1.

An agreement enforceable at law is a

(a) enforceable acceptance
(b) accepted offer
(c) approved promise
(d) contract
2. Every promise and every set of promises, forming the consideration for each
other, is an
(a) agreement
(b) contract
(c) offer
(d) acceptance.
3. Promises which form the consideration or part of the consideration for each
other are called
(a) reciprocal promises
(b) cross offers
(c) conditional offer
ADVERTISEMENTS:
(d) conditional promises.
4. An agreement not enforceable by law is stated to be void under
(a) section 2(d)
(b) section 2(e)
ADVERTISEMENTS:
(c) section 2(f)
(d) section 2(g).
5. Void agreement signifies
(a) agreement illegal in nature
(b) agreement not enforceable by law
(c) agreement violating legal procedure
(d) agreement against public policy.
6. Offer as defined under section 2(a) is
(a) communication from one person to another
(b) suggestion by one person to another
(c) willingness to do or abstain from doing an act in order to obtain the assent of
other thereto
(d) none of the above.
7. Under section 2(b) if the person to whom the proposal is made signifies his
assent the proposal is said to have been
(a) accepted
(b) agreed
(c) provisionally agreed
(d) tentatively accepted.

1
8. A proposal when accepted becomes
(a) promise under section 2(b)
(b) agreement under section 2(e)
(c) contract under section 2(h)
(d) none of the above.
9. When, at the desire of the promisor, the promisee or any other person has
done or abstained from doing or, does or abstain from doing or promises to do or
to abstain from doing something, such act or abstinence or promise under
section 2(d) is called
(a) reciprocal promise
(b) consideration for the promise
(c) counter offer
(d) acceptance.
10. Promises which form the consideration or part thereof, for each other under
section 2(F) are called
(a) acceptances for different proposals
(b) agreements
(c) reciprocal promises
(d) consideration.
11. Every promise or set of promises forming the consideration for each other
under section 2(e) is called
(a) reciprocal promise
(b) contract
(c) agreement
(d) none of the above.
12. An agreement enforceable by law at the instance of one party & not of other
party under section 2(i) is called
(a) a valid contract
(b) an illegal contract
(c) void contract
(d) a voidable contract.
13. Which is correct
(a) proposal + acceptance = promise
(b) promise + consideration = agreement
(c) agreement + enforceability = contract
(d) all the above.
14. In a valid contract, what comes first
(a) enforceability
(b) acceptance
(c) promise
(d) proposal.
15. Under section 2(c) promisor is the

2
(a) person who makes the proposal
(b) person who accepts the proposal
(c) person who makes the promise
(d) person to whom the proposal is made.
16. Under section 2(c) promisee is the
(a) person who makes the proposal
(b) person who accepts the proposal
(c) person who makes the promise
(d) person to whom proposal is made.
17. Goods displayed in a shop with a price tag is an
(a) offer
(b) invitation to offer
(c) counter offer
(d) none of the above.
18. Tender is
(a) an offer
(b) an invitation to offer
(c) a counter offer
(d) a promise.
19. Communication of a proposal is complete
(a) when it is put in the course of transmission
(b) when it comes to the knowledge of the person to whom it is made
(c) when the proposal is communicated to the person to whom it is made
(d) all the above.
20. Communication of acceptance is complete as against the proposer
(a) when it comes to the knowledge of the proposer
(b) when it is put in the course of transmission to him so as to be out of power of
the acceptor
(c) when the acceptance is communicated to the proposer
(d) all the above.
21. Communication of acceptance is complete as against the acceptor
(a) when it comes to the knowledge of the proposer
(b) when it is put in the course of transmission
(c) when it is communicated to the acceptor that the acceptance has reached the
proposer
(d) when the proposer conveys the acceptance to the acceptor.
22. Revocation of offer by letter or telegram can be complete
(a) when it is despatched
(b) when it is received by the offeree
(c) when it reaches the offeree
(d) both (a) and (c).
23. Acceptance to be valid must

3
(a) be absolute
(b) be unqualified
(c) both be absolute & unqualified
(d) be conditional.
24. A contract with or by a minor is a
(a) valid contract
(b) void contract
(c) voidable contract
(d) voidable at the option of either party.
25. A contract which ceases to be enforceable by law becomes void
(a) when it ceases to be enforceable
(b) before it ceases to be enforceable
(c) no such condition necessary
(d) none of above.
26. An acceptance can be revoked
(a) at any time before the communication of acceptance is complete as against
the promisee
(b) after its acceptance comes to the knowledge of the promisee
(c) both (a) & (b)
(d) neither (a) nor (b).
27. A proposal stands revoked
(a) by communication of notice of revocation by the proposer
(b) by failure of acceptor to fulfil a condition precedent
(c) by death or insanity of proposer to the knowledge of acceptor
(d) all the above.
28. A proposal can be accepted
(a) by notice of acceptance
(b) by performance of condition of proposal
(c) by acceptance of consideration for a reciprocal promise
(d) all the above.
29. Enforceable agreements are the one
(a) made by free consent
(b) parties to the contract are competent to enter into an agreement
(c) having lawful consideration & lawful object
(d) all the above.
30. Competency to contract relates to
(a) age of the parties
(b) soundness of mind of the parties
(c) both age & soundness of mind
(d) intelligence of the parties.
31. Which one of the following is correct
(a) past consideration is no consideration

4
(b) consideration can be past, present or future
(c) consideration can only be present
(d) consideration can only be present & future.
32. Past consideration is valid in
(a) England only
(b) India only
(c) both in England & India
(d) neither in England nor in India.
33. An agreement not to raise the plea of limitation is
(a) valid & binding
(b) void
(c) voidable
(d) illegal.
34. A letter of acceptance sent by post is lost in transit
(a) there is a concluded contract as the letter of acceptance is put in the course of
transmission
(b) there is no concluded contract as the acceptance has not come to the
knowledge of the proposer
(c) there is no concluded contract as the acceptance has not been communicated
to the proposer
(d) all the above.
35. When the consent to the contract is caused by coercion, the contract under
section 19 is
(a) valid
(b) voidable
(c) void
(d) illegal.
36. A’s son forged B’s name to a promissory note. B under threat of prosecuting
A’s son obtains a bond from A for the amount of the forged note. If B sues on this
bond the court
(a) has no jurisdiction in this case
(b) must not set aside the bond
(c) may set aside the bond
(d) none of above.
37. When the consent is caused by misrepresent-tation, the contract under
section 19 is
(a) valid
(b) void
(c) voidable
(d) illegal.
38. When the consent is caused by undue influence, the contract under section
19A is

5
(a) valid
(b) void
(c) voidable
(d) illegal.
39. Where both the parties are under mistake as to matter of fact, the contract
under section 20 is
(a) voidable
(b) void
(c) valid
(d) illegal.
40. Where one of the parties is under a mistake as to matter of fact the contract is
(a) valid
(b) void
(c) voidable
(d) illegal.
41. Considerations & objects are unlawful where it is
(a) forbidden by law or defeat the provision of any law
(b) which is fraudulent
(c) which is immoral & against the public policy
(d) all the above.
42. If only a part of the consideration or object is unlawful, the contract under
section 24 shall be
(a) valid
(b) voidable
(c) void
(d) illegal.
43. A contract without consideration under section 25 is
(a) valid
(b) voidable
(c) void
(d) illegal.
44. Consideration should be something in return of promise which
(a) both the law and parties regard, as having some value
(b) only law regards a having some value
(c) only the parties regard some value
(d) only adequate value necessary.
45. If the proposer prescribes the mode & manner of acceptance, the acceptance
(a) can be in any manner & mode
(b) should be in the manner & mode prescribed
(c) can be in any reasonable mode & manner
(d) all the above.
46. Parties are not competent to contract if any of them is

6
(a) minor
(b) insane
(c) declared unqualified
(d) all the above.
47. Consent is free under section 14 if not caused by
(a) coercion & undue influence
(b) fraud and misrepresentation
(c) mistake subject to the provisions of sections 20, 21 and 22
(d) all the above.
48. Consent under section 13 means
(a) agreeing on the same thing in the same sense
(b) agreeing on the same thing at the same time
(c)agreeing on the same thing at different time
(d) agreeing on different things at different times.
49. A contract which is valid initially however, ceases to be enforceable
subsequently, the contract
(a) remains valid
(b) becomes voidable when enforceable
(c) becomes void when it enforceable
(d) becomes void since inception.
50. Agreements, the meaning of which is not certain or not capable of being made
certain under section 29 is
(a) void
(b) voidable
(c) illegal
(d) valid
51. An agreement in restraint of trade under section 27 is
(a) valid
(b) voidable
(c) void
(d) unenforceable
52. An agreement restraint of trade is valid under section 27 if relates to
(a) sale of goodwill
(b) mutual adjustment
(c) business contingency
(d) none of the above.
53. An agreement not to pursue any legal remedy to enforce the rights under
section 28 is
(a) valid
(b) voidable
(c) void
(d) unenforceable.

7
54. An agreement not to persue legal remedies but to refer the dispute to the
arbitrator, under section 28 is
(a) valid
(b) voidable
(c) void
(c) void
(d) unenforceable.
55. An agreement to refer the dispute to the arbitrator is valid
(a) in respect of disputes already arisen
(b) in respect of disputes which may arise in future
(c) both (a) & (b)
(d) neither (a) nor (b)
56. An agreement by way of wager under section 30 is
(a) void
(b) voidable
(c) valid
(d) unenforceable
57. An agreement in connection with horse- racing under section 30 is
(a) unlawful
(b) void
(c) voidable
(d) valid.
58. An agreement in restraint of marriage under section 26 is
(a) void
(b) voidable
(c) valid
(d) unenforceable
59. If only a part of the consideration or object is unlawful, the contract under
section 24 shall be
(a) valid to the extent the same are lawful
(b) void to the extent the same are unlawful
(c) void as a whole
(d) valid as a whole.
60. An agreement shall be void on account of
(a) mistake of fact by one party
(b) mistake of fact by both the parties
(c) mistake of foreign law
(d) both (a) & (b).
61. Coercion which vitiates free consent under section 15 is
(a) committing or threatening to commit any act which is forbidden by law
(b) committing or threatening to commit any act which is forbidden by Indian
Penal Code

8
(c) unlawful detaining or threatening to detain any property with an intention to
causing any person to enter into an agreement
(d) all the above.
62. What is correct of a standard form contract
(a) it is a valid contract
(b) one party has no choice but to accept & sign the contract
(c) both (a) & (b)
(d) the consent is not a free consent.
63. Law of contract primarily
(a) specifies the circumstances in which promises are binding on the parties to
the contract
(b) lays down certain norms by which the parties are bound
(c) lays down the circumstances under which a promise may be made
(d) all the above.
64. Misrepresentation under section 18 means
(a) a positive assertion, in a manner not warranted by the information of the
person making it, not true but he believes it to be true
(b) any breach of duty, which gains an advantage to the person committing it, by
misleading another to his prejudice
(c) causing a party to make an agreement to make a mistake as to the subject
matter of contract
(d) all the above.
65. A person is deemed to be in a position to dominate the will of another by
undue influence if the mental capacity is affected temporarily or permanently by
(a) reason of age
(b) reason of illness
(c) mental or bodily distress
(d) all the above.
66. An agreement to remain unmarried is
(a) valid
(b) voidable
(c) void
(d) unenforceable.
67. A general offer open for world at large can be accepted
(a) by sending a communication of acceptance
(b) by complying with the conditions of offer
(c) by tendering himself to comply the conditions of offer
(d) none of the above.
68. The term consensus ad-idem means
(a) general consensus
(b) reaching an agreement
(c) meeting of minds upon the same thing in( the same sense

9
(d) all the above.
69. Which one of the following does not amount to fraud
(a) suggestion as a fact which is not true, by one who does not believe it to be
true
(b) active concealment of a fact
(c) a representation made without knowing it to be false, honestly believing it to
be true
(d) a promise made without any intention of performing it.
70. Contract without consideration made in writing & registered and made on
account of natural love and affection is
(a) void
(b) voidable
(c) valid
(d) unenforceable.
71. Inadequacy of consideration does not make the contract
(a) void
(b) voidable
(c) unenforceable
(d) neither void nor voidable.
72. Inadequacy of consideration is relevant in determining the question of
(a) fraud
(b) misrepresentation
(c) undue influence
(d) free consent.
73. Agreement without consideration is valid
(a) when made out of love & affection due to near relationship
(b) when made to compensate a person who has already done something
voluntarily
(c) when made to pay a time barred debt
(d) all the above.
74. A contract based on the happening or non- happening of a future event under
section 31 is called
(a) a contingent contract
(b) a wagering contract
(c) a contract marked with uncertainty and hence void
(d) none of the above.
75. A contingent contract to do or not to do anything on the happening of an
uncertain future event under section 32
(a) is never enforceable
(b) becomes enforceable only on the happening of that event
(c) enforceable since the time of making it
(d) becomes enforceable in the immediate possibility of happening of that event.

10
76. A contingent contract
(a) is void
(b) never becomes void
(c) becomes void when the event becomes impossible
(d) is voidable.
77. A contingent agreement based on an impossible event under section 36
(a) is void
(b) is void till the impossibility is known
(c) becomes void on the knowledge of impossibility
(d) all the above.
78. What is true of misrepresentation
(a) it is the same thing as fraud
(b) it renders the contract voidable
(c) it may be due to innocence
(d) both (b) & (c).
79. Two persons have the capacity to contract under section 11
(a) if both are major
(b) if both are not of unsound mind
(c) if none is declared unqualified to contract
(d) all are correct.
80. A contract with minor is
(a) voidable at the instance of the minor
(b) voidable at the instance of other party
(c) void
(d) valid.
81. An agreement to do an act impossible in itself under section 56 is
(a) void
(b) valid
(c) voidable
(d) unenforceable.
82. A contingent contract based on the specified uncertain event happening
within a fixed time under section 35
(a) remains valid even if the event does not happen within that fixed time
(b) becomes void at the expiration of the time fixed
(c) becomes void if the happening of that event becomes impossible before the
expiry of time fixed
(d) both (b) & (c).
83. A contingent contract based on the specified uncertain event not happening
within a fixed time under section 35
(a) can be enforced if the event does not happen within the time fixed
(b) can be enforced if before the expiry of time fixed, it becomes certain that such
an event shall not happen

11
(c) cannot be enforced at all, being void
(d) both (a) & (b).
84. A promisor can perform
(a) the promise himself
(b) the promise through his representa-tive competent to perform
(c) the promise through his representa-tive irrespective of the competency of that
representative
(d) both (a) & (b).
85. A promisee can accept the performance (a) from the promisor himself
(b) from the representative of the promisor competent to perform
(c) from a third person
(d) all the above.
86. In case of joint promise, generally the performance must be by
(a) all the promisors jointly
(b) any one of them individually
(c) one not authorised to perform
(d) none of the above.
87. In cases of joint promise generally a promisee can compel
(a) all the joint promisors to perform
(b) any one of them to perform
(c) some of them to perform
(d) all the above.
88. Generally, the joint promisors can
(a) compel each other to contribute equally
(b) not to compel each other to contribute equally
(c) cannot compel each other to contribute
(d) none of the above.
89. Where one of the joint promisors makes a default in contribution of
performance
(a) the other joint promisors have no right against the defaulter
(b) have to bear the loss in equal share
(c) not supposed to bear the loss
(d) the contract becomes void to that extent.
90. In case of default by joint promisors the promisee
(a) can sue any one of them for the entire promise
(b) can sue any one of them to the extent of his share in the joint promise
(c) both (a) & (b)
(d) cannot sue any single promisee.
91. In case of death of a joint promisor(s) the promisee
(a) can enforce the contract against the survivor(s) of the said joint promisor(s)
alongwith the joint promisors who are alive

12
(b) cannot enforce the contract against the survivor(s) of the said joint
promisor(s)
(c) both (a) & (b)
(d) cannot enforce the contract against any of them.
92. In a contract not specifying the time for performance, the promisor can
perform the contract
(a) within any time howsoever long it may be
(b) within the shortest time
(c) within a reasonable time
(d) none of the above.
93. What is a reasonable time for performance of a contract
(a) is a question of fact
(b) is a question of law
(c) is a mixed question of fact & law
(d) is a question of prudence.
94. A contract not specifying the place of performance
(a) performed at any place to the knowledge of the promisee
(b) the promisor has to apply to the promisee for appointment of a place of
performance & perform the promise at that place
(c) the promisor need not seek any instructions from the promisee as to the place
of performance
(d) the promisor can perform the promise at a place other than the place
appointed by the promisee.
95. In case the promisee prescribes the manner and time of performance of
promise
(a) the performance must be in the manner and at the time prescribed
(b) the performance can be in a different manner but at the time prescribed
(c) the performance can be in the manner prescribed but at a time beyond the
time prescribed
(d) the performance need not be in the manner and time prescribed.
96. If the time of performance of the contract is the essence of the contract and
the promisor fails to perform the contract by the specified time
(a) the contract becomes void
(b) the contract remains valid
(c) the contract becomes voidable at the instance of the promisee
(d) the contract becomes unenforceable.
97. If the time is not the essence of the contract the failure to perform the contract
by the specified time makes the contract
(a) void
(b) voidable at the instance of the promisee
(c) remains valid but the promisee can claim compensation for the loss suffered
by him by such failure

13
(d) remains valid & can be performed at any subsequent time without being liable
for the loss suffered by the promisee.
98. In contract for sale of immovable property the presumption is that the time is
(a) the essence of the contract
(b) not the essence of the contract
(c) the essence of the contract but failure does not make the contract voidable
(d) not the essence of the contract but makes the contract voidable at the
instance of the other party.
99. Reciprocal promises provide for doing certain things which are legal & certain
others which are illegal, under section 57
(a) the entire set of promises is void
(b) the first set is voidable, but the second set is void
(c) the first set is valid but the second set is void
(d) the entire set of promises is valid.
100. A contract, performance of which becomes impossible or unlawful becomes
(a) void when the performance becomes unlawful or impossible
(b) void
(c) voidable when the performance becomes impossible.
(d) neither becomes void nor voidable
Summary of Indian Contract Act 1872
The Indian Contract Act occupies the most important place in the Commercial
Law. Without contract Act, it would have been difficult to carry on trade. It is not
only the business community which is concerned with the Contract Act, but it
affects everybody.
The objective of the Contract Act is to ensure that the rights and obligations
arising out of a contract are honoured and that legal remedies are made available
to an aggrieved party against the party failing to honour his part of agreement.
The Indian Contract Act makes it obligatory that this is done and compels the
defaulters to honour their commitments. According to Sir William Anson. “The
objective of law is to maintain order because only in a state of order can a man
feel safe and secure.
Division of the Indian Contract Act :
In the past, Indian Contract Act had a wide scope and included:
1. General Principles of Contract – Sections 1 to 75.
2. Sale of Goods Act – Sections 76-123.
3. Contracts of Indemnity and Guarantee – Sections 124 = 147.
4. Contracts of Bailment and Pledge – Sections 148-181.
5. Contracts of Agency – Sections 182 – 238.
6. Partnership Act – Sections 239-266.
(a) “Proposal”:

14
When one person signifies to another his willingness to do or to abstain from
doing anything, with a view to obtaining the assent of the other to such act or
abstinence, he said to make a proposal.
(b) “Promise”:
When the person to whom the proposal is made signifies his assent thereto, the
proposal is said to be accepted. A proposal when accepted, becomes a promise.
(c) “Promisor and Promise”:
The person making the proposal is called the “Promisor” and the person
accepting the proposal is called the “promise”.
(d) “Consideration”:
When at the desire of the promisor, the promise or any other person has done or
abstained from doing, or does or abstains from doing, or promises to do or to
abstain from doing something, such act or abstinence or promise is called a
consideration for the promise.
(e) “Agreement”:
Every promise and every set of promises, forming the consideration for each
other is an agreement.
(f) “Reciprocal Promises”:
Promises which form the consideration or part of the consideration for each other
are called reciprocal promises.
(g) “Void agreement”:
An agreement not enforceable by law is said to be void.
(h) “Contract” – An agreement enforceable by law is a contract.
(i) “Voidable Contract”:
An agreement which is enforceable by law at the option of one or more of the
parties thereto, but not at the option of the other or others, is a voidable contract.
(j) “Void Contract”:
A contract which ceases to be enforceable by law becomes a void contract.
(k) “Plaintiff”:
A person who files a suit in a court of law against the another for breech of
contract is called the plaintiff.
(l) “Defendant”:
The person against whom a suit has been filed in court and who has to defend
against the charges of breach of contract is called the defendant.
FAMILY LAW / HINDU LAW – UNIT I — REVISION STUDY NOTES FOR
LL.B

Introduction of the Hindu Law

Concept of Dharma
Hindu Law is a body of principles or rules called ‘Dharma’. Dharma according to
Hindu texts embraces everything in life. According to the Hindus, ‘Dharma’
includes not only what is known as law in the modern sense of the term but all
rules of good and proper human conduct. Dharma is used to mean justice what is
right in a given circumstance, moral, religious, pious or righteous conduct, being

15
helpful to living beings and things, duty, law and usage or custom having in the
force of law and also a valid Rajashasana

Origin of Hindu law

The Hindu system as modified through centuries has been in existence for over
five thousand years and has continued to govern the social and moral patterns of
Hindu life with harmonizing the diverse elements of Hindu cultural life. Magne
says, “Hindu law has the oldest pedigree of any known system of Jurisprudence
and even now it shows no signs of decrepitude“.

Nature and scope of Hindu Law

Hindu law, though believed to be of divine origin, is based essentially on
immemorial custom and many of the acts of the people which were purely of a
secular nature. But the secular nature of the acts have been modified to suit the
religious preferences of a Brahmin community. With a desire to promote the
special objects of religion or policy, they have used their intellectual superiority
and religious influence to mold the customs of the people.

Who are Hindus

The term ‘Hindus’ denotes all those persons who profess Hindu religion either by
birth from Hindu parents or by conversion to Hindu faith. In Yagnapurus dasji v.
Muldas [AIR 1966 SC 1119], the Supreme Court accepted the working formula
evolved by Tilak regarding Hindu religion that ‘acceptance of vedas’ with
reverence, recognition of the fact that the number of Gods to be worshiped at
large, that indeed is the distinguishing feature of Hindu religion.

In Shastri v Muldas SC AIR 1961, SC has held that various sub sects of Hindus
such as Swaminarayan, Satsangis, Arya Samajis are also Hindus by religion
because they follow the same basic concept of Hindu Philosophy. Converts and
Reconverts are also Hindus.

If only one parent is a Hindu, the person can be a Hindu if he/she has been raised
as a Hindu. In Sapna vs State of kerala, Kerala HC,  the son of Hindu father and
Christian mother was held to be a Christian

To whom Hindu Law apply

1. Hindus by birth
2. Off shoots of Hinduism
3. Persons who are not Muslims, Christians, Parsis or Jews
4. Converts to Hinduism
5. Reconverts to Hinduism
6. Harijans
7. Aboriginal Tribes

To whom Hindu law does not apply

 to converts from the Hindu to the Mohammedan faith

 to the Hindu converts to Christianity
 to the illegitimate children of a Hindu father by Christian mother and who
are brought up as Christians

Constitution of India and the Enactments under the Hindu Law

Presently, Hindu Law is applied through the Hindu Marriage Act, 1955; the Hindu
Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the
Hindu Adoptions and Maintenance Act, 1956

16
Constitutional enactments are:

 Hindu Women’s Rights to Property Act, 1937

 Hindu Succession Act, 1956

Impact of Hindu Law Enactments in Fundamental Rights

Several principles of Hindu Law have been held invalid on the ground that they
infringe the Fundamental Rights. For example, the rule of Damdupat is hit by
Article 15(1) of the Constitution and as such would be void under Article 13(1).

Sources of Hindu Law

Ancient Sources
Before the codification of Hindu Law, the ancient literature was the only source of
the law. These sources can be divided into four categories:

01. SHRUTI (VEDAS)

Shruti means “what is heard”. It is believed that the rishis and munis had reached
the height of spirituality where they were revealed the knowledge of Vedas. Thus,
shrutis include the four vedas – rig, yajur, sam, and athrava along with their
brahmanas. The brahmanas are like the apendices to the Vedas. Vedas primarily
contain theories about sacrifices, rituals, and customs.

02. SMRITIS
Smriti means “what is remembered”.  With Smritis, a systematic study and
teaching of Vedas started. Many sages, from time to time, have written down the
concepts given in Vedas. So it can be said that Smritis are a written memoir of the
knowledge of the sages. Immediately after the Vedic period, a need for the
regulation of the society arose.

 Dharmasutras: The Dharmansutras were written during 800 to 200 BC. They

were mostly written in prose form but also contain verses. It is clear that they
were meant to be training manuals of sages for teaching students.
 Dharmashastras: Dharmashastras were mostly in metrical verses and were
based of Dharmasutras.  However, they were a lot more systematic and clear.
 Manusmriti: This is the earliest and most important of all. It is not only
defined the way of life in India but is also well know in Java, Bali, and
Sumatra. The name of the real author is not known because the author has
written it under the mythical name of Manu, who is considered to the the first
human.
 Yajnavalkya Smriti: Though written after Manusmriti, this is a very
important smriti. Its language is very direct and clear. It is also a lot more
logical. He also gives a lot of importance to customs but hold the king to be
below the law.
 Narada Smriti: Narada was from Nepal and this smriti is well preserved and
its complete text is available. This is the only smriti that does not deal with
religion and morality at all but concentrates only on civil law.

