Jurisprudence: The Philosophy and Science of Law 🔹 Introduction Jurisprudence is the study, analysis, and philosophy of law. It delves deep into understanding what law is, how it evolves, and how it should function in society. The word “Jurisprudence” comes from Latin: Juris = Law Prudentia = Knowledge or Skill Thus, jurisprudence literally means “knowledge of law” or “legal skill”. 🔹 Origin and Nature The study of jurisprudence first began with Roman jurists. Think of it as what science is to nature, jurisprudence is to law—it explores the fundamentals, reasoning, and purpose behind legal systems. > “Jurisprudence is not concerned with the text of statutes but with the essence of law itself.” As Cicero described, jurisprudence is the philosophical aspect of law—examining why laws exist, how they should evolve, and their moral backbone. Jurisprudence, derived from the Latin term juris prudentia, meaning “knowledge of the law,” represents the theoretical and philosophical study of law. It explores the origin, purpose, structure, and enforcement of laws within society. The discipline has ancient roots, evolving over centuries through various cultures and legal traditions. • Origin of Jurisprudence The origin of jurisprudence can be traced back to classical civilizations: Ancient Rome: Roman law is considered one of the earliest and most influential legal systems. Thinkers such as Ulpian and Gaius laid the groundwork for systematic legal analysis. Roman jurisprudence was concerned with categorizing laws, defining legal principles, and ensuring justice through reasoned interpretation. Greek Philosophy: Philosophers like Plato and Aristotle explored the concept of justice, natural law, and the role of law in a well-ordered society. Aristotle’s notion of natural justice versus legal justice laid a foundation for later theories distinguishing between man-made laws and universal moral principles. Religious Legal Systems: In Islamic jurisprudence (Fiqh), Jewish law (Halakha), and Canon law (Christian), jurisprudence took a theological form, interpreting divine commandments into legal doctrines. English Common Law Tradition: Jurisprudence developed through case law and judicial reasoning. Thinkers like Sir Edward Coke and William Blackstone emphasized precedent, legal customs, and the rights of individuals under the law. • Nature of Jurisprudence Jurisprudence is normative, analytical, and critical in nature. It does not merely describe laws but seeks to evaluate, interpret, and question their meaning and application. It can be broadly categorized into the following types: 1. Analytical Jurisprudence: Focuses on the logical structure of law, analyzing legal concepts such as rights, duties, sovereignty, and justice. It seeks clarity and coherence in legal language. H.L.A. Hart and Austin are major figures in this school. 2. Natural Law Jurisprudence: Argues that law should be based on morality or universal moral principles. Laws that are unjust or immoral, according to this view, may lack legitimacy. Thinkers include Cicero, St. Thomas Aquinas, and Lon Fuller. 3. Historical Jurisprudence: Emphasizes the evolutionary nature of law as shaped by customs, traditions, and societal needs. Savigny argued that law grows organically from the spirit (Volksgeist) of a people. 4. Sociological Jurisprudence: Sees law as a tool for social engineering. Law should be studied in its social context, not just as abstract rules. Roscoe Pound and Eugen Ehrlich are key proponents. 5. Critical Legal Studies: Emerged in the 20th century as a critique of traditional legal structures. It views law as a product of political and social power structures, often reinforcing inequality. Why is Jurisprudence Important? As per Salmond, jurisprudence serves several key purposes: 1. Thought-Provoking It introduces theoretical ideas that later influence real-world laws. Example: Natural rights (life, liberty) started as theory, became human rights laws. 2. Clarifies Legal Concepts It helps organize and simplify complex legal ideas. Example: The concept of legal personality—treating companies as “legal persons”. 