01

Introduction

Jurisprudence is a study of fundamental legal principles, thoughts, writings about law in its relation with philosophy, psychology, economics, anthropology and other social sciences. he word Jurisprudence is deri!ed from the Latin erm, J"#I$ which means legal and %#"&E' I( means )nowledge. herefore Jurisprudence is $cience which gi!es us *nowledge about law

02

Literal Meanings of English Jurisprudence &efinitions of English Jurisprudence

0+

i. ii. iii. iv.

,lac*-s law &ictionary./ Jurisprudence is a science of law $almond./ Jurisprudence is a science of law. "lpain./ Jurisprudence is science of 0ust and un0ust. (ustin./ Jurisprudence is philosophy of positi!e law

01

$cope and applications of English Jurisprudence

he $cope of Jurisprudence is !ery wide and !ast and it includes all concepts of human order and human conduct. Jurisprudence applies on social, moral, economic and religious !alues of human beings. Jurisprudence consists of the study of the nature of law and its related ideas. (ustin has distinguished the laws from morality and theology. Jurisprudence is about the nature of law and 0ustice. It embraces studies and theories from a range of disciplines such as history, sociology, political science, philosophy, psychology and e!en economics. Jurisprudence is the eye of law and it has !ery great practical !alue. i. ii. iii. i!. !. Jurisprudence pro!ides the legal terminology to legislature. It pro!ides s*eleton to the constitution. Jurisprudence fills the gaps of law or remo!es legal mista*es or fallacies. It gi!es detailed interpretation to statue of laws. Jurisprudence helps 0udges and lawyers in understandings the true meanings of laws framed by the legislatures. !i. Jurisprudence has great educational !alue in logical conclusion or analysis of legal concepts. !ii. he study of 0urisprudence helps the students in ad0usting themsel!es in society without causing in0uries to the interests of other citi3ens. here are three *inds of 0urisprudence: Historical Jurisprudence:5istorical Jurisprudence gi!es the answers of the 6uestions, origin of law, the de!elopment of law, e!olution of law and philosophy of law. Analytical Jurisprudence:he branch of 0urisprudence gi!es analysis to basic principles of ci!il and their interpretation. he most important 6uestions of analytic 0urisprudence are. 78hat are laws97: 78hat is the relationship between law and power;sociology97: and, 78hat is the relationship between law and morality97 Ethical Jurisprudence: he branch of 0urisprudence deals with basic principles of ethics and moral !alues. Ethical 0urisprudence is a branch of legal philosophy which approaches the law from the !iewpoint of its ethical significance and ade6uacy. It deals with the law as it ought to be an ideal state. his area of study brings together moral and legal philosophy.

02

%ractical !alue of English Jurisprudence

04

)inds of English Jurisprudence

0<

English Jurisprudence in relation with social sciences

a. Sociology and jurisprudence: $ociology is the study of society with its relation with human beings. Jurisprudence and sociology has greater connection with each other. $ociology helps the 0urisprudence in sol!ing the social problems and social wrongs; ci!il wrongs without ha!ing the *nowledge of society, the 0urisprudence cannot be understood. b. Jurisprudence and Psychology:%sychology means science of human beha!iour, mind and conduct. %sychology has close connection with the 0urisprudence. =or e>ample in study of criminal 0urisprudence, there is great scope for study of human psychology. In order to understand criminal mind behind the crime. $imilarly intention to commit crime is also study of psychology as well as study of 0urisprudence. Jurisprudence and Ethics:Ethics means anything relating to moral action or conduct. 8e can say Ethics is the science of moral conduct. Ethics are two types. (. Ideal Moral ?ode ,. %ositi!e Moral ?ode his cannot be made with the help of any legislature but its legislature is @od. It is present in the hearts of man. %ositi!e Moral ?ode deals with the rules, regulation formed by legislatures to the human beings of the society. Jurisprudence and Economics:Economics means science of wealth. It is uni!ersal truth that bad economics condition gi!es birth to many crimes and offences because due to po!erty people brea* laws. )arl Mar>, has shows that there is good relation between 0urisprudence. =or e>ample labour laws, factory laws, mercantile laws, company laws, association laws depend upon 0urisprudence. (s economics impro!e standard of life of people, similarly 0urisprudence gi!es such economics laws which promote social and economics 0ust. Jurisprudence and Politics:%olitics is science of go!ernment. Its main sub0ect is relation between citi3en, state and control of the state. here is !ery close relationship between 0urisprudence and politics. ,ecause go!ernment is directly depend upon good laws to run the state machinery. It is rightly said that 0urisprudence is science of laws. Jurisprudence has !ery close relationship with all social sciences li*e sociology, history, economics, ethics, and politics. It has practical educational and legal !alue with a lot of purpose.