03. COMMENATRIES AND DIGESTS

After 200 AD, most the of work was done only on the existing material given in
Smrutis. The work done to explain a particular smriti is called a commentary.
Commentaries were composed in the period immediately after 200 AD. Digests
were mainly written after that and incorporated and explained material from all
the smruitis. As noted ealier, some of the commentaries were, manubhashya,
manutika, and mitakshara. While the most important digest is Jimutvahan’s

17
Dayabhag that is applicable in the Bengal and Orissa area. Mitakshara literally
means ‘New Word’ and is paramount source of law in all of India.

04. CUSTOMS
Most of the Hindu law is based on customs and practices followed by the people
all across the country. Even smrutis have given importance to customs. They
have held customs as transcendent law and have advised the Kings to give
decisions based on customs after due religious consideration. Customs are of
four types:

 Local Custom: These are the customs that are followed in a given

geographical area.
 Family Custom: These are the customs that are followed by a family from a
long time.  These are applicable to families where ever they live.
 Class or Caste Custom: These are the customs that are followed by a
particular cast or community. It is binding on the members of that community
or caste. By far, this is one of the most important source of laws.
 Guild Custom: These are the customs that are followed by traders.

REQUIREMENTS FOR A VALID CUSTOM

 Ancient
 Continuous
 Certain
 Reasonable
 Not against morality
 Not against public policy
 Not against any law

PROOF OF CUSTOM
The burden of proving a custom is on the person who alleges it. Usually, customs
are proved by instances. In the case of Prakash vs Parmeshwari, it was held that
one instance does not prove a custom. However, in the case of Ujagar vs Jeo, it
was held that if a custom has been brought to notice of the court repeated, no
further proof is required.

USAGE AND CUSTOM

USAGE AND CUSTOM
The term custom and usage is commonly used in commercial law, but “custom”
and “usage” can be distinguished. A usage is a repetition of acts whereas
custom is the law or general rule that arises from such repetition. A usage may
exist without a custom, but a custom cannot arise without a usage accompanying
it or preceding it. Usage derives its authority from the assent of the parties to a
transaction and is applicable only to consensual arrangements. Custom derives
its authority from its adoption into the law and is binding regardless of any acts
of assent by the parties. In modern law, however, the two principles are often
merged into one by the courts.

Modern Sources
JUDICIAL DECISIONS (PRECEDENTS)
The doctrine of stare decisis started in India from the British rule. All cases are
now recorded and new cases are decided based on existing case laws.Today, the
judgment of SC is binding on all courts across India and the judgment of HC is
binding on all courts in that state.

18
LEGISLATURES / STATUTES (CODIFICATION OF HINDU LAW)
In modern society, this is the only way to bring in new laws. The parliament, in
accordance with the needs society, constitutes new laws. For example, a new
way of performing Hindu marriages in Tamil Nadu that got rid of rituals and
priests was rejected by the SC on the basis that new customs cannot be invented.
However, TN later passed an act that recognized these marriages.

JUSTICE, EQUITY AND GOOD CONSCIENCE

Equity means fairness in dealing. Modern judicial systems greatly rely on being
impartial. True justice can only be delivered through equity and good conscience.
In a situation where no rule is given, a sense of ‘reasonableness’ must prevail.
According to Gautama, in such situation, the decision should be given that is
acceptable to at least ten people who are knowledgeable in shastras.
Yagyavalkya has said that where ever there are conflicting rules, the decision
must be based on ‘Nyaya’.

Schools of Hindu Law

Due to the emergence of various commentaries on SMIRITI and SRUTI, different
schools of thoughts arose.  The commentary in one part of the country varied
from the commentary in the other parts of the country.

The Mitakshara School

The Mitakshara School exists throughout India except in the State of Bengal and
Assam. The Yagna Valkya Smriti was commented on by Vigneshwara under the
title Mitakshara. The followers of Mitakshara are grouped together under the
Mitakshara School.

Mitakshara school is based on the code of yagnavalkya commented by

vigneshwara, a great thinker and a law maker from Gulbarga, Karnataka. The
Inheritance is based on the principle or propinquity i.e. the nearest in blood
relationship will get the property.

The school is followed throughout India except Bengal state. Sapinda

relationship is of blood. The right to Hindu joint family property is by birth. So, a
son immediately after birth gets a right to the property.

 Dravidian School Of Thought (Madras School)

 Maharashtra School (Bombay School Of Thought)
 Banaras School Of Thought
 Mithila School Of Thought

The Dayabhaga School

It exists in Bengal and Assam only. The Yagna Valkya smriti is commented on by
Jimootavagana under the title Dayabhaga. It has no sub-school. it differs from
Mistakshara School in many respects.

Dayabhaga School is based on the code of yagnavalkya commented by

Jimutuvahana, Inheritance is based on the principle of spiritual benefit. It arises
by pinda offering i.e. rice ball offering to deceased ancestors.

This school is followed in Bengal state only. Sapinda relation is by pinda

offerings.

The right to Hindu joint family property is not by birth but only on the death of the
father.
19
The system of devolution of property is by inheritance. The legal heirs (sons)
have definite shares after the death of the father.

UNIT – II
Marriage and Kinship
Evolution of the Institution of Marriage and Family
Definition and Forms of Hindu Marriage

 Definitions of Marriage: Marriage is a civil and religious contract whereby a

man is joined and united to a woman for the purpose of civilized society. In
law ‘marriage’ may mean either the acts, agreements, or ceremony by which
two persons enter into wedlock, or their subsequent relation created thereby.
Marriage is the civil status or personal relation of one man and one woman
joined together in a matrimonial union which was lawfully entered into.
 Characteristics of Marriage: Marriage is universal, It is for the formation of
family, It forges a new social link, It fixes the responsibility of bringing up
children on the parents, It is a result of civil or religious ceremony,
Legitimization of children born out of such union which is a social need, In
marriage, the male and female get the right of mutual relationship in
economic, social and biological spheres.
 Origin of Marriage: The Institute of Marriage evolved in an evolutionary
manner. In the earliest form of groupings of people, sex was absolutely
unregulated and the children were considered to be the children of the group.
According to Morgan, marriage institution started with group marriage, then
polygamy and lastly monogamy.
 Importance of the Institution of Marriage: The institute of marriage
regulates and socially validates relatively long-term legitimate sexual relation
between males and females, Marriage serves to start reproductive process,
Marriage is also a way to acquire new Kinsmen, It is only after marriage a
family comes into being
 Hindu Marriage:
 Matrimonial Rights and Obligations
 Duties of a Husband are: to protect his wife, to give her a home, to
maintain her by providing her with comforts and necessities of life within
his means, to treat her kindly with affection and courtesy, to honour the
wife, not to assault or commit battery against his wife’s person
 Rights of a Husband are: he is entitled to the custody and the
conjugal society of his wife, he is entitled to succeed to her if she
predeceases him without issue, and can utilise her Sridhana property to
relieve himself in circumstances of extreme distress
 Duties of a Wife are: to attend to the needs of her husband both in
religious and household activities, to show obedience and veneration for
the husband, to live with him wherever he may choose to reside unless he
is guilty of cruelty or misconduct
 Rights of a Wife are: right for maintenance throughout her life, right
of equality in the house of her husband, right to bring suit for the
restitution of conjugal rights, right to get divorce for the cruelty, insults,
etc

Different Forms of Hindu Marriage

THE FOUR OBSOLETE APPROVED FORMS

 Brahma (to a man learned in vedas)

 Daiva (to a preist)
 Arsha (father’s taking gift from groom: a cow and a bull)
 Prajapatya (similar to Brahma, gift of a daughter by father, but bridegroom
need not be a bachelor)

THE FOUR UNAPPROVED FORMS

20
 Asura (When groom buys bride through money)
 Gandharva (When voluntary union against parent’s wishes)
 Rakshasa (When forcible abduction / kidnapping)
 Paishacha (when intoxicated)

Salient Features of Hindu Marriage Act, 1955

 Ancient Hindu Law of Marriage

 During Muslim period
 During early british rule
 Enactments in the British Rule
 Enactments in Independent India
 The Special Marriage Act, 1954
 Salient Features of the Hindu Marriage Act, 1955
 Main changes introduced in the Hindu Marriage, 1955 by the Marriage Laws
(Amendment) Act, 1976

Application of Hindu Marriage Act, 1955

Definitions

 Custom and Usages

 Full Blood, Half Blood and Uterine Blood
 Sapinda Relationship
 Degree of Prohibited Relationship

Overriding Effect of the Hindu Marriage Act, 1955

Conditions of Hindu Marriage

Section 5 of the Hindu Marriage Act, 1955 lists out the following conditions to be
fulfilled for the solemnization between any two Hindus:-

 Monogamy: The first essential condition for a valid marriage is that neither
party should have a spouse living at the time of marriage. Monogamy is the
voluntary union for life of one man with one woman to the exclusion of all
others. In the case of Varadrajan v. State, it was held that a party to be
bigamous marriage could be punished only upon the proof of the prior
marriage having been solemnized according to religious ceremonies and
customs.
 Mental Capacity: A marriage is bliss. A sound mind is a key to a happy
married life. Clause (ii) of Section 5 of the Act lays down as one of the
conditions for a Hindu Marriage that neither party must be suffering from
unsoundness of mind, mental disorder, and insanity.
 Age of Parties: The Hindu Marriage Act, 1955 lays down the condition that
at the time of the marriage, the bridegroom must have completed the age of 21
and the bride the age of 18 years. In the case of Rabindra Prasad v. Sita Devi,
the court held that a child marriage is not void and observed that “the
marriage solemnized in violation of Section 5 (iii) remains unaffected.
 Degrees of Prohibited Relationship: Clause 10 of Section 5 of the Hindu
Marriage Act, 1955 lays down that no marriage is valid if it is made between
persons related to each other within the prohibited degrees unless such
marriage is sanctioned by custom or usage governing both the parties.

 Beyond Sapinda Relationship: According to Mitakshara, Sapinda means a

person connected by the same blood relation. Clause (v) of Section 5 of the
Hindu Marriage Act, 1955 itself provides that the parties to marriage should
not be sapindas of each other, unless the custom or usage governing each of
them permits of a marriage between two.
 The question of virginity of the bride: The Hindu bride is expected to be a
virgin. If the bride had been made pregnant by another, the husband can have
the marriage set-aside by a decree of nullity, provided (a) he was ignorant of

21
 this fact at the time of marriage; (b) he did not have marital intercourse after
discovering the fact; (c) petition is brought within one year from the date of
marriage
 Impotency and other physical infirmities: If the bridegroom is found
impotent after the marriage, the marriage can be set-aside under section 12 of
the Act. Such marriage is voidable.
 Inter-caste Marriage: The Government of India enacted ‘Hindu Marriages
Validating Act, 1949, which validates intercaste marriages and also marriages
between Hindus, Jains and Sikhs. In the case of Bai Gulab v. Jiwan Lal, the
Bombay High Court upheld the validity of Anuloma marriages.
 Doctrine of Factum Valet: It is a doctrine of Hindu law, which was originally
enunciated by the author of the Dayabhaga, and also recognized by the
followers of the Mitakshara, that ‘a fact cannot be altered by a hundred texts’.
The text referred to are directory texts, as opposed to mandatory texts. The
maxim, therefore, means that if a fact is accomplished, i.e., if an act is done
and finally completed, although it may contravene a hundred directory texts,
the fact will nevertheless stand, and the act done will be deemed to be legal
and binding.This doctrine came from Roman maxim ‘factum valet quod fieri
non debuit’ which literally means that ‘what ought not to be done become
valid when done’.In the case of Venkatrama v. State, the court has applied the
doctrine of factum valet to child marriage and held that the marriage itself is
valid though penal consequences are attracted. The child marriages are
neither void nor voidable. They continue to be valid even though punishable.

Ceremonies of Hindu Marriage

 No particular form of marriage

 Necessary religious ceremonies
 Vagdan
 Formalities including the recitation of holy texts before the sacred
fire
 Saptapadi
 State amendments

 Registration of Hindu Marriages

 Types of Marriage: Monogamy, Polygamy, Polyandry

Matrimonial Remedies

Restitution of Conjugal Rights

The meaning of Restitution of Conjugal Rights: Either husband or wife has

without reasonable excuse withdrawn from the society of other, the aggrieved
party, may approach the court for ‘Restitution of Conjugal Rights’ and the court
on being satisfied on the truth of the statement in such petition may grant decree
for ‘Restitution of Conjugal Rights’.

-> In case, husband or wife lives separately, then they can avail Conjugal Rights.
-> In case, if there was any valid reason to live separately, then they cannot avail
Conjugal Rights

Case Laws:

1. T. Sareetha v. Venkata Subbaiah

 Matrimonial remedies
 Restitution of conjugal rights – Section 9
 Constitutionality of Section 9
 Remedies available
 Subsistance
 Withdrawal from the society
 Validity of agreement of separation

22
  Reasonable excuse
 Defence available to restitution petition
 Can a husband compel his wife to resign her job and stay with him?
 Petition for restitution

Void and Voidable Marriages

Void Marriages

Section 11. Void marriages :- Any marriage solemnized after the commencement
of this Act shall be null and void and may, on a petition presented by either party
thereto, against the other party be so declared by a decree of nullity if it
contravenes any one of the conditions specified in clauses (i), (iv) and (v),
Section 5.”

A marriage is void in three circumstances:

– at the time of marriage, a party is having living spouse
– two persons come under prohibited degrees of relationship
– two persons com under sapinda relationships

 Constitutionality of Section 11 of the Act

 Applicability of Section 11 of the Act
 Delay
 Death of a spouse
 Bigamous marriage
 Injunction
 Third Person
 Effects of void marriage
 Legitimacy of children
 Position of Women

Voidable Marriages

 Grounds for the remedy

 Impotency
 Unsoundness of Mind
 Consent obtained by force or fraud
 Pregnancy of the bride
 Petition for annulment
 Decree for annulment
 Distinction between void and voidable marriages
 Legitimacy of children of void and voidable marriages

Judicial Separation – Section 10 of the Hindu Marriage Act, 1955

A petition can be filed on any of the grounds specified in sub-section (1) and (2)
of Section 13.

Judicial or legal separation means living apart by the parties to the marriage. If a
decree for judicial separation is passed by a competent Court, it is no longer
obligatory for either party to cohabit with the other. Such a decree does not sever
or dissolve the marriage. Yet it is equally true that certain mutual rights and
obligations arising from the marriage are suspended when such a decree is
passed.

In Hiranand S Managaonkar v. Sunanda, the Supreme Court has observed that a

decree of judicial separation does not dissolve the bond of marriage but rather
provides an opportunity to the spouses for reconciliation and readjustment.

Grounds

23
 Adultery: Extra-marital voluntary sexual intercourse. In order to establish
extra-marital, one has to depend on ancillary facts which may be:-
circumstantial evidence, birth of a child to the wife when there is no evidence
of contact with her, contracting of a venereal disease, admission on the part
of the respondent, discovery of letters which might contain such contents
which suggest sexual relationship between the two
 Cruelty: There is mental as well as physical cruelty. To establish legal
cruelty, it is not necessary that physical violence should be used. Continuous
ill-treatment, cessation of marital intercourse, verbal abuse and insult, refusal
to speak, ill-treatment of children, refusal to have children, etc
 Desertion: Desertion is the act of forsaking or abandoning or the act of
quitting without leave with an intention not to return. Desertion has been
defined in the Indian Divorce Act as “implying an abandonment against the
wish of the person changing it”.  In the case Shanti Devi v. Govind Singh, it
has been observed that for constituting ‘desertion’ two essential conditions
must be fulfilled namely (i) the factum of separation; and (ii) the intention to
bring cohabitation permanently to an end
 Conversion: Ceasing to be a Hindu by conversion on the part of the either
party to the marriage, forms a ground for a decree of judicial separation.
 Unsoundness of Mind: The petitioner has to establish that the respondent
has been incurably of unsound mind or has been suffering continuously or
intermittently from mental disorder of such a kind and to such an extent that
the petitioner cannot be expected to live with the respondent.
 Leprosy: If either of the party has been suffering from venereal disease in
communicable form, then the other party can present a petition for decree of
judicial separation. The leprosy which is maligned or venomous can be
termed as virulent. Lepromatous leprosy is virulent and incurable.
 Venereal Disease: It requires to establish for judicial separation that the
respondent has been suffering from venereal disease in a communicable
form.
 Renunciation of the world: The renunciation implies a religious order which
operates as a civil death and, therefore, the other party has been given right to
obtain a decree of judicial separation or divorce.
 Presumption of death: That the other party has not been heard of as alive
for a period of seven years or more by those persons who would naturally
have heard of him, had that party been alive.

Additional Grounds

 Bigamy: Marrying again during lifetime of husband or wife: Whoever,

having a husband or wife living, marries in any case in which such marriage is
void by reason of its taking place during the life of such husband or wife, shall
be punished with imprisonment and fine.
 Rape or sodomy or bestiality: The husband has, since the solemnization of
the marriage, been guilty of rape or sodomy or bestiality.
 In maintenance case:  Either in a suit under Section 18 of the Hindu
Adoption and Maintenance Act, 1956, or in a proceeding under Section 125 of
the Code of Criminal Procedure, 1973, a decree or order has been passed
against the husband awarding maintenance to wife and that since the passing
of such decree or order cohabitation between the parties had not been
resumed for one year or upwards.
 In child marriage case: That, her marriage was solemnized before she
attained the age of 15 years, and she has repudiated the marriage after
attaining that age but before attaining the age of 18 years.

Power of Court to rescind the decree of Judicial Separation

Section 10(2) of the Act empowers the Court to rescind the decree of the judicial
separation if it considers it just and reasonable to do so.

1. the decree has been obtained by showing reasonable excuse for his or her
absence

24
2. the parties cohabited with each other after the decree was passed or they
have resumed living together
3. the opposite party has condoned the offence

Effects of Judicial Separation

1. permits the parties to live separately

2. does not dissolve the marriage
3. husband and wife continue to have the same status
4. not be obligatory for them to cohabit with each other
5. does not prevent the parties from resuming cohabitation and living
together as husband and wife

Divorce – Section 13 of the Hindu Marriage Act, 1955

Divorce in Ancient Hindu Law

Under Hindu Custom, Marriage is considered as sacred and they have this
relation by the blessings of the God. They believed the concept of “marriages are
made in heaven”. Hindus considered the separation of couple as a sin and hence
the question of living separately did not arise in olden days. Once married, the tie
lasts till the end of life.

Divorce means putting an end to the marriage by dissolution of marital relations.

The parties can no longer be husband and wife. Divorce was unknown to the old
textual Hindu law of marriage. Manu declared that a wife cannot be separated
from her husband either by sale or by abandonment because marital tie could not
be severed under any circumstances whatsoever. Manu did not approve of the
dissolution of marriage in any condition.

Dissolution of Marriage

 Grounds available for both

 Adultery:
 Cruelty:
 Desertion:
 Conversion:
 Unsoundness of mind:
 Venereal disease:
 Renunciation of the world:
 Presumption of death:
 Non-resumption of cohabitation after the decree of judicial
separation:
 Non-compliance with the decree of restitution of conjugal rights:

 Grounds available for wife

 Bigamy:
 Rape, Sodomy and bestiality:
 Maintenance decreed to Wife:
 Repudiation of Marriage by Wife:

Alternate Relief

Section 13A of the Hindu Marriage Act, 1955 states “In any proceeding under this
Act, on a petition for dissolution of marriage by a decree of divorce, except in so
far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and
(vii) of sub-section (1) of Section 13, the court may, if considers it just to do
having regard to the circumstances of the case, pass instead a decree for judicial
separation”.

Divorce by mutual consent

25
Since Divorce is the last remedy available to put an end to the marital tie, the
parties can decide to separate amicably, divorce petition may be submitted by
any one of the spouses to the District Court on any one of the grounds given in
Section 13 of the Act to take divorce on mutual consent. Divorce by mutual
consent was not incorporated in the original Act of 1955. It has been inserted in
the Section 13-B by the Hindu Marriage (Amendment) Act, 1976.

 parties living separately for a period of one year or more

 not able to live together
 mutual agreement in dissolving the marriage
 consent of the parties has been obtained

Distinction between judicial separation and divorce

 The relationship of husband and wife stands suppressed, while in Divorce

the relationship of husband and wife ceases to exist
 Temporarily suspends the marital rights and duties of parties to marriage
for some time by Court, while Divorce puts an end to the marital relationship
between the parties
 The object is the hope of adjustment, reconciliation and reunion of the
spouses, while in Divorce, the object is to give the last resort
 The parties to the marriage cannot remarry, while in Divorce, the parties are
entitled to get another marriage of his/her choice
 Original marital relationship can be restored, while in Divorce, the original
marital status cannot be restored
 After obtaining the judicial separation, the wife can file and succeed for the
maintenance, while in Divorce, the divorced woman cannot file for the
maintenance under Hindu Adoption and Maintenance Act
 It is a lesser remedy than divorce, but in Divorce, it is stronger, drastic and
last remedy than judicial separation

Presentment of petition for divorce

Under Section 14 of the Hindu Marriage Act, 1955, no Court shall entertain a

petition for divorce before expiration of a period of one year from the date of
marriage, however this section also provides that the Court may entertain petition
for divorce before one year on the ground of exceptional hardship to the
petitioner or exceptional depravity of the respondent.

In the case of Meghanatha Nayyar v. Smt. Susheela, the Madras High Court had
observed that “Section 14 provides restrictions presumably designed to prevent
party from taking recourse to legal proceedings before the parties have made real
effort to save their marriage from disaster. It is founded on public policy because
marriage is the foundation of civil society and no part of the laws and constitution
of a country can be of more vital importance to the subject than those which
regulated the manner and conditions of forming and if necessary, of dissolving
marriage contract.”

Divorced persons when may marry again

Section 15 of the Hindu Marriage Act, 1955 provides: “When a marriage has been
dissolved by a decree of divorce and either there is no right of appeal against the
decree or, if there is such a right of appeal, the time for appealing has expired
without an appeal have been presented, or an appeal has been presented but has
been dismissed, it shall be lawful for either party to the marriage to marry again.”

Punishment of Bigamy and other matrimonial offences

Section 17 of the Hindu Marriage Act, 1955 states: “Any marriage between two
Hindus solemnized after the commencement of this Act is void if on the date of
such marriage either party had a husband or wife living; and the provisions of
Sections 494 and 495 of the Indian Penal Code, 18600, shall apply accordingly.”

26
In Gopal Lal V. State of Rajasthan, it has been observed that where a spouse
contracts a second marriage while the first marriage is still subsisting, the
spouse would be of guilty of bigamy under Section 17 of the Act and also under
Section 494 IPC if it is proved that the second marriage was a valid one in the
sense that the necessary ceremonies required by law or by custom have been
actually performed.

Maintenance and Alimony

Section 24 – Maintenance Pendente Lite

Difference between Section 24 of Hindu Marriage Act, 1955 and Section 18 of

Hindu Adoptions and Maintenance Act, 1956

Section 25 – Permanent Alimony and Maintenance

Difference between Maintenance pendente lite under Section 24 and the

permanent alimony under Section 25

Section 27 – Disposal of Property

Case Laws:

 Amar Kanta Sen v. Sovana Sen, AIR 1960 Cal. 438 159
 Padmja Sharma v. Ratan Lal Sharma, AIR 2000 SC 1398

Customary Provisions and Legislative Provisions Relating to Dowry Prohibition

THE DOWRY PROHIBITION ACT, 1961

Other Laws

 Code Of Criminal Procedure, 1973

 Indian Evidence Act, 1872
 Indian Penal Code, 1860

23 AMOUNT OF MAINTENANCE
24 CLAIMANT TO MAINTENANCE SHOULD BE A HINDU
25 AMOUNT OF MAINTENANCE MAY BE ALTERED ON CHANGE OF
CIRCUMSTANCES
26 DEBTS TO HAVE PRIORITY
27 MAINTENANCE WHEN TO BE A CHARGE
28 EFFECT OF TRANSFER OF PROPERTY ON RIGHT TO MAINTENANCE
29 REPEALS
30 SAVINGS
CASE LAWS:

 Brijendra v. State of M.P., AIR 2008 SC 1058

: CONTRACT LAW – I – REVISION STUDY NOTES FOR LL.B FIRST YEAR

UNIT – I
Introduction to the Indian Contract Act, 1872
A contract may be defined as a legally binding agreement or, in the words of Sir
Frederick Pollock: “A promise or set of promises which the law will enforce.”

27
Section 2(h) of Indian Contract Act, 1872 defines contract as “An agreement
enforceable by law”. Thus, formation of a contract there must be an agreement,
and the agreement should be enforceable by law.

The agreement will create rights and obligations that may be enforced in the
courts. The normal method of enforcement is an action for damages for breach of
contract, though in some cases the court may order performance by the party in
default.

Enforceability of Contracts

 Void Contracts: A ‘void contract’ is one where the whole transaction is

regarded as a nullity. It means that at no time has there been a contract
between the parties. Any goods or money obtained under the agreement must
be returned. Where items have been resold to a third party, they may be
recovered by the original owner.
 Voidable Contracts: A contract which is voidable operates in every respect
as a valid contract unless and until one of the parties takes steps to avoid it.
Anything obtained under the contract must be returned, in so far as this is
possible. If goods have been resold before the contract was avoided, the
original owner will not be able to reclaim them.
 Unenforceable Contracts: An unenforceable contract is a valid contract but
it cannot be enforced in the courts if one of the parties refused to carry out its
terms. Items received under the contract cannot generally be reclaimed.

