Legal Arena

Adv Tiyasa Halder

Contact No- 6290333271

Legal language

Probate

Probate is the legal and financial process that occurs after the death of an individual
and specifically deals with the individual’s will, property, and assets. Probate can be a
time-consuming process and typically includes court appearances and a lot of
paperwork.

Among the many things sorted out during the probate period are:

• Submission of proof through the courts that an individual’s will is valid

• Making a catalogue of the deceased’s property and ensuring that each item is
assigned a proper value
• The payment of all debts and taxes associated with the individual
• Distribution of assets, as assigned by the will or by the courts

Most families hire a probate lawyer to deal with all of the issues mentioned above.
However, the attorney might’ve been assigned to the case before the passing of the
individual whose matters are being dealt with. All fees associated with the probate
process – specifically the retainer and fees for the attorney – are typically paid out of the
deceased’s estate.

Importance of Probate

While the probate process – especially when lawyers are involved – only takes away
from what beneficiaries get from a person’s will, the process can be stripped down and
fairly simple. Not all property is required to pass through probate.

A certain amount of property – usually measured by dollar amount – can be dealt with
and distributed without the need for probate. If there is any significant property left over,
there are simplified procedures that can quickly and easily transfer property to the
intended or desired owner.

Probate is specifically appropriate and necessary for individuals with a significant

amount of property or wealth and even more needed if there are, or will likely be, those
who contest the individual’s will and how the relevant assets are going to be distributed.

The probate process is common and especially helpful in cases where the deceased
owns a significant amount of property or wealth, as well as when there is a good chance
that the will is going to be contested. For individuals with less property or firmly-
established plans to deal with their things once they’ve passed, the probate process – if
it is even necessary – can be fairly quick and painless

How Probate Works

The process of probate can be lengthy but is generally left up to professionals. In most
cases, an executor is named in the deceased’s will. While they can be a private citizen,
it’s typically a lawyer. The executor is responsible for getting together and submitting the
necessary paperwork required to start and finalize the probate process.

If there is no will, or no executor is named, a family member or individual appointed by

the family of the deceased may serve as executor. However, a judge must determine
that the appointed person is suited for the task and give them the right to serve as
executor.

In the event that formal probate steps aren’t needed – meaning court hearings aren’t
required – a family member or the nearest relative to the deceased takes on the role of
executor and usually gets a lawyer involved to be certain that all steps have been
followed appropriately.

If a will is clearly spelled out, there are no contentions, and the named executor is able
and willing to, the probate process simply means the elected executor is responsible for
dividing and distributing assets, paying off debts, and making sure that the deceased’s
estate is left as intended.

Charge sheet

Chargesheet is a formal document submitted by the police to the court after completing
the investigation into a cognizable offence containing information about the collected
evidence, the charges framed against the accused, and a summary of the case. It is also
known as the Police report or the Final report. Section 173 of the CrPC deals with the
chargesheet. Section 173(2) states “As soon as it (chargesheet) is completed, the
officer in charge of the police station shall forward to a Magistrate empowered to take
cognizance of the offence on a police report, a report in the form prescribed by the State
Government, stating—

• The names of the parties;

• The nature of the information;
• The names of the persons who appear to be acquainted with the circumstances
of the case;
• Whether any offence appears to have been committed and, if so, by whom;
• Whether the accused has been arrested;
• Whether he has been released on his bond and, if so, whether with or without
sureties;
 • Whether he has been forwarded in custody under section 170.
• Whether the report of medical examination of the woman has been attached
where investigation relates to an offence under sections 376, 376A, 376AB,
376B, 376C, 376D, 376DA, 376DB, or section 376E of the Indian Penal Code.

The officer shall also communicate, in such manner as may be prescribed by the State
Government, the action taken by him, to the person, if any, by whom the information
relating to the commission of the offence was first given.” The Chargesheet is a crucial
document, as it forms the basis for the court to take cognizance of the case and begin
the trial proceedings. It is the responsibility of the prosecution to prove the charges
outlined in the Chargesheet beyond a reasonable doubt.

Testamentory succession

Succession is the legal process by which the rights and obligations of a deceased
person are transferred to their heirs.

When we say that a person died intestate, it means that the individual passed away
without having executed a will. In such cases, the distribution of their properties and
assets will be governed by the personal law of succession and inheritance. The absence
of a valid will leaves the determination of the heirs and the allocation of the deceased
person’s estate to the legal framework established by the applicable succession laws.

On the other hand, testamentary succession, specifically, pertains to the succession of

a person’s property after their death in accordance with the provisions outlined in a
legally executed will. This type of succession occurs when the deceased individual has
made explicit provisions for the distribution of their estate through a valid will,
expressing their wishes and instructions for the disposal of their assets.

The Indian Succession Act of 1925 (in short, “ISA”) serves as the guiding legislation for
matters related to wills and testamentary succession in India, encompassing provisions
that regulate the distribution of assets after a person’s demise. Part VI (Sections 57 to
191) of the ISA consists of 23 chapters, providing a comprehensive framework for the
rules and procedures governing testamentary succession. These chapters delve into
various aspects of testamentary succession, including the execution and revocation of
wills, the appointment and powers of executors, the construction and effect of
testamentary dispositions, and other related matters. Together, these chapters
establish the legal framework for testamentary succession in India, guiding the
administration and distribution of assets in accordance with the wishes expressed in a
valid will.

This article aims to delve deeper into the realm of succession, with a particular focus on
wills and their significance. By exploring the intricacies of testamentary succession and
the Indian Succession Act, we aim to shed light on the legal principles and processes
that govern the distribution of assets according to the wishes expressed in a valid will.

Intestate succession

Intestate succession, in the law of inheritance, succession to property that has not
been disposed of by a valid last will or testament. Although laws governing intestate
succession vary widely in different jurisdictions, they share the common principle that
the estate should devolve upon persons standing in some kinship relation with the
decedent. Modern laws of intestacy have tended not to emphasize the traditional
concern that property be kept within the bloodline through which it came to the
decedent. Modern practice also tends to favour the rights of the surviving spouse,
whether or not he or she is regarded as kin, and (in most jurisdictions) to ease
restrictions on inheritance by illegitimate children.

Some intestate succession terms are obvious while others are not used how we
generally interpret the words. For that reason, we’ve outlined some of the key terms
used in intestate succession.

• “Intestate”

Intestate often refers to a person dying without a valid will.

• “Decedent”

A person who dies and leaves property to be distributed is often called the decedent.

• “Heir”

The heir is the person who inherits property from the decedent. The heir is determined
by a valid, legal will or by the State’s intestate law.

• “Testate”

The term “testate” is used to define the act of having a valid will.

• Probate”

The legal process of distributing the decedent’s estate is called probate.

Probate Court – Jurisdiction over a decedents’ estate belongs to the probate court.
Some states refer to this as circuit, superior, common pleas, surrogate’s, or orphan’s
court.

Probate Estate – Probate estate refers to the property of a decedent that must go
through the probate process. However, not all of the estate has to, or will, go through the
probate process.

• “Spouse”
If the survivor is legally married to the deceased at the time of death, the survivor can
qualify as a surviving spouse.

It is usually clear who is and who isn’t married, but that is not always the case.

Legally Separated/Pending Divorce – A judge may have to rule on whether or not the
surviving member is considered a surviving spouse if the couple was separated or the
divorce was filed prior to the death.

Common-Law Marriage – State laws vary on the observance of common-law marriages.

If your state does observe a common-law marriage, the judge may look for evidence that
the couple was living together, intended to be married, or lived as if they were married.

Same-Sex Couples – Now that all 50 states have legalized same-sex marriage, having a
surviving spouse is quite common for same-sex couples. However, some states
automatically converted registered domestic partnerships to marriages while some did
not. It’s best to check the legal status of your relationship and your state’s laws in
regards to same-sex laws as it pertains to intestate succession

Issue”

Some states use the word “issue” to describe who should inherit the estate in the
absence of a will. These are typically direct descendants of the deceased person
(children, grandchildren, etc).

• “Children”

The term “children” seems clear and obvious, but there are some definitions inside of
children that we want to make more clear.

Adopted Children – Most states allow adopted children to inherit from their legally
adoptive parents just as biological children can.

Stepchildren – Most states do not include stepchildren (not legally adopted) during
intestate succession.

Foster Children – Most states do not issue an inheritance to foster children.

