FAQ's

Nikitha, Author at B&B Associates LLP
Mutatis Mutandis

Literal Meaning

With things changed that should be changed

Origin

Latin

Explanation

The maxim refers to the necessary changes having been made or with consideration of the respective differences. In simple terms, the maxim refers to having substituted new terms or relates to due alterations to be made in similar statements. The phrase refers to matters that are generally the same but can be altered according to need. Changes in similar statements will be regarding points in detail such as the name, title, and address of the parties.

Case Laws

In Corporation of Calcutta Vs Sirajuddin & Ors., the Calcutta High Court held that “When a law directs that a provision made for a certain type of case shall apply mutatis mutandis in another type of case, it means that it shall apply with such changes as may be necessary, but not that even if no change be necessary, some change shall nevertheless be made.”

In Vasudev Anant Kulkarni Vs. Executive Engineer, the Supreme Court of India held that “The works ‘mutatis mutandis’ mean with the necessary changes being made. In other words, some changes must be made for mutatis mutandis does not mean ‘with such changes’ if any, as may be necessary but ‘with the necessary changes being made’.

In Ashok Service Center & Ors. Vs State of Orissa, the meaning of the expression ‘mutatis mutandis’ was discussed and concluded that extension of an earlier Act mutatis mutandis to a later Act brings in the idea of adaptation, but so far only as it is necessary for the purpose, making a change without altering the essential nature of the thing changed, subject of course to express provisions made in the later Act.

Assignatus Utitur Jure Auctoris

Literal Meaning

An assignee is clothed with the rights of his assignor

Origin

Latin

Explanation

The legal principle implies that the assignor has all the privileges of the individual they serve, but the interest of the delegated subject is restricted to an amount equivalent to or less than the worth of the subject matter. In other words, one cannot assign, or have the same rights of their principal in the case of an assignment, if the purported assignment of property is greater than the value of what it is worth. A person cannot assign what they do not have. Once the rights have been assigned a person becomes entitled to the rights and to the actions at law by which that right may be enforced. It describes an assignor being conferred the rights of his principal.

Case Laws

The Bombay High Court in Taparia Overseas (P) Ltd. And Anr. Vs. Union of India (Uoi) And Ors., while discussing the above maxim held that “This maxim applies generally to all property, real and personal, and refers to assigns by the act of parties, as where the assignment is by deed; and to assigns by operation of law, as in the case of an executor. All rights of the assignor in the thing assigned must pass from him to the assignee by virtue of the assignment, for duo non possunt in solido unam rem possidere. It should be observed, also that the thing assigned takes with it all the liabilities attached to it in the hands of the assignor at the time of the assignment, except in cases for the encouragement of commerce, such as sales in the market overt, negotiation of promissory notes, bills of exchange, etc., and, in the case of inquiries, where the assignee is a bona fide purchaser for value without notice.”

Similarly, the Bombay High Court in Oriental Metal Pressing Works vs. Bhaskar Kashinath Thakoor held that “An assignee is clothed only with the right of his principal. Now, these maxims pithily express one of the leading rules as to titles and tersely states the well-known general rule as to titles and tersely states the well-known general rule that no man can transfer a greater right or interest in the property than he himself possesses, and if he has none, he can give no title whatever to the property which is the subject-matter of the transaction.”

Accessorium Principale Sequitur

Literal Meaning

The accessory follows the principal

Origin

Latin

Explanation

The maxim explains that an accessory thing does not lead but follows the principal thing to which it is accessory. The grant of a reversion will also include a rent incident thereto, so heirlooms follow the inheritance.

Case Laws

In Malik vs. Union of India and another, the court while referring to the above maxim, stated that when the principal right is lawfully extinguished, the alternative right, which is accessory to the principal right, cannot survive. The accessory right does not lead but follows its principal. Thus, when the obligation of the principal is extinguished by release or discharge, the obligation of the surety is also extinguished.

In Shaik Madhu vs. Shaik Sahar Ali, the court held that if the maxim, Accessorium non-ducit sed sequitur suum principale, upon which the doctrine of accession is based, is applicable to the original owner, there is no intelligible reason why it should not apply equally to the Receiver who holds possession for his ultimate benefit.

