received 1/2 of the share of a legitimate son, This right has now been removed
and he is at present entitled only to maintenance.
A Concubine had no rights of maintenance against her paramour personally. But (an Avarudha
Sri) an exclusively and permanently kept concubine could claim maintenance from her paramours
property after his death. But her right to maintenance depended upon her continued loyalty even after
his death. Under the Act the concubine has no right to claim any maintenance from her paramour.
Maintenance of widowed daughter in Law
The widow of a coparcener is a member of the Hindu Joint Family. Originally the Joint Family
Manager was bound to maintain her out of the joint family property. After the Hindu womans Right
to Property Act of 1937 she acquired a life estate in her husbands share. Under Hindu Succession
Act of 1956 her limited estate has become absolute estate. Thus acquiring right to claim share along
with other heirs, the widow lost her maintenance right.
Suppose the son died divided from the coparcenary and left his widow. Under the old Law the
father-in-law had a moral obligation to maintain such a widowed daughter-in-law Now under Sec.
19 the widowed daughter-in-law has legal right to claim maintenance from father-in-law, whether
her marriage took place before or after the Act: But the following conditions must be satisfied for the
claim :
1. She is unable to maintain herself out of her own earnings or other property.
2. She is unable to obtain maintenance from the estate of her husband.
3. She is unable to obtain maintenance from the estate of her father.
4. She is unable to obtain maintenance from the estate of her mother.
5. She is unable to obtain maintenance from her son or daughter.
6. She is unable to obtain maintenance from the estate of her son or daughter.
If the father-in-law has only self-acquired property, he is only morally obliged to maintain his
widowed daughter-in-law. But on his death the widowed daughter-in-law as a dependant under Sec.
21, can claim maintenance from the estate.
Rate of maintenance :
The Court has judicial discretion to determine (1) the need for maintenance and (2) quantum
of maintenance. The Court keeps in mind the following considerations laid down in Sec. 23.
A. Amount of maintenance of wife, children or aged parents :
1. The position and status of parties.
2. The reasonable wants of the claimant.
3. Whether there is justification for the claimant wife to live separately.
4. Claimants property and income
5. Other persons entitled to claim maintenance.
B. Maintenance of Dependents :
1. Net value of the estate of the deceased.
2. The degree of relationship with deceased.
3. Any provision for the dependant under any will.
4. Reasonable wants of the dependant.
5. Past relations between the dependant and the deceased.
6. Property and income of the claimants.
7. Other persons entitled to maintenance.

226 FAMILY LAW - I
 These are mere guiding principles to exercise judicial discretion, and are not mandatory rules.
In addition the Court bears in mind many other principles. In short, the Court must fix the rate of
maintenance with due regard to all the relevant factors.
The object of the Court must be to make just and reasonable allowance suited to the position
in life of the claimant.
The amount of maintenance whether fixed by Court or agreement, before or after the Act,
may be altered. Such alteration is possible if there is material change in the circumstances. The
circumstances may relate to the claimant or to the person or estate bound to maintain (1) Enormous
rise in prices of necessaries (2) financial crisis faced by person or estate bound to maintain (3)
improvement in the condition of the claimant are all such circumstances. Even the lump amount fixed
in full quilt of maintenance is subject to review and revision. Further in spite of an agreement not to
claim enhanced maintenance, a claim can be made for enforcement.
NATURE OF MAINTENANCE
Sections 26 to 28 deal with nature of maintenance claims. Sec. 26 clearly states the debts
contracted or payable try the deceased have priority over maintenance claims. A claim for maintenance
only a personal Right and note charge, on the property, unless it is made so. When there is a charge,
maintenance claims shall have priority over the debts.
Under Sec. 27 a maintenance claim can be made a charge on the estate of the deceased
1. By the will of the deceased.
2. By a decree of court or
3. By agreement between the deceased and the claimant.
A claimant may have right to receive maintenance, out of an estate. Such estate or part of such
estate may be transferred. Now the right to maintenance can be enforced against the transferee. But
the transferee is liable only. (1) when the transfer is gratuitous or (2) when he has knowledge of the
maintenance claim against the property. Thus an innocent transferee for consideration and without
notice of maintenance claim is protected. This principle is reproduced in Sec. 28 of the Act from
Sec.39 of Transfer of Property Act.

PARSI MATRIMONIAL LAW

Chief Parsi Matrimonial Courts
For the purpose of hearing units under the Parsi Marriage and Divorce Act, 1936 Special
Courts constituted in the presidency Towns of Calcutta, Madras and Bombay the State Government
set up such Special Courts in the fit places in their Territories. The Special Courts in the Presidency
Towns shall be called the Chief Matrimonial Courts. Their Jurisdiction is the ordinary Original Civil
Jurisdiction of the High Court. Generally the Chief Justice of the High Courts shall be the Judge of
the Parsi Chief Matrimonial Court. The Chief Justice may also appoint some other Judges of the High
Court to act as judges of the parsi Chief Matrimonial Court:
District (Parsi) Matrimonial Court :
The State Government may alter the local limits of Jurisdiction of any District Parsi Matrimonial
Court. If the State Government feels that any District Matrimonial Court is unnecessary, it may
include it within the jurisdiction of the Chief Parsi Matrimonial Court. Sometimes any district may be
brought within the jurisdiction of one District Parsi Matrimonial Court. In altering the jurisdiction of the
Matrimonial Courts, the Parsi population in a particular area is taken into consideration.
Delegates :
In Trial of Matrimonial cases under the Act the judge shall be aided by seven delegates. The
delegates shall be appointed by the State Government and they shall be Parsis. Their number in the
case of High Court is below 30 and in the case of District Court is below 20. The object of delegates
is to give the local Parsis an opportunity of expressing their opinion.
The appointment of a delegate shall be for ten year. But he shall be eligible for reappointment
for the like term. The Office as a delegate becomes vacant (1) when he completes his term of office

227 FAMILY LAW - I
(2) when he resigns his office (3) when he becomes incapable or unfit to continue in office (4) when
he ceases to be a parsi (5) when he is convicted of an offence under Indian Penal Code (6) when he
is declared an insolvent when vacancy arises it is filled up by the State Government.
The judge shall select the delegates to aid him in trial of cases, from the District in due rotation.
Before such selection party to the suit may challenge any three of the delegates. In case of such
objections, the delegates next are selected to be the judge.
Jurisdiction :
Sec. 29 states the courts in which suits to be brought. All suits must be filed in the court within
whose jurisdiction the defendant resides. When the defendant has left the territory, the suit must be
filed in the court at the place where the plaintiff and the defendant last resided together. However;
with courts permission the suit may be filed (1) In the Court at the place where the plaintiff resides
or (2) at the place where the plaintiff and the defendant last resided together.
INDIAN DIVORCE ACT, 1869
1. Dissolution of Marriage
Sections 10 to 17 deal With dissolution of marriage. Any husband may present petition to the
District Court of High Court for dissolution of the marriage on the ground that the wife is guilty of
adultery.
Any wife may present petition to the District Court or High Court for dissolution of the marriage
on the ground that the husband after the marriage has :
1. Changed his profession of Christianity.
2: Gone through a form of marriage with another woman.
3. Is guilty of bigamy with adultery.
4. Is guilty of incestuous adultery.
5. Is guilty of marriage with another woman with adultery.
6. Is guilty of rape, sodomy or bestiality.
7. Is guilty of adultery coupled with cruelty. The cruelty by itself must be enough for
dissolution.
8. Is guilty of adultery coupled with desertion, without reasonable excuse for two years.
When the husband filed the petition for dissolution on the ground of adultery, he shall make the
adulterer a co- respondent. The court may excuse him from doing so (1) if she wife is leading the life
of a prostitute (2) the name of the adulterer is unknown to the husband, in spite of his efforts (3) or
if the adulterer is dead.
Every decree of dissolution passed by the High court shall be in the first instance a decree in
Nisi. The decree in Nisi is absolute after expiry of a period fixed by the order of the High court being
not less than 6 months. The petitioner must file a petition to have the decree in Nisi made resolute,
after expiry of the prescribed period. During the period (any person) can oppose the decree being
made absolute on grounds of conclusion or material effects. The Court may take the decree absolute,
or reverse the decree in Nisi or may require further enquiry.
Every decree for a dissolution made by a District Judge is subject to confirmation by the High
Court for confirmation shall be heard by two Judges of the High Court. Confirmation of the decree
shall be made only after expiry of the duration prescribed by the High Court, not less than six months.
Nullity of Marriage (Section 18 and 18)
Any husband or wife may present a petition to the District Court or to the High Court for
declaration that the marriage is null and void. Such declaration is made on any of the following
grounds.
1. The respondent was impotent at the time of the marriage and at the time of filing the
petition.
2. The parties are with in the prohibited degree of consanguinity or affinity.

