Saturday, 21 October 2017

How theory of non-conflict zone is applicable to interpretation of personal law and other law?

When we consider the incidents of disposition of property under different laws, we have to consider the personal law and then to apply the general principles of tenancy law to the permissible non-conflict zone to personal law which holds the field for the parties to arrive at a decision. The Privy Council in the case of Imambandi & Ors. v. Mutsaddi & Ors. (1918) L.R. 45 I.A. 73 considering the distinction between the law which is applicable to Mohammedans, has held that there is a sharp distinction which has to be drawn with other laws with respect to its special nature. The Court cautioned to apply the foreign decisions which are on considerations and conditions totally differing from those applicable to or prevailing in India. The Privy Council has observed thus : “45. Their Lordships cannot help deprecating the practice which seems to be growing in some of the Indian Courts of referring largely to foreign decisions. However useful in the scientific study of comparative jurisprudence, reference to judgments of foreign Courts, to which Indian practitioners cannot be expected to have access, based often on considerations and conditions totally differing from those applicable to or prevailing in India, is only likely to confuse the administration of justice.” Thus, in our opinion, courts have to be careful to apply the decision of Muslim law to a case relating to Hindu law and the foreign decisions and vice versa. There cannot be universal application of principles of law on a particular subject. Special laws by which parties are governed are also to be taken into consideration so as to arrive at a just conclusion.

CIVIL APPEAL NOS.4731-4732 OF 2010
T. Ravi & Anr. Vs. B. Chinna Narasimha & Ors. etc.
Dated: 21 MARCH 2017

[Civil Appeal Nos.4733 of 2010, 4734-35 of 2010, 4736 of 2010, 4837-38 of 2010]
Dated: 21 March, 2017
Citation:(2017) 7 SCC 342.
Read full judgment here:Click here
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