Will under Muslim Law (Wasiyat) – An Analytical Overview A Muslim may transfer ownership in property in two ways: 1. During lifetime – e.g., gift (hiba) 2. After death – through a will (wasiyat) ✓ A gift takes effect immediately, whereas a will becomes operative only after the death of the testator. Definition of Will (Wasiyat) A Will (Wasiyat) signifies the last wish of a person regarding the distribution of their property after death. It is: • Ambulatory (takes effect after death) • Revocable (can be changed anytime during life) Justice Tyabji defines it as “a legal declaration of the intentions of a Muslim regarding his property to be carried into effect after his death.” ✓ No formalities are required. It can be oral or written, with no need for specific words, signature, or attestation. Important Terms: • Testator – The person making the will • Legatee – The person in whose favour the will is made • Legacy – The subject matter of the will • Executor – The person appointed to execute the will Requisites of a Valid Will 1. Testator must be competent • A Muslim of sound mind and above 18 years • Age determined by Indian Majority Act • A will by a minor is invalid unless ratified after attaining majority • A will obtained by coercion/fraud is invalid 2. Legatee must be competent • Any person capable of owning property (Muslim or non-Muslim, minor or insane) • Child in womb can be a legatee (within 6 months – Sunni; within 10 months – Shia) • Heirs cannot be legatees beyond 1/3 share without consent of other heirs • Bequest to non-Muslims is valid under all schools in India (due to Act 21 of 1850) • Manslayer cannot inherit under Hanafi Law (intentional killing – disqualified) 3. Subject of Bequest must be valid • Must be owned by the testator • Must be in existence at the time of death • Bequest of future property is invalid • Conditional or contingent bequests are void • Bequest must be unconditional 4. Testamentary Limitations • Only 1/3rd of net assets can be bequeathed without heirs’ consent • Consent by: • Sunni Law – After testator’s death • Shia Law – Before or after death • If testator has no heirs, full property can be bequeathed • If married under Special Marriage Act, governed by Indian Succession Act Example: Testator’s assets = Rs. 4000 Funeral + debts = Rs. 1000 Net = Rs. 3000 → 1/3rd = Rs. 1000 (can be bequeathed) Revocation of Will A Muslim can revoke their will anytime before death, either: • Expressly (oral, written, tearing or burning the will) • Impliedly, such as: • Sale or gift of bequeathed property • Material change or destruction of property • Creating a new will of the same property ✓ Mere denial or informal statement doesn’t revoke a will. Abatement of Legacies (Excess Bequests) ✓ Sunni Law – Rule of Rateable Proportion • If total bequests > 1/3rd → All reduced proportionately • Priority to Quranic obligations (faraiz), then wajib, and lastly nawafil Example: A: Rs. 30,000 B: Rs. 20,000 Total = Rs. 50,000 Estate = Rs. 75,000 → 1/3rd = Rs. 25,000 A gets Rs. 15,000, B gets Rs. 10,000 ✓ Shia Law – Rule of Chronological Priority • Earlier bequests are honoured first • Once 1/3rd is exhausted, later legatees get nothing Example: A: Rs. 20,000 → gets full B: Rs. 30,000 → gets Rs. 20,000 C: Rs. 40,000 → gets nothing (Estate = Rs. 1,20,000 → 1/3rd = Rs. 40,000) Key Points to Remember • Will must be made by a major, sane Muslim • It is valid for 1/3rd property without heirs’ consent • No formal requirement – can be oral/written • Can be revoked anytime • Bequest to heirs beyond 1/3rd needs consent • Rateable reduction in Sunni Law vs. Chronological Priority in Shia Law • Religious, charitable institutions can be valid legatees • If testator dies without heir, entire estate can be disposed via will Important Case Law • Husain Begum v. Mohd. Mehdi – Bequest of full property to one heir without consent is void • Damodar Kashinath Rasane v. Shahzadi Bi – Bequest exceeding 1/3rd is valid only to that extent without heirs’ consent Conclusion The concept of Will (Wasiyat) under Muslim law reflects a balance between the individual’s right of disposition and protection of legal heirs. The law ensures that justice prevails through limitations on excessive bequests and provisions for revocation, while also accommodating Islamic values of charity and piety. Start Your Preparation with TOA At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation “Your law degree is your foundation, but your preparation is what will build your success.” Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. Contact Us: 📍 B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 📞 +91 9971399324 | +91 8840961324 📧[email protected]
Category: judiciary