Contra Non Valentem Agere Nulla Currit Praescriptio

Literal Meaning

No prescription runs against a person who cannot act

Origin

Latin

Explanation

This maxim provides that if the person cannot act, the prescription does not run against him. Accordingly, if a person is a minor and cannot file a suit to protect his rights, the prescriptive period only commences at his attaining majority. It is a legal principle that the statute of limitations is not applicable, or a prescriptive period does not begin to run, against a plaintiff where any legal cause has prevented a court or its officer from acting on a plaintiff’s action or when some condition associated with the litigation process prevented the plaintiff from acting or when the defendant has prevented the plaintiff from acting. The same cannot be applicable if the plaintiff is ignorant of the injury caused by the defendant and his/her ignorance is not due to negligence, unreasonableness or a wilful act. Under Indian law, this is provided in the Limitation Act, 1963.

Case Laws

In Ganda Singh and Others vs. Ram Narain Singh, it was held that during the continuance of the mortgage, Gujjar Singh, the nearest heir of the mortgagor could neither use nor otherwise enjoy the land under mortgage. Even if, there has been dispossession of the mortgagees by a stranger, that would not have been treated as equivalent to an adverse possession as against Gujjar Singh who during the pendency of the mortgage, was merely entitle to bare equity of redemption. Gujjar Singh, in view of the terms of this mortgage can well rely on the above maxim meaning prescription does not run against a party who is unable to act.

In Gunderao and Another vs. Venkamma and Others, it was observed that a woman governed by Hindu Law can, although she has no right of succession to it, prescribe either for a limited or for an absolute estate. This does not take us very far in the case before us in which the real question for determination is where a woman who is governed by Hindu Law has entered on an estate as a qualified heir, can she subsequently prescribe by adverse possession an absolute title to it, Where a Hindu widow governed by Hindu Law has entered on the estate as qualified heir, she cannot subsequently prescribe by adverse possession an absolute title to it. Reliance was also placed on the maxim ‘contra non valentem agerenulla currit praescriptio’, i.e., prescription does not run against a man during the time when he is unable to act, i.e., to take immediate possession.

Pari Passu

Literal Meaning

With an equal step or on equal footing

Origin

Latin

Explanation

It is a principle which means all unsecured creditors in insolvency processes, such as administration, liquidation, and bankruptcy must share equally any available assets of the company or individual, or any proceeds from the sale of any of those assets, in proportion to the debts due to each creditor. It is one of the most fundamental principles of insolvency law, although it can be varied by agreement. It is a financing arrangement that gives multiple lenders equal claim to the assets used to secure a loan. If the borrower is unable to fulfill the payment terms, the assets can be sold, and each lender receives an equal share of the proceeds at the same time. Pari-passu essentially means to treat all parties the same. This is different than most agreements involving more than one lender, which typically establish a repayment hierarchy where certain lenders get top priority in terms of pay-out timing and amounts.

Illustration

Pari Passu is the way unsecured creditors are treated in a bankruptcy. All the unsecured creditors get paid at the same time and the same fractional rate of the debt they were owed.

Case Laws

In International Coach Builders Ltd vs. Karnataka State Financial Corpn, the Supreme Court observed that ‘Pari Passu’ means “with equal steps, equally, without preference”. The rights of the pari passu charge holders would run equally, temporally, and potently, with the rights of the secured creditors. The Official Liquidator, as the representative of the workmen, to enforce such pari passu charge would have the right of representing the workmen equally with the rights of the secured creditors.

In Commissioner Of Income-Tax vs. Gold Mohore, Investment Co. Ltd., the Supreme court of India held that the correct method of determining the profit or loss on the sale of bonus shares in cases where bonus shares rank pari passu is to take the cost of the original shares and spread it overall the original as well as the bonus shares and to find out the average price of all the shares.

De Die In Diem

Literal Meaning

From day to day

Origin

Latin

Explanation

The term is used to refer to an action occurring from day to day or a continuing right of action. The maxim often refers to a type of pay schedule. A continuing cause of action is an action which arises from the repetition of acts or omissions of the same kind as that for which the action was brought. However, the concept of de die in diem cannot be applied in the branch of Criminal Law, which was explained by a full bench of the Bombay High Court in Emperor vs. Chotta Lal Amar Chand. It was held therein that a person cannot be charged with committing an offense de die in diem over a substantial period.

Case Laws

In Maya Rani Punj vs. Commissioner of Income Tax, the Supreme Court held that a continuing wrong or default giving rise to a liability de die in diem, that is, from day to day. The distinctive nature of a continuing wrong is that the law that is violated makes the wrongdoer continuously liable for the penalty. A wrong or default which is complete but whose effect may continue to be felt even after its completion is, however, not a continuing wrong or default.

