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TABLE OF CONTENTS
Contents Page no.
INTRODUCTION ………………………………………..4
ORIGIN OF THE DOCTRINE IN INDIA……………..5
NEED OF THE DOCTRINE…………………………….5
MEANING OF THE DOCTRINE…………………………6
NATURE OF THE DOCTRINE…………………………6
INTRODUCTION OF ENGLISH LAW
THROUGH THE DOCTRINE………………………..…..6-7
EXAMPLES AND CASES……………………………….7-19
CRITICISM…………………………………………………20
ADVANTAGES AND DISADVANTAGES……………….21-24
JUSTICE, EQUITY AND GOOD CONSCIENCE AND
PERSONS OTHER THAN HINDUS AND
MOHAMMEDANS…………………………………………24-25
PRESENT APPLICATION…………………………………25
CONCLUSION……………………………………………...26
BIBLIOGRAPHY…………………………………………...27
DOCTRINE OF JUSTICE EQUITY AND GOOD CONSCIENCE
INTRODUCTION
In India the doctrine of ‘justice, equity and good conscience’ was introduced, for
the first time, in the presidency of Bengal, in the year 1780. It was later
transplanted in the mofussil of Bombay and Madras Presidencies. The doctrine was
later on introduced in the other territories of India also, albeit gradually. The general
idea behind this doctrine was that if on a particular point of dispute before the
Court there was no express/parliamentary law, no Regulation and if it fell
outside the heads for which Hindu and Mohammedan laws were prescribed, then
the Court was to decide the matter according to ‘justice, equity and good
conscience.’
From the time that the British began to administer the territory that they
acquired in 1764 they inadvertently began to change the law and the administration
of justice. Later developments in the subcontinent were, however, much more
conscious. All these developments went on to influence the Constitution of India as
also her legal system. English Law was introduced initially through the application
of the principles of justice, equity and good conscience, as interpreted by the English
judges and through the decisions of the Privy Council in England.1
The scheme of the Doctrine of ‘justice, equity and good conscience’ was
sometimes advantageous but most of the times not. This owes to the reason that the
maxim ‘justice, equity and good conscience’ does not have any precise and definite
connotation. It points to no specific body of law. In simple terms, it means nothing
else but the discretion of the judge in many cases. The doctrine of justice, equity and
good conscience meant, “in substance and in circumstances the rules of English law
wherever applicable.”2
1 See, http://www.ialsnet.org/meetings/enriching/elizabeth.pdf2 M. C. Setalvad, the Common Law in India, p. 23 (1960)
2
DOCTRINE OF JUSTICE EQUITY AND GOOD CONSCIENCE
1. ORIGIN OF THE DOCTRINE IN INDIA
In 1726 George I granted a new charter to the Company establishing three Crown’s Courts,
i.e. Mayor’s Courts, one in each Presidency. The Mayor’s courts were authorised to “ to try,
hear and determine all civil suits, actions and pleas between party and party and to give
judgment and sentence according to justice and right.”3 In an extract from the letter of
the Governor-in-Council to the Court of Directors, dated November 3, 1772, in the
words “ just discernment of the Collector” lies the origin of the justice equity and
good conscience in India. 4 From the time that the British began to administer the
territory that they acquired in 1764 they inadvertently began to change the law and
the administration of justice. Later developments in the subcontinent were, however,
much more conscious. All these developments went on to influence the Constitution
of India as also her legal system. English Law was introduced initially through the
application of the principles of justice, equity and good conscience, as interpreted by
the English judges and through the decisions of the Privy Council in England.
2. NEED OF THE DOCTRINE
The general idea behind this doctrine was that if on a particular point of dispute
before the Court there was no express/parliamentary law, no Regulation and if it
fell outside the heads for which Hindu and Mohammedan laws were prescribed,
then the Court was to decide the matter according to ‘justice, equity and good
conscience.’5 It was applied by the courts only for few topics, viz., inheritance,
marriage, caste, and other religious usages and institutions. It was introduced to cover
gaps left in law.3 V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History, Eighth Edition, 2006, Eastern Book Company. p. 284,285.4 Mittal, J.K. Indian legal and Constitutional History, Page no. 5 Prof. Derret has propounded the theory that the ‘justice, equity and good conscience’ formula was introduced in India by the East India Company under the influence of the theory that Civil Law was Suitable to the Company’s Ct. in the Presidency since the Common Law was not suitable to the conditions of the settlement there.
3
3.MEANING OF THE DOCTRINE
The basic meaning of equity is evenness, fairness, justice and the word is used as synonym
for natural justice. The term is also used as contrasted with strict rule of law, acquitas as
against strictum jus or rigor juris.6
The doctrine of justice, equity and good conscience meant , “in substance and
in circumstances the rules of English law wherever applicable.”7
4. NATURE OF THE DOCTRINE
The maxim constituted the residuary source of law. These topics did not exhaust the
entire area of civil litigation with which the courts used to be confronted. No specific
direction or guidance was given by either Warren Hasting’s Plan or even by the later
Regulations regarding the law which the courts were to apply regarding the residuary
heads of litigation. There was thus a serious gap in the legal system. In this vacuum,
the courts were to act according to ‘justice, equity and good conscience.’ The maxim
provided a theoretical legal basis for the courts to decide cases for which no law had
been specifically provided.
5.INTRODUCTION OF ENGLISH LAW THROUGH THE
DOCTRINE
It appears that, in the beginning, the doctrine of justice, equity and good conscience
meant only the discretion of the lay judges, which they could exercise in a way
which seemed to them doing substantial justice to the parties. In exercise of their
discretion they even applied principles if Hindu and Mohammedan Laws and even
customary laws in many cases in which they were not obliged to do so.