3. Educational Value It trains legal minds to think logically and critically. Example: A judge may give justice over strict technicalities due to jurisprudential thinking. 4. Shapes Practical Laws Helps in modern lawmaking for current issues. Example: Emergence of cyber laws and AI regulations. Definitions by Great Jurists Ulpian: “Jurisprudence is the observation of things human and divine, the knowledge of the just and the unjust.” Cicero: Philosophical knowledge of law. Gray: “Science of law… systematic arrangement of rules followed by courts.” Salmond: “Science of the first principles of civil law.” John Austin: “Philosophy of positive law.” Allen: “Scientific synthesis of essential principles of law.” H.L.A. Hart: “Jurisprudence is the science of law, exploring legal concepts, systems, and the nature of law.” Salmond’s Classification of Jurisprudence 1. Expository or Systematic Jurisprudence Studies existing laws. Example: Analysis of the Indian Contract Act. 2. Legal History Explores how law has evolved over time. Example: Property or marriage laws from ancient to modern India. 3. Science of Legislation Suggests how laws should be made for future needs. Example: Laws for digital privacy or AI regulation. Austin’s Theory: Positive Law John Austin defined law as the command of the sovereign backed by sanction. His jurisprudence: Focuses on law as it is, not as it ought to be. • Divides jurisprudence into: ✓ General Jurisprudence: Legal principles common across systems. ✓ Particular Jurisprudence: Laws of a specific country (e.g., Indian Law). Example: √ Studying punishment in all countries = General √ Studying Indian Penal Code = Particular Criticism: Professor Holland disagreed with Austin’s division. He argued science should not be split into “general” and “particular” forms. Modern Perspectives on Jurisprudence H.L.A. Hart: System of Rules Hart divided laws into: √ Primary Rules: Tell us what to do (e.g., “Don’t steal”). √ Secondary Rules: Tell us how to create or enforce primary rules (e.g., Parliament’s power to legislate). He said a legal system is complete only when both rules exist together. Definitions of Law by Famous Thinkers J.C. Gray: Law = Rules enforced by courts. Salmond: Law = Principles applied by the state for justice. Roscoe Pound: Law = Social control through organized force. Paton: Law = Binding rules that regulate society. Kelson: Law = A technique of social organization, without political or ethical value. Austin: Law = Command of…
Category: Legal
Muslim Law of Inheritance: Comprehensive, Just, and Ahead of Its Time The Muslim Law of Inheritance is not just a legal framework—it is a deeply rooted, well-structured, and equitable system that has stood the test of time. When discussing inheritance laws across the world, Islamic inheritance law must be at the top of the list for its clarity, fairness, and comprehensiveness. 🔸 What is Inheritance? Inheritance means the transfer of money or property to legal heirs after a person’s death. In Islamic law, this transfer is governed not by emotions or customs but by divine command and logical structure, balancing rights and responsibilities. • Why Muslim Law of Inheritance Stands Out 1. Comprehensiveness: It covers all possible relations — sharers, residuaries, and distant kindred. 2. Equity Over Equality: Shares are distributed based on financial responsibility, not gender alone. 3. Fixed Shares: The Qur’an specifies the shares of 12 types of relatives, leaving no room for ambiguity. 4. No Birthright: Unlike Hindu law, Muslim law doesn’t recognize inheritance by birth. The right to inherit arises only after the death of the property holder. 5. No Joint Family System: Property is individually owned, and inheritance is divided immediately upon death. • Major Reforms Introduced by Islam ✓ Females allowed to inherit — a revolutionary step in the 7th century! ✓ Widows, daughters, and mothers given fixed shares ✓ Husband and wife both inherit from each other ✓ Even distant kindred get a chance when no closer heirs exist ∆ Key Highlights of the System 1. Classes of Heirs • Sharers: 12 relations, including husband, wife, children, parents, siblings. • Residuaries: Male relatives who receive the leftover estate. • Distant Kindred: Relatives not in the above two groups inherit only if no sharers/residuaries exist. 