10

?onclusion

8hat is ci!il Justice and ?riminal Justice9 8hat are differences between them9

01

Introduction

02

(spects of Justice

0+ 01

&efinition of Justice )inds of Justice

Justice means proper administration of laws and its strict enforcement. 8ithout enforcement of law a secure, safe and balance life is not possible. @ood administration of 0ustice shows the good efficiency of the @o!ernment. It is the duty of the @o!ernment to implement 0ustice and rule of law. here are two *inds of 0ustice ci!il and criminal. ?i!il 0ustice deals with pri!ate wrongs, whereas criminal 0ustice deals with public wrongs. (lthough both are *inds of 0ustice but still there is a lot of difference between them on the basis of nature and ob0ect. here are three aspects of 0ustice. i. fair procedure of law It means e!eryone should be treated in same way and there should be no discrimination on the basis of gender, creed or wealth. ii. balance of interest It is the duty of state and 0ustice to *eep balance of interests of public li*e freedom of speech, life, property etc. iii. E6uality in decisions It means e!eryone is e6ual before law and there should not be any discrimination on the basis of standards. Justice means proper administration of law, 0ustice is an important ingredient of law. here are two *inds of 0ustice a. ?i!il Justice b. ?riminal Justice

a. ?i!il Justice./ ?i!il Justice means such 0ustice which addresses rights of pri!ate and ci!il
nature. 0A Bb0ect of ci!il Justice Bb0ect of ci!il 0ustice is ensure and enforce the infringe rights of pri!ate and ci!il nature. E>amples./ 1. (ll the ci!il wrongs or infringement of ci!il and pri!ate rights. 2. ,reach of contract./ 'on payment of debt and non payment of rent breach of contract assault, battery, defamation false imprisonment, 'uisance trespass to land, person and property negligence and fraud vi. Embe33lement and corruption, maladministration, mismanagement, bribery etc. Results of i!il "rongs: i. ?i!il proceedings result in 0udgement for damages ii. compensation i!. payment of debt, !. penalty, fine, in0unction, decree, restitution or stay order. ,y criminal 0ustice means such 0ustice deals with public wrongs and punishments. #bjects of criminal justice:Bb0ect of criminal 0ustice is to punish the offenders ?reate law and order in the society. E$amples of public %rongs:%ublic wrongs mean such wrongs which are due to breach of public rights and duties as a result of whole society suffer e.g theft, murder and rape etc. ?riminals may awarded punishments, imprisonment rigorous or soft, fine, death, e>ile, flogging. a. ?riminal 0ustice addresses the public wrongs. b. Bb0ect of criminal 0ustice is to punish the wrongdoers and to create a peaceful and law abiding citi3ens. c. ?riminal Justice is dealt with in criminal proceedings. d. !ictims file petition in the criminal courts. e. %a*istan %enal ?ode; ?r %? apply during the prosecution. f. %arties name $tate Ds (ccused i!il Justice riminal Justice ?i!il Justice means 0ustice which ?riminal Justice means 0ustice addresses the rights of pri!ate which addresses the public wrong indi!iduals or of ci!il nature or wrongs of public nature #ights in rem are preser!ed #ights in personam is preser!ed In ci!il 0ustice ci!il rights are In criminal 0ustice public rights are protected protected ?i!il 0ustice deals within the ci!il %a*istan %enal ?ode, ?r%? apply proceedings of ?%? or statute law during prosecution Dictim party file a suit $tate file a petition or file a ?i!il wrongs are of no much harmful complaint and they effect only indi!iduals ?riminal 8rongs are harmful to the %laintiff Ds &efendant society and whole society suffers a Judgement or results are in the form lot of in0unctions, $pecific performance $tate Ds (ccused or damages &eath penalty, imprisonment, fine, flogging and other rigours punishments or e>emplary punishments i. ii. iii. i!. !.

