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1
 Sample of Indian Penal Code, 1860
Historical background of Indian Penal Code 1860
The Indian Penal Code (IPC) is the official criminal code of India, which comprehensively covers all
substantive aspects of criminal law. And aims to provide general penal code.1
Before the enactment of IPC, there was no criminal law. Every man was liable to be attacked in his person or
property at any time by anyone. “A tooth for a tooth, an eye for an eye, a life for a life” was the forerunner of
criminal justice. As time advanced, the injured person agreed to accept compensation, instead of killing his
adversary. Subsequently, a sliding scale came into existence for satisfying ordinary offences, which gave
birth to ancient criminal law.

Lord Macauley added in the

Executive Council of Governor
General as legal member
By the Charter
Act 1833

1st Law Commission of British

India est in 1834

Lord Macauley became chairman of 1st Law Commission, Sarvshri Macleod, Anderson and Millet were the
other members of the Commission.
So, IPC drafted by 1st Law Commission and was given for consideration to Governor General of India in
Council on 14th October 1837.
But the draft was again revised. In 1845 another Commission was set up for reviewing the draft they
submitted two reports of the draft.
The drafting was completed in 1850 and the code was presented to the legislative council in 1856 but it did
not take effect.
After the revolt in 1857, the draft then underwent a very careful revision at the hands of Barnes Peacock, who
later became the first Chief Justice of the Calcutta High Court.
In 1860, it has been passed in Legislative Assembly, after that it got the assent from the Governor General of
India (Lord Canning first Viceroy).

Enactment date of IPC: 6th Oct 1860. Enforcement date of IPC: 1st Jan 1862.

Citation: Act No. 45 of 1860 Territorial extent: India

However, it did not apply automatically in the Princely states, which had their own courts and legal systems
until the 1940s. It also did not apply to Jammu and Kashmir before 31 Oct 2019.

1
Preamble of IPC.
2
But after the commencement of J & K Reorganisation Act, 20192 which replaced the state's Ranbir Penal
Code, IPC extends all over the India.

Last Amendment in IPC: The Criminal Law (Amendment) Act, 2018. [w.e.f.: 21.04.2018)
Trial of offences under IPC: All offences under IPC, 1860 shall be investigated, inquired into, tried and
otherwise dealt with according to the provisions of CrPC, 1973. [Section 4(1) CrPC.]
Note: The modern approach to crime is a functional approach which concentrates on functions or purposes of
criminal law in the society. This approach has been highlighted by the Wolfender committee in England in
1967

2
Jammu and Kashmir Reorganisation Act, 2019 (w. e. f. 31 st Oct 2019)
3
CRIME: Definition, Essential & Stages FOR VIDEO LECTURE ON THIS TOPIC CLICK HERE
Definition of Offence/Crime: Many jurists have defined crime in their own ways some of which are
as under:

• Lord Denning: In order that an act should be punishable, it must be morally blameworthy. It must be
a sin.
• Blackstone defined crime as an act committed or omitted in violation of a public law either
forbidding or commanding it. (Crime is a public wrong).
• Stephen: a crime is an act not only punishable by law but is also revolting to the moral sentiments of
the society. (Crime is a moral wrong).
• Kenny: crime is a punishable act and is no way remissible by any private person and is remissible by
the sovereign (State) if remissible at all.
• Oxford English Dictionary: Crime is an act punishable by law as forbidden by statue or injurious to
public welfare."
As per section 40 of IPC: any act or omission made punishable by IPC is an offence.
As per section 2n of CrPC: any act or omission made punishable by the IPC or any other law for the time
being enforced is an offence.

So, Crime is
➢ an unlawful Act
➢ forbidden & punished by the law through the machinery of State or any lawful authority.
➢ harmful not only to the person but also to the community, society or state.
➢ Injurious to public welfare

Fundamental Principles of criminal Law

✓ Any act is not a crime unless it is punishable as a crime by a particular law. (Nullum crimen sine lege,
nulla poena sine lege means "no crime or punishment without a law.")
✓ No person can be punished without the authority of law.
✓ Act done before the enactment of law cannot be punished after the enactment of law. (ex post facto
law)

Fundamental elements of a crime: There are basically four elements of a crime are as follows:
1) Human being: the word human being has not been defined in IPC but the words men & women have
been defined u/s 10.
Human being must commit wrongful Act to fulfill first element of a crime. It means any non-living thing or
animals are not considered in the category of a person or a human being. He must not be an infant or insane
person. There must be a normal adult human being to commit a crime who is under a legal obligation to obey
the law. Certain person is exempted from criminal liability such as president of India, foreign sovereign
visiting India and their Ambassador visiting India.
Sec. 11 of IPC defines the word person as: "person includes any company or association or body of persons
whether incorporated or not".
The word 'person' includes artificial or juridical persons.
In Messer Syndicate Transport Private Limited, 1965 the Bombay High Court clarified that a company
cannot be held guilty of those crimes which can only be committed by human being such as the rape, bigamy,
Murder etc. similarly a company cannot be held guilty for those crime which are punished by death or
4
imprisonment. But a company can be held guilty of those crime which are punished exclusively or
alternatively with the fine.

2) Mens rea or Guilty intention: it is derived from the famous maxim "actus non-facit reum nisi
mens sit rea," which means that, the guilty intention and guilty act together constitute a crime. So, no person
can be punished in a criminal proceeding unless he had a guilty mind. There can be no crime without mens
rea or an evil mind.
This maxim has been borrowed from moral theology by Lord Edward Coke and applied to common law
crimes and since then it has been uniformly applied in common law crimes.
Application of the doctrine of mens rea in England: Application of this Doctrine in statutory offence in England
remained uncertain till 1946.
In the case of R v Allday [(1837) 8 C & P, 136 at 139], Lord Arbinger observed that “It is the maxim older
than the law of England that no man is guilty unless his mind is guilty”

R v. Prince (1875)
Facts: The defendant was convicted of taking an unmarried girl under 16 years of age out of the possession
and against the will of her father. It was an offence u/s 55 of the Offences Against the Person Act, 1861. In
this case the girl herself told Prince that she was 18 years of age & she also physically appeared to be of 18
years of age.
The Jury also found upon evidence that the girl went with Prince willingly and Prince bonafidely believed
that she was of 18 years of age and such a belief was reasonable.
It was argued on behalf of Prince that common law doctrine of mens rea should also be applied u/s 55 & he
should not be convicted because he had no intention to commit the offence.