Much of the English law was introduced in this country under this provision which for
the first time found place in Sec. IX and XCIII of Regulation of 1781 introduced by Impey.
The Regulation read that
6 V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History, Eighth Edition, 2006, Eastern Book Company. p. 2847 M. C. Setalvad, the Common Law in India, p. 23 (1960)
4
“ in all cases within the jurisdiction of the Mofussil Diwani Adalat, for which no specific
direction are hereby given, the responsibility of judges thereof is to do according to justice,
equity and good conscience.”
Gradually and particularly since 1862, the trained judges assigned a new meaning to
the doctrine of justice, equity and good conscience. In cases which they had to
decide according to this doctrine of they began to apply English law, even though
sometimes unsuited to the conditions of the people of India.
6. APPLICATION OF DOCTRINE OF JUSTICE, EQUITY AND
GOOD CONSCIENCE: EXAMPLES AND CASES
The cases where the doctrine was applied to contract cases are as follows:
Deen Dayal Poramanick v. Kylas Chunder Pal Chowdhary 8 -
But it was not the whole of Hindu or Muslim law of contracts which was so applied
by the mofussil adalats. For example, the rule of damdupat,9 was held not applicable
to the Hindus and the courts were held not debarred from giving a higher rate of
interest as contracted. The reason given for not enforcing the said rule was that the
courts were not obligated to apply the Hindu law of contracts in all cases in the
mofussil.
Annaji v. Raghubai10 .
The Madras High Court also took tin same view in Annaji v. Raghubai. A
practice had existed in Madras of not decreeing an amount of interest more than the
principal, but this practice was based on section 4 of Regulation XXXIV of 1802.
This provision was repealed in 1855 and hence the High Court ruled that the
limitation by way of damdupat did not exist as positive law. In the Bombay
mofussil, the rule of damdupat was excluded partially and enforced partially. It was
not applied in cases of usufructuary mortgage where the mortgage was required to
render accounts of rents and profits received by him from the mortgaged property.11 It
8 I.L.R. I Cal. 929 The amount of principal together with the rate of interest cannot exceed double the principal, called damdupat. This rule was prevalent in ancient Hindu Courts. 10 6 Mad. H.C.R. 400 (1871)11 Gopal Ramchander Limaye v. Gangaram Anand, I.L.R. 20 Bom 721.
5
was obviously an anomaly that there should be one rule in the Presidency Towns and
another in the mofussil as to the permissible rate of interest. 12
Customs prevailing in the country formed another source upon which the courts could
draw for principles to decide cases within their 'discretion' under the maxim of
justice, equity II good conscience. In the absence of any other more authoritative
source, the courts thought it quite proper and legitimate lo look to the customs of the
parties, place, family, community, tribe or class to the extent it might be feasible in
the particular case. Thus, the Bombay Court enforced a custom under which the
burial ground was regarded as sacred and the relatives of the dead buried in the
land had a right to perform rites of the Mohammedans.13 The cases which throw light
on the usage of customs in the application of the doctrine by the judges are as
follows:
Gokal Prasad v. Radho14
In Gokal Prasad v. Radho, the Allahabad High Court recognised the easement of
privacy on the basis of custom even though no such custom of privacy was known
to the law of England the conditions of domestic life in the two countries were very
different. The right of preemption was extended in some areas to non-Muslims as
well as a matter of custom. A few other rights were also judicially recognised as
customary rights, e.g., right of pasturage in the land of another15, right to bury dead
in another's land,16 right to remove earth from the portion Of a field etc.17 In
Maharajah Sir Luchmeswar Singh v. Sheik Manowar Hossein,18 the Privy Council
recognised the customary right of a person to set tip a ferry on his own land and
take toll from strangers to carry them across. The Privy Council called it as the
“recognised law in India”.
Manzoor Hasan v. Mohammedan Zan19-
In Manzur Hasan v. Muhammad Zan, the Privy Council ruled that in India there ex-
isted a right to conduct a religious procession through a public street so that it does
12 In the Nobin case, the Calcutta High Court took note of the anamoly that in Calcutta the rule of damdupat was applied among the Hindus but not outside the mofussil.13 Ramrad v. Rustam Khan, I.L.R. 26 BoM. 198.14 I.L.R. 1888 All 35615 Bholanath Nandi v. Midnapur Zamindari, 31 I.A. 7516Mohidin v. Shivlingappa, I.L.R. 23 Bom. 666. 17 Bari v. Tuka Ram, AIR 1959 Bom. 5418 19 I A. 48, 5519 52 I A. 61
6
not interfere with the ordinary use of the street by the public. However, there were
not many customs operating outside the area of personal laws and the relation of
custom with the personal laws will be reviewed later in greater details.
In course of time, the courts started interpreting the maxim to mean English Law so
far as applicable to Indian situation.
The following cases are discussed where the view adopted by the P.C. was, “ In
proposing to apply the juristic rules of a distant time or country to the conditions of
a particular place at the present day regard must be had to the physical, social and
historical condition to which that rule is to be adapted” :
Varden Seth Ram v. Luckpathy20- P.C. pointed out that Company’s courts
did not have properly any “ prescribed general law to which their decisions
must confirm”; that they were directed “to proceed generally according to
justice, equity and good conscience.”