0C

)inds of ci!il wrongs and their results

02 04

?riminal Justice E>amples of criminal wrongs and their results

0<

?haracteristics of criminal wrongs

10

&ifference between criminal 0ustice and ci!il 0ustice

&. 'efine Punishments. "hat are different theories of Punishments and %hich theory is most suitable for society( 01 Introduction =or balance, safe and secure society some theories of the punishments ha!e been introduced. heories of the %unishments has been remain the sub0ect of debate for many centuries. 8ith the passage o time, the !arious theories ha!e been proposed with special reference to the contemporary legal system and each theory ha!ing its particular merits and demerits. here is no single theory which is considered as the most suitable and idle for the country or for the society to implement in letter and spirit. 02 &efinitions of the Law Le>icon./ %unishment is penalty for ransgression of the Law. ,lac*-s Law &ictionary. (ny fine, penalty or confinement inflicted upon a person by the authority of %unishment law as a result of the 0udgement and sentence on account of the crime or offence which he has committed pro!ed during prosecution. 0+ ?haracteristics of It must be in!ol!e pain;in0ury or any other conse6uences to the !ictim which are not pleasant or harmful to the !ictim. It must be an offence and should against the legal rules and falls under the %unishments definition or section of %%?. he offence must be against public or state. 01 Bb0ecti!e of the he ob0ect;purpose of the punishment is to pre!ent the society from the crimes. b. o pre!ent the person who has committed any offence from repeating the same acts or omission or %unishment offence again. d. to pre!ent the other members of the community from committing similar crimes on the part of the offenders. e. creation of peaceful and law and order in the society. 0A (pproaches towards #eaction to crimes has been different at different stages of human ci!ili3ation and e!en at a gi!en time. crimes ii. It has been different in different societies. 5owe!er there are three approaches or reactions towards the crimes. a. Puniti!e Approachi. In this approach the punishment is inflicted with the ob0ect to protect the society from the offender to repeat his crime. ii. In this category the punishment of imprisonment is awarded who has committed serious or rigorous offences. b. )herapeutic approach:i. in this approach, the criminal considered as sic* person and re6uire treatment. ii. In this case the circumstances of the criminal or offender is considered which is product or cause him to commit any offence and those circumstances are treated which compel him to commit any crime. c. Pre!enti!e Approach:In this approach, instead of gi!ing punishments to the offenders, those conditions are eliminated which are responsible which compel him to commit crime or offence. (ll the abo!e mentioned approaches not e>ist independently but they o!erlap each other. 0C heories of the =ollowing are some theories of the punishments i. #etributi!e heory %unishment ii. &eterrent heory. iii. %re!enti!e heory i!. #eformati!e heory. !. ?ompensation heory 02 #etributi!e heory (ccording to this theory, punishment means, repairing an in0ustice or ma*ing a wrong into right. In this principle of tooth for tooth, eye for an eye. In primiti!e societies the punishment was retributi!e. he !ictim or family of the !ictim was allowed to ta*e re!enge. Islamic punishments are of also retributi!e type. omments* riticism )ent argues that it is the responsibility of the society to punish the person who commits any crime. 5e is of the opinion that principle of the 0ustice re6uires that we must punish the blameworthy. ,enthen is against the retributi!e theory. 5e says that retributi!e theory is based upon the assumption of re!enge and re!enge remains unsatisfied through such type of punishments . Most ancient law de!eloped on the base of retributi!e theory. Laws are based on tit for tat or life for life. #etributi!e theory of punishment creates the passion of hate towards law. his theory sometimes base on !ery cruel punishments. 'ot applicable in modern days. %unishment is not itself remedy and punishment is itself an e!il. In the late 1Cth century the theory was opposed by the church. It is said that forgi!eness is great !irtue than re!enge. #etributi!e theory of punishment is against the cannons of morality and ethics. #etributi!e theory considers the crime and not the circumstances of crimes. 04 &eterrent heory It means to stop and discourage crime and criminal by producing fear or terror.,asic idea behind is to create fear and horror though e>emplary punishments and ma*es the wrongdoers an e>ample for the others persons who want to commit such type of crime or warning to criminal minded persons. $alamond considers the deterrent punishment !ery important. It gi!es warnings to all the criminal minded persons to rectify themsel!es.In &eterrent theory punishment intensity or proportion is more than the intensity of crime or offence. riticism:he &eterrent heory pro!ed unsuccessful in chec*ing crimes. E!en though there is pro!ision of se!ere or rigorous punishments in %%?, people still commit crimes.E>cessi!e harsh punishments create sympathy of the public towards those who has done something wrong.

