Month: July 2020

De Minimis Non-Curat Lex

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In this article, Sagnik Chatterjee who is currently in IInd Year pursuing BA.LL.B, from Symbiosis Law School, Pune, discusses about the De Minimis Non-Curat Lex.

Meaning of the maxim

The principle De Minimis Non-Curat Lex finds it’s origin in the fifteenth century. The actual meaning of the Latin maxim is “law is not concerned with small things”. This is a legal doctrine by which a court can easily refuse to try trivial matters in the court.

It is a common law principle that ensures that judges do not have to try or take notice of extremely minor or trivial violations of the law. And when an issue like such actually appears in front of the court and the judges apply this doctrine it leads to the action being dismissed in the court. Although there are no particular characteristics of a case for it to be held as a minor one and it also varies from case to case according to the circumstances at hand but often the judges decide whether a case is trivial in nature or not by seeing the value of the suit, for instance, if one party has filed a suit for claiming a nominal amount of money from the other party the court will not entertain such matter. In addition to that, for the existence of the doctrine and the knowledge of the same parties consider an appeal for trivial matters before filing as it will most likely to be a complete waste of time and resources.

Applicability in English Law

Through all these years this principle was followed deciding the English law cases. In People v Durham[1], the appellant filed a suit in the court because he did not like a particular traffic citation and also asked for a remedy of 5 dollars, now the court here in observed that,

“Litigation like this brings the judiciary into disrepute. Rational citizens (not connected with the law) would consider this appeal to be a complete waste of time and resources for all concerned. The time and money already spent on bringing this appeal amount to wasting resources. We will not be a part of further squandering.”

In another leading case of Coward v. Baddeley, a fire broke out in the city and the firemen arrived at the spot and started doing their work and a bystander touched a fireman on his arm to draw his attention to another part of a building which was also burning. Now the fireman went to court and filed a suit for battery against the bystander for the battery. The court in after looking into the facts and circumstances of the case held that the by-stander was not liable for battery and applying the maxim de minimis non curat lex dismissed the suit filed.

But there were few exceptions also to this principle too. Like in the case of Helford v. Bailey [2], the plaintiff filed a case against the defendant for trespassing into his property as the defendant cast her net over a water body which exclusively belonged to the plaintiff, for fishing but then pulled out his net without catching any fish or harming the exclusive rights of it in any manner. Now the contention of the plaintiff in this particular matter was though the defendant had not actually caused harm to the property this time but that does not dilute the fact committed by him which was trespassing and which is still a tort. The court here actually upheld the contention of the plaintiff and declared the exclusive use of the water body to the plaintiff to avoid any such interferences even in the future.

Applicability in India

In India, this doctrine of de minimis non curat lex is embedded in Section 95 of Indian Penal Code, 1860. It says,

95. Act causing slight harm.—Nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such harm.

This section says that if a crime under the Indian Penal Code, 1860 is committed but the commission of such act is so minor that it does not necessarily lead to any harm caused to the other party or very minimal harm caused to the other party so that the party harmed is entitled to a negligible amount of compensation, then the act committed will not be regarded as a crime and hence the suit will not be entertained in the court of law. In other words, the harm resulting from an offence if it is so small and trivial that no person of ordinary sense and temper would complain about such harm.

Smt. Somawanti v. State of Punjab[3] was one of the first cases on this principle in this country. Here in the Supreme Court pronounced that the legal maxim can be applied to the appellate courts if the appeal made is unnecessary in the view of the court and observed that,

“they are not intended to be repeated by others or used in such a way that a book can be used, but the de minimis non curat lex principle still applies to a supposed wrong in taking part in dramatic works as well as in reproducing a part of a book.”

In the case of State (Delhi Administration) v. Puran Mal[4] there were certain evidences found of adulteration in the food by the manufacturer company, and the company contended that since the adulterated food had not been yet consumed by any human and hence no harm has been caused to any party so this would fall under the ambit of the maxim of de minimis non curat lex. But the court here observed that this act of food adulteration committed by the company was of a serious nature and it could have been very fatal to the society and hence it does not fall under this maxim.

In State of Bihar and Ors v. Harihar Prasad Debuka and Ors.[5] it was held by the court that checking documents or filling in and submitting forms and returns in public offices and detouring to a public weighbridge and alike activities if there is no active intention of the authorities proved to deliberately delay such process unreasonably apart from what it usually takes, it falls under the maxim de minimis non curat lex.

Conclusion

So as we see in the above mentioned case laws that the doctrine of de minimis non curat lex is very much in practical use in this country to ensure no one takes bad advantage of the judicial system of the country and waste court’s time in solving trivial issues. But also there is no specific guidelines yet in order to determine that one case law is trivial and thus it is completely based on the discretion of the judges in each case according to the different facts and circumstances at hand.