In Varden Seth Sam v. Luckpathy, decided in 1862, the Privy Council pointed
out that the company's courts did not have properly any “prescribed general law to
which their decisions must conform”; that they were directed “to proceed generally
according to justice, equity and good conscience”: that although the English law was
not obligatory upon these courts in the mofussil, they ought, in proceeding according
to justice, equity and good conscience, to be ii governed by the principles of English
law, applicable to a similar state of circumstances. The fact of the case were
somewhat as follows ; a Muslim had created a charge on his property by depositing
the title deeds with the plaintiff, an Armenian Christian. Later the Muslim gentle-in
transferred the property to a Hindu who transferred the same to a Christian British
subject the plaintiff, the Armenian Christian, sued all these persons. The question was
regarding the validity of the lien on the property created by deposit of title deeds.
The court was to decide whether the plaintiff’s title would be affected by a bona
side purchaser without notice. The lover adalats had decreed the plaintiffs claim. The
Madras Sadar Adalat dismissed the suit on the ground that the “doctrine of
constructive notice” with which the purchaser was in lie charged with the plaintiff's
claim was not applicable to the circumstances of the Country where very commonly
20 9 M.I.A. 303.
7
old deeds connected with land did not exist and inquiry about them was not
ordinarily made. The matter then came before the Privy Council which reversed the
Sadar Adalat's decision observing that decision ''appears to have proceeded upon the
ground that the principles of the English law applicable to a similar state of
circumstances Ought not to govern the decision of that suit in those courts. This was
correct if the authoritative obligation of that law on the Company's courts were
insisted on.”21 The Privy Council applied the test to the decision appealed against
whether it “violates” the direction to according to 'justice, equity and good conscience
or not. It held that there was no law forbidding validity of the lien. The parties in
the instant case had not contracted with reference to any particular law, The parties
were not of the same race and creed. There was in existence no general local law,
lex loci ret sitae, forbidding the creation of a lien by the contract and deposit of
deeds and that by the English law, the deposit of the title deeds as a security would
create a lien on land of an equitable nature which could be defeated only by a
subsequent bona fide purchaser for value without notice. This was the law applied in
the Presidency Towns. In the instant case, the subsequent purchaser had submitted no
proof of his enquiring into the title. The Privy Council asserted that lo give effect to
the legal estate as against a prior equitable title, would be an adoption of the English
law; and to adopt it, and yet reject its qualifica tions and restrictions, would not be
consistent with justice. Thus, to decide the case, the Privy Council applied the rule of
English law, or rather of English equity.
Daba v. Babaji22- Bombay H.C. held that “ English law is not obligatory
upon the courts in the mofussils, they ought in proceeding according to the
doctrine.”
In Daba v. Babaji, the Bombay High Court considering a question of specific
relief held the Varden case as an “authority of the highest court of appeal that,
although the English law is not obligatory upon the courts in the mofussil, they
ought in proceeding according to 'justice, equity and good conscience,' to be governed
by the principles of the English law applicable to a similar state of circumstances.”
“Now, having to administer justice, equity and good conscience”, asked Sir Barnes
21 9 M.I.A. 303 at 320.22 2 Bom. H.C.R. 36(1868).
8
Peacock in 1868, “where are we to look for the principles which are to guide us ?
We must go to other countries where equity and justice are administered upon
principles which have seen the growth of ages, and see how the courts act under
similar circumstances; and if we find that the rules which they have laid down are in
accordance with the true principles of equity, we cannot go wrong in following
them.”23
Waghela Ranjanji v. Shekh Masluddin24- English law was applied as there
was no law in the Indian law which gave a guardian and manager greater
power to bind the infant ward by a personal covenant than existed in the
English law.
Judicially, the point was settled even more specifically by the Privy Council in
1887 in Waghela Rajanji v. Shekh Masluddin. A guardian had covenanted for herself
and her infant ward to indemnify the purchaser of the ward's estate against any
claims by the government for revenue. The question which came before the Privy
Council for consideration was whether a guardian had power to enter into an
agreement so as to personally bind his minor ward. Lord Hothouse delivering the
judgment of the Privy Council remarked that “equity and good conscience” had been
“generally interpreted to mean the rules of English law if found applicable to Indian
society and circumstances.” As regards the facts of the instant case, he pointed out
that there was not in the Indian law any rule which gave a guardian and manager
greater power to bind the infant ward by a personal covenant than existed in the
English law. “Their Lordships are not aware of any law in which the guardian has
such a power, nor do they see why it should be so in India. They conceive that ii
would be a very improper thing to allow the guardian to make covenants in the
name of his ward, so as to impose a personal liability on the ward.”
Lopez v. Mudhu Mohan Thakur25
The trend of applying the principles of English law so far as relevant to the Indian
conditions continued unabated during the nineteenth and the twentieth centuries.
Numerous court decisions emphasized and reiterated the position stated above. In this
way, rules of English law continued to find their way into the body of Indian law
23 Suroop v. Trylakonath. 9 W.R. 230, 232 (1868)24 14 I A 89, 96 (1887)25 13 M.I.A. 467
9
indirectly through the maxim of “justice, equity and good conscience.” Any number
of illustrations of this process can be found in court decisions. In Lopez v. Muddhu
Mohan Thakur, English law was applied lo a fact situation where land had been
submerged mid partially washed away by the Ganges but then later the water receded
and land re-formed on the original site. It was held that the land regained belonged
to the owner. The principle, the Privy Council- said, was not merely of English law
but was founded in universal law and justice. Similarly, as a 'principle of natural
equity, which must be universally applicable,' the Privy Council applied the rule that
where one man allows another to hold himself out as I he owner of an estate, and a
third person purchases it for value from the apparent owner in the belief that he is
the real owner, the man who SO allows the other lo hold himself out shall mil he
permitted to recover upon his secret title unless he can show that either the buyer
had notice of the real title or that there existed circumstances which ought to have
put him on an inquiry as to the title of the seller.” 26
Collector of Masulipatam v. Cavaly Vencata27-
Collector of Masulipatam v. Cavaly Vencata is an interesting case where a principle
of English law was applied in preference to the Hindu law. On the death of a
zamindar his widow took a widow's estate in the zamindari. She died and there were
no heirs of her husband to inherit the zainindari. The zamindar was a brahmin. It
was argued that according to the Hindu law, properly of a brahmin never escheated
to the King. The Privy Council held that this question could not be determined
wholly and merely by the Hindu law. On the death of a Hindu, his heirs would be
ascertained by the Hindu law. But the Crown had a general right to take by escheat
the land of a Hindu subject dying without heirs even though he was a brahmin.