Agreement, Contract and Proposal

Agreement definition [SECTION 2(e)]
Agreement is defined as “every promise and every set of promises forming the
consideration for each other”. And a promise is defined as an accepted proposal.

WHAT AGREEMENTS ARE CONTRACTS  [ SECTION 10 ]

All agreements are contracts if they are made by the free consent of parties
competent to contract, for a lawful consideration and with a lawful object, and are
not hereby expressly declared to be void.

AGREEMENT BECOMES A CONTRACT IF BELOW CONDITIONS ARE MET:

1. There is some consideration

2. The parties are competent to contract
3. Their consent is free
4. Their object is lawful

Proposal or Offer
PROPOSAL DEFINITION  [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 to such act or
abstinence, he is said to make a proposal.

PROPOSAL TERMINOLOGY  [SECTION 2(C)]

The person making the proposal is called the “promisor”, and the person
accepting the proposal is called the “promisee”

Communication of Proposal

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COMMUNICATION, ACCEPTANCE AND REVOCATION OF PROPOSALS
[SECTION 3]
The communication of proposals, the acceptance of proposals, and the
revocation of proposals and acceptances, respectively, are deemed to be made
by any act or omission of the party proposing, accepting or revoking, by which he
intends to communicate such proposal, acceptance or revocation, or which has
the effect of communicating it.

Thus, a proposal may be communicated in any way which has the effect of laying
before the offeree the willingness to do or abstain. It may for example be done by
words of mouth, or by writing, or even by conduct.

Promises, express and implied [SECTION 9]

In so far as the proposal or acceptance of any promise is made in words, the
promise is said to be express. In so far as such proposal or acceptance is made
otherwise than in words, the promise is said to be implied.

An offer which is expressed by conduct is called an implied offer and the one

which is expressed by words, written or spoken, is called an express offer.

A fire broke out in the defendant’s farm. He believed that he was entitled to the
free services of Upton Fire Brigade and, therefore, summoned it. The Brigade put
out the fire. It then turned out that the defendant’s farm was not within free
service zone of the Upton, which therefore, claimed compensation for the
services. The court said: “The truth of the matter is that the defendant wanted the
services of Upton; he asked for the services of Upton and Upton, in response to
that request, provided the services. Hence, the services were rendered on an
implied promise to pay for them.

Communication when complete [SECTION 4]

The communication of a proposal is complete when it comes to the knowledge of
the

person to whom it is made.

An offer cannot be accepted unless and until it has been brought to the
knowledge of the person to whom it is made. This principle enabled the
Allahabad High Court in Lalman v Gauri Datt to deal with a matter involving a very
crucial question on this point.

Defendant’s nephew absconded from home. He sent his servant in search of the
boy. When the servant had left, the defendant by handbills offered to pay Rs.501
to anybody discovering the boy. The servant came to know of this offer only
when he had already traced the missing child. He, however, brought an auction to
recover the reward. But his action failed. BAERJI J explains: “In my opinion a suit
like the present can only be founded on a contract. In order to constitute a
contract, there must be an acceptance of an offer and there can be no acceptance
unless there is knowledge to the offer”.

Intention to Contract
There is no provision in the Indian Contract Act requiring that an offer or its
acceptance should be made with the intention of creating a legal relationship. But
in English law it is a settled principle that “to create a contract there must be a
common intention of the parties to enter into legal obligations.”

29
Case law: Balfour v Balfour

The defendant and his wife were enjoying leave in England. When the defendant
was due to return to Ceylon, where he was employed, his wife was advised, by
reason of her health, to remain in England. The defendant agreed to send her an
amount of 30 pound a month for the probable expenses of maintenance. He did
send the amount for some time, but afterwards differences arose which resulted
in their separation and the allowance fell into arrears. The wife’s action to recover
the arrears was dismissed.

Family & Social matters

All that the law requires is that the parties must intend legal consequences. In the
case of McGregor v McGregor, illustration of a binding engagement between a
husband and wife. Here a husband and wife withdrew their complaints under the
agreement by which the husband promised to pay her an allowance and she to
refrain from pledging his credit, the agreement was held to be a binding contract.

Business matters
Supreme Court’s view
The Supreme Court noted the general proposition that in addition to the existence
of an agreement and the presence of consideration there is also the third
contractual element in the form of intention of the parties to create legal relations.

Letters of intent
A letter of intent merely indicates a party’s intention to enter into a contract on
the lines suggested in the letter. It may becomes a preclude to a contract.
However, where a letter stated that it would be followed by a detailed purchase
order which carried an arbitration clause, it was held that the letter was not a
supply order and the arbitration clause contained in it did not by itself fructify
into an arbitration agreement.

General Offers
Acceptance by performing conditions, or receiving consideration [SECTION 8]
Performance of the conditions of a proposal, or the acceptance of any
consideration for a reciprocal promise which may be offered with a proposal, is
an acceptance of the proposal.

Carlil v Carbolic Smoke Ball Co

A company offered by advertisement to pay 100 pound to anyone “who contracts

the increasing epidemic influenza, colds or any disease caused by taking cold,
after having used the ball according to printed directions.” It was added that 1000
pound is deposited with the Alliance Bank showing our sincerity in the matter”.
The plaintiff used the smoke balls according to the directions but she
nevertheless subsequently suffered from influenza. She was held entitled to
recover the promised reward.

General offer of continuing nature

Where a general offer is of continuing nature, as it was, for example, in the Smoke
Ball case, it will be open for acceptance to any number of persons until it is
retracted. But where an offer requires some information as to a missing thing, it
is closed as soon as the first information comes in.

Offer and Invitation to Treat

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An offer should be distinguished from an invitation to receive offers. When a man
advertises that he has got a stock of books to sell, or houses to let, there is no
offer to be bound by any contract. “Such advertisements are offers to negotiate –
offers to receive offers – offers to chaffer”.

Harvey v Facey

The plaintiff relegraphed to the defendants, writing: “Will you sell us Bumper Hall
Pen? Telegraph lowest cash price”. The defendants replied also by telegram:
“Lowest price for Bumber Hall Pen, 900 pound.” The plaintiff immediately sent
their last telegram stating: “We agree to buy Bumper Hall Pen for 900 pound
asked by you.” The defendants refused to sell the plot.

The Lordships pointed out that in their first telegram, the plaintiffs asked two
questions, first, as to the willingness to sell and, second, as to the lower price.
The defendants answered only the second, and gave only the lowest price. They
reserved their answer as to the willingness to sell. Thus, they made no offer. The
last telegram of the plaintiffs was an offer to buy, but that was never accepted by
the defendants.

 Catalogues and display of goods: A shopkeeper’s catalogue of prices is

not an offer, only an invitation to offer.
 Announcement to hold auction: An auctioneer’s announcement that
specified goods will be sold by auction on a certain day is not an offer to hold
the auction.
 Definiteness of proposal: A classified advertisement to the effect: “cocks
and hens 25s each” has been held to be not an offer to sell.
 Free distribution of articles: Not a contract of sale

Acceptance – Section 2(b)

Introduction of Acceptance – Sec. 2(b)
When the person to whom the proposal is made signifies his assent thereto, the
proposal is said to be accepted. A proposal, when accepted, becomes a promise.

Thus “acceptance” is the assent given to a proposal, and it has the effect of
converting the proposal into promise.

This is another way of saying that an agreement is an accepted proposal. Every

agreement, in its ultimate analysis, is the result of a proposal from one side and
its acceptance by the other.

There are three factors in Acceptance:

1. Communication to Offeror
2. Communication to Acceptor
3. When Communication is not necessary

Communication of Acceptance
ACCEPTANCE BY EXTERNAL MANIFESTATION OR OVERT ACT.
SHAH J says “An agreement does not result from a mere state of mind: intent to
accept an offer or even a mental resolve to accept an offer does not give rise to a
contract. There must be… some external manifestation of that intent by speech,
writing or other act.”

Brogden v Metropolitan Railway co.

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B had been supplying coal to a railway company without any formal agreement. B
suggested that a formal agreement should be drawn up. The agents of both the
parties met and drew up a draft agreement. It had some blanks when it was sent
to B for his approval. He filled up the blanks including the name of an arbitrator
and then returned it to the company. The agent of the company put the draft in
his drawer and it remained there without final approval having been signified. B
kept up his supply of coals but on the new terms and also received payment on
the new terms. A dispute having arisen B refused to be bound by the agreement.

ACCEPTANCE BY CONDUCT
Mere mental assent to an offer does not conclude a contract either under the
Indian Contract Act or in English Law.

COMMUNICATION TO OFFEROR HIMSELF

Acceptance must be communicated to the offeror himself. A communication to
any other person is as ineffectual as of no communication has been made.

Caselaw: Felthouse v Bindley – Offer cannot Impose Burden of Refusal

Facts – “The plaintiff offered by means of a letter to purchase his nephew’s

horse. The letter said: “If I hear no more about the horse, I consider the horse
mine at pount 33.15s”. To this letter, no reply was sent. But the nephew told
the defendant, his auctioneer  not to sell the horse as it was already sold to his
uncle. The auctioneer by mistake put up the horse for action and sold it. The
plaintiff sued the auctioneer on the ground that under the contract the horse had
become his property and, therefore, defendant’s unauthorized sale amounted to
conversion. But the action failed.”

COMMUNICATION TO ACCEPTOR HIMSELF

Communication of acceptance should be from a person who has the authority to
accept. Information received from an unauthorised person is ineffective.

Caselaw: Powell v Lee

Facts – “The plaintiff was an applicant for the headmaster-ship of a school. The

managers passed a resolution appointing him, but the decision was not
communicated to him. One of the members, however, in his individual capacity
informed him. The managers cancelled their resolution and the plaintiff sued for
breach of contract.”

WHEN COMMUNICATION NOT NECESSARY

In certain cases, communication of acceptance is not necessary. The offeror may
inform a particular mode of acceptance, then all that the acceptor as to do is to
follow that particular mode. 

Caselaw: Carlil v Carbolic Smoke Ball

BOWEN LJ observed as: “But there is this clear gloss to be made upon that
doctrine, that as notification of acceptance is required for the benefit of the
person who makes the offer, he may dispense with notice to himself… and there
can be no doubt that where the offeror expressly or impliedly intimates a
particular mode of acceptance as sufficient to make the bargain binding it is only
necessary for the other person to follow the indicated method of acceptance; and
if the person making the offer expressly or impliedly intimates in his offer that it
will be sufficient to act on the proposal without communicating acceptance of it

32
to himself, performance of the condition is a sufficient acceptance without
notification”.

MODE OF COMMUNICATION
Acceptance should be made in prescribed manner

Acceptance has to be made in the manner prescribed or indicated by the offeror.

An acceptance given in any other manner may not be effective. particularly where
the offeror clearly insists that the acceptance shall be made in the prescribed
manner. For example,

A offered to buy flour from B requesting that acceptance should be sent by the
wagon which brought the offer. B sent his acceptance by post, thinking that this
would reach the offeror more speedily. But the letter arrived after the time of the
wagon. A was held to be not bound by the acceptance.

Absolute and Unqualified

Section 7: Acceptance Must Be Absolute
In order to convert a proposal into a promise, the acceptance must — (1) be
absolute and unqualified, (2) be expressed in some usual and reasonable manner,
unless the proposal prescribes the manner in which it is to be accepted.
EFFECT OF DEPARTURE FROM PRESCRIBED MANNER
A departure from that manner does not of itself invalidate the acceptance. A duty
is cast on the offeror to reject such acceptance within reasonable time.

1. a minor departure from the prescribed mode of communication should not

upset the fact of acceptance provided that the communication is made in an
equally expeditious way.
2. for, in a case, where the offeree was told to reply by ‘by return of post’ it
was said by the Court of Exchequer Chamber that a reply sent by some other
method equally expeditious would constitute a valid acceptance.

Where no manner prescribed: reasonable and usual manner

Where no mode of acceptance is prescribed, acceptance must “be expressed in
some usual and reasonable manner”. As per Indian Contract Law, post is a
reasonable mode.
WHEN CONTRACT CONCLUDED (POSTAL COMMUNICATION)
When the parties are at a distance and are contracting through post or by
messengers, the question arises when is the contract concluded.

Household Fire & Accident Insurance Co v Grant

The defendant in this case had applied for allotment of 100 shares in the plaintiff
company. A letter of allotment addressed to the defendant at his residence was
posted in due time, but it never reached the defendant. Nevertheless he was held
bound by the acceptance.

SECTION 4 – COMMUNICATION WHEN COMPLETE

The only difference that the section makes is in the position of the acceptor. In
England when a letter of acceptance is posted, both the offeror and the acceptor
become irrevocably bound. But in India, the acceptor does not become bound by
merely posting his acceptance. He becomes bound only when his acceptance
“comes to the knowledge of the proposer”. The gap of time between the posting

33
and the delivery of the acceptance can be utilised by the acceptor for revoking
his acceptance by a speedier communication which will overtake the acceptance.

Counter proposals
 An acceptance containing additions, limitations, or other modifications shall be
rejection of the offer and shall constitute a counter-offer.

However, a reply to an offer which purports to be an acceptance but which

contains additional or different terms which do not materially alter the terms of
the offer shall constitute an acceptance unless the offeror promptly objects to the
discrepancy; if he does not object, the terms of the contract shall be the terms of
the offer with the modifications contained in the acceptance.
If the proposal prescribes a manner in which it is to be accepted, and the
acceptance is not made in such manner, the proposer may, within a reasonable
time after the acceptance is communicated to him, insist that his proposal shall
be accepted in the prescribed manner, and not otherwise; but if he fails to do so,
he accepts the acceptance.
PARTIAL ACCEPTANCE
Acceptance should be of the whole of the offer. The offeree cannot accept a part
of its terms which are favourable to him and reject the rest. Such an acceptance
is another kind of counter proposal and does not bind the offeror.
INQUIRY INTO TERMS OF PROPOSAL
A mere inquiry into the terms of a proposal is not the same thing as a counter-
proposal. On acceptance of the proposal, the contract will be created on the basis
of the terms and conditions of the original proposal including arbitration clause.

ACCEPTANCE WITH CONDITION SUBSEQUENT

If an acceptance carries a condition subsequent, it may not have the effect of a
counter-proposal. Thus, where an acceptance said: “terms accepted, remit cash
down Rs.25,000 by February 5, otherwise acceptance subject to withdrawal, this
was not a counter-proposal, but an acceptance with a warning that if the money
was not sent the contract would be deemed to have been broken.

ACCEPTANCE OF COUNTER PROPOSAL

Even “where the acceptance of a proposal is not absolute and unqualified the
proposer may become bound, if, by his subsequent conduct, he indicates that he
has accepted the qualifications set up”.

Hargopal v People’s Bank of Northern India

An application for shares was made conditional on an undertaking by the bank

that the applicant would be appointed a permanent director of the local branch.
The shares were allotted to him without fulfilling the condition. The applicant
accepted the position as a shareholder by accepting dividends, filing a suit to
recover it and by pledging his shares.

It was, therefore, held “that he could not content that the allotment was void on
the ground of non-fulfillment of the condition as he had by his conduct waived
the conditions.

PROVISIONAL ACCEPTANCE

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An acceptance is sometimes made subject to final approval. A provisional
acceptance of this kind does not ordinarily bind either party until the final
approval is given.

ACCEPTANCE AND WITHDRAWAL OF TENDERS

A tender is in the same category as a quotation of prices. It is not an offer. When
a tender is approved, it is converted into a standing offer. A contract arises only
when an order is placed on the basis of the tender. These principles were laid
down by the Bombay High Court in the well-known case of Bengal Coal Co Ltd v
Homee Wadia & Co.

Lapse of Offer

1. Notice of revocation
2. Lapse of Time
3. By failure to accept condition precedent
4. By death or insanity of offerer

Revocation of Acceptance
Section 5: Revocation of proposals and acceptances
A proposal may be revoked at any time before the communication of its
acceptance is complete as against the proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the

acceptance is complete as against the acceptor, but not afterwards.

NOTICE OF REVOCATION
Withdrawal before expiry of fixed period

Where an offeror gives the offeree an option to accept within a fixed period, he
may withdraw it even before the expiry of that period.

CASE LAW: Alfred Schonlank v. Muthunayna Chetti

The defendant left an offer to sell a quantity of indigo at the plaintiff’s office
allowing him eight days’ time to give his answer. On the 4th day however the
defendant revoked his proposal. The plaintiff accepted it on the 5th day. Holding
the acceptance was useless.

Agreement to keep Offer open for Specified Period

Where the agreement to keep the offer open for a certain period of time is for
some consideration, the offeror cannot cancel it before the expiry of that period.

CASE LAW: Mountford v Scott

Communication of Revocation should be from Offerer Himself

It is necessary that the communication of revocation should be from the offeror

or from his duly authorised agent. But it has been held in the case of Dickinson v.
Dodds, that it is not enough if the offeree knows reliably that the offer has been
withdrawn.

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Revocation of General Offers

Where an offer of a general nature is published through newspapers, it can be

withdrawn by the same media and the revocation will be effective even if a
particular person, subsequent to the withdrawl, happened to perform its terms in
ignorance of the withdrawal.

Communication of Revocation should be from Offerer Himself

It is necessary that the communication of revocation should be from the offeror

or from his duly authorised agent. But it has been held in the case of Dickinson v.
Dodds, that it is not enough if the offeree knows reliably that the offer has been
withdrawn.

Revocation of General Offers

Where an offer of a general nature is published through newspapers, it can be

withdrawn by the same media and the revocation will be effective even if a
particular person, subsequent to the withdrawl, happened to perform its terms in
ignorance of the withdrawal.

In the case of an auction, “the assent is signified on the part of the seller by
knocking down the hammer”. A bid may be retracted before the hammer is down.

CASE LAW: Union of India v Bhimsen Walaiti Ram

A liquor ship was knocked down to a bidder at a public auction. This was subject
to the confirmation by the Chief Commissioner who had the power before
granting the licence to inquire into the financial condition of the bidder. The
bidder had to pay one-sixth part of the price immediately and in case of any
default on his part the Government had the power to re-auction the shop and the
shortfall, if any, was recoverable from the bidder. He failed to pay one-sixth part
and, therefore, the Chief Commissioner did not confirm the bid and ordered
resale. Resale realized much less than the original bid and the question of
bidder’s liability to pay the shortfall arose.

The court said: It is not disputed that the Chief Commissioner had disapproved of
the bid offered by the respondent. If the Chief Commissioner had granted
sanction in favor of the respondent, then there would have been a completed
transaction and he would have been liable for any shortfall on the resale.

LAPSE OF TIME
An offer lapses on the expiry of the time, if any, fixed for acceptance. Where an
offer says that it shall remain open for acceptance up to a certain date, it has to
be accepted within that date. For example, where an offer was to last until the end
of March and the offeree sent a telegram accepting the offer on 28th March which
was received by the offeror on 30th March, it was held that the option was duly
exercised.

FAILURE TO ACCEPT CONDITION PRECEDENT

Where the offer is subject to a condition precedent, it lapses if it is accepted
without fulfilling the condition. Where a salt lake was offered by way of lease on
deposit of a sum of money within a specified period, and the intended lessee did
not deposit the amount for 3 long years, it was held that this entailed cancellation
of the allotment.
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DEATH OR INSANITY OF OFFEROR
An offer lapses on the death or insanity of the offeror, provided that the fact
comes to the knowledge of the offeree before he makes his acceptance.

In the case of Dickinson v Dodds, it was held that an offer cannot be accepted
after the death of the offeror.

SECTION 6: Revocation how made

A proposal is revoked —

1. by the communication of notice of revocation by the proposer to the other

party;
2. by the lapse of the time prescribed in such proposal for its acceptance or,
if no time is so prescribed, by the lapse of a reasonable time, without
communication of the acceptance;
3. by the failure of the acceptor to fulfill a condition precedent to acceptance;
or
4. by the death or insanity of the proposer, if the fact of his death or insanity
comes to the knowledge of the acceptor before acceptance.

Revocation of Acceptance
According to English law an acceptance once made is irrevocable. In the words
of Anson: “Acceptance is to offer what a lighted match is to a train of gunpowder.
Both do something which cannot be undone. This rule is obviously confined in its
operation only to postal acceptance. It is suggested in Anson that in other cases
“an acceptance can be revoked at any time before acceptance is complete,
provided, of course, that the revocation itself is communicated before the
acceptance arrives.
In India, on the other hand, acceptance is generally revocable. An acceptor may
cancel his acceptance by a speedier mode of communication which will reach
earlier than the acceptance itself. Section 5 is the relevant provision.
Standard Form Contracts

 Exploitation of weaker party

 Protective Devices
 Reasonable notice
 Notice should be contemporaneous with contract
 Theory of fundamental breach
 Strict construction
 Liability in tort
 Unreasonable terms

Consideration [SECTION 2 (d) and SECTION 25]

Section 25 of the Indian Contract Act, 1872 starts with a declaration that “an
agreement made without consideration is void”. Consideration is a price of the
promise.

Definitions
In the words of Pollock, “Consideration is the price for which the promise of the
other is bought, and the promise thus given for value is enforceable.” Another
simple definition is by Justice Patterson: “Consideration means something which
is of some value in the eyes of the law….. It may be some benefit to the plaintiff or
some detriment to the defendant.”

Section 2(d) of the Indian Contract Act defines consideration as:

37
When, at the desire of the promisor, the promisee or any other person has done
or abstained from doing or does or abstains from doing, or promises to do or to
abstain from doing, something, such act or abstinence or promise is called a
consideration for the promise.

It means price for which the promise of the other is bought – a valuable
considerations a price of the promise – some of value received by the promisee
as an inducement of the promise quid pro quo ( something in return) – may be of
some benefit to the plaintiff or some detriment to the defendant.

Abdul Aziz Vs. Masum Ali

A promise to subscribe Rs.500 for re-building a mosque – not fulfilled – secretary
of mosque committee filed a suit for enforcement of promise – Held, the promise
not enforceable as no consideration in the sense of benefit for the promisor – the
secretary of the committee suffered no detriment as nothing has been done to
carry out the repairs – no contract.

Gousmohoddin Vs. Appasahib

Suit filed by landlord L against tenant T for possession of premises and arrears of
rent – suit decreed in favour – in execution, attachment order of movable property
of T – In consideration of T agreeing not to appeal against the decree, L allowed
one month’s time to pay – Held, valid consideration – valid agreement.

Essential Elements of a Valid Consideration

1. It must move at the desire of promisor

2. It may move from promisee or any other person (privity of consideration)
3. It must be real, not illusory
4. It need not be adequate
5. It may be past, present or future
6. It must not be illegal, immoral or opposed to public policy

PROMISSORY ESTOPPEL
The doctrine of promissory estoppel prevents one party from withdrawing a
promise made to a second party if the latter has reasonably relied on that
promise.

The doctrine of promissory estoppel was first developed in Hughes v.

Metropolitan Railway Co [1877] but was lost for some time until it was resurrected
by Lord Denning in the controversial case of Central London Property Trust Ltd v.
High Trees House Ltd [1947].

Promissory estoppel requires:

1. an unequivocal promise by words or conduct

2. evidence that there is a change in position of the promisee as a result of
the promise (reliance but not necessarily to their detriment)
3. inequity if the promisor were to go back on the promise

In general, estoppel is ‘a shield not a sword’ — it cannot be used as the basis of

an action on its own. It also does not extinguish rights.

The general rule is that when one party agrees to accept a lesser sum in full
payment of a debt, the debtor has given no consideration, and so the creditor is
still entitled to claim the debt in its entirety. This is not the case if the debtor

38
offers payment at an earlier date than was previously agreed, because the benefit
to the creditor of receiving payment early can be thought of as consideration for
the promise to waive the rest of the debt. This is the rule formulated in Pinnel’s
Case (1602)

“AT THE DESIRE OF THE PROMISOR”

An act or abstinence which is to be a consideration for the promise must be done
or promised to be done in accordance with the desire of the promisor.

Durga Prasad v Baldeo

Facts: The plaintiff constructed some shops in a market under the orders of the
Collector. The defendant occupied a shop and promised to pay some commission
to the plaintiff and did not pay. In an action against the defendant, it was held not
maintainable.

Court Held: The only ground for the making of the promise is the expense
incurred by the plaintiff in establishing the Ganj (market) but it is clear that
anything done in that way was not ‘at the desior’ of the defendants so as to
constitute consideration. The act was the result not of the promise but of the
Collector’s order.

Thus to constitute a good consideration, act or abstinence must be at the desire

of the promisor.

ACTS DONE AT REQUEST:

An act done at the promisor’s desire furnishes a good consideration for his
promise even though it is of no personal significance or benefit to him.

Kedar Nath v Gorie Mohamed

It was thought advisable to erect a town hall at Howrah provided sufficient

subscription could be got together for the purpose. To this end the
Commissioners of Howrah municipality set out to work to obtain necessary funds
by public subscription. The defendant was a subscriber to this fund for Rs.100
having signed his name in the subscription book for the amount. On the faith of
the promised subscriptions, the plaintiff entered into a contract with a contractor
for the purpose of building the hall. But the defendant failed to pay the amount
and contended that there was no consideration for this promise.