228 FAMILY LAW - I
 3. Neither party was a lunatic or an idiot at the time of marriage.
4. The former husband or wife of either party was living at the time of marriage, the former
marriage being in force.
The High Court may pass a decree of nullity of marriage on the ground that the consent of
either party was obtained by force or fraud. District Courts decree shall be confirmed by the High
Court.
Judicial Separation
Husband or wife may obtain a decree for Judicial Separation on the following grounds. (1)
Adultery or cruelty or desertion without reasonable excuse for two year, or more. The petition for
Judicial Separation may be made either to the District or to the High Court. The Court shall grant the
decree if it is satisfied with the truth of the petition. (2) and if there is no legal ground to refuse the
decree.
Consequences : The wife, after Judicial Separation shall be deemed spinster with respect
to after acquired property. She can freely dispose of her property and when she dies intestate, the
property shall be inherited by her heirs. At the time of such inheritance the husband is deemed to be
dead.
The wife, after Judicial Separation is deemed spinster also for purpose of contract and suing.
If alimony is ordered to be paid to the wife by the husband, during Judicial Separation, husband is
liable for the necessaries supplied to the wife, if he fails to pay the alimony.
Reversal : When a decree for Judicial Separation is obtained in the absence of the respondent,
the respondent may file petition for reversal of the decree. If desertion was the ground of such
decree, reasonable excuse for the desertion must be proved. The court must be satisfied that the
decree was wrong. The reversal shall not affect the rights or remedies of third parties against the wife
or the husband.
RESTITUTION OF CONJUGAL RIGHTS (section 32)
Either the husband or the wife may sometimes withdraw from the society of the other, without
reasonable excuse. Then the separated spouse can file a petition for the remedy of Restitution of
Conjugal Rights. The petition may be filed before the High Court or the District Court. The Court
grants the remedy (1) when it is satisfied with the truth of the contents in the petition, (2) when there
is no legal ground for refusing the remedy.
SPECIAL MARRIAGE ACT 1954
Solemnization of Marriage Under The Act (Secs. 4 to 14)
The following conditions should be fulfilled for the special marriage under the Act
1. Neither party has a spouse living,.
2. Neither party is an idiot or lunatic.
3. The male has complete the age of 21 years and the female the age of eighteen years.
4. The parties are not within the degrees of prohibited relationship. However custom
governing the parties may permit such marriage.
Notice : The parties to the intended marriage shall give notice of the marriage in the form
prescribed. It must be given to the marriage officer of the district. One or both of the parties to the
marriage must have resided for a period of not less than 30 days immediately prior to the notice.
The Marriage Officer shall keep the notice with the records of his office. He shall also enter a
true copy of the notice in the Marriage Notice Book. The Marriage Book shall be open for inspection
to the public without fee. The Marriage Officer shall be publish a copy of the Notice, by affixing it to a
conspicuous place of the office. When either of the parties is not permanently residing in the district,
the Marriage Officer shall send a copy of the Marriage Notice to the Marriage Officer of the district
where the party is permanently residing. The Marriage Officer receiving the copy shall also publish
it in his office.

229 FAMILY LAW - I
 Objection : Before expiry of 30 days from the date of publication of the Marriage Notice, any
person may object to the performance of the marriage. Objection must be on the ground that the
intended marriage is contravening the conditions prescribed by the Act. If there is no such objection,
the marriage may be solemnized after the expiry of 30 days from the date of publication of notice.
When objection is raised it is recorded by the Marriage Officer in the Marriage Notice Book. It
is signed by the person raising the objection. The Marriage Officer shall enquire into the objections
within 30 days from the date of objection. If he upholds the objection he can refuse to solemnize the
marriage. Either party to the marriage may prefer an appeal to the District Court against the order
of refusal passed by the Marriage Officer. The appeal should be filed within 30 days from the date of
the order. The order of the District Court shall be final.
Registration : At the time of solemnization of marriage, the parties to the marriage, and
three witnesses must sign a declaration in the presence of the Marriage Officer, The Declaration is
countersigned by the Marriage Officer. The Marriage may be solemnized at the office of the Marriage
Officer, or at e place within reasonable distance which the parties desire. When it is outside the office
additional payment of fees is required. The marriage may be solemnized in any from chosen by the
parties. Under all forms the following declaration must be made by the parties in the presence of the
Marriage Officer. I take the to be may lawful wife or husband.
After the marriage is solemnized the Marriage Officer shall enter the marriage in the Marriage
Certificate Book. Such, certificate shall be signed by the parties to the marriage and three witnesses.
This Certificate is the conclusive proof the fact of marriage under the Act. When marriage is not
solemnized within 3 months new Notice of Marriage should be given, and the entire procedure
should be followed:
1. Restitution of Conjugal Rights (Sec. 22)
The wife or the husband may withdraw from the society of the other, without reasonable excuse.
In such case the separated spouse may petition to the Court for the remedy of Restitution of Conjugal
Rights. The District Court shalt grant the remedy (1) when it is satisfied with the truth of the contents
in the petition, (2) and when there is no legal grounds for refusing the remedy.
2. Judicial Separation (Sec. 23)
Either party to the marriage may file a petition for Judicial Separation, to the District Court. The
grounds for Judicial Separation are :
1. Any of the grounds in sub-Section (1) of section 27 (Divorce)
2. Failure to comply with the decree for Restitution of Conjugal Rights.
The Court grants the remedy -
1. when it is satisfied with the truth of the contents in the petition; and
2. when there is no legal ground to refuse the remedy.
After the judicial separation there is no obligation upon either party to cohabit with the other.
However either party may later file a petition for rescinding the decree for Judicial Separation. The
Court rescinds the decree if it considers it just an reasonable to do so.
3. Divorce (Sec. 27 and 28)
Either the husband or the wife may present a petition for divorce to the District Court on the
following grounds.
1.a. The respondent has committed adultery Since the solemnization of marriage.
b. The respondent has deserted the petitioner without cause for a period of at least three
years immediately prior to the petition.
c. The respondent is undergoing a sentence of imprisonment for seven years or more for
an offence in the Indian Penal Code. In this case the respondent must have completed 3
years of imprisonment before the presentation of the petition.
d. The respondent has treated the petitioner with cruelty, since the solemnization of the
marriage.

230 FAMILY LAW - I
 e. The respondent has been incurably of unsound mind for a continuous period of not less
than three years immediately prior to the petition.
f. The respondent has been suffering from leprosy, for a period of not less than 3 years
immediately prior to the petition. The disease must not have been contracted from the
petitioner:
g. The respondent has been suffering from venereal disease in a communicable form for
a period of not less than 3 years, immediately prior to the petition. The disease must not
have been contracted from the petitioner.
h. The respondent has not been heard of as being alive for a period of seven years or more,
by those who would naturally have heard of him or her, if he or she had been alive.
2 a. If there is no resumption of cohabitation between the parties to the marriage for a period
of one year or more, alter the passing of the decree for Judicial Separation:
b. If there is no restitution of conjugal rights between the parties to the marriage, for a
period of one year or more, after the passing of the decree for Restitution of Conjugal
Rights.
c. When the husband is guilty of rape, sodomy or bestiality after the solemnization of the
marriage.
Divorce of Mutual Consent :
Both parties together may present a petition to the District Court for Divorce by Mutual consent.
The Court grant divorce.
1. if they lived separately for a period of one year or more; and
2. if they are not able to live together; and
3. if they mutually agree to have the marriage dissolved.
Within two years and after one year from the date of presentation of the petition, the parties
should make a motion. On such motion the Court shall hear the parties and grant the decree of
Divorce if the contents of the petition are true. The divorce take effect only from the date of the decree
of divorce.
The petition for divorce can be presented only after three years from the date of entering the
certificate of marriage in the Marriage Certificate Book. However the District Court may entertain
premature petitions.
1. When there is exceptional hardship to the petitioner; or
2. There is exceptional depravity on the part of the respondent.
Sometimes permission for premature petitions is obtained from the District Court through
misrepresentation or concealment of the nature of the case. In such case the District Court passes
the decree on condition that it shall take effect only on the expiry of 3 years, or dismisses the petition
for divorce. In deciding premature petitions for divorce -
1. The court regards the interests of the children of the marriage; and
2. The Court also regards the possibilities or reconciliation between the parties.
The divorced persons may remarry after one year (10 from the date of the decree of divorce;
or (2) from the date of confirmation of the decree by the appellate Court.
Void Marriages (Sec. 24)
A marriage solemnized under the Act is void, and a decree of nullity may be obtained from the
Court.
1. If the condition prescribed for the valid, marriage under the Act are violated. (refer to
conditions)
2. if the respondent is impotent at the time of marriage and the time of filling the petition.

231 FAMILY LAW - I
 3. Marriages registered under Sec. 15 of the Act are deemed to be marriages solemnized
under this Act. They are void, if the condition in Sec. 15 are not fulfilled.
Voidable Marriages (Sec. 25)
Marriage solemnized under the Act is voidable on the following grounds
1. If the marriage is not consummated owing to the willful refusal of the respondent.
2. If the respondent was at the time of marriage pregnant by some person other than the
petitioner:
3. If the consent of either party to the marriage was obtained by coercion or fraud.
In the case of conditions (2) -
a) the petitioner must be ignorant of the pregnancy at the time of marriage.
b) petition must be filed within one year from the date of marriage.
c) marital intercourse with the consent of the petitioner should not take place after discovering
the ground for nullity.
In the case of condition (3) -
a) petition should be filed within one year from the time of cessation of force, or from the
time of discovery of the fraud.
b) the petition should not live with the respondent with free consent, after cessation; of
coercion or discovery of fraud.
MOHAMMEDAN LAW
INTRODUCTION
1. Conspectus :
The place of personal law in the Indian Legal System.
Mohammedan. Law applied in India to Mohammedans in some matters only. Hence application
with respect to (a) persons, (b) topics.
Conspectus of Islamic Law - one of the great legal systems of the world -today.
Islamic conception of religion and law, divinely ordained and basically immutable.
Wider in scope than Western Law. Mohammedan Law is more strictly religious and has
undergone less of secularization than Hindu Law.
2. Origin of Islam :
Hindu Law & Mohammedan Law are so immediately connected with religion that they cannot
be deserved from it.
Origin of Islam - advent of the Prophet and his Mission the rise and spread of Islam as a
complete code of life. Death of Prophet 632 A.D. events following Muslim world divided on the issue
of succession Shias and Sunnis.
3. Sources of Mohammedan Law.
Classical Sources :
The Koran : Ipsissima verba of God communicated in its final form through a single human
channel. Primary source in point of time and importance. Differs from a code in form and context.
The Traditions (Sunna or Hadith): What the prophet said and did and what was done in his
presence without his disapproval.
Ijma : Agreement of the jurists among followers of Mohammed in a particular age on a question
of law.