[1] 915 NE 2d 40

[2] (1849) 18 L.J.Q.B. 109

[3] AIR 1963 SC 151

[4] A.I.R. 1985 S.C. 741

[5] A.I.R. 1989 S.C. 1119.

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Misfeasance, Malfeasance and Nonfeasance

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This article is written by Akshaya  V, a student of CMR University, School of Law and Legal Studies, Bangalore

Synopsis 

This article will explain the meaning of torts at first and further relates the concept of malfeasance, misfeasance and nonfeasance to the context of negligence in torts. 

Introduction 

Every person in the country shall have rights and corresponding duties governed by law to ensure there is no civil disobedience. The object of this is to promote peace and harmony. However, the law gives scope for civil disobedience under “torts” as a violation of legal rights of others is recurring. Therefore, a person is given legal duty and if the duty is breached, a civil wrong is committed. For instance, violation of a duty to not injure someone’s name and fame leads to defamation, violation of a duty to not physically enter another person’s property amounts to trespass, etc. 

Definition of Tort

According to Section 2(m) of the Limitation Act, 1963, “Tort means a civil wrong which is not exclusively a breach of contract or breach of trust.” Torts is redressible by unliquidated damages if an injury is caused to the plaintiff. Thus, it may be seen that:

  1. Tort is a civil wrong;
  2. not a breach of contract or breach of trust
  3. This wrong is redressible by an action for unliquidated damages.

To claim for legal damages, there shall be an act or omission by the plaintiff. The term “act” here means an illegal act and “omission” means to have failed to act wherever necessary(inaction). This was proved in a leading case of Municipal Corporation of Delhi v Subhagwanti. Secondly, in order to be successful in an action for tort, the plaintiff has to prove that there was a gross infringement of legal rights vested in him and such infringement has caused injury and damages. The burden of proof lies with the plaintiff. He may be given appropriate remedy once a violation of his legal rights is proved. 

Concept of negligence 

The Indian law of torts found its origin from English common law. The law relating to negligence is applied in Indian Courts considering the principles of justice, equity and good conscience. The term Negligence is derived from the Latin word negligentia, which means ‘failing to pick up’. Generally, negligence means being careless and in a strict legal sense, it means the failure to carry out the required standard of care which the doer as a sensible man should have exercised in a given situation. Under English law, negligence emerged as a term and cause of action in the eighteenth century. Similarly, Indian Penal Code, 1860 contained no provision for causing the death of a person by negligence which was later amended in the year 1870 by addition of section 304A in the Act. 

Definition of Negligence

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff. In Blyth v. Birmingham Water Works Co, the meaning of negligence was given as ‘a person failing to carry out duty of care as a man of prudence would do.

Misfeasance 

Under negligence, the concept of misfeasance is an unlawful act committed by one resulting in the injury of another. It means the act of not doing something when it should have been done. The duty which is legally imposed is not done appropriately or not done at all. This term is interchangeably used in both civil and criminal laws. It is applicable to unlawful acts, such as trespass, which is actionable per se without needing to prove mens rea or motive.

Misfeasance is generally actionable in public offices where the holder of the office has acted beyond his scope by misusing his powers. A person, while carrying out his duty, is expected to have a duty of care towards the other person and shall not harm by acting illegally or in an unlawful manner. While he does such an act, if it leads to gross injury in the other person, the person is said to have committed an act of malfeasance. 

Misfeasance is an illegal act that can be enforced in a court of law and liable for damages. It is an act done by ill will and with knowledge of acting beyond the latitude of authority. In Calveley v. Chief Constable of the Merseyside Police, the Court held that an act of malice shall be present to be liable for misfeasance under tort. Misfeasance is one kind of negligence as the person or the defendant has failed to carry out his duty which he is supposed to do in whatever capacity he may be in. 

Illustration – A person in charge of kids after school until their parents come to take them, he will be held for misfeasance if the kids go missing or fell victim for any injuries as he was negligent in dispensing his duty appropriately in monitoring him. 

Malfeasance 

Any wrongful act which a person has got no legal right to do or any conduct that hinders the performance of any official duty either partly or and to which that person has no authority to do, he is said to have done malfeasance. 

In simple words, it is understood that doing an act which a person is legally or morally is not expected to do. A person owes a duty of care in dispensing his obligations, failing which he may be sued. But when a person intentionally and bad faith acts beyond his legal capacity to infringe the rights of another party, such unjust performance is said to be malfeasance. The factor of mens rea is important to be considered in such acts. 

Illustration – A, appointed as a car driver for his manager for his official duties. After dropping A at the office, A takes the car to the club to meet his friends and does not return. Here A has acted unlawfully and in bad faith. 

Nonfeasance

While misfeasance spoke about not acting properly where it was necessary amounting to negligence, nonfeasance is complete inaction or failure to act as a man of prudence would have acted wherever necessary. An act of nonfeasance results in liability if: 

(1) the defendant owed a duty of care towards plaintiff;

(2) the defendant failed to show the duty of care and; and

(3) Such failure by the defendant has caused injury to the plaintiff.

