Sample questions and answers on the Constitutional Law of India, Indian Penal Code, Law of Contract and Law of Torts for Indian Judicial Service mains examination!
Q.1. Discuss the original jurisdiction of the Supreme Court of India.
[Bihar Judicial Service Main Examination, 2000]
Ans. The Supreme Court of India has original, appellate and advisory jurisdiction. Its exclusive original jurisdiction extends to any dispute between the Government of India and one or more States or between the Government of India and any State or States on one side and one or more States on the other or between two or more States, if and insofar as the dispute involves any question (whether of law or of fact) on which the existence or extent of a legal right depends.
This jurisdiction is contained in Article 131. Additionally, Article 32 of the Constitution gives an extensive original jurisdiction to the Supreme Court in regard to enforcement of Fundamental Rights. It is empowered to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce them.
Article 32 reads as under:
131. Original Jurisdiction of the Supreme Court- Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute-
(a) Between the Government of India and one or more States; or
(b) Between the Government of India and any State or States on one side and one or more other States on the other; or
(c) Between two or more States,
If and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:
Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.
While considering the precise scope of Article 131 of the Constitution it was observed by the Seven Judge Bench of the Supreme Court in State of Rajasthan v. Union of India, (1977)3 SCC 592 that the true construction of Article 131 of the Constitution is that a dispute must arise between the Union of India and a State and that it cannot be which arises out of differences between the Government in office at the Centre and the Government in office in the State.
It was also explained that the purpose of Article 131 is to provide a forum for resolution of disputes which must involve a question based on the existence or extent of a legal right and not a mere political issue. Article 131 speaks of a legal right.
That legal right must be that of the State. The dispute about a legal right, its existence or extent, must be capable of agitation between the Government of India and the States.
The character of the dispute within the scope of Article 131 that emerges is with regard to a legal right which the States may be able to claim against the Government. For example, the States as a party must affirm a legal right of its own which the Government of India has denied or is interested in denying giving rise to a cause of action.
For the purpose of deciding whether Article 131 is attracted the subject-matter of the dispute, therefore, assumes great importance.
As is evident from the ratio laid down in the above decisions, every dispute which may arise between the State on the one hand and the Union of India on the other, in discharge of their respective executive powers cannot be construed as a dispute arising between the State and the Union of India attracting Article 131 of the Constitution.
It is also clear that Article 131 of the Constitution is attracted only when a dispute arises between or amongst the States and the Union in the context of the constitutional relationship that exists between them and the legal rights flowing therefrom.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. Appellate jurisdiction of Supreme Court in regard to criminal matters is provided in Article 134 of the Constitution.
In criminal cases, an appeal lies to the Supreme Court if the High Court:
(a) Has on appeal reversed an order of acquittal of an accused person and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or
(b) Has withdrawn for trial before itself any case from any Court subordinate to its authority and has in such trial convicted the accused and sentenced him to death or to imprisonment for life or for a period of not less than 10 years, or
(c) Certified that the case is a fit one for appeal to the Supreme Court. Parliament is authorised to confer on the Supreme Court any further powers to entertain and hear appeals from any judgement, final order or sentence in a criminal proceeding of a High Court.
It is evident from the above that the constitutional scheme makes it clear that there is no general right to appeal in criminal matters apart from those as laid down in Article 134(l)(a) and (b). Article 134(c) gives the power to the High Court to certify cases which can be appealed, which must involve a substantial question of law, and not merely application of facts or evidence.
Article 134(l)(c) spells a measure of seriousness because the High Court which has heard the case certifies that it involves questions of such moment that the Supreme Court itself must resolve them. To dispose of such a matter by a preliminary healing is to cast a reflection on the High Court’s capacity to understand the seriousness of a certification.
Supreme Court of India in Rajendra Singh Yadav v. Chandra Sen, 1978 (10) UJ 862 SC held that while an unrestricted right of appeal is provided to the Supreme Court under Clauses (a) and (b) i.e. where on appeal an order of acquittal is reversed by the High Court and an accused person is sentenced to death or when the High Court has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death, an appeal under Article I34(l)(c) is subject to certain restrictions.