He was held liable. Persons were asked to subscribe knowing the purpose for
which the money was to be applied, they knew that on the faith of their
subscription an obligation was to be incurred to pay the contractor for the work.
The promise is: ‘In consideration of your agreeing to enter into a contract to
erect, I undertake to supply money for it.’ The act of the plaintiff in entering into
contract with the contractor was done at the desire of the defendant (the
promisor) so as to constitute consideration within the meaning of Section 2(d).

PROMISES OF CHARITABLE NATURE

Doraswami Iyer v Arunachala Ayyar

Facts: The repair of a temple was in progress. As the work proceeded, more
money was required and to raise this money subscriptions were invited and a
subscription list raised. The defendant put himself down on the list for Rs. 125

39
and it was to recover this sum that the suit was filed. The plaint found the
consideration for the promise as a reliance on the promise of the subscriber that
they have incurred liabilities in repairing the temple.

Judgment: The learned judge held that there was no evidence of any request by
the subscriber to the plaintiff to do the temple repairs. Since, the temple repairs
were already in progress when the subscriptions were invited. The action was not
induced by the promise to subscribe but was rather independent of it. Hence, no
recovery was allowed.

UNILATERAL PROMISES
A unilateral promise is a promise from one side only and is intended to induce
some action by the other party. The promisee is not bound to act, for he gives no
promise from his side. But if he carries out the act desired by the promisor, he
can hold the promisor to his promise. “An act done at the request of the offeror in
response to his promise is consideration, and consideration in its essence is
nothing else but response to such a request.”

Abdul Aziz v Masum Ali

The defendant promised Rs.500  to a fund started to rebuild a mosque but
nothing had been done to carry out the repairs and reconstruction. The
subscriber was, therefore, held not liable.

REVOCATION OF UNILATERAL PROMISES

Errington v Errington

Facts: The owner of a house had mortgaged it. The house was in the occupation
of his son and daughter-in-law. He told them that the house would become their
property if they paid off the mortgage debt in installments and they commenced
payment.

Judgement: The father’s promise was a unilateral contract, a promise of the

house in return for their act of paying the installments. It could not be revoked by
him once the couple entered on performance of the act, but it would cease to bind
him if they left it incomplete and unperformed.

PROMISSORY ESTOPPEL AND GOVERNMENT AGENCIES

InPournami Oil Mills v State of Kerala, the Government was not permitted to go
back on its earlier promise of wider exemption from sales tax in pusuance of
which certain industries were set up. A subsequent notification curtailing the
exemption was held to be applicable to industries established after the
notification. A promise which is against public policy or in violation of a statutory
prohibition cannot be the foundation of an estoppel.

ESTOPPEL OF LICENSEE
A person who had acquired title to the land of a Council by adverse possession,
agreed subsequently to hold the same under a term license from the Council. On
the expiry of the term, the Council told him to hand over possession  He tried to
assert his title by adverse possession. He was not allowed to do so. Whatever
rights he acquired became substituted under the new arrangement which he
voluntarily accepted. The new arrangement constituted a promissory estoppel
against him.

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Privity of  Contract and of Consideration
“PROMISEE OR ANY OTHER PERSON”
It means that as long as there is a consideration for a promise, it is immaterial
who has furnished it. It may move from the promisee, or, if the promisor has no
objection, from any other person.

Dutton v Poole

Facts: A person had a daughter to marry and in order to provide her a marriage
portion, he intended to sell a wood of which he was possessed at the time. His
son (the defendant) promised that if “the father would forbear to sell at his
request he would pay the daughter £1000”. The father accordingly forbore but the
defendant did not pay. The daughter and her husband sued the defendant for the
amount.

Judgment: The court held that if a man should say, ‘Give me a horse, I will give
your son £10’, the son may bring the action, because the gift was upon the
consideration of a profit to the son, and the father is obliged by natural affection
to provide for his children. There was such apparent consideration of affection
from the father to his children, for whom nature obliges him to provide, that the
consideration and promise to the father may well extend to the children.

The whole object of the agreement was to provide a portion to the plaintiff. It
would have been highly inequitable to allow the son to keep the wood and yet to
deprive his sister of her portion. He was accordingly held liable.

POSITION OF BENEFICIARY WHO IS NOT PARTY

Tweddle v Atkinson – as per English Law

 Facts: The plaintiff was to be married to the daughter of one G and in

consideration of this intended marriage G and the plaintiff’s father entered into a
written agreement by which it was agreed that each would pay the plaintiff a sum
of the money. G failed to do so and the plaintiff sued his executors.

Court Held: Although the sole object of the contract was to secure a benefit to the
plaintiff, he was not allowed to sue as the contract was made with his father and
not with him. It was held that no stranger to the consideration can take advantage
of a contract, although made for his benefit.

The case laid the foundation of what subsequently came to be known as the
doctrine of “Privity of contract“, which means a contract is a contract between
the parties only and no third person can sue upon it even if it is avowedly made
for his benefit.

Dunlop Pneumatic Tyre Co v Selfridge & Co.

Facts: Plaintiffs (Dunlop & Co) sold certain goods to one Dew & Co and secured
an agreement from them not to sell the goods below the list price and that if they
sold the goods to another trader they would obtain from him a similar
undertaking to maintain the price list. Dew & Co sold the motor tyres to the
defendants (Selfridge & Co) who agreed not to sell the tyres to any private
customer at less than the list prices. The plaintiffs sued the defendants for breach
of this contract.

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Court Held: Assuming that the plaintiffs were undisclosed principals, no
consideration moved from them to the defendants and that the contract was
unenforceable by them. Only a person who is a party to a contract can sue on it. It
cannot be conferred on a stranger to a contract as a right to enforce the contract
in personam. Also if a person with whom a contract not under seal has been
made is to be able to enforce it, consideration must have given by him.

FUNDAMENTAL PROPOSITIONS OF ENGLISH LAW

1. Consideration must move from the promisee and the promisee only.
2. A contract cannot be enforced by a person who is not a party to it even
though it is made for his benefit.

PRIVITY OF CONSIDERATION
In India, the view is opposite of the fundamental propositions of English law.
Acording to Section 2(d), it is not necessary that consideration should be
funished by the promisee. A promise is enforceable if there is some
consideration for it and it is quite immaterial whether it moves from the promisee
or any other person.

Chinnaya v Ramayya

An old lady, by deed of gift, made over certain landed property to the defendant,
her daughter. By the terms of the deed, which was registered, it was stipulated
that an annuity of Rs.653 should be paid every year to the plaintiff, who was the
sister of the old woman. The defendant on the same day executed in plaintiff’s
favour an agreement promising to give effect to the stipulation. The annuity was
however not paid and the plaintiff sued to recover it.

It was held that the deed of gift and the defendant’s promise to pay the annuity
were executed simultaneously and, therefore, they should be regarded as one
transaction and there was sufficient consideration for that transaction.

PRIVITY OF CONTRACT
The rule of “Privity of contract” meant a stranger to contract cannot sue has
taken firm roots in the English Common Law. But it has been generally criticised.

Lord Denning observed that where a contract is made for the benefit of a third
person who has a legitimate interest to enforce it, it can be enforced by the third
person in the name of the contracting party or jointly with him or, if he refuses to
join, by adding him as a defendant. The third person has a right arising by way of
contract and his interest will be protected by law.

Beswick v Beswick

Facts: B was a coal merchant. The defendant was assisting him in his business.
B entered into an agreement with the defendant by which the business was to be
transferred to the defendant. B was to be employed in it as a consultant for his
life and after his death, the defendant was to pay to his widow an annuity of £5
per week, which was to come out of the business. After B’s death, the defendant
paid B’s widow only one sum of £5. The widow brought an action to recover the
arrears of the annuity and also to get specific performance of the agreement.

Court Held: That she was entitled to enforce the agreement. Thus, the plaintiff
was allowed to enforce the agreement in her personal capacity, although she was

42
not a party to it and it was considered not necessary to infer a trust in favour of
the plaintiff.

 Position in India: decisions following English law

 Decisions not following English law
 Supreme Court upholds Privity

EXCEPTIONS TO PRIVITY RULE

 Beneficiaries under trust or charge or other arrangements: A person in

whose favour a charge or other interest in some specific property has been
created may enforce it though he is not a party to the contract.
 Marriage settlement, partition or other family arrangements: Where an
agreement is made in connection with marriage, partition or other family
arrangement and a provision is made for the benefit of a person, he may take
advantage of that agreement although he is no party to it.
 Acknowledgement or estoppel: Where by the terms of a contract a party is
required to make a payment to a third person and he acknowledges it to that
third person, a binding obligation is incurred towards him. Acknowledgment
may be express or implied.
 Covenants running with land: The rule of privity may also be modified by
the principles relating to transfer of immovable property.

…Has Done or Abstained from Doing…”

PAST CONSIDERATION
The promise is to pay for a wholly past act and is no more than an expression of
gratitude. The past act may explain why the promise was given and may be a
motive for the promise, but furnishes no legal consideration.

McArdle, In re:

Facts: A effected certain improvements to property. The ultimate beneficiaries of

the property signed a document declaring that: “In consideration of your carrying
out certain alterations and improvements, we the beneficiaries shall repay to you
the sum of £488 in settlement of the amount spent on such improvements.

Court Held: That as the work had all been done and nothing remained to be done
by the promisee at all, the consideration was wholly past consideration and the
beneficiaries’ agreement for the repayment to her out of the estate was nudum
pactum, a promise with no consideration to support it. Thus, the action to enforce
the promise was rejected.

 Past act at request good consideration: Exception to the past

consideration in the English law is that a past act done at request will be good
consideration for a subsequent promise. If the voluntary courtesy were moved
by a request of the party that gives the promise, it will bind, for the promise.
 Other exceptions are: A promise to pay a time-barred debt and a negotiable
instrument issued for a past consideration are both valid.

POSITION IN INDIA
In India, a past consideration may arise in two ways. It may consist of services
rendered at request but without any promise at the time or it may consist of
voluntary services.

 Past voluntary service: A voluntary service means a service rendered

without any request or promise and there is a subsequent promise to pay for
the same. E.g., “If A saves B from drowning and B later promises A a reward.”
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 In India, the promise would be enforceable by virtue of Section 25(2) which
provides that a promise to compensate wholly or in part, a person who has
already voluntarily done something for the promisor is enforceable.
 Past service at request: b

PAST AND EXECUTED CONSIDERATION

EXECUTORY CONSIDERATION
“Such Act, Abstinence or Promise is called Consideration”
CONSIDERATION MUST BE OF SOME VALUE
Consideration as defined in the Act, means some act, abstinence or promise on
the part of the promisee or any other which has been done at the desire of the
promisor. E.g.,

A promises to give his new Rolls-Royce car to B, provided B will fetch it from the
garage.

The act of fetching the car cannot by any stretch of imagination be called a
consideration for the promise. Even though it is the only act, the promisor
desired the promisee to do. Such an act no doubt satisfies the words of the
definition, but it does not catch its spirit. It is for this reason that English common
law insisted that “consideration must be of some value in the eyes of the law.” It
must be real and not illusory, whether adequate or not as long as the
consideration is not unreal, it is sufficient if it be of slight value only.

VALUE NEED NOT BE ADEQUATE (ADEQUACY OF CONSIDERATION)

It is not necessary that consideration should be adequate to the promise. The
courts cannot assume the job of settling what should be the appropriate
consideration for a promise. It is up to the parties.

INADEQUACY AS EVIDENCE OF IMPOSITION

The act in Explanation 2 to Section 25 states that “inadequacy of consideration
may be taken into account by the court in determining the question whether the
consent of promisor was freely given. E.g.,

A agrees to sell a horse worth Rs.1000 for Rs.10. A denies that his consent to the
agreement was freely given. The inadequacy of the consideration is a fact which
the court should take into account in considering whether or not A’s consent was
freely given.

FORBEARANCE TO SUE
Forbearance to sue has always been regarded as valuable consideration. It
means that the plaintiff has a certain right of action against the defendant or any
other person and on a promise by the defendant, he refrains from bring the
action.

COMPROMISE GOOD IRRESPECTIVE OF MERITS

Compromise of a pending suit is a good consideration for the agreement of
compromise. But the dispute should be bona fide. A compromise is a good
consideration “irrespective of merits of the claim of either side” and even where
there is some doubt in the minds of the parties as to their respective rights.

Performance of Existing Duties

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PERFORMANCE OF LEGAL OBLIGATIONS
Consideration must be something more than what the promisee is already bound
to do. Performance of a legal duty is no consideration for a promise.

PERFORMANCE OF CONTRACTUAL OBLIGATIONS

 A. Pre-existing Contract with Promisor: Compliance with legal obligation

imposed by a contract with the promisor can be no consideration for a
promise.
 Promise to pay less than amount due: A promise to pay less than what is
due under a contract cannot be regarded as a consideration.

EXCEPTIONS TO THE RULE IN PINNEL’S CASE

1. Part-payment by Third Party: Part-payment by a third party may be a good

consideration of the whole of the debt.
2. Composition:
3. Payment before time:
4. Promissory estoppel:

Position under Indian Contract Act different

Pre-existing Contract with Third Party

CONSIDERATION AND MOTIVE

Consideration should be distinguished from motive or a pious desire to fulfil an
obligation. “Motive is not the same thing with consideration.”

Thomas v Thomas

Facts: “A testator, on the death of his death, had verbally said in front of
witnesses that he was desirous that his wife should enjoy certain premises for
her life. The executors, who were also the assignees, “in consideration of such
desire and of the premises,” agreed with the widow to convey the premises to her
provided she would pay to the executors the sum of 1 pound yearly towards the
ground rent and keep the said house in repair.

Court Held: On the question of consideration for the agreement between the
executors and the widow the court pointed out that the motive for the agreement
was, unquestionably, respect for the wishes of the testator. But that was no part
of the legal consideration for the agreement. Motive should not be confounded
with consideration. The agreement was, however, held to be binding as the
undertaking to pay the ground rent was a sufficient consideration.

Exceptions to Consideration
CONTRACTS UNDER SEAL IN ENGLISH LAW
In English law a contract under seal is enforceable without consideration. In the
words of Anson: “”English law recognises only two kinds of contract, the
contract made by deed that is under seal, which is called a deed or speciality, and
the simple contract. A contract under seal means a contract which is in writing
and which is signed, sealed and delivered.

EXCEPTIONS UNDER S.25, CONTRACT ACT – IN INDIA

25. An agreement made without consideration is void unless –

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 (1) it is in writing and registered
 (2) or is a promise to compensate for something done

1. Natural love and affection: A written and registered agreement based on

natural love and affection between near relatives is enforceable without
consideration. E.g., A family settlement between a man and his wife was made
for providing maintenance to wife. This was held to be enforceable because it
was meant for deriving satisfaction and peace of mind from family harmony.
2. Past voluntary service: A promise to compensate wholly or in part, a
person who has already voluntarily done something for the promisor, is
enforceable.
3. Time-barred debt: A promise to pay a time-barred debt is enforceable. The
promise should be in writing. It should also be signed by the promisor or by
his agent generally or specially authorised in that behalf.

GIFT ACTUALLY MADE [S. 25 (EXPLN. I)]

The provisions as to consideration do not affect, as between donor and donee,
the validity of any gift which has actually been made. A gift of movables which
has been completed by delivery and gift of immovable which has been perfected
by registration cannot be questioned as to their validity only on the ground of
lack of consideration. They may be questioned otherwise. Where a gift of
property was made by registered deed and attested by two witnesses, it was not
allowed to be questioned by the donor on the ground that she was the victim of
fraud which she was not able to establish.

Unlawful Consideration and its effect

Contractual Ability
UNIT – II
Capacity to Contract
 Minor
AGE OF MAJORITY
NATURE OF MINOR’S AGREEMENT
EFFECTS OF MINOR’S AGREEMENT

1. No Estoppel against minor
2. No liability in contract or in tort arising out of contract
3. Doctrine of Restitution
1. Minor seeking relief, compellable to restore
2. Amended provisions in Specific Relief Act, 1963

Beneficial contracts

 Contracts of marriage
 Marriage of Muslim minor girl
 Contracts of Apprenticeship
 Trade contracts not included in beneficial contracts
 Option to retire from beneficial contracts on majority

Ratification
Liability for necessaries [S. 68]

 Meaning of “Necessaries”
 Nature of Liability

Persons of Unsound Mind

 English Law

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 Position in India

Free Consent
Definition of Free Consent [S. 14]

  Vitiating factors and their effect

Coercion
DEFINITIONS [S. 15]
TECHNIQUES OF CAUSING COERCION
ACTS FORBIDDEN BY IPC
DETENTION OF PROPERTY
COMPARISON WITH ENGLISH LAW
Under Influence
DEFINITION [S. 16]
ABILITY TO DOMINATE WITH OF OTHER

 Consent under pressure

 Subtle species of fraud

RELATIONS WHICH INVOLVE DOMINATION

 Real or apparent authority

 Fiduciary relation
 Mental distress
 Urgent need of money, no distress
 Statutory compulsion, no distress

BURDEN OF PROOF
PRESUMPTION OF UNDUE INFLUENCE
1. Unconscionable bargains, inequality of Bargaining Power or Economic Duress

 Unconscionableness
 Some instances of unconscionableness
 Unconscionableness in money lending transactions
 Position of dominance necessary for presumption to arise
 Unconscionableness gifts
 Relationship of blood, marriage or adoption not since qua non
 Inequality of bargaining power
 Influence distinguished from persuation
 Economic duress by forcing renegotiation of terms
 Exploitation of the needy
 Technique of judicial intervention un unfair bargains
 Rescuing employees and others from unreasonable terms
 Natural justice

2. Contracts with Pardanashin Woman

RESCISSION [S. 19-A]
Misrepresentation
DEFINITION

1. Unwarranted Statements

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2. Breach of duty
3. Inducing mistake about subject-matter

SUPPRESSING OF VITAL FACTS

OF MATERIAL FACTS
EXPRESSION OF OPINION
REPRESENTATION OF STATE OF MIND
CHANGE OF CIRCUMSTANCES
INDUCEMENT
MEANS OF DISCOVERING TRUTH
Fraud
DEFINITION
ASSERTION OF FACTS WITHOUT BELIEF IN TRUTH
ACTIVE CONCEALMENT
MERE SILENCE IS NO FRAUD
WHEN SILENCE IS FRAUD

1. Duty to speak (Contracts uberrima fides)

2. Where silence is deceptive
3. Change of circumstances
4. Half-truths

PROMISE MADE WITHOUT INTENTION OF PERFORMING

ANY OTHER ACT FITTED TO DECEIVE
ANY ACT OR OMISSION SPECIALLY DECLARED TO BE FRAUDULENT
DISTINCTION BETWEEN FRAUD AND MISREPRESENTATION
LIMITS OF RESCISSION [SS. 19 AND 19-A]

1. By affirmation
2. By lapse of time
3. Intervention of rights of third parties

MODE OF RESCISSION
RESTITUTION
DAMAGES FOR INNOCENT MISREPRESENTATION
Mistake
 Definition of Consent [S. 13]
efinition of Mistake

 Supplementary provisions

WHAT FACTS ARE ESSENTIAL

Mistake as to Identity
ASSUMPTION OF FALSE IDENTITY
MISTAKE CAUSED BY TAKEOVER OF BUSINESS

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MISTAKE OF IDENTITY CAUSED BY FRAUD
DISTINCTION BETWEEN IDENTITY AND ATTRIBUTES
WHERE FRAUD DOES NOT LEAD TO MISTAKE OF IDENTITY
WHERE IDENTITY SPECIALLY IMPORTANT
Mistake as to Subject-matter
1. NON-EXISTENT SUBJECT-MATTER
2. MISTAKE AS TO TITLE OR RIGHTS
3. DIFFERENCE SUBJECT-MATTERS IN MIND
4. MISTAKE AS TO SUBSTANCE OF SUBJECT-MATTER

 Mistake as to quality of subject-matter as distinguished from substance

MISAPPREHENSION AS TO PARTIES’ RESPECTIVE RIGHTS

Mistake as to Nature of Promise
WHERE THE CONTRACT FAILS TO EXPRESS PARTIES’ INTENTION
DOCUMENTS MISTAKENLY SIGNED OR NON EST FACTUM
Limitations
MISTAKE OF BOTH PARTIES
2. ERRONEOUS OPINION ABOUT VALUE OF SUBJECT-MATTER
3. MISTAKE OF FACT AND NOT OF LAW
Legality of Object
Unlawful agreements
Void Agreements
Agreements against Public Policy
Wagering Agreements
Its exceptions
Contingent Contracts
Restraint of Trade [S. 27]
Exceptions
Illegal and Void Agreements
CONTRACT LAW – I – REVISION STUDY NOTES FOR LL.B FIRST YEAR
UNIT – I
Introduction to the Indian Contract Act, 1872
A contract may be defined as a legally binding agreement or, in the words of Sir
Frederick Pollock: “A promise or set of promises which the law will enforce.”

Section 2(h) of Indian Contract Act, 1872 defines contract as “An agreement

enforceable by law”. Thus, formation of a contract there must be an agreement,
and the agreement should be enforceable by law.

The agreement will create rights and obligations that may be enforced in the
courts. The normal method of enforcement is an action for damages for breach of
contract, though in some cases the court may order performance by the party in
default.

49
Enforceability of Contracts

 Void Contracts: A ‘void contract’ is one where the whole transaction is

regarded as a nullity. It means that at no time has there been a contract
between the parties. Any goods or money obtained under the agreement must
be returned. Where items have been resold to a third party, they may be
recovered by the original owner.
 Voidable Contracts: A contract which is voidable operates in every respect
as a valid contract unless and until one of the parties takes steps to avoid it.
Anything obtained under the contract must be returned, in so far as this is
possible. If goods have been resold before the contract was avoided, the
original owner will not be able to reclaim them.
 Unenforceable Contracts: An unenforceable contract is a valid contract but
it cannot be enforced in the courts if one of the parties refused to carry out its
terms. Items received under the contract cannot generally be reclaimed.

Agreement, Contract and Proposal

Agreement definition [SECTION 2(e)]
Agreement is defined as “every promise and every set of promises forming the
consideration for each other”. And a promise is defined as an accepted proposal.

WHAT AGREEMENTS ARE CONTRACTS   [ SECTION 10 ]

All agreements are contracts if they are made by the free consent of parties
competent to contract, for a lawful consideration and with a lawful object, and are
not hereby expressly declared to be void.

AGREEMENT BECOMES A CONTRACT IF BELOW CONDITIONS ARE MET:

1. There is some consideration

2. The parties are competent to contract
3. Their consent is free
4. Their object is lawful

Proposal or Offer
PROPOSAL DEFINITION  [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 to such act or
abstinence, he is said to make a proposal.

PROPOSAL TERMINOLOGY  [SECTION 2(C)]

The person making the proposal is called the “promisor”, and the person
accepting the proposal is called the “promisee”

Communication of Proposal
COMMUNICATION, ACCEPTANCE AND REVOCATION OF PROPOSALS
[SECTION 3]
The communication of proposals, the acceptance of proposals, and the
revocation of proposals and acceptances, respectively, are deemed to be made
by any act or omission of the party proposing, accepting or revoking, by which he
intends to communicate such proposal, acceptance or revocation, or which has
the effect of communicating it.

Thus, a proposal may be communicated in any way which has the effect of laying
before the offeree the willingness to do or abstain. It may for example be done by
words of mouth, or by writing, or even by conduct.

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Promises, express and implied [SECTION 9]
In so far as the proposal or acceptance of any promise is made in words, the
promise is said to be express. In so far as such proposal or acceptance is made
otherwise than in words, the promise is said to be implied.

An offer which is expressed by conduct is called an implied offer and the one

which is expressed by words, written or spoken, is called an express offer.

For example, a bid at an action is an implied offer to buy, stepping into an

omnibus, and consuming eatables at a self-service restaurant.

Case Law: Upton Rural District Council v Powell:

A fire broke out in the defendant’s farm. He believed that he was entitled to the
free services of Upton Fire Brigade and, therefore, summoned it. The Brigade put
out the fire. It then turned out that the defendant’s farm was not within free
service zone of the Upton, which therefore, claimed compensation for the
services. The court said: “The truth of the matter is that the defendant wanted the
services of Upton; he asked for the services of Upton and Upton, in response to
that request, provided the services. Hence, the services were rendered on an
implied promise to pay for them.

Communication when complete [SECTION 4]

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

An offer cannot be accepted unless and until it has been brought to the
knowledge of the person to whom it is made. This principle enabled the
Allahabad High Court in Lalman v Gauri Datt to deal with a matter involving a very
crucial question on this point.

Defendant’s nephew absconded from home. He sent his servant in search of the
boy. When the servant had left, the defendant by handbills offered to pay Rs.501
to anybody discovering the boy. The servant came to know of this offer only
when he had already traced the missing child. He, however, brought an auction to
recover the reward. But his action failed. BAERJI J explains: “In my opinion a suit
like the present can only be founded on a contract. In order to constitute a
contract, there must be an acceptance of an offer and there can be no acceptance
unless there is knowledge to the offer”.

Intention to Contract
There is no provision in the Indian Contract Act requiring that an offer or its
acceptance should be made with the intention of creating a legal relationship. But
in English law it is a settled principle that “to create a contract there must be a
common intention of the parties to enter into legal obligations.”

