Law of Torts:
Q: Define ‘Res Ipsa Loquitor”?
A: In an action for negligence, the plaintiff has to prove the breach of duty to take care on the part of the defendant. But, there are certain circumstances, in which the plaintiff will succeed without proving negligence on the part of the defendant. This exception is enshrined in the Latin maxim “Res Ipsa Loquitor”. It means the thing speaks for itself. According to Lord Shaw, sometimes a thing tells its own story. According to this maxim, “the defendant may be presumed to be negligent without which the accident would not have happened.
Relevant case laws:
I) Byrne v. Boadle (1863) 2 H & C 722 (Imp for part c):
Byrne v. Boadle is a landmark case in the field of tort law that deals with the issue of negligence. The case was heard in the Court of Exchequer in England in 1863.
The facts of the case were that the plaintiff, Byrne, was walking on the street when he was struck by a barrel of flour that fell from the defendant’s warehouse. The defendant, Boadle, was the owner of the warehouse, and the barrel had been stored on the upper floor. The plaintiff sued the defendant, alleging that he was negligent in the way he had stored the barrel, causing it to fall and injure the plaintiff.
The defendant argued that he had taken reasonable care in the way he had stored the barrel and that the accident must have been caused by the negligence of someone else, such as a servant or contractor.
The court, however, held that the burden of proof was on the defendant to show that he had taken all reasonable care and precautions to prevent the accident. The court noted that the barrel was in the defendant’s control and that the defendant was the only person who could give evidence as to how it had been stored. Since the defendant had not provided any evidence to show that he had taken reasonable care, the court found him to be negligent and held him liable for the plaintiff’s injuries.
This case established an important principle in the law of negligence, known as res ipsa loquitur, which means “the thing speaks for itself.” This principle applies in cases where an accident or injury has occurred, and the circumstances suggest that it was caused by someone’s negligence. In such cases, the burden of proof shifts to the defendant to show that they were not negligent.
In India, the above rule has been applied in several cases. In State of Punjab vs. Modern Cultivators [AIR 1965 Sec 17], a suit was brought by a firm against the state of Punjab to recover damages for loss suffered by flooding of its lands as a result of a breach in a canal belonging to the state of Punjab, as Sarkar J stated.
The rule of Res Ipsa Loquitor applies to this case. The canal was admittedly under the defendant’s management, and canal banks were not breached. If those in management take proper care, in such cases the rule would apply, and the breach itself would be prima facie proof of the negligence. No doubt the defendant can show the breach was due to an act of God, the act of a third party, or any other things that would show that it had not been negligent, but it did not do so. No reason was advanced why the rule should not apply. Therefore, I think that the first contention of the defendant, that there is no evidence of negligence, must be rejected.
II) Municipal Corporation of Delhi vs. Subhagawanti [AIR 1966 SC 1760]:
The Municipal Corporation of Delhi v. Subhagwanti Case of 1966 was a landmark judgement delivered by the Supreme Court of India. The case dealt with the issue of negligence on the part of the Municipal Corporation of Delhi in maintaining a clock tower, which ultimately led to the death of a passerby.
The incident took place in 1959 when a part of the clock tower situated in the Chandni Chowk area of Delhi collapsed and fell on a woman named Subhagwanti, causing her death. Subhagwanti’s husband filed a case against the Municipal Corporation of Delhi, alleging negligence on their part in maintaining the clock tower.
The case went through several lower courts before reaching the Supreme Court of India. The main question before the Supreme Court was whether the Municipal Corporation of Delhi was liable for Subhagwanti’s death due to their negligence.
In its judgement, the Supreme Court held that the Municipal Corporation of Delhi was indeed liable for the death of Subhagwanti due to its negligence. The Court observed that it was the duty of the Municipal Corporation to maintain public buildings and structures, and their failure to do so had resulted in the loss of a human life. The Court also held that the corporation was not entitled to claim immunity from liability under the doctrine of sovereign immunity.
The judgement in the clock tower case was a significant milestone in the evolution of Indian tort law, as it firmly established the principle of municipal liability in cases of negligence. It also emphasised the importance of ensuring public safety by holding public authorities accountable for their actions or inactions.
Law of Crimes – I
Q: Explain offences against Marriage and Property?