232 FAMILY LAW - I
 Qiyas : Reasoning by analogy.
Additional Sources :
Pre Islamic customs of the Arabs.
Local Usages.
Justice, Equity and Good Conscience.
Schools of Mohammedan Law :
Division into great sects and each sect, into different sub-sects, or schools origin of the different
schools.
Sunni Law : Hanafi, Maliki, Shafi, Hanbati; the Hanafi School - Abu Haneefa and his 2 disciples,
primary authorities and texts, the Hedaya and Fatawa Alamgin.
Shia Law : Ithna-Asharias, Istamailyas, Zaidyas. The Sharaya-ul Islam.
APPLICATION OF MOHAMMEDAN LAW
1. General Principles
If each sect has its own rule according to Mohammedan Law, that rule should be followed with
respect to the sect.
Change of sect on sub-sect. Effect of marriage. Law of the sect or sub-sect, to which defendant
belongs.
Presumption :
1) Parties to a suit or proceeding are sunnis.
2) A Sunni is governed by Hanafi Laws.
3) A shia is governed by Ithna- Ashari Law.
2. Persons : Who is Mohammedan?
The essential doctrine of the Mohammedan religion is that there is but one god and Mohammed
is his prophet - Naratakata Vs. Parakkal 45. Mad 986.
Any person who acknowledges the unity of God and the Prophetic mission of Mohammed is a
Mohammedan, Jiwan Khan Vs. Habib AIR 1933 Loh (PC).
Mohd. by birth : In strict Mohd. Law if either parent is a Mohd. the child presumed a Mohd. In
India, under ordinary circumstances, a child takes his fathers religion. (P.C. in skinner Vs Order).
Mohd. by Conversion : Formal profession of Islam is necessary and sufficient Abdul Razack Vs.
Aga Mohd: (1893) 21 M.I.A. 54.
But the change of religion must be made honestly without any intent to cannot a fraud on the
law.
Apostasy : Express and implied. Effect under Islamic Law, Statutory provision - Freedom of
Religion and shariat Act.
3. The Muslim Personal Law (Shariat) Application Act, 1937.
Objects and Reasons
1. To ensure certainty and definiteness
2. There was difficulty of ascertaining and administering customary law.
3. To improve the position of women.
4. Shariat is in the form of a variable code.
Preamble
To make provisions for the application of the Muslim Personal Law (Shariat) to Muslims in the
provinces of India.

233 FAMILY LAW - I
 Section 2 : Notwithstanding any customs or usage to the contrary, in all questions (save
questions relating to agricultural land) regarding intestatable succession, special property of females,
including personal inherited or obtained under contact or gift or any other provision of personal law,
marriage, dissolution of marriage, including Talak, Lia,. Zihar, Lion, Khula and Mubaraat, maintenance,
dower, guardianship, gift, honests and trust properties and wakfs (other than charities and charitable
institutions and charitable and religious endowments) the rule of decision where the parties are
Muslims shall be the Muslim Personal Law (Shariat).
Section 3:
(1) Any person who satisfies prescribed authority.
(2) (a) that he is a Muslim, and
(b) that he is Competent to contract within the meaning of Sec. 121 of the Indian
contract Act 1872; and
(c) that he is a resident of a province of India, may by declaration in form and field
before the prescribed authority declare that he desires to obtain the benefits of the
provisions of Sec. 2 shall apply to the declarant and all his minor children and their
descendants as if in addition to the matter enumerated therein adoption, wills and
legacies were also specified.
Section 3(2): Provides for an appeal against an order of the prescribed authority refusing to
accept a declaration under sub section (a).
Section 4 : Confers power on the provisional Government to make rules to carry into effect the
provisions of the Act.
Section 5 : (Later repealed by the Dissolution of a Muslim Marriage Act of 1939) the District
Judge may, on petition made by a Muslim named woman, dissolve marriage on any ground recognized
by Muslim Personal Law (Shariat)
Section 6 : Repeals provisions of Acts and Regulations specified in so far as they are
inconsistent with the provisions of the Act. Sec. 16 of the Madras Civil Courts Act 1873 is specified.
MUSLIM LAW OF MARRIAGE (NIKHA)
Nikha - Civil contract - no religious ceremony is necessary to bring about the relationship.
Capacity :
1. Completion of 15 years on attainment of puberty.
2. Dower
3. Consent
4. Sound mind.
There are 3 kinds of marriage.
1. Valid Marriage (Shahih)
2. Void Marriage (Batil)
3. Irregular Marriage (Fasid)
DOWER (MAHR)
Dower is any amount of money or property given to a wife by her husband as a mark of respect
in which the wife is held by the husband.
The different kinds of Dower are;
1) Prompt Dower.
1. Specified Dower
2) Deferred Dower:
2. Proper Dower

234 FAMILY LAW - I
 LAW OF DIVORCE (TALAK)

Different ways in which the marriage may be dissolved under Mohammedan Law.
I. Husband Divorcing Wife :
1. Talak Ahasan
2. Talak Hasan
3. Talak-ul-biddat.
II. Divorce by Mutual Consent
1. Khula
2. Mubaraat
III. Judicial Divorce at Instance of wife
1. Procedure of Lien.
2. Talak by Tafweez.
3. Impotence of Husband.
4. New ground recognized by the Dissolution of Muslim Marriages Act 1939.
VI. Other modes of Divorce
1. Zihar
2. kula

ACKNOWLEDGMENT OF PATERNITY (IKFAR)

A Muslim parent i.e. father recognizes the paternity of his legitimate child by way of
acknowledgment - Doctrine Acknowledgment of Paternity.

Guardianship of Person
1. Concept of Minority according to Mohammedan Law.
2. Relative rights of father and mother with regard to the custody of infant children.
3. Principles applicable to the custody of female children under Mohammedan Law.
4. Principles applicable to the custody of male infants.

Guardianship of Property
1. Legal guardians of the property of a minor.
2. Powers of alienation of the guardian over the minors property.
3. De facto guardian and his powers:

235 FAMILY LAW - I
Law of Maintenance
Maintenance of wife, children and parents application of Sec.125 Cr.P.C to Muslims Shah
Banos case. The appellant Mohd. Ahmed Khan married Shah Bano Begum, the respondent in 1932
and begotten 3 sons & 2 daughters. In 1975 the appellant seen the respondent out of the house. In
1978 the respondent filed a petition before the Magistrate for maintenance U/S: 125 Cr.P.C. claiming
Rs. 800/- p.m. In November, 1978 the appellant divorces the respondent by irrevocable Talak. His
defence before the Magistrate was that she had ceases to be his wife by reason of talak, and that
he had already paid maintenance at the rate of Rs. 240/- p.m. for 2 years and that he had already
deposited Rs: 3000/- in the count being the deferred dower payable to her. In August 1979 the
Magistrate directed the appellant to pay Rs. 25/- p.m. by way maintenance to the respondent. The
respondent appealed to the High Court for enhancement of maintenance amount as according to her
the appellant was earning Rs. 60,000/- per year. The High Court enhanced the maintenance to Rs.
179.20 p.m. The husband appealed to the Supreme Court. A bench of 5 Judges including the Chief
Justice Y.V. Chandrachud held that Sec. 125 Cr.P.C. is applicable to Muslims also. This decision was
not liked by a section of Muslims Community. In order to maintain status quo and at the same time
not to derogate the Supreme Court Judgement, the parliament passed Muslim womens (Protection
of Rights on Divorce Act) 1986. According to this all the husbands lability to pay maintenance to the
divorced wife extends up to the period of iddat only. Thereafter he need not pay maintenance. This
Act also makes the provision of Sec. 125 Cr.P.C. applicable to Muslims if both the husband and wife
give their consent for the petition for maintenance being tried under Sec. 125 Cr. PC. Thus this Act
retains both orthodox view of personal law and the progressive and liberal view expressed by the
Supreme Court in Shah Banos case.5.

236 FAMILY LAW - I
 6. LAW OF CRIMES
CHAPTER - I
THE CONCEPT OF CRIME
Crime as a Public wrong:
An Act committed (or) omitted in violation of Public Law Forbidding or commanding it.-
Blackstone.
Crime as a Moral wrong
Garafalo, an eminent Criminologist, defines Crime in terms of immoral and anti-social acts.
- Crime is an immoral and harmful act that is regarded as Criminal by public opinion because
it is an injury to so much of the moral sense as is possessed by a community a measure which is
indispensable for the adaptation of the individual to society.
Crime as a Conventional wrong
A noted Criminologist, Edwin H. Sutherland, defines Crimes in terms of criminal behaviour He
says Criminal behaviour is behaviour in violation of the Criminal Law.
Crime as a Social Wrong:
John Gillin gives a sociological definition of crime.
He says, Crime is an act has been shown to be actually harmful to society...
Crime as a Procedural wrong:
A wrong which is pursued by the Sovereign or his subordinates is a Crime
- Austin.
Keny modified Austins definition and stated crimes are wrongs whose sanction is punitive, and
is in no way remissible by any private person, but is remissible by the crown alone, if permissible at
all.
Crime as a legal wrong:
When a Penal statute prescribes Punishment for an illegal act or illegal omission, it becomes
crime. Section 40 of the Indian Penal Code simply states:
Except in the chapters and Sections mentioned in clauses two and three of this section, the
word offence denotes a thing made punishable by this code... or under any special or local law.
However, one can understand what constitutes, a crime, by the following two essential attributes-
a) Crime is an act of Commission or an act of omission on the part of a human being, which
is considered harmful and prohibited by state.
b) the transgression of such harmful acts is sanction of punishment.
CONSTITUENT ELEMENTS OF CRIME
Criminal guilt would attach to a man for violations of Criminal law. However, the rule is not
absolute and is subject to limitations indicated in the Latin maxim, actus non facit reum, nisi mens
sit rea. It signifies that there can be no crime without a guilty mind.
Actus reus + mens rea = crime
a) Actus reus : (Act or omission)
The word actus connotes a deed, a physical result of human conduct. The word reus mens
forbidden by law. The word actus reus, may, therefore be defined as Such result of human conduct
as the law seeks to prevent.

