Sunday, 27 November 2022

Landmark Privy Purse Supreme Court Judgment laying down four stages through which a debt or liability to pay money passes

 In his summary of the Law of Contract (p. 124) Langdell remarked that 'a debt according to the popular conception of the term, is a sum of money belonging to one person (the creditor), but in the possession of another (the debtor). He questioned' this approach. Blackstone contrasted property in possession and property in action and held contracts to be within the latter, (See Commentaries Vol. II XXV pp. 396-398). He was in effect thinking of a debt. According to him property in action exists :

Where a man hath not the occupation, but merely a bare right to occupy the thing in question, the possession whereof may, however, be recovered by a suit or action at law.... {Para 60}

61. He was of opinion that till then the thing or its equivalent, remains in suspense, and the injured party has only the right and not the occupation. It being a thing in potentia and not in esse it is only a thing in action and not possession. Sohm (The Institutes) also says that till the fulfilment of the obligations the creditor has right only against the debtor and not against a thing.


62. This old concept of property is no longer held to be true. Mark by, Elements of Law 1871, 6th Edition p. 320) regards the liability of the promisor as itself a thing which is capable of being bought and sold, assigned and transferred and if of money value, may itself be regarded as an object of ownership. An obligation according to him is as much a res as any other property and the only difference is in the mode of enjoyment. The creditor realizes this ownership by compelling the debtor to perform his obligation. As illustration he gives a catalogue of passive rights of ownership. Anson (Principles of Law Contract) supports him by pointing out that an obligation is a right of control exercisable by one person over others for acts which have a money value.


63. The dynamic theory of obligations regards a debt as a claim to 'an equivalent in a value to a floating charge against the generality of things which are the properties of the debtor'. From this is developed the notion of a credit-debt where property rights arise from a promise, express or implied in respect of ascertained or readily ascertained sums of money. Thus a debt or a liability to pay money passes through four stages. First there is a debt not yet due. The debt has not yet become a part of the obligor's 'things' because no net liability has yet arisen. The second stage is when the liability may have arisen but is not either ascertained or admitted. Here again the amount due has not become a part of the obligor's things. The third stage is reached when the liability is both ascertained and admitted. Then it is property proper of the debtor in the creditor's hands. The law begins to recognise such property in insolvency, in dealing with it in fraud of creditors, fraudulent preference of one creditor against another, subrogation, equitable estoppel, stoppage in transitu etc. A credit-debt is then a debt fully provable and which is fixed and absolutely owing. The last stage is when the debt becomes a judgment debt by reason of a decree of a Court. Thus an American Judge held 'outstanding uncollected accounts' as property. Standard Marine Insurance Co. v. Board of Assessors 123 La 717. It is because of this that the French Law includes such obligations in mobiles.


64. Applying these tests to the Privy Purses, it is clear that they would be property. As soon as an Appropriation Act is passed there is established a credit-debt and the outstanding Privy Purse becomes the property of the Ruler in the hands of Government. It is also a sum certain and absolutely payable.

IN THE SUPREME COURT OF INDIA

Writ Petitions Nos. 376 to 383 of 1970.

Decided On: 15.12.1970

Madhav Rao Jivaji Rao Scindia Bahadur and Ors. Vs. Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

M. Hidayatullah, C.J., A.N. Grover, A.N. Ray, C.A. Vaidialingam, G.K. Mitter, I.D. Dua, J.C. Shah, J.M. Shelat, K.S. Hegde, S.M. Sikri and Vashishtha Bhargava, JJ.

Citation: MANU/SC/0050/1970,AIR 1971 SC 530

Read full Judgment here: Click here


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Privy Council: The principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family

 With reference to this decision Lord Watson observed:

There are two substantial reasons why it ought not to be followed as an authority. In the first place it appears to their Lordships that the learned Judges of the High Court of Madras were not justified in importing into the construction of a Hindu will an extremely technical rule of English conveyancing. The principle of joint tenancy appears to be unknown to Hindu law, except in the case of coparcenary between the members of an undivided family. In the second place the learned Judges misapprehended the law of England, because it is clear, according to that law, that a conveyance, or an agreement to convey his or her personal interest by one of the joint tenants, operates as severance.

12. In their Lordships' opinion this is a clear ruling that the principle of joint tenancy is unknown to Hindu law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship. There could therefore be no question of these grants creating a joint tenancy as opposed to a tenancy in common, even if according to English law the terms of these instruments admitted of such a construction.

13. As to the question whether these grants were made to these two brothers severally or as members of a joint family that depends on the intention of the donor as expressed in the grants. Prima facie a gift to a member of a joint Hindu family is his separate property and will only become joint family property when it descends to his sons, unless he himself has made it joint family property by throwing it into the common stock. There is nothing in the terms of these maintenance grants to these two brothers to suggest that the Government intended to make a grant to a joint family.

