This article is written by Samridhi Sachdeva pursuing BBA LLB from Gitarattan International Business School, GGSIPU. This article talks about the In vitro fertilisation, its advantages and disadvantages and the laws related to it in India.

INTRODUCTION

Any medical process that helps to produce babies or help in obtaining pregnancy by means other than by sexual intercourse is termed as Assisted Reproductive Technology(ART). This method helps to solve the problems faced by infertile couples.

Assisted Reproductive Technology includes Artificial Insemination, In-vitro Fertilisation(IVF), Embryo Transfer(ET), etc.

In Vitro Fertilisation(IVF)

The term “in vitro” means in Latin, “in glass”. It is used as early biological experiments involving the cultivation of tissues outside the living organism were carried out in glass containers such as beakers, test tubes or Petri dishes.

The babies conceived by this method are called “test-tube babies”.

IVF is a technique of producing babies by fertilising an egg with the sperm outside the body. The success rate for each IVF cycle is around 20-30%. Success rates are affected by many factors, including the age of the patients, quality of sperms and eggs, reproductive health, time period of infertility, medical expertise. The risk of multiple births is the major complication in IVF due to the transfer of multiple embryos.

History

Walter Heape, in 1890, for the very first time performed the technique of in vitro by transferring in vivo fertilised eggs from one female rabbit to another.
Later, in 1959 M.C. Chang, successfully conducted IVF in rabbits.
Louise Brown, the first ‘test-tube baby’ was born out of the IVF technique on July 25, 1978, with lots of controversy over the safety and morality issues.
In India, the first baby born out of this method is Durga, being the second baby produced through IVF in the world, was performed by a Calcutta based doctor, Dr Subhash Mukhopadhyay on October 3, 1978.
Public debate and criticism aroused after the occurrence of these two events. These acted as obstacles for IVF, but besides these, the method survived and helped the couples suffering from infertility.

Advantages

In vitro fertilisation offers the chance of producing babies to the ones who are not capable of conceiving naturally. It reduces the chances of surgery on the woman’s fallopian tube. It helps scientists to study fertilisation and early embryonic development in the similar environment outside the body of the woman. It gives a greater understanding of the reasons for birth defects.

Disadvantages

In India, some IVF clinics sell the eggs and the embryos through advertisements over the internet. Also, some eggs and embryos are stolen and given to researchers. Some fertility drugs have been sold illegally.

And sometimes, the surrogate mother refuses to get separated with the baby she was assisted for. This creates a big problem for the couple who actually wanted a baby through this technique.

IVF in India and Laws

After the birth of the first scientifically well-documented test-tube baby in 1986 in India, the IVF clinics across the country, emerged without supervisory and regulatory control of the Government. This propelled the Indian Council of Medical Research(ICMR) to develop National Guidelines for Assisted Reproductive Technology(ART) clinics in India in 2002. Later, the Ministry of Health and Family Welfare examined these guidelines and published National Guidelines of Government of India in 2005, with slight modifications.

Indian Council of Medical Research(ICMR) developed draft for Assisted Reproductive Technology (Regulation) Bill in 2008 and sent to Ministry of Health and Family Welfare, now known as Assisted Reproductive Technology (Regulation) Bill, 2017.

This act aims to prevent the misuse of ART techniques including safe and ethical practices. It specifies the duties and obligations of the ART clinics and banks and also of the egg donors, surrogate mothers and the couples/individual seeking ART.

This bill has made detailed provisions about research on human embryos, duties under Pre Implantation Genetic Diagnosis(PGD) and sex selection.

It also deals with sourcing, storage and handling of gametes and embryos, restrictions on the sale of gametes, zygotes and embryos.

However, in February 2020, the Union Cabinet approved the Assisted Reproductive Technology(Regulation) Bill-2020, that intends to regulate ART clinics and banks with the objective to provide ‘safe and ethical’ reproductive techniques to infertile couples.

The government called this bill ‘historic’ for the welfare and safety of women in the country. The bill also proposes stringent punishments for those who practice sex selection, sale of human eggs and embryos or any such rackets or organisation for unlawful practices. The bill also states that,

“The egg donor needs to be supported by an insurance cover, protected from multiple embryo implantation and children born out of ART should be provided all rights equivalent to biological children.”

This bill intends to safeguard the rights of women and children and tries to save them from exploitation.

The bill also intends to make it mandatory to conduct tests to help to identify genetic defects within embryos, for the benefit of children.

The legalities behind the cost of IVF treatment can sometimes be quite complex, but they will help to identify the best IVF clinics. According to the Indian Council of Medical Research, the criteria to be followed by fertility clinics are:-

Registration for all fertility clinics and banks dealing with infertility treatments and involved in the use and creation of embryos outside the body.
Code of practice to identify the qualification of the expertise.
Written consent of the couple, otherwise no operation will take place.
Counselling of the patient about the treatment, before and after the procedure.
Human embryo should not be placed in any non-human body.

Conclusion

While the guidelines attempt to incorporate some issues related to social justice and gender inequality, they still fall short on many fronts. These guidelines should go beyond technologies and provide effective measures so that the unequal power relationship between the providers and the users of the technology is minimised. The guidelines should also keep in mind, the unequal gender balance and ensure that the rights of women users are not compromised in any manner.

This article is written by Alok Kumar. He’s Currently pursuing Bachelor of laws from MAIMS, GGSIPU, Delhi. This basically deals with the topic of expert opinion under the Indian evidence act (section 45) and it includes the definition of experts, what type of opinion they can give and what is the importance of the expert opinion with their duties and the courts’ role regarding the expert opinion.

INTRODUCTION

The opinion of experts is given under Section 45 of INDIAN EVIDENCE ACT, 1872. These are the parties not legitimately or in a roundabout way associated in any way to the suit or proceeding which is pending in the court, however, they are called by the Court to help the Court, when the Court can’t shape the judgment himself.

Section-45 to 51 of the Indian Evidence Act 1872 sets out the arrangements identifying with “assessment of specialists/third individual when significant. Section 45 arrangements with realities heaps of specialists, Section 47 arrangements with supposition as to penmanship when important. Section 47A accommodates opinion as to digital signature, when pertinent. (It is embedded by IT Act 2000) Section 48 arrangements with supposition as to the presence of right or custom when important. Segment 49 arrangements with assessments as to utilizations, fundamentals and so on., when pertinent Section 50 arrangements with supposition on relationship, when important. what’s more, Section 50 accommodates grounds of supposition, when pertinent?

WHO IS AN EXPERT?

An expert is a person who is a skilful competent in some proficient field fit for having specified knowledge concerning the matter in issue, which a typical man can’t have.

According to section-45, Opinion of experts is “When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting (or finger impressions), the opinions upon that point of persons specially skilled in such foreign law, science or art, [or in questions as to identity of handwriting] [or finger impressions] are relevant facts. Such persons are called experts.“

IMPORTANCE OF EXPERT OPINION

The Supreme Court in the case of State of H.P. v. Jai Lal and Ors. clarified the substance of expert opinion conclusion by expressing that Section 45 of the Evidence Act which makes the opinion of expert allowable sets out, that, when the court needs to frame an opinion upon a state of outside law, or of science, or craftsmanship, or as to identifying of hand wringing or finger impressions, the suppositions upon that purpose of people uncommonly gifted in such remote law, science or workmanship, or in inquiries as to the character of penmanship, or finger impressions are pertinent realities. In this manner, so as to bring the proof of a witness as that of an expert it must be demonstrated that he has made an exceptional investigation of the subject or procured an extraordinary encounter in that or as it were that he is talented and has sufficient information regarding the matter.

DUTY OF THE EXPERT?

An expert isn’t an observer of reality.
His evidence is of an advisory character.
An expert ousts and doesn’t decide.
An expert witness is to outfit the appointed authority essential logical standards for testing the exactness of the end to empower the adjudicator to frame his free judgment by use of the rules to the fact demonstrated by the evidence.

WHAT IS THE EVIDENTIARY VALUE OF EXPERT OPINION?

A Court isn’t limited by the evidence of the specialists which is to a huge degree advisory in nature. The Court must determine its own decision after considering the opinion of the expert which might be illustrated by the two sides, carefully, and after mulling over the experts on the point on which he deposes.