Posthumous Children – A child who is conceived before the parent’s death but born
after death is often called a posthumous child. In this case, the posthumous child
inherits under the same intestate succession laws as other natural-born children.

• “Siblings”

If the State’s intestate succession law includes the deceased’s “siblings” as heirs, it
generally includes blood-related siblings and half-siblings.
Verification

In the legal realm, verification refers to the process of confirming the truthfulness or
validity of something. This can be done through various means, such as swearing under
oath or offering an affidavit as evidence of validity. Verification plays a crucial role in
ensuring the accuracy and reliability of information presented in legal proceedings

• The Importance of Verification

Verification holds significant importance in legal proceedings for several reasons.

Firstly, it ensures the integrity of the information presented. By requiring individuals to
verify the truthfulness of their statements, the legal system aims to prevent false or
misleading information from influencing the outcome of a case.

Secondly, verification enhances the credibility of the parties involved. When individuals
swear under oath or provide affidavits, they are essentially putting their reputation on
the line. This adds weight to their statements and helps establish trust in the legal
process.

Lastly, verification promotes fairness and justice. By confirming the truthfulness of

information, the legal system can make informed decisions based on reliable evidence.
This helps ensure that the rights and interests of all parties involved are protected and
that justice is served.

In summary, verification in the legal context refers to the process of confirming the
truthfulness or validity of something. Whether through swearing under oath or offering
an affidavit, verification plays a crucial role in ensuring the accuracy, credibility, and
fairness of legal proceedings. As a business owner, understanding the importance of
verification can help you navigate legal matters with confidence and integrity.

Review of literature

A literature review is a text of a scholarly paper, which includes the current knowledge
including substantive findings, as well as theoretical and methodological contributions
to a particular topic. Literature reviews are secondary sources, and do not report new or
original experimental work. Most often associated with academic-oriented literature,
such reviews are found in academic journals, and are not to be confused with book
reviews that may also appear in the same publication. Literature reviews are a basis for
research in nearly every academic field. A narrow-scope literature review may be
included as part of a peer-reviewed journal article presenting new research, serving to
situate the current study within the body of the relevant literature and to provide context
for the reader. In such a case, the review usually precedes the methodology and results
sections of the work.
The aim of a literature review is to show reader that you have read, and have a good
grasp of, the main published work concerning a particular topic or question in your field.
This work may be in any format, including online sources. It may be a separate
assignment, or one of the introductory sections of a report, dissertation or thesis. In the
latter cases in particular, the review will be guided by your research objective or by the
issue or thesis you are arguing and will provide the framework for your further work.

Objectives of Literature Review

A literature review has four main objectives:

- It surveys the literature in chosen area of study

- It synthesises the information in that literature into a summary
- It critically analyses the information gathered by identifying gaps in current
knowledge; by showing limitations of theories and points of view; and by
formulating areas for further research and reviewing areas of controversy
- It presents the literature in an organised way
- To define and limit the problem you are working on
- To place study in an historical perspective
- To avoid unnecessary duplication
- To evaluate promising research methods
- To relate your findings to previous knowledge and suggest further research

In conclusion, literature reviews are indispensable tools with a far-reaching impact

across academic, legal, and policy contexts. Their significance lies in their ability to
contribute to knowledge, inform decision-making, validate research claims, and
facilitate the growth of academic disciplines. The powers and jurisdictions
associated with literature reviews vary depending on the context but ultimately rely
on individuals and organizations committed to ethical and unbiased research
practices. As literature reviews continue to shape contemporary discourse,
addressing challenges and ethical considerations is imperative to maintain their
integrity and relevance in an ever-evolving world.

Writ of Mandamus

Mandamus translates to ‘we command’. This writ is issued by any court, to

command a public authority to perform the legal duties assigned to it. It can be
issued against a public official, public corporation, lower court or tribunal, or to the
government. If someone files this writ under the court, the government or public
authority has to fulfil its duty, in case it has failed to do so, as suggested by
petitioner.
 The writ of mandamus seeks to keep the government authorities within their
jurisdiction while exercising public functions. The writ of mandamus is necessary to
control and prevent disorder, resulting from the failure of justice where there is no
specific remedy for the problem under the law.

Mandamus also has its own limitations:

1. The court cannot issue this writ against private individuals or enterprises and
authorities. Additionally, it cannot be issued against the president or governors of
states or against working chief justices.
2. Mandamus cannot be approved when the duty that the authority has failed to
fulfil is not mandatory.
3. When the action is of a non-statutory function, it will not be applicable.
4. If the duty or direction causes the violation of any law, Mandamus cannot be
enforced.
5. The person filing under the mandamus writ must have a legal right to do so and
should have demanded performance of the duty and have been refused by the
authority.

Habeas corpus

Habeas Corpus’ literally translates into ‘to have the body’. This writ focuses on unlawful
imprisonment or detention by individuals, authorities, or organisations. When this writ
is issued, the prisoner and the concerned authority are brought before the court to
determine the legality of the imprisonment. If court proceedings find the detention
unlawful, the prisoner should be released and the detention cannot be carried forward.
There are no limitations to the application of writs. Every authority, private or
government, must prove that the detentions have legal grounds to stand on.
Additionally, Sunil Batra v. Delhi Administration case also added that the writ can be
used to protect the prisoners even after their imprisonment is proved to be legal.

Some important details on Habeas Corpus against unlawful detention are:

- Any case of detention warrants a follow up with a magistrate, to determine the

legality of the action. The magistrate should be informed and consulted within 24
hours of the person’s detention.
- Habeas Corpus allows for the release any person who is arrested without
committing crimes or violating any law.
- If detention occurs under an unconstitutional law (either deemed before or
later), the prisoner can be released through a writ of Habeas Corpus.
- This writ can be filed by the prisoner or any person related to the prisoner.
There are, however, some limitations to the working of Habeas Corpus. The writ will not
be applicable when:

- The detention is made based on crimes committed by the prisoner.

- A court has already ruled the detention to be legal and lawful.
- An investigation has already been made and the prisoner was found to violate
laws.
- The prima facie evidence suggests legal grounds for detention.

Notice of Quite

A notice to quit is a legal document that a landlord issues to a tenant when they want
them to vacate a rental property. It informs the tenant that the lease agreement will be
terminated and that they must move out of the property by a specific date, usually
within 30 days.

It is important to note that a notice to quit is not the same as an eviction notice. An
eviction notice is issued when a tenant fails to comply with the notice to quit and does
not vacate the property by the specified date. In such cases, the landlord can take legal
action to have the tenant forcibly removed from the property.

• Reasons for Issuing a Notice to Quit

Landlords may issue a notice to quit for different reasons, such as non-payment of rent,
lease violations, or nuisance complaints. Non-payments of rent is one of the most
common reasons for issuing a notice to quit. If a tenant fails to pay rent on time, the
landlord may issue a notice to quit to give the tenant a chance to pay the rent or vacate
the property.

Lease violations can also result in a notice to quit. For example, if a tenant violates the
terms of the lease agreement by subletting the property without permission, the
landlord may issue a notice to quit.

Nuisance complaints can also lead to a notice to quit. If a tenant engages in behavior
that disturbs other tenants or neighbors, such as excessive noise or illegal activities, the
landlord may issue a notice to quit.

Writ of prohibition

The writ of prohibition can be issued by a court, to prohibit the lower courts, tribunals
and other quasi-judicial authorities from exercising power beyond their authority. This
writ is useful in curbing unlawful jurisdiction of lower courts and tribunals and the
violation of rules of natural justice. All courts do not have the same jurisdiction and
cannot mete out the same levels of punishment or reward. Therefore, this is one of the
writs which regulates the powers and working of lower courts. While the writ of certiorari
can be passed after a judgement is made, the writ of Prohibition can be filed while court
proceedings are in order.

The Prohibition writ cannot come into effect if any of the following situations occur:

1. The case has been completed under the lower court or tribunal.
2. The body against which the writ was filed no longer exists.

Review

Judicial review, as stipulated under Section 114 of the Code of Civil Procedure (CPC),
constitutes a vital mechanism for re-examining a case within the same court and by the
same judge who issued the original judgment or order. This substantive right, outlined in
Order 47 of the code, defines the circumstances and procedures for initiating a review.

In the ordinary course, once a judgment is signed and pronounced, the court
traditionally relinquishes control over the matter. However, the power to review stands
as an exception to this rule. An aggrieved party holds the right to submit a review
application to the same court that rendered the decree.