From the above discussion, it would he wrong, however, to gather the impression that
each l sundry principle of the English law was made applicable to India in the name
of justice. equity and good conscience without any judicial discrimination and
selection, ft was not so. There was judicial selectivity in applying the principles of
English law in the mofussil. The touchstone to apply a principle of English law was
whether it was suitable to the Indian conditions. The courts did conclude in quite a
few cases that many principles of English law were not to conducive or adaptable to
India, and so refused to apply them. A few illustrations will exemplify the point.
26 Ram Coomar v. MacQueen. 1872 I.A. Suppl. 40.27 8 M.I.A. 500
10
It would be wrong to gather the impression that each principle of English law was
made applicable in India in the name of justice, equity and good conscience. There
was a judicial selectivity in applying the laws. Some cases which throw light on this
are:
Tweddle v. Atkinson28- Barring the third party to contract from suing was
not applied in India.
The English rule laid down in Tweddle v. Atkinson, barring a third party to
Contract from suing was not applied in India on the ground that the English rule was
based on the special writ procedure relating to assumpsit.” 29
Khwaja Muhammad Khan v. Hussaini Begum30
The Privy Council ruled so in Khwaja Muhammad Khan v. Husaini Begum: In
this case, an agreement was entered into between the plaintiff father and the
defendant, plaintiffs father-in-law, in which he agreed to give Rs.500/- p.m. to her for
her marriage with his son. The plaintiff was minor at the time. She was held entitled
to enforce her claim although she was not herself a party to the contract. The Privy
Council observed that “in India, and among communities circumstanced as the
Mohammendans, among whom marriages are contracted for minors by parents and
guardians, it might occasion serious injustice if the common law doctrine was applied
to agreements and arrangements entered into in connection with such contracts.”
Sheo Ratan Singh v. Karan Singh31
The courts also refused to apply the rule of English law that a release by a
decree-holder of one of the joint debtors from liability would have the effect of
releasing the other debtor as well. The doctrine was held to be artificial and not
consonant with justice, equity and good conscience Similarly, the rule of English law
which prohibited an action for damages for oral defamation unless special damage
was alleged, was not adopted in the mofussil as the court held that it was founded
on no reasonable basis. It was held that a married woman could maintain an action
for damages for slander with regard to her chastity without proof of special damage.32
28 8 M.I.A. 50029 (1861) I.B. & S. 39330 Debnarain Dutt v. Chunnilal, A.I.R. 1914 Cal. 12931 37 I.A. 15232 Parvati v. Mannar, I.L.R. 8 Mad 175 (1884)
11
In Sheo Ratan Singh v. Koran Singh, the Allahabad High Court refused to apply the
english law that there can be no contribution between joint tort-feasors on the ground
that it was inequitable.
Norendra Nath Sircar v. Kamal Basini33.
In Norendra Nath Sircar v. Kama Basini, the Privy Council cautioned against
using English cases to interpret wills of people of India; “To search and sift the
heaps of cases on wills which encumber our English law reports, in order to
understand and interpret wills of people speaking a different tongue, trained in
different habits of thought and brought up under different conditions of life, seems
almost absurd.” In another case, the Privy Council declared% “The principles of
English feudal law are clearly inapplicable to a Hindu zamindar.”34 In Srinath Roy v.
Dinabandhu Sen,35 the Privy Council refused to apply the English rule regarding
fishing rights to Bengal because of differences in physical, social and historical rights.
An important point to note is that in India, unlike England, no separation was
ever maintained between courts administering law or equity. In India, law and equity
were treated as a part and parcel of one and the same system of law. In the
mofussil. Under the rubric of “justice, equity, and good conscience”, the courts
applied both, English Common law and English equitable doctrines, under the over-all
condition of suitability. Thus, the courts combining both law and equity jurisdiction
brought about a fusion between the two much before the same could be achieved in
England.