For such liability to arise, there shall be a pre-existing relationship between the plaintiff and the defendant shall have been imposed with legal or moral duty. Courts have determined pre-existing relationships in respect of domestic relationships like parent-child and student-teacher official relationships like employer-employee. For instance, if a person who has taken the service of swimming pool arena and further drowns while swimming, a passer-by shall not be held liable as there is no existing relationship. However, if the passer-by is part of the rescue and emergency team, failure to act on his part amounts to civil liability of nonfeasance. A person may avoid acting to prevent the harm that may be caused to him due to the threat he posed to the other party. 

Conclusion 

With subtle differences in the meaning of misfeasance, malfeasance and nonfeasance, negligence may be classified as above. These terms are widely used in relation to negligence committed in offices, by public servants disposing of duties, in the medical field and in case of breach of public duty. 

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Holder & Holder In Due Course

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This article is written by Anushka Singh. She is a second-year student, pursuing BBA-LLB at Unitedworld School of Law, Karnavati University. This article aims to explain the terms Holder and Holder in charge.

Negotiating instruments have acquired a front seat when it comes to modern business. They play a very crucial role in making payments or discharging monetary related obligations. When one deals with negotiable instruments such as cheques, promissory notes, bills of exchange, currencies, etc. we are sure to encounter the terms holder and holder in due course. They are defined in the Negotiable Instrument Act, 1881.

Holder

A holder is defined in section 8 of the Negotiable Instrument Act, 1881. It states that the holder of a negotiable instrument is a person who has his name entitled to that instrument and is eligible to recover the amount due from the parties thereto. However, in case the instrument is stolen or lost, the person that finds it doesn’t become the holder.

Therefore, a holder is a person who has the possession and is also entitled to use or enforce the negotiable instrument. For instance- Mr. Z gave his employee Mr. P his monthly salary of Rs.1,10,000. Here in this scenario, Mr. P will be the holder as he is entitled to the salary cheque bearing his name. But in this same scenario is Mr. P lost this cheque, and it was found by Mr. Y. Then Mr. Y will not be the holder.

Following individuals are considered to be holders of the negotiable instruments:

  1. A person whose name appears on an instrument as the holder even though it is executed in an agent’s name.
  2. In case a negotiable Instrument is a bearer one, the person who is in possessing the instrument to become the holder.
  3. When a negotiable instrument is in the name of a partner at the firm, the firm naturally becomes a holder.
  4. In case a holder of a negotiable instrument dies, heirs of the deceased the holders.

However, the following individuals are not considered holders:

  1. A thief or a person who finds an instrument is not a holder even though he currently possesses it.
  2. A person obtaining the instrument through forgery or any other unlawful manner is not a holder.
  3. When the instrument is for collection only, the person collecting cannot be a holder.

Holder in Due Course (HDC)

A holder in due course is defined in Section 9 of the Negotiation Instrument Act. It states that a holder in due course is any person who for consideration, becomes the possessor of a negotiable instrument without having knowledge that any defect existed in the title of the prior possessor.

Therefore, an individual can only be called a holder in due course if he becomes the possessor of a negotiable instrument before its maturity by means of valuable and legal consideration. The transaction must also be done in good faith and without any reason to believe that defect existed in the title of the previous possessor.

Example- On 3rd August 2020, Mr. Z gave his employee Mr. P his salary cheque for Rs.1,00,000 for the month of July dated 3/8/2020. Here Mr. P will be the holder as well as the holder in due course.

Thus, an individual aiming to be a ‘holder in due course’ should satisfy the following conditions-

  1. He must already be a holder, and of valuable and legal consideration.
  2. He must become a holder of the negotiable instrument before the period of maturity.
  3. An individual can become a holder of a negotiable instrument only if he has acquired it in good faith.

An individual is not considered to be a holder in due course if-

  1. He obtains the negotiable instrument after its period of maturity.
  2. He obtains the instrument by the way of gifts, illegal methods or for any unlawful consideration.
  3. He does not obtain the instrument in good faith.

Key Differences

  1. A person who has acquired the negotiable instrument by genuine ways in return for legal consideration, whose payment remains due is called holder in due course or HDC. Whereas in case of a holder, he obtains the negotiable instrument legally, with his name titled to it and is eligible to receive payment from the liable parties.
  2. For an individual to become a holder in due course consideration is essential. But in case of a holder, the consideration is not necessary.
  3. A holder in due course has the right to sue the previous owners whereas a holder does not have the same rights.
  4. A holder in due course can only acquire an instrument before its maturity but a holder can acquire it after maturity as well.
  5. A holder in due course must have acquired the instrument without having sufficient reason to believe that any defect existed in the previous possessor’s title. This condition is not essential for a holder.
  6. A holder in due course enjoys certain privileges that are not available to a holder under the Negotiation Act, 1881.