In S. Tirupathi Rao vs. M. Lingamiah, the Telangana High Court held that “Though the Contempt of Courts Act, 1971 recognizes a distinction between the civil contempt and criminal contempt, the essence of both are to punish the contemnor. Therefore, the civil law concept of de die in diem cannot be applied to the failure of a contemnor to comply with an order requiring him to carry out a single act.”

Doli Incapax

Literal Meaning

Incapable of doing any harm

Origin

Latin

Explanation

The maxim refers to a presumption in law that a child is incapable of forming the criminal intent to commit an offense. It is a principle of jurisprudence which describes the criminal liability of children. In India, doli incapax finds its importance in Section 82 and 83 of the Indian Penal Code and in the Juvenile Justice Act. As per the maxim, in India, no child below the age of seven years can be prosecuted for commission of any crime, while for children between the age of eight to fourteen years, the prosecution has the burden of proof to prove the offense of the minor. In general, the doctrine reflects the concern that ‘using criminal penalties to punish a child who does not appreciate the wrongfulness of his or her actions lacks moral justification’. The objective behind the maxim involves:

  • A child who is below the age of seven years does not have sufficient mental capacity to understand the consequences of his action and hence if he commits a criminal act, he may lack the required intention to be prosecuted.
  • Also, to protect the children from the harshness of punishment that may be inflicted upon them at a very tender age by implementing strict criminal law.

Section 82 of the Indian Penal Code (IPC) is premised on this and provides absolute immunity from criminal legal responsibility to a child below seven years. The said section states that nothing is an offense which is done by a child aged below seven years. Thus, if a child of below seven years is being prosecuted, the same can be stopped by an application under Section 82 of the Indian Penal Code. It is based on the understanding that a child under the age of 7 does not have the intellectual capacity to consider the meaning and implications of his acts and thus lacks the potential to shape the mens rea or the purpose needed. Notably, such an era was not built on the theory of child development, but rather “simply an instrument of public policy,” “a functional rule of practice,” and is not focused on “the empirical reality.”

A child over the age of 10 but under the age of 14 is presumed to lack the capacity to be criminally responsible for his or her acts. The child is described as ‘doli incapax’ (incapable of crime) when their age falls short of ‘the age of discretion’. However, the presumption is rebuttable, meaning that, depending on the individual’s maturity and level of understanding of the ramifications of what they have done, a court may nonetheless determine them to be criminally responsible for their behavior.

Illustration

‘Ramesh’ a 25-year-old, instigates ‘Rahul’ a 6-year-old child, in order to kill ‘Raj’ which causes Raj’s death. Here, the child will not be liable for any crime as he is a doli incapax. However, Ramesh will be held liable for the murder of Raj.

Case Laws

In Hiralal Mallick vs. the State of Bihar, the Supreme Court upheld the conviction and sentence of a 12-year-old boy, who along with his two elder brothers had been initially convicted for murder; which was later converted by the High Court to one for voluntarily causing grievous hurt by dangerous weapons or means. The Supreme Court noted that Section 83 had not been invoked at any stage of the criminal process implying that the onus is on the defense to establish the child’s immaturity.

In Kakoo vs. the State of Himachal Pradesh, a 13-year-old boy was convicted for raping a two-year-old girl. To bring down the sentence of the punishment, the counsel on behalf of the accused urged the Court to take into consideration Sections 83 and 84 of the Indian Penal Code that children and adults are not to be treated in a similar manner while hearing a criminal matter. The Court though convicted the child for the offense of rape, it reduced the sentence of punishment by accepting the aforementioned argument of the counsel on behalf of the accused child. Hence, it can be concluded from the judgment that Section 82 and 83 do not only provide for ‘doli incapax’ but they also act as a signal to the courts while deciding a case that children are not to be treated as equal to adults in criminal cases. It has indeed become a settled principle of law that when courts are dealing with children, it must take a humanitarian view and should ensure reformation of the child rather than making him a hardcore criminal.

Actus Curiae Neminem Gravabit

Literal Meaning

An Act of the Court shall prejudice no man

Origin

Latin

Explanation

The maxim refers to that an act of the Court shall prejudice no one. It is applicable when a situation is projected where the Court is under an obligation to undo the wrong done to a party by the act of the Court. According to the maxim, if in a case, any undeserved or unfair advantage has been gained by a party invoking the jurisdiction of the Court, the same requires to be neutralized. This principle has been held to be fundamental to the system of justice and application to Indian Jurisprudence – that no man should suffer because of the fault of the court or delay in the procedure. It is the bounden duty of a court to see that if a person is harmed by mistake of the court, he should be restored to the position he would have occupied but for that mistake. Every order should be passed to afford a safe and certain guide for the administration of justice.