At times arose a tussle between, legal and equitable principles creating a lot of
confusion in the law relating to property. In 1858 the Sardar Adalat started
applying the principle of equity of redemption. Cases discussed related to
this issue are:
Pattabhramier v. Venkatrao Naicken36
At times, there arose a tussle between, legal and equitable principles creating a lot of
confusion in the law relating to property. One example may be taken here. Till the
year 1858, the Madras Sadar Adalat followed the rule that a mortgage came to an
33 23 I.A. 18.34 Ronee Sonet Kowar v. Mirza Himmat Bahadur35 23 I.A. 1836 13 M.I.A. 560
12
end in accordance with the intention of the parties and that in India there was no
principle analogous to the English equitable doctrine of equity of redemption. In
1858, the current of decisions changed suddenly and the Sadar Adalat started applying
the principle of equity of redemption. The same thing happened in Bombay from
1864 onwards.37 In Pattabhiramier v. Vencatarow Naicken, the Privy Council frowned
on this change in judicial opinion in India and refused to countenance the SAME AND
to apply the doctrine of equity of redemption in Madras on the ground that it had
never been applied by the courts, and that the ancient Hindu law did not recognise
any such rule, Said the Privy Council “Such a doctrine was unknown lo the ancient
law of India; and if it could have been introduced by the decisions of the courts of
the East India Company, their .Lordships can find no such course of decision. In
fact, the weight of authority seems to be the other way.” Hut some observations by
the Privy Council led the courts in India lo believe that the Privy Council ruling was
not obligatory on them and hence they continued to apply the principle OF equity of
redemption.38
Thumbuswamy Moodelly v. Mahmed Hossain Rowthen39
The matter came again before the Privy Council in Thumbusawmy Moodelly v,
Mahomed Hossain Rowthen. The Privy Council reaffirming the Pattabhiramier ruling
again criticized this change in judicial opinion saying that the judges took upon
themselves, in contravention of the law of India as declared and enforced by the
decisions of their predecessors, to apply for the first time the principle of equity of
redemption. The Privy Council characterized this as “assumption by the courts of the
functions of the Legislature. The Privy Council observed further “. . this action of
the courts . . is open to grave objection; not only because in so altering the existing
law they usurped the function of the Legislature, but also because the change, as
effected, involved very mischievous consequense.” Because, under the rule of equity of
redemption, a mortgagor could claim to redeem property even after 50 years of the
expiry of the agreed date of redemption. But even though the privy council regarded
the Pattabhiraimer ruling as “based upon sound principles,” the new course of
decisions in Madras and Bombay “to have been, in its origin, radically, unsound as
37 In, Bombay, the principle of equity of redemption came to be applied in Ramji v. Chiutu. 1 Bom H.C.R. 99 (1864)38The position was explained thus by the Madras High Court in Ramaswami Sastrigal v. Samiyappanayaban, I.L.R. 4 Mad. 179, 188 39 2 I.A. 241
13
many titles in land had come into existence on the basis of the new position, the
privy council reluctantly accepted the new law with respect lo the pre-1858
securities. But, observed the privy council”.. this state of the law is eminently
unsatisfactory, and one which seems to call for the interposition of the Legislature.
The privy council suggested enactment of a jaw to clarify the respective rights of the
mortogagors and mortogagees.40
Cases in relation to applicability of English law of maintenance and champerty:
Till 1849
Ram Gholan Singh v. Keerat Singh(1825)
Bahoo Brij Narain Singh v. Raja Tek Narain Singh(1836)
It has been seen earlier that the English law of maintenance and champerty
was not made applicable in the Presidency Towns. The same position was reached
in the mofussil as well, but after some confusion of thought, and several shifts in
judicial opinion. To begin with, for long, the Sadar Diwani Adalat continued to
declare contracts invalid on the ground of maintenance and champerty. An agreement
favouring champerty was held illegal and unenforceable. This was in accord with the
English law. This was the position till 1849. For example, in 1825, in Ram Gholam
Singh v. Keerui Singh,41 .a person Filed a suit in the lower courts as a pauper. On
losing it, he filed an appeal in the sadar Diwani Adalat on the paper of prescribed
value as he had obtained funds to carry on appeal condition that he would give one-
half of the property to the lender if he won. The Adalat refused to hear the appeal.
On searching its records, the Adalat could find no precedent to warrent such a
proceeding. The Adalat characterised the agreement as favouring strongly of gambling
as well its unfair for by advancing Rs. 2000, the lender could obtain an estate valued
at Rs. 2 to 3 lakes. The Sadar Adalat therefore sent back the papers to the lower
court with instruction to warn the appellant that the were cancelled, and the requisite
condition for the admission of a regular appeal performed in three months. The Sadar
Adalat persisted in this view for some time more for it again refused to enforce a
similar agreement was entitled in right of inheritance to a moiety of some talookas.
He needed funds to establish his claim. The plaintiff advanced funds to him under an
40 In the Bengal Presidency, Regulations 1 of 1798 and XVII of 1806 had barred enforcement of the conditions of safe until proceedings had been takenin the manner prescribed by the foreclosure.41 Ind. Dec. (O.S.). VII. 12
14
agreement in pursuance of which the defendant hound himself that on succeeding in
the case he would transfer a two anna share of the property to the plaintiff. The
plaintiff sued the defendant on the agreement to get the property stipulated. The sadar
Adalat rejected the plaintiff’s claim on two ground (1) ancestral property could not he
alienated without the consent of the heirs according to the Hindu law as there was
no absolute necessity for the alienation, as the father, if actually unable to pay the
expenses of a low suit, might have sued as a pauper. Further, (2) the transaction
itself was illegal in character, with respect to the principal recognized in case of Ram
Gholam Singh v. Keerut singh and other recorded precedents of the court. These
former Judgment had ruled that such proceeding were a species of gambling and
could not be sanctioned by a court of justice. and this one consideration alone was
sufficient for dismissal of the claim.
Musstt. Zuhooroonnissa Khanum v. Raseck Lal Mitter42
In 1840, in Musstt. Zuhooroonnissa Khanum v. Raseck lal Mitter, the Sadar
Diwani Adalat, Calcutta, again declared an agreement invalid on the ground of
champerty. An Agreement was executed between the plaintiff and the defendant under
which the defendant advanced money to the plaintiff to file a suit on the condition
that She would transfer to him 14/16th moiety of the property which was the subject
of litigation. In the Sadar Diwani Adalat, the agreement was held illegal as the
transaction was held to be of a gambling nature. The court applied the principle laid
down in the earlier cases mentioned above.
David Andrews v. Muharajah Sreesh Chander Rai43-
Again in 1849, the Sadar Diwani Adalat at Calcutta in Davide Andrews v. Muharajah
Sreesh Chunder Raee, reiterated its view and held that any condition in a deed of
engagement which falls within the definition of chainpertv cannot be enforced as,
according to the precedents of the Adalat, champerty was illegal.