• Only J. Brett accepted this argument and held that Prince was not guilty as he had no intention to
commit the offence.

• J. Beramwell made a distinction b/w offence which are mahim in se (both legal as well as moral
wrongs) & offences which are mahim prohibitum (only legal wrongs) & he said that for offences
which are 'mahim in se' mens-rea would be presumed and need not be specifically proved by the
prosecution and since Prince has committed an immoral act in taking away an unmarried girl, his
mens rea u/s 55 would be presumed and he was guilty.
Decision/Analysis: Since the legislature have punished this act irrespective of mens rea and statute does not
specifically state that mens rea (“guilty mind”) is required; the defendant is guilty because he knew his act
was wrong. This case has been criticized by many authors including Russel as unsatisfactory and in conflict
with established principles of criminal law.
R v. Tolson (1889) M. A. Tolson was married to K. Tolson in 1880, and in 1881, he left for America. She
and her father made enquiries about him & learned from his elder brother and from the general reports that
Tolson had been lost in the ship bound for America. In January 1887, Mrs. Tolson supposing herself to be a
widow, married another man. All these facts were known to the second husband and the second marriage was
not a secret one. K. Tolson was alive and he returned from America in Dec. 1887. Mrs. Tolson was then
charged for the offence of committing bigamy u/s 57 of the Offences Against the Person Act, 1861. At the
trial, the court gave a direction to the jury that Mrs. Tolson belief in good faith and on reasonable grounds
that her husband was dead would not be a defence to the charge of bigamy. The jury found her guilty and the
judge sentenced her to one-day imprisonment. The accused then appealed on the ground that the direction to
the jury was wrong, as it involved the question of mens rea.
5
The court of appeal quashed the construction of the trial court by a majority of 9-5 judges and held that a
bonafide belief on reasonable ground in the death of the husband at the time of the second marriage was a
good defence to the charge of bigamy. J. Cane observed: that the doctrine of mens rea shall apply to
statutory offences as well, unless excluded either expressly or by necessary implication.
Thus, in R v. Prince, the doctrine of mens rea was not applied and in R v. Tolson, it was applied. Again, in
R v. Wheats and Stoks (1921), it was not applied.
Other important cases: Sherras v De Rutzen: 1895, Hobbs v. Winchester Corporation, Sweet v Parsley
[1970]
By the year 1936, the courts generally refused to look into the criminal intention in statutory offences and
Prof. Stallybeas has remarked that the doctrine of mens rea in statutory offences in England has come under
eclipse. But the doctrine of mens rea was again restored by the House of Lords in 1946 in Brend v. Wood.
Brend v. Wood (1946): The court approved the observation of Cane J. in R vs. Tolson and since then even in
statutory offences the doctrine of mens rea has been applied.
Application of the doctrine of mens rea in India: The Supreme Court has followed decision of Brend v. Wood case
in the case of State of U.P. vs., Hari Prasad Rao in 1951.
The decision given in the case of Sherras v De Rutzen: 1895 was approved in the following cases-
• Nathulal v. State of Madhya Pradesh,
• State of Maharashtra v. M.H. George
• Srinivas Mall Bairoliya vs Emperor 1947

And it was held that “Mens rea is an essential ingredient of a criminal offence unless the statute expressly or
by necessary implication excludes it. The mere fact that the object of the statute is to promote welfare
activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of
guilty mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be
excluded from a statute only where it is absolutely clear that the implementation of the object of the statute
would otherwise be defeated.”
The doctrine of mens rea has been incorporated into the IPC in the following two ways:
1. Care has been taken in defining offences under the IPC so as to include the necessary criminal
intention required for that offence in the definition itself.
It has been done by using such words as intentionally, dishonestly, fraudulently, voluntarily,
knowingly.
However, in certain sections, words defining mens rea have not been given but the nature of offences,
in those cases is such that no innocent person can commit them.
For example, Waging war against the govt or counterfeiting of coins or Strict Liability or Public
Nuisance or Contempt of Court or Bigamy or Kidnapping (Here, mens rea is not required. So, in
these cases mens rea can be waived. In such cases, actus reus alone is sufficient to establish guilt, and
to obtain a conviction from a competent court of law).
2. Chapter IV of the IPC [Sections 76 -106] lays down general exceptions relate to mistake of fact,
accident, infancy, insanity, intoxication, necessity, compensation, consent, right of private defence
etc. These exceptions contain certain situations where law presumes absence of a guilty intention or
the act is justified under the circumstances.
Mr. M.C. Setalwad in his book 'Common Law in India' has termed it as a modification of common
law worked into the IPC by Macaulay and the colleagues.
In the Bhopal Gas Tragedy, in 1984, there was a major gas leak of MIC gas from the Union Carbide factory
in Bhopal. Thousands died and many are still suffering as a result thereof. Hence, it is in the interest of the
larger good that there are laws which lay down standards and regulate the functioning of the industries,

6
prevent, food adulteration, corruption, etc., and that these laws are strictly applicable and strictly construed
without requiring mens rea in commission of the offences they create.

• Actus me invito factus non est mens actus: Act done by me against my will is not my own Act.

3) Actus Reus or Guilty Act: Actus Reus is the physical aspect of a crime. The accused needs to have
done something or omitted to do something, resulting in injury to the plaintiff or the victim.
It is the guilty Act that follows the guilty intention. An act will only be called a crime if both the elements are
present. The guilty intention of person leads them to act in accordance to it and hence it turns into crime.

4) Injury or Harm: After having guilty mind and doing the guilty act if the injury does not occur then
that crime is not considered as committed.
Conclusion: The 4 essential elements of a crime are:
1. the crime must be committed by a human being,
2. there must exist an Actus Reus,
3. there must be hurt or injury caused to another,
4. there must be a Mens rea to commit the crime, with certain exceptions (like; Strict liability, Public
Nuisance, Kidnapping, Bigamy, contempt of court, S. 121, 188 of IPC etc.)