In colloquial terms, “review” implies reconsideration or re-examination. Section 114

empowers the court to revisit its own judgment, correcting any errors or mistakes in the
decision. This authority, while substantive, demands adherence to the procedural
framework delineated in Order 47. Undertaking a review is a serious step, one that
requires careful and cautious consideration.

• Objective of Review

Embedded in the legal system, the review process aims to rectify and prevent
miscarriages of justice. Unlike an appeal or revision to a superior court, a review
application constitutes a plea to the same court to recall and reconsider its prior
decision. The judge who initially decided the matter holds exclusive jurisdiction to
review it, given their intimate familiarity with the case details.

• Grounds for Review

Order 47, Rule 1 enumerates the grounds justifying a review application:

Discovery of New Important Matter or Evidence: If new and significant matter or

evidence, previously unavailable or undiscovered, comes to light after the decree’s
issuance, the court can review its judgment.

Apparent Mistake or Error: The court may review its judgment or decree when mistakes
or errors, whether factual or legal, are evident on the face of the record. The review
process, as clarified by the Supreme Court in Tungabhadra Industries Limited v.
Government of AP, is not an opportunity to rehear and correct every decision but is
reserved for patent errors.

Other Sufficient Reason: This broad category includes any reason sufficient based on
the grounds specified in the rule. For instance, if the judgment contains inaccuracies or
if the court failed to consider a material issue, fact, or evidence, it constitutes a
sufficient reason for review to avert a miscarriage of justice.

Review: Not an Inherent Right

It’s crucial to note that the power of review is not inherent but conferred by law, either
expressly or by necessary implication. The court’s duty to rectify grave and palpable
errors committed by it is thus fulfilled through the authority to review and correct
injustices.

Limitation Period for Review

The window for filing a review application is limited to thirty days from the date of the
judgment or decree. This timeframe underscores the importance of timely recourse to
the review process within the legal framework.

Remand

Literal meaning of remand is to send back or to return. However, legally it can be defined
as sending the accused back to the custody of the competent authority before the
beginning of his trial. It can also mean sending back the cases from the appellate court.

The right to life and personal liberty has been enshrined under Article 21 of the
Constitution of India. Further, Article 22(2) contains provisions that any individual
arrested and has been detained in custody should be produced before the magistrate
within 24 hours of his arrest.

Remand is made during the trial of the accused or the investigation. Under the Code of
Criminal Procedure, two kinds of remands have been mentioned, namely, pre-
cognizance remand and post-cognizance remand. Section 167 of the Code deals with
pre-cognizance remand and section 309 deals with the post-cognizance stage of
remand. The object behind remand is to shift the accused from such a place where an
arrest has been made to the place where he is to be tried. Remand can further be
categorised into police remand and judicial remand.

• Procedure In Remand

The police officer has been empowered under section 41 to arrest an individual who has
committed a cognizable offence or there exists suspicion as to his or her involvement in
committing a cognizable offence. This implies that the police officer arrests without a
warrant. As the arrest of the individual has been made without a warrant, the police
officer, as specified under section 57 of the Code of the Criminal Procedure has no right
to detain the individual arrested for more than 24 hours. Only with the special
permission obtained from the Magistrate can the arrested individual be detained
beyond the specified period. Such police officer or investigation officer is under
obligation, under section 167 of the Code, to forward the accused to the judicial
magistrate if the investigation cannot be completed within 24 hours of the accused
arrest. The arrested individual cannot be kept in police custody or remand for more than
15 days. Further, the accused can be transferred to judicial custody till he or she gets
bail. Generally, in remand, the accused is kept in custody till the trial of the offence
committed begins. Therefore, it is pre-trial detention of the accused.

A magistrate has the authority of granting judicial or police remand. The magistrate also
has the authority for detaining the accused individual for a period beyond 15 days if
such an accused is not in police custody. However, the magistrate cannot detain the
accused for more than 90 days where the accused has committed an offence
punishable with death, imprisonment for life, or imprisonment not less than 10 years.
Further, the magistrate cannot also detain the accused for more than 60 days in other
cases. Section 167 of the Code has application only when the trial is pending. When the
mentioned period expires, the accused is released on bail according to provisions of
bail. However, if the police or investigation officer completes the investigation within the
given period then the accused will be deprived of the default.

Privileged will

A “Will” or “Testament” is a legal document by which a person (the ‘testator’) expresses

as to how his/her movable/immovable property needs to be transferred/ distributed on
account of his/her death. There are different types of wills and in this blog, we will
discuss one of these, namely, the privileged will.

A privileged will is one that can be made by a member of the Armed Forces engaged in
actual warfare or employed in a certain expedition. As a will is nothing but a legal
declaration, certain formalities must be met with for making a will in India. However,
considering the associated possibility and dangers of sudden death and lack of time,
owing to the nature of their line of duty, such formalities are somewhat relaxed for the
armed forces. This is what separates a privileged will from other forms of wills such as
an unprivileged will. In India, the privileged will cases are governed by the Succession
Act of 1925.

Benefits of Privileged Will

Most families in India do not follow the practice of creating a will. However, death is an
unavoidable scenario and having a privileged will in family law can help families to avoid
legal hassles related to property matters, that may arise on account of the death of the
head of the family.

Moreover, Armed Force personnel employed in actual warfare or warlike situations

cannot always have the time and resources for completing the entire formalities
associated with executing a legal will. Therefore, as per privileged will case law, they are
allowed some relaxation with regard to these formalities.

Here, we will look at some of the major benefits of having a privileged will in india –

1. The minimum age criteria is dispensed with

In contrast to other forms of will, even a person below the age of 18 years can create a
valid privileged will. This is important for young people under 18 years of age, who are
recruited in the Armed Forces. Because of their tender age, they would not be able to
create a conventional will otherwise.

2. Provision of Tax exemption

As per section 154 of the Indian Inheritance Tax Act of 1984, the exemption is allowed
on the assets passed on by a privileged will in India. This exemption is granted on the
estates of present/former members of the Armed Forces if an active service has led to
their death.

3. Extended validity

The validity of privileged will gets extended after the creator has left the Armed Forces,
has no longer been amidst the dangers of operational duties or even after a war has
ended. Also, the creator is free to make alterations in his will even after the change of
circumstances which gave him the power to make the privileged will earlier. He will still
be assumed to be in the privileged status.

4. Can be executed at a short notice

Because of the inherent relaxations, a privileged will in family law can be executed at a
short notice. This is extremely helpful in situations when an Armed Force Personnel is
about to put his life at risk.

Estoppel

Estoppel is a legal principle that prevents someone from arguing something or asserting
a right that contradicts what they previously agreed to or said. Put simply, estoppel
prevents one person from contradicting an action or statement from the past.
Estoppel is meant to prevent people from being unjustly wronged by the inconsistencies
of another person’s words or actions. Some of the most common forms of estoppel
include collateral estoppel and promissory estoppel.

Estoppel legally prevents people from making contradictory claims or actions. It is a

legal principle found in common law systems. Common law is a legal system in which
laws are derived from judicial decisions and precedent. Almost all countries with a
judicial system based on common law—including the United Kingdom, Canada, and the
United States—have incorporated multiple forms of the doctrine of estoppel in their
laws. While the names of the principles differ from country to country, the concept is
essentially the same: consistency matters, in both words and actions.

Estoppel ensures that a person stays true to their word and doesn’t unfairly damage
someone else. So if Person A must adhere to their word if they make a promise to
Person B and later rescind it

Vicarious Liability

Vicarious liability, or imputed liability, is a legal rule that holds a person or company
responsible for actions committed by others or by their employees. Typically, it applies
to those who are in control of people who cause harm to victims.

For example, a company (called the principal) is in control of its employees. So, if an
employee (called the agent) injures someone in the course of their employment,
vicarious liability rules could apply to hold the company accountable.

Vicarious liability gives victims more potential defendants in a personal injury case. In
many situations, plaintiffs will pursue a case against the person directly responsible for
hurting them and others who are vicariously liable for the losses that occurred.

Vicarious liability comes into play when one party is liable for the negligence of another.
Those who are sued under this legal doctrine can be held accountable for losses even
without negligence. For example, if a server in a restaurant drops a hot pot of coffee on
you and burns you, the restaurant is liable for the server’s actions. The restaurant is the
principal in control of the server (the agent) and is responsible for their actions in the
course of their employment, even if the restaurant itself did nothing negligent.