Case law: Balfour v Balfour

The defendant and his wife were enjoying leave in England. When the defendant
was due to return to Ceylon, where he was employed, his wife was advised, by
reason of her health, to remain in England. The defendant agreed to send her an
amount of 30 pound a month for the probable expenses of maintenance. He did
send the amount for some time, but afterwards differences arose which resulted
in their separation and the allowance fell into arrears. The wife’s action to recover
the arrears was dismissed.

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Family & Social matters
All that the law requires is that the parties must intend legal consequences. In the
case of McGregor v McGregor, illustration of a binding engagement between a
husband and wife. Here a husband and wife withdrew their complaints under the
agreement by which the husband promised to pay her an allowance and she to
refrain from pledging his credit, the agreement was held to be a binding contract.

Business matters
Supreme Court’s view
The Supreme Court noted the general proposition that in addition to the existence
of an agreement and the presence of consideration there is also the third
contractual element in the form of intention of the parties to create legal relations.

Letters of intent
A letter of intent merely indicates a party’s intention to enter into a contract on
the lines suggested in the letter. It may becomes a preclude to a contract.
However, where a letter stated that it would be followed by a detailed purchase
order which carried an arbitration clause, it was held that the letter was not a
supply order and the arbitration clause contained in it did not by itself fructify
into an arbitration agreement.

General Offers
Acceptance by performing conditions, or receiving consideration [SECTION 8]
Performance of the conditions of a proposal, or the acceptance of any
consideration for a reciprocal promise which may be offered with a proposal, is
an acceptance of the proposal.

Carlil v Carbolic Smoke Ball Co

A company offered by advertisement to pay 100 pound to anyone “who contracts

the increasing epidemic influenza, colds or any disease caused by taking cold,
after having used the ball according to printed directions.” It was added that 1000
pound is deposited with the Alliance Bank showing our sincerity in the matter”.
The plaintiff used the smoke balls according to the directions but she
nevertheless subsequently suffered from influenza. She was held entitled to
recover the promised reward.

General offer of continuing nature

Where a general offer is of continuing nature, as it was, for example, in the Smoke
Ball case, it will be open for acceptance to any number of persons until it is
retracted. But where an offer requires some information as to a missing thing, it
is closed as soon as the first information comes in.

Offer and Invitation to Treat

An offer should be distinguished from an invitation to receive offers. When a man
advertises that he has got a stock of books to sell, or houses to let, there is no
offer to be bound by any contract. “Such advertisements are offers to negotiate –
offers to receive offers – offers to chaffer”.

Harvey v Facey

The plaintiff relegraphed to the defendants, writing: “Will you sell us Bumper Hall
Pen? Telegraph lowest cash price”. The defendants replied also by telegram:
“Lowest price for Bumber Hall Pen, 900 pound.” The plaintiff immediately sent

52
their last telegram stating: “We agree to buy Bumper Hall Pen for 900 pound
asked by you.” The defendants refused to sell the plot.

The Lordships pointed out that in their first telegram, the plaintiffs asked two
questions, first, as to the willingness to sell and, second, as to the lower price.
The defendants answered only the second, and gave only the lowest price. They
reserved their answer as to the willingness to sell. Thus, they made no offer. The
last telegram of the plaintiffs was an offer to buy, but that was never accepted by
the defendants.

 Catalogues and display of goods: A shopkeeper’s catalogue of prices is

not an offer, only an invitation to offer.
 Announcement to hold auction: An auctioneer’s announcement that
specified goods will be sold by auction on a certain day is not an offer to hold
the auction.
 Definiteness of proposal: A classified advertisement to the effect: “cocks
and hens 25s each” has been held to be not an offer to sell.
 Free distribution of articles: Not a contract of sale

Acceptance – Section 2(b)

Introduction of Acceptance – Sec. 2(b)
When the person to whom the proposal is made signifies his assent thereto, the
proposal is said to be accepted. A proposal, when accepted, becomes a promise.

Thus “acceptance” is the assent given to a proposal, and it has the effect of
converting the proposal into promise.

This is another way of saying that an agreement is an accepted proposal. Every

agreement, in its ultimate analysis, is the result of a proposal from one side and
its acceptance by the other.

There are three factors in Acceptance:

1. Communication to Offeror
2. Communication to Acceptor
3. When Communication is not necessary

Communication of Acceptance
ACCEPTANCE BY EXTERNAL MANIFESTATION OR OVERT ACT.
SHAH J says “An agreement does not result from a mere state of mind: intent to
accept an offer or even a mental resolve to accept an offer does not give rise to a
contract. There must be… some external manifestation of that intent by speech,
writing or other act.”

Brogden v Metropolitan Railway co.

B had been supplying coal to a railway company without any formal agreement. B
suggested that a formal agreement should be drawn up. The agents of both the
parties met and drew up a draft agreement. It had some blanks when it was sent
to B for his approval. He filled up the blanks including the name of an arbitrator
and then returned it to the company. The agent of the company put the draft in
his drawer and it remained there without final approval having been signified. B
kept up his supply of coals but on the new terms and also received payment on
the new terms. A dispute having arisen B refused to be bound by the agreement.

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ACCEPTANCE BY CONDUCT
Mere mental assent to an offer does not conclude a contract either under the
Indian Contract Act or in English Law.

COMMUNICATION TO OFFEROR HIMSELF

Acceptance must be communicated to the offeror himself. A communication to
any other person is as ineffectual as of no communication has been made.

Caselaw: Felthouse v Bindley – Offer cannot Impose Burden of Refusal

Facts – “The plaintiff offered by means of a letter to purchase his nephew’s

horse. The letter said: “If I hear no more about the horse, I consider the horse
mine at pount 33.15s”. To this letter, no reply was sent. But the nephew told
the defendant, his auctioneer  not to sell the horse as it was already sold to his
uncle. The auctioneer by mistake put up the horse for action and sold it. The
plaintiff sued the auctioneer on the ground that under the contract the horse had
become his property and, therefore, defendant’s unauthorized sale amounted to
conversion. But the action failed.”

COMMUNICATION TO ACCEPTOR HIMSELF

Communication of acceptance should be from a person who has the authority to
accept. Information received from an unauthorised person is ineffective.

Caselaw: Powell v Lee

Facts – “The plaintiff was an applicant for the headmaster-ship of a school. The

managers passed a resolution appointing him, but the decision was not
communicated to him. One of the members, however, in his individual capacity
informed him. The managers cancelled their resolution and the plaintiff sued for
breach of contract.”

WHEN COMMUNICATION NOT NECESSARY

In certain cases, communication of acceptance is not necessary. The offeror may
inform a particular mode of acceptance, then all that the acceptor as to do is to
follow that particular mode. 

Caselaw: Carlil v Carbolic Smoke Ball

BOWEN LJ observed as: “But there is this clear gloss to be made upon that
doctrine, that as notification of acceptance is required for the benefit of the
person who makes the offer, he may dispense with notice to himself… and there
can be no doubt that where the offeror expressly or impliedly intimates a
particular mode of acceptance as sufficient to make the bargain binding it is only
necessary for the other person to follow the indicated method of acceptance; and
if the person making the offer expressly or impliedly intimates in his offer that it
will be sufficient to act on the proposal without communicating acceptance of it
to himself, performance of the condition is a sufficient acceptance without
notification”.

MODE OF COMMUNICATION
Acceptance should be made in prescribed manner

Acceptance has to be made in the manner prescribed or indicated by the offeror.

An acceptance given in any other manner may not be effective. particularly where

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the offeror clearly insists that the acceptance shall be made in the prescribed
manner. For example,

A offered to buy flour from B requesting that acceptance should be sent by the
wagon which brought the offer. B sent his acceptance by post, thinking that this
would reach the offeror more speedily. But the letter arrived after the time of the
wagon. A was held to be not bound by the acceptance.

Absolute and Unqualified

Section 7: Acceptance Must Be Absolute
In order to convert a proposal into a promise, the acceptance must — (1) be
absolute and unqualified, (2) be expressed in some usual and reasonable manner,
unless the proposal prescribes the manner in which it is to be accepted.
EFFECT OF DEPARTURE FROM PRESCRIBED MANNER
A departure from that manner does not of itself invalidate the acceptance. A duty
is cast on the offeror to reject such acceptance within reasonable time.

1. a minor departure from the prescribed mode of communication should not

upset the fact of acceptance provided that the communication is made in an
equally expeditious way.
2. for, in a case, where the offeree was told to reply by ‘by return of post’ it
was said by the Court of Exchequer Chamber that a reply sent by some other
method equally expeditious would constitute a valid acceptance.

Where no manner prescribed: reasonable and usual manner

Where no mode of acceptance is prescribed, acceptance must “be expressed in
some usual and reasonable manner”. As per Indian Contract Law, post is a
reasonable mode.
WHEN CONTRACT CONCLUDED (POSTAL COMMUNICATION)
When the parties are at a distance and are contracting through post or by
messengers, the question arises when is the contract concluded.

Household Fire & Accident Insurance Co v Grant

The defendant in this case had applied for allotment of 100 shares in the plaintiff
company. A letter of allotment addressed to the defendant at his residence was
posted in due time, but it never reached the defendant. Nevertheless he was held
bound by the acceptance.

SECTION 4 – COMMUNICATION WHEN COMPLETE

The only difference that the section makes is in the position of the acceptor. In
England when a letter of acceptance is posted, both the offeror and the acceptor
become irrevocably bound. But in India, the acceptor does not become bound by
merely posting his acceptance. He becomes bound only when his acceptance
“comes to the knowledge of the proposer”. The gap of time between the posting
and the delivery of the acceptance can be utilised by the acceptor for revoking
his acceptance by a speedier communication which will overtake the acceptance.

Counter proposals
An acceptance containing additions, limitations, or other modifications shall be
rejection of the offer and shall constitute a counter-offer.

However, a reply to an offer which purports to be an acceptance but which

contains additional or different terms which do not materially alter the terms of

55
the offer shall constitute an acceptance unless the offeror promptly objects to the
discrepancy; if he does not object, the terms of the contract shall be the terms of
the offer with the modifications contained in the acceptance.
If the proposal prescribes a manner in which it is to be accepted, and the
acceptance is not made in such manner, the proposer may, within a reasonable
time after the acceptance is communicated to him, insist that his proposal shall
be accepted in the prescribed manner, and not otherwise; but if he fails to do so,
he accepts the acceptance.
 PARTIAL ACCEPTANCE
Acceptance should be of the whole of the offer. The offeree cannot accept a part
of its terms which are favourable to him and reject the rest. Such an acceptance
is another kind of counter proposal and does not bind the offeror.
INQUIRY INTO TERMS OF PROPOSAL
A mere inquiry into the terms of a proposal is not the same thing as a counter-
proposal. On acceptance of the proposal, the contract will be created on the basis
of the terms and conditions of the original proposal including arbitration clause.

ACCEPTANCE WITH CONDITION SUBSEQUENT

If an acceptance carries a condition subsequent, it may not have the effect of a
counter-proposal. Thus, where an acceptance said: “terms accepted, remit cash
down Rs.25,000 by February 5, otherwise acceptance subject to withdrawal, this
was not a counter-proposal, but an acceptance with a warning that if the money
was not sent the contract would be deemed to have been broken.

ACCEPTANCE OF COUNTER PROPOSAL

Even “where the acceptance of a proposal is not absolute and unqualified the
proposer may become bound, if, by his subsequent conduct, he indicates that he
has accepted the qualifications set up”.

Hargopal v People’s Bank of Northern India

An application for shares was made conditional on an undertaking by the bank

that the applicant would be appointed a permanent director of the local branch.
The shares were allotted to him without fulfilling the condition. The applicant
accepted the position as a shareholder by accepting dividends, filing a suit to
recover it and by pledging his shares.

It was, therefore, held “that he could not content that the allotment was void on
the ground of non-fulfillment of the condition as he had by his conduct waived
the conditions.

PROVISIONAL ACCEPTANCE
An acceptance is sometimes made subject to final approval. A provisional
acceptance of this kind does not ordinarily bind either party until the final
approval is given.

ACCEPTANCE AND WITHDRAWAL OF TENDERS

A tender is in the same category as a quotation of prices. It is not an offer. When
a tender is approved, it is converted into a standing offer. A contract arises only
when an order is placed on the basis of the tender. These principles were laid
down by the Bombay High Court in the well-known case of Bengal Coal Co Ltd v
Homee Wadia & Co.

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Lapse of Offer

1. Notice of revocation
2. Lapse of Time
3. By failure to accept condition precedent
4. By death or insanity of offerer

Revocation of Acceptance
Section 5: Revocation of proposals and acceptances
A proposal may be revoked at any time before the communication of its
acceptance is complete as against the proposer, but not afterwards.

An acceptance may be revoked at any time before the communication of the

acceptance is complete as against the acceptor, but not afterwards.

NOTICE OF REVOCATION
Withdrawal before expiry of fixed period

Where an offeror gives the offeree an option to accept within a fixed period, he
may withdraw it even before the expiry of that period.

CASE LAW: Alfred Schonlank v. Muthunayna Chetti

The defendant left an offer to sell a quantity of indigo at the plaintiff’s office
allowing him eight days’ time to give his answer. On the 4th day however the
defendant revoked his proposal. The plaintiff accepted it on the 5th day. Holding
the acceptance was useless.

Agreement to keep Offer open for Specified Period

Where the agreement to keep the offer open for a certain period of time is for
some consideration, the offeror cannot cancel it before the expiry of that period.

CASE LAW: Mountford v Scott

Communication of Revocation should be from Offerer Himself

It is necessary that the communication of revocation should be from the offeror

or from his duly authorised agent. But it has been held in the case of Dickinson v.
Dodds, that it is not enough if the offeree knows reliably that the offer has been
withdrawn.

Revocation of General Offers

Where an offer of a general nature is published through newspapers, it can be

withdrawn by the same media and the revocation will be effective even if a
particular person, subsequent to the withdrawl, happened to perform its terms in
ignorance of the withdrawal.

CASE LAW: Skarsm Ramanathan v NTC Ltd

Superseding proposals by Fresh Proposal

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Where before acceptance a proposal is renewed in some parts of it and not in its
entirety as proposed earlier and the letter purports it to supersede the earlier
communication, such proposal is no longer available for acceptance.

CASE LAW: Banque Paribas v Citibank NA

Cancellation of allotment of land

An allotment of land was made under the order of a Development Authority.

CASE LAW: Rochees Hotels P Ltd v Jaipur Development Authority

Revocation of Bid

In the case of an auction, “the assent is signified on the part of the seller by
knocking down the hammer”. A bid may be retracted before the hammer is down.

CASE LAW: Union of India v Bhimsen Walaiti Ram

A liquor ship was knocked down to a bidder at a public auction. This was subject
to the confirmation by the Chief Commissioner who had the power before
granting the licence to inquire into the financial condition of the bidder. The
bidder had to pay one-sixth part of the price immediately and in case of any
default on his part the Government had the power to re-auction the shop and the
shortfall, if any, was recoverable from the bidder. He failed to pay one-sixth part
and, therefore, the Chief Commissioner did not confirm the bid and ordered
resale. Resale realized much less than the original bid and the question of
bidder’s liability to pay the shortfall arose.

The court said: It is not disputed that the Chief Commissioner had disapproved of
the bid offered by the respondent. If the Chief Commissioner had granted
sanction in favor of the respondent, then there would have been a completed
transaction and he would have been liable for any shortfall on the resale.

LAPSE OF TIME
An offer lapses on the expiry of the time, if any, fixed for acceptance. Where an
offer says that it shall remain open for acceptance up to a certain date, it has to
be accepted within that date. For example, where an offer was to last until the end
of March and the offeree sent a telegram accepting the offer on 28th March which
was received by the offeror on 30th March, it was held that the option was duly
exercised.

FAILURE TO ACCEPT CONDITION PRECEDENT

Where the offer is subject to a condition precedent, it lapses if it is accepted
without fulfilling the condition. Where a salt lake was offered by way of lease on
deposit of a sum of money within a specified period, and the intended lessee did
not deposit the amount for 3 long years, it was held that this entailed cancellation
of the allotment.

DEATH OR INSANITY OF OFFEROR

An offer lapses on the death or insanity of the offeror, provided that the fact
comes to the knowledge of the offeree before he makes his acceptance.

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In the case of Dickinson v Dodds, it was held that an offer cannot be accepted
after the death of the offeror.

SECTION 6: Revocation how made

A proposal is revoked —

1. by the communication of notice of revocation by the proposer to the other

party;
2. by the lapse of the time prescribed in such proposal for its acceptance or,
if no time is so prescribed, by the lapse of a reasonable time, without
communication of the acceptance;
3. by the failure of the acceptor to fulfill a condition precedent to acceptance;
or
4. by the death or insanity of the proposer, if the fact of his death or insanity
comes to the knowledge of the acceptor before acceptance.

Revocation of Acceptance
According to English law an acceptance once made is irrevocable. In the words
of Anson: “Acceptance is to offer what a lighted match is to a train of gunpowder.
Both do something which cannot be undone. This rule is obviously confined in its
operation only to postal acceptance. It is suggested in Anson that in other cases
“an acceptance can be revoked at any time before acceptance is complete,
provided, of course, that the revocation itself is communicated before the
acceptance arrives.
In India, on the other hand, acceptance is generally revocable. An acceptor may
cancel his acceptance by a speedier mode of communication which will reach
earlier than the acceptance itself. Section 5 is the relevant provision.
Standard Form Contracts

 Exploitation of weaker party

 Protective Devices
 Reasonable notice
 Notice should be contemporaneous with contract
 Theory of fundamental breach
 Strict construction
 Liability in tort
 Unreasonable terms

Consideration [SECTION 2 (d) and SECTION 25]

Section 25 of the Indian Contract Act, 1872 starts with a declaration that “an
agreement made without consideration is void”. Consideration is a price of the
promise.

Definitions
In the words of Pollock, “Consideration is the price for which the promise of the
other is bought, and the promise thus given for value is enforceable.” Another
simple definition is by Justice Patterson: “Consideration means something which
is of some value in the eyes of the law….. It may be some benefit to the plaintiff or
some detriment to the defendant.”

Section 2(d) of the Indian Contract Act defines consideration as:

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

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It means price for which the promise of the other is bought – a valuable
considerations a price of the promise – some of value received by the promisee
as an inducement of the promise quid pro quo ( something in return) – may be of
some benefit to the plaintiff or some detriment to the defendant.

Abdul Aziz Vs. Masum Ali

A promise to subscribe Rs.500 for re-building a mosque – not fulfilled – secretary
of mosque committee filed a suit for enforcement of promise – Held, the promise
not enforceable as no consideration in the sense of benefit for the promisor – the
secretary of the committee suffered no detriment as nothing has been done to
carry out the repairs – no contract.

Gousmohoddin Vs. Appasahib

Suit filed by landlord L against tenant T for possession of premises and arrears of
rent – suit decreed in favour – in execution, attachment order of movable property
of T – In consideration of T agreeing not to appeal against the decree, L allowed
one month’s time to pay – Held, valid consideration – valid agreement.

Essential Elements of a Valid Consideration

1. It must move at the desire of promisor

2. It may move from promisee or any other person (privity of consideration)
3. It must be real, not illusory
4. It need not be adequate
5. It may be past, present or future
6. It must not be illegal, immoral or opposed to public policy

PROMISSORY ESTOPPEL
The doctrine of promissory estoppel prevents one party from withdrawing a
promise made to a second party if the latter has reasonably relied on that
promise.

The doctrine of promissory estoppel was first developed in Hughes v.

Metropolitan Railway Co [1877] but was lost for some time until it was resurrected
by Lord Denning in the controversial case of Central London Property Trust Ltd v.
High Trees House Ltd [1947].

Promissory estoppel requires:

1. an unequivocal promise by words or conduct

2. evidence that there is a change in position of the promisee as a result of
the promise (reliance but not necessarily to their detriment)
3. inequity if the promisor were to go back on the promise

In general, estoppel is ‘a shield not a sword’ — it cannot be used as the basis of

an action on its own. It also does not extinguish rights.

The general rule is that when one party agrees to accept a lesser sum in full
payment of a debt, the debtor has given no consideration, and so the creditor is
still entitled to claim the debt in its entirety. This is not the case if the debtor
offers payment at an earlier date than was previously agreed, because the benefit
to the creditor of receiving payment early can be thought of as consideration for
the promise to waive the rest of the debt. This is the rule formulated in Pinnel’s
Case (1602)

“AT THE DESIRE OF THE PROMISOR”

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An act or abstinence which is to be a consideration for the promise must be done
or promised to be done in accordance with the desire of the promisor.

Durga Prasad v Baldeo

Facts: The plaintiff constructed some shops in a market under the orders of the
Collector. The defendant occupied a shop and promised to pay some commission
to the plaintiff and did not pay. In an action against the defendant, it was held not
maintainable.

Court Held: The only ground for the making of the promise is the expense
incurred by the plaintiff in establishing the Ganj (market) but it is clear that
anything done in that way was not ‘at the desior’ of the defendants so as to
constitute consideration. The act was the result not of the promise but of the
Collector’s order.

Thus to constitute a good consideration, act or abstinence must be at the desire

of the promisor.

ACTS DONE AT REQUEST:

An act done at the promisor’s desire furnishes a good consideration for his
promise even though it is of no personal significance or benefit to him.

Kedar Nath v Gorie Mohamed

It was thought advisable to erect a town hall at Howrah provided sufficient

subscription could be got together for the purpose. To this end the
Commissioners of Howrah municipality set out to work to obtain necessary funds
by public subscription. The defendant was a subscriber to this fund for Rs.100
having signed his name in the subscription book for the amount. On the faith of
the promised subscriptions, the plaintiff entered into a contract with a contractor
for the purpose of building the hall. But the defendant failed to pay the amount
and contended that there was no consideration for this promise.

He was held liable. Persons were asked to subscribe knowing the purpose for
which the money was to be applied, they knew that on the faith of their
subscription an obligation was to be incurred to pay the contractor for the work.
The promise is: ‘In consideration of your agreeing to enter into a contract to
erect, I undertake to supply money for it.’ The act of the plaintiff in entering into
contract with the contractor was done at the desire of the defendant (the
promisor) so as to constitute consideration within the meaning of Section 2(d).

PROMISES OF CHARITABLE NATURE

Doraswami Iyer v Arunachala Ayyar

Facts: The repair of a temple was in progress. As the work proceeded, more
money was required and to raise this money subscriptions were invited and a
subscription list raised. The defendant put himself down on the list for Rs. 125
and it was to recover this sum that the suit was filed. The plaint found the
consideration for the promise as a reliance on the promise of the subscriber that
they have incurred liabilities in repairing the temple.

Judgment: The learned judge held that there was no evidence of any request by
the subscriber to the plaintiff to do the temple repairs. Since, the temple repairs
were already in progress when the subscriptions were invited. The action was not
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induced by the promise to subscribe but was rather independent of it. Hence, no
recovery was allowed.

UNILATERAL PROMISES
A unilateral promise is a promise from one side only and is intended to induce
some action by the other party. The promisee is not bound to act, for he gives no
promise from his side. But if he carries out the act desired by the promisor, he
can hold the promisor to his promise. “An act done at the request of the offeror in
response to his promise is consideration, and consideration in its essence is
nothing else but response to such a request.”

Abdul Aziz v Masum Ali

The defendant promised Rs.500  to a fund started to rebuild a mosque but
nothing had been done to carry out the repairs and reconstruction. The
subscriber was, therefore, held not liable.

REVOCATION OF UNILATERAL PROMISES

Errington v Errington

Facts: The owner of a house had mortgaged it. The house was in the occupation
of his son and daughter-in-law. He told them that the house would become their
property if they paid off the mortgage debt in installments and they commenced
payment.

Judgement: The father’s promise was a unilateral contract, a promise of the

house in return for their act of paying the installments. It could not be revoked by
him once the couple entered on performance of the act, but it would cease to bind
him if they left it incomplete and unperformed.

PROMISSORY ESTOPPEL AND GOVERNMENT AGENCIES

InPournami Oil Mills v State of Kerala, the Government was not permitted to go
back on its earlier promise of wider exemption from sales tax in pusuance of
which certain industries were set up. A subsequent notification curtailing the
exemption was held to be applicable to industries established after the
notification. A promise which is against public policy or in violation of a statutory
prohibition cannot be the foundation of an estoppel.

ESTOPPEL OF LICENSEE
A person who had acquired title to the land of a Council by adverse possession,
agreed subsequently to hold the same under a term license from the Council. On
the expiry of the term, the Council told him to hand over possession  He tried to
assert his title by adverse possession. He was not allowed to do so. Whatever
rights he acquired became substituted under the new arrangement which he
voluntarily accepted. The new arrangement constituted a promissory estoppel
against him.

Privity of  Contract and of Consideration

“PROMISEE OR ANY OTHER PERSON”
It means that as long as there is a consideration for a promise, it is immaterial
who has furnished it. It may move from the promisee, or, if the promisor has no
objection, from any other person.

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Dutton v Poole

Facts: A person had a daughter to marry and in order to provide her a marriage
portion, he intended to sell a wood of which he was possessed at the time. His
son (the defendant) promised that if “the father would forbear to sell at his
request he would pay the daughter £1000”. The father accordingly forbore but the
defendant did not pay. The daughter and her husband sued the defendant for the
amount.