237 LAW OF CRIMES
b) Mens rea
The another one important essential of a crime is mens rea or evil intent. There can be no
crime of any nature without an evil mind. Every Crime requires a mental element. No act of the
person was punishable unless the same is done with evil intent.
Strict responsibility in Criminal law:
Crimes of Strict liability are those in which guilty mind is excluded. The exclusion of mens rea
from statutory offences is justified on the ground that such laws are enacted by the legislature to
preserve and protect social and economic interest of the society, which require strict adherence to
such laws. Such offences are termed as offences of strict liability or absolute liability.
Mens rea in statutory offences:
No mens rea-No Crime this doctrine has been applied to all common law crimes in England
without any reservations. Application of this doctrine to statutory crimes is fully discussed in two
leading English cases.
1. R.Vs. Prince (1875) LR 2 CCR 154.
2. R.Vs. Mrs. Talson (1889) 23 QBD 168.
In R Vs. Prince Henry was tried for having unlawfully taken away an unmarried girl named
Annie Philips, below the age of 16 years, out of the lawfulll possession and against the will of her
father,
Under the belief that she was eighteen; That is the crime under section 55 of the offences
against the person Act 1861 (English law) The House of lords should not consider the mental status
of the accused, they were set aside the accuseds plea (absence of Criminal intention).
Mens rea in Indian Penal Code:
The word mens rea is a technical term, it is not directly used in the Indian Penal Code; The
draftmans alternatively used various terms for mens rea such as
Intentionally - Ref.- Sec 300 IPC
Fraudulently - Ref. the topic - offences against the property in I.P.C.
-Knowingly (or) Knowledge - Ref Sec. Sec 26 IPC
- maliciously (or) Malice - Voluntarily, dishonestly,
Wantonly - rashly etc.,
If no such element is incorporated in the definition of crime, it is presumed that the legislature
has done it intentionally and hence the doctrine of mens rea does not apply.
Mens rea in statutory offences in India:
Ref. case law:
Srinivasa Mills Vs. Emperor A.I.R. 1947 SC
State of Maharastra Vs. M.H.George A.I.R. 1965 SC 722.

238 LAW OF CRIMES
 CHAPTER - II
GENERAL DEFENCES
A person is presumed to know the nature and consequences of his act, and is therefore,
responsible for it in law. However, there are some exceptions to this. A man may be excused from
Punishment, either on the ground of the absence of the requisite mens rea for the Commission of a
Crime or on some other ground recognised by law. Such Provisions have been dealt with in chapter
IV of the Indian Penal Code (Ref. sections 76 to 106). Though there are 32 Sections in this chapter
it contains 7 heads.
Mistake of fact:
The common law Principles ignorantia facit excusat, ignorantia juris non excusat - ignorance
of a fact is excused or is a defence but ignorance of law is no excuse have been embodied in Section
76 and 79 of the IPC.
The act of the Police Officer in the illustration to Sec.76 in arresting Z in place of Y for whose
arrest, in fact no warrant was issued, does not make him guilty of wrongful confinement. (In Dakhi
singh Case 1955 Cri L.J.905) a suspected thief who was arrested, escaped from custody. The Police
Officer, not being able to capture him fired at him. In doing so another person was hit and killed. A
justification under this section can not be accepted. So Mistaken belief in execution of duty is no
defence under this Provision. Ref. Case: State of West Bengal Vs. Show Mangal Singh (AIR 1981
SC 1917)
Section 79 is a bit different from Section 76, though the language employed is particularly
similar except the word justified used therein. As the Section runs. Nothing is an offence which is
done by a person who
i) is justified by law (or)
ii) who by reason of a mistake of fact and not by reason of a mistake of law
iii) in good faith.
iv) believes himself to be justified by law to do it.
Ref. Case: Chirangi Vs. State (1952-Cri L.J. 1212 M.P.)
Mistake of Law:
Mistake of law is no excuse to a crime
Ref. Case: State of Maharastra Vs. M.H.George (A.I.R.(1965 SC 722)
CAPACITY OF THE PERSON AND CRIMINAL LIABILITY
Infancy (or) Act of Child:
a) under Seven years of age (Section 82.)
b) Above 7 and under 12 years Section 83.
Sections 82 and 83 of the IPC given Protection to a child a particular age from Criminal
Prosecution and punishment. This is based on the Principle that an infant is incapable of distinguishing
between right and wrong.
Section 82 grants absolute immunity to a child below seven years of age on the ground that
such a child is doli incapax that is, incapable of doing a criminal act
Defence of Insanity:
Ref.Case: MC. Naughtens case (1843)
Defence of intoxication (Drunkenness)
Under Modern English law, in order that drunkenness can be pleaded as an excuse, it must be
involuntary and not voluntary drunknenness.

239 LAW OF CRIMES
 Ref.Case Law:
D.P.P. VS. Beard (1920 A.C.479)
Attorney General for northern Ireland Vs. Gallachar (1961 Alle R.299)
Law of Intoxication in India : (Sec. 85 and 86)
Ref. Case Law: Basu dev Vs. State of Pepsu (A.I.R.1956 SC 488)
Consent: (Sec. 87 to 91 IPC)
The word consent has not been defined under the Penal Code. But consent has been considered
a good defence in a Criminal case.
Ref. Case Law: R.Vs. Williams (1923) 1 K.B.340
R.Vs. Genevan (1934) 2 K.B498
Sec. 87 does not protect causing death or grievous hurt consent however, may help in reducing
the offence of murder to the culpable homicide (Exception V to Sec 300). Immunity i.e. Fencing,
Boxing.
Sec. 88 Provides for protection to doctors and surgeons. If a medical practitioner is not qualified
section 88 will afford no protection. Ref. Case Sukaroo Kabirajs case.
Sec. 89 of the IPC provides for protection in those cases where consent for causing harm to
persons of unsound mind or an infant below 12 years of age, is given by parents or guardians with
the prescribed or permissible limit.
Ref. Case: Nankee Vs. Emperor (A.I.R. 1935 All 916).
Section 90 IPC:
This section lays down specifically that a consent is not valid if the same is obtained under fear
of injury or a misconception of fact.
Ref. Case: Poonai Fattemah vs. Emporer 1896 12 WR(Cr) 7
Section 91 IPC
Causing of miscarriage (unless caused in good faith for the purpose of saving the life of a
woman) is an offence independently of any harm which it may cause or be intended to cause to the
woman. Therefore, it is not an offence by reason of such harm and the consent of the woman or of
her guardian to the causing of such miscarriage does not justify the act.
Ref. Case: R. Vs. Dudley and stephens. (1884. 14 QBD 273.)
Section 92 IPC :
Necessity - Implied consent (with good faith)
Ref. Case Law: Simbhu Narain Vs. Emperor A.I.R. 1923 All 546.
Compulsion - Sec. 94 IPC
Ref. Case law: D.P.P. vs. Lynch 1975 (1) All E.R.9(3)
R.Vs. Home (1986) 1 All E.R. (C.A.)
R.Vs. Burke and Clarkson (1986) 1 All E.R. 836
Triviality (Sec. 95 IPC)
De Minimis Non Curat Lex.
Law does not take notice of trifles.
Ref. Case law- Veeda menezes Vs. Yusuf khan. (A.I.R.1966 S.C.1773)
RIGHT OF PRIVATE DEFENCE
(Sec. 96 to 106 IPC)
It is a right inherent in man and is based on the premise that the foremost duty of man is

240 LAW OF CRIMES
to protect himself. But the right of private defence as provided in the code is to be exercised within
certain limits though the Indian law is wider that its English counter part.
Ref. Case law:
- R. Vs. Rose (1884 15 cox CC-540).
- Viswanath Vs. State of U.P. (A.I.R. 1960 SC 67)
- Amjad khan Vs. State (AIR 1952 SC 165)
- Deo narain Vs State of U.P. (A.I.R. 1973 SC)
Section 96 of the IPC gives statutory recognition to the right of private defence.
Section 97 and 99 IPC
The right of Private defence to defend ones body and property as well as the body and property
of another against certain specified offences granted by section 97 is not absolute but subject to the
limits and restrictions prescribed in Section 99. There is no right of private defence in cases in which
there is time to have recourse to the protection of the public authorities.
Section 100 IPC provides; when the right of Private defence of the body extends to causing
death.
Ref. case law:
- Puran Singh Vs. State (AIR 1975 SC 1674 )
- Mancini Vs. D.P.P. (1942).
Section 101 IPC provides that in the absence of the circumstances laid down in Sec 100, the
right of private defence is limited to causing of any harm other than death. This right, again is subject
to the exceptions already death with under Sec. 99.
Section 102 IPC Commencement of the right of Private defence and its duration.
Ref Case: Kala Singh Vs. Emperor (AIR 1933 Lah 167)
Section 103 IPC discussed when the right of Private defence to property extends to
causing death.
Ref. Case: Ismail Vs. Crown A.I.R. 1926 Lah 28.
Section 104 IPC
Ref. Case Law: Ramaswamy Chettiar case (1949 Mad 545)
This Sec. says that if the theft, mischief or criminal trespass does not answer the description
given in Sec. 103, then the right of private defence of property does not extend to causing death, but
it extends, subject again to Sec. 99 to voluntarily casing any harm other than death.