0<

%re!enti!e heory

In this theory the offender is pre!ented to repeat the crime again Br he offender are disabled to repeat the same crime by punishment of imprisonment, death, e>ile and forfeiture. riticism:he %re!enti!e theory concentrated on the prisoner but see*s to pre!ent him offending again in future. =or e>ample of pre!enti!e punishment is the cancellation of dri!ing licence of a person for !iolation of traffic rules so that he may be pre!ented from dri!ing in order to a!oid further accidents.8hen an offender is detained or disabled the family members also suffer as a result, especially in the case where the offender is the sole earning member of the family.8hen the offenders are sent to 0ail under this theory, he turned into crime school and after ac6uittal the turned into more notorious criminal.%re!enti!e %unishments are of temporary nature and they don-t ha!e impact on his inner conscious, rather force him to commit crime again. In reformati!e theory the offender is gi!en some psychological treatment or therapeutic approach of his mind and conduct. his theory belie!es that an offender is a product of the circumstances and it was due to circumstances which compel him to commit such crime. herefore those circumstances are remo!ed or rectified. he ob0ect of the punishment is to transform the criminal person into good human beings and good citi3en. he ad!ocates of reformati!e theory contend that by a sympathetic tactful and lo!ing treatment of the offender a re!olutionary changes may be brought into the character. R+)+ +S,:- 5abitual and hardened criminals cannot be reformed because they don-t commit crimes unintentionally rather intentionally and deliberately. (ccording to this theory the !ictims are gi!en compensation or fine which he pays to aggrie!ed party. he ob0ect of the compensation theory is to compensate the !ictim or !ictim family. o depri!e the offender of his property or possession or sei3e his ban* account as a punishment. a*ing away property is worse than isolating him or *illing him, physical torture or humiliation. R+)+ +S,:- It can be fruitful in common crimes but in serious or se!er crimes this theory is not implementable. If the offender is rich person, he can pay easily and there will be no punishment. the offender who has no property mo!able or immo!able cannot be punished. a*ing away property may lead to frustration and more crimes may be committed out of this frustration. )eeping in !arious theories of punishment we can say that perfect system of criminal 0ustice is not base on any one theory of punishment. E!ery theory has its own merits and demerits. herefore it depends upon nature of crime and the circumstances or e!idence of the crime.

10

#eformati!e heory

11

?ompensation heory

12

?onclusion

'efine ustoms. "hat are its -inds and %hat are its essentials(
01 Introduction ?ustom is the oldest source of law ma*ing. 'obody can say about its origin. ?ustoms are as old as the history of man*ind. he custom is habitual course of conduct which is performed again and again uniformly and !oluntary by the people. E!ery act in society which is considered good and beneficial for all, repeated again and again and it become customs and whole community or society accepts it. In the ancient societies people were regulated by customs which de!elop spontaneously according to pre!ailing circumstances of the time. 8hen one thing or act was done again and again in particular way, it was assumed as customs. ?ustoms means such habits or course of conducts which obser!ed or done uniformly and !oluntarily again and again by the people concerned. ("$ I'./ custom is the rule of the conduct which go!erned, obser!ed spontaneously and not in pursuance of law set by political. ?(# E#./ ?ustom is uniformity of conduct of all person under li*e circumstances. 5BLL('&./ ?ustom is generally obser!e cause of conduct here are two theories of customs. 5istorical heory b. (nalytical heory H+S)#R+ A. )HE#R/:i. (ccording to this theory growth of law from the customs is due to or a result of the intelligence of people. ii. ?ustom is deri!ed from the common consciousness of people. iii. ?ustoms springs from the inner sense of people i!. ?ustoms does not need recognition from the state A0A./)+ A. )HE#R/ i. (ccording to this theory custom is the source of law and not law itself. ii. ( custom becomes law when it is co!ered with acts and state enforces it. iii. ?ustoms are not positi!e laws until they are recogni3ed by state or country. i!. ?ustoms becomes law when it ta*es co!er or dress up with the acts. !. ?ustoms is not binding upon people. !i. ( custom is law when the so!ereign allows doing it. ESSE0)+A. #1 2A.+' 3S)#,S

02

Meanings of ?ustoms

0+

heories of the customs

01

Essentials of !alid customs

i. Reasonableness:- the custom must be useful and acceptable for the society ii. Reflection of justice:- a custom should not reflect the in0ustice. If it reflects in0ustice then it is
not !alid custom

iii. +mmemorial:- the !alid custom should not be temporary and ha!e long history. iv. ontinuity: ?ustom must be repeated again and again v. Peaceful enjoyment:/ he custom must be en0oyed peacefully. 'o danger to life vi. ertainty: - there should not be ambiguity in the custom and it should be clear and definite. vii. ompulsory obser!ance:- ?ustom must be obser!e regularly at definite or specific time
!iii. 4eneral and uni!ersal:- custom should obser!e generally viii. 0ot opposed to public policy: it should not be against public laws ix. onformity %ith state la%5- must be according to law there are two *inds of customs i. Legal ?ustoms and ?on!entional customs Legal customs are such customs whose legal authority is recogni3ed by law of state. Salmond:- Legal custom is such custom which has force of law and it is binding as rule of law.