Important questions of Specific Relief Act, 1963 1. How would you introduce Specific Relief Act, 1963 to a new law student? 2. Write a note on 2018 Amendment of Specific Relief Act,1963. 3. What do you understand by “specific relief? Whether specific relief can be granted for enforcement of criminal law? (UPJS 2016) 4. What are the main points of difference between actions for possession under Section 5 and 6 of the Specific Relief Act? 5. What are the main points of difference between actions for possession under Section 5 and 6 of the Specific Relief Act? 6. A contracts to sell a piece of land to B for Rs. 20,000 and then puts him in possession of it. But he subsequently sells the same plot to C for Rs. 25,000. There upon C takes forcible possession of the property from B.Advise B as regards his remedies. 7. Explain the provisions relating to recovery of possession of a specific movable and immovable property under the Specific Relief Act, 1963. (RJS 2014) 8. ‘H’, the husband entered into an agreement to sell with the plaintiff for sale of a house for Rs. 1.10 crores. The vendee (the plaintiff) paid a sum of Rs. 11 lakhs as earnest money and the remaining amount of Rs. 99 lakhs was to be paid at the time of execution and registration of the sale deed. The vendor’s wife “W’ sent a notice to the vendee as well as the vendor ‘H’ calling upon them to cancel the agreement as she was owner of one half share having devolved upon her on death of her son. In the notice she stated that she was not willing to sell her share and was ready to purchase the share of the vendor ‘H,. The vendee replied that the agreement was binding on her and the notice had been given in collusion with the vendor H’. The vendee files a suit for specific performance. Decide. (DJS 2011) 9. ‘A’ and “B’ enter into a contract to become partners in a shoe business. The contract does not specify the duration of the proposed partnership. “A changes his mind and backs out of the idea and so is no longer willing to perform the contract. B files a suit for specific performance of contract.Can such a contract be specifically enforced? Decide with reason. (DJS 2006) 10. Whether following contracts can be specifically enforced: (i) A contracts with B to sing for the latter for one year at B’s theater; ii) A contract of transfer of immovable property; (iii) A contract to sell a picture by a well known dead painter; (iv) A contract to charter an aeroplane; (v) A contract to refer a dispute to arbitration.(DJS 2005) 11. Will the following contracts be specifically enforceable if so, under what circumstances? (i) A contract to construct a building. ii) A contract to execute a mortgage. (iii) A contract to sell property to which the seller has no title at the time of the contract but which he acquires later on. 12. ‘A’ and “B’ enter into a contract to become partners in a shoe business. The contract does not specify the duration of the proposed partnership. “A changes his mind and backs out of the idea and so is no longer willing to perform the contract. B files a suit for specific performance of contract.Can such a contract be specifically enforced? Decide with reason. (DJS 2006) 13. ‘H’, the husband entered into an agreement to sell with the plaintiff for sale of a house for Rs. 1.10 crores. The vendee (the plaintiff) paid a sum of Rs. 11 lakhs as earnest money and the remaining amount of Rs. 99 lakhs was to be paid at the time of execution and registration of the sale deed. The vendor’s wife “W’ sent a notice to the vendee as well as the vendor ‘H’ calling upon them to cancel the agreement a s s h e w a s owner of one half share having devolved upon her on death of her son. In the notice she stated that s h e was not willing to sell her share and was ready to purchase the share of the vendor ‘H,. The vendee replied that the agreement was binding on her and the notice had been given in collusion with the vendor H’. The vendee files a suit for specific performance. Decide (DJS 2011) 14. What defence for defendant, in suit for Specific Relief based on contract, are available?Whether and if so in what cases the defence of (1) under hardship and (2) inadequacy of consideration may be treated as a good defence? (MPJS 2011) 15. What defence for defendant, in suit for Specific Relief based on contract, are available?Whether and if so in what cases the defence of (1) under hardship and (2) inadequacy of consideration may be treated as a good defence? (MPJS 2011) 16. Detail the circumstances under which specific performance of a contract can not be enforced. Can the following contracts be enforced: (i) A contract to execute a mortgage; ii) A contract to lend Rs. 2000/-; (iii) A contract to construct a building(UP 1982) 17. Distinguish between Rectification, Recission and Cancellation of instrument. 18. Enumerate cases in which the court may properly exercise discretion not to decree specific performance (MPJS 2014) 19. Whether a enforcement of a contract is obligatory or discretionary by a court? 20. A had agreed to sell his house to B for Rs. 15 lacs. Rs.5 lacs were paid as advance. After one month, further Rs. 5 lacs was paid and A put B in possession of the house and balance amount of Rs. 5 lacs was to be paid on completion of paper work and registration of contract which is decreed.Court allows B a period of 2 months to make the balance payment. However, B fails to make the payment of Rs. 5 lacs within the time allowed by the court decree.A then applies for…