Prabhat Kumar Singh vs. State of Bihar, 2021: The Supreme Court observed that mens rea as intent is not
required in a case of medical negligence.

7
 Sample of Indian Evidence Act, 1872
Introduction Citation : Act No 1 of 1872
Enactment Date : 15th March, 1872
Commencement Date : 1st September, 1872
Extension: whole of India

Important features of Indian Evidence Act 1872

• It was passed by the Imperial Legislative Council in 1872. Sir James Fitz James Stephen is the
founder of it.
• It is Lex fori (law of Action) in nature which means the law of place where proceeding is being taken.
• It contains 167 sections & 11 chapters; these chapters are divided into 3 parts.
• It is a procedural law.
Rajesh Yadav v. State of U.P., 2022: The entire enactment is meant to facilitate the court to come to
an appropriate conclusion in proving a fact. The law of evidence is categorized as procedural law
which deals with the procedure of taking evidence in the court of law. Evidence Act is an "Adjective
Law" highlighting and aiding substantive law - It is neither wholly procedural nor substantive, though
trappings of both could be felt.
Objectives of Indian Evidence Act
➢ to consolidate, define and amend the law of evidence.
➢ to enable the court to find out the truth on the basis of the fact brought before it by the parties.
➢ to meet the ends of justice as expeditiously as possible.
➢ to save valuable time of the court from being wasted on irrelevant issues.

Structure of Indian Evidence Act, 1872

Part II. Proof.

Part I. Relevancy of Chapter III. –– Facts Part III. Production And Effect Of
Facts. Which Need Not Be Proved. Evidence
Chapter I. –– Preliminary (S.56 - S.58) Chapter VII. –– Burden Of Proof.
(S.1 - S.4) Chapter IV. –– Oral (S.101 - S.114A)
Chapter II –– Relevancy Evidence. (S.59 - S.60) Chapter VIII. –– Estoppel. (S.115 -
Of Facts. (S.5 - S.55) Chapter V. –– S.117)
Documentary Evidence. Chapter IX. –– Witnesses. (S.118 -
(S.61 - S.90a) S.134)
Chapter VI. –– Exclusion Chapter X. –– Examination Of
of Oral by Documentary Witnesses. (S.135 - S.166)
Evidence. (S.91 - S.100) Chapter XI. –– Improper Admission &
Rejection Of Evidence. (S.167)

8
 Part I. Relevancy of Facts. Chapter 1 to 2
Chapter I. –– Preliminary (S.1 - S.4)
S. 1 IEA:
Short title

the Indian Evidence It extends to the whole of India & 1st day of

Extent

Commencement date
Act, 1872 applies to all judicial proceedings September,
in or before any Court, including 1872
Courts-martial other than Courts-
martial convened under the Army
Act, the Naval Discipline Act, the
Indian Navy (Discipline) Act, or the
Air Force Act.
It does not extend to
> affidavits presented to any Court
or officer,
> proceedings before an arbitrator;

Evidence Act does not apply to disciplinary or departmental proceeding.3 Domestic tribunals4 and income tax
authorities5 are strictly not bound by the rules of evidence.

S. 3 IEA: Definition clause / interpretation clause (निर्वचि-खंड): The following words are defined in this
section:
1. “Court” 6. “Evidence”
2. “Fact” 7. “Proved”
3. “Relevant” 8. “Disproved”
4. “Facts in issue” 9. “Not proved”
5. “Document” 10. “India”

“Court ” includes all

➢ Judges and
➢ Magistrates &
➢ all persons, legally authorised to take evidence
except arbitrators,
Proceeding under Income Tax Act are not judicial proceeding so, income tax officer is not a court.6
Commissioner appointed under Public Servant Act is a court under Contempt of Court Act.7

3
State of Haryana v. Ratan Singh AIR 1977 & K.L. Shinde v. State of Mysore AIR 1976 SC 1080
4
Ahmed v. Chief Commissioner AIR 1966 Mani 18
5
Commissioner of Income-tax v. East Coast AIR 1967 SC 768
6
Krishna Brahman v. Govardhanaiah, AIR 1954 Mad 822.
7
Jotinarain v. Brijnandan, 1954.
9
 SAMPLE of Specific Relief Act 1963
Brief History of SRA: The Specific Relief Act 1877 Citation: Act No 47 of 1963
is replaced by the present act of 1963, on the recommendation Enactment Date: 13th December, 1963
of the law commission 9th report (1958). One important feature Commencement Date: 1st March, 1964
of the SRA, 1877 was the illustrations to various provision
which is missing in the new act of 1963.

Structure of SRA

Part-1 Part-2 Part-3

Preliminary Chapter 1 to 6 Chapter 7-8

(S.1-4) Specific Relief Preventive Relief
(S.5-35) (S.36-42)

Object - SRA has been enacted to define and amend the law relating to certain kinds of specific relief. It
refers only to the specific reliefs obtainable in civil courts. Specific Relief is a kind of procedural law. In this
way it is a supplementary to the Code of Civil Procedure. The SRA, 1963 is not exhaustive.

Specific Relief: Specific Relief means that particular relief to which a person is entitled in the first instance
as distinguished from the compensatory relief. It is a remedy by which an obligation or the specific
performance of a contract is fulfilled. It is in this sense the distinguishable from general remedy which gives
pecuniary compensation only. Basis of a Specific Relief is law of equity.

So, SRA is remedial and protective in nature and subordinate to the law of Contract. It provides the following
kinds of remedies for persons whose civil or contractual rights have been violated.