Case law

Jagdish Chander vs Kapoor Jewel Mines Pvt Ltd-

The HC said that learning how the holder of the subject cheques comes to be a holder in due course is an aspect which cannot be judged at such an elementary stage of the transaction and is required to be considered after the evidence of the said transaction is documented. It was said: “Section 9 of the Negotiable Instruments Act, 1881 defines the ‘holder in due course’ and its import cannot be pre-judged.” [1]

The Supreme Court in Laxmin Dychem v. State of Gujarat, (2012) 13 SCC 375, held that till it is proved otherwise, the assumption shall be made that the holder of a negotiable instrument is also the holder in due course. Applying this statement to the existing scenario, the HC did not find it to be a fitting case to quash the complaint as the plea by the petitioner was required to be tested at the trial. Leading to the petition being dismissed.[2]

Conclusion

The above-mentioned points have explained it clearly that holder and holder in due course are not the same individuals. Holder refers to an individual who is the payee of the negotiable instrument, who is in possession of it. They are entitled to receive the amount due on the instrument from parties thereto. Whereas holder in due course refers to an individual who obtains the instrument bonafide before the maturity period, without any knowledge of the defect in the title of the person transferring the instrument.

[1] https://www.scconline.com/blog/post/2019/05/03/del-hc-import-of-s-9-ni-act-defining-holder-in-due-course-cannot-be-pre-judges-petition-for-quashing-cheque-dishonour-complaint-dismissed/

[2] https://indiankanoon.org/doc/112089297/

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Donoghue v. Stevenson (1932)

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This case analysis is written by Gaurav Lall pursuing BBA LL.B. (Hons.) at United World School of Law.

INTRODUCTION

Donoghue v. Stevenson, also known as the ‘snail in the bottle case’, is a significant case in Western law. The ruling, in this case, established the civil law tort of negligence and obliged businesses to observe a duty of care towards their customers. The events of the case took place in Paisley, Scotland.

Court

House of Lords.

Bench

Lords Buckmaster, Atkin, Tomlin, Thankerton, and Macmillan.

Decided On

1932

Equivalent Citation

Donoghue v Stevenson [1932] AC 562.

Brief Facts and Procedural History

On August 26 1928, Mrs Donoghue’s friend bought her a ginger-beer at a café in Glasgow. Donoghue’s companion ordered the bottle and paid for her drink. She consumed about half of the bottle, which was made of dark opaque glass and not visible from outside. When the remaining drink of the contents was poured into a tumbler at that point, the decomposed remains of a snail floated out causing her alleged shock and severe gastroenteritis. Mrs Donoghue was not able to claim through breach of warranty of a contract she was not involved in any contract. Therefore, she issued proceedings against Stevenson, the manufacturer, which tends its way up to the House of Lords.

Issues of the Case

Does the defendant owe a duty of care to the plaintiff being as there is no contractual term?

Decision of the Case

Donoghue thereafter took legal action against Mr David Stevenson, the manufacturer of the ginger beer bottle. She lodged a writ in the Sessions Court, Scotland’s highest civil court, seeking £500 for damages.

Donoghue’s initial action failed but she was granted leave to appeal to the House of Lords (which, at the time, had the judicial authority to hear appellate cases). The judgement, delivered by Lord Atkin in 1932, established that Stevenson was accountable for the well-being of individuals who consumed his products, given that they could not be inspected. The case was returned to the original court. Stevenson died before the case was finalised and Donoghue was awarded a less amount of damages from his estate. Finally, her claim was successful.

The outcomes of the judgement established several legal principles and precedents:

Negligence: Firstly, the House of Lords ruling affirmed that negligence is a tort. A plaintiff can take civil action against a respondent if the respondent’s negligence causes the plaintiff loss or harm to the property. Earlier, the plaintiff had to demonstrate some contractual provision for negligence to be proven, such as the sale of an item or an agreement to provide a service. Since Donoghue had not purchased the drink, she could prove no contractual arrangement with Stevenson yet Lord Atkin’s judgement established that Stevenson was still accountable for the integrity of his product.

Duty of care: Secondly, the case established that manufacturers have a duty of care for their consumers or users towards their products. According to Lord Atkin’s ratio decendi, “a manufacturer of products, which he sells to reach the eventual consumer in the form in which they left him to owe a duty to the consumer to take appropriate care”. This precedent has evolved and now forms the basis of laws that protect consumers from adulterated or faulty goods. This preservation began as common law but many have since been codified in legislation, such as the Trade Practices Act (Commonwealth, 1974).