Judgment: The court held that if a man should say, ‘Give me a horse, I will give
your son £10’, the son may bring the action, because the gift was upon the
consideration of a profit to the son, and the father is obliged by natural affection
to provide for his children. There was such apparent consideration of affection
from the father to his children, for whom nature obliges him to provide, that the
consideration and promise to the father may well extend to the children.

The whole object of the agreement was to provide a portion to the plaintiff. It
would have been highly inequitable to allow the son to keep the wood and yet to
deprive his sister of her portion. He was accordingly held liable.

POSITION OF BENEFICIARY WHO IS NOT PARTY

Tweddle v Atkinson – as per English Law

 Facts: The plaintiff was to be married to the daughter of one G and in

consideration of this intended marriage G and the plaintiff’s father entered into a
written agreement by which it was agreed that each would pay the plaintiff a sum
of the money. G failed to do so and the plaintiff sued his executors.

Court Held: Although the sole object of the contract was to secure a benefit to the
plaintiff, he was not allowed to sue as the contract was made with his father and
not with him. It was held that no stranger to the consideration can take advantage
of a contract, although made for his benefit.

The case laid the foundation of what subsequently came to be known as the
doctrine of “Privity of contract“, which means a contract is a contract between
the parties only and no third person can sue upon it even if it is avowedly made
for his benefit.

Dunlop Pneumatic Tyre Co v Selfridge & Co.

Facts: Plaintiffs (Dunlop & Co) sold certain goods to one Dew & Co and secured
an agreement from them not to sell the goods below the list price and that if they
sold the goods to another trader they would obtain from him a similar
undertaking to maintain the price list. Dew & Co sold the motor tyres to the
defendants (Selfridge & Co) who agreed not to sell the tyres to any private
customer at less than the list prices. The plaintiffs sued the defendants for breach
of this contract.

Court Held: Assuming that the plaintiffs were undisclosed principals, no

consideration moved from them to the defendants and that the contract was
unenforceable by them. Only a person who is a party to a contract can sue on it. It
cannot be conferred on a stranger to a contract as a right to enforce the contract
in personam. Also if a person with whom a contract not under seal has been
made is to be able to enforce it, consideration must have given by him.

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FUNDAMENTAL PROPOSITIONS OF ENGLISH LAW

1. Consideration must move from the promisee and the promisee only.
2. A contract cannot be enforced by a person who is not a party to it even
though it is made for his benefit.

PRIVITY OF CONSIDERATION
In India, the view is opposite of the fundamental propositions of English law.
Acording to Section 2(d), it is not necessary that consideration should be
funished by the promisee. A promise is enforceable if there is some
consideration for it and it is quite immaterial whether it moves from the promisee
or any other person.

Chinnaya v Ramayya

An old lady, by deed of gift, made over certain landed property to the defendant,
her daughter. By the terms of the deed, which was registered, it was stipulated
that an annuity of Rs.653 should be paid every year to the plaintiff, who was the
sister of the old woman. The defendant on the same day executed in plaintiff’s
favour an agreement promising to give effect to the stipulation. The annuity was
however not paid and the plaintiff sued to recover it.

It was held that the deed of gift and the defendant’s promise to pay the annuity
were executed simultaneously and, therefore, they should be regarded as one
transaction and there was sufficient consideration for that transaction.

PRIVITY OF CONTRACT
The rule of “Privity of contract” meant a stranger to contract cannot sue has
taken firm roots in the English Common Law. But it has been generally criticised.

Lord Denning observed that where a contract is made for the benefit of a third
person who has a legitimate interest to enforce it, it can be enforced by the third
person in the name of the contracting party or jointly with him or, if he refuses to
join, by adding him as a defendant. The third person has a right arising by way of
contract and his interest will be protected by law.

Beswick v Beswick

Facts: B was a coal merchant. The defendant was assisting him in his business.
B entered into an agreement with the defendant by which the business was to be
transferred to the defendant. B was to be employed in it as a consultant for his
life and after his death, the defendant was to pay to his widow an annuity of £5
per week, which was to come out of the business. After B’s death, the defendant
paid B’s widow only one sum of £5. The widow brought an action to recover the
arrears of the annuity and also to get specific performance of the agreement.

Court Held: That she was entitled to enforce the agreement. Thus, the plaintiff
was allowed to enforce the agreement in her personal capacity, although she was
not a party to it and it was considered not necessary to infer a trust in favour of
the plaintiff.

 Position in India: decisions following English law

 Decisions not following English law
 Supreme Court upholds Privity

EXCEPTIONS TO PRIVITY RULE

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 Beneficiaries under trust or charge or other arrangements: A person in
whose favour a charge or other interest in some specific property has been
created may enforce it though he is not a party to the contract.
 Marriage settlement, partition or other family arrangements: Where an
agreement is made in connection with marriage, partition or other family
arrangement and a provision is made for the benefit of a person, he may take
advantage of that agreement although he is no party to it.
 Acknowledgement or estoppel: Where by the terms of a contract a party is
required to make a payment to a third person and he acknowledges it to that
third person, a binding obligation is incurred towards him. Acknowledgment
may be express or implied.
 Covenants running with land: The rule of privity may also be modified by
the principles relating to transfer of immovable property.

“…Has Done or Abstained from Doing…”

PAST CONSIDERATION
The promise is to pay for a wholly past act and is no more than an expression of
gratitude. The past act may explain why the promise was given and may be a
motive for the promise, but furnishes no legal consideration.

McArdle, In re:

Facts: A effected certain improvements to property. The ultimate beneficiaries of

the property signed a document declaring that: “In consideration of your carrying
out certain alterations and improvements, we the beneficiaries shall repay to you
the sum of £488 in settlement of the amount spent on such improvements.

Court Held: That as the work had all been done and nothing remained to be done
by the promisee at all, the consideration was wholly past consideration and the
beneficiaries’ agreement for the repayment to her out of the estate was nudum
pactum, a promise with no consideration to support it. Thus, the action to enforce
the promise was rejected.

 Past act at request good consideration: Exception to the past

consideration in the English law is that a past act done at request will be good
consideration for a subsequent promise. If the voluntary courtesy were moved
by a request of the party that gives the promise, it will bind, for the promise.
 Other exceptions are: A promise to pay a time-barred debt and a negotiable
instrument issued for a past consideration are both valid.

POSITION IN INDIA
In India, a past consideration may arise in two ways. It may consist of services
rendered at request but without any promise at the time or it may consist of
voluntary services.

 Past voluntary service: A voluntary service means a service rendered

without any request or promise and there is a subsequent promise to pay for
the same. E.g., “If A saves B from drowning and B later promises A a reward.”
In India, the promise would be enforceable by virtue of Section 25(2) which
provides that a promise to compensate wholly or in part, a person who has
already voluntarily done something for the promisor is enforceable.
 Past service at request: b

PAST AND EXECUTED CONSIDERATION

EXECUTORY CONSIDERATION
“Such Act, Abstinence or Promise is called Consideration”

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CONSIDERATION MUST BE OF SOME VALUE
Consideration as defined in the Act, means some act, abstinence or promise on
the part of the promisee or any other which has been done at the desire of the
promisor. E.g.,

A promises to give his new Rolls-Royce car to B, provided B will fetch it from the
garage.

The act of fetching the car cannot by any stretch of imagination be called a
consideration for the promise. Even though it is the only act, the promisor
desired the promisee to do. Such an act no doubt satisfies the words of the
definition, but it does not catch its spirit. It is for this reason that English common
law insisted that “consideration must be of some value in the eyes of the law.” It
must be real and not illusory, whether adequate or not as long as the
consideration is not unreal, it is sufficient if it be of slight value only.

VALUE NEED NOT BE ADEQUATE (ADEQUACY OF CONSIDERATION)

It is not necessary that consideration should be adequate to the promise. The
courts cannot assume the job of settling what should be the appropriate
consideration for a promise. It is up to the parties.

INADEQUACY AS EVIDENCE OF IMPOSITION

The act in Explanation 2 to Section 25 states that “inadequacy of consideration
may be taken into account by the court in determining the question whether the
consent of promisor was freely given. E.g.,

A agrees to sell a horse worth Rs.1000 for Rs.10. A denies that his consent to the
agreement was freely given. The inadequacy of the consideration is a fact which
the court should take into account in considering whether or not A’s consent was
freely given.

FORBEARANCE TO SUE
Forbearance to sue has always been regarded as valuable consideration. It
means that the plaintiff has a certain right of action against the defendant or any
other person and on a promise by the defendant, he refrains from bring the
action.

COMPROMISE GOOD IRRESPECTIVE OF MERITS

Compromise of a pending suit is a good consideration for the agreement of
compromise. But the dispute should be bona fide. A compromise is a good
consideration “irrespective of merits of the claim of either side” and even where
there is some doubt in the minds of the parties as to their respective rights.

Performance of Existing Duties

PERFORMANCE OF LEGAL OBLIGATIONS
Consideration must be something more than what the promisee is already bound
to do. Performance of a legal duty is no consideration for a promise.

PERFORMANCE OF CONTRACTUAL OBLIGATIONS

66
 A. Pre-existing Contract with Promisor: Compliance with legal obligation
imposed by a contract with the promisor can be no consideration for a
promise.
 Promise to pay less than amount due: A promise to pay less than what is
due under a contract cannot be regarded as a consideration.

EXCEPTIONS TO THE RULE IN PINNEL’S CASE

1. Part-payment by Third Party: Part-payment by a third party may be a good

consideration of the whole of the debt.
2. Composition:
3. Payment before time:
4. Promissory estoppel:
5. Position under Indian Contract Act different
6. B. Pre-existing Contract with Third Party
7. CONSIDERATION AND MOTIVE
8. Consideration should be distinguished from motive or a pious desire to
fulfil an obligation. “Motive is not the same thing with consideration.”
9. Thomas v Thomas
10. Facts: “A testator, on the death of his death, had verbally said in front of
witnesses that he was desirous that his wife should enjoy certain premises
for her life. The executors, who were also the assignees, “in consideration
of such desire and of the premises,” agreed with the widow to convey the
premises to her provided she would pay to the executors the sum of 1
pound yearly towards the ground rent and keep the said house in repair.
11. Court Held: On the question of consideration for the agreement between
the executors and the widow the court pointed out that the motive for the
agreement was, unquestionably, respect for the wishes of the testator. But
that was no part of the legal consideration for the agreement. Motive
should not be confounded with consideration. The agreement was,
however, held to be binding as the undertaking to pay the ground rent was
a sufficient consideration.
12. Exceptions to Consideration
13. CONTRACTS UNDER SEAL IN ENGLISH LAW
14. In English law a contract under seal is enforceable without consideration.
In the words of Anson: “”English law recognises only two kinds of
contract, the contract made by deed that is under seal, which is called a
deed or speciality, and the simple contract. A contract under seal means a
contract which is in writing and which is signed, sealed and delivered.

EXCEPTIONS UNDER S.25, CONTRACT ACT – IN INDIA

25. An agreement made without consideration is void unless –

 (1) it is in writing and registered

 (2) or is a promise to compensate for something done

1. Natural love and affection: A written and registered agreement based on

natural love and affection between near relatives is enforceable without
consideration. E.g., A family settlement between a man and his wife was made
for providing maintenance to wife. This was held to be enforceable because it
was meant for deriving satisfaction and peace of mind from family harmony.
2. Past voluntary service: A promise to compensate wholly or in part, a
person who has already voluntarily done something for the promisor, is
enforceable.
3. Time-barred debt: A promise to pay a time-barred debt is enforceable. The
promise should be in writing. It should also be signed by the promisor or by
his agent generally or specially authorised in that behalf.

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GIFT ACTUALLY MADE [S. 25 (EXPLN. I)]
The provisions as to consideration do not affect, as between donor and donee,
the validity of any gift which has actually been made. A gift of movables which
has been completed by delivery and gift of immovable which has been perfected
by registration cannot be questioned as to their validity only on the ground of
lack of consideration. They may be questioned otherwise. Where a gift of
property was made by registered deed and attested by two witnesses, it was not
allowed to be questioned by the donor on the ground that she was the victim of
fraud which she was not able to establish.

UNIT – II
Capacity to Contract
 Minor
AGE OF MAJORITY
NATURE OF MINOR’S AGREEMENT
EFFECTS OF MINOR’S AGREEMENT

1. No Estoppel against minor
2. No liability in contract or in tort arising out of contract
3. Doctrine of Restitution
1. Minor seeking relief, compellable to restore
2. Amended provisions in Specific Relief Act, 1963

Beneficial contracts

 Contracts of marriage
 Marriage of Muslim minor girl
 Contracts of Apprenticeship
 Trade contracts not included in beneficial contracts
 Option to retire from beneficial contracts on majority

Ratification
Liability for necessaries [S. 68]

 Meaning of “Necessaries”
 Nature of Liability

Persons of Unsound Mind

 English Law
 Position in India

Free Consent
Definition of Free Consent [S. 14]

  Vitiating factors and their effect

Coercion
DEFINITIONS [S. 15]
TECHNIQUES OF CAUSING COERCION
ACTS FORBIDDEN BY IPC
DETENTION OF PROPERTY
COMPARISON WITH ENGLISH LAW

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Under Influence
DEFINITION [S. 16]
ABILITY TO DOMINATE WITH OF OTHER

 Consent under pressure

 Subtle species of fraud

RELATIONS WHICH INVOLVE DOMINATION

 Real or apparent authority

 Fiduciary relation
 Mental distress
 Urgent need of money, no distress
 Statutory compulsion, no distress

BURDEN OF PROOF
PRESUMPTION OF UNDUE INFLUENCE
1. Unconscionable bargains, inequality of Bargaining Power or Economic Duress

 Unconscionableness
 Some instances of unconscionableness
 Unconscionableness in money lending transactions
 Position of dominance necessary for presumption to arise
 Unconscionableness gifts
 Relationship of blood, marriage or adoption not since qua non
 Inequality of bargaining power
 Influence distinguished from persuation
 Economic duress by forcing renegotiation of terms
 Exploitation of the needy
 Technique of judicial intervention un unfair bargains
 Rescuing employees and others from unreasonable terms
 Natural justice

DEFINITIONS [S. 15]

TECHNIQUES OF CAUSING COERCION
ACTS FORBIDDEN BY IPC
DETENTION OF PROPERTY
COMPARISON WITH ENGLISH LAW
Under Influence
DEFINITION [S. 16]
ABILITY TO DOMINATE WITH OF OTHER

 Consent under pressure

 Subtle species of fraud

RELATIONS WHICH INVOLVE DOMINATION

 Real or apparent authority

 Fiduciary relation
 Mental distress
 Urgent need of money, no distress
 Statutory compulsion, no distress

BURDEN OF PROOF

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PRESUMPTION OF UNDUE INFLUENCE
1. Unconscionable bargains, inequality of Bargaining Power or Economic Duress

 Unconscionableness
 Some instances of unconscionableness
 Unconscionableness in money lending transactions
 Position of dominance necessary for presumption to arise
 Unconscionableness gifts
 Relationship of blood, marriage or adoption not since qua non
 Inequality of bargaining power
 Influence distinguished from persuation
 Economic duress by forcing renegotiation of terms
 Exploitation of the needy
 Technique of judicial intervention un unfair bargains
 Rescuing employees and others from unreasonable terms
 Natural justice

2. Contracts with Pardanashin Woman

RESCISSION [S. 19-A]
Misrepresentation
DEFINITION

1. Unwarranted Statements
2. Breach of duty
3. Inducing mistake about subject-matter

SUPPRESSING OF VITAL FACTS

OF MATERIAL FACTS
EXPRESSION OF OPINION
REPRESENTATION OF STATE OF MIND
CHANGE OF CIRCUMSTANCES
INDUCEMENT
MEANS OF DISCOVERING TRUTH
Fraud
DEFINITION
ASSERTION OF FACTS WITHOUT BELIEF IN TRUTH
ACTIVE CONCEALMENT
MERE SILENCE IS NO FRAUD
WHEN SILENCE IS FRAUD

1. Duty to speak (Contracts uberrima fides)

2. Where silence is deceptive
3. Change of circumstances
4. Half-truths

PROMISE MADE WITHOUT INTENTION OF PERFORMING

ANY OTHER ACT FITTED TO DECEIVE
ANY ACT OR OMISSION SPECIALLY DECLARED TO BE FRAUDULENT

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DISTINCTION BETWEEN FRAUD AND MISREPRESENTATION
LIMITS OF RESCISSION [SS. 19 AND 19-A]

1. By affirmation
2. By lapse of time
3. Intervention of rights of third parties

MODE OF RESCISSION
RESTITUTION
DAMAGES FOR INNOCENT MISREPRESENTATION
Mistake
 Definition of Consent [S. 13]
Definition of Mistake

 Supplementary provisions

WHAT FACTS ARE ESSENTIAL

Mistake as to Identity
ASSUMPTION OF FALSE IDENTITY
MISTAKE CAUSED BY TAKEOVER OF BUSINESS
MISTAKE OF IDENTITY CAUSED BY FRAUD
DISTINCTION BETWEEN IDENTITY AND ATTRIBUTES
WHERE FRAUD DOES NOT LEAD TO MISTAKE OF IDENTITY
WHERE IDENTITY SPECIALLY IMPORTANT
Mistake as to Subject-matter
NON-EXISTENT SUBJECT-MATTER
2. MISTAKE AS TO TITLE OR RIGHTS
3. DIFFERENCE SUBJECT-MATTERS IN MIND
4. MISTAKE AS TO SUBSTANCE OF SUBJECT-MATTER

 Mistake as to quality of subject-matter as distinguished from substance

MISAPPREHENSION AS TO PARTIES’ RESPECTIVE RIGHTS

Mistake as to Nature of Promise
WHERE THE CONTRACT FAILS TO EXPRESS PARTIES’ INTENTION
DOCUMENTS MISTAKENLY SIGNED OR NON EST FACTUM
Limitations
MISTAKE OF BOTH PARTIES
2. ERRONEOUS OPINION ABOUT VALUE OF SUBJECT-MATTER
3. MISTAKE OF FACT AND NOT OF LAW
Legality of Object
Unlawful agreements
Void Agreements
Agreements against Public Policy

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Wagering Agreements
Its exceptions
Contingent Contracts
Restraint of Trade [S. 27]
Exceptions
Illegal and Void Agreements
CLASS NOTES ON CONSTITUTIONAL LAW – UNIT I (1ST SEM / 3 YEAR
LL.B)
UNIT I
Introduction to Indian Constitution
The framing of the Constitution was completed on November 26, 1949 when the
Constituent Assembly formally adopted the new Constitution. The Constitution
came into force with effect from January 26, 1950.

The Constitution contains the fundamental law of the land. It is the source of all
powers of, and limitations on, the three organs of State, viz. the executive,
legislature and judiciary. No action of the state would be valid unless it is
permissible under the Constitution. Therefore, it is imperative to have a clear
understanding of the nature and working of the Constitution.

Objectives of The Constitution

The Constitution of Independent India was framed in the background of about 200
years of colonial rule, mass-based freedom struggle, the national movement,
partition of the country and spread of communal violence. Therefore, the framers
of the Constitution were concerned about the aspirations of the people, integrity
and unity of the country and establishment of a democratic society. Their main
was to give India a ‘Constitution’ which will fulfill the cherished ideas and ideals
of the people of this country.

The Constitution begins with a Preamble which declares India to be a Sovereign,

Socialist, Secular, Democratic, Republic. The Preamble also mentions the goals
of securing justice, liberty and equality for all its citizens and promotion of
national unity and integrity on the basis of fraternity among the people assuring
dignity of the individual.

Salient Features of the Indian Constitution

The main features of Indian Constitution are the following:

1. A written Constitution: The Indian Constitution is mainly a written

constitution. A written constitution is framed at a given time and comes into
force or is adopted on a fixed date as a document. As you have already read
that our constitution was framed over a period of 2 years, 11 months and 18
days, it was adopted on 26th November, 1949 and enforced on January 26,
1950. Certain conventions have gradually evolved over a period of time which
have proved useful in the working of the constitution.
2. Federal Policy:  The Constitution of India does not use the term ‘federal
state’. It says that India is a ‘Union of States’. There is a distribution of powers
between the Union/Central Government and the State Governments. Since
India is a federation, such distribution of functions becomes necessary. There
are three lists of powers such as Union List, State List and the Concurrent
List.
3. Parliamentary Democracy: India has a parliamentary form of democracy.
This has been adopted from the British system. In a parliamentary democracy
there is a close relationship between the legislature and the executive. The
Cabinet is selected from among the members of legislature. The cabinet is

72
 responsible to the latter. In fact the Cabinet holds office so long as it enjoys
the confidence of the legislature. In this form of democracy, the Head of the
State is nominal. In India, the President is the Head of the State.
Constitutionally the President enjoys numerous powers but in practice the
Council of Ministers headed by the Prime Minister, which really exercises
these powers. The President acts on the advice of the Prime Minister and the
Council of Ministers.
4. Fundamental Rights and Duties: Fundamental Rights are one of the
important features of the Indian Constitution. The Constitution provides for six
Fundamental Rights about which you will read in the following lesson.
Fundamental Rights are justiciable and are protected by the judiciary. In case
of violation of any of these rights one can move to the court of law for their
protection.Fundamental Duties were added to our Constitution by the 42nd
Amendment. It lays down a list of ten Fundamental Duties for all citizens of
India. While the rights are given as guarantees to the people, the duties are
obligations which every citizen is expected to perform.
5. Directive Principles of State Policy: The Directive Principles of State Policy
which have been adopted from the Irish Constitution, is another unique
feature of the Constitution of India. The Directive Principles were included in
our Constitution in order to provide social and economic justice to our people.
Directive Principles aim at establishing a welfare state in India where there will
be no concentration of wealth in the hands of a few.
6. Partly rigid and Partly flexible: A constitution may be called rigid or flexible
on the basis of its amending procedure. The Constitution of India provides for
three categories of amendments. In the first category, amendment can be
done by the two houses of Parliament simple majority of the members present
and voting of before sending it for the President’s assent. In the second
category amendments require a special majority. Such an amendment can be
passed by each House of Parliament by a majority of the total members of that
House as well as by the 2/3rd majority of the members present and voting in
each house of Parliament and send to the President for his assent which
cannot be denied. In the third category besides the special majority mentioned
in the second category, the same has to be approved also by at least 50% of
the State legislatures.
7. Language Policy:  India is a country where different languages are spoken
in various parts of the country. Hindi and English have been made official
languages of the central government. A state can adopt the language spoken
by its people in that state also as its official language.
8. Special Provisions for Scheduled Castes and Scheduled Tribes: The
Constitution provides for giving certain special concessions and privileges to
the members of these castes. Seats have been reserved for them in
Parliament, State legislature and local bodies, all government services and in
all professional colleges.
9. A Constitution Derived from Many Sources: The framers of our constitution
borrowed many things from the constitutions of various other countries and
included them in our constitution. That is why; some writers call Indian
Constitution a ‘bag of borrowings’.
10. Independent Judiciary: Indian judiciary is independent an impartial. The
Indian judiciary is free from the influence of the executive and the legislature.
The judges are appointed on the basis of their qualifications and cannot be
removed easily.
11. Single Citizenship: In India there is only single citizenship. It means that
every Indian is a citizen of India, irrespective of the place of his/her residence
or place of birth. He/she is not a citizen of the Constituent State like
Jharkhand, Uttaranchal or Chattisgarh to which he/she may belong to but
remains a citizen of India. All the citizens of India can secure employment
anywhere in the country and enjoy all the rights equally in all the parts of
India.
12. Universal Adult Franchise: Indian democracy functions on the basis of ‘one
person one vote’. Every citizen of India who is 18 years of age or above is
entitled to vote in the elections irrespective of caste, sex, race, religion or

73
 status. The Indian Constitution establishes political equality in India through
the method of universal adult franchise.
13. Emergency Provisions: The Constitution makers also foresaw that there
could be situations when the government could not be run as in ordinary
times. To cope with such situations, the Constitution elaborates on
emergency provisions. There are three types of emergency; a) emergency
caused by war, external aggression or armed rebellion; b) emergency arising
out of the failure of constitutional machinery in states; and c) financial
emergency.

Theory of Basic Structure

1. Supremacy of Constitution
2. Republican and Democratic form of Government
3. Secular Character of Constitution
4. Separation of Powers between the Legislature, the Executive and the
Judiciary
5. Federal Character of Constitution

Nature of the Indian Constitution – Federal, Unitary, Quasi-federal

In a Democratic government, Constitution plays a primary role in efficient
governance. Constitution is a  set of fundamental principles or established
precedents according to which a State can be governed.  Constitutions may be
classified into two categories. Such as: Federal or Unitary.

What is Federal and Unitary Constitution?

In a Unitary Constitution, all the powers of a Government are concentrated in a
central authority. The States or the different constituents of the Country are
subordinate to such central authority. However, in Federal Constitution, powers
are distributed among the center and the States. States are not subordinates of
the central government. Constitution of USA, Australia are considered to be
federal in nature.

Is Indian Constitution a federal or unitary in nature?

Indian Constitution is an hybrid of both federal and unitary nature of a
Constitution and hence rightly termed as ‘Quasi-federal‘ Constitution. It means a
federal set up where despite having two clear sets of government – central and
the states, more powers are given to the Central Government.

Prof. Wheare put-forth his view that to say a Constitution is federal in nature, it

should displays federal character predominantly.