Examples of Vicarious Liability Offenses

There are a variety of actions/behaviours that can cause harm and that an employer
could be held vicariously liable for. They include, but are not limited to, the following:

- Breach of copyright
- Libel
- Harassment (sexual or otherwise)
 - Slander
- Breach of confidentiality
- Bullying
- Physical abuse/causing of bodily harm
- Mental abuse

Revocation of will

Revoking a Will essentially means cancelling or invalidating it. This can be necessary for
various reasons, such as changes in personal circumstances, relationships, or financial
status. It is important to note that revoking a Will effectively nullifies any instructions or
provisions previously outlined in the document.

Common Reasons for Revoking a Will:

Change in Family Dynamics: Relationships evolve over time. Marriages, divorces, births,
and deaths can significantly impact how you wish to distribute your assets.

Asset Changes: Significant changes in your financial situation, such as acquiring new
properties or businesses, may necessitate adjustments to your Will.

Change in Executors or Beneficiaries: If your appointed executors and/or beneficiaries

become unsuitable or ineligible for any reason, you may need to revise your Will
accordingly. Unfortunately, family disagreements can happen in life, and you may no
longer wish to leave your legacy to someone who you previously thought you did. Or vice
versa, you may make a new life-long friend whom you wish to thank or leave something
precious to.

A Mere Desire to Update Instructions: Your preferences regarding asset distribution or

specific instructions may change as you grow older or experience life-altering events.

- Methods of Will Revocation:

Creating a New Will: The most certain and common method of revoking a Will is by
drafting a new one. A subsequent Will typically includes a clause explicitly revoking all
previous Wills and codicils. In legal terms, this is called a revocation clause.

Physical Destruction: Destroying the original copy of your Will with the intention of
revoking it is another valid method. This can be done by tearing, shredding, burning, or
otherwise mutilating the document. However, accidental damage or a lack of intention
to revoke a Will creates a risk that previous copies may be declared as valid.

Written Revocation: You can also revoke your Will by executing a written document
expressing your intention to revoke it. This document should be signed and witnessed
the same way as a Will.
Marriage or Civil Partnership – Wills are automatically considered invalid on a marriage
or civil partnership, unless you stipulate that you intend to marry at the time that you
create your Will. This method may result in testators unintentionally revoking their Will.
There are some exceptions to the rule, for example Wills are not revoked if a same sex
civil partnership is converted into a marriage.

It is important to consider that divorce does not revoke a Will. Instead, it means that the
divorcee is presumed to have predeceased the testator.

Interpleader suit

The terms of inter-pleader litigation are covered under Order 35, s. 88 of the CPC 1908.
Ordinary actions brought before the Hon’ble court usually involve two parties: the
plaintiff and the defendant. However, the interpleader suit differs from typical suits in
which two defendants fight for a claim to a specific property, debt, or chattel. Typically,
the plaintiff in such claims has no real interest in the subject matter of the suit and just
wants to ensure that the property in dispute is returned to the rightful owner.

According to Halsbury’s laws of England, “Where a person is under liability in respect of

a debt or in respect of any money, goods or chattels, and he is or expects to be sued for
or in respect of the debt or money or those goods or chattels, by two or more persons
making adverse claims thereto, he may apply to the court for relief by way of
interpleader.”

Object of Interpleader Suit:

The primary goal of initiating an interpleader suit is to have opposing defendants;

assertions adjudicated. It is a procedure in which the plaintiff summons the opposing
claimants to appear in court and have their claims heard.

Section 88:

This section talks about the essentials or conditions to file an interpleader suit. The
below mentioned essentials must be met in order to file an interpleader suit: Firstly,
there has to be some liability, amount of the money, or other movable or immovable
property in conflict; Secondly, two or more individuals must be trying to claim it
detrimentally to one another; Thirdly, the plaintiff doesn’t really claim any interest in it
except the expenses or cost, and is willing to pay or give it to the right claimant; Fourthly,
there shouldn’t be any ongoing suit wherein the rival claimant’s right can be enforced.

Procedure laid down by order 35 of CPC: Order 35 of the CPC establishes the following
procedure: Order 35 established the following conditions that must be met by the
plaintiff seeking to launch an interpleader suit:
Firstly, the plaintiff must state that, except on the charges or expenses, he has no
interest in the matter which is in dispute;

Secondly, the assertion made by the defendants individually; and thirdly, there
shouldn’t be any collaboration between the plaintiff and any of the defendants. If any of
the defendants files a suit against the Plaintiff while the interpleader suit is pending, the
suit will be stayed under s. 10 of the CPC which talks about Res Sub-judice.

In Mangal Bhikaji Nagpase v. State of Maharashtra in the year of 1997, According to the
Bombay High Court, the plaintiff must declare that he has zero interest on the issue
other than expenses and charges.

Executor of a will

An executor is a person/institution who is the legal representative, named in a will or

implied as such, to carry out the process of the distribution of the assets of the testator.

- Criteria to Appoint an Executor

The executor appointed should be of 18 years of age and also of sound mind.

Substitute executors shall be appointed in case the original executor denies to fulfil his
duties when actual action is warranted.

The executor appointed may be either a beneficiary to the will or a third person(in case a
dispute seems likely).

It shall be made known to the executor that he/she shall be liable for any errors or
mistakes even if the same has been executed in good faith.

- Duties and Responsibilities of an Executor

Meeting of funeral expenses from the estate left by the testator.

Obtaining the death certificate of the testator.

Interpretation of the will in the right manner and distribution of assets to the correct
beneficiary.

Drawing up an inventory of the assets to be sold or disposed of.

Expense management for all the properties until the disposal of the same.

Applying for probate since it is the official evidence of the executor’s authority, where
probate is mandated by law.

The settlement of assets as directed in the will.

Payment of money that is due from the testator or collecting money due to the testator.
Maintaining records of all transactions.

Representing the testator in any legal action(excluding criminal and defamatory

matters).

- Advantages of an Executor

Beneficiaries shall be ensured of proper handling of the property.

By appointing a third person as an executor, the family can be relieved of the

administrative responsibilities of executing the will.

If the executor is appointed in time, it shall save time and money and shall prove to be
advantageous to the beneficiaries.

Many cases have been pending in courts due to family disputes which can be avoided
by appointing an executor who will be neutral and fair in his dealings.

Beneficiary of a will

Beneficiary is a person (or entity) who is designated to receive the benefits of property
owned by someone else. Beneficiaries often receive these benefits as part of an
inheritance.

A beneficiary can be designated in the documents relating to a life insurance policy, a

retirement account, a brokerage account, a bank account, and other financial products.

Any person or organization can be named a beneficiary to receive your property after
you pass away. The individual who owns the property or the benefactor can put various
stipulations on the disbursement of property. These might include the requirement that
a beneficiary is a certain age or is married before taking control of the inherited property.
Beneficiaries designated on the paperwork for financial accounts override any
beneficiary listed in a will.

There can be tax consequences for the beneficiary when inheriting certain financial
assets. For example, if someone is the beneficiary of a life insurance policy, it’s useful to
know that while the principal of most policies is not taxed, the accrued interest might
be. Failure to name beneficiaries on your financial accounts can result in the financial
institution that holds the assets having to make decisions about the distribution of the
assets.

Failure to name beneficiaries in a will can tie up your property in probate, potentially for
years. It can leave the decision about how to distribute your assets up to the state in
which you live.

Who can make a valid will?

A person who makes a will is known as the testator. The will is a legal document that
names the people who will receive the testator’s possessions and properties after their
death.

In India, a person is competent to make a will if they meet the following criteria:

- They are at least 18 years old

- They are of sound mind
- They are capable of making a valid judgment
- They are not intoxicated or in an inebriated state of mind
- They are not forced or coerced into making the will .

Doctrine of ultra virus

The term Ultra Vires is derived from the Latin word meaning “ beyond the powers of”.
The object clause of the Memorandum of Association of the company includes an
object for which the company is established. An act of the company should not be
beyond the clause else it will be ultra vires and therefore void and cannot be resolved
even if all the shareholders of the company wish to resolve. The rectification is not
possible even if the shareholders pass a special resolution with the majority of the
votes. The doctrine of Ultra vires is said to have originated intending to protect the
interest of the shareholders of the company.