The estimation of expert opinion lay on the facts on which it is based and his competency for framing a dependable opinion. The evidentiary value of expert opinion based upon the facts whereupon it is based and furthermore the legitimacy of the procedure by which the end is reached. Where the specialists give no genuine information on the side of their supposition, the evidence despite the fact that allowable, might be rejected from thought as managing no help with showing up at the right value.

The Allahabad Court in one of the cases relating to the issue being referred to expressed that the value of expert evidence relies to a great extent upon the cogency of the reasons on which it is based. All in all, it can’t be the base of conviction except if it is supported by other evidence.

SUBJECT ON WHICH EXPERT CAN TESTIFY

If we look in section-45 we will find the subjects on which experts can testify and they are science and art, foreign law, handwriting and foreign impressions.

FOREIGN LAW

Foreign law implies any law which isn’t in power in India the courts of the nation may not be in a situation to value the standards of foreign law and consequently at whatever point a Court needs to choose an issue of foreign law the court can look for the assistance of the individuals who are experts on the specific foreign law. In England, it tends to be demonstrated by leading expert evidence.

SCIENCE OR ART

Expert opinion is applicable to all inquiries on purposes of science or art. Science or art remembers all subjects for which a course of uncommon investigation or experience is important to the arrangement of an opinion. Field has cited “These words are to be extensively interpreted, the term science not being restricted to higher Sciences and the term art not being constrained to expressive arts yet having its unique sense of handiwork trade profession and expertise work which with the development of culture has been conveyed past the circle of the regular motivation behind life into that of artistic and logical activity.” To decide if a specific issue is of a scientific sort or not the test to be applied is whether the topic of enquiry is to such an extent that experienced people are probably not going to demonstrate fit for framing a right judgment without the help of experts.

HANDWRITING AND FINGER IMPRESSION

Under section 45 of the Indian Evidence Act, an expert can dismiss to the character of handwriting between the addressed document and the archive conceded or demonstrated. Contested handwriting might be demonstrated either by calling an expert or by analyzing an individual familiar with the handwriting of the individual by whom the inquiries report is claimed to have been composed or an examination of the two under section-73. At the point when the court needs to settle on the character of the handwriting of someone in particular or The Identity of someone in particular’s finger impression, the court may get the evidence of an individual who has gained a skill on the issue. About from people having proficient capability regarding the matter the court may get the evidence of an individual who is in any case familiar with the subject. In R v. Silverlock, 1894 2 QB 766, the court saw that a solicitor may be treated as a specialist in handwriting regardless of whether he had gained his insight as a beginner. with regards to the dependability of such evidence the Supreme Court has set down and many cases that the evidence of a specialist as to handwriting is just in the idea of an assessment and can once in a while replace meaningful evidence. It ought to be confirmed either by clear direct evidence or by fortuitous proof.

The assessment of thumb impression expert is qualified for more noteworthy weightage than that of a handwriting expert.

In R v Oakley, (1979) Crim LR 657 CA, a cop who had gone to a course, breezed through a test as an accident expert and went to in excess of 400 accident was qualified for giving master proof with respect to the reason for an accident.

The Supreme Court in the case of State of H.P. v. Jai Lal and Ors.,(1999) 7 SCC 280, clarified the substance of expert opinion by expressing that Section 45 of the Evidence Act which makes the opinion of expert permissible sets out, that, when the court needs to frame a conclusion upon a state or foreign law, or of science, or art, or as to the character of handwriting or finger impressions, the feelings upon that purpose of people extraordinarily gifted in such foreign law, science or art, or in inquiries as to the personality of penmanship, or finger impressions are significant realities. Along these lines, so as to bring the evidence of a witness as that of a specialist, it must be indicated that he has made an exceptional investigation of the subject or obtained a unique experience in that or as it were that he is skilled and has sufficient information regarding the matter.

Conclusion

Without an independent and reliable confirmation, the expert opinion may have no value in the eye of law. Once the court accepts an opinion of an expert, it ceases to be the opinion of the expert and becomes the opinion of the court.

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This article is written by Pranit Bhagat. He’s currently pursuing his bachelor in laws from ILS, Pune. In this article, he has discussed the terms ‘Murder’ and ‘Attempt to Murder’, and along with this, he has also tried to distinguish between these two terms.

Introduction to ‘Murder’ and ‘Attempt to Murder’

The term ‘Murder’ has been derived from a German word which means ‘secret killing.’ It is defined under section 300 of the Indian Penal Code, 1860. In a layman’s language, murder will be killing a person without the intention of getting caught for the same while an attempt to kill someone (not resulting in the death of that individual) will be considered as an ‘attempt to murder’. The Indian Criminal law- IPC, 1860 looks at the crime of murder as a very heinous one and sets up punishment like a death sentence or life imprisonment by proper discretion of the court. The article has content aimed at briefly explaining the two and the legislations associated with it.

Murder or Culpable Homicide?

Now to understand the concept of murder, first ‘Culpable Homicide’ should be explained. “Homicide” has been derived from Latin where “homo” means “man” and “cide” means “I cut.” Thus, homicide can be explained as a man killing another man. It can be lawful or unlawful. Thus, culpable homicide means causing death through a human agency which is punishable by law. We can say that Culpable homicide is the genus and murder would be its specie. To understand better, Murder as an offence is the aggravated form of Culpable Homicide. Criminal intention or knowledge of the person is an essential element for committing either of the offences, be it Murder or culpable homicide. There is a very thin line of difference between the two offences which is based on the intention and knowledge involved in it. The basic difference lies in the degree of the commission of the said offence. The person will be held accountable according to the degree of the offence that one has committed. Thus, we can say that all murders are culpable homicide but not all culpable homicides are murders. Section 300 of IPC clearly states the difference of when the act committed will fall under culpable homicide and when the act committed will amount to murder. So, a person throwing a knife at any other individual in a feat of anger resulting into death of the person due to stab would be a culpable homicide because even if there were no dark criminal intentions, the ‘person has blood on his hands’ whereas if a person with gun repeatedly shoots some other aiming at chest has a criminal intent of taking his life and it’s a clear case of murder

Provisions governing-

The Indian Penal Code , 1860

Section 299 of IPC:

A person is said to commit culpable homicide if he has done an act through which a death is caused.
The person had an intention to cause death.
Or the intention to cause such a bodily injury which is likely to cause death.
Or the knowledge, that the act is likely to cause death.

For example, a person A has been hiding behind a bush and the fact is known to person B, who induces fire deliberately knowing that it may kill A, A even dies due to it, in that case, B has committed an act of culpable homicide and is guilty of it.

Section 300 of IPC and it’s exceptions-

With respect to the exceptions, culpable homicide can be considered as murder, if the act through which death is caused is completed.
The person had an intention to cause death.
The person with an intention to cause such bodily injury to another person, which he knows can cause the death of that person.
The person with the intention of causing such bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.
The person with the knowledge that the act committed was so dangerous that it in all probability will cause death, or such bodily injury, which may cause death.

For example, a person A shoots another person, B repeatedly in the chest, causing the death of A, such act would be considered as ‘murder’ and will be charged under S. 300 of the Indian Penal Code.

Explanation- Sec. 299 and Sec. 300

Moreover, both S. 299 and 300 are provisions related to deliberate death of an individual by some other individual but since they are so closely related, to understand them better individually, the difference between two must be noted. The degree of intention or the knowledge to cause the death of a person determines the nature of the offence, whether it would fall under the purview of murder or culpable homicide. The Supreme Court has also expressed its regret that any distinction made between murder and culpable homicide not amounting to murder is often lost sight of because a thin line difference makes it very difficult to differentiate and even prove the same. The more the intention considered as grave and indicating confirmation to kill, more becomes an act heinous and considered as murder. Slow poison administered by an individual requires medical knowledge, which also confirms that the person had a whole-hearted intention with a plan to kill. This will be considered as murder but only beating up a person aimlessly resulting in death would be a culpable homicide. Interestingly even in cases where a person is exercising his/her right to private defence against any other attack, while doing so causes the death of the attacker, it will still be a case of culpable homicide and not murder.