Case Laws

In Dhanani Shoes Ltd. Vs. State of Assam and ors., the court held that “The words ‘sufficient reason’ in Order 47, Rule 1 of the Code is wide enough to include a misconception of fact or law by a court or even an advocate. An application for review may be necessitated by way of invoking the doctrine ‘actus curiae neminem gravabit’.”

In B.K. Office Needs Private Limited Vs. Divya Shakthi Granites Limited, Hyd., the court observed that “The principle underlying the maxim ‘actus curiae neminem gravabit’ is that the act of Court should harm no one. The said maxim is founded upon the principle of justice and good conscience. Explaining the maxim, the Courts have held that where an error was committed by the Court the same must be undone by the Court and the blame cannot be shifted to the party who was expected to rely upon the Court and its officers and to act in accordance with their directions.”

Reductio Ad Absurdum

Literal Meaning

To reduce something to absurdity

Origin

Latin

Explanation

It is a strategy of diminishing an argument or theory to absurdity, bringing the assumptions or implications of the case beyond their logical limits and demonstrating how ludicrous the effects will be, thus disproving or discrediting the argument. It involves characterizing an opposing argument in such a way that it seems to be ridiculous, or the consequences of the position seem ridiculous. It can be ridiculous in the sense that the argument seems silly, or ridiculous in the sense that no reasonable person would take such a position. In common speech, the term reductio ad absurdum refers to anything pushed to absurd extremes.

Illustration

A is going into surgery tomorrow so he requests people to pray for him. A thinks that if enough people pray for him, God will protect him from harm and see to it that he has a successful surgery and speedy recovery.

We first assume the premise is true: if “enough” people prayed to God for the patient’s successful surgery and speedy recovery, then God would make it so. From this, we can deduce that God responds to popular opinion. However, if God simply granted prayers based on popularity contests, that would be both unjust and absurd. Since God cannot be unjust, then he cannot both respond to the popularity and not respond to popularity, the claim is absurd, and thus false.

Case Laws

In Moti Ram & Ors vs. the State of M.P., the Supreme Court of India observed that “It is not the court’s status but the applicant guilt status that is germane. That a guilty man may claim judicial liberation pro tempore without sureties while an undertrial cannot, is a reduction ad absurdum.”

In Raj Kumar Singh @ Raju @ Batya vs. the State Of Rajasthan, the court observed that “the force and effect of circumstantial evidence depend upon its incompatibility with, and incapability of, explanation or solution upon any other supposition than that of the truth of the fact which it is adduced to prove; the mode of argument resembling the method of the demonstration by the reductio ad absurdum.”

Nemo Moriturus Praesumitur Mentire

Literal Meaning

No one at the point of death is presumed to lie.

Origin

Latin

Explanation

The maxim is also referred to as be a dying declaration. As per this maxim, a man will not meet his creator with a lie in his mouth. It is the philosophy in law underlying admittance in evidence of dying declaration. A dying declaration given by a person on the verge of his demise has a certain sanctity, because, at the sacred moment, a person is most reluctant to make some incorrect claims. The aura of imminent mortality is by itself an assurance of the validity of the argument rendered by the deceased regarding the reasons or conditions contributing to his demise. If considered to be true, a dying declaration will form the foundation of conviction. A Court of Evidence is not disqualified for seeking guilt from ruling upon an uncorroborated dying argument. As a piece of proof, a dying statement sits on the same basis as every other piece of evidence.

Case Laws

In Kundula Bala Subrahmanyam vs. State of A.P., the Court stated that such a statement, called the dying declaration, is relevant and admissible in evidence provided it has been made by the deceased while in a fit mental condition. The above statement of the law, by way of preamble to this judgment has been necessitated as this appeal, putting in issue acquittal of the accused respondents from a charge under Section 302/34, I.P.C. seeks reversal of the impugned judgment and invites this Court to record a finding of guilty based on the singular evidence of dying declaration made by the victim.

In Dalip Singh vs. the State of Punjab, the court held that “although a dying declaration recorded by a Police Officer during the course of the investigation is admissible under Section 32 of the Indian Evidence Act, in view of the exception provided in subsection (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declarations out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by a Magistrate or by a Doctor.”

As observed by this Court in Munnu Raja vs. State of Madhya Pradesh the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declaration of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method.