The term Ultra Vires is derived from the Latin word meaning “ beyond the powers of”.
Any transaction or activities beyond the scope of the company or the authority endowed
upon the custodian of the company will come under the scope of the doctrine of ultra
vires and can be criticized accordingly. The concept of the doctrine of ultra vires was
first introduced in the United Kingdom in 1612. The concept of the doctrine of ultra vires
enables the men to determine whether the action is legitimate or illegitimate. This
concept has been elaborated by the judges in various judgments over a given period. In
the case, of Sutton Hospital of the year, it was stated that the doctrine of ultra vires will
not be applied for any action or transaction of chartered accountant, even though such
corporations are corporate personalities with a separate and distinct identity. In 1612,
the companies used the documents known as the “royal charters’ ‘ to incorporate the
company and give them a separate and distinct identity from its owners in the eyes of
law. Such a royal charter retains similar rights as a natural human being such as the
right to sue or to be sued without any physical exhibition. Therefore in the case of Sutton
Hospital of the year, even though the company had a separate legal existence in the
eyes of law, the doctrine of ultra vires did not apply. This case is considered as an
exception to the doctrine of the ultra vires and its scope.

Examination in chief
According to Section 137 of the Indian Evidence Act, 1872, examination-in-chief refers
to the process of questioning a witness by the party who has called them to testify. It is
the first opportunity for a party to present their evidence through their witnesses. The
purpose of examination-in-chief is to elicit all relevant facts that support the case of the
party calling the witness. It is also referred to as direct examination and differs
significantly from cross-examination and re-examination.

Examination-in-chief requires a lawyer to ask non-leading questions, meaning the

questions should not suggest the answer to the witness. The goal is to allow the witness
to narrate facts that are relevant to the case based on their personal knowledge. This
stage of the trial is critical because it lays the groundwork for the party’s case, and any
failure to present key facts during this stage could significantly affect the outcome of
the trial.

• Importance of Examination-in-Chief

The examination-in-chief is often regarded as the backbone of a trial, particularly in the

Indian legal system. This stage allows the party to bring forth witnesses who provide
factual testimony. Given that witnesses are the primary source of evidence in most
trials, their testimony during examination-in-chief can make or break a case.

In criminal cases, the prosecution relies heavily on examination-in-chief to prove the

elements of the crime beyond a reasonable doubt. In civil cases, the plaintiff’s side
uses this examination to establish liability or responsibility. Thus, it serves as a powerful
tool for establishing a party’s version of events in an unbiased, systematic manner.

•Objectives of Examination-in-Chief

The overarching objective of examination-in-chief is to prove the case of the party who
called the witness. However, several specific objectives guide the process, including:

° Admissibility of Evidence

The evidence presented during examination-in-chief must be admissible under the law.
This means that it should not be hearsay, irrelevant, or speculative. The lawyer
conducting the examination must be aware of the rules of evidence to ensure that the
testimony is admissible.

° Presenting Witnesses as Credible

The witness’s credibility is crucial to the weight given to their testimony. During
examination-in-chief, the lawyer should ask questions that highlight the witness’s
reliability, thereby enhancing the persuasive impact of their testimony.

° Establishing Key Facts

Examination-in-chief provides an opportunity to present key facts that support the case.
The lawyer should frame questions in a manner that brings out the facts clearly and
logically, ensuring that all essential elements of the case are covered.

° Creating a Coherent Story

The examination should aim to weave together the facts presented by multiple
witnesses into a cohesive and logical narrative. This helps the judge or jury to
understand the sequence of events and the relevance of the testimony to the case.

° Minimising Room for Cross-Examination

A well-conducted examination-in-chief can reduce the effectiveness of the opposing

party’s cross-examination. By covering all relevant points and addressing any potential
weaknesses in the case, the lawyer can limit the scope for cross-examination

Examination-in-chief is a critical component of the Indian trial process. It serves as the

primary method for a party to present its case through witnesses and evidence. A well-
conducted examination-in-chief lays a strong foundation for proving the case, while a
poorly executed one can weaken the party’s position.

In India’s adversarial legal system, examination-in-chief is not merely a procedural

formality but an art that requires skill, preparation, and a deep understanding of the law.
By asking the right questions in the right way, a lawyer can extract valuable testimony
that helps establish the truth and persuade the court.

Re-examination

Re-examination takes place when the party that originally called a witness wishes to ask
them further questions after they have been cross-examined. This may be because
doubts were cast over the witness’s evidence during cross-examination or because
uncertainties have arisen about specific matters during cross-examination.

Under section 39 of the Evidence Act 1995, unless a party is granted permission by the
court, a witness cannot be questioned about topics that are not related to those arising
from the cross-examination. During re-examination, additional evidence relevant to
matters raised during cross-examination can be introduced in order to provide
clarification of ambiguities that arose during cross-examination and to restore the
witness’s credibility where this has been compromised.

Re-examination serves as a valuable tool for addressing ambiguities and rectifying any
damage inflicted upon a witness’s credibility cross-examination.

Cross interrogation
Cross-examination in a court of law is an attorney’s opportunity to question any witness
who testifies on behalf of the opposing party. A prosecutor may cross-examine
witnesses who testify for the defense, and the defense attorneys may cross-examine
witnesses who testify for the prosecution.

Main Objectives of Cross-Examination

- To develop favourable matters that hasn’t been said during examination

- To reveal and establish that the statement provided by the witness is false.
- To establish any interest, the witness may have in the result of the trial.
- To establish that the witness has been coached and has memorized his
testimony.
- To reveal all the documents, that witness has attested to only that part which is
out of context.
- To check the witness’s ability to hear, see, remember, and relate with the
correctness of what he affirmed to.

Principles of Cross-Examination

- The adverse party is allowed for a fair chance to cross-examine.

- Cross-examination is not only available to the adverse party, but the party that
calls the witness can also cross-examine him, if it was found that the witness
has becomes a hostile witness.
- Cross-examination without chief examination is not allowed.
- If a piece of evidence is given by police while interrogating the witness which is
disadvantageous to the party, then cross-examination in the absence of
examination-in-chief is allowed.
- If the Counsel is not present on the fixed date, then the witness can be called for
another date for the cross-examination.
- Once examination-in-chief is done, if after that the witness is failed to present for
cross-examination then it may cause incredibility of that evidence.
- If a witness seems to be confused during his/her cross-examination, then the
court has all the rights to ask questions to that witness.
- Cross-examination is always viva vice in nature

Rules of cross-examination

There is no certain set of rules that lay down a proper conducting procedure of cross-
examination, it requires long term practice to lean the art of cross examination.
However, the Act sets out some guidelines to be followed for cross-examination.
According to Section 138 of the Act, cross-examination must pertain to and must not
deviate from the relevant facts. The adverse party has the freedom to not restrict the
questions to those introduced in the examination.
Therefore, cross-examination of the witnesses who give the documents is not permitted
but cross-examination of a witness related to earlier statements made in writing on
relevant issues is allowed. According to Section 146 of the Act, the cross-examining
party may ask any question(s) to the witness to examine his credibility, to understand
who he is and his role, or reduce his credit by harming his character. The witness has to
answer all the relevant questions asked to him.

Refreshing Memory

Section 159 of the Indian Evidence Act deals with the concept of refreshing memory. It
says that while under examination, specifically concerning the question put to the
witness, he may refer to any of the written document which comes under either of the
three categories:

1. A witness may refer to any document which is written by himself:

(a) at the time of the transaction concerning which is questioned to him. Or

(b) to the writing which he made soon after afterword, that the court finds it to be likely
that the transaction was at the time when he wrote such document is fresh in his
memory

2. A witness may refer to any document which is written by any other person but must
be read by the witness within the time so that when he reads it, he recalls the same.

3. An expert witness may refresh his memory by giving reference to the professional
treatises.

Provided: Wherever a witness refreshes his memory by referring to any written

document, then he must, with the prior permission of the court, also refer to a copy of
such document, i.e. secondary evidence. Further, provided that such copy of the
document can be produced only when the court is satisfied that there is sufficient and
reasonable reason for the non-production of the original document.

Bondhu vs Emperor (1949): In this case, the court held that it should be borne in mind
that for refreshing memory, the document or writing may not be admissible, but facts
tried to be proved must be admissible under section 159.