After 1849
In the matter of the petition of Pearemohan Ganguly44
The view illegalising an agreement on the ground of champerty which the Sadar
Adalat held was in accord with the English law, although, in the cases mentioned
42 Ind. Dec. (O.S.)VII. 94843 Ind. Dec. (O.S.) X. 90244 Ind Dee. (O.S.) XIII. 549
15
above, no English case had been cited and the ground advanced was that such
agreements favoured strongly of gambling. This view was inconsistent with that held
by the Supreme Courts at the time as has at ready been stated earlter. But then the
current of judicial opinion underwent a marked change. In 1852, the Sadar Adalat
held that champerty was not per se illegal. There was no law in India, said one of
the Judges, “which lays it down to be illegal for one party to receive and another to
give funds for the purpose of carrying on a suit on promise of certain consid eration
in the form of a share of the property sued for, if decreed to the plaintiffs”. In
1853, In the matter of the Petition of Pearemohan Gungolee, the plaintiff brought a
suit to annul a contract with the defendant in which the defendant had agreed to
share some lands with the plaintiff if the defendant lent him money to prosecute his
claim in the court. But the Adalat refused to help the plaintiff saying that no suit
would lie on his part to set aside a contract voluntarily entered into by the parties
without any allegation of fraud by the defendant. Thus, the view came to be held
that the statute of champerty was not applicable in the mofussil.
Chedambara Chetty v. Ranga Krishna Muttu Naikar45
Ultimately, in Chedambara Chetty v. Ranga Krishna Muttu Naickar, the Privy
Council clearly ruled that the law of champerty or maintenance was not the same in
India as in England. The statute of champerty being part of the statute law of
England, had no effect in the mofussil of India and that the Indian courts did admit
the validity of many transactions of that nature, which would not be recognised or
treated as valid by the English courts. The view thus came to be held that the statute
of champerty was not applicable in the mofussil. On this point, at long last the law
in the Presidency Towns was brought at par with the law in the mofussil.” The Privy
Council observed.
It would be most undesirable that a difference should exist between the law of
the towns and the mofussil on this point. Raving regard to She frequent dealings
between dwellers in the towns and those in the mofussil, and between native persons
under different laws, it is evident that difficult questions would constantly arise as to
which law should govern the ease.
45 1 I.A. 141
16
When the question arose shoud the courts still apply the Common law rule in India
or apply the statutory rule itself, often the courts opted the latter course.
Secretary of State v. Rukminibai46- Any Court in India which seeks to
apply the common law cannot afford to ignore the extent to which
common law stands abrigated.
Under the maxim 'justice, equity and good conscience,' to ascertain the
applicable rule of law to a case, the courts looked normally to the English Common
law, but what were the courts to do when a common law principle was abrogated in
England by a statute enacted by the British Parliament. Should the courts still apply
the Common-law rule in India or refuse to apply the same and apply the statutory
rule instead? Often the courts adopted the latter course. This can be illustrated by
citing a few cases. In Secretary of State v. Rukhminibai, the question was whether
the doctrine of common employment was applicable in India. The doctrine was
enunciated in England in 1837 and became firmly established by 1860. The doctrine
was severely criticized and was largely abrogated in England by the Employers
Liability Act, 1880. After taking these developments into consideration, the Nagpur
High Court ruled thai the doctrine was not applicable in India. Niyogi, AJC, pointed
out that the rule of common employment was felt to be unfair and inequitable in
some of its aspects and it was to correct this unjust operation that the statute was
enacted. He thus stated “.. any court in India which takes recourse to the common
law of England and seeks to apply its principles to India cannot afford to ignore the
extent to which the common law stands abrogated by statute.” Stone, C.J., pointed
out that the law of England was composed of both, Common law and statutory law,
and that:
“...in considering what is today consonant to justice, equity and good
conscience one should regard the law as it is in England to-day and not the law
that was l)art of the law of England yesterday. One cannot take the Common law of
England divorced from the statute law of England and argue that the former is in
accordance with justice, equity and good conscience and that the latter which has
modified it is to be ignored lo-day in England, so far as this case is concerned.”
46 AIR 1937 Nag. 354
17
He further explained :
“One seeks guidance when determining what is justice, equity and good
conscience not by looking at a particular branch of the law in England, but by
looking al what is the law of England at present in force, and even then one is not
compelled to apply that law unless one is of the opinion that bearing in mind the
circumstances as existing in India to-day, that law can according to justice, equity
and good conscience be here applied.”
7. CRITICISM
On the whole the doctrine had a profound influence in developing the Indian
Jurisprudence. The process of reception of English law through the agency of the
judiciary hail both its strong as well as weak points. Principles of English law were
applied with necessary changes to the Indian conditions. In Torts as no Swadeshi law of torts
existed on which improvement could be made the entire English law of torts was applied in
India.47
There were in 1833, a number of Chief Courts in India, subject to the
legislative power of the local Governments in the Presidencies, some established by
the royal charters, and others deriving their authority from the Company. Each of
these courts was'-independent of the other and could thus put its own gloss on the
law. A uniform interpretation of the law could not always be expected from them.
Under such a scheme of things, it was inevitable that there would arise a number of
decisions- diametrically opposed to each other, but all of equal authority, thus making
the law bulky, uncertain, contradictory and inconsistent. The remedy out of the
morass in the legal system was codification.
7.1 ADVANTAGES AND DISADVANTAGES
47 Rama Jois, Legal and Constitutional History of India (1984). Vol II p 44
18
The advantages are as follows:
1. It helped in development of various branches of law not covered by
either Hindu or Muslim law,
2. In the absence of sound provisions of the personal laws it served as a
valuable source of sound law,
3. It removed uncertainty in law,
4. Distinction between mofussil law and presidency towns law was
removed.