1. Recovery of possession of property (S. 5 to 8) [Chapter 1]

2. Specific performance of contracts (S. 9 to 25) [Chapter 2]
3. Rectification of instruments (S. 26) [Chapter 3]
4. Rescission of contracts (S. 27 to 30) [Chapter 4]
5. Cancellation of Instruments (S. 31 to 33) [Chapter 5]
6. Declaratory decrees (S. 34 to 35) [Chapter 6]
7. Injunction. (S. 36 to 42) [Chapter 7-8]

10
Part 1 || (Sections 1-4) || Preliminary
Section 1: short title extent and commencement
Short title: the Specific Relief Act 1963 Extent: Whole of the India Commencement: 1 March, 1964

• S 2(a): “obligation” includes every duty enforceable by law; [ it is right in rem as well as right in
personam]
• S 2(b): “settlement” means an instrument (other than a will or codicil as defined by the Indian
Succession Act, 1925 (39 of 1925), whereby the destination or devolution of successive interests in
movable or immovable property is disposed of or is agreed to be disposed of;
• S 2(c): “trust” has the same meaning as in section 3 of the Indian Trusts Act, 1882 (2 of 1882), &
includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act;
• S 2(d): “trustee” includes every person holding property in trust;
• S 2(e): all other words and expressions used herein but not defined, and defined in the Indian
Contract Act, 1872 (9 of 1872), have the meanings respectively assigned to them in that Act.

Section 3: Savings. Except as otherwise provided herein, nothing in this Act shall be deemed—
(a) to deprive any person of any right to relief, other than (b) to affect the operation of the Indian
specific performance, which he may have under any contract; Registration Act, 1908, on documents
or

Q.1) What is Specific Relief? whether Specific Relief can be granted for enforcement of criminal
law?

Specific Relief it means a particular relief to which a person is entitled in the first instance which is different
from compensatory relief.

Specific Relief aimed at exact fulfilment of obligation or specific performance of a contract. Basis of a
Specific Relief is law of equity. Specific Relief under SRA could be in the form of—

1. Recovery of possession of property (S. 5 to 8) 4. Rescission of contracts (S. 27 to 30) [Chapter 4]

[Chapter 1] 5. Cancellation of Instruments (S. 31 to 33)
2. Specific performance of contracts (S. 9 to 25) [Chapter 5]
[Chapter 2] 6. Declaratory decrees (S. 34 to 35) [Chapter 6]
3. Rectification of instruments (S. 26) [Chapter 3] 7. Injunction. (S. 36 to 42) [Chapter 7-8]

Section 4 states that "the specific relief can be granted only for the purpose of enforcing individual civil
rights and not for the mere purpose of enforcing a penal law".

Here, the word 'mere' indicates that the enforcement of a penal law i.e., criminal law must not be the sole
object of Specific Relief Act, 1963. So, the real object of the Specific Relief is the protection of civil rights of
an individual or prevention of civil wrong to him, and not for enforcing penal law.

11
 SAMPLE of Limitation Act 1963
Introduction: Citation: Act No 36 of 1963
Enactment Date: 5th October, 1963
Commencement Date: 1st January, 1964
Extension: Whole of India
Applies to: Suits, Appeals, Applications, petition

History of the 'Law of Limitation’ — Prior to 1859, there was no law of limitation applicable to the whole
of India. It was only in 1859 that a law relating to limitation (Act XIV of 1859) was enacted that was applicable
to all the Courts, which was subsequently repealed by the Acts of 1871, 1877, 1908. The Limitation Act, 1908
was repealed by the 3rd Law Commission & the Limitation Act of 1963 came into force.
Essential features of The Limitation Act, 1963:
➢ It contains 31 sections & 137 articles.
➢ Minimum period of limitation prescribed in The Limitation Act is 10 days.
➢ Maximum period of limitation prescribed in The Limitation Act is 30 years.
➢ It prescribes the time-limit for filing suits, appeal & applications within, which an aggrieved person can
approach the court for redress or justice.
➢ It is based on the following maxims:
• “Interest Reipublicae Ut Sit Finis Litium”: it is in the interest of State that there should be an end to a
litigation; &
• “vigilantibus non dormientibus Jura subveniunt”: the law will assist only those who are vigilant with
their rights and not those who sleep upon it.
➢ Purpose: its main objective is to provide a specific time frame within which a person can file a suit in
a court. If such law is not enacted then it will lead to never ending litigation as the person could file a
suit for the cause of action which was done many years back.
➢ Whether the Act is exhaustive? The Limitation Act is exhaustive with respect to all matters expressly
dealt in it. It cannot be extended by analogy. Ordinarily, the Act applies only to civil cases except in the
matter expressly and specifically provided for that purpose.
➢ It is procedural law. It is lex fori (the law of the country in which an action is brought). [unless there is
a contrary intention manifested by express or necessary implication of the legislation itself, procedural
law is generally retrospective law.]
Operation of The 'Law of Limitation' is Retrospective as well as Prospective.
➢ It is the subject matter of concurrent list under the entry 13, list III of Indian Constitution.
➢ The bar of limitation applies when a proceeding has to be instituted. Bar of limitation does not apply
when an application has to be filed in a pending suit or proceeding.
12
➢ Plea of limitation cannot be waived.
➢ Agreement not to plead limitation will be void.
➢ An agreement for the extension of the period of limitation will be void.
➢ The plea as to non-applicability of the provisions of the Limitation Act cannot be allowed to be raised
for the first time before the Supreme Court.
➢ If there is a conflict between various provisions of the rule, harmonious construction should be applied.
(Jagdish Singh v. Lt. Governor Delhi AIR 1997 AII 376).
➢ The Limitation Act is an exhaustive code governing the law of limitation in India in respect of all
matters specifically dealt with by it, and the Courts are not permitted to travel beyond its provisions to
add or supplement them. In respect of matters not dealt with by it, the Act does not apply and there will
be no limitation in respect of such matters. No limitation is prescribed for filing a writ petition under
Article 32 or 226 of the Constitution of India, and therefore Act does not apply to such proceedings.
Smt. Rajmata Vijay Raje Scindia v. State of U.P., AIR 1986 SC 756.
➢ Law of limitation only bars remedy but does not extinguish the right. It means the law of limitation
bars judicial remedy not extinguish the right. In other words, It means that the statute of limitation
prescribes only the period within which legal proceedings have to be initiated. (However, Section 27 is
an exception to this rule.)