An appeal under Sub-clause (c) is provided only when the case is certified by the High Court as a fit one for appeal to the Supreme Court.
Q.3. Explain the doctrine of pleasure incorporated in Article 310 of the Constitution of India.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Write short note on Doctrine of Pleasure.
[Assam Judicial Service (Grade-III) Written Examination, 2015]
Ans. The doctrine of pleasure has its origins in English law. The Latin maxim durante bene pacito which means ‘during pleasure’ lead to the formation of this doctrine. In England, the moral rule is that a civil servant of the Crown holds office during the pleasure of the Crown. This means his services can be terminated at any time by the Crown, without assigning any reason.
Even if there is a contract of employment involving the Crown, the Crown is not bound by it. In other words, if a civil servant is dismissed from service he cannot claim arrears of salary or damages for premature termination. The pleasure doctrine is not based upon any special prerogative of the Crown but is based on public policy and is in public interest and for public good.
The basis of the pleasure doctrine is that the public is vitally interested in the efficiency and integrity of civil services and, therefore public policy requires, public interest needs and public good demands that civil servants who are inefficient, dishonest or corrupt or have become a security risk should not continue in service.
In India, the pleasure doctrine has received Constitutional sanction by being enacted in Article 310(1) of the Constitution of India. Under Article 310(1), except as expressly provided in the Constitution, every person who is a member of a defence service or of a civil service of the Union of India or of an all India service or holds any post connected with defence or any civil post under the Union of India holds office during the pleasure of the president, and every person who is a member of a civil service of a State or holds any civil post under a State holds office during the pleasure of the Governor of the State.
Thus, unlike the United Kingdom, in India the pleasure doctrine is not subject to any law made by Parliament or a State Legislature but is subject to only what is expressly provided in the Constitution. The pleasure is to be exercised under Article 310(1) on the aid and advice of the Council of Ministers.
Further, it being an executive power of the State within the meaning of Article 154, the exercise of pleasure may be delegated to subordinate officers in accordance with the laws or rules made under Article 309 which may prescribe the procedure by which and the authority by whom the pleasure may be exercised.
The pleasure of the President or Governor is controlled by provisions of Article 311, so the field covered by Article 311 is excluded from the operation of the doctrine of pleasure. The pleasure must be exercised in accordance with the procedural safeguards provided by Article 311.
But, the tenure of the Supreme Court judges [Article 124], High Court judges [Article 218], Auditor General of India [Article 148(2)], Chief Election Commissioner [Article 324], and the Chairman and Members of the Public Service Commission [Article 317] are not dependent on the doctrine of pleasure.
Supreme Court held in State of Bihar v. Abdul Maj id, AIR 1954 SC 245, that the English Common Law has not been adopted in its entirely and with all its rigorous implications.
Supreme Court of India in Union of India v. Major S.P. Sharma, on 6 March, 2014 observed that in fact the ‘pleasure doctrine’ is a Constitutional necessity, for the reasons that the difficulty in dismissing those servants whose continuance in office is detrimental to the State would, in case necessity arises to prove some offence to the satisfaction of the court, be such as to seriously impede the working of public service.
The pleasure doctrine can be invoked by the President at any stage of enquiry on being satisfied that continuance of any officer is not in the interest of and security of the State.
The statutory appointment and a pleasure appointment are distinct. Pleasure appointments are those where the incumbents are appointed at the pleasure of the President, Governors etc. As against this, statutory appointments are made under the statute and the service conditions of the incumbents are governed by the statute.
They are not pleasure appointments. Under the Constitution, appointment of Governors is purely a pleasure appointment, or appointment of such a nature which the incumbent holds at the pleasure of the President.
Q.4. Article 51(A) is confined to’ citizens’ unlike some of the Articles relating to Fundamental Rights (e.g. Article 21) which extend to all persons. Comment.
[Assam Judicial Service (Grade-III) Written Examination, 2015]
Ans. Yes, it is correct to say that Article 51 A, dealing with Fundamental Duties, is confined to only Indian citizens. The Fundamental Duties were inserted into the Constitution of India by the 42nd Constitution (Amendment) Act, 1976 on the recommendations of the Swarn Singh Committee. Ten Fundamental Duties were included in Article 51-A under Part IV-A through this amendment.