Modes of Dissolution of Marriage under Muslim Law Under Muslim law, marriage (Nikah) is considered a civil contract that can be dissolved through various modes. The dissolution of marriage can occur through natural causes, the act of parties, or judicial intervention. This article outlines the key methods recognized under Islamic law and statutory provisions applicable in India. 1. Dissolution by Death Marriage comes to an automatic end upon the death of the husband or wife. • If the wife dies, the husband is allowed to remarry immediately. • If the husband dies, the widow must observe an Iddat period: • Four months and ten days, or • Till delivery, if she is pregnant. 2. Dissolution by the Act of Parties Marriage may also be dissolved by the voluntary acts of the husband, the wife, or both by mutual consent. These include: A. By the Husband i. Talaq (Divorce by Husband) The word Talaq means “to release” or “to untie the knot.” It can be classified into the following types: a. Talaq-ul-Sunnat (Approved Form) This is in accordance with the traditions of the Prophet (PBUH) and includes: • Ahsan (Best form): • A single pronouncement during a period of purity (Tuhr). • No sexual intercourse during the Iddat period. • Becomes irrevocable after the Iddat expires. • Hasan (Good form): • Three pronouncements made in three successive periods of purity. • No intercourse during these intervals. • Becomes irrevocable after the third pronouncement. b. Talaq-ul-Biddat (Instant Triple Talaq) • Involves three pronouncements made at once. • Considered sinful and disapproved by jurists. • Not recognized by Shia law. • Declared unconstitutional by the Supreme Court in Shayara Bano v. Union of India (2017) for violating Article 14 of the Constitution. ii. Ila (Vow of Continence) • Husband vows not to have sexual relations for at least four months. • Marriage dissolves if the vow is not revoked before expiry. iii. Zihar (Injurious Comparison) • Husband compares wife with a woman in prohibited relationship (e.g., mother). • Wife can refuse cohabitation until the husband performs atonement: • Fasting for two months, • Feeding 60 poor persons, or • Freeing a slave. B. By the Wife i. Talaq-e-Tafweez (Delegated Divorce) • Husband may delegate the right to divorce to his wife or a third party. • Valid if the condition is reasonable and specific, e.g., wife can divorce if husband remarries or is cruel. C. By Mutual Consent i. Khula • Initiated by the wife. • She offers to return her dower (Mahr) or another consideration. • If accepted by the husband, the marriage is dissolved irrevocably. ii. Mubarat • Initiated mutually by both spouses. • Once the offer is accepted, divorce becomes irrevocable. • No consideration is necessary. ✓ In both Khula and Mubarat, the wife must observe the Iddat period. Reconciliation is only possible through fresh marriage. 3. Dissolution by Judicial Process A. Lian (Mutual Imprecation) • If the husband falsely accuses his wife of adultery, she can seek judicial divorce. B. Faskh (Judicial Annulment) Governed by the Dissolution of Muslim Marriages Act, 1939, especially Section 2, which allows a Muslim wife to obtain divorce on the following grounds: • Husband’s whereabouts unknown for 4 years. • No maintenance provided for 2 years. • Husband sentenced to 7 years or more in prison. • Failure to perform marital obligations for 3 years. • Impotency (if not cured within 1 year of court direction). • Husband is insane for 2 years or has a venereal disease. • Marriage occurred before age 15 and repudiated before 18 (if unconsummated). • Husband treats her with cruelty. • Any other valid ground under Muslim law. 🔹 Section 5 of the Act ensures that dissolution does *not affect the wife’s right to dower (Mahr). Legal Implications of Divorce under Muslim Law • Post-divorce, sexual intercourse becomes unlawful; any children from such relation are illegitimate. • Wife must observe Iddat before remarrying unless the marriage was not consummated. • Dower (Mahr): • Full amount if consummated. • Half, if not consummated. • Husband must provide maintenance during Iddat. • Inheritance rights continue until the divorce becomes final and irrevocable. Important Case Laws • Shayara Bano v. Union of India (2017) – Triple Talaq declared unconstitutional. • Juveria Abdul Majid Patni v. Atif Iqbal Mansoori (2014) – Khula initiated by wife cannot be refused by the husband, except for reasonable negotiation. Frequently Asked Questions (FAQs) Q1. Is Triple Talaq valid under Muslim law in India? ➡️ No. It was declared unconstitutional in Shayara Bano v. Union of India (2017). Q2. What is the difference between Khula and Mubarat? ➡️ Khula is initiated by the wife with compensation; Mubarat is by mutual consent without necessarily offering consideration. Q3. Can a Muslim wife divorce her husband without his consent? ➡️ Yes, under Talaq-e-Tafweez or through court under the Dissolution of Muslim Marriages Act, 1939. Q4. Is Talaq by Zihar still practiced? ➡️ It is rarely practiced and considered outdated but still valid under classical Islamic law. Start Your Preparation with TOA At Theory of Abrogation, we equip you with everything you need: •Subject-wise expert classes •Mock test series •Legal current affairs •Personalized mentorship for interview preparation “Your law degree is your foundation, but your preparation is what will build your success.” Join Our New Batch Now! Prepare smart. Prepare with Theory of Abrogation. Contact Us: 📍 B-109, Commercial Complex Dr. Mukherjee Nagar, Delhi-09 📞 +91 9971399324 | +91 8840961324 📧[email protected]
Immovable property, profit a prendre and doctrine of fixtures