JURISDICTION
Territorial Jurisdiction:
Section 2 of the Indian Penal Code declares that every person shall be liable to punishment
under the code and not otherwise for every act or omission contrary to the provisions of the code of
which he shall be guilty within India.
Ref. case Law: Mobarak Ali Vs. The State of Bombay A.I.R. 1957 S.C.857.
The accused a Pakistani national while staying at Karachi, made false representations through
letters, telephone conversations and telegrams to the complainant at Bombay and induced the
complainant to part with money at Bombay. When the accused subsequently happened to come to
Bombay he was prosecuted for cheating.
Held that the offence was committed at Bombay even though the accused was not physically
present there and that the Court had jurisdiction to try him under S.2.
Jagannadadhas J. Observed The use of the word every person in Sec. 2 as contracted with

241 LAW OF CRIMES
the use of the phrase any person in Sec. 3 as well as Sec. 4(2) of the Code Sec. 2 must be read with
the phrase every person at the commencement thereof. But this is far fetched and untenable. The
plain meaning of the phrase Every person is that it comprehends all persons without limitation and
irrespective of nationality allegiance, rank, status, caste, colour or creed.
On the other hand a reference to S.3 of the Code clearly indicates that it is implicit therein
that foreigner who commits an offence within India is guilty and can be punished as such without
any limitation as to his corporeal presence in India at the time. For it is were not so, the legal fiction
implicit in the phrase as if such act had been committed within India in S.3 would not have been
limited to the supposition that such act had been committed within India but would have extended
also to a fiction as to his physical presence at the time in India.
The code does apply to a foreigner who has committed an offence within India not withstanding
that he was corporeally present outside (it may also be noted that foreigners who initiate offence
abroad that take effect of Indian territory are liable to be punished under the code. Ref. case laws:
- Chotelal vs. Emperor (36 bom 524)
- Mubarik Ali Vs. State of Bombay, (A.I.R. 1957 S.C. 857)
- Joyce Vs. D.P.P. (1946 A.C. 347)
CHAPTER III
JOINT LIABILITY
When a criminal act is committed by an individual it is easy to assess his liability for punishing
him. But when an offence is committed by means of several acts by several persons in furtherance
of common intention each of the accused who has participated is guilty of the whole offence. Section
34 of IPC. Provides for such cases and lays down the principle of joint liability.
Sec. 34 reads when a criminal act is done by several persons in furtherance of the common
intention of all each of such persons is liable for the act in same manner as if it were done by him
alone. Thus the section gives statutory recognition of the common sense principle that if several
persons unite with a common intention to effect any criminal object all those who assists in the
accomplishment of that object are equally, though some may be at a distance from the spot where
the crime is committed.
The essential ingredients of Sec. 34 are
1. where a criminal act is done by several persons
2. in furtherance of common intention of all
3. each of such person is liable for that act in the same manner as if it were done
by him alone.
The following two cases are illustrative of the application of the principle to joint liability.
Ref.Case Law:
1) Barendra Kumar Ghosh Vs. Emperor (1952 Cat 197P.O)
2) Mehboob Shah Vs. Emperor (Indus reiver act case) (A.I.R.1945 P.C.118)
3) Nachimuthu Gounder Vs. State of TamilNad (1947 Mad)
Corporate liability (Alterego - Doctrine)
Ref. Case Law:
- Vs. Briminghan and Glouchester Rly Co.
- Moore Vs. Bresler Ltd. (1944 All E.R.515)
- Vadivelu Arsuthir Vs. R. (1943 MCJ 445).
Vicarious liability in criminal law
Ref. case Law:
Ruvula Heri Prasada Rao Vs. The state (A.I.R. 1951 SC 204)
R. Vs. Prayagsingh.

242 LAW OF CRIMES
 CHAPTER IV
STAGES OF CRIME
i) Intention
ii) Preparation
iii) Attempt
iv) Commission of crime.
INTENTION
It is the fist stage in the commission of the offence and known as mental stage. Indian Criminal
law also mere intention to commit an offence is not punishable. However, law in certain acts does
take notice of an intention to commit an offence.
i.e. waging war Sec. 121 - 123 IPC Sedition (Sec. 125 - A IPC).
PREPARATION
Preparation is the second stage in the Commission of a crime. Under the Indian penal code,
mere preparation to commit the following offences is punishable.
Ref:
- Sec. 122. 126. 399. 233. to 235 255 and 257 I.P.C.
- 242. 243. 266 and 474 I.P.C
ATTEMPT
The term attempt, however, means the direct movement towards the commission of Crime
after necessary preparations have been made next stage is commission of offence.
Preliminary crimes:
Abetment: Sec 107, 108, 108A and 109)
Constituents of abetment
i) by instigating
ii) by engaging in a conspiracy
iii) by intentionally aiding.
Ref.Case Law: Saju Vs. State of Kerala (2001)
Abetors classified in two categories.
i) Accessory before the Act instigation, Preparation, Attempt; Conspiracy...
ii) Accessory after the act.
Accessor after the Act.
The IPC does not recognise accessories after the fact except that it makes a substantive
offence of it in few cases
(Ref Sec. 130, 136, 201, 212, 216 and 216 A IPC)
Criminal conspiracy
Chapter V-A of the IPC has been added by criminal law (Amendment) Act 1913.
Essential ingredients:
1. in the intention of two or more but in the agreement of two or more
2. to do an unlawful act
3. to do a lawful act by unlawful means.
Ref. Case Law
i. Fakkhruddin Vs. State of M.P. (AIR 1967 Sc)
ii. Lennart schusslar and antoher Vs. Director of Enforcement (AIR 1970 SC)
iii. Barindra Kumar Ghouse Vs. Emperor (Alipu conspiracy case)
iv. P.N. Talukdr Vs. S.R.Sarkar A.I.R. 1962 SC 876.
243 LAW OF CRIMES
 CHAPTER V
PUNISHMENT
OBJECT OF THE PUNISHMENT
The object of punishment is the prevention of crime, and every punishment is intended to have
a double effect, viz., to prevent the person who has committed a crime from repeating the act or
omission and to prevent other members of the society from committing similar crimes.
THEORIES OF PUNISHMENT
1. Retributive theory
This theory is based on the principle of an eye for an eye and a tooth for a tooth. It is based on
primitive nature of vengeance against the wrong doer. The Supreme Court has recently laid down
that an eye for an eye approach is neither proper nor desirable. Mandate of Section 354 (3) Cr.P.C.
does not approve of it.
2. Deterrent theory
According to this theory the punishment is awarded to deter people from committing the
emotion of fear plays a vital role in mans life.
3. Preventive theory
This has also been called Theory of disablement as it aims at preventing the crime by disabling
the criminal. In order to prevent the repetition of the crime the offenders are punished with death,
imprisonment for life or transportation of life.
4. Reformative theory
The object of punishment according to this theory should be to reform criminals. The crime is a
mental disease which is caused by different anti-social elements. Therefore, there should be mental
cure of criminals instead of awarding them severe punishment.
Ref.Case Law: Ediga Annama Vs. State of Andhra Pradesh (SC).
PUNISHMENT UNDER THE INDIAN PENAL CODE
The scheme of the punishment is laid down from Sections 53 to 75 of the Indian Penal Code
out of which five sections (Sections 56, 58, 59, 61 and 62) have already been repealed. Different
types of punishments, rules for their assessment and enhancement in subsequent offences, from
the subject- matter of this topic.
According to Section 53 of the Code the offenders are liable to the following punishments:
1) Death;
2) Imprisonment for life;
3) Imprisonment which may be rigorous, simple or solitary;
4) Forfeiture of property;
5) Fine.
The Code as originally enacted, contained one more type of punishment known as Transportation
for life. This punishment has now been substituted by imprisonment for life. (Section 53 - A).
The following are the cases where death sentence may be awarded at the discretion of the
Court;
a) Waging war against the Government (Section 121)
b) Abetment of mutiny.
c) Fabricating or giving false evidence as a result of which an innocent person
suffers death.
d) Murder.
e) To abet an insane, minor or intoxicated to commit suicide (Section 305).
f) Dacoity with murder.

244 LAW OF CRIMES
 The maximum term of imprisonment that can be awarded should not exceed lifetime of the
accused and be not less than 24 hours.
The maximum term of imprisonment that can be awarded should not exceed lifeterm of the
accused and be not less than 24 hours.
Solitary confinement according to Section 73 should be awarded in the following manner:
If term of imprisonment is Solitary confinement should
not exceed
a) 6 months 1 month
b) 1 year 2 months
c) more than 1 year 3 months
Forfeiture of property under the Code was provided for in Sections 61 and 62 which were
repealed in 1921. However, under the following Sections the forfeiture of property can be ordered:
i) property used or intended to be used in committing depredations on the territories
of a friendly country.
ii) Property received with the knowledge that the same has been taken by waging
war or committing depredations under Sections 125 and 126 I.P.C. respectively.
iii) Property purchased by public servant who is legally prohibited to purchased or bid
for such property.
Fine: where no specific amount to be imposed as fine is mentioned, it shall be discretionary but
not excessive. If punishment awarded for offence is fine only or imprisonment with fine, court should
direct that in default of payment of the fine, the accused shall be imprisoned for a certain term which
should be in addition to the imprisonment already awarded (Sections 63 and 64). Sections 65 to 70
deal with rule of imprisonment in default of fine. If offence is punishable with fine and imprisonment
the term of imprisonment in default of payment of fine should not exceed one fourth of the maximum
term fixed for the offence. If maximum term fixed for an offence is 2 years, in default of payment of
fine should not exceed one-fourth of the maximum term fixed for the offence. If maximum term fixed
for an offence is 2 years, in default of payment of fine, imprisonment awarded should not be for a term
exceeding 6 months. As soon as payment of fine is made the prisoner shall be set free. If offence
is punishable with fine only, the imprisonment in default of payment of fine shall be simple in the
following proportion:
Amount of fine Term of Imprisonment
Upto Rs.50 Not more than 2 months
Upto Rs.100 Not more than 4 months
Exceeding Rs.100 Not more than 6 months
Fine imposed by the Court can be realized within 6 years or during imprisonment when the
term of the same is longer than 6 years. The death of a prisoner does not discharge him from liability
and his property will be liable for his debt. It has been laid down by the Supreme Court that limitation
of 6 years prescribed under Section 70 does not apply to fine imposed for contempt of High Court.
The imprisonment in default is not a substitute of fine but it is punishment for default.
Death Sentence:
The Validity of death sentence as being violative of Articles 14, 19 and 21 of the constitution was
challenged for the first time in Jagmohan Singh V. State (1973). But the Court upheld the constitutional
validity of Section 302 of the Code. In the meantime the new provisions of the Cr.P.C., 1973 came
into being and as per Section 354(3) Judges will have to state special reasons in the judgement for
inflicting death penalty. The Court cannot remain silent spectators of what is happening around the
society. So the Supreme Court of India came forward with a new ruling about the awarding of death
penalty rarest of the rare case Policy in Bachan Singh V. State of Punjab (1980).