The 11th Fundamental Duty [Article 51-1(K) was added by the 86the Constitutional (Amendment) Act, 2002. Constitutions of some countries of the world contain provisions for Fundamental Duties.
The inclusion of Fundamental Duties in our Constitution also brings it in line with Article 29(1) of the Universal Declaration of Human Rights which says- “Everyone has the duties to the community in which alone the free and full development of the personality is possible.”
The idea behind the incorporation of the Fundamental Duties was to emphasize the obligations of the citizens in exchange of the comprehensive Fundamental Rights enjoyed by them. Actually, the Fundamental Duties were incorporated with the purpose of making the citizens patriotic, help them to follow a code of conduct that would strengthen the nation, protect its sovereignty and integrity, help the State in performing its diverse duties and promote ideals of harmony, unity, common brotherhood and religious tolerance.
These ideals are the very cornerstone of the Constitution. The Fundamental Duties have highlighted the importance of citizens in the functioning of the State and urges upon them to do their best to discharge their duties.
Rajasthan High Court in L.K. Koolwal v. State of Rajasthan, AIR 1988 Raj 2 observed that we can call Article 51A ordinarily as the duty of the citizens, but in fact it is the right of the citizens as it creates the right in favour of the citizen to move to the Court to see that the State performs its duties faithfully and the obligatory and primary duties are performed in accordance with the law of land.
Omissions or commissions are brought to the notice of the Court by the citizen and thus, Article 51A gives a right to the citizen to move the Court for the enforcement of the duty cast on State, instrumentalities, agencies, departments, local bodies and statutory authorities created under the particular law of the State.
Article 51A is confined to ‘citizens’ unlike some of the articles relating to Fundamental Rights which extend to ‘all persons’. Pointing out the usefulness of Fundamental Duties, the National Commission to Review the Working of the Constitution has mentioned that Fundamental Duties of citizens serve a useful purpose.
In particular, no democratic polity can ever succeed where the citizens are not willing to be active participants in the process of governance by assuming responsibilities and discharging citizenship duties and coming forward to give their best to the country. Some of the fundamental duties enshrined in article 51A have been incorporated in separate laws. For instance, the first duty includes respect for the National Flag and the National Anthem. Disrespect is punishable by law.
To value and preserve the rich heritage of the mosaic that is India should help to weld our people into one nation but much more than article 51A will be needed to treat all human beings equally, to respect each religion and to confine it to the private sphere and not make it a bone of contention between different communities of this land.
In sum, the Commission believes that article 51A has travelled a great distance since it was introduced in the Forty-second Amendment and further consideration should be given to ways and means to popularise the knowledge and content of the Fundamental Duties and effectuate them. The most important task before us is to reconcile the claims of the individual citizen and those of the civic society.
To achieve this, it is important to orient the individual citizen to be conscious of his social and citizenship responsibilities and so shape the society that we all become solicitous and considerate of the inalienable rights of our fellow citizens. Therefore, awareness of our citizenship duties is as important as awareness of our rights. Every right implies a corresponding duty but every duty does not imply a corresponding right. Man does not live for himself alone. He lives for the good of others as well as of himself.
It is this knowledge of what is right and wrong that makes a man responsible to himself and to the society and this knowledge is inculcated by imbibing and clearly understanding one’s citizenship duties. The fundamental duties are the foundations of human dignity and national character.
If every citizen performs his duties irrespective of considerations of caste, creed, colour and language, most of the malaise of the present day polity could be contained, if not eradicated, and the society as a whole uplifted. Rich or poor, in power or out of power, obedience to citizenship duty, at all costs and risks, is the essence of civilized life.
Chattisgarh High Court in Nitin Singhvi v. Union of India, on 18 August, 2017 said that discharge of Fundamental Duties is the constitutional obligation and duty of every citizen including any citizen appointed to public services and posts in connection with the affairs of the Union or of any State.