13
 SAMPLE of Partnership Act 1963
Chapter 1 (Sections 1-3) || Preliminary

Sec 2(a) an “act of a firm” means any act or omission by all the partners, or by any partner or agent of the firm
which results in a right enforceable by or against the firm;

Sec 2(b) “business” includes every trade, occupation and profession;

Note: The work which is done for the purpose of getting profit will come under the definition of business.

Illustration: A and B together buy cotton bales and enter into an agreement to sell them in a joint account.
Here A and B are partners in the business of cotton.

Sec 2(c) “prescribed” means prescribed by rules made under this Act;

Sec 2(d) “third party”, used in relation to a firm or to a partner therein, means any person who is not a partner
in the firm;

So, a person who is not a partner of a firm can be said to be for the purpose of Indian Partnership Act, third
party.

Sec 2(e) expressions used but not defined in this Act and defined in the Indian Contract Act, 1872 (9 of 1872),
shall have the meanings assigned to them in that Act.

Chapter 2 (Sections 4-8) || Nature of Partnership

Q.1. Define the term 'partnership' and explain its nature in detail. Why 'mutual agency' is considered
a true proof of partnership? Explain the statement “Partnership is created by agreement and not
status”.
Q. 2 What are the difference between following—
Partnership and Joint Hindu family, Partnership and Joint Hindu family firm, Partnership and Co-
ownership, Partnership and Company.
Ans. Sec 4 of the Indian Partnership Act, 1932 defines following terms—

• “Partnership” is the relation between persons who have agreed to share the profits of a business carried
on by all or any of them acting for all.
• Persons who have entered into partnership with one another are called individually “partners” and
collectively “a firm”, and the name under which their business is carried on is called the “firm name”.

So, a partnership agreement is voluntary contract between two or more persons to enter into a business
relationship

• for carrying on said business; & • to share its profits

➢ Illustration A and B buy 100 bales of cotton, which they agree to sell for their joint account. A and B
are partners in respect of such cotton.

14
Essential elements for partnership— Thus as per the above definition, there are 5 elements which constitute
of a partnership namely:

(1) There must be an agreement— Sec 5 of the Indian Partnership Act, 1932 states that the relation of
partnership arises from contract and not from status.

Partnership is the result of a contract. It does not arise from status, operation of law, marriage or inheritance.
Thus, at the time of death of the father, who was a partner in the partnership firm, the son can claim share in
the partnership property but cannot become a partner unless he enters into a contract for the same with other
persons concerned.

Similarly, the members of a HUF carrying on a family business cannot be called partners for their relation
arises not from any contract but from status. Thus, a “contract” is the very foundation of partnership.

Krishna Dhan Banerji vs Sanyasi Charan Mandal, 1919: Hindu undivided family business means ancestral
business but it does not mean that the members of HUF cannot form partnership. They can from partnership
by entering into agreement.
Mirza Mal Bhagwan Das vs Rameshwar and Ors, 1929: if a manager (Karta) or any member of joint Hindu
family enters into partnership agreement with some stranger to the family, then the other members are not
necessarily partners with that stranger.

(2) between 2 or more persons— Since partnership is the result of a contract, at least 2 people are necessary
to constitute a partnership. The Indian Partnership Act, 1932 does not mention anything about the maximum
no. of partners in a partnership firm but as per the new Companies Act 2013 has prescribed the maximum num
of members in case of a partnership firm should not be more than 100 in case of partnerships.

(3) who agree to carry on a business— the parties must have agreed to carry on a business. The term
“business” is used in its widest sense and includes every trade, occupation or profession. Therefore, if the
purpose us to carry on some charitable work, it will not be a partnership.

Thus, where X and Y jointly purchased a fast-food shop and incurred additional expenses for purchasing
furniture and utensils for the job, contributing the money in equal proportions and then leased out the shop on
rent which was shared equally by them, it was held that they are only co-owners and not partners as they never
carried on any business.

(4) with the object of sharing profits— the agreement to carry on business must be with the object of sharing
profits amongst all the partners. The partners may however, agree to share the profits in any ratio they like.

Sharing of losses not necessary: To constitute a partnership, it is not essential that the partners should agree
to share the losses (Raghunandan vs Harmasjee). It is open to one or more partners to agree to bear all the
losses of the business.

Moreover, the manner in which the profits/losses are to be shared should be expressly stated in the partnership
deed.

However. it must be noted that although a partner may not share in the losses of a business, yet his liability
towards the outsiders shall be unlimited. In case the partners intent to limit their liability towards the outsiders,
a new concept of partnership i.e., Limited Liability Partnerships (LLP) have been introduced in India. In an
LLP, the liability of the partners towards the outsiders is limited.

15
(5) the business must be carried on by all or any of them acting for all, i.e., in mutual agency— Merely
sharing of the profits arising out of the partnership business does not make a person a partner but at the same
time there should be a mutual agency between the partners.

There is a mutual agency between the partner. Section 4 of the Indian Partnership Act says that the business
may be carried on ‘by all or any of them acting for all’. This statement has two important implications. First,
to participate in the conduct of the affairs of its business, every partner is entitled. Second that a relationship
of mutual agency between all the partners exists.

Waugh v Carver – Some persons shared the profits of a business. The question arose whether these persons
were partners or not because of their sharing of profits. The court held that sharing of the profits is prima
facie evidence of Partnership.

Cox vs. Hickman [(1860) 8 H.L.C. 268] concluded that the sharing of profits is a vital and not conclusive
criterion of all the fundamental elements of a partnership. Mutual agency is the real test for establishing
partnerships.

For all the other partners, each partner carrying on the business is the principal as well as the agent. He can
bind other partners by his acts. And also, is bound by the acts of other partners with regard to the business of
the firm.

In the general perception of law, each partner is considered to be an agent of the partnership and is expressed
to be the praepositus negotiis societatis, who can bind all the other partners to his actions which are well
within the scope and object of the partnership.

It provides that the relation of partners to one another is of the utmost good faith (uberrimae fidei). It
provides that every partner is an agent of each other, therefore, the contract entered by one of the partners
will bind all the partners. Thus, the relation of partners to one another is based on mutual trust and
confidence. The principle is recognized by Section 9 of the Partnership Act,

Section 9 of the act provides that it is the duty of partners to act for the greatest common advantage of the
firm. Therefore, the partner should work to secure maximum profits for the firm. A partner should not secure
secret profits at the expense of the firm. This duty continues to exist even after the partnership has ceased to
exist.