Section 3 Interpretation Clause Immovable Property Immovable Property Stating simply Immovable property means the property which can not be moved from one place to another. According to Section 3 of the Transfer of Property Act “immovable property” does not include standing timber, growing crops or grass. The definition of the term “immovable property” in this section is a negative definition. It is not a comprehensive, and exhaustive definition. It merely excludes standing timber, growing crops or grass. The positive definition of immovable property has been given in section 3(26) of General Clauses Act, 1897. According to this section immovable property includes land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth. The definition given under the General Clauses Act, 1897 applies to the Transfer of Property Act, 1882 also (Babulal v Bhawani, 1912). Thus, the definition of immovable property given in Section 3 of The Transfer of Property Act, 1882 and under the General Clauses Act, 1897 both explain the definition of immovable property that immovable property includes the following elements: Land Benefits to arise out of land and Things attached to the earth: (a) things embedded in the earth; (b) things attached to what is so embedded in the earth; (c) things rooted to the earth except:- (i) standing timber, (ii) growing crops, or (ii) growing grasses Land. Land means surface of the land, and what is below, upon and under the surface of the land. The soil, mud, water, pond and river are also the part and parcel of the land. Sub-soil of the land, minerals, coals and gold mines are immovable property. The space which are above the surface of the land is also immovable property because of the fact that space starts just above the surface of the land. Benefits to arise out. of land-The benefits to arise out of land are immovable property. Any right exercise by a person on a piece of land and gets certain profit that is his intangible-immovable property. The right to way on a land or right to use a land under lease or tenancy is Immovable property. The right of a tenant to live in the house of land-lord and right to catch the fish from the pond or river are also an immovable property. The rights of ferry on river or lake waters by boats or steamers are immovable property as water of river or lakes are benefits to arise out of land and thus immovable property. Likewise right to extract coal or gold from the mines are immovable property. Profit à prendre Profit à prendre is a legal right that allows an individual to enter another person’s land and take some part of the land’s natural produce or resources. This could include things like minerals, timber, or even fish. Essentially, it is a right to extract and remove something from the land. For example, if someone has a profit à prendre to fish in a lake on someone else’s property, they have the right to enter the land, fish, and take the fish away. This right can be granted through an agreement or can be acquired by prescription (long-term use). A right to enter upon the land of another and carry a part of the produce is an instance of profits a pendre ie. benefit arising out of land, and therefore a grant in immovable property.(SHANTA BAI V STATE OF BOMBAY 1958 SC) Ananda Behera v State of Orissa 1956 SC Case Summary: Context: Petitioners obtained oral licenses from the Raja of Parikud to catch and appropriate fish from Chilka Lake, paying significant sums and receiving receipts. This occurred before the Orissa Estates Abolition Act of 1951, which transferred ownership of the estate to the State of Orissa. Issue: The licenses were for periods after the estate vested in the state. The State of Orissa refused to recognize these licenses and sought to reclaim the fishery rights. Petitioners’ Argument: They claimed their fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution were infringed, arguing the transactions were sales of future goods (fish), not immovable property. Court’s Decision: The court held that the right acquired was a license to enter the land and catch fish (profit à prendre), which is considered immovable property under the Transfer of Property Act and the General Clauses Act. Since the sale of this right was valued over 100 rupees and was not in writing or registered, it violated Section 54 of the Transfer of Property Act, meaning no title or interest passed to the petitioners. Fundamental Rights: The court found no fundamental rights were infringed as the state did not confiscate or take possession of the contract but merely refused to recognize it, which could lead to a contractual dispute but not a constitutional one. 3.Things attached to earth. -According to Section 3 of the Transfer of Property Act, 1882 expression things attached to earth’ means (i) rooted in the earth, as in the case of trees and shrubs, (ii) embedded in the earth, as in the case of walls or buildings; or (iii) attached to what is so embedded for the permanent beneficial enjoyment of to which it is attached. Things rooted to the earth-Rooted in earth as in the case of trees and shrubs. The trees, plants shrubs and herbs are rooted in the earth firmly they are called immovable property. When they are cut down their position are changed and they come under the category of movable property. But according to Section 3 of the TPA as an exception to this general rule are standing timber, growing crops and grass are movable properties. (ii) Things embedded in the earth– As in the case of walls or buildings which are fixed in the earth and become part of the land. Electricity poles, houses, buildings, walls are immovable properties because they are things embedded in the earth. Where the things are just placed…
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Transfer for benefit of unborn person sec. 13 TPA