Neighbour principle. Thirdly, the Donoghue v. Stevenson case give rise to Lord Atkin’s contentious “neighbour principle”, which extended the tort of negligence beyond the tortfeasor and the immediate person. It uplifted the question of exactly which people might be affected by negligent actions. In this case, she had not purchased the ginger beer bottle but had received it as a gift; she was a “neighbour” rather than a party to the contract. Atkin said of this principle: “You should take appropriate care to avoid acts or omissions which you can moderately predict would be likely to injure your neighbour. 

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Formation and Incident under the Coparcenary Property: Mitakshara and Dayabhaga School

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This article has been written by Tanya Gupta, a student pursuing BA LLB from Ideal Institute of Management and Technology and School of Law, affiliated to Guru Gobind Singh Indraprastha University, Delhi. 

This article focuses on the formation and incident under the coparcenary property under Mitakshara and Dayabhaga School of Hindu Law.

INTRODUCTION

Before discussing this concept, firstly it is necessary to discuss with the concept of “Origin of term Hindu” and “Schools of Hindu Law”.

The term ‘Hindu’ is of ‘foreign origin’ as it was used to designate people living east of Hindu river also known as Indus river. Etymologically, the term Hindu was applicable to all the inhabitants of India irrespective of caste and creed. In course of time, the term Hindu associated with religion.

Let’s discuss the Schools of Hindu law:

Schools of Hindu Law widened the scope of Hindu Law and explicitly contributed to its development.

There are mainly two schools of Hindu Law:

  1. Mitakshara School 
  2. Dayabhaga School

Mitakshara School is considered as one of the most important school. It owes its name from ‘Vijaneshwar Commentary’ on the ‘Yajanvalkya Smriti’ by name of Mitakshara. This school is applicable throughout the territory of India except for Assam and Bengal. This school has wide jurisdiction as where Dayabhaga School is silent, then it will prevail.

This school divided into:

  • Banaras Hindu Law School
  • Mithila Hindu Law School
  • Maharashtra Hindu Law School
  • Punjab Hindu Law School
  • Madras Hindu Law School

Dayabhaga School is also considered as an important school of Hindu Law.  It owes its name from ‘Jemutavahan Digest’ on leading Smriti by name of Dayabhaga. This school prevailed in Assam and West Bengal. It has limited jurisdiction as it deals with partition, inheritance and joint family. According to Kane, it was incorporated in between 1090-1130 AD.

Dayabhaga school is sub-divided into:

  • Dayatatya
  • Virmitrodaya
  • Dattaka Chandrika
  • DayakarmoSangrah

Coparcenary

Coparcenary is a narrower body of persons within a joint family. It includes only those who acquire an interest by birth in the joint or coparcenary property. Coparcenary begins with a common male ancestor with his lineal descendant in the male line within four degrees inclusive of such ancestor.

Formation and Incident under Coparcenary Property

1. Formation

Can, anyone become a coparcener, whether son or daughter?

No, anyone cannot become a coparcener. 

According to the Hindu Succession Act, 1956, the only son had a right to became a coparcener. The daughter had no right to enjoyed the status as a coparcener.

Under Mitakshara School of Hindu Law, the concept of coparcenary based on the notion of birthright. It consists of four-generation: great grandfather, grandfather, father and son.

Suppose, Ram is the father and B, C, D, E, F, G, H are his seven lineal male descendants.

Now, Ram is the last holder and he dies, then coparcenary consists of B, C, D, E. on the death of Ram, B becomes the last holder and E comes within the limit of four-generation, and if B dies then C become the last holder and C, D, E, F become the coparcener shows that F comes within the scope of four generations. So, from this example, it is clear that as the last holder dies then the next generation added, it means the removal of ancestor added the descendants.

A major breakthrough towards eradicating the gender inequality and discrimination and to prevent the gender biases that have been prevalent in Indian families, to improve the adverse condition of women in the society has been ensured with the enactment of Hindu Succession Amendment Act,2005.

In Shreya Vidyarthi v. Ashok Vidyarthi and Ors. , AIR 2016 SC

In this case, Apex Court held that of Hindu Succession Amendment Act,2005 was done keeping in mind and respecting the position of a female member, the daughter shall by birth become the coparcener in the same way as a son.

Daughter as a coparcener under Mitakshara School: Yes, the daughter also enjoys the status of Coparcener after the ‘Hindu Succession Amendment Act, 2005’. According to Sec 6(1), the ‘Hindu Succession Amendment Act, 2005’ daughter become the coparcener by birth.

Section 6 in The Hindu Succession Amendment Act, 2005

 Devolution of interest in coparcenary property. —

  1. On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall-
  2. by birth become a coparcener in her own right in the same manner as the son;
  3. have the same rights in the coparcenary property as she would have had if she had been a son;
  4. be subject to the same liabilities in respect of the said coparcenary property as that of a son,

Danamma @ Suman Surpur & Anr. v Amar & Ors.  2018

The Apex Court held that the Amendment Act, 2005 is applicable to all living daughters of living coparceners on the date on which the Act came into force. Secondly, the Supreme Court also stated that the daughter becomes coparcener by birth in the same manner as the son.