A: OFFENCES AGAINST PROPERTY [Sections 378-462]:-
Sections 378 to 462 of Indian Penal Code(IPC) lay down the provisions relating to the offences against the property. The following offences namely…
1. Theft (Sec 378-382)
2. Extortion(Sec 383-389)
3. Robbery (Sec 390,392-394 and 401)
4. Dacoity (Sec391, 395-400,402)
5. Criminal Misappropriation or Dishonest Misappropriation of Property (Sec 403 and 404)
6. Criminal breach of trust (Sec 405-409)
7. Receiving of stolen property (Sec 410-414)
8. Cheating (Sec415-420)
9. Fraudulent Deeds (Sec 421-440)
10. Mischief(Sec 425-440)
11. Criminal Trespass (Sec 441-462)
1. Theft: Section 378-382 of the Indian Penal Code (IPC) deal with the offence of “Theft”. Theft simply means taking away any movable property, intentionally and dishonestly without the consent of the owner/possession.[Imprisonment up to 3 years, or a fine, or both]
2. Extortion: Section 383 of the Indian Penal Code defines extortion as follows: Whoever intentionally puts any person in fear of any injury and thereby dishonestly induces that person to deliver (to any person) any property or valuable or security or anything signed or sealed which may be converted into a valuable security is said to have committed an offence of extortion. [Imprisonment for a term extended to 3 years or a fine or both]
3. Robbery: The word “rob” means to “plunder” or “steal from” or “deprive” or “to loot” or “to carry off as spoil” or “to pillage”. It means felonious taking from the person of another of money or goods against his/her will by force or inflicting fear. The robbery comes under sections 390, 392–394 and 401. [Imprisonment extended to years when it is committed on the highway/up to 10 years or a fine]
4. Dacoity: According to Section 391 of the Indian Penal Code, when five or more persons conjointly commit or attempt to commit a robbery or where the whole number of persons cojointly commit or attempt to commit a robbery, and persons present and aiding such commission or attempt, amount to five or more, every person so committing, attempting, or aiding is said to commit “Dacoity”. [Imprisonment for not less than 7 years]
5. Criminal Misappropriations or Dishonest Misappropriation of Property: Whoever dishonestly misappropriates or converts to his own use any movable property, shall be punished with imprisonment of either description for a term, which may extend to two years, with a fine, or with both. This offence comes under sections 403 and 404 of the Indian Penal Code. [Imprisonment for term extended up to 2 years, or a fine, or both]
6. Criminal Breach of Trust: Whoever, being in any manner entrusted with property or having any dominion over property, dishonestly uses or disposes of that property in ciolation of any direction of law prescribing the mode in which such trust is to be discharged or of any legal contact with such trust, or willfully suffers any other person to do so, commits” Criminal Breach of Trust”. This offence comes under Sections 405 and 409 of the Indian Penal Code. [Imprisonment for a term extended up to 3 years or a fine, or both]
7. Receiving of Stolen Property: This section provides punishment for dishonest receipt and retention of stolen property. Mere possession of stolen property is not an offence; it must be received and retained dishonestly and with the knowledge that it is stolen property. The person who receives or retains stolen property is punished in the same manner as a person who commits theft. The sections under which these offences fall are 410–414 of the Indian Penal Code. [Imprisonment for a term of 3 years or a fine, or both]
8. Cheating: Sections 415 to 420 of the Indian Penal Code, 1860, deal with the offence of cheating. Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything that he would not do or omit if he were not causing damage or harm to that person in body , mind, reputation, or property, is said to cheat. [Imprisonment up to 3 years, or a fine, or both]
9. Fraudulent Deeds: Sections 421 to 424 of the Indian Penal Code, 1860, deal with fraudulent deeds and the disposition of property. A fraudulent or dishonest intention is common to all offences relating to such deeds or dispositions of property. The offences are as follows, and they are all punishable with imprisonment of either description up to 2 years or a fine, or both.
10. Mischief: Sections 425 to 440 of the Indian Penal Code, lay down the provisions relating to the offence of mischief. Section 425 defines mischief. Section 426 provides punishment for mischief. Sections 427 to 440 deal with different forms of mischief.
11. Criminal Trespass: Any person who enters upon the property of another with intent to commit an offence or to intimidate or insult, or any person in possession of such property, commits this offence. [Sections 441-462]
OFFENCES RELATING TO MARRIAGE:-
Sections 493 to 498 of the Indian Penal Code (IPC) deal with offences relating to marriage as follows.