To the extent that would be contextually relevant to a situation, Fundamental Duties add on to the statutory or public duties of any citizen in authority and service, as well as any other citizen obliged to discharge statutory or public duties.
[Tripura Judicial Service (Grade-III) Written Examination, 2014]
Ans. Section 258 IPC lays down that whoever sells or offers for sale any stamp which he knows or has reason to believe to be counterfeit of any stamp issued by the Government shall be liable for punishment. Section 258 is as under.
258. Sale of counterfeit Government Stamp:
Whoever sells, or offers for sale, any stamp which he knows or has reason to believe to be a counterfeit of any stamp issued by Government for the purpose of revenue, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
The ingredients of section 258 are as under:
i. The stamp in question was a counterfeit of a stamp issued by the Government and
ii. The accused sold or offered to sale stamp which he knew or had reason to believe it to be a counterfeit of stamp issued by the Government for the purposes of revenue.
The offence under section 258 IPC is cognizable, non-bailable, non-compoundable and triable by the Magistrate of the First Class.
In State v. Kunwar Pal Singh, (2010) the accused was searched out by police and found carrying 12 stamps papers of Rs.5000/- each and 10 stamp papers of Rs. 1000/- each were found. Accordingly, the court found him guilty of offence under section 258 IPC.
Q.6. A man made a request to a woman whether she could spend one night with him. What is the offence, if any, committed by him, and why?
[Kerala HJS Examination, 2012]
Ans. He has committed sexual harassment under section 354A IPC by requesting for sexual favours.
This section has been inserted in IPC by Criminal Law Amendment Act, 2013 as under:
354. A (1) A man committing any of the following acts-
(i) Physical contact and advances involving unwelcome and explicit sexual overtures; or
(ii) A demand or request for sexual favours; or
(iii) Showing pornography against the will of a woman; or
(iv) Making sexually coloured remarks,
Shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.
(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.
Additionally, he can be tried for section 509 IPC which provides as under:
Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both.
Q.7. Define and illustrate the offences of ‘wrongful restraint’ and ‘wrongful confinement’ and distinguish between the two.
[Assam Judicial Service (Grade-III) Written Examination, 2006]
Write short note on wrongful confinement.
[Assam Judicial Service (Grade-III) Main Examination, 2012]
Distinguish between wrongful restraint and wrongful confinement.
[Himachal Pradesh Judicial Service Mains Examination, 2016]
Ans. The offence of “wrongful restraint” and “wrongful confinement” are offences affecting human body and cannot be said to have been committed if a person is not restrained or confined himself but the liberty of going in the conveyance in which he wishes to go or taking the article which he wishes to carry and without which he is not willing to proceed is denied to him. For proving wrongful restrain and wrongful confinement, physical force and presence of other person is required to be proved.
Section 339 IPC defines wrongful restraint as under-
339. Wrongful Restraint:
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.
A perusal of the definition of wrongful restraint, reveals that the complainant must possess a right to proceed in the direction. Exception to the Section provides that a person who in good faith believes himself to have a lawful right to obstruct, does not commit the offence if he so obstructs. Meaning thereby if a person in good faith believes himself to possess a right to obstruct a person, no offence is committed.
The essential ingredients of the aforementioned provision are:
(1) Accused obstructs voluntarily;
(2) The victim is prevented from proceeding in any direction;
(3) Such victim has every right to proceed in that direction.
Orissa High Court in Ramaji Bisi v. State of Orissa, on 4 May, 2017 said that the gist of offence of “wrongful restraint” is thus preventing a person from proceeding in any direction in which he has a right to proceed.
This section requires voluntary obstruction of a person and obstruction must be such as to prevent that person from proceeding in any direction in which he has a right to proceed. “Wrongful restraint” means keeping a man out of a place where he wishes to be, and has a right to be. The slightest unlawful obstruction to the liberty of the subject to go, when and where he likes to go, provided he does so in a lawful manner, cannot be justified, and is punishable under this section.
The word ‘obstruction’ or ‘restraint’ implies a desire to proceed in a certain way. It implies no movement of the body but a desire to cause motion. Before a person can be convicted of an offence of wrongful restraint, the prosecution must prove that the complainant had a right as distinguished from a license to proceed in a particular direction or that he had a right of way.