Following are the defining features of federalism:

 Distribution of Powers between center and states

 Supremacy of the Constitution
 Written Constitution
 Rigidity of the Constitution
 Independent Judiciary

Factors that affect the federal character of the Constitution of India are:

 Appointment of the Governor of a State

 Power of the parliament to make laws on subjects in the State list.
 Power to form new states and to change existing boundaries
 Emergency Provisions

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The debate whether India has a ‘Federal Constitution’ and ‘Federal Government’
has been grappling the Apex court in India because of the theoretical label given
to the Constitution of India, namely, federal, quasi-federal, unitary. The first
significant case where this issue was discussed at length by the apex Court was
State of West Bengal V. Union of India. The main issue involved in this case was
the exercise of sovereign powers by the Indian states. The legislative competence
of the Parliament to enact a law for compulsory acquisition by the Union of land
and other properties vested in or owned by the state and the sovereign authority
of states as distinct entities was also examined. The apex court held that the
Indian Constitution did not propound a principle of absolute federalism. Though
the authority was decentralized this was mainly due to the arduous task of
governing the large territory. The court outlined the characteristics, which
highlight the fact that the Indian Constitution is not a “traditional federal
Constitution”.

Thus, it can be said that Indian Constitution is primarily federal in nature even
though it has unique features that enable it to assume unitary features upon the
time of need.

Principles of Federalism
The Indian Constitution is basically federal in form and is marked by the
traditional characteristics of a federal system, namely, supremacy of the
Constitution, division of power between the Union and State Governments,
existence of an independent judiciary and a rigid procedure for the amendment of
the Constitution.

There is an  independent judiciary to determine issues between the Union and the

States, to be exercised in fields assigned to them respectively. However, there are
marked differences between the American federation and the Indian federation.
They are:

1. America has a dual citizenship, while in India, there is single citizenship

2. States in America have a right to make their own Constitutions, whereas no
such power is given to States in India
3. Indian Constitution exhibits a centralizing tendency in several of its
provisions
4. In certain circumstances, the Union is empowered to supersede the
authority of the State or to exercise powers otherwise vested in the States

 CASE LAWS

1. Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461 1

2. S. R. Bommai v. Union of India, AIR 1994 SC 1918 8
3. State of West Bengal v. Union of India, AIR 1963 SC 1241 24
4. Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 39
5. Kuldip Nayar v. Union of India, AIR 2006 SC 3127
6. State of Haryana v. State of Punjab, AIR 2002 SC 685

Preamble
WE, THE PEOPLE OF INDIA, having solemnly resolved to
constitute India into a [SOVEREIGN SOCIALIST SECULAR
DEMOCRATIC REPUBLIC] and to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the [unity and integrity of
the Nation];
75
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November, 1949, do HEREBY ADOPT, ENACTAND GIVE TO
OURSELVES THIS CONSTITUTION.

Part I – The Union and Its Territory

Article 1: Name and territory of the Union

Article 2: Admission or establishment of new states

Article 3: Formation of new States and alteration of areas, boundaries or names

of existing States

Article 4: Laws made under articles 2 and 3 to provide for the amendment of the
First and the Fourth Schedules and supplemental, incidental and consequential
matters

CASE LAWS

1. In re Berubari Union and Exchange of Enclaves, AIR 1960 SC 845 47

2. Ram Kishore Sen v. Union of India, AIR 1966 SC 644
3. Union of India v. Sukumar Sengupa, AIR 1990 SC 1692
4. N. Masthan Sahib v. Chief Commissioner Pondicherry, AIR 1962 SC 797
5. R. C. Poudyal v. Union of India, AIR 1993 SC 1804
6. Babulal Parate v. State of Bombay, AIR 1960 SC 51

Part II – Citizenship
Article 5: Citizenship at the commencement of the Constitution

Article 6: Rights of citizenship of certain persons who have migrated to India from
Pakistan

Citizenship by Birth
Article 7: Rights of citizenship of certain migrants to Pakistan

Rights of Overseas Citizens

Article 8: Rights of citizenship of certain persons of Indian origin residing outside
India

Article 9: Persons voluntarily acquiring citizenship of a foreign State not to be

citizens

Article 10: Continuance of the rights of citizenship

Article 11: Parliament to regulate the right of citizenship by law

Commonwealth Citizenship
Every person who is a citizen of a Commonwealth country specified in the First
Schedule shall, by virtue of that citizenship, have the status of a Commonwealth
citizen in India.

Whether a Corporation a citizenship or not

The freedom under article 19 are limited to citizens and if literally constructed
these freedoms would not be available to corporations, because corporations

76
cannot be talked of as having or possessing citizenship. But it has been held that
shareholders can challenge the validity of a law on the grounds of violation of
their fundamental rights and the company may be joined in such proceeding with
proper pleading. The decisions relevant to the point are following:-

A company is not a citizen and cannot invoke article 19(1)(g).

Case Laws: 

1. Tata Engineering and Locomotive Co. Ltd. v. State of Bihar, AIR 1965 SC 40
(48)
2. Bennet Coleman and Co. Ltd. v. Union of India, AIR 1973 SC 106: (1972) 2
SCC 788: 1973 (1) SCJ 177
3. D.C & G.M. v. Union of India AIR 1983 SC 937

Domicile – Meaning
The country that a person treats as their permanent home, or lives in and has a
substantial connection with. The state in which a person has his/her permanent
residence or intends to make his/her residence, as compared to where the person
is living temporarily.

Kinds of Domicile

1. Domicile  of  origin

2. Domicile of  choice
3. Domicile by operating of law

Elements constituting Domicile

Domicile depends on intent, location of a home where a person regularly sleeps,
and some conduct.

One Domicile
Under the Indian Constitution, there is only one domicile viz. the domicile of the
country and there is no separate domicile for a State.

Case Law:

Pradeep Jain (Dr.) v. Union of India, AIR 1984 SC 1420 :    (1984) 3 SCC 654: 1984
Ed Case 237, para 8-9

Citizenship by Migration
Migration must be with intention to reside permanently in India. Such intention
may be formed even later.

Part III – Fundamental Rights

Kinds of Rights

 Natural or Human Rights

 Moral Rights
 Legal Rights – Civil and Political Rights
 Fundamental Rights in India

Natural Rights
Natural Rights are those rights that are available to each and every being,
including human beings. Rights that are specific to Human beings are also called
as Human Rights. Natural rights deals with right to life, right to movement, etc.

77
Article 21 deals with right to protection of life and personal liberty.

At the same time, when a person lives alone in an island, he does not have right
but freedom. Only when a man lives as a group or in a community, rights evolve.
Because, when a man lives in a group, there is always conflict and absolute
freedom cannot be assured. Hence, the concept of right is correlated with duties.

Every right has an obligation to duty. Recognition of freedom of others forms the

basis of rights. Our rights is based on other’s duties and other’s rights based on
our duties. State does not create rights, but only recognizes, maintains and co-
ordinates the rights of its people.

Origin of Fundamental Rights

The rights that are basic to the advancement of the human race are called
Fundamental Rights. All other rights are derived from these rights as direct
implications or application of their principles. It is an accepted belief among the
philosophers that these rights are nothing but “natural human rights”, which
distinguish between humans and animals and which have been so instrumental
in bringing humans from the stone age to the present age. Among all, the right to
life and liberty is considered to be the most basic.

The history of legally enforceable fundamental rights probably starts from Magna
Carta, which was a list of rights extracted from Kind John by the people of
England in 1214 AD. This was followed by the “Bill of Rights” in 1689 in which
Englishmen were given certain civil and political rights that could not be taken
away. Later on the French compiled the “Declaration of the rights of Man and of
the Citizen” after the French Revolution in 1789.

The most important advancement in history of fundamental rights occurred when

the USA incorporated certain fundamental rights in the form on “Bill of Rights” in
their constitution by the way of first 10 amendments. These rights were deemed
to be beyond the vagaries of politics. The protection by the constitution meant
that these rights could not be put to vote and were not dependent on the whims
of politicians or of the majority.

After this, nearly all democracies of the world have given a constitutional sanctity
to certain inalienable rights available to their citizens. (Source: Hanumant.com)

The need for Fundamental Rights

1. Rule of Law
These rights are a protection to the citizens against the govt and are necessary
for having the rule of law and not of a a govt or a person. Since explicitly given by
the constitution to the people, these rights dare not be transgressed by the
authority. The govt. is fully answerable to the courts and is fully required to
uphold these rights.

2. First fruits of the freedom struggle

After living in subjugation for such a long time, people had forgotten what is
meant by freedom. These rights give people hope and belief that there is no
stopping to their growth. They are free from the whims of the rulers. In that sense,
they are first fruits of the lengthy freedom struggle and bring a sense of
satisfaction and fulfillment.

3. Quantification of Freedom
Every Indian citizen in free to practice a religion of his choice, but that is not so in
the gulf countries. Our right to speech and expression allows us to freely criticize
the govt. but this is not so in China. (Source: Hanumant.com)

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Fundamental Rights in India
As regard India Simon Commission and Joint Parliamentary Committee had reject
the idea of enacting declaration of Fundamental right on the ground that the
abstract declaration is useless. Although the demand of the people was not met
by the British Parliament under the government of India Act 1935 yet the
enthusiasm of the people to have such right in the constitution was not impaired.
The recommendation of the Nehru Committee was included in the constitution in
16 May’1946 by the cabinet mission.

PART III talks about the fundamental rights such as:

 Right to Equality (Article 14 – 18)

 Right to Freedom (Article 19 – 22)
 Right against Exploitation (Article 23 – 24)
 Right to freedom of Religion (Article 25 – 28)
 Cultural and Educational Right (Article 29 – 30)
 Right to Constitution Right (Article 32)

Art. 19(1)a – 19(1)g and Art. 19(2) places reasonable restriction on rights. Our
rights are not absolute rights.

Definition of State
Article 12 of the Constitution defines the State as follows:

“In this part, unless the context otherwise requires, “the State” includes the
Government and Parliament of India and the Government and the Legislature of
each of the States and all local or other authorities within the territory of India or
under the control of the Government of India.”

The definition of the term “the State” specifies the authorities and
instrumentalities functioning within or without the territory of India, which shall
be deemed to be “the State” for the purpose of part III of the Constitution. The
definition is inclusive and not exhaustive. Therefore, authorities and
instrumentalities not specified in it may also fall within it if they otherwise satisfy
the characteristics of “the State” as defined in this article.

Local Authorities
A local authority having a legal grievance may be able to take out a writ. Thus, a
writ was issued on the petition of a local authority against a public utility concern,
for the latter’s failure to fulfil its statutory obligation to supply power to the local
authority, a consumer;

Case Law:

Corporation of City of Nagpur v. N.E.L & Power Co., AIR 1958 Bom 498

Other Authorities
Mr. Justice Bhagwati has given following test for determining whether an entity is
an instrumentality or agency of the State –

 Share capital of the corporation is held by Government

 Where the financial assistance of the State is so much as to meet almost
entire expenditure of the corporation
 State protected monopoly status of a corporation
 Existence of deep and pervasive State control

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 If the functions of the corporations of public importance and closely related
to governmental functions

Article 13: Laws inconsistent with or in derogation of the fundamental rights

Case Laws:

1. A.K. Gopalan Vs. State of Madras. 1951

By unanimous decision declared that Section 14 of the Act invalid and thus
manifested its competence to declare void any parliamentary enactment
repugnant to the provisions of the Constitution.
2. Minerva Mills case, 1980
Supreme Court had trunk down section 4 of the 42nd Amendment Act which
gave preponderance to the Directive Principles over Articles 24, 19 and 31 of
the Part III of the Constitution, on the ground that Part III and Part IV of the
Constitution are equally important and absolute primacy of one over the other
is not permissible as that would disturb the harmony of the Constitution.The
Supreme Court was convinced that anything that destroys the balance
between the two part will, by that very fact, destroy an essential element of the
basic structure of our constitution

Doctrine of Severability
Article 13 of the Indian Constitution provides for Doctrine of Severability which
states that All laws in force in India before the commencement of Constitution
shall be void in so far they are inconsistent with the provisions of the
Constitution.

A law becomes invalid only to the extent to which it is inconsistent with the
fundamental rights. So only that part of the law will be declared invalid which is
inconsistent, and the rest of the law will stand. However, on this point a
clarification has been made by the courts that invalid part of the law shall be
severed and declared invalid if really it is severable, i.e if after separating the
invalid part the valid part is capable of giving effect to the legislature’s
intent, then only it will survive, otherwise the court shall declare the entire law as
invalid.

Case Laws:

1. A.K. Gopalan v. State 0f Madras

held that the preventive detention minus section 14 was valid as the omission
of the Section 14 from the Act will not change the nature and object of the Act
and therefore the rest of the Act will remain valid and effective.
2. D.S. Nakara v. Union of India
the Act remained valid while the invalid portion of it was declared invalid
because it was severable from the rest of the Act.
3. R.M.D.C. v.Union of India, AIR 1957 S.c. 628
1. The intention of the legislature is the determining factor in determining
whether the valid parts of a statue are severable from the invalid parts.
2. If the valid and invalid provisions are so inextricably mixed up so that they
cannot be separated from the other, then the invalidity of a portion must result
in the invalidity of the Act in its entirety.
3. Even when the provisions which are invalid, are distinct and separate from
those which are invalid if they form part of a single scheme which is intended
to be operative as a whole, then also the invalidity of a part will result in the
failure of the whole.
4. If after the invalid portion is expunged from the Statute what remains
cannot be enforced without making alterations and modifications therein, then
the whole of it must be stuck down as void as otherwise it will amount to
judicial legislation.

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Doctrine of Eclipse
It states that an existing law which is inconsistent with a fundamental right
become inoperative from the date of the commencement of the constitution, it
cannot be accepted as dead altogether. The Doctrine of Eclipse is based on the
principle that a law which violates fundamental rights, is not nullity or void ab
initio but becomes, only unenforceable i.e. remains in a moribund condition. “It is
over-shadowed by the fundamental rights and remains dormant, but it is not
dead.” .

Case Laws:

1. Bhikhaji v. State of M.P., AIR 1955 S.c. 781

“In this case the provisions of.C.P. and Berar Motor Vehicles (Amendment)
Act 1948 authorized the State Government to take up the entire motor
transport business in the Province to the exclusion of motor transport
operators. This provision though valid when enacted, but became void on the
commencement of the Constitution in 1950 as they violated Article 19(1 )(g) of
the Constitution. However, in 1951 Clause (6) of Article 19 was amended by
the Constitution (1st Amendment Act) so as to authorize . the Government to
monopolise any business. The Supreme Court held that the effect of the
amendment was to remove the shadow and to make the impugned Act free
from blemish or infirmity. It became enforceable against citizens as well as
non-citizens after the constitutional impediment was removed. This law was
eclipsed for the time being by the fundamental rights. As soon as the eclipse
is removed, the law begins to operate from the date of such removal”.
(Courtesy: Adv. Smita via LegalServices.co.in)

Right to Equality (Article 14-18)

Application of the same laws uniformly to all of them will, therefore, be
inconsistent with the principle of equality.

Article 14 – Equality before law

The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India. Prohibition of discrimination on
grounds of religion, race, caste, sex or place of birth.

It is the core article under Right to Equality. It deals with two kinds of rights. It
states that the State shall not deny to any person

1. Right to equality before the law.

2. Right to Equal Protection before the law.

1. Right to Equality before the law

It is a negative concept because it means that no man is above the law or in other
words all individuals are subject to the Law of the land. Rule of law means the
absolute supremacy of ordinary law of land as opposed to the influence of
arbitrary power of the ruler.

The three principles which govern the Rule of law are:

 (I) No man shall be punished either in body or goods (material) except for
the violation of law in force. Further, the violation of law shall be established
in an ordinary court of land in an ordinary legal manner.
 (II) All individuals irrespective of their social or economic understanding
are subject to ordinary law of land. Further, all the individuals are subject to
the jurisdiction of the court. I.e. all individuals can be sued before the court. A
person can appear before the court in form of attorney or himself.

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 (III) The constitution is the result of ordinary Law of land.

However the third rule had been modified in its application under the Indian
constitution where the third law reads as the Constitution is Supreme law of Land
and all laws passed by the legislature shall conform to it to be legally valid.

SIGNIFICANCE OF RULE OF LAW

(i) It is the adoption of rule of law that has changed the constitution from Rex Lex
(king is law) to Lex Rex (Law is king)
(ii) The rule of law is essential to maintain an individual’s liberty. Therefore, Rule
of law is an essential feature of democracy.

PROTECTION OF RULE OF LAW

The constitution under article 32 and 226 confers the power on Supreme Court
and the High Court’s respectively to safeguard the Rule of law by exercising the
writ jurisdictions. Further the constitution emphasizes that the Rule of Law is an
immutable Principle of Governance of the Country.

In Keshavananda Bharati Vs State of Kerala, 1973 case Supreme Court held that
the Rule of Law is a part of basic structure of the constitution and cannot be
destroyed.

EXCEPTIONS TO THE RULE OF LAW

 (1) Article 361- The President or the Governor of State is not answerable to
a court of law with regard to exercise of its executive functions.
 (2) No criminal proceedings whatsoever can be instituted against the
President and Governor of State during his/her term of office. He should be
first remove impeached to continue the proceedings against him.
 (3) No civil proceedings in which relief is claimed can be instituted against
the President or the Governor of State in a court, except of the expiry under a
2 month notice served on the President and Governor.
 (4) According to the International Laws- The visiting subject to the
jurisdiction of local court.

2. Equal protection before Law

 (1) It originated as a concept in USA.

 (2) It is a positive concept.
 (3) It means equality of treatment in equal circumstances. Among equals
the law shall be equal and equally administered. “The like should be treated
alike”. All the persons placed in equal circumstances shall be treated
similarly. Therefore, it ensures equality among equals. It does not mean
inequality among equals.
 (4) It allows State to classify individuals on a reasonable basis into similar
groups. Once such a classification is made, the law shall apply equally among
all the people within a group. Then no person within a group shall be treated
differently. However, the State is free to discriminate people between the
groups.
 (5) The concept of equal protection before law is also called “Positive
Discrimination” on the Part of the State and the policy of reservation is legally
justified under it.
 (6) This concept is based on the Aristotelian Principle that ‘Equality can
exist only among the equals and equality cannot exist among unequals.

Thus the Legislative may:

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 (i) Exempt certain classes of property from taxation such as charities,
libraries etc.
 (ii) Impose different specific takes upon different trades and professions.
 (iii)Tax income and property of individuals in different manner etc.

CASE LAWS
Air India Etc. Etc vs Nergesh Meerza & Ors. Etc. Etc on 28 August, 1981

A.H. under A.I. was retired from service in the following contingencies:

 (a) On attaining the age of 35 years;

 (b) On marriage if it took place within four years of the service; and
 (c) On first pregnancy.

The court held that the last portion of regulation 46 (i) (c) struck down. The
provision ‘or on first pregnancy whichever occurs earlier’ is unconstitutional,
void and violative of Article 14 of the Constitution and will, therefore, stand
deleted. It will, however, be open to the Corporation to make suitable
amendments.

It is undisputed that what Art. 14 prohibits is hostile discrimination and not

reasonable classification. If equals and unequals are differently treated, there is
no discrimination so as to amount to an infraction of Art. 14 of the Constitution. A
fortiori if equals or persons similarly circumstanced are differently treated,
discrimination results so as to attract the provisions of Art. 14.

Case Laws:

 Bhagwati Justice of the Supreme Court in Maneka Gandhi v Union of India

 Ramana Dayaram Shetty v International Airport Authority (IAA)
 Mithu v State of Punjab
 Ramakrishna Dalmia v Justice Teldolkar
 Air India v Nergesh Meerza and others
 Indian Council of Legal Aid and Advice, etc. etc. v Bar Council of India and
another

Article 15 – Prohibition of discrimination on grounds of religion, race, caste, sex

or place of birth
Protective Discrimination

Case Laws:

Mrs. Valsamma Paul v Cochin University and others

Githa Hariharan v Reserve Bank of India

Pranatosh Roy (Dr.) v University of Calcutta

Sexual Harassment
Vishaka v State of Rajasthan

Women Reservation
Rajesh Kumar Gupta v State of U.P.

83
P. Sagar v State of A.P.

Dattareya v State of Bombay

Women Reservation Bill

Article 16 – Equality of opportunity in matters of public employment
CASES

M.R. BALAJI V STATE OF MYSORE

DEVADASAN V UNION OF INDIA
STATE OF KERALA V N.M. THOMAS
AKHIL BHARATIYA KARMACHARI SANGH V UNION OF INDIA
INDIRA SAWHNEY & OTHERS V UNION OF INDIA AND OTHERS
Promotions – Before & After the 77th Amendment of the Constitution
Article 17 – Abolition of Untouchability
“Untouchability” is abolished and its practice in any form is forbidden. The
enforcement of any disability arising out of “Untouchability” shall be an offence
punishable in accordance with law.

 Casteism is a great enemy.

 Casteism is founded on “Manusmrithi” in the ancient India.
 Several Acts such as: the Scheduled Castes  and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, Protection of Civil Rights Act, 1955
 Punishment

Article 18 – Abolition of titles

No title, not being a military or academic distinction, shall be conferred by the
State.

No citizen of India shall accept any title from any foreign State.

No person who is not a citizen of India shall, while he holds any office of profit or
trust under the State, accept without the consent of the President any title from
any foreign State.

No person holding any office of profit or trust under the State shall, without the
consent of the President, accept any present, emolument, or office of any kind
from or under any foreign State

 BHARAT RATNA, PADMA VIBHUSHAN, PADMA BHUSHAN AND PADMA

SHRI AWARDS:
THE ORDER OF LEOPOLD
Fundamental Rights
The Constitution of India contains the right to freedom, given in articles 19, 20, 21
and 22, with the view of guaranteeing individual rights that were considered vital
by the framers of the constitution. The right to freedom in Article 19 guarantees
the following six freedoms:

Freedom of speech and expression, which enable an individual to participate in

public activities. The phrase, “freedom of press” has not been used in Article 19,

84
but freedom of expression includes freedom of press. Reasonable restrictions
can be imposed in the interest of public order, security of State, decency or
morality.

Freedom to assemble peacefully without arms, on which the State can impose
reasonable restrictions in the interest of public order and the sovereignty and
integrity of India.

Freedom to form associations or unions on which the State can impose

reasonable restrictions on this freedom in the interest of public order, morality
and the sovereignty and integrity of India.

Freedom to move freely throughout the territory of India though reasonable

restrictions can be imposed on this right in the interest of the general public, for
example, restrictions may be imposed on movement and travelling, so as to
control epidemics.

Freedom to reside and settle in any part of the territory of India which is also
subject to reasonable restrictions by the State in the interest of the general public
or for the protection of the scheduled tribes because certain safeguards as are
envisaged here seem to be justified to protect indigenous and tribal peoples from
exploitation and coercion. Article 370 restricts citizens from other Indian states
and Kashmiri women who marry men from other states from purchasing land or
property in Jammu & Kashmir.

Freedom to practice any profession or to carry on any occupation, trade or

business on which the State may impose reasonable restrictions in the interest of
the general public. Thus, there is no right to carry on a business which is
dangerous or immoral. Also, professional or technical qualifications may be
prescribed for practicing any profession or carrying on any trade.
The constitution guarantees the right to life and personal liberty, which in turn
cites specific provisions in which these rights are applied and enforced:
Protection with respect to conviction for offences is guaranteed in the right to life
and personal liberty.

Protection of certain rights regarding freedom of speech etc

(1) All citizens shall have the right

 (a) to freedom of speech and expression;

 (b) to assemble peaceably and without arms;
 (c) to form associations or unions;
 (d) to move freely throughout the territory of India;
 (e) to reside and settle in any part of the territory of India; and
 (f) omitted
 (g) to practise any profession, or to carry on any occupation, trade or
business

(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any
existing law, or prevent the State from making any law, in so far as such law
imposes reasonable restrictions on the exercise of the right conferred by the said
sub clause in the interests of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public order, decency or morality
or in relation to contempt of court, defamation or incitement to an offence

(3) Nothing in sub clause (b) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and integrity of India or public order,

85
reasonable restrictions on the exercise of the right conferred by the said sub
clause

(4) Nothing in sub clause (c) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the sovereignty and integrity of India or public order
or morality, reasonable restrictions on the exercise of the right conferred by the
said sub clause

(5) Nothing in sub clauses (d) and (e) of the said clause shall affect the operation
of any existing law in so far as it imposes, or prevent the State from making any
law imposing, reasonable restrictions on the exercise of any of the rights
conferred by the said sub clauses either in the interests of the general public or
for the protection of the interests of any Scheduled Tribe

(6) Nothing in sub clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law
imposing, in the interests of the general public, reasonable restrictions on the
exercise of the right conferred by the said sub clause, and, in particular, nothing
in the said sub clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to,

 (i) the professional or technical qualifications necessary for practising any

profession or carrying on any occupation, trade or business, or
 (ii) the carrying on by the State, or by a corporation owned or controlled by
the State, of any trade, business, industry or service, whether to the
exclusion, complete or partial, of citizens or otherwise

MANEKA GANDHI VS UNION OF INDIA

Protection in respect of conviction for offences

 (1) No person shall be convicted of any offence except for violation of the
law in force at the time of the commission of the act charged as an offence,
nor be subjected to a penalty greater than that which might have been
inflicted under the law in force at the time of the commission of the offence
 (2) No person shall be prosecuted and punished for the same offence more
than once
 (3) No person accused of any offence shall be compelled to be a witness
against himself

According to Article 20, no one can be awarded punishment which is more than
what the law of the land prescribes at that time. This legal axiom is based on the
principle that no criminal law can be made retrospective, that is, for an act to
become an offence, the essential condition is that it should have been an offence
legally at the time of committing it. Moreover, no person accused of any offence
shall be compelled to be a witness against himself. “Compulsion” in this article
refers to what in law is called “Duress” (injury, beating or unlawful imprisonment
to make a person do something that he does not want to do). This article is
known as a safeguard against self incrimination. The other principle enshrined in
this article is known as the principle of double jeopardy, that is, no person can be
convicted twice for the same offence, which has been derived from Anglo Saxon
law. This principle was first established in the Magna Carta.

