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)

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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.

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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)

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“ 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.

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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

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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.

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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).

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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

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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

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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)

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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

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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

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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

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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)

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