1. Mock marriage (Sec 493 and Sec 496)
2. Bigamy (Sec 494–496)
3. Adultery (Sec. 497)
4. Seduction or Criminal Elopement (Sec498)
1. Mock marriage: mock marriage means invalid marriage. It is a cohabitation or sexual intercourse by a man, married or unmarried, with a woman of any age, whom he induces to be his wife, but is in fact his concubine. The following offences come under sections 493 to 498 of Indian Penal Code. [Imprisonment up to years, liable to fine]
2. Bigamy: This means marrying again during the life of the lawfully wedded spouse. In other words, bigamy means having two living spouses. Spouse means wife or husband. If a man or woman who has a spouse living with them marries again, they are guilty of the offence of bigamy. This offence comes under IPC Sections 494–496. [Imprisonment up to 7 years, liable to a fine]
3. Adultery: It means sexual intercourse by a man with a married woman, who is not his wife, with her consent and without the consent or connivance of her husband, not amounting to rape. This offence comes under IPC Section 497. [Imprisonment up to 5 years, or a fine, or both]
4. Seduction or Criminal Elopement: A woman must be enticed in such a way that she is separated from the husband’s control. For instance, where A and B are married, B, the wife of A, has to be enticed such that she is taken away from A’s control, which would amount to criminal elopement under this provision. This section comes under Section 498 of the IPC.
Law of Contract
Q: Discuss the law relating to Quasi-Contracts in India?
A: The term “Quasi” is a Latin word, which means “as if” or “similarly”. It means seemingly, apparently, but not really. The expression “Quasi-Contract” is derived from the Roman Law “Obligatio Quasi ex Contractu”. Quasi contract is not a real contract entered into by parties intentionally. It resembles a contract in which law imposes an obligation on a person to perform an obligation on the ground of equity.
Distinctive features:
Anson, in his law of contract, stated that Quasi-Contract is not a happy term and pointed out the following distinctive feature of the Quasi-Contract.
i) Right to a sum of money
ii) Imposed by law and does not arise by agreement of parties
iii) Right available only against a particular person or persons.
i) Right to a Sum of Money:
This right is always a right to money, and generally, though not always, to a liquidated sum of money.
ii) Imposed by Law and does not arise by agreement of the parties:
It does not arise from any agreement of the parties concerned, but is imposed by the law. So in this respect, a Quasi-Contract resembles a tort.
iii) Right available only against a particular person/persons:
It is a right that is available not, like the right protected by the law of torts, against all the world, but against a particular person or persons only. So that in this respect it resembles a contractual right.
Kinds of Quasi-Contracts:
Sections 68 to 72 of the Indian Contract Act, 1872, deal with five kinds of Quasi-Contracts as follows.
i) Supply of necessaries to a person not competent to contract [minor] [Section 68]
ii) Payment by an interested person [Section 69]
iii) Non gratuitous Acts [Section 70]
iv) Responsibility of finder of lost goods [Section 71]
v) Payment by mistake or coercion [Section 72]
i) Supply of necessaries to a person not competent to contract [Minor] [Section 68]:
Section 68 deals with the claim for necessaries supplied to a person incapable of contracting or on his account. It runs as follows.
If a person incapable of entering into a contract, or any one whom he is legally bound to support, is supplied by another person with necessaries suited to his conditions in life, the person who has furnished such supplies is entitled to be reimbursed from the property of such an incapable person.
ii) Reimbursement of money paid, due by another (payment by an interested person) (Sec. 69):
If a person makes any payment out of common interest that others ought to pay, in such a case the person on whose behalf the payment had been made has a Quasi-Contractual obligation to repay the same. Eg: If a tenant pays house tax to stop eviction, he can recover the amount from the owner. In other words, the house owner has a Quasi-Contractual obligation to repay/reimburse the amount to the tenant.
iii) Non-Gratuitous Act (Section 70):
Section 70 of the Indian Contract Act, 1872 deals with the obligation of a person enjoying the benefit of Non-Gratuitous Act. The term gratuitous means done or given for nothing. Non-Gratuitous Act means an act or service done with the expectation of something in return.
Eg: ‘A’ delivers some goods in ‘B’ house, thinking that it is ‘C’s house. Here, ‘B’ has a Quasi-Contractual obligation to return the goods. Similarly, ‘A’ a tradesman, leaves goods at ‘B’s house by mistake, B treats the goods as his own. ‘B’ is bound to pay ‘A’ for them.
iv) Responsibility of finder of Goods (Section 71):
Section 71 of the Indian Contract Act,1872, contemplates another contractual situation. When a person finds some goods belonging to another, he is called “Finder of Lost Goods”. He has a Quasi-Contractual obligation to return them to their true owner. He is subjected to the same responsibility as a bailee.
v) Payment by mistake or under coercion (Section 72):
Section 72 of the Indian Contract Act, 1872, deals with the liability of a person who gets a benefit under mistake or coercion. When a person receives any money or goods by mistake or under coercion, he must repay or return it.