2. Female Rights • Daughters, mothers, wives, and even sisters have defined inheritance rights. • A female gets half the share of a male, but this is due to less financial obligation, not lesser status. • Widow always inherits — 1/4th if childless, 1/8th if she has children. 3. Exclusion Rules (Hujub) • Closer relatives exclude distant ones. • Son excludes grandson, father excludes grandfather, full sibling excludes half-sibling, etc. 4. Illegitimacy and Homicide Illegitimate children cannot inherit from the father. A person cannot inherit from someone they murdered, whether intentionally or accidentally (Sunni law). ✓ Distribution: Science & Justice Combined Sunni Law uses Per Capita Method: Property is divided equally among heirs of the same class. Shia Law uses Per Strip Method: Property is divided based on branches of the family tree. • Unborn Child A child in the womb can inherit if born alive — showcasing how Islamic law even protects the rights of the unborn! • Escheat Rule If no legal heir exists, the property goes to the State (Government). • Testamentary vs. Non-Testamentary Succession Non-testamentary succession (no will): Follows Shariat Law. Testamentary succession (with will): Allowed only up to 1/3rd of the estate for non-heirs. √ In West Bengal, Chennai, and Mumbai, testamentary succession is governed by the Indian Succession Act, 1925. ∆ Why This System Deserves Global Recognition The Muslim law of inheritance predates and outperforms many modern legal systems. It provides: • A scientific method of share calculation • Rights to women, including widows and daughters • Protection to unborn children • Clear rules to avoid disputes > This is not just a law — it’s a legacy of justice. Muslim Law of Inheritance: A Model of Equity, Logic, and Divine Balance The Muslim Law of Inheritance is one of the most detailed and sophisticated systems of property division in any legal tradition. Rooted in divine revelation and developed through centuries of jurisprudence, this law ensures that wealth is distributed fairly, maintaining social harmony and justice in the family. In today’s legal landscape, where disputes over inheritance are common, the Islamic system stands at the top for its structured clarity, fixed shares, and protection for all genders and relations. What is Inheritance in Islam? Inheritance refers to the transfer of a deceased person’s property to their lawful heirs. In Islamic law, this transfer is not arbitrary—it is based on Quranic injunctions, ensuring that everyone gets what they rightfully deserve. > “Inheritance is a right, not a privilege.” ∆ Key Principles That Make Muslim Inheritance Law Unique 🔸 1. No Doctrine of Representation In Muslim law, heirs must be alive at the time of the ancestor’s death. If someone dies before the ancestor, their children do not inherit in their place. > Nearest heir excludes the more remote. This is unlike Hindu or English law, where representation is allowed. 🔸 2. Fixed Shares for Sharers There are 12 fixed sharers including the spouse, children, parents, and siblings. Their shares are clearly defined in the Qur’an, leaving little room for manipulation or favoritism. 🔸 3. Females Have Inheritance Rights Women inherit, although typically half the share of men. This is due to the financial responsibilities of men (e.g., dower, maintenance). Daughters, mothers, sisters, and widows are all entitled. ✓ Three Classes of Heirs Category Includes • Sharers Have fixed Quranic shares (e.g., spouse, children, parents) • Residuaries Inherit what remains after sharers (e.g., brothers, uncles) • Distant Kindred Blood relatives not included above (e.g., maternal uncles, aunts) ✓ Advanced Doctrines: Precision in Practice 🔷 Doctrine of Aul (Increase) If the total of the fixed shares exceeds 1 (unity), the shares are proportionally reduced. Example: Husband gets 1/2 Two full sisters get 2/3 Total = 7/6 → more than 1 Adjusted: Husband = 3/7, Sisters = 4/7 🔷 Doctrine of Radd (Return) If total shares are less than 1, and there is no residuary, the remaining portion returns to the sharers proportionately (except spouses). Example: Mother = 1/6, Daughter = 1/2 Total = 2/3 Adjusted: Mother = 1/4, Daughter = 3/4 Female Rights Underlined Widows: 1/4 share (if no children) 1/8 share (if there are children) Daughters: One daughter = 1/2 Two or more = collectively 2/3 With sons = become residuaries (each son gets…