In Bentley v. Craven, [1853] there was a partnership in a sugar refinery firm. One of the partners was skilled
in buying and selling sugar. Therefore, he was entrusted with the task of buying and selling sugar. However,
the partner sold the sugar from his own stock and thus, gained profit. When the partners discovered this fact,
they brought an action to recover profits earned by the partner. It was held by the court that the partner cannot
make secret profits and therefore, the firm was held entitled for profits earned by the partner.

16
 Sample of Law of Equity

Origin & Development of Equity Court: Equity law originated in Rome and then developed
in England.
Before the 1066 Norman Conquest of England, there was no unified national legal system in the region- just
collection of oral customs which were peculiar to each domain. The Norman Conquest of 1066 is vitally
significant in the development of the law in England. At this time a law developed in the country which was
common to the whole country is called the common law of England. Common law is that part of law of England
which before the judicature Act 1873-75 was adjudicated by the Common Law Court. The common law was
based on the general customs of the general population. In the reign of Emperor Edward Ist, law took a definite
shape. At the end of 13th century common law was enforced by the following courts: -
1. Kings or Queens Bench Court.
2. Common Pleas Courts.
3. Exchequer at West minister Court.
Out of the three above courts, the exchequer was a court of law as well as an administrative department of
the government. Its Secretariat office was called Chancery and its president was called chancellor.
The chancellor beside being a judge was the prime minister of the king and the most prominent member of
his Council. He was also the secretary of state of all the department of the state and the monarch's currency
also remained under his control, whatever was written in the name of king was written under his supervision.
In addition to other works the main function of chancellor was to issue writs. If a person wanted to bring
an action under common law, then he had to first get a writ from the Chancery Court. Such writs were preset
and given only after paying the specified fee.
Thus, the entire common law relied on the issue of recognized writs. Thus, in the British law system only
remedy was available in such cases where the writ could be obtained. It was said that "where there is no writ
there is no remedy". In fact, it was a defect in the proceeding of common law.

Deficiencies of common law

1. Remedies was not available in all cases due to Limited writs.
2. In some cases, the remedy provided by the common law courts was always insufficient.
3. Court proceedings of common law were defective, rigid and formal.
The statute of West minister of 1285 was passed to address the above-mentioned problems of common
law. It gave the chancellor the limited right to issue new writs in respect of the new charges.
As for example, if a man had no thing in writing and the debtor was dead, he would have no remedy at common
law. For that reason, aggrieved person going to the king for justice. And king referred or give the authority to
do justice with own opinion and good conscience to the Chancellor. Courts of Chancery were created to address
said deficiencies of common law courts. The principles of equity and good conscience have developed in these
courts of chancery.
In 1348 the king completely assigned his equity jurisdiction to the Chancellor. The Chancellor solved,
discloses or issued decree in the name of king. But in 1414 a decree was made on his own authority and this
practice continued so that there came to be a Court of Chancery as independent institution.
The Court of Chancery were known as the Court of Equity, which could apply the principles of equity and
award equitable remedies for this reason equity court get much more popularity over Common Law Court.
17
That’s why the conflict arises between the Common Law Court and Equity Court. In Earl of Oxford case 1615,
King James first gives his consent in fever of Equity Court. In 1616 the Equity Court gets priority over the
Common Law Court.
The period of the 17th century was called the era of transformation for the development of equity and by the
18th century the equity had reached the peak of its development. At the same time, Chancery propounded
many important principles of equity and by the end of this century it had taken the form of a fixed system.
In 1800 Lord Nottingham brought the principles of Equity in a particular shape. For that Lord Nottingham
is called as the father of modern equity. In 1873 the judicature Act of 1873 removed the separation between
the Common Law Court and Equity Court. All courts are now empowered to apply both of rules.

What do you understand by equity: So, equity may be defined as that body of rules which, prior to
the fusion of law and equity effected by the Judicature Acts, 1873 and 1875, which was administered in the
Court of Chancery. It is further concluded that -
(i) Equity is based on natural justice.
(ii) Equity is the soul and spirit of law.
(iii) Equity does not supersede the existing law, but is supplementary addition to such law.
Etymologically equity implies
• fairness;
• right as founded on the laws on nature;
• recourse to principles of justice to correct or supplement law or the spirit of justice which enables the
laws to be interpreted rightly.
In popular sense equity means natural justice or morality and in technical sense it is a portion of natural justice
which was for certain circumstances omitted to be enforced by the common law courts.
William Blackstone: “Equity is the soul and spirit of all law. Positive law is construed and natural law is made
by it. (Equity is synonymous with justice)
Plato: equity is a necessary element supplementary to the imperfect generalization of legal rules.

18
 Sample of Jurisprudence
Q.1] Define jurisprudence and discuss its importance,
nature and scope? Which definition according to you
would be most appropriate one?

Meaning of jurisprudence: Jurisprudence

derived from a Latin term jurisprudentia.

Definitions of jurisprudence: there are following definitions of jurisprudence:

According to According to H.L.A. Hart: he looks at jurisprudence as a system of rules.
natural law According to him, a legal system consists of primary & secondary rules. These rules explain
theorist the nature of law and provides key to the science of jurisprudence.
Analytical According to Austin: Jurisprudence is the ‘Philosophy of positive law'.
definitions According to Holland: Jurisprudence is the ‘formal science of positive law'.
According to Salmond: Jurisprudence is the 'Science of the first principles of the civil law'.
Idealistic According to Cicero: Jurisprudence is the philosophical aspect of law.
definitions According to Ulpian: Jurisprudence is the knowledge of things, human and divine, the
science of just and unjust.
Sociological According to Roscoe Pound: Jurisprudence is the 'science of law.'
definitions According to Julius Stone: Jurisprudence is the lawyer's extraversion.
Conceptual According to C.K Allen: Jurisprudence is 'the scientific synthesis of all the essential
definition principles of law'.
Marxist According to Harold Laski: Jurisprudence is the Eye of law.
definition

Nature of Jurisprudence: Jurisprudence in its nature is entirely a different subject from other Social
Sciences. The reason for this is that it is not codified subject but a growing and dynamic subject having no
limitation on itself. Jurisprudence has no Limited scope being a growing subject

There is a difference of opinion about the nature of jurisprudence. It is called both Art and Science but to call
it science would be more proper and useful.