Family Law- I
Q: Describe joint family partition of property?
A: Partition is a process by which the joint status is put to an end. In other words, partition means the division of the joint family. It refers to both property and status.
Property liable for partition:
It is only the coparcenary property that is subject to partition. The separate property is not liable to partition at all, as it belongs absolutely to the owner thereof.
Secondly, properties to which the rule of primogeniture applies cannot be divided, e.g., a raj. Nor can family idols and places of worship be divided. Certain kinds of properties are by their nature indivisible, e.g., animals, furniture, etc.
The following properties are not liable to partition:
1) Impartible estate, i.e., property that depends on one member only, either by custom, under any provision of law, or by terms of grant.
2) Property is indivisible by nature. e.g., ponds, staircases, passages
3) Family idols and relics, which are objects of worship.
4) Separate property of members.
5) The places of worship and sacrifice or the property that has been dedicated to religious and charitable purposes.
6) The well and the right to draw water from the well
7) The ornaments and dress materials given to the wives of the coparceners
8) The headship of math
Provisions to be made before partition:
Some provisions must be made for the property liable to partition before any partition is effected.
1) Debts incurred for joint families that are payable out of the joint family property, provided they have not been contracted for immoral or illegal purposes.
2) Personal debts of the father are not incurred for illegal or immoral purposes.
3) Maintenance of dependent female members and disqualified heirs
4) Marriage expenses of unmarried daughters of the last male holder but not of the collaterals
5) Expenses for the funeral ceremony of the widow and the mother of the last male holder
The following points are notable in connection with the partition of the joint family:
1) There should be an expression of district intention.
2) Division by metes and bounds is not necessary.
3) The existence of property is not necessary.
4) There is no need to explain the reasons for severance.
5) The presence of minors will be no hindrance to partition.
Right to ask partition:
Every coparcener in a joint family has the right to ask for partition. No female member can ask for a partition. However, certain female members, viz., the father’s wife, mother, and grandmother, are entitled to shares, if partition takes place.
The following persons are entitled to claim partition:
1) Father
2) Son, Grandson, and Great Grandson:
According to Mitakshara, they have the right to partition. They do not have such rights in Dayabhaga.
3) Minority Coparcener: Minority is no bar to claiming partition. Even a child in the mother’s womb is entitled to share in the partition. If partition takes place without allocating shares to the child in the womb, he is entitled to reopen the partition after the birth.
4) Adopted Son: He gets all the rights of a naturally born son. If a widow (of the deceased coparcener) adopts a son after partition, he can reopen the partition (doctrine of relation back).
5) Illegitimate Son: He has no right to ask/claim partition but is entitled to maintenance on the death of his father, he survives as a coparcener along with the legitimate son. Then, he can claim partition.
6) Wife: A wife cannot claim partition. If partition takes place between her husband and sons, she is entitled to a share equal to that of her son.
7) Widow Mother: She cannot ask for partition, when partition takes place between her sons, she gets an equal share. If she received any sthreedhanam from her husband or father-in-law, it was to be deducted from her share.
8) Grandmother: She cannot ask for a partition. If partition takes place between or among her son’s sons, she gets an equal share to that of her son’s son.
Allotment of shares or rules of shares:
1) Partition between Father and Son:
If a partition takes place between the father (F) and his two sons, S1 and S2, each gets an equal share. Then the share is F = 1/3, S1 = 1/3, and S2 = 1/3.
Previously, the law had been that the eldest son could be given a double share, because he used to perform the pinda dana, etc. But this law is no longer recognised.
2) Among Brothers:
On the partition between brothers, each takes an equal share from the other, except in the present of corttary custom. Eg: Jystha-Bhaga. Earlier, the law had been that the eldest son could be given a double share because he used to perform the pinda dana, etc. But this law is no longer a good law.
3) Per stripe rule:
If a partition is made among branches, property is divided equally among the branches. Each branch takes per stirpes according to branches as regards every other branch, and the members of each branch take per capita (according to an individual) whether they are by the same wife or by different wives.
4) In cases where the father is dead, the property must be divided equally among the brothers and their mother (or mothers together) if alive).
5) On the death of a coparcener leaving issues, his right to share on partition passes to his widow and his male issues, provided that each issue be within the limits of coparcenary, i.e., within the fourth degree of the common ancestor.
6) If some people belonging to one branch separate themselves and the remaining members of all the branches continue to join together at a subsequent partition.