Transfer for benefit of unborn person sec. 13 TPA Provisions regarding transfer of property for the benefit of unborn persons have been laid down in Section 13 of the Transfer of Property Act, 1882. Accordingly sec.13 reads as, “where on a transfer of property, an interest is created therein for the benefit of a person not in existence on date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.” Illustration A transfers property of which he is the owner to B, in trust for A and his intended wife successively for their lives and after the death of survivor for the eldest son of the intended marriage for life and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property. Transfer for the benefit of unborn person.– According to Section 5 of the Transfer of Property Act, 1882, the general rule is that property can be transferred from one living person to another. However, if someone wishes to transfer property to an unborn person, unborn is a person who is not in existence at the time of the transfer not even in the mother’s womb, such a transfer is also possible, subject to the conditions and methods provided in Section 13 of the Act.. A transfer cannot be made directly to an unborn person. Such a transfer can only be made by the machinery of trusts. For the benefit of the trustees being the transferee who held the property for the benefit of the unborn person. Hence, it is clear that a property, cannot be transferred to an unborn person directly. Such transfer can be made by the machinery of trust. Procedure of Transfer to an unborn As per section 13 of the Act, for a transfer of benefit of unborn; (i) a life estate has to be created in favour of living person or persons and, (ii) an absolute interest must be transferred in favour of the unborn. The person in whose favour a life estate has been created shall possess and enjoy it till the time he/she is alive. If during such person’s life time the person in whose favour an absolute interest has been created (i.e. the unborn) is born, the title in the property shall immediately vest in him/her even though he/she would get possession of the property only upon the death of life holder. If the unborn is not born during the life time of the life holder, the property shall be enjoyed by the life holder during his life time after which it would revert back to the transferor or his heirs as the case maybe. Example In a case where A transfers his property in 1960 to B for life and then to C for life and finally to C’s son S, who is unborn at this time. Both B and C are alive at this time the property would be first possessed by B for his life and then by C. And after C the property shall be transferred absolutely to the S, who must be in existence at or before the death of the C. S is born in 1970. At this time, he takes a vested interest in the property but the possession of it is postponed till the death of C (which say for instance took place in 1975) If S died in 1974, then because he had a vested interest in the property since 1970 i.e. when he was born, the property would after the death of C go to the heirs of S. But if S was not born till 1975 (i.e. when the last life estate in favour of C ended) then the property would revert back to A or his heirs as the case maybe. Thus it is important for a valid transfer under section 13, for an absolute interest to be created in favour of unborn (i.e. a life estate cannot be made in favour of unborn) and for the unborn to come into existence before the life estate created in favour of someone else comes to an end. According to Section 13 a property can be transferred for the benefit of an unborn person subject to the following conditions: Prior interest: Transfer for the unborn person must be preceded by a life interest in favour of a person in existence at the date of the transfer. The property which is to be transferred must vest in some person between the date of the transfer and coming into existence of the unborn person. The interest of the unborn person must, therefore, be in every case preceded by a prior interest and before termination of prior preceding interest, the unborn person must come in existence otherwise it would not vest in the unborn person. 2. Only absolute interest may be transferred in favour of the unborn person. It means property can not be transferred to an unborn with life interest or without power of alienation. We have the following propositions: (i) the intermediary person living at the time of the transfer is to be given only life interest. It means giving him only the right of enjoyment and possession. He has to preserve the property like a trustee during the life.time on behalf of the unborn person. (ii) The unborn must come into existence before the death of the.person holding property for the life. After the death of last living person in other words after the termination of the preceding interest the unborn person comes into existence, he cannot succeed to get the property. Because of the fact after termination of life interest, the property cannot remain in abeyance.and cannot wait…
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Section 4 of The Limitation Act, 1963