21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law
Protection of life and personal liberty is also stated under right to life and
personal liberty. Article 21 declares that no citizen can be denied his life and
liberty except by law. This means that a person’s life and personal liberty can

86
only be disputed if that person has committed a crime. However, the right to life
does not include the right to die, and hence, suicide or an attempt thereof, is an
offence. (Attempted suicide being interpreted as a crime has seen many debates.
The Supreme Court of India gave a landmark ruling in 1994. The court repealed
section 309 of the Indian penal code, under which people attempting suicide
could face prosecution and prison terms of up to one year. In 1996 however
another Supreme Court ruling nullified the earlier one.) “Personal liberty”
includes all the freedoms which are not included in Article 19 (that is, the six
freedoms). The right to travel abroad is also covered under “personal liberty” in
Article 21.

In 2002, through the 86th Amendment Act, Article 21(A) was incorporated. It made
the right to primary education part of the right to freedom, stating that the State
would provide free and compulsory education to children from six to fourteen
years of age. Six years after an amendment was made in the Indian Constitution,
the union cabinet cleared the Right to Education Bill in 2008. It is now soon to be
tabled in Parliament for approval before it makes a fundamental right of every
child to get free and compulsory education.

The constitution also imposes restrictions on these rights. The government

restricts these freedoms in the interest of the independence, sovereignty and
integrity of India. In the interest of morality and public order, the government can
also impose restrictions. However, the right to life and personal liberty cannot be
suspended. The six freedoms are also automatically suspended or have
restrictions imposed on them during a state of emergency.

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Directive Principles of State Policy – Art. 36 – 51

Definition of State – Art. 36
Application of the principles – Art. 37
State to secure a Social order for the Promotion of Welfare of the People – Art. 38
Certain Principles of Policy to be followed by the State – Art. 39
Equal Justice and Free Legal Aid – Art. 39-A
Organization of Village Panchayats – Art. 40
Right to Work, to Education and to Public Assistance in Certain Cases – Art. 41
Provision for Just and Humane Conditions of Work and Maternity Relief – Art. 42
Living Wage, etc., for Workers – Art. 43
Participation of Workers in Management of Industries – Art. 43-A
Uniform Civil Code for the Citizens – Art. 44
Organization of Agriculture and Animal Husbandry – Art 48
Protection and Improvement of Environment and Safeguarding of Forests and
Wild Life – Art. 48-A
Protection of Monuments and Places and Objects of National Importance – Art. 49
Separation of Judiciary from Executive / Independence of Judiciary – Art. 50
Promotion of International Peace and Security – Art. 51
The Fundamental Duties – Art. 51-A
President of India, Governor and Council of Ministers
The Executive – The President  and Vice President – Arts. 52-78, 123
The President – Appointment, Removal & Powers of the President – Arts. 52-78,
123
Distinction between the Indian President and the American President
The Election of the President of India – Arts. 54 – 62

87
The Vice-President – Arts. 63 – 69
The Attorney-General for India – Art. 76
To Aid and Advise the President – the Collective Responsibility / the Council of
Ministers – Arts. 74 & 75
Conduct of Government Business – Arts 77 & 78
The Executive – the Governor – Arts. 153 – 167 & 213
The Council of Ministers to Aid and Advise the Governor – Arts. 163 & 164
The Advocate-General for the State – Arts. 165
Parliamentary Government – Art. 79 – 122
The General Provisions relating to Parliament – Arts. 79 – 122
Anti-defection Law / Disqualification of Members – Arts. 101 – 104 & 10th
Schedule
Powers, Privileges and Immunities of Parliament and its members – Arts. 105 –
106 and of the State Legislative Assemblies and their members – Arts. 194 – 195
Legislative Procedure of the Parliament – Arts. 107 – 122
Bicameralism
LAW OF TORTS – UNIT I: REVISION NOTES FOR LL.B – FIRST YEAR
Introduction to the Law of Torts
The word tort is of French origin and is equivalent of the English word wrong. It is
derived from the Latin word tortum, which means twisted or crooked. It implies
conduct that is twisted or crooked. Tort is commonly used to mean a breach of
duty amounting to a civil wrong.

Salmond defines tort as a civil wrong for which the remedy is a

common law action for unliquidated damages and which is not exclusively the
breach of a contract or the breach of a trust or other merely equitable
obligation.

A tort arises due to a person’s duty to others which is created by one law or the
other. A person who commits a tort is known as a tortfeaser, or a wrongdoer.
Where they are more than one, they are called joint tortfeaser. Their wrongdoing
is called tortuous act and they are liable to be sued jointly and severally.

The principle aim of the Law of tort is compensation for victims or their
dependants. Grants of exemplary damages in certain cases will show that
deterrence of wrong doers is also another aim of the law of tort.

Evolution of Law of Torts in India

The law of torts in India is mainly the English law of torts which is based on the
principles of the ‘common law’. This was made suitable to the Indian conditions
in accordance with the principles of justice, equity and good conscience.
However, the application of tort laws in India is not a very regular event and one
can even go to the extent of commenting that tort as a law in India is far from
being looked upon as a major branch of law and litigation. In the Indian legal
system, the concept of ‘punishment’ occupies a more prominent place than
‘compensation’ for wrongs.

It has been argued that the development of law of tort in India need not be on the
same lines as in England.

In M.C. Mehta v. Union of India, Justice Bhagwati said, “we have to evolve new

principles and lay down new norms which will adequately deal with new problems

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which arise in a highly industrialized economy. We cannot allow our judicial
thinking to be constructed by reference to the law as it prevails in England or for
the matter of that in any foreign country. We are certainly prepared to receive
light from whatever source it comes but we have to build our own jurisprudence.”

Objectives of Law of Torts

 to determine the rights between parties to dispute

 to protect certain rights recognized by law
 to prevent the continuation or repetition of a harm
 to restore the property to its rightful owner

Scope of Tort
Tort & Contract

1. In a contract, the parties fix the duties themselves whereas in torts, the law

fixes the duty.
2. A contract stipulates that only the parties to the contract can sue and be
sued on it (privity of contract) while in tort, privity is not needed in order to
sue or be sued.
3. In the case of contract, the duty is owed to a definite person(s) while in tort,
the duty is owed to the community at large i.e. duty in- rem.
4. In contract remedy may be in the form of liquidated or
unliquidated damages whereas in tort, remedies are always unliquidated.

Tort & Crime

1. In tort, the action is brought in the court by the injured party to obtain

compensation whereas in crime, proceedings are conducted by the state.
2. The aim of litigation in torts is to compensate the injured party while in
crime; the offender is punished by the state in the interest of the society.
3. A tort is an infringement of the civil rights belonging to individuals while a
crime is a breach of public rights and duties, which affect the whole
community.
4. Parties involved in criminal cases are the Prosecution verses the Accused
person while in Torts, the parties are the Plaintiff versus the Defendant.

Constituents of Tort
The law of tort is an instrument to enforce reasonable behavior and respect the
rights and interests of one another. A protected interest gives rise to a legal right,
which in turn gives rise to a corresponding legal duty. An act, which infringes a
legal right, is wrongful act but not every wrongful act is a tort.

To constitute a tort or civil injury therefore:

1. There must be a wrongful act or omission.

2. The wrongful act or omission must give rise to legal damage or actual
damage and;
3. The wrongful act must be of such a nature as to give rise to a legal remedy
in the form of an action for damages.

The wrongful act or omission may however not necessarily cause actual damage
to the plaintiff in order to be actionable. Certain civil wrongs are actionable even
though no damage may have been suffered by the plaintiff.

01. Wrongful Act

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An act or omission that prejudicially affect one’s legal right. Such legally violative
wrongful act is called as actus reus. Thus, liability for a tort arises when the
wrongful act amounts to either an infringement of a legal private right or a
breach.

An act, which at first, appears to be innocent may become tortuous if it invades

the legal right of another person e.g. the erection in one’s own land which
obstructs light to a neighbors’ house. Liability for a tort arises when the wrongful
act amounts to an infringement of a legal right or a breach.

02. Damage

The sum of money awarded by court to compensate damage is called damages.

Damage means the loss or harm caused or presumed to be suffered by a person
as a result of some wrongful act of another. Legal damage is not the same as
actual damage.

The real significance of legal damage is illustrated by two maxims namely:

Injuria sine damno and Damnum sine injuria

Injuria sine damno (Injury without damage)

It means violating of a legal right without causing any harm, loss or damage to
the plaintiff. There are two kinds of torts: firstly those torts which are actionable
per se, i.e. actionable without the proof of any damage or loss. For instance,
trespass to land, is actionable even though no damage has been caused as a
result of the trespass.

Secondly, the torts which are actionable only on the proof of some damage
caused by an act. For successful actions the only thing which has to be proved is
that the plaintiff’s legal right has been violated, i.e. there is injuria.

Case Law: Refusal to register a voter was held as and injury per-se even when the
favorite candidate won the election – Ashby Vs. White (1703). This rule is based
on the old maxim of law, Ubi jus ibi remedium, which means that where there is a
right, there is a remedy.

Damnum sine injuria (Damage without injury)

It means “There may be an injury inflicted without any act of injustice.” There is
another term like it that is “damnum absque injuria“, which means damage or
harm without an injury in the legal sense. In other words a loss or injury to
someone which does not give that person a right to sue the person causing the
loss.

Case Laws:

In the case of Mayor & Bradford Corporation Vs. Pickles (1895), Pickles was
annoyed by the refusal of Bradford Corporation to purchase his land for their
water undertaking. Out of spite, he sank a shaft on his land, which had the effect
of discoloring and diminishing the water of the Corporation, which percolated
through his land. The House of Lords held that the action of Pickles was lawful
and no matter how ill his motive might be he had a right to act on his land in any
manner that so pleases him.

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In the case of Mogul Steamship Co. Vs. Me-Gregory (1892). Certain ship owners
combined together. In order to drive a ship-owner out of trade by offering cheap
freight charges to customers who would deal with them. The plaintiff who was
driven out of business sued the ship-owner, for loss caused to him by their act.
The court held that a trader who is ruined by legitimate competition of his rivals
could not get damages in tort.

03. Remedy – Development of Ubi jus ibi Remedium

The law of torts is said to be a development of the maxim ubi jus ibi remedium
(there is no wrong without a remedy). Whenever the common law gives a right or
prohibits an injury, it also gives a remedy. It is an elementary maxim of equity
jurisprudence that there is no wrong without a remedy.

The maxim means only that legal wrong and legal remedy are correlative terms.

A tort is a civil injury, but all civil injuries are not torts. The wrongful act must
come under the category of wrongs for which the remedy is a civil action for
damages. The essential remedy for a tort is an action for damages, but there are
other remedies also e.g., injunction, restitution, etc.

Case Law:

In the case of Abbot v. Sullivan, the court held that there is a right to receive a
time-barred debt but there is no remedy to recover it.

Foundations of Tortious Liability

Tortious liability arises from the breach of a duty primarily fixed by the law: such
duty is towards persons generally and its breach is compensated by an action for
unliquidated damages.

• Theory 1: By Winfield – Law of Tort – General Liability: all injuries done to

another person are torts, unless there be some justification recognized by the law

• Theory 2: By Salmonds – Pigeon Theory – Law of Torts: there is a definite

number of torts (assault, battery, defamation) outside which liability in tort does
not exist

Case Law:

Rougher, J., described in the case of John Munroe (Acrylics) Ltd. v. London Fire
and Civil Defence Authority, “It is truism to say that we live in the age of
compensation. There seems to be a growing belief that every misforture must, in
pecuniary terms at any rate, be laid at someone else’s door, and after every
mishap, the cupped palms are outstretched for the solace of monetary
compensation.”

General Elements of Torts

Act & Omission
To constitute a tort, there must be a wrongful act. The word “act” is used to
include both positive and negative acts i.e., acts and omissions. Wrongful acts
which make a person liable in tort are positive acts and sometimes omissions.
They must be distinguished from natural calamities, and even from mere
thoughts and intentions.

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Failure to do something in doing an act is a bad way of performing the act. For
example, if a lawyer gives an opinion without taking notice of the change in law
brought about by a reported decision of the Supreme Court, he would not be
guilty of an omission but of performing the act of giving his opinion in a bad way.

Where as an omission is failure to do an act as a whole. Generally, the law does

not impose liability for mere omissions. An omission incures liability when there
is a duty to act. For example, a person cannot be held responsible for the
omission of not rescuing a stranger child whom he sees drowning even though
he can rescue him without any appreciable exertion or risk of harm to himself.
But the result would be different if a parent or guardian is failed to attempt to
rescue the child. In that case, it would be an omission as there is a duty to act.

Voluntary Acts & Involuntary Acts

A voluntary act may be distinguished from an involuntary act as only voluntary
acts have liability. Voluntary act can be understand based on its willed mascular
contraction, its circumstances and its consequences. For example, an act of
murdering a person by shooting at him is one act and not merely the muscular
contraction of pressing the trigger.

An involuntary act does not give rise to any liability. For example, an involuntary
act of trespass is not a tort.

Omissions like positive acts may also be voluntary or involuntary.

In the case of Olga Tellis v. Bombay Municipal Corporation, the Supreme Court

held that the encroachments committed by those persons are involuntary acts in
the sense that those acts are compelled by inevitable circumstances and are not
guided by choice.

Mental elements
A voluntary act can be held in strict liability if there’s a presence of required
mental element i.e., malice, intention, negligence or motive in addition to the
other necessary ingredients of the torts are present.

O MALICE IN LAW AND IN FACT

Malice means spite or ill-will. However, in law malice has two distinct meanings
such as: 1. Intentional doing of a wrongful act and 2. Improper motive. In the first
sense, malice is synonymous with intention and in the second sense, malice
refers to any motive which the law disapproves.

Malice with an intention of wrongful act is called as Malice in Law. It is also called
as implied malice. In a legal sense, malice means a wrongful act, done
intentionally, without just cause or excuse. For example, if a person give a perfect
stranger a blow likely to produce death, the person do it out of malice because,
he do it intentionally and without just cause or excuse.

Malice with an improper motive is called as Malice in fact. It is also called

as express malice. Malice in fact is liable for malicious prosecution.

Wrongful acts of which malice is an essential element are:

 Defamation
 Malicious prosecution
 Willful and malicious damage to property
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O INTENTION, NEGLIGENCE AND RECKLESSNESS
Intention is an internal fact, something which passes in the mind and direct
evidence of which is not available. There’s a popular saying that it is common
knowledge that the thought of man shall not be tried, for the devil himself
knoweth not the thought of man.

In general terms, negligence is “the failure to use ordinary care” through either

an act or omission. That is, negligence occurs when:

 somebody does not exercise the amount of care that a reasonably careful
person would use under the circumstances; or
 somebody does something that a reasonably careful person would not do
under the circumstances.

In the case of Dulieu Vs. White & Sons (1901), the plaintiff, a pregnant woman,
was sitting behind the counter of her husband?s bar when suddenly a horse was
driven into the bar. Fearing her personal safety, she suffered nervous shock and
gave birth to a premature baby. In the circumstances, the court held that the
plaintiff was entitled to recover in negligence.
Recklessness is also called as gross negligence. Gross negligence means
conduct or a failure to act that is so reckless that it demonstrates a substantial
lack of concern for whether an injury will result. It is sometimes necessary to
establish “gross negligence” as opposed to “ordinary negligence” in order to
overcome a legal impediment to a lawsuit. For example, a government employee
who is on the job may be immune from liability for ordinary negligence, but may
remain liable for gross negligence.
O MOTIVE
Motive is the ulterior object or purpose of doing an act. It differs from intention in
two ways. First, intention relates to the immediate objective of an act, whereas,
motive refers to the ulterior objective. Secondly, motive refers to some personal
benefit of satisfaction which the actor desires whereas intention need not be so.

For example, When A poisons B, the immediate objective is to kill B and so this is
A’s intention. The ulterior objective of A may be to secure B’s estate by
inheritance or under a will executed by him and this objective will be A’s motive.
Motive is generally irrelevant in tort.

In the case of Mayor & Co. of Bradford v. Pickles, A sank a well on his land and
thereby cut off underground water-supply from his neighbour B, and B’s well was
dried up. It was not unlawful for a land-owner to intercept on his own land
underground percolating water and prevent it from reaching the land of his
neighbour. The act did not become unlawful even though A’s motive in so doing
was to coerce B to buy his land at his own price. A, therefore, was not liable to B,
however improper and malicious his motive might be.

O MALFEASANCE, MISFEASANCE, NON-FEASANCE

The term “Malfeasance” applies to the commission of an unlawful act. It is
generally applicable to those unlawful acts, such as trespass, which are
actionable per se and do not require proof of intention or motive.

The term “Misfeasance” is applicable to improper performance of some lawful act

for example when there is negligence.

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The term “non-feasance” applies to the omission to perform some act when there
is an obligation to perform it. Non-feasance of gratuious undertaking does not
impose liability, but misfeasance does.

 M.C. Mehta v. Union of India

O FAULT
If mental elements such as intention, negligence, malice or motive together with
an act or omission which is violative of a right recognized by law plays an
important role in creating liability. Such tortious liability has an element of fault to
support it. But there is a sphere of tortious liability which is known as absolute or
strict liability, where the element of fault is conspicuously absent.

In the case of M.C. Mehta v. Union of India, the rule of strict liability is laid down
that an enterprise engaged in a hazardous or inherently dangerous activity is
strictly and absolutely liable for the harm resulting from the operation of such
activity.

Study Notes on Law of Torts – UNIT II

General Defenses
Justification of Torts
O ACT OF STATE
An act of State is outside the ordinary law, it is essentially an exercise of
sovereign power as a matter of policy or political expediency. For example, when
the person or the property of a person who is not a British-subject and who is not
residing in British territory is injured by an act “done by any representative of Her
Majesty’s authority, civil or military, and which is either previously sanctioned or
subsequently ratified by Her Majesty, the person injured has no remedy for such
an act is an act of State.

In the often quoted case of Buron v. Denman, the defendant, a captain in the

Royal Navy, released the slaves and set fire to the slave barracoons of the
plaintiff, a Spaniard, on the West coast of Africa, outside British dominions.
The defendant originally had no authority but his act was ratified by the Crown. It
was held that the plaintiff had no remedy against the defendant.

O JUDICIAL ACTS
The Judicial Officers Protection Act, 1850 – Under this Act, no Judge, Magistrate,
Justice of the Peace, Collector, or other person acting judicially, can be sued in
any Court, for any act done by him in the discharge of his judicial duty. Provided
that such acts were done in good faith.

O EXECUTIVE ACTS
The State and its officers are not liable when the wrongful act falls within the
purview of Act of State. The State is also vicariously liable for torts committed by
its officers in the course of employment except when they are committed while
discharging traditional sovereign functions.

 State of Rajasthan v. Prakash Chand

O VOLENTI NON FIT INJURIA – LEAVE AND LICENCE

The general rule is that a person cannot complain for harm done to him if he
consented to run the risk of it. For example a boxer, foot baler, cricketer, etc

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cannot seek remedy where they are injured while in the game to which they
consented to be involved. Where a defendant pleads this defense, he is in effect
saying that the plaintiff consented to the act, which he is now complaining of. It
must be proved that the plaintiff was aware of the nature and extent of the risk
involved.

In the case of Khimji Vs Tanga Mombasa Transport Co. Ltd (1962), the plaintiffs
were the personal representatives of a deceased who met his death while
traveling as a passenger in the defendant’s bus. The bus reached a place where
road was flooded and it was risky to cross. The driver was reluctant to continue
the journey but some of the passengers, including the deceased, insisted that the
journey should be continued. The driver eventually yielded and continued with
some of the passengers, including the deceased. The bus got drowned together
with all the passengers aboard. The deceased’s dead body was found the
following day.

It was held that the plaintiff’s action against the defendants could not be
maintained because the deceased knew the risk involved and assumed it
voluntarily and so the defense of Volenti non fit injuria rightly applied.

O ADMINISTRATIVE ACTS

 Dunlop v. Woolhara Municipal Council

O ACTS OF GOVERNING BODY

O PARENTAL & QUASI-PARENTAL AUTHORITY

 Sankunni v. Swaminatha Pattar

O AUTHORITIES OF NECESSITY

 Lamb v. Burnett

O STATUTORY AUTHORITY
When the commission of what would otherwise be a tort, is authorized by a
statute the injured person is remediless, unless so far as the legislature has
thought it proper to provide compensation to him. The statutory authority
extends not merely to the act authorized by the statute but to all inevitable
consequences of that act. But the powers conferred by the legislature should be
exercised with judgment and caution so that no unnecessary damage is done, the
person must do so in good faith and must not exceed the powers granted by the
statute otherwise he will be liable.

In the Case of Vaugham Vs. Taffvale Railway Co. (1860), A railway company was
authorized by statute to run a railway, which traversed the plaintiff’s land. Sparks
from the engine set fire to the plaintiff’s woods. It was held that the railway
company was not liable. It had taken all known care to prevented emission of
sparks. The running of locomotives was statutorily authorized.

O INEVITABLE ACCIDENT
This means an accident, which cannot be prevented by the exercise of ordinary
care, caution or skill of an ordinary man. It occurs where there is no negligence
on the part of the defendant because the law of torts is based on the fault
principle; an injury arising out of an inevitable accident is not actionable in tort.

In the case of Stanley Vs. Powell (1891), the plaintiff was employed to carry
cartridge for a shooting party when they had gone pheasant-shooting. A member
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of the party fired at a distance but the bullet, after hitting a tree, rebounded into
the plaintiff’s eye. The plaintiff sued. It was held that the defendant was not liable
in the light of the circumstance of inevitable accident.

O ACT OF GOD
This is also an inevitable accident caused by natural forces unconnected with
human beings e.g. earthquake, floods, thunderstorm, etc.

In the case of Nichols Vs. Marshland (1876), the defendant has a number of

artificial lakes on his land. Unprecedented rain such as had never been witnessed
in living memory caused the banks of the lakes to burst and the escaping water
carried away four bridges belonging to the plaintiff. It was held that the plaintiff’s
bridges were swept by act of God and the defendant was not liable.

O NECESSITY
Where intentional damage is done so as to prevent greater damage, the defense
of necessity can be raised. Sometimes a person may find himself in a position
whereby he is forced to interfere with rights of another person so as to prevent
harm to himself or his property.

In the case of Esso Petroleum Ltd. Vs. Southport Corporation (1956), it was held
that the safety of human beings belongs to a different scale of value from the
safety of property. These two are beyond comparison and the necessity for
saving life has all times been considered, as a proper ground for inflicting such
damage as may be necessary upon another’s property.

O PRIVATE DEFENCE
Everyone has a right to defend his person, property and family from unlawful
harm. A person who is attacked does not owe his attacker a duty to escape.
Everyone whose life is threatened is entitled to defend himself and may use force
in doing so. The force used must be reasonable and proportionate to that of the
attacker. Normally, no verbal provocation can justify a blow

 Morris v. Nugent

O PLAINTIFF A WRONG DOER

 Bird v. Holbrook
 National Coal Board v. England
 Pitts v. Hunt

O ACTS CAUSING SLIGHT HARM

 Holford v. Bailey

Vicarious Liability
Liability for wrongs committed by others. Generally, a person is liable for his own
wrong doings.

Liability by Ratification

 In the course of authority

 Should be made by principal with full knowledge about the wrongful act
 illegal and unlawful acts cannot be ratified

Liability By Relationship between the two (Master & Servant)

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MASTER-SERVANT: WHEN MASTER IS LIABLE

 Dharangadhara Chemical Works Ltd. v. State of Sourashtra

 Mersey Docks and Harbour Board v. Coggins & Griffith (Liver Pool) Ltd.
  Lllyod v. Grace Smith Co.
 Gregory v. Piper
 Bayley v. Manchester Rly. Co.
  Lionpus v. London General Omni Bus Co.
 Ricett v. Thas Trilling

Master-Servant: When Master is not Liable

 Williams v. Jones
 Storey v. Ashton
 Paulton v. London & S.W. Rly. Co.
 General Engg. Services Ltd. v. Kingston Cheshire

MASTER-INDEPENDENT CONTRACTOR
PRINCIPAL-AGENT
COMPANY & DIRECTORS
PARTNERSHIP FIRMS & PARTNERS
GUARDIAN & WARD
Liability By Abetment
In actions of wrong, those who abet the tortious acts are equally liable with those
who commit the wrong. A person who procures the act of another is legally
responsible for its consequences

1. If he knowingly and for his own ends induces that other person to commit
an actionable wrong, or
2. when the act induced is within the right of the immediate actor and,
therefore, not wrongful so far as the actor is concerned, but is detrimental to a
third party and the inducer procures his object by the use of illegal means
directed against that third party

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