There is a very slight difference between the act of committing murder and culpable homicide. Culpable homicide basically means the killing of a human being by another person. There are five exceptions provided in Sec 300 of Indian Penal Code.

These are the exceptions where death will not amount to murder-

Exception-1: Sudden and grave provocation

Sometimes a person may commit an act which leads to the death of another person due to grave and sudden provocation. Then such a person will be held for culpable homicide not amounting to murder. In such a case the person loses his self-control for a moment and commits such an act. The Essentials for this exception to be valid are:

There must be a provocation
The provocation must be grave and sudden
By reason of such grave and sudden provocation, the offender must have been deprived power of self-control.
The death of the person who gave the provocation or of any other person by mistake or accident must have been caused.

For example, A is informed that his wife has been cheating on him, on the enquiry of the same, A himself catches her in compromising position due to which A suddenly goes and shoots his wife in anger. It will be a case of culpable homicide not amounting to murder.

Exception- 2: Exceeding the right of private defence

The law contained in this exception is based on the rule that in a case in which law itself empowers an individual to inflict any harm short of death, it ought hardly to visit him with the highest punishment if he inflicts death. The Essentials for this exception to be valid are:

An act must be done in exercise of the right to private defence of person or property
The Act must have carried out in good faith.
The person doing the act must have exceeded his right given to him by law and have already caused the death.
The act must have been done with premeditation and without any intention of causing more harm than was necessary for self-defence.

For example, in a case of sexual assault faced by a girl, the girl hits the assaulter with a sharp object to protect herself. While doing so, she kills the person. It will be a case of culpable homicide and not murder.

Exception-3: Offence committed by a public servant

This exception shall not apply where the act of a public servant is illegal and unauthorised by law or if he glaringly exceeds the powers entrusted to him by law. The Essentials for this exception to be valid are:

Offence committed by a public servant or by some other person acting in the aid of such public servant, in the advancement of public justice.
Public servant or such other person exceeds the powers given to him by law.
Death is caused by doing an act which he in good faith believes to be lawful and necessary for the discharge of his duty as such public servant.
The act must have been done without any ill-will towards the person whose death is caused.

While handling protests, a police officer is allowed to throw water at the people in order to control them, while doing so a woman continuously walking ahead gets hit with the water pressure, feels terrified and dies on the spot, the officer had no intentions of killing her but it will be the case of culpable homicide and not murder.

Exception- 4: Death caused in sudden fight

By fight here we mean something more than a verbal quarrel. A fight is a combat between two or more person whether with or without weapons. Fight per se is not a palliating circumstance; it must be sudden, nor pre-arranged. Therefore the time gap between the quarrel and fight is very important. The Essentials for this exception are:

Death must be caused in a sudden fight
Sudden fight must be without any premeditation.
It must occur in the heat of passion upon a sudden quarrel.
The offender must have not taken undue advantage or must have not acted in a cruel or unusual manner.
It is immaterial as to which party offered the provocation or committed the first assault.
The fight must be with the person killed.

For example, two young men get into a fight as one accuses the other of robbing his car. Completely enraged by the accusation, one starts beating the other and the other replies violently, while doing so one of them is killed, it will be a case of culpable homicide and not murder

Exception-5: Death caused of person consenting to it

Culpable homicide is not considered as murder if the death of a person above the age of eighteen is caused and the risk of death is with his own consent. Then, culpable homicide is not considered murder. The Essentials for this exception are:

The death was caused with the consent of the deceased.
The deceased was then above 18 years of age
That such consent was free and voluntary and not given through fear or misconception of facts.

For example, the best example to understand this exception is that of arrow shooting the apple on one’s head. If a person stands with an apple on his head and consents to the other to shoot at the apple, putting his own life at risk, in case dies, shall not be called murder but rather culpable homicide, because the person ( more than 18 years) consented to such risk.

Murder is a Cognizable and Non-bailable offence, triable by Court of Sessions.

Caselaw Reference –

Reg. Vs Govinda (1877) ILR 1 Bom 342:

In the case of Reg. v. Govinda, a clear distinction was seen between culpable homicide and murder.

Facts of this case :

According to the facts, there was a fight between the husband and wife and in a fit of anger, the husband knocked his wife. Later, she became unconscious and in order to wake up the wife, he punched her with closed palms but unfortunately, the wife died because of internal bleeding in her brain. Herein, the court held that the man was liable under Section 299 of IPC and not under Section 300 because clearly there was no intention to cause the death of his wife and the act was not grave enough to cause the death of the person on the spot. The accused was liable for culpable homicide not amounting to murder.

Difference Between Culpable Homicide and Murder

It is extremely difficult to distinguish between Culpable Homicide and Murder as the end result of both is death but there is a presence of difference to a very subtle distinction of intention and knowledge involved in both the crimes. The main differences between culpable homicide and murder were laid out and principles were held and formed as:

1. Culpable homicide is wider than the term murder. Culpable homicide is therefore considered as the genus while as murder is regarded as a species. All murders are culpable homicide but all culpable homicides are not regarded as murder.

2. Murder is an aggravated form of culpable homicide.

3. In murder, the offender has a definite knowledge that the act would result in the death while as in culpable homicide the knowledge is not so definite.

4. The probability of causing death is higher in murder than culpable homicide.

Attempt to Murder

The second part of this article deals with Section 307 of the Indian Penal Code, 1860 which talks about attempt to murder. Attempt to murder is a failed shot of a person to kill some other individual and therefore a lot of what is explained in this section depends on the intention and knowledge of the accused and also, the preparation that he takes before committing the crime.

Provisions governing-

Indian Penal Code, 1860

An offence under IPC section 307 must have these two ingredients:

(a) An intention of or knowledge related to the commission of murder;

There are three considerations which appear to be essential to determine whether an act is done within the ambit of section 307- the nature of the act done, the intention or knowledge of accused and the circumstances under which the act is done. The intention or knowledge of the accused is taken into consideration and not the consequences of the actual act done for the purpose of carrying out the intention. The court has to decide on the basis whether the act was done with the intention or knowledge. The accused must have the intention or knowledge and it is a necessary condition to constitute murder. If this ingredient is not established, there can be no offence of “attempt to murder”. The intention has to be gathered from all circumstances of the case like the nature of the weapon used, the manner in which it is used, the motive of the crime, the body part where the injury is inflicted to determine the intention or knowledge (i.e. Mens Rea ) of the accused and not merely from the consequences that have been followed.

(b) The doing of an act towards it.

Only wrong and evil intent is not sufficient to constitute a crime. Some voluntary act or omission must be shown by a man in order to be punishable. An act should be committed which is capable of causing death in the natural and ordinary course of things to commit an offence of “attempt to murder.”

Illustration: Mixing of poison in food with intent to cause death will be an offence under this section even though if no death occurs.

If the act which is complained of is not capable of causing death then the accused cannot be convicted under this section. For example, the act of pulling an unloaded gun cannot constitute the offence no matter what the accused intention or belief is.

Note-The attempt to murder under section 307 IPC has a lot of similarities with section 324 IPC, which talks about voluntarily causing hurt using dangerous weapons. The offence of attempt to murder is a very grave offence because it is not very different from the offence of murder itself. These two offences have only one major difference that is the death of the victim which is not present under section 307.

Caselaw Reference

Vasan Jadhav vs. State of Maharashtra, 2004

The Supreme Court held that to justify any conviction under section 307, it is not essential that bodily injury capable of causing death should have been inflicted. The nature of injury caused can often give considerable assistance in coming to a finding as to the intention of the accused but such intention can also be deducted from other circumstances. The court has to see whether the act was committed with the intention or knowledge under circumstances mentioned in this section irrespective of its result. If the accused had the intention to commit murder and in the pursuance of that intention he does an act towards its commission irrespective of the fact that the act is penultimate or not, the offence is under section 307 of IPC. An attempt in order to be criminal does not need to be the penultimate act. It is sufficient in law, if there is an intention with some act in execution of it.

Attempt to murder is a Cognizable and Non-bailable offence, triable by Court of Sessions.