The reason for this is that just as in science we draw conclusions after making a systematic study by inventing
new methods, in the same way jurisprudence is concerned with the fundamental principles of law and
systematic & scientific study of the laws.

Scope of the Jurisprudence - Commenting on the scope of jurisprudence justice P B Mukherjee

observed jurisprudence both an intellectual and idealistic abstraction as well as the behavioural study of man
in society. it includes political, social, economic and cultural ideas. it covers the study of man in relation to
society. The object of jurisprudence is not to discover new rules but to reflect on the rules already known.

19
Whereas Austin was the only one who tried to limit the scope of jurisprudence. He tried to segregate morals
and theology from the study of jurisprudence. According to him, scope of jurisprudence was limited to the
study of the concepts of positive law. Ethics and Technology are outside the province of jurisprudence.

Present View - The scope of jurisprudence can't be circumscribed and regimented. It includes all concepts of
human order and human conduct in the state and Society. It's not a codified subject. It has no limitations. It's a
growing and dynamic subject. The view of Lord Radcliffe is that Jurisprudence is
✓ a part of history,
✓ a part of Economics,
✓ a part of sociology,
✓ a part of ethics and
✓ a part of philosophy of life.

Importance of the Jurisprudence - According to Salmond this subject has its own intrinsic
interest and value because this is a subject of serious scholarship and Research. it is the belief of the subject
that the theory can help to improve the practice.

• Jurisprudence also has an educational value. It helps in the logical analysis of legal concepts and it
sharpens the logical techniques of the lawyer. The study of jurisprudence helps to put the law in its
proper context by considering the needs of the society.
• Jurisprudence is the eye of law and the Grammar of law because it reflects light on the basic ideas
and fundamental principles of law. Therefore, by understanding the nature of law, its concepts and
distinctions, a lawyer can find out the actual rule of law.
• Some logical training is necessary for a lawyer which he can find from the study of jurisprudence. It
trains the critical faculties of the mind of the students so that they can use accurate legal terminology
and expression.
• It helps a lawyer in practical work. A lawyer always has to tackle new problems every day, this he
can handle through his knowledge of jurisprudence, which trains his mind to find alternative legal
channels of thought.
• Jurisprudence helps the judges & lawyers in ascertaining the true meaning of the laws passed by the
legislature by providing the rules of interpretation.

It gives the Ans to the following questions:

a) What is law?
b) What is the nature of law?
c) What is its position and place within society?
d) How does law-making take place?
e) How the overall English legal system exists as a series of rules and as an established institution enforced for
the benefit of society
f) how we have reached the collection of legislation & case law in our modern scenario.
g) how these legal theories impact the English legal system, both in the past and in the present day. The legal,
moral, philosophical, & social influences affecting the English legal system.

Conclusion: it can be concluded that jurisprudence is very important in the field of law and another field
concerned with law.

20
 Sample of Civil Procedure, 1908
Citation : Act No 5 of 1908
Introduction: Enactment Date of CPC : 21st March 1908
Commencement Date of CPC : 1st January 1909

History of the Code.— To give uniformity to Civil Procedure, (& in the direction of Sir Charles Wood)
Legislative Council of India,8 enacted Code of Civil Procedure, 1858, which received the assent of Governor-
General (then viceroy Lord Canning) on 23 March 1859.

CPC, 1859
The Code however, was not applicable to the Supreme Court in the
Presidency Towns and to the Presidency Small Cause Courts. So
Amended in 1877, & 1882

It was further superseded by the present Code of 1908,

The present Code of 1908 was amended several times.

Recent Amendments in CPC
➔ CPC (Amendment) Act 1999 ( Act No 46 of 1999) & CPC (Amendment) Act 2002 (Act No 22
of 2002) (w.e.f. 01/07/2002). These Acts were made on the recommendation of the Malimath
Committee.
Salem Advocate Bar v. Union Of India: In this case, the Supreme Court declared these
amendments to be constitutional.
➔ CPC (Amendment) Act 2015: it was enacted for the establishment of Commercial Court and the
provisions thereof. These provisions are applicable to commercial disputes of specified value. The
Act clarified that the provisions of the CPC as amended by would have an overriding effect over
any rules of the High Court or of the amendments made by the state govt concerned.
➔ The Code of Civil Procedure, 1908 was further amended in the year 2018
Special features of CPC, 1908.
➔ It is procedural law.
determine the rights & obligations of the members of
Substantive the society (IPC, 1860; Contract Act, 1872; Partnership
Laws Act, 1932; Sale of Goods Act, 1930, etc.)
prescribes the procedure for their enforcement. (CPC,
Procedural Laws
1908; CrPC, 1973; Evidence Act, 1872, etc.)
➔ Not retrospective effect.9
➔ Not exhaustive, but it is exhaustive on subject in respect of which provisions have been made in the
code. But Where on a particular matter, the code is silent, the Court should decide the matter on the
principles of equity, justice and good conscience. (u/s 152 of CPC)
➔ CPC is the subject matter of concurrent list.
➔ Order 21 of CPC is the longest Order containing maximum number of rules i.e., 106 rules.

8
This legislative council was created under the Charter Act, 1853
9
Mahadeo Prasad Singh & Anr v. Ram Lochan & Ors, 1980 & Venkata Narsinha v Lakshmi Venkayamma, 1910
21
 i) 158 Section
(further divided into
11 Parts.)
[These Sections deal Can be amended by
with the substantive i. Parliament
rights of parties and ii. State legislature
jurisdiction of
courts]
CPC has been Appendices
divided into two (Appendix A-H)
divisions
ii) First Schedule:
(51 Orders & rules) Can be amended by
[Which prescribed i. Parliament
procedures and
ii. State legislature
method that govern
civil proceeding in iii. State High Court
India]

➔ District judge when deals with civil matter: District Judge

➔ District judge when deals with criminal matter: Session Judge.
Scope of applicability.— CPC applies to the procedure of all Courts of Civil Judicature. But it does not
affect any special or local law.10 In case of conflict b/w CPC & a Special law, the latter prevails over the
former.11
Extension: After coming into force of J&K Reorganisation Act, 2019 w. e. f 31/10/2019, the CPC shall
extend to whole of India except the State of Nagaland & Tribal Areas. (as mentioned, u/s 1 of CPC).