340. Wrongful Confinement:
Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said “wrongfully to confine” that person.
The confinement that wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits is said “wrongfully to confine” that person.
In Raju Pandurang v. State, (2004)4 SCC 371 it has been observed by Hon’ble Supreme Court that the essential ingredients of the offence under Section 342 are that the accused wrongfully confined the complainant and such restraint was to prevent the complainant from proceeding beyond certain circumscribed limits beyond which he has a right to proceed.
In State v. Ved Prakash, on 17 July, 2008 the court said that the wrongful confinement is a form of wrongful restrain by keeping a man within limits out of which he wishes to go, and has a right to go therefore any Act to attract the above Penal Provision there must be (1) wrongful restrain of a person, (2) such restraint must prevent that person from proceeding beyond certain circumscribing limits.
Bombay High Court in Kiran Shankar Kamble v. Hitesh Kantilal Sanghoi, on 29 June, 2010 said that if both these sections are read together, it will be clear that if the accused voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has right to proceed, he is said to have wrongfully restrained that person.
Section 339 of the Indian Penal Code requires that the accused should have obstructed a person from proceeding in any direction in which he has right to proceed and when he obstructs any person and restrain him from proceeding in any direction he commits the offence of wrongful restraint punishable under section 341 of the Indian Penal Code.
Rajasthan High Court in Gulla v. State, on 1 February, 2011 said that Section 340 defines wrongful confinement as restraining any person in such a manner as to prevent the person from proceedings beyond certain circumscribed limits.
Q.8. To what extent an agreement in restraint of initiating legal proceedings to enforce a right under or in respect of a contract by a party thereto valid?
[Kerala Judicial Service (Main) Examination, 2016]
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. Every citizen has the right to have his legal position determined by the ordinary courts and tribunals but this right is available ‘except subject to contract (a) when there is an arbitration clause which is valid and binding under the law; and (b) when parties to a contract agree as to the jurisdiction to which dispute in respect of the contract shall be discharged.
Sec. 28 expressly declares void those agreements which absolutely restrict a party to a contract from enforcing the rights under that contract in ordinary courts and tribunals.
28. Agreements in restraint of legal proceedings, void-
(a) By which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal proceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights; or
(b) Which extinguishes the rights of any party thereto, or discharges any party thereto from any liability, under or in respect of any contract on the expiry of a specified period so as to restrict any party from enforcing his rights, is void to that extent.
Saving of contract of refer to arbitration dispute that may arise-
This section shall not render illegal a contract, by which two or more persons agree that any dispute which may arise between them in respect of any subject or class of subjects shall be referred to arbitration, and that only the amount awarded in such arbitration shall be recoverable in respect of the dispute so referred.
Saving of contract to refer questions that have already arisen- Nor shall this section render, illegal any contract in writing, by which two or more persons agree to refer to arbitration any question between them which has already arisen, or affect any provision of any law in force for the time being as to references to arbitration.
Section 28 declares the following three kinds of agreements void-
(a) An agreement by which a party is restricted absolutely from taking usual legal proceedings, in respect of any rights arising from a contract.
(b) An agreement which limits the time within which one may enforce his contract rights, without regard to the time allowed by the Limitation Act.
(c) An agreement which provides for forfeiture of any rights arising from a contract, if suit is not brought within a specified period, without regard to the time allowed by the Limitation Act.
It has to be noted that section 28 does not apply to the agreements which restrict the enforcement of legal right partially.
Supreme Court in National Insurance Co. Ltd. v. Sujir Ganesh Nayak & Co., AIR 1997 SC 2049 held that an agreement which in effect seeks to curtail the period of limitation and prescribes a shorter period than that prescribed by law would be void as offending Section 28 of the Contract Act.
That is because such an agreement would seek to restrict the party from enforcing his right in Court after the period prescribed under the agreement expires even though the period prescribed by law for the enforcement of his right has yet not expired.
But there could be agreements which do not seek to curtail the time for enforcement of the right but which provide for the forfeiture or waiver of the right itself if no action is commenced within the period stipulated by the agreement. Such a clause in the agreement would not fall within the mischief of Section 28 of the Contract Act.