Bonafide

Bona fide is a Latin term that means “in good faith” or “in sincere intention.” It is
commonly used in legal circles to denote an honest, genuine belief or action taken
without any deception or ulterior motive. In essence, acting in good faith is the opposite
of acting in bad faith. A bona fide agreement or transaction is one that is made with
honest intentions and without any fraudulent or deceitful behavior. The concept of Bona
fide plays a crucial role in the legal system as it provides a basis for upholding the
integrity and fairness of contracts and legal agreements.
Origin of Bona fide

The term has its origin in the Roman Empire, where it was used to describe a person
who acted with honesty, trustworthiness, and integrity. Over time, the term’s meaning
evolved to include actions that were taken without any deceit or fraud. In current legal
parlance, the term is often used to describe a person or entity acting in good faith with
respect to a particular transaction or situation. The term is commonly used in contract
law and refers to agreements that are made with genuine intention and without any
fraudulent or deceitful behavior. In essence, bona fide is a term that reflects sincerity,
honesty, and good intentions in any given action.

Ejusdem generis

Ejusdem generis is a Latin legal principle that means of the same kind or of the same
nature. In the context of legal interpretation, this principle is used to interpret
ambiguous or general words in a statute or contract based on the specific words or
phrases that precede them.

Here’s how it works:

General vs. Specific Words: When a provision or clause in a legal document includes a
list of specific words or phrases followed by a more general or ambiguous term,
ejusdem generis suggests that the general term should be interpreted to be of the same
kind or nature as the specific words listed.

Restriction or Clarification: The principle helps to restrict or clarify the meaning of the
ambiguous term by considering it in the context of the specific examples provided. In
essence, the general term takes on the characteristics of the specific terms that
precede it.

Avoiding Overly Broad Interpretations: The purpose of applying ejusdem generis is to

prevent overly broad interpretations of the general term that could lead to unintended
consequences or loopholes in the legal text.

For example, if a contract clause states that employees are prohibited from bringing
animals, including dogs, cats and other animals into the workplace and the term other
animals is ambiguous, ejusdem generis would suggest that other animals should be
interpreted to be of the same kind as the specific animals mentioned (i.e., pets) and it
would not include, for instance, farm animals or exotic wildlife.

Quantum meruit
Quantum Meruit is a Latin phrase related to Indian Contract Act, 1872 which means
“what one has earned” or “as much as he has earned”. Quantum meruit means a
demand for a justifiable sum in relation to services or commodities provided to the
defendant. Thus, the law of quantum meruit means a promise to pay a reasonable fee
for the labour and materials provided even if there is no explicit contract.

For a layman’s understanding, quantum meruit means nothing but equitable

remuneration. It is a different type of remedy from a lawsuit that can be filed for a
breach of contract.

Quantum Meruit means a situation when the person providing the service has
completed some but not all of the work required of him and is requesting payment for
the worth of the work completed.

EXAMPLES OF QUANTUM MERUIT

• Medical assistance given in an emergency, Legal services rendered without a contract

or determining the total amount due when the task ended unexpectedly are all
examples of quantum meruit.

• Where a printer, having printed most of the work, refused to complete it because the
dedication was libellous, he was held entitled to recover on quantum meruit meaning
entitled to payment of prints taken so far. [Clay v Yates (1856) 1 H. & N. 73]

THEORY OF QUANTUM MERUIT

Usually, one must fully discharge his/her commitment before claiming performance
from another. However, theory of quantum meruit means anyone who has performed
some work under a contract can claim remuneration for the work which he has already
done.

CASE LAW ON QUANTUM MERUIT

M/s. Alopi Parshad & Sons Ltd vs The Union of India [1960 AIR 588, 1960 SCR (2) 793]

In this case, The Hon’ble Supreme Court dealt with an arbitration award which awarded
a certain amount on the ground of quantum meruit. But, the same was set aside and it
was held that “Compensation under quantum meruit is awarded for work done or
services rendered when the price thereof is not fixed by a contract. For work done or
services rendered pursuant to the terms of a contract, compensation quantum meruit
cannot be awarded where the contract provides for the consideration payable on that
behalf. Quantum meruit is but reasonable compensation awarded on the implication of
a contract to remunerate, and an express stipulation governing the relations between
the parties under a contract, cannot be displaced by assuming that the stipulation is
not reasonable.”

Spes succession
Spes successionis is an expectant right to inherit property upon a person’s demise.
Spes successionis is the mere chance of succeeding as an heir to someone’s estate,
contingent on specific circumstances such as surviving the deceased and the absence
of a valid will.

This term is particularly relevant when discussing uncertain inheritances, where the
individual’s claim is based on the expectation rather than a confirmed entitlement. Spes
successionis embodies the legal recognition of an heir-apparent’s or a legatee’s
potential interest in the property, which may materialise upon the fulfilment of certain
conditions.

The doctrine of spes successionis recognises that such an expectation does not confer
an immediate ownership stake or right over the property. In essence, spes successionis
serves as a legal concept that addresses the speculative nature of future property
inheritance, highlighting the distinction between a present fixed interest and a
prospective contingent right in matters of succession.

Scope of Spes Successionis

Exceptions to the principle of transferability exist in instances where the law prohibits
the transfer of property, forming deviations from this general rule. Section 6
encompasses ten exceptions (designated as clauses a to i) that render certain
properties non-transferable.

Objective of Spes Successionis under Section 6(a)

Section 6(a) of the Act excludes the potential succession rights of an heir apparent
from being classified as transferable property. This concept, often referred to by its Latin
term “Spes successionis,” involves instances where a transferor lacks a valid title to the
property and anticipates a future chance or has a personal interest in its enjoyment.
Such transfers contravene public policy and are considered unlawful and deceitful.

Essentials of Spes Successionis

Spes successionis under the Section 6(a) of the Act includes:

- Chance of an heir-apparent succeeding the estate.

- Chance of a relation obtaining legacy on the death of a kinsman
- Any other mere possibilities of a like nature

The doctrine of spes successionis, a pivotal concept in legal jurisprudence, navigates

the intricate realm of property inheritance and anticipation. This doctrine underscores
the distinction between a present, concrete entitlement and a future, uncertain
possibility of succession. Through a prism of careful legal analysis, it addresses
scenarios where potential heirs or legatees stand on the threshold of inheriting property
contingent on specific conditions.
As a safeguard against premature or unwarranted transfers, spes successionis prevents
the hasty conversion of speculative interests into enforceable rights. Its essence lies in
acknowledging the delicate balance between certainty and speculation in matters of
property transfer, ensuring that only established entitlements find their way into the
realm of transferability. Thus, the doctrine of spes successionis encapsulates the
essence of cautious legal interpretation, poised at the intersection of potential legacies
and the preservation of equitable principles.

Res ipsa liquitur

The Latin term Res Ipsa Loquitur means “the thing speaks for itself “. Which means the
situation of a particular act is enough to get the idea what has happened. It is the
principle that the mere occurrence of some types of accident is sufficient to imply
negligence.

In tort law, a principle that allows plaintiffs to meet their burden of proof with what is, in
effect, circumstantial evidence. The plaintiff can create a rebuttable presumption of
negligence by the defendant by proving that the harm would not ordinarily have
occurred without negligence, that the object that caused the harm was under the
defendant’s control, and that there are no other plausible explanations. It is a Prima
facie case.

According to the Blacks Law Dictionary the maxim is defined as the doctrine providing
that, in some circumstances, the mere fact of an accidents occurrence raises an
inference of negligence so as to establish a prima facie (at first sight) case. It is a symbol
for the rule that the fact of the occurrence of an injury taken with the surrounding
circumstances may permit an inference or raise a presumption of negligence, or make
out a plaintiff’s prima facie case and present a question of fact for the defendant to
meet with an explanation.

Essentials to prove res ipsa loquitur –

1.The incident was of a type that does not generally happen without negligence

2.It was caused by an instrumentality solely in defendant’s control

3.The plaintiff did not contribute to the cause

Case law regarding Res ipsa loquitur

Roe v. Minister of Health In this case the plaintiff was admitted to the hospital for
minor operations. The plaintiff was administered spinal anaesthetics by injections of
nupercaine and developed spastic paraplegia. The anaesthetics were stored in glass
ampoules immersed in a solution of phenol, and the judge found that the injuries were
caused by phenol, which could have entered the ampoules through flaws not
detectable by visual examination. The plaintiff contended that the doctrine of Res Ipsa
Loquitur be applied against the hospital as the injury would not have occurred had the
hospital not been negligent.