Boni Judicis Est Ampliare Jurisdictionem

Literal Meaning

Good justice is broad jurisdiction

Origin

Latin

Explanation

The maxim refers that a good judge’s duty is to amplify the remedies of the law. The maxim is to amplify its remedies, and without usurping jurisdiction, apply its rules to the advancement of substantial justice. Also, it is the duty of a good judge to enlarge the jurisdiction of his court. In general it is a basic concept of equity which, almost by necessity, is not to be hand-cuffed by the strict terms of common law but, except in a void of rule, may and is allowed to pursue authority even when none existed before to do justice in a situation, if appropriate.

Illustration

If a party to the case drew the support of the above maxim, a judge has the power to develop the remedies and provide a remedial authority. It means a liberal extension of the judge’s power to adjudicate.

Case Laws

In Rex. vs. Philips, 1 Burr. 302. the reasoning of Lord Mansfield on this whole subject is directly in point, as well as the case itself, and contains that beautiful correction by him of a much-abused maxim, in which he says it is the duty of a good judge to amplify justice rather than his jurisdiction, “boni judicis est ampliare jurisdictionem.”

In Brij Mohan Lal vs. Union of India & Ors., the Supreme Court held that “It would fail in its duty if it declines to exercise its jurisdiction in the latter class of cases, solely on the ground that it was a policy decision and, thus, is beyond the limits of judicial review, being a matter primarily within the domain of the Government. Keeping in view its constitutional duty, the constitutional rights of citizens of this country at large and with reference to the facts of a given case, this Court may be duty bound to amplify and extend the arm of justice in accordance with the principle Est boni Judicls ampliare Justiciary non-Jurisdictionem.”

Animus Revertendi

Literal Meaning

With the intention to return

Origin

Latin

Explanation

It applies primarily to refer to an animal that is under the care of another. Under the concept of animus revertendi, any animal that strayed away from the owner’s property onto public land cannot be killed and taken without any compensation to the original caretaker. It was originally fabricated to protect the rights of livestock holders that had free-ranging animals.

Illustration

A man retains his domicil if he leaves it animo revertendi.

Case Laws

In P.Kalyanasundaram vs. K.Paquialatchamy, the Madras High observed that “the case of the husband is that the wife had left the house with the intention to leave the matrimonial home; therefore, the mere statement/expression of intention to return is not sufficient; that is, mere animus revertendi is not sufficient to terminate the act of desertion; that intention must be coupled with factum revertendi, that is the wife should have in fact returned to the matrimonial home.”

In Mohini Bhiryomal Hingorani vs. Bhanubhai Manilal Patel, Gujarat High Court observed that ‘One will have also to take into consideration the factor of animus revertendi, the factor whether the house was kept fit for occupation, whether the house was from time to time, no doubt intermittently used as a house for the purpose of residence of the tenant.’

Par Delictum

Literal Meaning

In equal fault

Origin

Latin

Explanation

It is a descriptive phrase that indicates that parties involved in an action are equally culpable for the wrong committed. In simple terms, when the parties to a legal controversy are in par delictum, neither can they obtain affirmative relief from the court, since both are at equal fault or of equal guilty. They will remain in the same position they were, in until the action begins.

The theory of par delictum stipulates that a group will not be pleased by a court of law when it is inappropriate to treat itself. The law is for the contractual parties’ legal culpability, not their civil responsibility. It is oppression on one side, and submission on the other.

Illustration

It never can be predicated as par delictum when one holds the rod and the other bows to it.

The parties are not to be regarded as being in par delictum where the agreement is merely malum prohibitum, and the law which makes it illegal was intended for the protection of the party asking relief.

Case Laws

In Hitler Adolf Klokow vs. Michael Boyton Sullivan, the Court expressed that in general, where public policy considerations do not favor either party, the par delictum rule will operate against the plaintiff. At an exception stage, however, the rule will generally defeat a plaintiff’s claim only in the clearest of cases.

In Androcles Ndlovu vs. Ngwato Land Board, the court held that even assuming that there had been in existence some sort of illegal oral or tacit lease, the court satisfied that the par delictum rule could not have been invoked to prevent the respondent from evicting the appellant.

Ejusdem Generis

Literal Meaning

Of the same kind

Origin

Latin

Explanation

The maxim refers to where a law lists specific classes of persons or things and then refers them in general, the general statements only apply to the same kind of persons or things specifically listed. Normally, general words should be given their natural meaning like all the other words, unless the context requires otherwise. However, when general words follow specific words of distinct categories, the general word may be given a restricted meaning of the same category.