Section 4 of the Limitation Act, 1963 addresses the situation when the prescribed period for any legal action expires on a day when the court is closed. This section provides a safeguard to ensure that the right to institute a legal action is not unfairly curtailed due to court holidays or closures. It is to be kept in mind that since Section 4 is an exception, it will not increase the prescribed period (PP). It is just an exception to Section 3. Text of Section 4: “Expiry of prescribed period when court is closed: Where the prescribed period for any suit, appeal, or application expires on a day when the court is closed, the suit, appeal, or application may be instituted, preferred, or made on the day when the court reopens. Explanation: A court shall be deemed to be closed on any day if during any part of its normal working hours it remains closed on that day.” Key Points: Prescribed Period: The term “prescribed period” refers to the time limit set by the Limitation Act for initiating a legal action. These periods vary depending on the nature of the suit, appeal, or application. Court Closure: This section applies when the last day of the limitation period falls on a day when the court is closed. This closure can be due to weekends, public holidays, or any other reason that leads to the court being non-operational during its normal working hours. Extension to the Next Working Day: If the last day of the limitation period is a day when the court is closed, Section 4 allows the action to be initiated on the next day when the court reopens. This provision ensures that parties are not deprived of their right to legal recourse simply because the court was closed on the last day of the limitation period. Explanation Clause: The explanation to Section 4 clarifies that a court is considered closed if it remains closed for any part of its normal working hours on a given day. This means that even if the court is open for a brief period but is closed for the majority of its working hours, it is still deemed to be closed. Practical Implications: Fairness and Justice: This provision aims to ensure fairness and justice by accommodating the practical realities of court closures. It prevents the limitation period from expiring on a day when it is impossible to take legal action. Legal Strategy: Lawyers and litigants must be aware of this provision as it can be crucial in planning the timing of filing suits, appeals, or applications. It provides a cushion period to ensure that their actions are not dismissed on technical grounds of being time-barred. Administrative Ease: It simplifies the administrative process by providing a clear rule for handling cases where the limitation period ends on a day the court is closed, thus avoiding confusion and potential disputes over filing deadlines. Examples: If the last day to file an appeal is on a Sunday (a non-working day for courts), under Section 4, the appeal can be filed on the following Monday when the court reopens. If a public holiday falls on the last day of the limitation period, the legal action can be initiated on the next working day immediately after the holiday. Conclusion: Section 4 of the Limitation Act is a crucial provision that ensures the right to legal action is preserved despite court closures. It reflects the principle that procedural technicalities should not impede access to justice. By allowing the initiation of legal proceedings on the next working day after a court closure, it provides a practical solution to a common issue, thereby promoting fairness and equity in the legal process.
Ratio decidendi and Obiter dicta
Ratio decidendi and Obiter dicta Ratio decidendi Ratio decidendi is a Latin term that means “the reason for the decision.” It refers to the legal principle or rule that is the basis for a court’s decision in a case. This principle is what future courts will follow when deciding similar cases. These are binding on future cases. Ratio Decidendi Example The ratio decidendi of the Kesavananda Bharati v State of Kerala 1973 SC case is the establishment of the basic structure doctrine. The Supreme Court held that while the Parliament has wide powers to amend the Constitution under Article 368, it does not have the power to alter or destroy the basic structure or framework of the Constitution. This principle is binding and has been followed in numerous subsequent cases. For example in Indira Nehru Gandhi v. Raj Narain, 1975 SC Context: This case challenged the election of Prime Minister Indira Gandhi. Application: The Supreme Court applied the basic structure doctrine to strike down the 39th Amendment, which sought to place the election of the Prime Minister beyond judicial review. The court held that judicial review is part of the basic structure of the Constitution. Obiter dicta Obiter dicta is a Latin term that means “things said by the way.” In simple terms, it refers to comments or observations made by a judge in a court’s decision that are not essential to the outcome of the case. These remarks are not binding in future cases but can be persuasive. Obiter Dicta Example In Kesavananda Bharati v State of Kerala 1973 SC judges observed that while the Constitution must be flexible to adapt to changing times, this flexibility should not extend to altering its basic structure. They emphasized the need for a balance between allowing amendments and preserving the core principles of the Constitution. Besides this court also discussed about the concept of secularism, and discussed about preamble, fundamental rights in this case. Judges also commented on the role of the judiciary in safeguarding the Constitution. These discussions and observations of the court was not essential for the outcome of the case, hence it was an obiter dicta.