0A 0C

)inds of customs Legal ?ustoms

02

?on!entional ?ustoms

haracteristics of .egal ustoms: i. It has absolute authority. ii. It has binding force. iii. It has force of law 6inds of .egal ustom:here are two *inds of legal customs 1. Local ?ustoms 2. @eneral ?ustoms i. .ocal ustoms: i. Local customs are such customs which are obser!ed or operates in specific or particular area. It has force of law in that area. =or e>ample basant is local custom because it operates in particular area. haracteristics of .ocal ustoms:i. It has conformity with the statute of laws ii. It base on peaceful en0oyment iii. (uthority of local custom is higher than that of common law i!. It operates in particular area ii. 4eneral ustoms:i. @eneral ?ustom is that which pre!ails throughout country and it constitutes on of sources of law of land. ii. Bnce a general custom is recogni3ed by the courts of law, it cannot be set aside by another custom. iii. =or e>ample most of ") laws consist on general customary law. haracteristics of 4eneral ustoms:i. hese are such customs which are not for a particular area. ii. hese customs pre!ail throughout the country. iii. hese are immemorial customs. i!. here must be continuity in these customs ?on!entional custom means such custom which operated under an established rule. ?on!entional customs means such custom whose authority is conditional on its acceptance. 3SA4E:- Bther name of con!entional custom is usage. he con!entional custom is based upon agreement between two parties. haracteristics of con!entional custom:i. ?on!entional customs arise as a result of agreement between two groups. ii. (uthority of con!entional custom is conditional on its acceptance and incorporation between the parties. ( con!entional custom is an establish practices. iii. ?on!entional custom is legally binding because it e>pressly or impliedly incorporates in contract between the parties. onditions for con!entional ustoms:8ell establish ,'o alternate of general law, #easonable, $ome agreement between two parties ?ustom is the oldest source of law/ma*ing. ,ut with the passage of time its importance is diminishing with growth of legal system. he law relating to succession, inheritance, property, contract etc are e!ol!ed from customary rules.

04

?onclusion

.egislation 01 Introduction

02

Meanings of Legislation

0+

$enses of legislation

01 0A

)inds of legislation $upreme Legislation

Legislation means the power to ma*e laws. 8e can say that legislation is most potent and so!ereign source of law ma*ing. his is first gate of law. here can be no law without legislati!e act. he legislation has powers to enact laws, repeal the old laws or modify or ma*e amendments in law according to changing political and social conditions of the country. Judiciary only can interpret the laws but legislation has powers to ma*e laws. Legislation also called 7statutory law7E is law which has been promulgated For 7enacted7E by a legislature or other go!erning body, or the process of ma*ing. ,efore an item of legislation becomes law it may be *nown as a bill, and may be broadly referred to as 7legislation7 while it remains under consideration to distinguish it from other business. Legislation can ha!e many purposes. to regulate, to authori3e, to proscribe, to pro!ide FfundsE, to sanction, to grant, to declare or to restrict. Legislation is usually proposed by a member of the legislature Fe.g. a member of ?ongress or %arliamentE, or by the e>ecuti!e, whereupon it is debated by members of the legislature and is often amended before passage. hose who ha!e the formal power to create legislation are *nown as legislators: a 0udicial branch of go!ernment will ha!e the formal power to interpret legislation Fsee statutory interpretationE: the e>ecuti!e branch of go!ernment can act only within the powers and limits set by the law. ,lac*-s Law &ictionary./ Legislation means power to ma*e laws or powers to enactment of laws. @ray./ Legislation means the formal utterances of legislati!e organs of society $almond:/ Legislation has three senses (ustin. there can be no law without legislati!e act i. 8idest sense. / In widest sense it means to ma*e new rules for human conduct and includes all rules or laws for e>ecuti!e and 0udicial system ii. echnical sense./ In technical sense it mean a statute which is enacted by legislati!e organ and which is distinguished from other organs Legislation are of two types 1. $upreme Legislation 2. $ubordinate Legislation i. Legislation which proceeds from the supreme or so!ereign power in the state is supreme legislation. ii. he supreme legislation cannot be repealed, annulled or controlled by any other legislati!e