It generally means, when general words in a statutory text are flanked by restricted words, the meaning of the general words are taken to be restricted by implication with the meaning of restricted words. It may be regarded as an instance of ellipsis, or reliance on implication.

Illustration

If a law refers to automobiles, trucks, tractors, motorcycles, and other motor-powered vehicles, a court might use ejusdem generis to hold that such vehicles would not include airplanes, because the list included only land-based transportation.

Case Laws

In Rajasthan State Electricity vs. Mohan Lal & Ors, the Supreme Court held that “The ejusdem generis rule is one to be applied with caution and not pushed too far. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not too different objects of a widely differing character but to something which can be called a class or kind of objects.”

In Jage Ram And Ors vs. State of Haryana And Ors, the apex court held that “The modem tendency of the law, it was said, is “to attenuate the application of the rule of ejusdem generis. To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be, called a class or kind of objects.”

Coram Non Judice

Literal Meaning

Not before a judge

Origin

Medieval Latin

Explanation

When a suit is brought and determined in a court which has no jurisdiction in the matter, it is said to be coram non judice and the judgment thus delivered is considered void. It refers to those proceedings of a court of law which take place before a judge who is not competent to decide or before the court which has no jurisdiction over the case.

In other words, a decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise of jurisdiction, lacks inherent jurisdiction is a coram non judice. A decree passed by such a court is a nullity and is non-est. Its invalidity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings.

Illustration

A court having no jurisdiction to adjudicate over the a fresh appeal despite the fact that the order passed by the court is in standing of it as an appellate authority has achieved finality, the order passed by such court on the basis of illegal or impartial proceedings would be termed as coram non judice.

Thus, a judgment which is a result of bias or want of impartiality is null and void and the trial is considered to be coram non judice.

Case Laws

In M/S. National Highway Authority vs. M/S. B. Seenaiah & Company, the Calcutta High Court held that “if a court/tribunal inherently lacks jurisdiction, the acquiescence of a party should not equally be permitted to perpetrate and perpetuate the defeating of the legislative animation. The court cannot derive jurisdiction apart from the statute. A decree without jurisdiction is a nullity. It is a coram non judice; when a special statute gives a right and also provides for a forum for adjudication of rights, the remedy has to be sought only under the provisions of that Act and the common law court has no jurisdiction.”

In the Industrial Credit vs. Sharad Khanna And Others, the Bombay High Court held that “If a Court were to make a decree contrary to the law as laid down by the Full Bench, such a decree is not merely erroneous, but one without jurisdiction, made by a corum non judice, and, hence, the decree would be a nullity or non est. Such a decree, made by a Coram non judice, can be challenged, wherever and whenever it is sought to be relied upon.

Publici Juris

Literal Meaning

Of public right

Origin

Latin

Explanation

The Latin phrase in the legal parlance, means, ‘of public right’ or ‘belonging to the public’. It signifies a thing or a right that is open and exercisable by all persons. In general, it designates things that belong to an entire community, and not to any private party. Although States can grant a franchise to private parties to maintain such general resources, these grants remain under state supervision to preserve public right access.

Publici Juris is used in cases involving Intellectual Property Rights. When a thing is a common property, so that anyone can make use of it who likes, it is said to be publici juris; as in the case of light, air, and public water.

Illustration

Roads and bridges regulated by a state for the general public benefit relates to publici juris.

Case Laws

In K.R. Jadayappa Mudaliar Trading vs. K.B. Venkatachalam Trading, the Madras High Court observed that “The proper test to decide whether a mark which was originally a Trade Mark has become publici juris is to see whether the use of it by other persons is still calculated to deceive the public.”

In Schering Corporation & Ors. vs. Alkem Laboratories Ltd., the Delhi High Court held that “even if the word fragment is publici juris, such word fragment may acquire distinctiveness for that pharmaceutical substance in the context of certain formulations containing that pharmaceutical substance for certain indications i.e. for the particular goods, by acquiring a secondary meaning from registrations and use, ceasing thereby to be generic/publici juris for that pharmaceutical substance in that limited context.”

Mala Prohibita

Literal Meaning

Wrongs prohibited

Origin

Latin

Explanation

The Latin maxim refers to those things which are prohibited by law, and therefore unlawful. It is used in modern times and refers to actions that are wrong simply because laws have been passed prohibiting them. Crimes are divided into two categories:

  • Mala in se – wrong in themselves
  • Mala prohibita – wrong merely because they are punished by statute

An offense is an instance of malum prohibita when the conduct it prescribes is not wrongful prior to or independent of law, while a malum in se offense is an act that is wrongful prior to and independent of its legal prohibition. In general, acts mala prohibita are contrasted by acts that are wrong or evil in and of themselves. These evil acts are considered mala in se, which translates as “wrong in itself.”