245 LAW OF CRIMES
 The following case examples considered as the rarest of rare cases by the Supreme Court.
In Kehar Singh V. Delhi Admn. (Indira Gandhi murder case), the accused killed Indra Gandhi while
standing on guard duty by firing from carbine, releasing about 25 bullets. Convicting the accused
the Court said that it was the most foul and senseless assassination as persons duty bound to
protect the life of the Prime Minister have themselves become the assassins. Even the preparation
for execution of this egregious crime do deserve the dread sentence of the law. It is one of the rarest
cases where extreme penalty of death was called for.
The accused raped and brutally killed his niece, a 7 year-old girl, it was held that undoubtedly
it falls in the category of rarest of rare cases.
Laxman Naik, Vs. State, 1994
CHAPTER VI
SPECIFIC OFFENCES
OFFENCES AGAINST THE STATE
Sedition Sec. 124 A
Ref. Case Law: Queen, Emperor Vs. Bala Gangadhar Tilak (22 Bom 112)
Crime against the State
Sedition is a Crime against the State. Bringing or attempting to bring into hunted or contempt
or exciting or attempting to such act or attempt may be done by words spoken or written by signs
(Ganesh D.Savarkar case) by visible representation, the Act must be international excite disaffection
towards the Govt. of India.
Ref Case: Kedar Nath Vs. State of Bihar (AIR 1963 SC)
OFFENCES AGAINST PUBLIC PEACE (or) OFFENCES AGAINST PUBLIC
TRANQUILLITY:
Unlawful assembly (Sec 141 IPC)
Unlawful assembly together with its cognate offences section 141 to 145, 149 to 151 157 and
158 of the IPC.
Ref Case :
Dilip Singh Vs. State of Punjab (AIR 1953 SCJ 532)
State vs. Nadhu Pande (1969 (2) SCC 207)
Musakhan Vs. State (1977 SC)
Sukha Vs. State (AIR 1965 SC 513)
The Combination of five or more persons who are cited in their purpose of committing a crime
(illegal object) that is called unlawful assembly.
Rioting (Sec 146 IPC)
When a particular State of an unlawful assembly is accompanied by use of force or violence it
is a riot.
Affray (Sec. 159 and 160)
Affray generally called as offence against public tranquility.
When two or more persons fight in a public place and disturb the public peace, they are said to
commit an offence of affray. Sec. 160 Punishment for Affray.
Offences against public administration- Bribery
Section 161 - Speaks about the public servant taking gratification other then legal remuneration
in respect of an official Act.

246 LAW OF CRIMES
 The Provisions contained in IPC were felt to be deficient to control corruption, the parliament
in 1947 enacted the prevention of Corruption Act. The PCA 1947 was amended. The PCA, 1988
envisages widening the scope of the definition of the public servant and omitting the provisions of
Sec. 161 to 165 A IPC.
Ref. case :
Dalpat Singh Vs. State of Rajasthan (AIR 1969 SC)
Man Sankar Prabha Sankar Vs. State of Gujarat (AIR 1970- Guj 97)
Tirlock chand jain Vs. State of Delhi (AIR 1977 SC 665)
Rs. Nayak Vs. A.R.Antulay
Personating a public servant (Sec 170 IPC )
Wearing garb (or) conveying taken used by public servant with fraudulent intent (Sec 171)
personating a public servant and doing or attempting to do an act in such assumed character under
color of office is punishable.
Offences against Administration of Justice giving and fabricating false evidence
This part of false evidence and offences against public justice composing 39 Sections i.e.
Section 191 to 229 can be roughly divided into the following eleven groups.
Ingredients ( Sec 191 IPC)
1) A person must be legally bound (a) by an oath or by an express provision of law
to state the truth (or) (b) to make a declaration upon a subject
2) He must make a false statement
3) He must take a false statement
4) He must (a) know or believe it to be false (or) (b) must not believe it to be true.
Fabricating false evidence (Sec 192)
The area covered by the section is as wide as to cover any offence committed with an intent to
injury another by creating a false background in any judicial proceeding.
Ref Case Law: Santakh Singh Vs. Izhar Hussain (1973 SCC Cril J 828)
CHAPTER VII
OFFENCES AGAINST PERSONS
Culpable Homicide and murder (Sec 299 and 300 IPC)
Sections 299 and 300 of the Indian Penal Code provide for the offence of culpable Homicide
and murder respectively. The distinction between culpable homicide and Murder had been clearly
explained by Melvill J. in R. Vs. Govinda (1876 I Bom 344).
Fact: The accused kicked his wife aged 12, and also stuck her several times with his fist on her
back; as a result of which she fell down. There upon he put his knee on her chest and gave blows with
his fist on her face, which resulted in extravagance of blood in the brain as a result of which she died.
Melvill. J. held that it was culpable Homicide not amounting to murder under Sec. 299 IPC.
Melvill J. brought out the distinction between culpable Homicide and murder by analyzing
section 299 and 300 as follows:
Section 299 Section 300
Whoever causes death by Doing an (Except in the cases herein after
act. Culpable. Excepted)
a) with the intention Homicide is murder, if the act by which
of causing death death is caused is done.
1) with the intention of causing death.
(or)

247 LAW OF CRIMES
 b) with the intention of causing 2) If it is done with the intention of causing
such bodily injury as is likely such bodily injury as the offender knows
to cause death. be Likely to cause the death of the person to
whom the harm is caused.
(or)
3) If it is done with the intention of causing
bodily injury to any person and the bodily
injury intended to be inflicted is sufficient in
the ordinary course of nature to cause death.
c) with the knowledge that he is 4)If the person committing the act knows
likely by such act to cause death that it is so-imminently dangerous that it
must in all probability cause death or such
bodily injury as is likely to cause death, and
commits such an act without any excuse for
incurring the risk of causing death or such
injury as aforesaid.
A comparison of clause (b) and 3 shows that the offence is culpable Homicide, the bodily
injury intended to be inflicted is likely to cause death, it is murder, if such is sufficient in the ordinary
course of nature to cause death. The distinction is fine but appreciably. It is a question of degree of
probability. Practically, it will generally resolve itself into a consideration of the nature of the weapon
used. A blow from a fist or a stick on a vital part may be likely to cause death, a wound from a sword
in a vital part is sufficient in the ordinary course of nature to cause death.
In interpreting the third clause of Sec. 300 it has been expressed that the proper view to take is
that the bodily injury suffered by the deceased and found sufficient to cause death should be actually
intended by the Supreme Court in Virsa Singh Vs. The State. The accused after a dispute with the
deceased thrust several times with a spear in the abdomen of the deceased and caused gaping
wounds. The accused was charged with the offence of murder under section 300 thirdly. The medical
evidence proved that the injuries were sufficient to cause death in the ordinary course of nature. The
session judge convicted him for murder and ordered a life sentence.
On appeal to the Supreme Court the Court observed the prosecution must prove the following
facts before it can bring a case under Sec. 300, thirdly. Firstly, it must establish quite objectively that
a bodily injury is present; secondly, the nature of the injury must be proved. Thirdly, it must be proved
that there was an intention to inflict that particular bodily injury that is to say, that it was not accidental
or unintentional, or the some other kind of injury was intended. Fourthly, it must be proved that the
injury of the type just described made up of the three elements set out above is sufficient to cause
the death in the ordinary course of nature. This part of the enquiry is purely objective and inferential
and has nothing to do with the intention of the offender.
Exception 1 of Section 300
Section 300 provides for grave and sudden provocation as a mitigating factor under Exception-1.
When an accused causes death under the influence of a grave and sudden provocation the law views
him with leniency as he is deprived of the power of self - Control and he is liable only for culpable
Homicide not amounting to murder. The explanation to exception I states that suddenness or gravity
of the provocation is a question of fact.
In Nanavathi Vs. State of Maharashtra (A.C. 1962 SC.695) the wife of the accused confessed
to him that she had illicit intimacy with the deceased who was not present there. After this the
accused drove his wife and children to a cinema, left them there went to his ship. Took a revolver on
a false pretext, loaded it with six rounds, did some official business there was drove his car to the
office of the deceased and then to his flat went straight to the bedroom of the deceased and shot
him dead. Three hours has elapsed between the time when he left his house and the murder took
place. The Supreme Court held that the facts did not attract the provisions of Exception-1, as there
was sufficient clearly showed that the murder was a deliberate and calculated one. In other words
the evidence showed that the accused regained his self-control and killed the deceased deliberately.