What is Waqf? – A Comprehensive Guide under Muslim Law Waqf in Muslim Law: Meaning, Essentials, Types & Mutawalli,explore the concept of Waqf under Muslim Law. Learn its meaning, essential elements, types, creation, and the role of Mutawalli with key legal insights and case references. • Introduction to Waqf Waqf (also spelled Wakf) is an Islamic endowment of property to be held in trust and used for charitable or religious purposes. As defined by Abu Yusuf, it is the detention of a thing in the implied ownership of Almighty God, and its profits are used for the benefit of humanity. “Once a waqf, always a waqf” – Supreme Court of India Key Characteristics of Waqf 1. Irrevocability – Once declared, a waqf cannot be revoked. 2. Perpetuity – It is permanent and lasts forever. 3. Inalienability – The property cannot be sold, transferred, or inherited. 4. Charitable Use – The usufruct (benefits) must be used for pious or charitable purposes. 5. Absoluteness – Conditional or contingent waqf is void. Essentials of a Valid Waqf • Under Sunni (Hanafi) Law: √ Permanent dedication of property √ Waqif (dedicator) must be Muslim, sane, and major √ Purpose must be religious, pious, or charitable • Under Shia Law: √ Must be perpetual, unconditional √ Possession must be transferred √ Waqif cannot benefit from the waqf Types of Waqf 1. Public Waqf – For community welfare, e.g., mosques, schools 2. Private Waqf – For the benefit of family, known as Waqf-alal-aulad How is Waqf Created? • Modes of Creation: √ Inter vivos – During lifetime √ By Will – Testamentary waqf √ During illness – Limited to 1/3 of property without heirs’ consent √ By Immemorial User – Usage over time can imply waqf • Objects and Subjects of Waqf Valid Objectives: √ Mosques, Imambaras, Madrasas √ Quran reading, aid to pilgrims √ Support to poor and destitute Valid Properties: √ Tangible properties (not consumables) √ Immovable (land, buildings) or movable (books, stocks, cash) > Property must belong to the waqif. The Role of the Mutawalli (Manager) A mutawalli is a manager or superintendent of the waqf—not an owner. Eligibility: • Must be Indian citizen • Sound mind and adult • Can be male, female, or even non-Muslim (unless religious duties are involved) Appointment: By founder, executor, or Court ✓ Duties (per Section 50, Waqf Act 1995): • Follow directions of the Waqf Board • Submit returns and accounts • Allow inspections • Manage public dues ✓ Removal: • Breach of trust • Mismanagement or decay of waqf property • Failure to follow waqf objectives ∆ Doctrine of Cypress If the original purpose becomes impossible, courts may apply waqf property to a similar charitable purpose, preserving the intention of the waqif. Difference Between Waqf and Trust A Waqf under Muslim law is a permanent dedication of property for religious, pious, or charitable purposes, where the ownership is transferred to the Almighty God, and its benefits are used for the welfare of society. Once created, a waqf is irrevocable, perpetual, and must strictly adhere to Islamic principles. The manager, known as a Mutawalli, does not own the property but merely supervises its use according to the waqf’s objectives. In contrast, a Trust under the Indian Trusts Act, 1882, can be established for any lawful purpose, including private or family benefit. Unlike waqf, a trust may be revocable, and the founder may reserve benefits for themselves. The property in a trust is legally held by the trustee, who manages it for the benefit of the designated beneficiaries. Thus, while both serve as instruments for asset dedication and welfare, their legal nature, flexibility, and religious context differ significantly. Registration of Waqf • Under Section 36 of the Waqf Act, 1995: • Mandatory registration with the Waqf Board • Application must be filed within 3 months of creation • Can be applied by mutawalli, waqif, heirs, or Muslim community members Landmark