Conclusion

It is extremely artistic how two terms explained in the above article are so similar and yet so different, the judicial process due to this thin line difference in crimes given in laws makes it a tedious process to prove the convict as guilty. Perceived knowledge of the perpetrators of crime, their professionalism behind such acts, and surprising glitches in the laws put forth by advocates make their positions far ahead of the judiciary. Judiciary often paves the way for landmark judgements when such close call crimes are committed. In any case, the better understanding of laws of such commonly heard crimes is essential and their difference should be noted by people who wish to understand the criminal laws better.

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Mansi Tyagi, is a student of Symbiosis Law School, Pune. In this article, she has discussed the rules and principles concerning the Incoming and Outgoing partners in a firm. Also, she has tried explaining in the conclusion, the status of partnership firms after such changes in the constitution of partners.

Who is a Partner?

Section 4 of the Indian Partnership Act, 1932 defines “Partnership”^[1] as ‘the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all’. And on the same lines, it defines a Partner, the person who enters into such a partnership with another person. In other words, partners are persons working collectively for a common business to share profits. In the case of ‘Mohd. Laiquiddin and Ors. vs. Kamala Devi Misra (Dead) by L.Rs. and Ors.’[2] the hon’ble supreme court went ahead to interpret Section 4 to declare a partnership one purely contractual matter. Now it is important to note what a Partnership Deed is. It is this instrument which formalises the agreed terms of a partnership by the partners. It may be written or oral, but in any case creates a legal agreement. There are a total of nine kinds of partners in any firm. These include:

Active Partners
Quasi Partners
Dormant Partners
Nominal Partners
Sleeping Partners
Salaried Partners
Minor as a Partner
Major Partners
Senior Partners

However, on the basis of the deed effect, there are two more kinds of Partners i.e. Incoming and Outgoing Partners. The new partners are the Incoming Partners while Outgoing Partners can be the retiring partners, the insolvents or the deceased. Chapter V of the Indian Partnership Act, 1932 explicitly lays down the rights and liabilities of these Outgoing and Incoming Partners.

Incoming Partners

Incoming Partners are the new partners who get admitted to the firm. Such admission is subject to any procedure that the firm at its will and understanding adopts to include new members. Section 31[3] of the Partnership Act lays down two rules for the inclusion of new members. Firstly, the new members can only be admitted with the consent of all the existing partners. Secondly, once a person is made a partner in the firm, he shall become jointly liable to only the acts that happened after him joining the firm. Therefore we can say that the legal liabilities of any new member begins only after he is admitted to the firm and not before that.

Outgoing Partners

The Indian Partnership Act states four kinds of situations in which a person may on his own or due to other reasons be ousted from the firm. Sections 32-35 states such four conditions, viz.

Retirement of a Partner (Section 32)
Expulsion of a Partner (Section 33)
Insolvency of a Partner (Section 34)
Liability of estate of deceased Partner (Section 35)

Thus, now we will see how the act details these four outgoing conditions of a partner:

1. Retirement of a Partner

There are three ways a partner may retire out of a firm. Firstly, he may retire with the consent of all other existing partners; secondly, if an expressed contract between the partners instructs such retirement, and; thirdly, in situations of partnerships at will, the retiring partner may serve a written notice disclosing his intention to retire. Further, the retiring partner in no circumstances can get off the liabilities of the acts that the firm did when he was an existing member and continues to be liable until a public notice of the retirement is served. Such notice can be either served by the retiring partner or the other existing partners of the firm. However, once a partner retires he may discharge himself from any liability towards any third party through an agreement stating the same between him, the third party and the remaining partners. In absence of any express agreement, there can be an implied notion of the same if the third party is aware of the retirement and went ahead with dealings with the reconstituted firm.

2. Expulsion of a Partner

Generally, a partner can only be expelled from a firm in the presence of a pre-decided procedure through an express contract. For such expulsion to happen, there must be a majority of the partners to agree to the same. Also, such expulsion must be done only in the exercise of good faith. Good Faith is tested through three sets of rules: firstly the expulsion shall be in the interest of the firm; secondly, due notice shall be served to the partner before expelling him and thirdly, the concerned partner shall be given an opportunity to justify the actions that were leading him to an expulsion. Until all these requirements are fulfilled, a partner cannot be expelled whatsoever. Further, after the expulsion, a partner shall be treated like a retired partner and have the concerned liabilities as under section 32 of the act.

3. Insolvency

Whenever any partner is ‘adjudicated’ as an insolvent, he becomes an outgoing partner and ceases to be a part of the firm from the date of such order of adjudication. Where such insolvency does not ipso facto dissolve the firm, the liabilities of the insolvent partner to the firm changes. The date on which such adjudication of insolvency is given, the partner’s estate is no longer liable to any act done by the firm after such date. Also, in the same way, the firm is no longer liable to the acts done by the insolvent partner.

4. Liability of estate of deceased Partner

Usually, death of a partner renders the partnership firm dissolved. However, the exception to it is an expressed contract stating otherwise. In the case of ‘Mohd. Laiquiddin and Ors. vs. Kamala Devi Misra (Dead) by L.Rs. and Ors.’ the court laid down that the death of a partner automatically dissolves the firm of two members. Also, after the death of a partner, his estate is liable to the firm only to the extent of acts done in the firm during his life. Acts done by the firm after the death of the partner have no liability to be born by the deceased’s estate.

Further, Sections 36 and 37 lays down the rights of the outgoing partners:

1. Rights of outgoing partner to carry on competing business (Section 36)

On leaving the firm, the outgoing partner has the right to start and advertise any business that competes with the firm he left. However, at the same time, if there is no express contract to the contrary, there are restrictions on the outgoing partner to either use the firm’s name he left; or misrepresenting himself as the partner of the same firm. Also, the outgoing partner cannot solicit the customs of the clients of the previous firm while he was still a partner there. The second clause of section 36 talks about the restraint of trade. Herein, any express contract can restrict the outgoing partner from exercising any business similar to that of the firm within a reasonable local limit or time. However, such a contract between the outgoing partner and the existing partners shall be tested on the basis of reasonability. In one such case of ‘Firm Daulat Ram vs. Firm Dharm Chand’[4], when two ice factories under a partnership decided to work one at a time and distribute the accruing profits amongst each other, the restriction was considered reasonable. Section 36(2) of the act is an exception to section 27 of the Indian Contracts Act, 1872 which renders any contract that restricts trade void.

2. Right of outgoing partner in certain cases to share subsequent profits (Section 37)

When a person dies or becomes an outgoing partner due to any other reason, and the firm still continues to exist and work, such person or his estate through his legal representatives are entitled to the shares in profits made after the person ceased to become a member. The share of profit shall be either attributable to the use of his property share in the firm or interest of six percent per annum on his share of the property in the firm. However, this is only the case where there is no final settlement of accounts between both parties. In the case of ‘Addanki Narayanappa and Ors. vs. Bhaskara Krishtappa and Ors.’^[5] the hon’ble supreme court reaffirmed the sharing of profits to the representatives or estate of a deceased partner under section 37. However, this profit sharing is subject to any contract to the contrary. Therefore, in cases where the firm purchases the remaining interests of the outgoing partner in the firm, such partner does not remain further entitled to any profit sharing.

Conclusion – Status of the new firm

One more question that is important is whether a partnership firm dissolves after a new member is added or an existing member ceases to be a part of the firm? This was answered in the case of ‘Tyresoles (India) Calcutta v. Commissioner of Income-Tax, Coimbatore’^[6] where the court laid down the status of any firm after inclusion of any new member as reconstitution of the existing firm rather than the complete dissolution of the older firm. However, at the same time the ‘Mohd. Laiquiddin Case’ laid down the principle of a ‘firm dying with the partner’ in case it is a firm of two partners only. But generally, Reconstitution of a firm keeps it subsisting in another form, and thus the inclusion of a new member or exclusion of an existing member are examples of rearranging the original form of the firm into a novel one. It is for this reason that section 38 of the Act lays down that in case of reconstitution of any firm, the guarantees given to the firm or a third party are automatically revoked in absence of any contract to the contrary. It is thus important to note that once the constitution of partners changes in a firm, the liabilities and status of the firm also takes another side.