Ad-Interim Injunctions
Why in News? A division bench of Justice Pushpendra Singh Bhati and Justice Munnuri Laxman of the Rajasthan High Court granted an ad-interim stay on the impugned order dated 08-10-2024, issued by the Commercial Court, Jodhpur, which had earlier placed an ad-interim injunction against the release of the movie “Jigra” citing trademark violation. The Court allowed the release of the movie while safeguarding the respondent’s right to claim damages if a trademark violation is later proven. What is Ad-Interim Injunction? Purpose: The primary aim of an ad-interim injunction under ORDER XXXIX CPC is to maintain the status quo until the court thoroughly examines the merits of the case. It ensures that no party suffers irreparable damage during ongoing litigation. Applicability: An ad-interim injunction is typically issued when there is a prima facie case indicating potential harm to the plaintiff. It is a temporary measure applied while the main dispute is under consideration. Such injunctions can be modified or revoked as the case progresses, depending on new facts or legal arguments. Notice by the Court: Generally, a notice is issued to the opposite party before granting an ad-interim injunction. In urgent cases, ex-parte injunctions may be granted temporarily, even without prior notice, under Order XXXIX Rule 3 of the CPC. Time-Limit: Ad-interim injunctions are temporary and usually apply for a specified period. The court may extend or modify these injunctions as necessary based on the evolving circumstances of the case. Violation: As per Rule 2A of the ORDER XXXIX of CPC, if a party disobeys the terms of an ad-interim injunction, the court may: Attach the property of the guilty party. Detain the person in civil prison for up to three months, unless directed otherwise by the court. Essentials to Avail Ad-Interim Injunction: The plaintiff must demonstrate a prima facie case in their favor. The plaintiff must show potential for irreparable injury if the injunction is not granted. The court assesses the balance of convenience to determine if the injunction is justified. The plaintiff must prove that there is no other adequate remedy available, such as monetary compensation.
Mehr (Dower) Muslim Law
Mehr (Dower) Definition, Nature and Importance of Dower (Mahr) “Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage” Mulla. According to K.P. Saxena “Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.” Further, In Saburannessa v. Sabdur Sheikh, [(1934) Justice Mitter remarked: The marriage under Muslim law is a civil contract and it is like a contract of sale. But the notion of dower given above is not correct. Fitzgerald says: “It would be incorrect to describe the Muslim dower purely as the bride’s price.” Baillie says, under Muslim Law ‘dower is an obligation imposed upon the husband as a mark of respect to the wife.’ Abdur Rahim rightly says, “It is not a consideration proceeding from the husband for the contract of marriage, but is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of marriage.” (Muhammadan Jurisprudence, p. 334). Hedaya says that “the payment of dower is enjoined by the law as a token of respect for its object, the woman.” Further unlike sale, dower is not given to anyone except to the women herself. Object of Dower The object of dower is three-fold: to impose an obligation on the husband as a mark of respect of the wife; to place a check on the capricious use of divorce on the part of husband; and to provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of marriage by divorce. Subject matter of dower A handful of dates (Abu Daud). A pair of shoes (Tirmizi). If the husband is a slave, his services to his wife (Mohit Sarkhsee). The services of the husband’s slaves to the wife (Fatawa-i-Alamgiri). Husband’s services rendered to the guardian of a minor wife (Durrul Muktar). Teaching Koran to the wife (Tradition). In fact, the main contention of the Muslim jurists is that anything which comes within the definition of property can be the subject-matter of dower. Minimum and Maximum Amounts of dower Minimum – Hanafis 10 dirhams Malikis – 3 dirhams. Shafiis No minimum. Shias. No minimum. Maximum amount can be any amount without any upper limit. Among some of the sects of Shias, however, there is a tendency “not to stipulate for a sum higher than the minimum fixed by the Prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams. Amounts of dower and conditions of payment. If the marriage is consummated, and is dissolved by death: (a) whole of the specified dower or in case of regular marriage. (b) proper dower if unspecified, (c) specified or proper dower, which is less, in the case of irregular marriage. if the marriage is not consummated, and is dissolved by the act of party. (i) When divorced by the husband– (a) half of the specified dower, or (b) a present of three articles, if unspecified – in case of regular marriage (ii) When divorced by the wife: No dower, (iii) If the marriage is irregular: No dower Kinds of dower Broadly, there are two kinds of dower: specified (Mahr i Musamma) and unspecified (proper or Mahr i Misl). The specified dower has been further divided into: (a) Prompt (Mahr Muajjal) and (b) Deferred (Mahr e Muwajjal) (i) Specified dower.- An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, Hanafi Law says that the father is not personally liable for the dower, but according to Shia Law, he will be so liable. Prompt and Deferred dower.-Prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The prompt portion of the dower may be realised by the wife at any time before or after consummation, but the deferred dower could not be so demanded. In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia Law holds that the whole of dower is prompt; the Sunni Law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower. Unspecified dower.-In such cases where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualifications. Help would be taken by taking into account the amounts of dower fixed in case of wife’s sisters, paternal aunts, etc., and according to the Hedaya, the wife’s age, beauty, intellect and virtue will also be considered. Such dowers are called mahr-ul-misl. One aspect of dower beneficial to the Muslim woman is that even where the parties to the marriage have not stipulated any dower, the husband remains under an obligation to pay it. Remedies in case of non-payment of Dower The rights which dower confers on the wife are threefold : Refusal to cohabit. Right to dower as a debt. Retention of husband’s property. Refusal to cohabit. Before consummation, the wife is entitled to refuse to live with her husband and refuse to him sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower is a complete defence if the marriage is not consummated. If the wife…