0C

$ubordinate Legislation

02

)inds of $ubordinate Legislation

02

=orms of Legislation

04

?ontrol of legislation

0<

(d!antages of legislation

10

&isad!antages

11

?onclusion

authority. $ubordinate legislation is that legislation which proceeds from any authority other than the so!ereign power and is therefore dependent for its continued e>istence and !alidity on some superior or supreme authority. $almond. $ubordinate legislation is such legislations which proceed from any authority other than so!ereign power. haracteristics of subordinate legislation i. It is not independent legislation ii. It has no political force iii. It proceeds from any authority other than so!ereign power i!. It depends on continuous e>istence !. It may repeal !i. It can change i. olonial .egislation: Legislation by legislature for the colonies or other dependent states or functioning under ?rown. Imperial legislature or supreme legislature can suspend, supersede, and alter any colonial enactment. ii. Judicial .egislation:he superior courts ha!e the power of ma*ing rules for the regulation of their own procedure: these rules are termed 0udicial legislation. iii. ,unicipal .egislation:-Municipal authorities are entrusted by the law with powers to ma*e their special laws for the districts under their control. his is also called bye/laws i!. Autonomous legislation:he autonomous bodies or corporations, associations, trade unions, railway companies and uni!ersities can ma*e their own rules. v. 'elegated legislation or E$ecuti!e .egislation:/ he supreme legislation or legislature 6uite often delegates its powers to other organs e.g e>ecuti!e. he rules made in pursuance of this delegated powers are e>ecuti!e or delegated legislatures but they may be repealed or supersede by the legislatures whene!er re6uired. 'irect .egislation:he framing of laws by the legislature is direct legislation. ?olonial legislation is a type of direct legislation because here law ma*ing power is e>ercised by a legislati!e body. +ndirect .egislation:8hen legal principles are declared by some other sources to whom law ma*ing power is confided by the legislature, it is *nown as indirect legislation. E>cept colonial legislation all other forms of subordinate legislation are instances of indirect legislation. Parliamentary control. %arliament can refuse, amend or alter or appro!e the bill being supreme legislati!e body Parliamentary super!ision 5 where parliament directly super!ise the legislatures Judicial control: 8hile parliamentary control is direct, the control of courts is direct. ?ourts cannot annual subordinate enactments but they can declare them inapplicable in particular circumstances. rustworthy body %ublicity. E>pert-s opinion are controlled factors o!er legislation. i. Legislation cannot be repealed e>cept by $upreme ?ourt ii. Legislation is constituti!e and abrogati!e means that it can ma*e laws and repeal own laws iii. Legislation creates statute law i!. Legislation remo!es ambiguity and !agueness in the laws !. Legislation brings efficiency in the administration of the go!ernment and 0udiciary !i. Legislation satisfies the natural 0ustice phenomena !ii. Legislation pro!ides s*eleton or frame wor* for other constitutions !iii. Legislation has power of self criticism and self re!ision i>. he aim of the legislation to protect and progress of the society. >. It brings uniformity in territory and creates close relationship b;w man and the state i. Legislations are rigid, courts and e>ecuti!e bodies cannot perform duties out of enactment or framed laws ii. $ince legislatures are associated with some party so they frame legislatures of their own choice which full fill their own desires. iii. Layman cannot understand the technical language. i!. $tatues laws or laws framed by legislatures are not self e>plained and ambiguity remains. Legislation is most recent and powerful source of law. In a wider sense it includes all methods of law. (ccording to &icey, Legislation is necessary instrument for the growth and reformation of law.

&uestion of fact and &uestion of .a% 01 Introduction &uring

02

Guestion of fact

the course of prosecution in the courts, two types of 6uestions arise, one is 6uestion of law and other is 6uestion of fact. Guestion of law is such 6uestion whose answers is already described or mention in the law. 8hile on the other hand 6uestion of the fact is such 6uestion which relates to the factual or actual position of the case and whose answers has not already been answered by some law. (lthough both are *inds of 6uestions yet there are some differences between them on the basis of nature, concepts and ob0ect. If the 6uestion relates to factual position or whose answer is not prescribed or mention in the law, then such 6uestion will be 6uestion of fact. Guestion of fact is factual position of case or actual incidents or happenings of the case.It are not matter of opinion. E!idence is gi!en to find out the true facts of the case. Guestion of facts can