248 LAW OF CRIMES
 Ref. Case Law: Murugesan Vs. State of T.N (1993) Cri L.J.2565); Sompal Vs. the State (1977
Cri. L.J.2) Exception 2 (sec 300)
Subba Rao. J. observed in Nanavathi Case The Indian Law, relevant to the present enquiry
may be stated thus:
(1) The test of grave and sudden provocation is whether a reasonable man belonging to the
same class society as the accused placed in the situation in which the accused was placed
would be so provoked as to lose self-control.
2) In India words and gestures may also under certain circumstances, cause grave and
sudden provocation to an accused so as to bring his act within the first Exception to S.300 of
the Indian Penal Code.
(3) The mental back ground created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden provocation
for committing the offence.
II. Exception :
This exception reduces murder in all Cases in which death has been caused by an excessive
use of the right of Self-defence provided the act has been done in good faith without pre meditation
and without any intention of doing more harm than was necessary for the purpose of such defence.
Munney Khan Vs. State of Madhya Pradesh (A.I.R.1971 Sec. 1491): Yogendra morarji Vs. State
of Rajasthan (A.I.R. 1980 SC)
III. Exception:
Bonafide Act of Public servant in excess of powers given to him.
State of West Bengal us. S.M.Singh (AIR 1981 Sc 1917)
IV. Exception:
Death caused in sudden fight without premeditation in the heat of passion.
1. Budhwa Vs State of Madya Pradesh (AIR 1954 SC)
2. Transferred Malice in Murder case
3. Public prosecutor Vs. Suryanaryana Moorthy (AIR 1912)
4. Burden of proof in murder case
5. Wollimington Vs. D.P.P. 1935 AC 462)
6. Ramadas Vs. State of Maharastra (1997 2 SCC 124)
7. Provocation on murder case:
8. R Vs. Duffy (1949) ALL ER 932
9. Homes Vs. D.P.P. (1946 - AC 588)
10. D.P.P. Vs. complin (1978) 2 All E.R
11. Sec 304 A IPC
12. Tukaram Sitaram Vs. State (1971 Crl. L.J. 767)
V. Exception:
Culpable Homicide is not murder where death is caused to the person above the age of 18
years suffers death or takes the risk of death with his own consent.
Sec 302 IPC punishment for murder (Ref case Kaliappa Gaudans case (1938 / 57 mad 158)
Sec 303 IPC- punishment for live convict
Ref case Mithu Vs. State of Punjab 1983 SC 473
Sec. 304 IPC Punishment for culpable homicide not amounting to Murder
Ref Case R Vs. Sengoda Goundar 1916 AIR); R Vs. Palani Goundan (1919 Mad 547)
Sec 307 IPC Attempt to murder
Sec 308 IPC Attempt to culpable homicide

249 LAW OF CRIMES
 Sec 306 IPC abetment to commit suicide
Sec 309 IPC Attempt to commit suicide
Ref case law relating to suicide cases
1. Maruti Shriputi Dubey Vs. State of Maharastra (1987 Cr.L.J.743)
2. Chenna Jagadeeswar Vs. State of A.P 1988 Cr.L.J. 549)
3. P.Rathinam Vs. Union of India (1994)
4. Gain Kaur Vs. State of Punjab
Constitutional validity of the Death penalty
1. Jagmohan singh Vs. State of UP (A.I.R. 1973 SC 947)
2. Ranjit Sing Vs. Union territory chandigarh
Sec 310 Thugs special Provisions for Dacoit gang (Ref. Criminal Tribes Act.)
Sec 312 Miscarriage Ref medical termination Act 1971
Hurt and grievous hurt (Sec 319 and 320 IPC)
Hurt: Whoever causes bodily pain, disease or infirmity to any person is said to cause
hurt.
Grievous hurt: The following kinds of hurt only are designated as grievous
i) Emasculation - To emasculate means to deprive of virile procreative power.
ii) Permanent privation of the sight of either eye.
iii) Permanent privation of the hearing of either ear.
iv) Privation of any member or joint.
v) Destruction or permanent impairing of the powers of any member or joint.
vi) Permanent disfiguration of the head or face.
vii) Fracture (or) dislocation of a bone or tooth.
viii) Any hurt which endangers life or which causes the sufferer to be, during the space of
twenty days, in severe bodily pain, or unable to follow his ordinary pursuits (Sec.320)
Case law Ref: Naib Singh Vs. State of Punjab (1986 Cri.L.J.2061 SC)
Types of Kidnapping
1. From India (sec.360)
2. From lawful guardianship (361)
Ingredients of Kidnapping
1. Takes or entices a minor or any person of unsound mind.
2. Person taken or enticed away should be below 16 years of age if male, 18 years of
age if female or a person of unsound mind.
3. The taking or enticing should be from the keeping of the lawful guardian.
4. Taking or enticing should be without the consent of such guardian.
Ref.Case Law: R.Vs. Prince (L.R.2 CCR); Varadarajan Vs. State of Madras
Abduction (Sec. 362 IPC)
Wherever by force compels, or by any deceitful means induces, any person to go from any
place, is said to abduct that person

250 LAW OF CRIMES
RAPE- (SEC 375)
Definition of the Rape
A man can commit Rape
1) against her will
2) Without her consent
3) with her consent obtained by putting her in fear of death or of hurt.
4) with her consent when the man knows that he is not her husband and that consent is
given under a false belief.
5) with her consent when she was insane (or) intoxicated stage (case law cablins case)
6) with or without her consent when she is under 16 years of age.
(Ref. case law State of Karnataka Vs. Krishnappa (2000))
Exception
Sexual intercourse by husband his own wife if she is above 15 years of age is not rape if she
is under 15 years of age it is rape.
Explanation
Penetration is sufficient to constitute the offence of rape.
-Case law Allens case (1839)
Husband can be guilty of abetment
-Lord Audbeys case
Mens rea in rape case D.P.P.Vs. Morgan
Abetment by inducement R Vs. Cogan (1975)
The Criminal law (Amendment Act 1983 introduced new Sections in IPC Ref. Thukkaram Vs.
State of Maharastra (1980)
Sec 376 A Marital rape (Ref case Ram kumar Vs. State of H.P. 1946)
Sec 376 B - Rape by public servant
Sec 376 C - Rape by Jail Authorities.
Sec 376 D Rape by staff of the hospital.
Sec. 376 (2) (2) (i) to (iii) custodial rape
Sec. 376 (2) (g) - Gang rape
Ref Case - Arun Kumar Vs. State of U.P.; Balwant Singh case (1987)
376 (2) (8) - Rape on minor girl (under age of 12 )
Ref Case - State of A.P. Vs. Bodem Sundara Ra (AIR 1996)
Attempt to commit rape:
Mohan lal Vs. Jammu Kasmir (1998 Cri L.J. 667)
Un natural offence (Sec 377 IPC)
Un natural offence is voluntarily having carnal intercourse against the order of nature with any
man, woman, (or) animal.
Ref case law - Grija Devi Vs. State (2000);
3. Bestiality - Khandu Vs. Emperor (A.I.R.1934)
4. Sodomy - Chitranjit singh case.
Outraging the modesty of a woman (Sec 354 IPC)
Outraging the modesty of a woman is an offence provided there is use of assault or criminal
force with the intention for the purpose or knowing it likely that he will thereby outrage her modesty.

251 LAW OF CRIMES
The offence under this Section different from rape and is of seriousness than the one under section
376.
Ref Case Law - Major Singh Case
K.P.S. Gill Vs. Rupan Deol Bajaj (1995)
Criminal force and Assault: Sec. 350 and 351 IPC)
Ref: Durga Charan Naik Vs. State of orissa (AIR 1966 SC 1775)
Offence against human Freedom: (Wrongful restrain and wrongful Confinement )
Wrongful Restraint:
Ingredients:
i) Voluntarily obstructs any person.
ii) So as to prevent him from proceeding in any direction in which that person has a right
to proceed.
Wrongful Confinement:
Ingredients:
i) Wrongful restraint of a person.
ii) In a manner as to prevent him from proceeding beyond certain circumscribing.
Ref case : Nilabati Behera Vs. State of orissa (AIR 1993 SC 1960)
Rudul Shah Vs. State of Bihar (AIR 1983 SC 1086)

CHAPTER IX
OFFENCES AGAINST PROPERTY
THEFT (SEC 378 IPC)
Ingredients:
1. Movable property
2. It should be in the possession of another person.
3. The accused should move such property in order to take it out of his possession.
4. He should do so without his consent.
5. Intended to take the property dishonestly.
Ref Case law- K.N.Mehra Vs. State of Rajasthan A.I.R. (1975 SC 369)
EXTORTION (Sec. 383 IPC)
Extortion is a form of theft in aggravated stage.
Ingredients
1. The accused should threaten any person with any injury to that person or an
other.
2. The person put in fear should be induced.
a. to deliver any property
b. to deliver any valuable security
c. or anything which may be converted into valuable security
d. accused should have acted dishonest intention.
ROBBERY (Sec 390 IPC)
Theft to become Robbery
1) The accused should cause or attempt to cause death or hurt or wrongful restraint or
fear of instant death instant hurt or instant wrongful restraint.
2) He should use such force or employ violence for one of three purposes.