To put it differently, curtailment of the period of limitation is not permissible in view of Section 28 but extinction of the right itself unless exercised within a specified time is permissible and can be enforced.
If the contracting parties agree to refer the matter to arbitration which have arisen or may arise, this is not restraint of legal proceedings and hence valid.
In Rao Rani v. Gulab Rani, ILR 1942 All 810 the agreement between two co-widows that if any of them remarried, she should forfeit her right to share in the deceased husband’s property has been upheld. It was held that the agreement is not in restraint of marriage.
Q.9. Write note on contingent contracts.
[Goa Judicial Service (Junior Division) Examination, 2010]
Explain the difference between contingent contract and quasi contract.
[Rajasthan District Judge Written Examination, 2015]
Write a short note on “Contingent Contract”.
[Manipur Judicial Service (Grade-III) Written Examination, 2014-15]
Ans. Contingent Contract has been described from Section 31 to 36 of Contract Act. Section 31 defines the term ‘Contingent Contract’ which says that a contingent contract is a contract to do or not to do something, if some event collateral to such contract, does or does not happen.
Essentials of a contingent contract are:
(a) The performance of a contingent contract would depend upon the happening or non- happening of some event or condition. The condition may be precedent or subsequent.
(b) The event referred to is collateral to the contract. The event is not part of the contract. The event should be neither performance promised nor a consideration for a promise.
(c) The contingent event should not be a mere ‘will’ of the promisor. The event should be contingent in addition to being the will of the promisor.
Section 32 says that Contingent Contract to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event happens. Section 33 prescribes that Contingent Contract to do or not to do anything if an uncertain future event does not happen, can be enforced then the happening of that event becomes impossible. Section 34 describes that when event on which Contract is Contingent to be deemed impossible, if it is the future conduct of living person.
Further Section 35 describes that when contracts become void which are contingent on happening of specified events within fixed time. Lastly, Section 36 says that Contingent Agreement to do or not to do anything if an impossible events happens are void, whether the impossibility of an event is known or not to the parties to the agreement at the time when it is made.
Even in the absence of a contract, certain social relationships give rise to certain specific obligations to be performed by certain persons. These are known as quasi contracts as they create same obligations as in the case of regular contract. Quasi contracts are based on principles of equity, justice and good conscience. This concept has been evolved by Lord Mansfield in Moses v. Macferlan, (1760) 2 Bur 1005.
The provisions relating to quasi contract are contained in sections 68-72 under following heads:
i. Necessaries of life supplied to incapable person and to his dependents.
ii. Person pays money on behalf of the one, who is legally bound to pay.
iii. Person enjoying the benefits of non-gratuitous act.
iv. Person finds goods belonging to other.
v. Person to whom money has been paid or anything delivered by mistake or under coercion.
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Define bailment, lien and pledge.
Define bailment. Discuss the essential of a contract of bailment.
[Bihar Judicial Service (Mains) Examination, 2000]
Define “Bailment”, “Bailor” and “Bailee” in terms of the Indian Contract Act, 1872.
[Manipur Judicial Service (Grade-III) Written Examination, 2014-15]
Ans. Bailment is a contract in which the property of one party temporarily goes to another with the promise that after completion of the purpose, the property has to be returned or disposed of as per instruction of the real owner.
In this, the owner of property, generally, delivers possession of his property to another for some specific purpose. For example: delivering bicycle to repair.
Bailment has been defined in section 148 of the Indian Contract Act as-
148. “Bailment” “Bailor”, and “Bailee” Defined- A “bailment” is the delivery of goods by one person to another for some purpose, upon a contract that they shall, when the purpose is accomplished, be returned or otherwise disposed of according to the directions of the person delivering them.
The person delivering the goods is called the “bailor”. A bailor transfers possession, but not ownership, of a good to another party, known as the bailee, in the event of a bailment. While the goods are in the bailee’s possession, the bailor is still the rightful owner.