Now, one question arises that what is a condition of a married daughter, is after her marriage she ceases to be a coparcener in the Hindu Joint Family of her father?

Yes, this is true that after her marriage she becomes a part of her husband’s joint family but she does not cease to be a coparcener in the Hindu Joint Family of her father.

So, it is clear from an above discussion that both son and daughter enjoy the status as a coparcener irrespective of their gender.

In Dayabhaga School the concept of coparcenary comes into the existence for the first time on the death of the father when the son inherits their father property. It cannot consist of four generations. The concept of coparcenary based on the notion of death right. It means that only after the death of the last holder i.e. father, the son inherits their father’s property.

Let’s discuss the concept through illustration:

Shaam is the father of A, then A does not have the right in the property by birth but only after his father died. He enjoys the status as a coparcener.

Now, again same question arises whether can daughter become a coparcener?

 Yes, a daughter can become a coparcener. She also enjoys the status as a coparcener but with a limitation: she becomes the coparcener but the line of coparcenary cannot initiate with the daughters.

2. Incident of coparcener

Mitakshara School: Coparcener has an interest in the joint family property by birth, coparcener enjoy the status as a coparcener by birth though until partition takes place, this shows that there is an existence of unpredictable and fluctuating interest which increases with the death and diminished with the birth in the family.  It is based on the ‘principle of ownership by birth’. There is also an existence of community of interest and unity of possession. Coparcener also asks for the partition and demand his share.

Dayabhaga School: Coparcener has an interest in the property given only after the death of the last owner. It means as long as the father is alive, he is the master of his own property, whether ancestor or self-acquired which signifies that during the lifetime of the father, no coparcener can ask for partition and demand his share It is based on the ‘principle of ownership of death.’ There is no community of interest yet there is also existence of unity of possession in this school.

3. Asking for Partition

Mitakshara School: Descendants can at any time, ask for the partition as son attains the right to become the co-owner of the property and demand his share. Members can’t dispose of their share of property while undivided.

Can anyone ask for partition?

No, before Hindu Succession Act, 2005 the position was different. Female had no right to ask for partition. But, the main objective of Amendment Act, 2005 was to eradicate the gender inequality and gender biasness. 

Pre- Amendment Act, 2005 female has no right to ask for the partition as she does not enjoy the status of coparcener by birth but Post Amendment Act, 2005 allows the female to ask for the partition against his father.

So, after the Amendment Act,2005 daughter can also ask for the partition as she enjoys the status as a coparcener as same as son by birth which shows that now, both son and daughter can ask for the partition and demand his share.

Dayabhaga School: Son has no right to ask for the partition of ancestral property against his father because the father is sole owner of that property. During, the lifetime of last holder he is sole owner of his property so no coparcener can ask for partition and demand his share. In this school, the member of the family enjoys absolute right to dispose of their property. 

4. Unity of Ownership

Mitakshara School: That till partition each member has got ownership extending over the entire property. Unity of ownership is not vested in a single coparcener. It is vested in the whole body of coparcener.

Thammavenkat Subbamma v Thamma Rattamma

In this case, the Supreme Court held that unity of ownership and community of interest is an essential feature of Mitakshara Coparcenary. No, coparcener has any definite share in the coparcenary property although his undivided share is existent there, which increases with the death and decreases with the birth of any coparcener.

Dayabhaga School: As we know, each coparcener has a fixed share. But till a partition by meets and bounds i.e. the distribution of properties takes place, no coparcener gets his share.

5. Community of Interest

Mitakshara School: The person born in the family, he acquires his interest in the property in the sense that he has a right of common enjoyment and common use of all property and if he wants to separate his interest, he can file a suit for partition.

Dayabhaga School: No community of interest found in Dayabhaga School.

6. Share of Coparcener

Mitakshara School: The interest of the coparcener in coparcenary property is a fluctuating and unpredictable interest, which decreases with the birth and increases with the death of the coparcener.

Let’s discuss with an illustration:

Thus, coparcenary consists of a father and his son. Each will take ½ share but if suppose 1 more child born then each will take 1/3 share.

Dayabhaga School: In Dayabhaga school the share of the coparcener is fixed. It is not a fluctuating and uncertain interest.

Let’s take a look on an example:

A, a father dies leaving behind three sons then, each will get 1/3 share. It will not fluctuate with the birth and death of the coparcener.

8. Devolution of the property

Mitakshara School: In Mitakshara School, there is “Doctrine of survivorship.” This states that the property will be devolved upon the death of the coparcener to his next surviving generation, irrespective of considering who his heir is.