Its advantages lay in the fact that it helped in the development of a number of
different branches of law in India for which perhaps there was no precedent in the
indigenous law. Many new patterns of human relationship were developing in the
country under the impact of new economic and social forces. No guidance was to be
hail from the personal laws either of the Hindus or the Muslims or from the customs
prevailing In the country; or, even if there were indigenous rules, they were archaic
and primitive and not suitable to the emerging social structure and conditions and,
therefore, in this context, the English law did provide a valuable source of legal
principles, The fact that the English law was to be the reservoir to draw upon
somewhat controlled the otherwise extremely broad discretion conferred upon the
judges by the maxim of 'justice, equity and good conscience,' and instead of
borrowing legal principles at random from anywhere, and from any legal system, the
judges were required to look to one source only and this introduced some element of
certainty in an otherwise uncertain and fund legal system. Also, the possibility of
dichotomy of law between the mofussil and the Presidency Towns was very much
reduced as English law was being used as the common source of law by all the
courts. Nevertheless, some differences did come into existence in the law between the
Presidency Towns and the mofussil because of the difference of approach of the
concerned courts. For example, the rule of damdupat was applied to the Hindus in
the Presidency Towns, but not in the mofussil. In one case, the High Court thought
19
it anomalous that there should be one rule in Calcutta and another outside Calcutta in
the matter of interest chargeable by the Hindus, but the Court could not help the
situation as it was bound to apply the Hindu and Muslim laws of contract while
there was no such obligation on the Mofussil Adalats. In one case, the Calcutta
High Court asserted that what was applicable in the mofussil as a rule of justice and
equity need not be applicable in Calcutta us a matter of course. The point involved
in the case was that a Hindu widow sold some property; the purchaser built a house
on it. It was held that the reversionary were entitled to get back the property sold by
the widow. The question however was whether the purchaser could claim
compensation for the house, or could he remove the materials. In the mofussil, on
the basis of justice and good conscience, this right had been conceded to the
purchaser. But the High Court of Calcutta thought that such a rule would be very
inconvenient in Calcutta and so it ruled that it was not a case of succession but
accession to property and was thus governed not by the Hindu Law but by the
English Law. As such, the purchaser was neither entitled to compensation nor to
remove the materials. Thus, legal differences between the mofussil and the Presidency
Towns were many.48
The disadvantages are as follows:
1. at times the rules applied by English Judges were not consistent with customs,
habits and circumstances and were technical in nature which generated
injustice,
2. This resulted in judicial legislation by imposing rules foreign to this country.
The drawbacks and weaknesses of the process of receiving English law
through judicial decisions were many. As the scheme of law envisaged, there was to
be a selective and discriminating adoption of the rules of English law by the courts.
That is what was envisaged for the Presidency Towns under the requirement that only
such English law as was extant in 1726 was to apply as suited the Indian conditions.
And the same judicial selectivity was inherent in the maxim 'justice, equity and good
conscience1, as already discussed, with this difference that in the mofussil, the courts
48 Prof. M.P. Jain., Outlines of Indian Legal and Constitutional History, Sixth Edition, 2010, p. 409
20
were not limited to English law as extant in England in 1726. Thus, it was not to be
an uncritical or automatic application of any principle of the English law into India.
The courts had often to undergo great pains in deciding whether a particular rule of
English law would be applicable in India or not It has been seen already that quite a
few principles of this law were refused to be applied both in the Presidency Towns
and the-mofussil on the ground of their unsuitability to local conditions. But, it was
not always that the courts in India brought to bear upon the question a discriminating
attitude towards the adoption of English law in India. The result of this was that not
only such rules of English law as were suitable to India, but even a few rules of a
technical nature, or those which were the product of peculiar conditions in England,
were made applicable. Thus, some rules of English law which were not consistent
with the genius, customs, traditions, habits and institutions of the Indians found their
way into the country. Judicial selectivity of the principles of law to be applied was
not always careful, judicious and discriminating. It was this aspect of the matter on
which Maine commented in the following words: “In British India judicial legislation
is. besides, in the long run, legislation by foreigners, who are under the thraldom of
precedents and analogies belonging to a foreign law, developed thousands of miles
away, under a different climate, and for a different civilization.” In course of time, it
was found to be extremely necessary and desirable that introduction of the technical
rules of English law be checked in some way and for this purpose codification of the
law was thought to be the most effective expedient. In a dispatch to the Government
of India, the Secretary of State for India stated : “The only way of checking this
process of borrowing English rules from the recognized English authorities is by
substituting for those rules a system of codified law, adjusted to the best Native
customs and to the ascertained interest of the country.” There were vast gaps and in-
terspaces in the substantive law subjects on which no rules existed and, therefore, as
emphasized by Rankin : “The urgency of the work lay partly in the need to prevent
Indian courts from filling up gaps in the law by borrowing haphazard from England
rules which had grown up in the special context of English history.”49
A system of law which depends heavily for its foundation, development and
exposition on case law is bound to be haphazard, uncertain and incoherent and can
scarcely be satisfactory. The reasons are obvious. A large number of points will
49 Minute of Sir H.S. Maine, dtd, 17th July 1879.
21
necessarily be left unsettled under such a system till the highest tribunal has had an
opportunity to adjudicate on them. Further, the judicial pronouncements on similar
points are not always uniform or coherent; quite often, they are likely to differ
because, the judges being human are influenced by their own notions, whims and
fancies. The evils of divergence of judicial views have a tendency to increase rather
than diminish. Views in the same court may undergo a change in course of time
about a legal proposition, as for example, in the area of maintenance and champerty.