^[1] INDIAN PARTNERSHIP ACT, 1932 Section 4 – Definition of partnership, partner, firm and firm name.

^[2] Mohd. Laiquiddin and Ors. vs. Kamala Devi Misra (Dead) by L.Rs. and Ors., (2010) 2 SCC 407.

^[3] INDIAN PARTNERSHIP ACT, 1932 Section 31 – Introduction of a partner.

^[4] Firm Daulat Ram vs. Firm Dharm Chand, AIR 1934 Lah 110.

^[5] Addanki Narayanappa and Ors. vs. Bhaskara Krishtappa and Ors., AIR 1966 SC 1300.

^[6] Tyresoles (India) Calcutta v. Commissioner of Income-Tax, Coimbatore, [1963]49ITR515(Mad).

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This article has been written by Yash Dodani, a Second-year law student at NALSAR University of Law. He has tried to explain the position of the nervous shock in tort law.

Overview

The tort law was always considered as unwritten principles for physical injuries. The courts have earlier said that nervous shock or we say it psychiatric injury will not be entitled to any compensation. They said that in no manner nervous shock can be considered as same as physical damage. However, they were very clear that if the nervous shock is so direct to the physical damage that it can cause harm to mind, then they have allowed damages for a nervous shock as well. However, through various cases and the precedents, the courts have recognized the mental trauma as a pigeon-hole for compensation under the tort law. This article will get the reader to understand how the courts have and will consider various determinants for understanding to what extent the shock is caused and how much damages or compensation should be given to the affected party. All the guidelines are also meant to close the floodgate to the claims. Introduction

“In the case of mental shock… there are elements of greater subtlety than in the case of an ordinary physical injury and these elements may give rise to debate as to the precise scope of legal liability”.[1] Tort law has not been made by any written codified law. Instead, it is made up of precedents in the case laws which come to the courts. Tort means a civil wrong. Tort law is made up of various forms of faults done by any individual or a group of people, may be artificial. Fault is the whole point In a tort law. Tort law tries to bring the party who suffered to the original position, as they were, prior to the happening of that very wrong. It can be something like insurance, which also has a similar motive. Tort law aims at making good the loss suffered by the plaintiff, i.e. it seeks to make the plaintiff whole.[2] The tort law does not give any punishment to the person who has done wrong until that wrong was done with wrong intentions. It majorly gives compensation to the innocent party for what losses they have suffered for the negligent behaviour of the wrong doing party. The English legal system has however often said that including nervous shock in the purview of tort law will be a big controversy. Various judges and scholars have said the results of including nervous shock in the purview of tort law will have unwanted results. This is often called as nervous shock or mental trauma. In recent years the courts have begun to move away from this terminology and have begun to talk about ‘psychiatric illnesses rather than nervous shock.[3] This article will, through case laws will bring the development of nervous shock as an area of development, the tests which are used to determine the extent of shock and also to determine the compensation and inside, close the floodgates of claims.

For many years in the English legal system, the talk to include nervous shock in the tort was rejected by the courts because of the controversial nature of it. It was argued that if any injury can’t be seen, it can’t be shown to the courts and hence the damages can’t be claimed. Various scholars tagged it as less worthy to ask for compensation. However, with the development of the time, the courts have given recognition to the nervous shock. Lord Macmillan has given the elements that a plaintiff must prove in order to get damages for nervous shock.

Duty of care;
Breach of that duty;
That breach caused the shock;
The shock is not too remote.

Out of fear for false claims and unrestricted liability of defendants, the courts have created a number of “control mechanisms” which can limit liability.[4] It was first seen in the case of McLoughlin v O’Brian.[5] It gave a three-part test in order to restrict the compensation. The distinction between the physical harm and the nervous shock is also important and it is discussed in the case of White v Chief Constable of South Yorkshire. It also discussed the problems of giving nervous shock a recognition due to the following reasons:

It said that there is a lot of evidential problems;
Opening of the floodgates;
The problem of posing liability on the defendant to give a lot of compensation, and will be unfair.

However, the Law Commission report in 1998 claimed that these reasons equally apply to physical harm as well. It also suggested that it is however not really possible to prove the kind of harm that the plaintiff is in- in a nervous shock.

Primary and Secondary Victims

Before we go and analyse the report of the Law Commission, it is important to understand the development of this field and how judges have placed the limitations in order to restrict the scope of the word ‘mental injury’. A very early case on this front is the case of Dulieu v White and sons, where Kennedy J gave a test to determine the liability of the defendant in a nervous shock case. The test is a two-fold test.

The degree to which the shock is presented in the courts should be foreseeable and
The shock must arrive from a reasonable fear that might cause physical harm.

This test made a distinction between a primary victim and a secondary victim in the sense that the party who is directly involved in an accident and has a reasonable fear of having a physical injury is a primary party and rest all are secondary victims.

But this test was reduced in the case of Page v Smith where the judges held that where the reasonable foreseeability can be proved, there “physical and psychiatric harms are not of different types, so that if the former is foreseeable, the claimant can recover in respect of both physical and psychiatric harms, even where the latter is not in itself foreseeable”. This means that the requirement for the plaintiff is to prove that they were in the purview of the physical injury and then they are directly eligible to get compensation for the nervous shock/ mental illness. But this may open the floodgates, if the nervous shock was not foreseeable.

But some well 2 decades after, the case of Hambrook v Stokes Bros[6] came where the judges said that the nervous shock can also come to the close relatives and friends of the victim and they can also claim the damages for the same. These people were said to be the secondary victims of the case. Now the judges have also included the proximity part while limiting the scope of the nervous shock liability.

The number of cases of this front were increasing at a rapid pace. Then came the case of Bourhil v Young where the counsels for the plaintiff had tried to expand the scope of the tests and were trying to establish that the person who is not at all related to the primary victim, nor is in proximity to the accident, or not even a prime witness to it, can also claim for the damages. But they were failed to do that.

So the final test for primary victims claiming the compensation under the nervous shock must prove that they were in the zone of physical danger and the secondary victims need to prove proximity and the relation between them and the primary victim.

Control mechanism

The courts have taken different approaches to evolve the concept of nervous shock as a tort. Like the case of McLoughlin v O’Brian where the House of lords was clear that the compensation can be given in this case but the split came out while deciding the test of liability. Some judges said that the liability should not only be based on foreseeability and the following factors should also be taken into account:

The class of plaintiff in the sense that the relation between the plaintiff and the primary victim.
Proximity in rime and space.
the means by which the psychiatric illness was caused – it must come through the plaintiff’s own sight or hearing of the event or its immediate aftermath; communication by a third party was not sufficient.

This test was given by Lord Wiberforce and afterwards, it was known to be ‘Alcock test’ and this test was used to control the number of claims. This test was also applied a decade later in many cases one of which was the case of Alcock v Chief Constable of South Yorkshire.[7] However, by applying this test the court said that the claim could not be allowed because the above conditions were not fulfilled. However, to my opinion, the House of Lords have taken a very narrow approach then what actually this test was. However it is also important to do so to stop the public from making such claims, but it can be allowed for those who saw a live telecast and seeing their loved once to die in front of them. The test is an ‘and’ criteria and not an ‘or’. It means that all the conditions need to be proven. One plaintiff in the Alcock case who saw two brothers of his dying, failed to prove his claim because he suffered from stress much after the incident took place.

However, the situation today is the same as it was made by the courts. These controls need to be taken into account while making claims of nervous shock. These mechanisms need to be taken into account to control the floodgates of claims.

Law Commission Reports

The law commission report suggested that the claims with regards to the secondary victims need to be restricted otherwise it would open the floodgates to the number of cases. At the same time, it should also work according to the judicial precedents and use of judicial powers to give justice to the innocent. The law commission also said that the proximity in terms of time and space should not be used. They said it after giving this example “How many hours after the accident the mother of an injured child manages to reach the hospital should not be the decisive factor in deciding whether the defendant may be liable for the mother’s consequential psychiatric illness”[8] However it can be argued in both ways. However, to the floodgates argument, the commission said that the love and affection fold should be strictly used and to give more clarity, they gave a fixed list of relationships.

They accepted that the floodgate will be open by their reforms but then it said that the courts should look at the policy considerations to allow/reject those claims.