0+

?haracteristics of Guestion of fact

01 0A

Guestion of law ?haracteristics of Guestion of Law

0C

&ifference between Guestion of =act and Guestion of Law

be pro!ed by means of demonstration. i. It relates to factual position of the case ii. he answer of Guestion of fact is not prescribed by any law iii. Judicial discretion has a lot of importance in it i!. Guestion of fact always decide by the 0ury !. here is no need to pro!e the Guestion of fact. !i. Bpinion of the 0udge has great importance in respect of 6uestion of fact. !ii. Guestion of fact can be pro!e through e!idence and demonstrations !iii. In 6uestion of fact court finds the actual truth i>. In 6uestion of fact important thing is how an incident or accident happens >. In 6uestion of fact the decisions are not clear. If a 6uestion relates to legal affairs or if answer of 6uestion is already prescribed by any aw then such 6uestion will be 6uestion of law. i. Guestion of law relates to legal affairs. ii. (nswer of 6uestion of law always prescribed by law. iii. Judicial discretion has not any importance in the 6uestion of law. i!. Guestion of law decides by the 0udge !. here is no need to pro!e the 6uestion of law because it is already pro!ed !i. Bpinion of 0udge has no importance in respect of 6uestion of law. !ii. In the case of the 6uestion of law there is codified law so there is no ambiguity or comple>ity !iii. In 6uestion of law priority is that what law says i>. In 6uestion of law decisions are clear. In law, a 6uestion of fact Falso *nown as a point of factE is a 6uestion which must be answered by reference to facts and e!idence, and inferences arising from those facts. $uch a 6uestion is distinct from a 6uestion of law, which must be answered by applying rele!ant legal principles. he answer to a 6uestion of fact Fa 7finding of fact7E is usually dependent on particular and circumstances or factual situations. o illustrate the difference. Guestion of fact. &id Mr. and Mrs. Jones lea!e their 10/year/old child home alone with their baby for 1 days9 Guestion of law. &oes lea!ing a baby with a 10/year old child for 1 days fit the legal definition of child neglect9 (ll 6uestions of fact are capable of proof or disproof, by reference to a certain standard of proof. &epending on the nature of the matter, the standard of proof may re6uire that a fact be pro!en to be 7more li*ely than not7, that is there is barely more e!idence for the fact than against, as established by a preponderance of the e!idence: or true beyond reasonable doubt. (nswers to 6uestions of fact are determined by a trier of fact, such as a 0ury,
8ar and administration of 0ustice are two most essential functions of the state. If $tate is incapable of performing these two functions, it cannot be called as state. (dministration of 0ustice means the maintenance of peace and order within political community by means of physical force of the state. he good administration of 0ustice mans the @o!t. and its institutions are wor*ing properly and there is good coordination b;w them. @ood and efficient 0udiciary system guarantees good go!ernance and administration. (dministration of 0ustice means the maintenance of peace and order within the political community by means of physical force of the state. hroughout history, man has sought some *ind of re!enge or remedy for wrongs done against his person or property. (dministration of 0ustice is the modern and clinical treatment for all the e!ils and wrong practices in the society. =or sound administration of 0ustice physical force of the state is the prime re6uirement. Bther factors which help administration of 0ustice and command obedience of law include social sanction, public opinion, con!enience etc. Salmond:(dministration of 0ustice means the maintenance of right within the political community by means of physical force of the state. riticism: his is not only force of the state which guarantee the administration of 0ustice and ensures the obedience of law. here are number of other factors such as social sanctions, habit and con!enience which help in the obedience of law. he supporters of definition says that if the force of the state is not used for obedience then the control of the state has disappeared 1irst stage:=irstly there was the concept of pri!ate system of punishment and !iolent self help. In primiti!e times might was the sole right. E!ery man was his own 0udge. ( person wronged would ta*e re!enge by his own hands. Second Stage:8ith the rise of political states, the pri!ate system of punishment con!erted into state punishments and regulated by the state and state pro!ided the rules eye for an eye and tooth for tooth. )hird Stage:Lastly a stage arri!ed when enactment rules and laws formed and concept . pri!ate punishment

Administration of Justice 78 +ntroduction

79

'efinition and criticism

7:

#rigin and 4ro%th of Administration of Justice

7;