Judgments on Waqf under Muslim Law 1. Vidya Varuthi Thirtha v. Baluswami Ayyar (1921) 48 IA 302 (PC) Court: Privy Council Key Point: • This is a foundational judgment defining Waqf in India. • The Privy Council held that under Muslim Law, when property is dedicated by way of waqf, the ownership passes to Almighty Allah. • Trustees (mutawalli) do not become owners; they merely administer the waqf property. “The idea of beneficial ownership is foreign to the concept of waqf under Muslim Law.” 2. Mohammad Ismail Ariff v. Ahmad Moolla Dawood (1915) ILR 42 Cal 904 Court: Calcutta High Court Key Point: • Clarified that waqf is irrevocable and perpetual. • Once created validly, the waqif (settlor) loses all ownership. 3. M Kazim v. A Asghar Ali (1932) 59 IA 94 (PC) Court: Privy Council Key Point: • Distinguished waqf-alal-aulad (waqf for descendants) and clarified that it is valid if: • The ultimate benefit is reserved for charitable or religious purposes. 4. Abdul Fata Mohd. v. Rasamaya Dhur Chowdhury (1894) ILR 22 Cal 619 (PC) Court: Privy Council Key Point: • Ruled that if a waqf is only for the family and descendants and does not reserve any ultimate religious or charitable object, it is invalid. 5. Mst. Amina Bibi v. Abdul Rahman (AIR 1923 All 152) Court: Allahabad High Court Key Point: • Waqf is not a gift (hiba); it is a separate legal institution where the ownership is divinely vested. 6. Asghar Ali v. Union of India (AIR 1965 SC 1604) Court: Supreme Court of India Key Point: • Validated government’s right to take over management of waqf property in case of mismanagement or public interest. 7. Board of Muslim Wakfs v. Radha Kishan (1979 AIR 289; 1979 SCR (2) 1) Court: Supreme Court of India Key Point: • Defined the jurisdiction of Waqf Boards and stated that the civil courts have jurisdiction unless expressly barred. 8. Radhakanta Deb v. Commissioner of Hindu Religious Endowments (1981 AIR 798) Court: Supreme Court of India Key Point: • Though not directly on waqf, it clarified…
International Organizations: Structure, Role & Relevance in Global Governance International organizations are formal institutions established by multiple countries working together to achieve global peace, cooperation, development, and rule-based governance. These bodies shape modern international law and diplomacy through collective efforts. Definition & Purpose International organizations are entities formed by nations to tackle global challenges, including conflicts, health crises, trade issues, and environmental threats. Examples: • UN (United Nations): Global peace and security • WHO (World Health Organization): International public health • WTO (World Trade Organization): Regulating trade rules Historical Background ✓ First Technical Organization: • International Telegraph Union (ITU) – 1865, Paris • Aim: Standardize international telegraph communication • Now known as: International Telecommunication Union (under UN) ✓ First Political Organization: • League of Nations (1920–1946) • Aim: Prevent future wars • Created by: Treaty of Versailles • Failed to prevent WWII → Replaced by United Nations (UN) in 1945 United Nations (UN) The United Nations (UN) is an international organization founded in 1945 after the devastation of World War II, with the aim of maintaining international peace and security, promoting cooperation among nations, and ensuring respect for human rights. It is the most significant multilateral institution in the world today, with 193 member states. Historical Background • The League of Nations (1919) was the first international peacekeeping body but failed to prevent WWII. • In 1945, 51 countries met in San Francisco and signed the UN Charter. • The UN officially came into existence on 24th October 1945 (celebrated as UN Day). Aims and Objectives (as per UN Charter) 1. Maintain international peace and security. 2. Promote friendly relations among nations. 3. Achieve international cooperation in solving problems (economic, social, cultural, humanitarian). 4. Promote respect for human rights and fundamental freedoms. 