252 LAW OF CRIMES
 a) In order to commit theft.
b) In the course of committing theft.
c) In carrying away or attempting to carry away stolen property.
3) The accused should cause such hurt violently
Ref case Laws: Kushomathton Vs. State of Bihar (AIR 1980 SC)
Smith Vs. Desmound (1965) All E.R.976
DACOITY - (Sec 391 IPC)
1) When five or more persons can jointly commit or attempt to commit robbery.
2) With common intention.
3) Person present and aiding such Commission or attempt liable for dacoity.
Attempt is equivalent with commit in Dacoity attempt to commit dacoity is Dacoity itself.
Ref Case Law: Shyam Behari Vs. State of UP AIR 1957
Sec 403 IPC Misappropriation Case law: R Vs. Sita
Section 405 IPC Criminal Breach of Trust
Ref Case law- Pratiba Rani Vs. Suraj Kumar AIR 1986 C 628) R.K.Dalmia Vs. Delhi
Administration.
Sec. 410 IPC Receiving Stole Property.
Ref case Sheonath Vs. State of UP (1970 A.I.R)
Sec. 415 IPC cheating
Ingredients
1. The accused should decive another person .
2. The person decieived should be indused to deliver any property to any person or
consent to be detention of property by any person.
3. The accused should have acted dishonestly and fraudulently.
Dishonest obtaining of Property by deception
I) the accused should deceive another person
II) The person deceived should be induced to do or omit to do anything which act or
omission either causes or likely to cause injury to that person in body, mind
reputation or property.
III) The accused should have acted intentionally.
Aggravated forms of cheating.
Cheating by personation Sec. 419 IPC
Ref Case Laws : R Vs. Appusamy (1886) 12 Mad (3)
4. Krishna moorthy Vs. State of A.P (1965)
5. Sushil Kumar Datta Vs. state 1985 Cri. L.J. 1948
6. Sec. 420 IPC cheating and thereby dishonestly inducing delivery of property.
MISCHEIF (Sec 425 IPC)
1) Wrongful loss or damage to the public (or) any person be intended or be likely.
2) Any property should either be destroyed or any such change should occure in
any property, or in the situation thereof destroys or diminishes its value or utility or affects it
injuriously.
Case Law reference Sir Ram Vs. Emperor.
Criminal Trespass (Sec. 441 IPC)
As regards criminal trespass the entry upon others land must be made with a guilty intent
mentioned in section 441.
House breaking is an offence u/sec 445 IPC

253 LAW OF CRIMES
 CHAPTER X
OFFENCES RELATING TO MARRIAGE Sec. 493 to 498 IPC
- Mock marriage sec 493 and 496
- Rambilas Singh Vs. State of Bihar (AIR 1989 SC 1593)
- Bigamy - Section 494, 495 and 496 Ms. Tolsons case
- Kawall Ram Vs. Himachal Pradesh (AIR 1966 SC 614.
- Sarla Mudgal Vs. Union of India AIR 1995 SC
- Lily Thomas Vs. Union of India AIR 2000
Adultery - Section 497
A married man having sexual intercourse with (i) an unmarried woman (ii) or with a widow or
a married women whose husband consents to it or iv) with a divorced woman, commits no offence
under this section.
Ref Case: Yusuf Abdul Aziz Vs. State of Bombay
Justice Malimatti committee and Madavamenon committee reports.
Nanavathi Vs. State of Maharastra,.
Sowmithri Vishneu Vs. Union of India (AIR 1985 SC 1618)
Elopment (Sec 498)
The Section Punishes any person who
a) takes or entires away or conceals or detains the wife of another man from that man
or from any person having the care of her on behalf of that man.
b) with knowledge that she is or having reason to believe that she is a wife of another
man, and c) with intext that she may have sexual intercourse larith any person.
1. Alamgir Vs. the State of Bihar 1959 SCJ 457.
2. Ramanarayana Karup (1936) 39 Bom LR 61
Dowry Death (304 B)
This Section was added by Dowry Prohibition (Amendment) Act 1983. The object of this section
to is prevent increasing number of dowry death in India and to provide stringent punishment for the
same. Under this Section Dowry death is punishable and it should occure within 7 years of marriage.
Lichhama Devi Vs. State of Rajasthan (1988 - SCC 456)
Delhi Aministration Vs. laxman Kumar (1985-4-SCC 476)
Cruelty 498-A
This section was inserted by the Criminal law (Amendment) Act 1983 as observed by the
Supreme Court of India in B.S.Joshi Vs. State of Haryana (2003) the object of introducing chapter
XX-A in the IPC was to prevent torture to a woman by her husband or by relatives of her husband.
Ref Case:
Ramesh Kumar Vs. State of Punjab (1986) Cri. L.J.2087
Ashok Kumar Vs. State of Haryana 1986 Cri.L.J. 1963
Constitutional Validity Challenged
Inder Raj Malik and others. Vs. Mrs. Sunitha Malik 1986 Cri. L.J. 1510.
OFFENCES RELATING TO RELIGION
Sec. 295 IPC
Destroying, damaging or defiling any place of worship or object with intent to insult.
Ref Case: S.Veerbhadran Chettiar Vs. E.V.Ramaswami Naicker. AIR 1958 SC 1032.
Sec 295 A
Deliberate and malicious acts intended to outrage religious feelings of any class by insulting
its religion or religious feelings:

254 LAW OF CRIMES
 Ref Case:
Acharya Ramesh Vs. Naval Thakur 1990 Cri L.J. 2511.
Ram ji lal Modi Vs. State of U.P. A.I.R. 1957 SC 620.
Sant Das Maheswari Vs. Babu Ram A.I.R. 1969 All 436.
Disturbing religious assembly (296)
- Trespassing on burial places (297)
- Uttering words etc., with deliberate intentent toward religious feelings (298) also
offences under this head.
Defemation (Sec. 499 to 502 IPC)
Ref Case : Merivale Vs. Carson,
Natigam P.Ramaswamy Vs. M.Karunanithi
Criminal intimation (Sec. 503 IPC)
Ref Case: Ramesh Chandra Arora Vs. The State (AIR 1960 Sec 154.
Insult the modesty of women IPC Sec. 509
Ref: case: Mohammed Kassim Chisty case.
511 IPC Attempt to commit offence.
Ref case: State of Maharastra Vs. Mohammed Yakub (A.I.R. 1980 SC 1111)
OBSCENITY
Section 292, 293 and 294 speak of obscenity. The sections prohibit and punish sale of obscene
books or obscene objects, doing of any obscene act or reciting or uttering any obscene songs,
ballads or words.
Ref. case law: R vs. Hicklin (1868) - (Hicklin test)

AMENDMENTS TO THE INDIAN PENAL CODE(45 OF 1860):

1. After section 29, the following section shall be inserted, namely:
Electronic record-29A. The words electronic record shall have the meaning assigned to them
in clause (t) of sub-section (1) of section 2 of the Information Technology Act, 2000..
2. In section 167, for the words such public servant, charged with the preparation or translation
of any document, frames or translates that document, the words such public servant, charged
with the preparation or translation of any document or electronic record, frames, prepares or
translates that document or electronic record shall be substituted.
3. In section 172, for the words produce a document in a Court of Justice, the words produce a
document or an electronic record in a Court of Justice shall be substituted.
4. In section 173, for the words to produce a document in a Court of Justice, the words to
produce a document or electronic record in a Court of Justice shall be substituted.
5. In section 175, for the word document at both the places where it occurs, the words document
or electronic record shall be substituted.
6. In section 192, for the words makes any false entry in any book or record, or makes any
document containing a false statement, the words makes any false entry in any book or
record, or electronic record or makes any document or electronic record containing a false
statement shall be substituted.
7. In section 204, for the word document at both the places where it occurs, the words document
or electronic record shall be substituted.
8. In section 463, for the words Whoever makes any false documents or part of a document with
intent to cause damage or injury, the words Whoever makes any false documents or false
electronic record or part of a document or electronic record, with intent to cause damage or
injury shall be substituted.

255 LAW OF CRIMES
9. In section 464,
Explanation 3.For the purposes of this section, the expression affixing digital signature shall
have the meaning assigned to it in clause (d) of subsection (1) of section 2 of the Information
Technology Act, 2000..
10. In section 466,
(a) for the words Whoever forges a document, the words Whoever forges a document or an
electronic record shall be substituted;
(b) the following Explanation shall be inserted at the end, namely: Explanation.For the
purposes of this section, register includes any list, data or record of any entries maintained in
the electronic form as defined in clause (r) of sub-section (1) of section 2 of the Information
Technology Act, 2000..
11. In section 468, for the words document forged, the words document or electronic record
forged shall be substituted.
12. In section 469, for the words intending that the document forged, the words intending that the
document or electronic record forged shall be substituted.
13. In section 470, for the word document in both the places where it occurs, the words document
or electronic record shall be substituted. In section 471, for the word document wherever it
occurs, the words document or electronic record shall be substituted.
14. In section 474, for the portion beginning with the words Whoever has in his possession any
document and ending with the words if the document is one of the description mentioned in
section 466 of this Code, the following shall be substituted, namely:
Whoever has in his possession any document or electronic record, knowing the same to be
forged and intending that the same shall fraudulently or dishonestly be used as a genuine,
shall, if the document or electronic record is one of the description mentioned in section 466 of
this Code..
15. In section 476, for the words any document, the words any document or electronic record
shall be substituted.
16. In section 477A, for the words book, paper, writing at both the places where they occur, the
words book, electronic record, paper, writing shall be substituted.
17. Section 166A- After section 166 of the Indian Penal Code, the following section shall be
inserted, namely:-
Whoever, being a public servant, -
(a) knowingly disobeys any direction of the law which prohibits him from requiring the
attendance at any place of any person for the purpose of investigation into an offence or other
matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the law
regulating the manner in which he shall conduct such investigation, shall be punished with
imprisonment for a term which may extend to one year or with fine or with both.
18. In section 509 of the Penal code, for the words shall be punished with simple imprisonment for
a term which may extend to one year, or with fine, or with both, the words shall be punished
with simple imprisonment for a term which may extend to seven years and shall also be liable
to fine which may not be less than Rs.1000 shall be substituted.

256 LAW OF CRIMES