Mala in se acts include things that humanity considers being amoral and reprehensible, such as murder, assault, kidnapping, rape, stealing, and cruelty. These are things that are wrong by their very nature, and are looked upon as the more unpardonable offenses, often causing public outrage.

On the other hand, acts mala prohibita are not immoral or unconscionable by their nature but are banned or regulated by law for the good of the community. There are certain things that need to happen in order for a community to operate smoothly and peacefully. In criminal law, the term mala prohibita applies in instances where something is made criminal by a criminal statute. Mala prohibita crimes do not usually require intent and do not usually carry powerful moral stigmas along with them.

Illustration

Driving while intoxicated on a public road makes it clear that inebriated drivers violate the rights of others by exposing them to unacceptable risks of accidents. Such crime which is prohibited by law is called mala prohibita.

Case Laws

In Tamizhazhagan And Anr. vs The Revenue Divisional Officer, the Madras High Court observed that ‘mala in se, is an offense against, nature or contrary to the moral sense of the community, and mala prohibita, is an offense against laws which enjoin positive duties and forbid things which are not mala in se, to which is annexed a penalty for non-compliance.’

In Naraynamma And Anr Etc Etc vs Govindappa And Ors., the Supreme Court while citing the Story’s Equity Jurisprudence by Randall, stated that “Where parties are concerned in illegal agreements or other transactions, whether they are mala prohibita or mala in se, courts of equity following the rule of law as to participators in a common crime will not interpose to grant any relief, acting upon the known maxim in pari delicto potior est conditio defendentis et possidentis. The old cases often gave relief, both at law and in equity, where the party would otherwise derive advantage from his inequity. But the modern doctrine has adopted a more severely just and probably politic and moral rule, which is, to leave the parties where it finds them giving no relief and no countenance to claims of this sort.”

In Sunil Kumar Ghosh vs the State of West Bengal And Ors., the Calcutta High Court stated that “The old distinction between mala prohibita and mala in se has broken down because many acts which have been made punishable as an offense by statutes do not involve any moral turpitude: “In particular, nothing in the moral character of an act or omission can distinguish it from a civil wrong or make it a criminal offense. There are, for example, many breaches of statutory regulations and bye-laws which, because they are punishable in criminal proceedings, must be classed as criminal offenses though they do not involve the slightest moral blame, as, for example, ‘the failure to have a proper light on a bicycle.”

Aequitas Legem Sequitur

Literal Meaning

Equity follows the law

Origin

Latin

Explanation

It is a concept that equity or the law will not aid a person or party who is at fault. The law will not aid a person whose own fault is what made the legal action necessary. It is interpreted as to law is about what is fair and equitable. It is a fundamental maxim, stated as that equity follows the law.

However, this maxim is susceptible to various interpretations.

  • It may mean that equity adopts and follows the rules of law in all cases to which those rules may in terms be applicable; or
  • It may mean that equity, in dealing with cases of an equitable nature, adopts and follows the analogies furnished by the rules of law.

The key objective of the concept appears to hold judicial conduct within the limits set by the preliminary course of adjudication, in accordance with the precepts that law must obey the rules and precedents developed, and should not alter or threaten the privileges specified and formed by current legal standards.

Instead of overruling the balance of justice, the essence of equity is something that supports, but it must always be reiterated that when the moment demands, equity may move against certain values in search of a fair outcome that the common law refuses to offer. Equity acts as a complement to the statute which will not supersede the rule that prevails so, therefore, we do not speak about common law and equity as two competing structures.

The maxim serves to keep the focus on legal proceedings in such a way that holds the principle of fairness above that of policy or written codes of conduct. It means equity looks at the form of the subject matter, rather than allowing the intention to dissolve in favor of caveats that work against common law, and obstruct a proper outcome.

Illustration

  • Under a trust, although the beneficiaries are regarded as the equitable owners, equity does not deny the legal title of the trustee.
  • Devolution of equitable interest on intestacy passes the same way as the legal estate.

Case Laws

In Anil Kumar Verma Son of Sri J.R. vs. the State of U.P. Through Principal, the Allahabad High Court held that “equity is not one-way traffic. Equity follows law following the maxim aequitas sequitur legem. In other words, it is moving on the periphery of law and when the law allows entering, forms a zygote.”