5. Be a center for harmonizing the actions of nations. Organs of the United Nations (as per Chapter III of UN Charter) The UN consists of six principal organs: 1. General Assembly (GA) – Article 9 to 22 • Deliberative body with equal representation from all 193 member states. • Meets annually in September. • Discusses international issues and adopts resolutions (non-binding). 2. Security Council (UNSC) – Article 23 to 32 • Primary responsibility: Maintenance of international peace and security. • 15 members: 5 permanent (P5) with veto power, 10 non-permanent. • Resolutions are binding on all member states. 3. Economic and Social Council (ECOSOC) – Article 61 to 72 • Coordinates economic, social, and environmental work. • Works with 15 UN specialized agencies. • 54 members elected by General Assembly. 4. International Court of Justice (ICJ) – Article 92 to 96 • Judicial organ of the UN based in The Hague, Netherlands. • Settles legal disputes between states and gives advisory opinions. 5. Secretariat – Article 97 to 101 • Headed by the Secretary-General (currently António Guterres). • Administrative organ of the UN, implements decisions of other organs. 6. Trusteeship Council – Article 86 to 91 • Set up to oversee the administration of trust territories. • Became inactive in 1994 after the independence of Palau. Security Council (Articles 23–32) The Security Council is one of the six principal organs of the United Nations, entrusted with the primary responsibility for the maintenance of international peace and security, as laid out under Chapter V (Articles 23 to 32) of the UN Charter. 🔹 Article 23 – Composition of the Security Council • 15 members: • 5 Permanent Members (P5) – China, France, Russia, the United Kingdom, and the United States. • 10 Non-Permanent Members – Elected for 2-year terms by the General Assembly with due regard to equitable geographical distribution. • Non-permanent members are not immediately eligible for re-election. 🔹 Article 24 – Responsibility for Maintenance of International Peace and Security • The UNSC has primary responsibility for maintaining international peace and security. • In discharging this duty, it acts on behalf of all UN members. • The powers and functions of the UNSC are granted under Chapters VI, VII, VIII, and XII of the UN Charter. 🔹 Article 25 – Binding Nature of Security Council Decisions • All member states agree to accept and carry out the decisions of the Security Council in accordance with the Charter. • This makes Security Council resolutions binding, unlike General Assembly resolutions. 🔹 Article 26 – Regulation of Armaments • The UNSC, assisted by the Military Staff Committee, is responsible for formulating plans for the regulation of armaments. • Aimed at promoting peace with the least diversion of the world’s human and economic resources for armaments. 🔹 Article 27 – Voting Procedure • Each member of the Security Council has one vote. • Decisions on procedural matters: Need the affirmative vote of 9 members. • Decisions on substantive matters: Need 9 votes including the concurring votes of all 5 permanent members (i.e., veto power). • If even one P5 member votes against, the resolution fails. • Abstention by a permanent member is not considered a veto. 🔹 Article 28 – Participation in Meetings • The UNSC shall be so organized as to function continuously. • Each member shall have a representative present at all times. • The Council may hold meetings at any place it deems most convenient. 🔹 Article 29 – Establishment of Subsidiary Organs • The Security Council may establish subsidiary organs (e.g., peacekeeping missions, sanctions committees) as needed for performance of its functions. 🔹 Article 30 – Rules of Procedure • The UNSC adopts its own rules of procedure. • Includes the method of electing its President, agenda, meeting conduct, etc. 🔹 Article 31 – Participation of Non-Members • A UN member state which is not a member of the Security Council may be invited to participate without a vote in discussions if its interests are specially affected. 🔹 Article 32 – Participation of Non-Member States or Parties to a Dispute • If a non-member of the UN is party to a dispute under consideration by the UNSC, it shall be invited to participate (without…
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.