Dayabhaga School: In this, the property devolved by the “Doctrine of Succession”. Therefore, if a coparcener dies, his share does not pass by survivorship to other coparcener but devolves by inheritance to his heirs.

Section 3(1)(f), Hindu Succession Act, 1956 defines the term “Heir”. It means any person, male or female, who is entitled to succeed to the property of an intestate under this Act.

Section 3(1)(g), Hindu Succession Act, 1956 defines the term “Intestate”. It means any person who dies intestate in respect of property of which he or she not made testamentary disposition taking effect after his death.

Mitakshara School-based it’s ‘Law of Succession’ on “Principle of Propinquity” means nearer to blood relationship i.e. Class I Heir, then Class II Heir if there is no member in Class I Heir, then agnate if no member exists in Class I Heir or Class II Heir, then cognates if no member found of Class I Heir or Class II Heir or agnate and if all of the class are not exist then Government.

In Dayabhaga School, the ‘Law of Succession’ based on the “Principle of spiritual benefit and religious efficiency” means that one who conferred more religious benefits descendant entitled to inheritance in the preference to other who confers a less spiritual benefit. 

CONCLUSION

So, it is clear from the above discussion that there are two schools of Hindu Law i.e. Mitakshara and Dayabhaga. The concept of Coparcenary is also different in both schools. In Mitakshara School coparcenary consist of four generations of male descendant but after the post Amendment Act, 2005 the daughter also enjoys the status as a coparcener. As the main objective of Amendment Act, 2005 is to remove gender inequality and this amendment took place keeping the position of the female in our society. Whereas, in Dayabhaga School there is no existence of four generations and the notion of interest in the coparcenary property based on the death of the last holder. 

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Webinar on Singapore Convention on Mediation: Mediate Guru

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About us


Mediate Guru is a PAN India initiative, led by students across the nation from distinguished universities. The aim of the organisation is to bridge the gap between general public and litigation. Here our organisation comes into picture we are creating a social awareness campaign for making mediation as a future of alternative dispute resolution to provide ease to judiciary as well as to the pockets of general litigants.


Singapore Convention


The Singapore Convention on Mediation (United Nations Convention on International Settlement Agreements Resulting from Mediation) is a uniform and efficient framework for international settlement agreements resulting from mediation. It applies to international settlement agreements resulting from mediation, concluded by parties to resolve a commercial dispute. In 2019, India was amongst the first group of signatories. 


About the Speaker


Ms. Ana Sambold, is one of the leading Alternative Dispute Resolution professionals in United States. Ms. Sambold is an IMI certified Mediator and International ArbitralWomen. Also, Adjunct Professor of law for the California Western Law School International LLM program. She received her Master of Law from University of San Diego School of Law (USD) and her training and credentials in dispute resolution from Harvard Law School, Pepperdine University School of Law – Straus Institute for Dispute Resolution, Chartered Institute of Arbitrators (CIArb) and Columbia Law School.

Date and Timings


The Webinar will be conducted on 17th July, 2020.8:30 AM Pacific Standard Time9:00 PM Indian Standard Time


Kindly note there is no registration fee for the webinar. 


The platform will be Google Meet. 
For any query mail us: admin@mediateguru.com
To Register click here: https://forms.gle/CDvqgaEcpLb6M7Nh9
Or visit us at: https://www.mediateguru.com/event-details/webinar-on-singapore-convention-on-mediation
Event Coordinator: Mr. Aditya Mathur +91 8447 919 954

Internship Opportunity at Lexpeeps as Campus Ambassador

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ABOUT US

Lexpeeps is totally dedicated to the legal fraternity where law professionals get an opportunity to flourish their career in a better way. Lexpeeps organises different events debates seminars of its own and also will organise the major law school activities on tie-ups with leading law school. Lexpeeps is not only limited up to managing the legal events but it also is providing internships to law students where the law professionals come in touch with each other and can grow by associating with the company.

ELIGIBILITY

The internship programme is open for law students (studying in any year of either 5 years or 3 years course) .

PERKS

  • You will receive the Certificate of Internship on completing the internship period.
  • Letter of Recommendation shall be provided to 3 best interns. 
  • Being a long term Members you also entitled to get Some Other Benefits

ROLES AND RESPONSIBILITIES

1. Represent Lexpeeps at your college/university

2. Promote lexpeeps and its events on your social media platforms

3. Let lexpeeps know about the events organised in your college/university

4. Help lexpeeps to Organise atleast one event in 6 months in your college

5. Create a Whatsapp group of students/academicians who voluntarily wish to associate with lexpeeps

6. Assist students in course registration provided by lexpeeps

7. Collecting feedback and sharing new ideas from the college/university students with lexpeeps

8. Generating weekly reports and submit the same to lexpeeps.

DURATION

6 Month

LOCATION

Work from home

APPLICATION PROCEDURE

Send your updated CV along with the following information to promotions@lexpeeps.in with the subject of the email being the internship period.