Operative part

The operative part of a judgment is the section that announces the outcome of a case
and the court’s conclusion on the issues presented. It’s also known as the Dispositive in
an award.

The operative part of a judgment is intended to be binding on the parties and the
arbitration. It should be clearly written and include precise directions on how to comply
with the plaint.

In criminal trials, the presiding officer can pronounce the operative part of the judgment
instead of the entire judgment. The judge can also explain the substance of the
judgment in a language that the accused or their representative can understand.

To save time, the Supreme Court recommends that high court judges only pronounce
the operative part of a judgment if it would take more than 20–25 minutes to dictate the
entire judgment.

Writ of quo warranto

Quo Warranto’ means ‘by what warrant’. This particular writ is used by the court, to
examine the legality of a person holding a public office. The person holding the office
should prove under what authority he does so. If the court proceedings find that the
person is not entitled to or does not have legal grounds to hold the office, he/she/they
may be dispensed from the job position. This writ helps to prevent the usurpation of any
public office, which can be caused by people unlawfully occupying positions of public
authority.

The writ can only be issued if the case meets any or all of these conditions are
mentioned below:

- The public office is illegally assumed by a private person.

- The office was created under the Constitution or law but the person holding the
office does not meet the qualifications to occupy the post.
- The public office in question must be permanent in nature.
- The duties arising from the office must be public.
- The office and position are public and not under private authority.

Audi Alteram partem

Audi Alteram Partem is a Latin phrase that translates to “hear the other side.” It is a
fundamental principle of natural justice that ensures fairness in legal proceedings and
administrative actions. This principle requires that all parties involved in a dispute or
legal matter should have the opportunity to be heard and present their case before a
decision is made.

It is based on the belief that a fair decision can only be reached when all sides of an
argument are considered and given a chance to respond. Audi Alteram Partem in
Administrative Law is considered a cornerstone of the rule of law and is essential for
upholding justice and preventing arbitrary decisions.

Essential Elements of Audi Alteram Partem

The principle of audi alteram partem is a fundamental aspect of natural justice and fair
legal proceedings. Its essential elements include:

Notice

Notice is a fundamental element of natural justice, ensuring that parties are informed of
any action proposed against them. It provides individuals with the opportunity to
respond and defend themselves. Without proper notice, any subsequent order or
decision is considered void ab initio or void from the beginning.

The right to notice is crucial as it allows individuals to understand the facts and charges
against them before a hearing. Notice must include essential details such as the date,
time and place of the hearing, as well as the jurisdiction under which the case is filed.
Additionally, it should clearly state the charges and proposed actions against the
individual. Failure to include any of these details renders the notice invalid.

Hearing

Fair hearing is another crucial aspect of the principle of audi alteram partem, ensuring
that parties have the opportunity to present their case and be heard before any decision
is made. If an authority passes an order without giving the affected party a fair hearing,
the order is considered invalid

Evidence

Evidence is a critical component of any legal proceeding and it must be presented when
both parties are present. The judicial or quasi-judicial authority will base its decision on
the evidence presented before it. In the case of Stafford v Minister of Health, it was held
that no evidence should be accepted in the absence of the other party. If any such
evidence is recorded, it is the duty of the authority to make it available to the other
party.

Cross-examination
Cross-examination is a vital aspect of the legal process, allowing parties to challenge
evidence presented against them without necessarily revealing the identity of the
person providing the evidence. While the court is not obligated to disclose the identity
of the person or the material against them, the opportunity for cross-examination must
be provided.

Legal Representation

Legal representation, while not always deemed essential for a fair hearing in
administrative proceedings, can significantly impact a party’s ability to understand and
effectively navigate the legal process. In certain circumstances, the denial of the right to
legal representation may constitute a violation of natural justice.

Audi Alteram Partem, as a principle of natural justice, embodies the essence of fairness
and due process in legal proceedings. Its concept revolves around the fundamental
idea that all parties should have the opportunity to present their case and respond to
allegations before a decision is made.

The essentials of Audi Alteram Partem in Administrative Law include the right to notice,
a fair hearing, the presentation of evidence, cross-examination and legal
representation. While there are exceptions to its application, such as in cases of
impracticability or legislative functions, Audi Alteram Partem remains crucial in
upholding justice, preventing arbitrary decisions and ensuring transparency and
fairness in legal systems worldwide.

Generalia specialibus non derogant

“Generalia specialibus non derogant” is a Latin legal maxim that means “The general
does not detract from the specific.” This principle is often used in legal interpretation to
clarify that when there is a conflict between a general law or rule and a specific law or
rule that addresses a particular situation, the specific law takes precedence or prevails
over the general one.

This means that when there is a specific law or rule that applies to a particular situation,
it should be given greater weight and applied, even if it seems to contradict broader,
more general laws or principles. This is important because it ensures that specific and
detailed regulations are not overridden by more general ones. By following this
principle, the law can be applied more fairly and justly to individual cases, rather than
relying solely on broad generalizations.

Is registration is mandatory for will or not?

Contrary to popular belief, registration of a Will is not mandatory under Indian law
(Section 18 (e) of the Registration Act, 1908) to make it legally valid. However,
registration serves as an extra layer of security to preserve a genuine copy in case the
original document gets lost, damaged or is tampered with.
Donatio mortis causa

Donatio mortis causa is a Latin legal term meaning “gift in contemplation of death.” This
type of gift is given by a person who anticipates their imminent death and intends the
gift to be transferred only if they actually die. If the person does not die as anticipated,
the gift does not take effect, and ownership of the property remains with the original
owner.

There are a few key characteristics of donatio mortis causa:

1. Imminent Death: The gift is made in anticipation of imminent death, typically

from illness or an impending risk.
2. Reversible: If the person survives, they can revoke the gift, or it may
automatically be voided if death does not occur.
3. Intention to Gift: The donor must have a clear intention to make the gift
conditional on their death.
4. Delivery: There must usually be some form of delivery or transfer of the gift to the
recipient before the donor’s death.

This concept can sometimes apply to family members, like a cousin, when someone
gifts property in this manner. However, the laws governing such gifts vary by jurisdiction
and often require specific formalities to be valid.

Ubi jus ibi

Ubi jus ibi remedium is a Latin legal maxim meaning “where there is a right, there is a
remedy.” This principle holds that for every violation of a right, the law must provide a
means to address the grievance. Essentially, it establishes that the legal system should
offer recourse whenever someone’s rights are infringed.

This maxim underscores the fundamental concept that rights are not merely theoretical
but are backed by the legal authority to enforce them and seek redress when they are
breached. It reflects the commitment of the legal system to uphold justice by ensuring
that no wrong goes unremedied if there is a corresponding right recognised by law.

• Essentials of Ubi jus ibi remedium

The maxim “ubi jus ibi remedium,” meaning “where there is a right, there is a remedy,” is
essential to the principle of justice. For this maxim to apply, several criteria must be
met:

Existence of a Right
The right in question must be recognised by the court of law. This means that the right
should have a legal foundation, as rights without legal backing are not enforceable
under this principle.

Clear Violation of Rights

A wrongful act must have occurred that clearly violates the legal rights of a person. The
wrongful act should be explicitly identifiable and directly linked to the infringement of
the specific legal right.

Lack of Sufficient Relief

The maxim comes into play when a person who has sustained injury has not been
provided with adequate relief through other legal mechanisms. The absence of a
suitable remedy elsewhere triggers the application of this principle to ensure justice.

Legal Injury

The maxim applies if a legal injury has been inflicted on the person, meaning the
infringement leads to the loss of a legally protected interest. If the damage caused is not
legally recognised, “damnum sine injuria,” or damage without legal injury, applies,
highlighting that not all damages necessarily warrant a legal remedy.

Therefore, the maxim ubi jus ibi remedium ensures that rights, once violated, receive
suitable remedies, affirming the justice system’s commitment to uphold recognised
rights effectively.

• Case Laws on ubi jus ibi remedium

The maxim ubi jus ibi remedium has been cited in several notable cases that exemplify
its importance in legal philosophy:

Sardar Amarjit Singh Kalra v. Promod Gupta & Ors.

In this case, the Supreme Court recognised ubi jus ibi remedium as a fundamental
principle of law. The court emphasised that its duty is to protect and maintain the rights
of the parties involved, ensuring that justice prevails by providing relief rather than
denying it.