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…
Assault and Battery
Assault and Battery This article discusses assault and Battery, which fall under the category of torts. A tort is defined as a wrongdoing or an infringement of a right that results in legal obligation and is not covered by a contract. False incarceration is also a crime, as stated in “public nuisance is a crime as well as a tort”). The number of assault and Battery cases is rising daily. Introduction Assault and Battery fall under the tort, which is a civil violation classified as an intentional tort. The purposeful violation of another’s legally protected rights is referred to as an intentional tort. we could define assault as any action on the part of the defendant that immediately makes the plaintiff fear coming into contact with him. As a result, assault is committed when the defendant gives the plaintiff reason to believe that he will commit Battery against him through his actions. Typical assaults When someone points a pistol at someone else and threatens to shoot them, even if the victim later discovers the gun was not loaded or even real. The following are some characteristics of an assault: The act was meant to arouse fear of harmful or offensive contact. The act did arouse reasonable fear of such contact in the victim. A bodily threat gesture that is about to be made. A civil wrong known as Battery is defined as the willful and direct use of physical force against another person’s person or as the unlawful use of force against another person or their property, resulting in bodily harm or offensive contact. Battery attempts are considered assaults. An intentional tort is a Battery. Example Battery occurs when someone purposefully makes contact with another person that is harmful or objectionable. However, the Plaintiff is not liable if they granted explicit assent to the crime or inferred consent by taking part in a certain activity or circumstance (such as playing sports with the defendant).[i] Historical Background of Assault and Battery Modern tort law recognises certain “intentional torts,” or legal claims that can only be made when the defendant acted with the intent to harm the plaintiff or with a high degree of certainty that the plaintiff would be harmed. Several “classic” intentional torts, recognised as grounds of action for centuries, such as assault, Battery, false imprisonment, trespass to chattels, and trespass to real property, are examples of current intentional torts. Newer causes of action such as deliberate infliction of emotional distress, intentional interference with contracts, and intentional interference with prospective advantage are included in modern intentional torts. [ii] But there was no such thing as an “intentional tort” in tort law before the latter part of the nineteenth century. The actions for the “classic” intentional torts mentioned here were typically brought in trespass cases, which did not call for an intentional injury claim.2 The more recent intentional torts received very little recognition. Types of Domestic Assault and Battery Misdemeanor[iii] Domestic assault and Battery, defined as the purposeful and unlawful attempt, offer, and subsequent use of violence against a person with whom the offender currently has or formerly had a close, intimate relationship, constitutes the first offence. First-time domestic assault and Battery with a minor present – The same as above, but with a minor child in attendance at the time of the alleged event. First-time Domestic Battery and Assault of a Pregnant Woman is the same as Domestic Battery and Assault, but the alleged offence is committed with the knowledge that the victim is expecting a child. FELONY[iv] Domestic assault and Battery on a second or subsequent offence is the same as domestic assault and Battery on a first offence. It makes no difference if the “victim” is a different person or how minor the purported “injury” may be. Domestic assault and Battery in the presence of a minor on a second or subsequent occasion is the same as domestic assault and Battery on a first occasion in the presence of a minor. Additionally, exactly with the 2nd Offence Domestic Assault and Battery, the victim’s identity, the child involved, and the severity of the injuries is irrelevant. The second offence of domestic assault and Battery on a pregnant woman is the same as the first offence, with the exception that this is the second or subsequent offence. It should be highlighted that similar to the other charges, it is irrelevant whether or not the alleged victim is the same, whether or not the victim is pregnant, or how severe the injury is. It should be mentioned that the severity of the punishment is GREATLY raised IF the unborn child is hurt or the claimed mistreatment results in a miscarriage. Domestic Battery and strangulation assault[v] With the exception that the claimed crime involves some sort of strangulation, this is the same as domestic assault and Battery. The legal definition of strangulation in Oklahoma is as follows: “Strangulation means any kind of asphyxia, including but not limited to, closure of the (blood vessels)/(air passages)/nostrils/mouth as a result of external pressure on the head/neck.” It should be noted that even “attempted” strangulation can result in the filing of a criminal charge in addition to strangulation, which results in an automatic felony charge. Domestic Assault and Battery Causing Great Bodily Injury[vi] Domestic assault and Battery are involved here, however, the severity of the alleged victim’s injuries is taken into account. Great bodily injury, according to Oklahoman courts, is defined as any bone fracture OR any prolonged and evident disfigurement OR any prolonged (lengthy period) loss/impairment of function of a body part/organ OR that created a significant risk of death for the accused victim. Domestic Assault and Battery With Deadly Weapon[vii] Except that a legal “deadly” instrument or weapon was used in this domestic assault and Battery. You’ll see that four sorts of domestic assault and Battery fall under the misdemeanour category. We refer to these as predicate offences. No matter how serious the allegation or injury, if you ever enter a plea to one…