[1] Bourhill v Young [1943] AC 92

[2] Mullany, NJ and Handford, PR (1993), Tort Liability for Psychiatric Damage

[3] Napier, M and Wheat, K (1995) Recovering Damages for Psychiatric Injury

[4] Teff, H (1983) ‘Liability for Negligently Inflicted Nervous Shock’ 99 Law Quarterly Review 100

[5] [1982] 2 All ER 298

[6] [1925] 1 KB 141

[7] [1992] 1 AC 310

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This article is written by Deepika Prashar. She is currently pursuing BA-LLB from IIMT &School of Law, GGSIPU, Delhi. In this article, she has discussed term Contract, with respecting to this term she has also tried to explain the concept of ‘Standard forms of contract.’

Introduction

In the modern global world, millions of contract are drafted every day. It has become an integral part of our life. In order to discuss the main topic ‘the Standard Forms of Contract’. We must first know, what exactly a contract is?

So, in simple words, ‘A contract is an agreement which is enforceable by law.’ But, this isn’t it, the journey of forming a Contract starts with an offer, which is made by one person to another person, and only upon acceptance of such offer by another party, an agreement is formed. An agreement comprises of reciprocal promises between the two parties. For the agreements to turn into a valid contract, the conditions given in section-10 of Indian contract Act are needed to be satisfied. It is only upon all conditions being satisfied, a Contract is said to be made.

A contract creates an obligation on the parties to perform their part in the contract. Contract is a powerful tool, as it protects the legal rights of either party against breach made by another party.

A contract to perform a promise may rise in the following way:

By agreement and contract
By standard form contract
By promissory Estoppel

In this article, we will take a look into ‘Standard forms of contract’.

Standard forms of Contract

A ‘standard form of contract’ is a contract between two parties in which the terms of a contract are prepared beforehand by one of the parties and the other party does not have much say in the matter. There is no place for negotiation, it is a kind of ‘take it or leave it ‘ contract. Due to a great rise in the volume of trade and business, a business concern may have to enter into a large number of contracts with its customers or clients. So from a practical point of view and for the sake of convenience to save time and money a standard form for the numerous contracts is used. The contract with standard terms may be drafted by one party and on the same terms contracts may be made with several persons.

For example, an insurance company may prepare a draft of insurance policy on which it can enter into contracts with a large number of persons. It is often a contract entered into unequal bargaining partners in which one side has all the bargaining power and uses it to write a contract mainly for his or her advantage.

Nature

Standard form contracts have prefixed terms and condition. The terms are drafted and included in the contract by the party having more bargaining power and the weaker party has only one function i.e. is to sign on the dotted line and the contract is made. Whether the other party, who does not have any bargaining power, knows that there is any term in the contract, whether there is limiting or exclusion clauses or not, that is immaterial. The consent is inferred from the fact that the party has put his signature on the contract.

Indian contract system does not have any specific differentiation between Standard form contract and general contract, as the standard form contract is a kind of contract which is governed by the same laws through which general contracts in Indian contract Act 1872 are governed. Due to an enormous increase in business trends, these kinds of contract have become very common and are entered into large numbers nowadays. This had led to the demand of formulation of fledge rules on the standard form of contract to protect the rights of the weaker party in a standard form of contract who have less bargaining power and can be exploited easily.

Why people accept Standard Form of Contract?

Usually, people don’t read the contract clauses thoroughly as they are lengthy and are in legal language so even if they read they are unable to understand it.
In some contracts, there are clauses like if you accept the given terms and condition then they will tell the full terms and condition of the contract.
In Standard form contract is a kind of contract the party generally focus on the price mentioned in the contract; he doesn’t really care about other different clauses of less probability of occurrence which might be exploitative in nature.
Social pressure on the party is created by another party to sign standard form contract, in the beginning, all the negotiation and the terms had been discussed orally and explained to them. So it creates a pressure on the party to sign the contract. The pressure can be from some other sources as well.
The major point in the standard form contract is that they are taking it or leave basis, so they don’t have any choice but to accept the contract.

Exclusion or limitation of liability by one person

In standard form contract generally, the terms of the contract are pre-drafted by one of the parties and the other party is supposed to just sign on the dotted lines, without having any opportunity to get the terms altered. The party who is in the greater bargaining position drafts the terms according to his advantage and at times tries to exclude or limit his liability without caring for the interest of the other party who is in a weaker bargaining position. So keeping in mind the unequal bargaining power of the two parties, the court and the legislature have evolved certain rules to protect the interest of the weaker party.

Ways to limit exploitation from Standard Forms of Contract

These devices are effective to protect the interests of the party who is in a weaker bargaining position in the contract:

There should be a Contractual Document

The parties are bound if the terms are contained in a contractual document. For making the terms binding it needs to be shown that the document containing those terms were contractual. In Chapelton v. Barry Urban District Council it has been held that if a document is a mere receipt and doesn’t create a contract, the terms contained in such a document are not binding. In this, it was held by the court that the exemption from liability clause which was printed on the ticket was no more than a receipt so the defendant couldn’t claim exemption from liability on the basis of anything printed on it.

There should be No Misrepresentation

Even if a person signs a document containing certain terms but there is found to be a different oral misrepresentation about the contents of the document, the document would not be binding. In Curtis v. Chemical cleaning and drying co., The plaintiff was asked to sign a receipt where the misrepresentation was made by the shop assailant regarding the contractual terms. It was held by the court of appeal that as there was misrepresentation as to contractual terms which mislead the plaintiff as to the extent of defendants’ exemption of liability, so the defendants were bound to pay damages.

There should be reasonable notice of contractual terms

For making the terms of the contract binding a reasonable notice containing all the information should be given to the other party to draw the attention of the other party to those terms. It can be by the way of printing on a ticket “for conditions see back” or any other method. If reasonably sufficient notice about the terms of the contract has not been given then there is no binding contract on such terms.

In Parker south Eastern Railway Co., the plaintiff deposited a bag in a cloakroom managed by defendants at a railway station. In return, he got a ticket on the front side of which it was stated ‘see back’. One of the conditions printed at the back stayed that the liability of defendants for any package was limited to 10 euro. The plaintiffs bag valued at 24 euro and 10 shillings was lost. The plaintiff in his action to recover the whole of the loss contended that the term limiting the defendant’s liability to 10 euro should not be binding on him because he hadn’t read the terms. It was held that the defendants had made reasonably sufficient efforts to draw the attention of the plaintiff to the terms and so the terms were binding and the liability of the defendants were to pay 10 euro only.

Notice should be contemporaneous with the contract

Any notice regarding exemption from liability should be given at the time of entering into the contract and not thereafter. If the contract has already been entered into without the exemption clause, any subsequent notice about exemption from liability will be ineffective. If subsequent notice will be allowed, it will be a great tool for exploiting the weaker party.

In Marlborough Ltd. case, the plaintiff and her husband hired a room in the defendants’ hotel and paid for one weeks boarding and lodging in advance. When to went to occupy the room they found a notice which stated ‘ the proprietors will not hold themselves responsible for articles lost or stolen, unless handed to manageress for safe custody’. Due to the negligence of the hotel staff their property was stolen from the room. It was held that the notice in the room did not form part of the contract and the defendants were therefore liable for the loss.

The terms of the contract should be reasonable

It is not just enough that terms of the contract should have been brought to the knowledge of the other party by a sufficient notice before the contract is entered into, it is also necessary that the terms of the contract should be reasonable and not arbitrary. If the terms of the contract will be unreasonable and opposed to public policy they will not be enforced even if agreed between the parties.

In Central Inland Water Corporation Ltd. v/s Brojo Nath, one of the clauses of the contract employment provided that the employer could terminate the service of the permanent employee by giving him a 3 month’s notice or 3 month’s salary. In accordance with the clause, the service of the respondent and another were terminated instantly by giving notice and a cheque fie 3 month’s. It was held by the Supreme court that such a clause was wholly unreasonable and against public policy and therefore void under section 23 of the Contract Act.