The person to whom they are delivered is called, the “bailee “. Explanation of section 148 mentions that ‘if a person already in possession of the goods of another contracts to hold them as a bailee, he thereby becomes the bailee, and the owner becomes the bailor of such goods, although they may not have been delivered by way of bailment.’
Provision relating to lien has been described under section 170 & 171 of the Contract Act. Section 170 describes the particular lien whereas Section 171 describes a general lien.
Pledge has been described under sec 172 of Indian Contract Act. The bailment of goods as security for payment of a debt or performance of a promise is called pledge. The bailor is in this case called the ‘Pawnor’. The bailee is called a ‘Pawnee’.
[Assam Judicial Service (Grade-III) Written Examination, 2013]
Ans. The earliest form of security was the pledge in which the creditor took possession of the debtor’s assets as security until payment of the debt. The common law understandably attached great significance to possession for this was the principal indicium of ownership, and to allow the debtor to grant security over his assets whilst remaining in possession was the surest way to facilitate fraud on his other creditors, who might be forced to lend money on the strength of the debtors apparent continued ownership of the assets in question.
Hence, in the early days of the common law the taking of possession by the creditor was almost sine qua non of a valid security interest.
To this day, the pledge remains the most powerful form of security interest known to English law, for though the pledgee’s interest is a limited one; his possession gives him a legal right to that interest, with an implied power of sale in the event of default.
The term ‘pledge’ or pawn (Latin pignus) means bailment of personal property as security for some debt or engagement. This is a species of bailment. It is made for providing security for some debt or engagement.
Chitty says that a pledge is ‘a Bailment of goods by a debtor to his creditor to be kept by him till the debt be discharged; the bailment is intended to be security for some debt or engagement’.
In Indian Contract Act, the pledge is defined in section 172 as-
172. ‘Pledge’ ‘Pawnor’, and ‘Pawnee’ Defined- The bailment of goods as security for payment of a debt or performance of a promise is called ‘pledge’. The bailor is in this case called the ‘pawnor’ (pledger). The bailee is called the ‘pawnee’ (pledgee).
This section affirms the Common Law. The bailee under a contract of pledge does not become owner, but, as having possession and right to possess, he is said to have a special property.
As we have seen, pledge is a special kind of bailment; all the essentials of bailment are applicable here. In addition to those all, the goods are delivered by one person to other only for the purpose of security.
The essentials of pledge are as under:
(a) Delivery of Goods:
Like bailment, the goods must be delivered by the pledger to pledgee. The delivery may be actual or constructive. If the goods are not delivered by the pledger to pledgee, there is no pledge.
(b) For Security Purpose:
The delivery of goods should be only for security of either for payment of a debt or performance of a promise.
(c) In Pursuance of a Contract:
The possession of goods in pledge must be transferred from pledger to pledgee in pursuance of a valid contract of pledge.
(d) Pledgee can Retain Pledged Property until Debt Fully Discharged:
The pledgee is entitled to retain the pledged property with him and he is not under duty to return to pledger until his debt is fully discharge or promise is performed.
Delhi High Court in Jagatjit Distilling and Allied v. Bharat Nidhi Ltd., ILR 1978 Delhi 526 has summarized the law relating to pledge as under-
(a) Pledge is a bailment of goods to a creditor as a security for some debt or engagement.
A bailment or delivery of goods by a debtor to his creditor to be kept till the debt is discharged is called a pledge. Pledge is a kind or class of bailment as was said by Lord Holt in the leading authority of Coggs v. Bernard.
(b) The bailee or the pledgee agrees to restore the thing to the bailor or pledger in the same condition substantially as he received it.
(c) If the bailee did an act entirely inconsistent with the terms of the bailment he incurs a liability.
(d) Loss caused by an act not authorised by the terms of the bailment will fall on the bailee.
It is a tort for the pledgee to retain the goods after payment of the Debt.
[Odisha Judicial Service Main Examination, 2016]
Write short note on remoteness of damage.
[Assam Judicial Service (Grade-III) Written Examination, 2015]
Ans. For a successful suit relating to tort does not need only legal injury by the act/ omission of defendant rather it requires that the damage is not caused by the remote act/ omission or the damage must be foreseeable.