Name:
Phone Number:
E-mail ID:
College / University:
Batch / Year of Study:

CONTACT US

Mail us: promotions@lexpeeps.in

Call for Campus Ambassador: Lawschole

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About Lawschole

From the beginning, Lawschole has been driven by the interests and involvement of our incredible and engaged law students. We are a growing law-student forum focused on learning, and enhancing the forum experience. We are a great resource, offering opportunities for students to be active in a variety of topics and to engage with each other in an interesting and safe online environment on Lawschole’s Blog. You can check out our free capsule courses in the ‘Courses’ section.  We will be introducing Lawschole’s certificate courses soon, stay updated! Lawschole is a forum where law students can share thoughts, seek opinions and advice, and learn something new from other members of the forum. 

We are currently looking for Campus Ambassadors to:

§  Generate awareness about the Lawschole’s initiatives and it’s various events.

§  Help us to find potential learners to engage and enhance the forum experience.

The Campus Ambassador program is a volunteer position with Lawschole.

Your main objective as a Campus Ambassador is two-fold:

§  To create awareness about Lawschole from your institution.

§  To help us in identifying potential learners who can engage in student interaction.

That essentially means:

§  Helping us facilitate interactive sessions with students in your institution.

§  Ensuring high levels of participation from your college/workplaces.

§  Creating innovative means to have maximum applicants from your institution.

What do you get?

§  Certificate of appreciation from Lawschole.

§  Mentoring and career counselling during the period of engagement.

§  Chance to attend guest lectures and webinars conducted by Lawschole.

Registration 

Interested students are suggested to send their CV along with the following information at campus.lawschole@gmail.com

Name:
Phone Number:
E-mail ID:
College / University:
Batch / Year of Study:

Selected students shall be contacted via email for a telephonic interview. Final Results of the selection will be sent on their respective email id.

Deadline: 15th July 2020

Contact Details

E-mail ID: campus.lawschole@gmail.com

Website link- https://lawschole.wixsite.com/lawschole
Attachments area

Job Opportunity: CEPI

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Job Description

The Office of the Custodian of Enemy Property for India (CEPI) invites applications to fill up the following posts in the head office of CEPI at Delhi and its 3 Branch Offices at Mumbai, Kolkata and Lucknow on contractual basis.

Deadlines

The last date for submission of application is 22nd July 2020 by 5.00 p.m.

Salary

Law Officer Grade-I : Rs. 60,000/-

Law Officer Grade-II : Rs. 35,000/-

Location and Vacancies

Law Officer Grade-I

  1. Delhi: 2
  2. Lucknow: 2
  3. Kolkata: 1
  4. Mumbai: 1

Law Officer Grade-II

  1. Delhi: 2
  2. Lucknow: 2
  3. Kolkata: 1
  4. Mumbai: 1

Eligibility

Law Officer Grade-I

Retired Government Officer of ILS/Central Government Services who retired from analogous post.

OR

On a contractual basis a person having Degree in Law with minimum 5 years experience in the practice of law.

Working knowledge of Computer is essential.

Law Officer Grade-II

Retired Government Officer of ILS/Central Government Services who retired from analogous post.

OR

On a contractual basis a person having Degree in Law with minimum 3 years experience in the practice of law.

Working knowledge of Computer is essential.

Application procedure

  1. The application should be completed in all respect by supporting documents.
  2. Incomplete application shall not be entertained and no communication in this regard shall be sent to the applicant.
  3. Separate application should be sent for a separate post.
  4. The application may be submitted by post or by hand to the Office of the Custodian of Enemy Property for India (CEPI), Delhi Head Office, ‘B’ Wing, 2nd Floor, NDCC-II Building, Palika Kendra, Jai Singh Road, New Delhi-10001.
  5. The application may alternatively be sent via e-mail in cepi.del@mha.gov.in
  6. Shortlisted candidates will be called for an interview with prior intimation.
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Contact Details

Custodian of Enemy Property for India (CEPI), Delhi Head Office, ‘B’ Wing, 2nd Floor, NDCC-II Building, Palika Kendra, Jai Singh Road, New Delhi-10001.

Call For Campus Ambassadors: Mediate Guru

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Are you tired of expressing your opinion but not being acknowledged?

Are you willing to make a change in the society? 

Are you ready to be a part of an organisation which is making an ever- evolving change in india ?

Mediate Guru provide you with an opportunity to be a part of something bigger and better for society. 


Campus Ambassadors Programme is open for all the students from various universities throughout India. The programme aims to uplift the young students in the field of public policy and create a social platform to promote various social issues with regard to Mediation. Along with being a part of the societal model of the community the Ambassadors will be given the opportunity to express their opinions and voice through the art of research which will be seen through their blogs being published at our websites.


Apply at https://www.mediateguru.com/opportunity