Category: Law

The authority of judicial precedent, observes Salmond, has always been a distinguishing charac­teristic of English law and the great body of the common or unwritten law is almost entirely the product of decided cases enshrined in various law reports. Image Source: britishconstitutiongroup.comA judicial precedent in England has authority of law it is not merely evidence of law but is its source and the courts must follow it when established. Neither Roman law nor any other modern system of law allows such importance or authority to precedent. ADVERTISEMENTS: Professor Kecton observes that the following of precedent is easier in England than in many other countries, firstly, because the system of justice is centralized and there is a comparatively small number of reported cases; secondly, because there is no written con­stitution which…

Precedent is common parlance means anything said or done which furnishes a rule for subsequent conduct. According’ to Osborn, precedent is a judgment or decision of a court of law cited as an authority for deciding, a similar set of facts. It is a case which serves as an authority for the legal principle embodied in its decisions. Image Source: eclnotes.laws.londoninternational.ac.ukIt is a fundamental principle of judicial practice of Anglo-Americium legal system that the decision of a court should have binding force on subsequent judicial decisions. It is, however, only the ratio decided (reason for decision) that has the force of saw; obiter dicta (statements of law which go beyond the requirements of the case) “do not even bind the lips that utter them”. ADVERTISEMENTS: As Salmond observes, the concrete…

(a) Requisites of a valid gift:According to Mitakshara a gift is defined as:“Gift consists in the relinquishment (with­out consideration) of one’s own right in property and the creation of the right of another, and the creation of another man’s right is complete on that other’s acceptance of the gifts, but not other Section 122 of the Transfer of Property Act defines gift as “Gift is the transfer of certain existing movable and immov­able property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and ac­cepted by or on behalf of donee.” Image Source: upload.wikimedia.org ADVERTISEMENTS: A Hindu in all the schools of Hindu Law may dispose of by gift his separate property subject to claims and maintenance of those whom he is legally…

Prasanna Kumar Tagore died leaving consider­able properties. He left the only son Ganendra Mohan Tagore, the plaintiff. Image Source: upload.wikimedia.org ADVERTISEMENTS: After making provisions for the maintenance of his son, he proceeded to vest the whole property both ancestral and self ac­quired in trustees and bequeathed the beneficial interest in the following manner:1. Jitendra Mohan for life.2. Jitendra’s eldest son for life, born during the testator’s life-time.At the death of the testator, Jitendra had no sons. Surendra was alive. ADVERTISEMENTS: The main objections of the plaintiff were as follows:(1) It was invalid as to the ancestral estate.(2) The grant of the mere life-estate is illegal in Hindu Law.(3) The grant to Jitendra’s unborn son is invalid. ADVERTISEMENTS: (4) Every other grant after this invalid.(5) The creation of the trust is…

General rules of succession in the case of males:Sections 8 to 13 of the Act mention the general rules of succession in the case of males. It will be worthwhile to reproduce them here to comprehend the subject properly. Image Source: yourpocketmoney.com ADVERTISEMENTS: 1. The property of a male Hindu dying intestate shall de­volve:(a) First, upon the heirs, being the relatives specified in class I of the Schedule;(b) Secondly if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the schedule;(c) Thirdly, if there is no heir of any of the classes, then upon the agents of the deceased; and ADVERTISEMENTS: (d) lastly, if there is no agnate, upon the cognantes of the deceased. [Sec. 8].2. Order of succession among…

The word “fiqh” literally means “intelligence”. In Islam, fiqh is the name given to the whole science of jurisprudence because it implies the exercise of intelligence in deciding a point of law in the absence of a binding command from the Koran. A faqih is thus a person skilled in law, that is, a jurist, Islam believes that there is a difference between knowledge and fiqh, because the latter requires both intelligence and independent judgment.A man may be learned, but to be a faqih, he must possess the quality of independent judgment, that is, the capacity to differentiate between the “correct” or the binding rule and of law and the “weak” or the unsupported opinions of classical authors.When Islamic lawyers define the term “fiqh”, they normally stress the moral aspect…

Muslim law prescribes certain formalities for the claim of pre-emption. No person is entitled to the right of pre-emption unless he observes these formalities strictly and at proper time. The right of pre-emption is a weak right because its operation hits directly against the very concept of ownership and freedom of contract. In Mohd. Noor vs. Mohd. Ibrahim, the Supreme Court held that availability of this weak or archaic right has to be construed strictly. Image Source: easydivorcehouston.comMuslim law of pre-emption is a law of technicalities and the availability of the right depends upon the full and complete observance of formalities. If the formalities are in any way incomplete or defective, the right of pre-emption is not available to the pre-emptor. The formalities for the claim of this right consist…

Guardianship of the minor’s person means an overall supervision of the minor’s personality. It means care and welfare of the child including the liability to maintain it. It is more than simply the custody of the child upto a certain age. Under Muslim law, ‘guardianship of the minor’s person’ is called Wilayat-e-nafs and the ‘custody of the minor’ is called Hizanat.They are sometimes taken to mean the same thing. But, under Muslim law, these two aspects of the guardianship are different and are governed by distinct rules. The guardianship of a child’s person means overall supervision of the child during its minority. Father (or his executor) or in his absence, the paternal grandfather, being the natural guardian, are in charge of the minor’s person.On the other hand ‘custody of the…

According to section 4(b) of the Hindu Minority and Guardi­anship Act, 1956 a guardian means a person having the care of the person of a minor or of his property or of both his person and property and includes: Image Source: washingtonbangla.com(a) A natural guardian, ADVERTISEMENTS: (b) A guardian appointed by the will of the minor’s father or mother,(c) A guardian appointed or declared by a court, and(d) A person empowered to act as such by or under any enact­ment relating to any court to wards.Natural Guardians of minor: ADVERTISEMENTS: As provided for in section 6 of the Act, the following are entitled to be the-natural guardians of a Hindu minor in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her…