 BEFORE THE PRIVY COUNCIL

Decided On: 12.01.1933

Bahu Rani and Ors. Vs. Rajendra Baksh Singh

Hon'ble Judges/Coram:

Thankerton, John Wallis and Lancelot Sanderson, JJ.

Author: John Wallis, J.

Citation: MANU/PR/0002/1933

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Whether the court can convict an accused if Skull Superimposition Technique is used For Identification Of Dead Body of victim?

  The next circumstance relied upon by the prosecution is identification of the body. It may be noted that the corpus when found, was in a highly-decomposed condition. Skeletal remains were found after almost 5 months from the date of the incident of the deceased having gone missing. The identification, therefore, was done by getting the skull super-imposition test done through the PW-16, forensic expert. In Pattu Rajan v. State of Tamil Nadu4, this Court has explained that though identification of the deceased through superimposition is an acceptable piece of opinion evidence, however the courts generally do not rely upon opinion evidence as the sole incriminating circumstances, given its fallibility, and the superimposition technique cannot be regarded as infallible. In the present case, since the super-imposition report was not supported by any other reliable medical evidence like a DNA report or post-mortem report, it would be very risky to convict the accused believing the identification of the dead body of the victim through the super-imposition test. It is true that in the case based on circumstantial evidence, if the entire chain is duly proved by cogent evidence, the conviction could be recorded even if the corpus is not found, but when as per the case of prosecution, the dead body of the victim was discovered from the place shown by the accused, it is imperative on the part of the prosecution to prove that the dead body or the skeleton found at the instance of the accused was that of the victim and of none else. {Para 13}

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 160 OF 2017

S. KALEESWARAN Vs STATE 

Coram: BELA M. TRIVEDI, J.

Dated: 03.11.2022

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Section 293 CrPC - Ballistic Report Forwarded By Lab Director Or Deputy/Assistant Director Under The Seal Is Admissible In Evidence

 The decision of this Court in State of Himachal Pradesh v. Mast Ram45is a complete answer to this submission. In an identical situation, this Court held that there is no illegality in the way the prosecution has obtained the ballistic report under Section 293. The relevant portion of the decision is as under:

“6. Secondly, the ground on which the High Court has thrown out the prosecution story is the report of the ballistic expert. The report of the ballistic expert (Ext. PX) was signed by one Junior Scientific Officer. According to the High Court, a Junior Scientific Officer (Ballistic) is not the officer enumerated under sub-section (4) of Section 293 of the Code of Criminal Procedure and, therefore, in the absence of his examination such report cannot be read in evidence. This reason of the High Court, in our view, is also fallacious. Firstly, the forensic science laboratory report (Ext. P-X) has been submitted under the signatures of a Junior Scientific Officer (Ballistic) of the Central Forensic Science Laboratory, Chandigarh. There is no dispute that the report was submitted under the hand of a government scientific expert. Section 293(1) of the Code of Criminal Procedure enjoins that any document purporting to be a report under the hand of a government scientific expert under the section, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under the Code, may be used as evidence in any inquiry, trial or other proceeding under the Code. The High Court has completely overlooked the provision of sub-section (1) of Section 293 and arrived at a fallacious conclusion that a Junior Scientific Officer is not an officer enumerated under sub-section (4) of Section 293. What sub-section (4) of Section 293 envisages is that the court is to accept the documents issued by any of the six officers enumerated therein as valid evidence without examining the author of the documents. xxx {Para 170}


171. In view of the fact that the ballistic report has come from the office of the Assistant Director bearing his seal and having considered the same in the context of Section 293(4) Cr.P.C., as explained by this Court in State of Himachal Pradesh v. Mast Ram46 we are opinion that the Trial Court committed a serious error in rejecting the ballistic report and it was necessary and compelling for the High Court to reverse the finding of the Trial Court on this count also.

X. The rejection of the FSL (ballistic) report is another grave mistake of the Trial Court. The conclusion of the Trial Court that the ballistic report is inadmissible as it is not in consonance with the requirement of Section 293 Cr.P.C. is entirely wrong. We have explained this in detail. In an identical situation this Court in State of Himachal Pradesh v. Mast Ram51 has explained how the ballistic report is in complete compliance of the statutory provision. The High Court had to necessarily step in to prevent a grave miscarriage of justice.

IN THE SUPREME COURT OF INDIA

 CRIMINAL APPELLATE JURISDICTION 

Coram: UDAY UMESH LALIT; CJI., S. RAVINDRA BHAT; J., PAMIDIGHANTAM SRI NARASIMHA; J.

 CRIMINAL APPEAL NOS. 946-947 OF 2019; 

Dated: NOVEMBER 04, 2022 

ASHOK KUMAR SINGH CHANDEL Vs STATE OF U.P.

Author: PAMIDIGHANTAM SRI NARASIMHA, J.

Dated: NOVEMBER 04, 2022 

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