WRITS The state and its instrumentalities, such as the police, universities, and other government bodies, exist to serve the nation and fulfil public duties. However, there are times when these very entities violate our rights, leaving us with no other option. In such instances, we can seek help and assistance from the court by applying for special orders known as writs. Thus, writs are special orders issued by superior courts to protect people’s rights and ensure that justice is done. These writs are five in number. These writs serve as an effective mechanism through which the judiciary can uphold the rights of individuals when those rights are violated, particularly by the state or public authorities, and in some cases even by private individuals. In India, two courts have the authority to issue writs: Supreme Court (Article 32): Writs only for fundamental rights. High Courts (Article 226): Writs for fundamental rights and other legal rights. Habeas Corpus Habeas Corpus is a Latin term which literally means “you may have the body”. The writ is issued in the form of an order calling upon a person by whom another person is detained to bring that person before the Court and to let the Court know by what authority he has detained that person. Who can apply for the writ: The general rule is that an application can be made by a person who is illegally detained, But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a friend or a relation. Burden of proof The burden of proof to justify detention has always been placed on the detaining authority. Writ against private individual The Supreme Court of India clarified this in the case of Kanu Sanyal v. District Magistrate, Darjeeling (1973). In this landmark judgment, the Court emphasized that the writ of habeas corpus can be issued not only against public authorities but also against private individuals if it is proven that they are unlawfully detaining someone. Case Law and Example: Mohd. Ikram Hussain v. State of U.P. (1964) All Facts: Mohd. Ikram Hussain was arrested and detained by the police under the suspicion of having committed a crime. His family believed that the detention was illegal, as he was not produced before a magistrate within the stipulated time, and there was no legal basis for his continued detention. The family filed a petition in the Allahabad High Court, seeking a writ of habeas corpus to challenge the illegal detention and secure his release. Judgement: The Allahabad High Court issued the writ of habeas corpus and ordered the police to bring Mohd. Ikram Hussain before the court to justify his detention. Upon reviewing the facts, the court found that: The detention was illegal, as the police had not followed due process, including presenting him before a magistrate within the required time. The court directed his immediate release, as there was no valid reason for his continued detention. Similarly, the detention becomes unlawful if a person who is arrested is not produced before the Magistrate within 24 hours of his arrest and he will be entitled to be released on the writ of habeas corpus. It can also be issued in case of child’s custody cases by one parent against the other. Mandamus The word “mandamus” means “the order” or “we command”. When it is used: If a government officer or body is not performing its duty, you can approach the court for a mandamus writ to compel them to act. For instance, a licensing officer is under a duty to issue a licence to an applicant who fulfils all the conditions laid down for the issue of such Licence. But despite the fulfilment of such conditions if the officer or the authority concerned refuses or fails to issue the licence the aggrieved person has a right to seek the remedy through a writ of mandamus. Allahabad High Court issued a writ of mandamus to direct the Regional Passport Officer to issue a passport to the petitioner. (Basoo Yadav v. Union of India, 2022 All) When it will not lie. —A writ of mandamus will not be granted in the following circumstances: (1) When the duty is merely discretionary in nature the writ of mandamus will not lie. State of M. P. v. Mandawara,’ the M. P. Government made a rule making it discretionary to grant dearness allowance to its employees at a particular rate. The Supreme Court held that the writ of mandamus could not be issued to compel the Government to exercise its power. (2) A writ of mandamus does not lie against a private individual or any private organisation because they are not entrusted with a public duty.’ (3) A writ of mandamus cannot be granted to enforce an obligation arising out of contract.’ Prohibition A writ of prohibition literally means “to forbid”. It is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. It is issued by a superior Court to inferior courts for the purpose of preventing inferior Courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction. Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955) Facts: This case involved an election dispute where the Election Tribunal’s decision was challenged. Reasoning: The Supreme Court issued a writ of prohibition to prevent the Tribunal from proceeding further, as it had acted beyond its jurisdiction. East India Commercial Co. Ltd. v. Collector of Customs (1962) Facts: This case involved the seizure of goods by customs authorities without proper jurisdiction. Reasoning: The Supreme Court issued a writ of prohibition to prevent the customs authorities from proceeding further, as they had acted beyond their jurisdiction….