As the conflicting precedents go on accumulating, the task of ascertaining the law
applicable to a particular case becomes relatively more and more difficult. And, when
the right to appeal is allowed to two or more courts, the uncertainty of law becomes
overwhelming and necessarily entails great embarrassment to the course of proper
administration of justice, because when the highest court in. India had made a
pronouncement on a point of law, it did not always set the doubt at rest. There were
a number of occasions when the Privy Council differed from the High Courts on the
applicability or non-applicability to India of a particular rule of English law. All this
involved extra expense and delay in disposal of cases, Sir Henry Maine said of
judicial legislation that “it is haphazard, inordinately dilatory, and inordinately
expensive, the cost of it falling almost exclusively on the litigants.”50
8. JUSTICE, EQUITY AND GOOD CONSCIENCE AND PERSONS
OTHER THAN HINDUS AND MOHAMMEDANS
Codification was equally necessary in the case of persons other than Hindus and
Mohammedans. In the case of Indian Christians, Anglo-Indians, Armenians, Parsis,
Portuguese and Jews, etc., residing in the Presidency towns, the Crown’s courts generally
applied English Law; but in case of those residing in the Mofussil, there was no lex loci; the
absence of some specific law created a lot of difficulty in the determination of their cases.
As has been observed by Sir Erskine Perry51, Parsis, Portuguese, Anglo-Indians and Jews in
Bombay Province were persons “ as to whom there is a somewhat discreditable state of doubt
as to what the law is.”
The courts in India decided cases of other classes of persons on the basis of same doctrine.
Durand v. Boilard52- the succession was governed by French law
50 Prof. M.P. Jain., Outlines of Indian Legal and Constitutional History, Sixth Edition, 2010, p. 409, 41051 He was Chief Justice of Bombay Supreme Court52 5 Ben. Sud Dew. Rep., 176.
22
Joanna Fernandez v. 53Domigo de Silva- Portugese law
Beglar v. Dishkoon54- Armenian law
Barlow v. Orde55- Applied doctrine of justice, equity and good conscience
Abraham v. Abraham56- Applied doctrine of justice, equity and good conscience
9.PRESENT APPLICATION OF THE DOCTRINE
The importance of it is much less today as compared to what it was before when bulk of
Indian laws were not codified. The broader concept of Natural justice which has now become
the hallmark of Indian law like every other country is the direct manifestation of the doctrine
of ‘justice, equity and good conscience. For the doctrine does not now only mean the
English law rather it is the literal meaning of the words used in the maxim which is
important. That is, JUSTICE, EQUITY AND GOOD CONSCIENCE. The frequent use of
terms such as ‘good faith’, ‘public policy’, ‘fairness’ et cetra in statutes and by the judges in
their judgments is based on principles of equity. The approach of the Judiciary in Maneka
Gandhi ‘s case epitomizes the application of the Doctrine. The Supreme Court in this case
held while interpreting the word ‘law’ used in Article 21 of the Constitution of India that law
must be just, fair and reasonable.
10. CONCLUSION
Well designed legislation is the only possible remedy against quibbles and
chicanery. All the evils which are dreaded., from legal practitioners can be averted in
ibis manner and in no other. To try lo avert them by leaving the law unidentified,
and by entrusting judges with A wide discretion, is to try to put out the lire by
pouring oil upon it. Leave a judge with no rule, or with one of those leaden rules
which can be twisted in any direction, and you at once open to the advocate every
sort of topic by which the discretion of the judge can be guided. Snlll the lawyers'
mouth and you fall into the evils of arbitrary government.
The unsatisfactory legal system was suffered to exist for long. It could be
improved only by the legislature but it was singularly inactive so far as the question 53 5 Ben. Sud Dew. Rep., 217.54 Mar. Dig., I 52255 13 M.I.A. 27756 9 M.I.A. 240
23
of substantive law was concerned. But then a time came when the need to improve
the legal system in India was recognised and the process of codification was taken in
hand. The process of codification gained momentum after 1853, though its beginning
are traceable to 1833, Codification involves the enunciation of the law in simple,
certain and definite language. To fully appreciate the value of the process of
codification and the benefits conferred by it on the country, it is necessary to take
note of the way the law developed in the country during 1772 to 1833 and its
condition, on the eve of the Charter Act of 1833 which led to the initiation of the
process of codification.
The maxim exerted a deep and potent impact on the progress, development and
content of the Indian law in many branches. The decisions of the Indian Courts proved to be a
prolific source of incorporation of principles of English law into the Indian jurisprudence.
This process was nothing short of judicial legislation. The fact remains that one law for the
whole of British India made the march of the country towards independence quicker and
systematic.57
BIBLIOGRAPHYThe books referred to are:
Jain. M.P. Prof., Outlines of Indian Legal and Constitutional History,
Sixth Edition, 2010, LexisNexis Butterworths Wadhwa Nagpur.
57 Kulshreshtha, V.D., Landmarks in Indian Legal and Constitutional History, 8th edn, p. 295
24
Mittal. J.K., Indian Legal and Constitutional History, Fourteenth
Edition, 2005, Alahabad Law Agency.
Singh. M.P., Outlines of Indian Legal and Constitutional History,
Eighth Edition, 2008, Universal Law Publishing Co.
Kulshreshtha. V.D., Landmarks in Indian Legal and Constitutional
History, Eighth Edition, 2006, Eastern Book Company.
The websites referred to are:
en.wikipedia.org/wiki/Madras_High_Court( 04-10-2011)
www.legalserviceindia.com/articles/torts_s.htm(29-10-2011)
25