If the injury is caused by the defendant which is very remote, the defendant cannot be held liable. In this respect, the Latin maxim ‘In Jure Non Remota Causa Sed Proxima Spectatur’ is relevant which means ‘in law the immediate, not the remote cause of any event is to be regarded’. Justice Blackburn wrote in Sneesby v Lancashire Yorkshire Rail. Co. that ‘no doubt the rule of our law is that the immediate cause, the causa proxima, and not the remote cause, is to be looked at; for as Lord Bacon says, ‘It were infinite for the law to judge the causes of causes and their impulsions one of another; therefore it contenteth itself with the immediate cause, and judeth of acts by that, without looking to any further degree.’
Remoteness of damage is often viewed as an additional mechanism of control ling tortious liability. The principle of ‘remoteness of damages relating to contract was articulated in Hadley v. Baxendale, [1843 All ER Rep 461].
It is a concept which has been widely debated. In order to recover damages in respect of injury caused by another’s negligence, you must establish that injury of that type was a foreseeable consequence of the negligence. To decide whether the damage is remote or proximate, the courts, from time to time, have developed some tests.
Originally a defendant was liable for all losses which were a direct consequence of the defendant’s breach of duty as held in Re Polemis & Furness Withy & Company Ltd., 3 KB 560. In this case, some Stevedores carelessly dropped a plank of wood into the hold of a ship.
The plank struck something as it was falling which caused a spark resulting in ignition by petrol vapours destroying the ship. In arbitration proceedings, the arbitrator held that the causing of the spark could not have been anticipated and therefore no liability arose.
The claimant appealed. It was held that there was no requirement that the damage was foreseeable. The defendant was liable for all the direct consequences of their action.
But, the direct consequence test was overruled in the Wagon Mound No. 1 case,  AC 388 and replaced with a new test for deciding if damages are too remote, In this case, the defendant’s vessel, The Wagon Mound, leaked furnace oil at a Wharf in Sydney Harbour.
Some cotton debris became embroiled in the oil and sparks from some welding works ignited the oil. The fire spread rapidly causing destruction of some boats and the wharf. The court held that Re Polemis & Furness Withy & Company Ltd. should no longer be regarded as good law. A test of remoteness of damage was substituted for the direct consequence test. The test is whether the damage is of a kind that was foreseeable. If a foreseeable type of damage is present, the defendant is liable for the full extent of the damage, no matter whether the extent of damage was foreseeable.
Following the Wagon Mound No. 1 the test for remoteness of damage is that damage must be of a kind which was foreseeable. Once damage is of a kind that is foreseeable the defendant is liable for the full extent of the damage no matter whether the extent of the damage is foreseeable.
The Wagon Mound Test was considered and applied in Hughes v. Lord Advocate,  AC 837 wherein two boys aged 8 and 10 went exploring an unattended man hole. The man hole had been left by workmen taking a break.
It was surrounded by a tent and some paraffin lamps were left to warn road users of the danger. The boys took a lamp down the hole. One of them dropped the lamp and an unforeseeable explosion occurred resulting in extensive burns.
It was held that the damage was not too remote it was foreseeable that the boys may suffer a burn from the lamp. The fact that the burn resulted from an unforeseeable explosion did not prevent the type of damage being foreseeable.
A final aspect of remoteness of damage is the egg shell skull rule. This means a defendant must take their victim as they find them. If the victim is particularly .vulnerable or has a preexisting condition resulting in them suffering greater injury than would be expected in an ordinary person, the defendant remains responsible for the full extent of the injury.
In Smith v. Leech Brain,  2 QB 405 a widow brought a claim against the defendant under the Fatal Accidents Act for the death of her husband. The defendant employed the husband. As a result of their negligence he incurred a burn to his lip.
The lip contained precancerous cells which were triggered by the injury sustained. He died three years later from cancer. It was held that the burn was a foreseeable consequence of the defendant’s negligence and this resulted in the death.
The defendant was liable for his death. It was not necessary to show that death by cancer was foreseeable, nor that an ordinary person would not have died from the injury. The egg shell skull rule applies and the defendant must take his victim as he finds him.