Fundamental breach of the contract

This device is used to see that enforcing the terms of the contract does not result in the fundamental breach of contract. The main obligation under the contract is not allowed to be negatived by any term of the contract. No exemption clause is allowed to permit the non- compliance of the basic contractual obligation. In Alexander v. Railway Executive, the plaintiff deposited his luggage in defendant’s cloak-room and on return received a ticket. A term printed on the ticket exempted the defendant from liability for loss or misdelivery of the luggage. The plaintiff’s luggage was delivered to an unauthorised person without the production of the ticket. It was held that non-delivery of the luggage to the plaintiff amounted to fundamental breach of contract for which defendant was liable.

Non-contractual liability

Exclusion of contractual liability may not negative any other kind of liability like liability in tort. In White v. John Warrick and Co.Ltd the plaintiff hired a cycle from the defendants under an agreement stipulating that “nothing in this agreement shall render the owners liable for any personal injury “. While the plaintiff was riding the cycle, its saddle tilted forward as a consequence of which he was thrown and injured. It was held that the exemption clause excluded only contractual liability of the defendant whereas they still remained liable for negligence under the law of torts.

Liability towards third parties

If A and B enter into a contract under which B tries to exclude his liability by an exemption clause such a clause wouldn’t exempt any other person, say C, from liability because of the rule that C is a stranger to the contract and he can’t take advantage of a contract between A and B. In Morris v. C.W. Martin and Sons Ltd., the plaintiff gave her fur garment to a furrier for cleaning. Since the furrier himself couldn’t do the job, he has this garment to the defendant for cleaning with the consent of the plaintiff. The defendant’s servant stole the garment for which the plaintiff brought an action against them. The defendants sought exemption from liability on the basis of an agreement between the plaintiff and the furrier. The defendants were not allowed exemption and were held liable.

Conclusion

Standard form contract is a contract which is drafted by one party beforehand in which the party is a weaker bargaining position has no say. It is like ‘take it or leave it ‘ for them. It is true that it is not practically possible for a big firm, banks etc to enter into a separate contract with each individual so this method is devised but this form of contract can be a very big tool to exploit the weaker party in a contract. Usually, the party in higher bargaining position tries to limit or exclude their liability without caring for the interest of the other side. so the court has evolved certain devices e.g. giving reasonable notice to protect the interest of the weaker party.

References

DR. R. K. Bangia, 7^th Edition
Avtar Singh, 12^th Edition

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This article is authored by Pankhuri Pankaj, a 2nd-year student pursuing her BA-LLB degree from Vivekananda Institute of Professional Studies. She is currently interning with Lexpeeps. This article summarises certain key provisions of “attempt to suicide and abetment to suicide” under the Indian Penal Code and is qualified in its entirety by reference to the Indian Penal Code, 1860.

INTRODUCTION

A partner in a firm holds the highest position and is a person responsible for the running of the organization owning a co-ownership with the other partner(s) with the goal to earn the profit. All partners in a firm are entitled to form an agreement with regard to their mutual rights and duties, keeping in consultation the certain duties mentioned in the Indian Partnership Act, 1932 which cannot be altered by entering into an agreement to the contrary and this principle has been given statutory recognition under Section 11 of the Indian Partnership Act, 1932. This principle is commonly referred to as one of the two fundamental principles which help govern the relation of one partner to the others.

The second principle which is recognised by Section 9 of the Indian Partnership Act, 1932 provides that the relation of one partner to the other is of the utmost good faith. It also suggests that every contract entered by one partner in the name of the firm will be binding on other partners too. It says that every partner is an agent of each other and thus it concludes that the relation of partners to one another is based on mutual trust. This principle can be said to be of fundamental nature.

Rights of a Partner in a Firm

In a partnership firm law confers the following rights on a partner:

1. Right To Take Part In The Conduct Of The Business

This right has been conferred on the partners through Section 12(a) of the Indian Partnership Act, 1932. It provides that every partner has the right to take part in the conduct of the business of the firm. This firm does have the right to allow only a few partners to actively participate in the functioning of the business by curtailing this right by the provision of the agreement.

It is necessary that this right should be used by the partners for the purpose of promoting the business of the firm and not for damaging the firm’s business and a similar contention was held in the case of Suresh Kumar Sanghi v. Amrit Kumar Sanghi (AIR 1982 Del 131) where the Delhi High Court imposed an injunction against the partner concluding that his act was to damage the business of the firm.

2. Right To Access And Inspect Books

According to Section 12(d) of the IPA, 1932 the partners in a firm have the right to access, inspect and copy the account books of the firm and this right can be accessed by the partner in the first person or through his/her agent but the information gained by either is strictly prohibited from being used against the firm.

In case a partner denies granting access to the books of the firm a reasonable ground for the same needs to be provided. If the reason given by the person is found to be trivial, he will have to grant access to the books even if he is reluctant.

3. Right To Be Consulted

Under Section 12(c) of the Indian Partnership Act, 1932 a partner’s right to be consulted has been granted. This right provides that in the matters of resolving disputes related to the ordinary course of business a majority between the partners is to be seen. Every partner is given the right to express an opinion before the matter is decided.

In case the dispute is related to the Fundamental matters of business of the firm, it is necessary to get the consent of every partner in the firm. This provision can be further understood by taking the example of the case when a minor is to be included as a beneficiary in the firm.

4. Right To Share Profits

In a partnership firm, every partner has been granted the right to share profits equally in the firm and has been prescribed under Section 13(b), Indian Partnership Act, 1932. This right to share profits is not to be affected by the fact that the partners may have contributed unequally or possess different skills and the same contention was held in the case of Mansha Ram v. Tej Bhan (AIR 1958 P&H 5) where the Punjab and Haryana High Court held that the partners were entitled to share equal profits in a firm irrespective of the fact whether they had been paid separately and had done unequal work.

5. Right To Interest

Under Section 13(c) of the Indian Partnership Act, 1932 it has been stated that generally a partner is not entitled to make a claim on the capital of the firm but if there exists an express agreement between the partners which allows interest on the capitals then such an interest has to be paid out of the profits of the firm. A partner is deemed to be an adventurer rather than a creditor and therefore, interest is not to be provided to the partner on capital except when there is an agreement or usage to that effect.

In case of interest in advance, under Section 13(d) it is stated that a partner is rightfully entitled to an interest of maximum six percent per annum for the advances made by him to the firm beyond the capital he agreed to subscribe to.

It is important to note that the interest in the capital of a partner ceases after the dissolution of a firm but the interest on advances would continue to exist until it is paid completely.

6. Right To Be Indemnified

Right to indemnity has been provided to the partners under Section 13(c) of the Indian Partnership Act, 1932 under two circumstances, which are:

A partner is granted the right to be indemnified to recover any expenses he may have incurred in the ordinary and proper conduct of the business; or
In the cases wherein order to protect the firm from the loss, the partner incurred expenses in any emergency. Here, it is necessary that the partner acted in a reasonable manner.

This right is not lost with the dissolution of the firm and continues to exist. Mere settlement of accounts is also not important to indemnify the partner.

The reason behind this right is pure fairness. It is believed that the burden of expenses of the partners should not be borne by a single partner.

7. Right To Remuneration

Under Section 13(a) of the Indian Partnership Act, 1932 it has been provided that in a firm no partner is entitled to claim remuneration for the act of taking part in the conduct of the business. In the same breath, it is provided that remuneration can be provided to certain partners along with the share in the profits if that has entered into an agreement to that effector when such remuneration is payable under the continued usage of the firm.

Along with these rights, the partners may compile some mutual rights which generally depends upon the provisions of the agreement.

Duties of a Partner in a Firm

In addition to the multiple rights enjoyed by a partner in a firm, certain duties have to be performed by them to hold entitlement over those rights too. These duties of partners emerge directly from the second principle discussed above, i.e. the relation of the partners to one another of utmost good faith.

1. Duty To Act In Good Faith

Section 9 of the Indian Partnership Act, 1932 states that it is the duty of every partner in a firm to act in good faith of the firm and to act for the greatest common advantage of the firm. It provides that the partners should work honestly to secure the greatest profits for the firm and no profit should be gained by the partner at the expense of the firm.