In Cowper vs. Cowper, the court held that the molding of new equitable interests so that they possessed most of the incidents of the corresponding legal estates is the best-known application of the maxim, acquitas sequitur legem.

Animo Furandi

Literal Meaning

With an intention to steal

Origin

Latin

Explanation

The general meaning of the maxim is an ‘intention to steal.’ It is often used in the context of theft in reference to the intention to steal, or trespass with animus furandi. Thus, in order to constitute a crime of larceny, the thief must take the property animo furandi. When the taking of property is lawful, although it may afterward be converted animo furandi to the taker’s use, it is not larceny, but maybe conversion if retained unlawfully. In a general sense, the maxim refers to the dishonest intention to cause wrongful gain to oneself or wrongful loss to another.

The offense of theft consists of the dishonest taking of any moveable property out of the possession of another without his consent. Dishonest intention exists when the person so taking the property intends to cause wrongful gain to himself or wrongful loss to the other. This intention is known as animus furandi.

Illustration

If ‘Y’ a taxi-driver accepts counterfeit money from ‘Z’ without knowing it was counterfeit, then ‘Y’ has no animus furandi. However, if ‘Y’ knows it is counterfeit and takes it as fare, he takes it with animus furandi, and not by mistake.

Case Laws

In Gurudayal vs. Indal, the Madhya Pradesh High Court observed that “Where there is an absence of animus furandi and the circumstances indicate that the taking of movable property is in the assertion of a bonafide claim of right, the act, though may amount to a vigil injury, does not fall within the mischief of the offense of theft.”

In Emperor vs. John Mciver, the Madras High Court held that “Where a man having the animus furandi obtains in pursuance thereof possession of goods by some trick, the owner not intending to part with his entire property but only the temporary possession of it, this is such a taking as to constitute a felony.”

In F.L. Berawalla And Anr. Vs. R.K. Jain And Ors., the Delhi High Court held that “the animus furandi, that is an intention to take from another for purposes of saving labor, is one of the important ingredients to be found against a person before the can be damnified.”

De Minimis Non Curat Lex

Literal Meaning

The law does not concern itself with trifles

Origin

It is the short form of a Latin word ‘De minimis’ meaning ‘about minimal things’

Explanation

It is a common law principle whereby the court will not sit in judgment of extremely minor transgressions of the law. In general, the maxim refers that the courts will not intervene in disputes where the substance of the controversy is insignificant. Its application sometimes leads to an action being dismissed, especially when the only redress being sought is for a nominal sum, such as a dollar.

The law does not encourage parties to bring legal action where the impact of the breach is negligible for technical breaches of rules or agreements. In other words, such exceptions are commonly included in contracts to limit the use of covenants or other restrictions so that they do not apply in circumstances where the failure to comply with the restriction has negligible impact.

The maxim is recognized under Section 95 of Indian Penal Code.

Illustration

A promises B that he will accompany him to the movie on Saturday. Believing it, B books the tickets worth 150/- each. However, on Saturday A canceled his plan to the movie as he had to attend a class. This resulted in B to cancel the tickets at the end moment as a result of which he did not get a refund. Angry with this B filed a suit against A. In such cases, where the matter in issue is negligible or extremely minor, the court will not entertain the suit and dismiss it accordingly.

Case Laws

In Bathula Krishna Brahmam vs. Gudipudi Shaik Meera Hassain, the Andhra Pradesh High Court held that the delay cannot be excused either on the ground that the mistake was not that of the payer but of the clerk who received the lodgment schedule who should have pointed out the error or that the small deficiency which led to the delay should be excused on the principle of ‘de minimis non curate lex’ or again on the ground that the amount paid towards poundage could have been appropriated towards the deficiency.

In S.Ramesh vs State Through The Inspector Of police, the Madras High Court held that “Section 95 IPC has its itself foundation on the maxim de minimis non curat lex (The Law takes no account of trifles). This section is intended to prevent the penalization of negligible wrongs or of an offense of trivial character. Whether the act, which amounts to an offense, is trivial would undoubtedly depend upon the nature of the injury, the position of the parties, the knowledge or intention, with which an offending act is done and other related circumstances. Under this provision, those cases even though fall within the letter of the penal law are yet not within its spirit, and or all over the world considered by the public, as innocent. In other words, the harm that results out of an offense, if is so slight and trivial that no person of ordinary sense and temper would complain of such harm.”