10
Savitri Thakurain v Savi, AIR 1921
11
Mohd Azim Khan v Mumtaz Ali Khan, AIR 1932
22
 Sample of Indian Constitutional Law
Historical development of Indian Constitution
• Invasion of European Companies in India

Portuguese (first factory est in

1498 Calicut)
Danish(first factory est in
Tranquebar in Tamil Nadu in
British (1st factory est in Surat,
1616 1620)
1600 1613 & 2nd in Masulipatnam on
the Andhra Coast of Bay of
Bengal, 1616)
French (first factory est in
1664 Surat in 1668)
Dutch (first factory est in
1602 Masulipatnam, AP in 1605)

EIC
In 1612, Jahangir (Robert Clive)
granted to Sir Battle of Plassey
EIC est on Thomas Roe,
rights to build a (23rd June 1757)
(31st Dec
1600) factory and Nawab of Bengal
trading port in & French Allies
Surat.

EIC
(Hector Munro)

Battle of Buxer
Combined army of-
(22 Oct 1764)
1. Mir Kasim (Nawab of Bengal)
2. Shujaud-daula (Nawab of Awadh)
3. Shah Alam II (Mughal Emperor)

23
After the defeat of Mughal, Bengal and Awadh in Battle of Buxar (22 Oct 1764), Mughal emperor Shah Alam
II granted Diwani rights (rights to collect tax) in the province of Bengal to the East India Company (EIC) under
Treaty of Allahabad (1765). At the same time, Robert Clive became the first governor of Bengal.
The Mughal provincial administration had two main branches - nizamat & diwani.
Nizamat: civil administration; &
Diwani: revenue administration.
In short, Diwani was tax collecting department.
The company perform these functions till 1772.

Historical development of Indian Constitution can be understood into two parts

1. Acts passed under British East India Company (1773-1853)
2. Acts passed under British Crown (1858 - 1947)

1. Acts passed under British East India Company (1773-1853)

Regulating Act of 1773:
• It designated the Governor of Bengal (Warren Hastings) as the Governor-General (of Bengal) &
subsumed the Presidencies Madras and Bombay under Bengal's control.
• Executive Council of the Governor-General was established (4 members: Lt-Gen John Clavering,
George Monson, Richard Barwell, & Philip Francis). There was no separate legislative council.
• It provided for the establishment of a Supreme Court at Calcutta (1774) with 1 Chief Justice (Sir
Elijah Impey) and 3 other Judges (Stephen, John Hyde & Robert Chambers).
• This Act prohibited servants of the company from engaging in any private trade or accepting present
& bribes from the natives.
• Court of Directors (the governing body of the company) should report its revenue.
Pitt’s India Act of 1784:
• It distinguished between the commercial and political functions of the company.
• Dyarchy in EIC- Court of Directors created for Commercial functions and Board of Control
controlled political affairs.
• Executive Council’s members reduced from 4 to 3.
• Kolkata became the capital of the company.
Act of 1786
• Governor general was granted the powers of commander in chief.
• Lord Cornwallis was the first governor general to enjoy these powers.
Charter Act of 1793
• It extended the company’s monopoly over India’s trade & administration for another 20 years.
Charter Act of 1813
• It extended the company’s monopoly over India’s administration for another 20 years but ended the
monopoly over trade; except for the trade in tea, opium & trade with China.
• It granted permission to English missionaries in India & engage in religious proselytization.
• For the first time made provision of 1 Lakh rupee per year to be spent on the education of Indians.
• Abolition of Sati System (1829) by Lord William Bentinck (1828-1835)

24
 Part III. Fundamental Rights (Articles 12 - 35).
Part III of the Constitution India also referred as ‘magna carta’
1215: The Magna Carta

1689: The Bill of Rights

1776: The US Declaration of Independence

1789: The French Declaration of the Rights of Man and Citizen

1948: The Universal Declaration of Human Rights [UDHR]

Maneka Gandhi v. Union of India12: it has been held that “UDHR was adopted by the UN General Assembly
on Dec. 10. 1948 while debates in the Indian Constitution were going on. Hence, it must be assumed that the
makers of the Indian Constitution, in framing Part III of the Constitution on the Fundamental Rights were
influenced by the provisions of the UDHR.
Justice P.N. Bhagwati said these Fundamental Rights represent basic values by which people can protect
their dignity and create such a situation by which their personality can develop to the full extent.
Note: The Fundamental Rights in the Indian Constitution are borrowed from the Constitution of the USA.
1895: Constitution of India Bill created by Bal G. Tilak [1st explicit demand for FRs]

1928: Motilal Nehru Report [it was in favour of inclusion of FRs]

1931: Karachi Session presided by Sardar V. Patel [Congress adopted a

resolution on FRs]

➢ FRs are Justiciable

Right to
Equality i.e., enforceable in the
Right to A. 14-18 Supreme Court & High
Right to Right to
Constitutional
Freedom. Court.
property was Remedies
A. 19-22 ➢ Art. 358 Provides for
deleted from the A.32
suspension of Art. 19
list of FRs by
FRs during emergencies
44th Amendment Cultural &
Right Against ➢ Art. 359 provides for
Act ,1978. Now, Educational
Rights Exploitation suspension of
it is a legal right
A. 29-30 Freedom A.23 & 24 enforcement of FRs
under article of
Religion during emergencies
300A in part 12
A. 25-28 except article 20 and 21
of constitution
(After 44th Amendment
Act, 1978)
Art. 15, 16, 19, 29 & 30 only for Indian
Citizens

12
AIR 1978 SC 597
25