D.K. Basu v. State of West Bengal (1996)

In this D.K. Basu v. State of West Bengal case, the Supreme Court acknowledged the
prevalence of custodial deaths and issued guidelines to protect detainees’ rights. The
court underscored that merely declaring violence in police custody a wrong without
offering remedies is insufficient. It advocated for compensation for victims of such
violence, emphasising that the quantum of compensation should reflect the
circumstances of the case.
Who is testators?

A testator is someone who makes a will to dispose of their property and account for
their debts after death. In order for a will to be valid, the testator must have what is
legally described as “testamentary capacity”, that is, they must be of sound mind and
capable of understanding the significance of making a will. A testator must also make
their will without being unduly pressured or coerced. This article explains the nature and
responsibilities of a testator

Actio personalis moritur cum persona

“Actio personalis moritur cum persona” is a legal maxim that means ‘a personal right of
action dies with the person’. In simpler terms, when a person dies, their personal legal
rights and claims also die with them. This used to apply to all types of legal actions,
including claims for damages in torts (civil wrongs) and contracts. However, the law has
evolved and now, under the Miscellaneous Provisions Act, 1934, many causes of action
survive the person’s death for the benefit of their estate.

The general rule is that all duties and remedies related to a person’s legal actions end
with their death. However, there are exceptions, such as in cases of defamation, assault
and personal damages, where the right to bring a legal action can survive the death of
the person. This means that even after someone dies, their estate can pursue legal
action on their behalf for these specific types of claims.

Case Laws

In the case of Girja Nandini Devi & Ors. V. Bijendra Narain Choudhury (1966), the
court emphasised the limited application of the maxim “actio personalis moritur cum
persona.” It clarified that the principle operates in a limited class of actions ex-delicto,
such as defamation, assault or other personal injuries that do not result in death, where
the relief granted cannot be enjoyed after the individual’s death.

Hambly v. Trott (1776) established foundational rules for claims against an estate. In
this case, the plaintiff sought to recover farm animals from the defendant’s estate after
the defendant’s death. The court ruled that claims for trespass against the person
would fail, but actions based on contracts could succeed.

Actio personalis moritur cum persona is a Latin legal maxim meaning “a personal action
dies with the person.” This principle indicates that certain legal actions, particularly
those of a personal nature such as claims for defamation, assault or personal injuries
that do not result in death, cease to exist upon the death of the individual.
However, modern legal systems have recognised exceptions to this maxim, allowing
certain types of actions, such as those related to property rights or contractual
obligations, to survive the death of the individual for the benefit of their estate or heirs.

Pro bono facto

Pro bono work is a vital part of the working lives of many solicitors. It helps people in the
UK and abroad get access to justice if they cannot afford to pay for legal help.

Pro bono work is legal advice or representation provided free of charge by legal
professionals in the public interest. This can be to individuals, charities or community
groups who cannot afford to pay for legal help and cannot get legal aid or any other
means of funding.

It’s always:

- Free to the client for the entire case

- Provided voluntarily by the lawyer or their firm

Pro bono publicio

Pro bono publico is a Latin phrase meaning “for the public good.” It refers to
professional work done voluntarily and without payment as a public service. This term is
most commonly associated with the legal profession, where lawyers offer free legal
assistance to individuals or groups who cannot afford to pay, often to serve a public
interest or advance social justice.

Key aspects of pro bono publico work include:

1. Public Service: The work is intended to benefit the public, support underserved
communities, or address societal issues.
2. Voluntary and Unpaid: The professional provides their services free of charge,
although sometimes nominal expenses are covered.
3. Skilled Services: The work is usually within the professional’s area of expertise,
ensuring quality and reliability in support of the cause.

Although pro bono work is common in the legal field, other professions, such as
medicine, architecture, and engineering, also engage in pro bono projects that benefit
the public.

Interest Reipublicae Ut Sit Finis Litium-

It means “In the interest of the state, that there be an end to litigation.” This legal maxim
underscores the importance of resolving legal disputes promptly and in the best
interests of the state or society as a whole. It promotes the idea that legal matters
should be concluded efficiently to maintain order and prevent prolonged disputes.
Interest :-concern or public interest

Reipublicae :- of the state

Ut :- so that or in order that

Sit :– to be

Finis :- end or conclusion

Litium :- lawsuit or dispute

Example – A government urging two warring parties to settle a lengthy and costly legal
dispute, stating that it’s in the public interest to bring an end to the litigation

Doli incapax

Doli incapax is a Latin phrase used in the legal system, which means ‘incapable of doing
harm or committing a crime.’ This principle presumes that a child cannot form the
necessary criminal intent to commit an offence.

The maxim Doli Incapax is based on the following reasoning:

Criminal responsibility should only apply to those who intend to commit a crime.

Children below the age of 7 lack sufficient mental understanding to comprehend the
consequences of their actions; thus, they do not possess the criminal intention or mens
rea required to be held guilty of an offence.

Children need to be protected from the strictness of the law due to their tender age.

Doli Incapax in IPC

Doli Incapax is mentioned in Sections 82 and 83 of the IPC.

Section 82: Absolute Immunity

Section 82 of the Indian Penal Code, 1860 falls under the chapter called ‘General
Exceptions.’ This section grants absolute immunity to any child under 7 years from being
considered guilty of any offence. It states, “Nothing is an offence which is done by a
child under 7 years of age.” This means that no child below the age of 7 can be held
legally responsible for any criminal act.

The reason for this exemption is that children below the age of 7 cannot understand the
difference between right and wrong. The law aims to protect them by granting complete
immunity from criminal prosecution, trial, and conviction. This idea is rooted in the
belief that infancy is a period of limited understanding, and therefore, young children
should not be punished.
It’s important to note that the age of discretion, where a child can be held accountable
for their actions, varies from country to country. Section 82 applies not only to offences
under the Indian Penal Code but also extends its protection to offences under local and
special laws.

Section 83: Qualified or Partial Immunity

Section 83 of the IPC provides partial immunity from criminal liability to children who
are above 7 and below 12 years of age. According to this section:

If a child is above 7 and below 12 years old, And if it is proven that the child has not yet
reached a sufficient level of maturity to understand the nature and consequences of
their actions on that particular occasion,

Then, any act committed by that child will not be considered an offence.

In other words, a child between 7 to 12 years of age can be excused from criminal
liability only if it can be shown that, at the time of committing the offence, the child did
not fully comprehend the gravity of their actions. To determine whether a child has
enough understanding, various factors are taken into account, such as the nature of the
act, the child’s behaviour before and after the incident, and how they behave during
court proceedings.

Case laws

Kakoo v. The State of Himachal Pradesh (1976) SC

In the case of Kakoo v. The State of Himachal Pradesh (1976) SC, the accused, Kakoo,
who was 13 years old, was convicted of raping a 2-year-old child. He was sentenced to
4 years of rigorous imprisonment by the High Court.

However, on appeal through Special leave under Article 136 of the Indian Constitution,
it was argued that since the accused was a juvenile at the time of the crime, a more
reformative approach should be taken. The court, considering Section 82 and Section
83 of the Indian Penal Code and the principle of Doli Incapax and emphasising the need
for a humanitarian approach towards juvenile offenders, reduced the sentence to one
year of rigorous imprisonment and a fine of Rs. 2000.

Mens rea

A crime is a moral wrong that is perpetrated against the entire society. It disrupts the
calm, and some crimes can provoke mass panic. Every crime has four main
components: a person (expressed by the words “whoever,” “person,” or “man”),
intention to harm (mens rea or guilty mind), a willed act (or omission), or the results of a
willed act or omission (actus reus). And Injury. In this article, we will learn about mens
rea and actus reus
Mens rea is a Latin word that translates to “guilty mind.” Mens rea is the essential
distinguishing feature, emphasizing the importance of the accused person’s state of
mind at the time of the offense.

It’s worth remembering that no conduct is unlawful unless a mens rea accompanies it.
The common law maxim “actus non facit reum nisi mens sit rea,” which translates to
“the act is not guilty until the mind is guilty,” defines mens rea the best. The accused
cannot be held accountable under the criminal law unless he can be proved to have
acted with intent to commit a crime.

The burden of proving the presence of mens rea falls on the plaintiff, and the purpose of
the defense is to raise a reasonable doubt in the mind of the judge or jury because the
principles of justice mandate that an individual cannot be convicted unless the charge
against him/her can be established beyond a reasonable doubt.