In the case of Bentley v. Craven ((1853) 18 Beav 75) where the partner who was entitled with a responsibility gained secret profits wrongfully, the court held that the partners are not entitled to make secret profits and therefore, the firm was held entitled to the profits earned by the partner.

It is important to note that this duty does not cease to exist even after the partnership ceases to exist. The partners in the firm owe the duty to legal representatives of the partner as well as the former partner.

2. Duty Not To Compete

Under Section Section 16(b) of the Indian Partnership Act, 1932 a partner should be held accountable for all the profits that he gains if the partner makes them by engaging in business which is similar to or competing with the firm.

To understand this duty better the case of Pullin Bihari Roy v. Mahendra Chandra Ghosal (AIR 1921 Cal 722) can be taken into account where the accused was held liable to account to his co-partners for the profits earned by him.

However, it is important to note that this duty does not restrict the partner from carrying out any business outside the scope of the business of the firm.

This duty can be altered by the partners through partnership deed and partners may enter into an agreement which allows a partner to carry the business competing with the business of the firm or can restrict the partners too from carrying out any business other than that of the firm and such an agreement will be held legally valid owing to the provisions provided under Section 11 of the Act. In case a person breaches such an agreement and carries out a business not competing to that of the firm then, such a partner will not be held liable for the profits but the other partners will be given the right to apply for the dissolution of the firm.

3. Duty To Be Diligent

Under Section 12(b) of the Partnership Act, it has been provided that a partner in a firm is bound to diligently attend to his duties and under Section 13(f) of the act, it has been provided that the partner must indemnify the firm in case of any losses incurred by the firm due to the wilful neglect of the partner.

It is important to note that the partner cannot be held liable for simple errors of judgement or for acts done in good faith but for wilful negligent behaviour only.

This duty can be better understood by taking the example of the case of Cragg v. Ford (62 ER 889).

Only the firm or the partners on behalf of the firm can bring an action for indemnity under this head and a partner cannot bring an action for indemnity in his personal capacity.

4. Duty To Render True Accounts

In case of things related to the firm or things that affect the firm, the partners are bound to disclose and provide full information about it to any partner or his legal representative and the same has been laid down under Section 9 of the Indian Partnership Act, 1932. To understand this duty in general terms, the partners are prohibited from concealing things from other co-partners in relation to the business of the firm.

In the case of Law v. Law ((1905) 1 Ch 140 (CA)), the court held that in case a partner possesses some extra information then he is legally bound to deliver the same to the co-partners in the firm. If the partner enters into a contract with other co-partners without furnishing them the material details which are known to him but not his co-partners then such a contract is voidable at the option of the co-partners.

5. Duty To Indemnify For Fraud

Section 10 of the Indian Partnership Act, 1932 deals with the duty to indemnify for fraud and it states that the partner shall be liable to indemnify his co-partners in case a loss is caused to the business because of his actions.

The purpose of this section to inculcate accountability and induce partners to deal fairly and honestly with the customers.

It is important to note that the liability for fraud cannot be excluded merely by entering into an agreement to the contrary because entering into such an agreement would oppose the public policy.

6. Duty Not To Earn Personal Profits

Under Section 16 of the Indian Partnership Act, 1932, it has been provided that a person should account for the property in case he uses the property of the firm to earn profits out of it. This duty is deemed to arise because of the Fiduciary relationship between the partners.

To understand this duty better the example of a partner entering into a business which happens to compete with the business of the firm can be taken. Here, it is held that the partner should account for the profits earned from any such business.

It is important to note that in case a competing business is carried out after the dissolution of the partnership, reasonable restrictions can be put by the firm for carrying out the competing business by the ex-partner.

This duty is not a compulsory duty and can be avoided by a partner by entering into an agreement to the contrary.

7. Duty To Properly Use The Property Of The Firm

It has been laid down under Section 15 of the Indian Partnership Act, 1932, that the property of the firm should be used by the firm only for the purposes of the business of the firm. A partner is not entitled to use this property for his personal use and if he does the same then he will be held accountable to all the co-partners and can be held liable for any loss incurred because of any such use as well.

It is important to note that this duty can be avoided by entering into an agreement to the contrary.

It is important to note that the mutual rights and duties of the partners do not get affected in case there is any change in the constitution of the firm or if the partnership continues after the expiry of the term or undertaking for which it was constituted.

In conclusion, partners in a partnership are entitled to form an agreement and decide mutual right and duties along with the rights and duties legally provided. It is a fundamental principle in a partnership that a partner must act in utmost good faith and should always work for the greater good of the firm and with the common goal to gain maximum profits for the firm. In case no explicit agreement between the partners exists, these rights and duties can be easily abrogated by entering into an agreement to the contrary.

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Advocate Sunil Mallan is a founder of Justice for You Law Firm and a Techno-Legal Expert and Corporate Consultant. He is a practicing advocate in Punjab and Haryana High Court and Supreme Court of Delhi. He is an arbitrator and Global Goodwill Ambassador.

Q: How has been your journey as a lawyer?

The journey has been fascinating, I was an engineer working on various projects and was part of various renowned organizations, I was also an advisor to Punjab Police, however, certain changes in my life compelled me to opt for the noble legal profession, and thereafter I decided to start my Legal Studies and put a halt to my Engineer Career. And now, I am a full-fledged lawyer working before the Hon’ble Supreme Court, Punjab & Haryana High Court and various District Courts.

Q: Students in Law Schools are more inclined towards getting good grades, what is your take on it? Do grades have any significant impact on the career of a law student?

Well, there are two aspects to answer the question. 1. If you want to be a good lawyer? or 2. Do you want to be a lawyer? You might be good at academics or drafting but to my opinion, a lawyer should possess extempore skills, he should have the capability to have swift change. I lawyer in a Courtroom has to answer various questions, for this, a person should possess exemplary extempore skills. Thus, this is not the grades that make you stand out of the crowd but the skills you possess.

Q: What do you think, what other things should the law schools implement to make upcoming lawyers a better version of themselves?

“Law and Logic are two intersecting circles, they may coincide or may not coincide at every point”. If your logics are clear, possess the good legal knowledge and is well versed with the facts of the case, you will win the case. You must be good at SWOT analysis i.e. Strength, Weakness, Opportunity and Threat, work on your threats and weaknesses while preparing the case. A lawyer in itself is an organization where people have a lot of expectation from you. Law schools should work on developing these skills rather than merely focussing on completing the academic syllabus prescribed by the University.

Q: What difficulties you faced as a first-generation lawyer? What mistake did you commit that you would like to share with the young fellows?

As of now, I don’t remember any mistake that I committed as a struggling lawyer. However, at the initial stage of my career, my drafting was a bit blunt. So, focus on your drafting skills, be clear with what you wish to speak. Do your work with passion, if confused, never hesitate to consult your seniors, refer the books, read as much as you can, books are the best ornaments in one’s life. Young fellows should learn three things,

1. What to do

2. How to do and

3. Keeping the time frame in mind, do the work in time.

Q: Non-NLU students often face internship rejections from big law firms, so what will be your advice to those students?

Securing an internship with a big law firm for a non-NLU student is a challenge. The expectations of big law firms are quite high. You need to prove yourself to them, you need to showcase certain exemplary skills. You can for sure secure an internship with the big law firms if you show you are worth the internship, meeting their internship criteria. Hard work along with smart work is the only key to success. You need to be well versed with the latest Supreme Court and High Court Judgments.

Q: Any additional things that you think should be done by students of Private Law Colleges?

Yes, for sure, they should engage themselves in some social work. Many issues around us need to be addressed, for which we can become a whistle-blower. Pick a topic, start researching on it, talk to the people, analyse the situation and come up with a solution to the problem. One may even file a complaint, petition or RTI to the concerned authorities to bring the issue to light. Whatever you do, helps you to upgrade your knowledge.

Q: On a concluding what will be your advice to the young generation lawyers?

Well, the platform like you are doing a great job in creating an opportunity for the young lawyers to build-up their network. The platforms like Lexpeeps must be productively used by the students and should give suggestions about the topics they wish should be addressed. One should master the art of active participation. Develop the habit of reading, always be curious to learn new things in life. Focus on achieving the goal rather than minting money. Give your best to help the people to all the possible extents.

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