0eed of administration of Justice 6inds of Justice

7<

7=

'ifference bet%een i!il Justice and riminal Justice

02 04

&isad!antages of Justice ?onclusion

con!erted into administration of ci!il and criminal 0ustice. 8ithout administration of 0ustice, life of man li!ing in the society would be insecure, poor and nasty. (dministration of 0ustice is necessary due to following reasons. "niformity and e6uality in the society. =or protection of ci!il and public rights =or peace and stability. Integration of the society. $mooth running of the state machinery 'ecessary to chec* the in0ustice. 'ecessary to a!oid lawlessness. o educate the people. o promote 0ustice and fair play. o promote welfare. o promote e6uality here are 1 types of 0ustice %ublic %ri!ate ?i!il ?riminal Public Justice:%ublic Justice is administered by the state by establishing it own tribunals and courts e.g Labor ?ourts, $er!ice ribunals, (ppellate ribunals etc Pri!ate Justice:%ri!ate Justice is 0ustice between indi!iduals. It is the end for which the courts e>ist and public 0ustice is the means through which this end is fulfilled i!il Justice ?i!il Justice results from the infringement of pri!ate right. If a right of a person is !iolated and it only concerns or directly affects him. riminal Justice:?riminal 0ustice results from the infringement of a public right. E!en if the offence is committed against one person but the nature of the offence is such that the state steps in and considers it to be an infringement of a public right. i!il Justice riminal Justice ?i!il Justice means 0ustice which addresses ?riminal Justice means 0ustice which the rights of pri!ate indi!iduals or of ci!il addresses the public wrong or wrongs nature of public nature #ights in rem and trespass are preser!ed #ights in personam is preser!ed In ci!il 0ustice ci!il rights are protected In criminal 0ustice public rights are protected ?i!il 0ustice deals within the ci!il proceedings %a*istan %enal ?ode, ?r%? apply of ?%? or statute law during prosecution Dictim party file a suit $tate file a petition or file a complaint ?i!il wrongs are of no much harmful and they ?riminal 8rongs are harmful to the effect only indi!iduals society and whole society suffers a lot %laintiff Ds &efendant $tate Ds (ccused Judgement or results are in the form of &eath penalty, imprisonment, fine, in0unctions, $pecific performance or damages flogging and other rigours punishments or e>emplary punishments In ci!il 0ustice no benefit of doubt is gi!en to In ?riminal Justice benefit of doubt go accused to accused In ci!il 0ustice only a plaintiff can pardon ?riminal 0ustice wali or state can pardon he ob0ect of ci!il 0ustice is to enforce right he ob0ect of criminal 0ustice is to punish wrongdoers #igidity ?omple>ity =ormalities "nable to *eep up with changing social needs. o conclude it is right to say that 0ustice is permanent feature of the society and basic function of the state. ,ecause it maintains the peace in the society and obedience of law and it gi!es protection to the primary rights and without there would not be supremacy of the @o!t. administration of the 0ustice is the e>cellent test of the efficiency of the @o!t. according to Lord ,ryce an efficient 0udicial system is a sign of good political society.

"hat is la%> %hat are its -inds %hat is imperati!e la% and 0atural .a% 78 +ntroduction he term law is deri!ed from @erman word Lag which mean fi>ed or e!enly. Law is body of principles recogni3ed and applied by state in administration of 0ustice.(cts of nature are also *nown as laws and these laws called natural law. In e!ery society there e>ist rules that regulate human conduct and thus customary rules are formed and such customary rules are transformed into laws when state gi!es them legal recognition and ta*e the responsibility to enforce them. (cts of human conduct are *nown as positi!e laws and these laws can be change by legislation. 79 ,eanings and ,eanings of la%:,ody of rules promulgated by @o!ernment. definition 'efinition of la%. Austin:Law is command. It imposes duty and is bac*ed by sanction 4reen5Law is system of rights and obligation which state enforces. Holland: Law is general rule of the e>ternal human action enforced by political so!ereign. Salmond:,ody of principles recogni3ed and applied by state in the administration of 0ustice 7: 6inds of .a% Laws in wide sense are di!isible into following categories. +mperati!e la%:Imperati!e law means a rule which prescribes a general course of action imposed by authority which enforces it by superior power either by physical force or any other forms of compulsion Physical la%:(ll laws are physical in which natural or general principles of the uni!erse are functioning and there is uniformity and harmony in the uni!erse as a result. $uch as laws of astronomy, chemical reactions 0atural and moral la%:,y natural law mean principles of natural right and wrong, the principles of natural 0ustice. 'atural

laws also called di!ine law, the law of reasons or uni!ersal laws on!entional la%:?on!entional law means any rule or system of rules agreed upon by persons for regulation of their conduct towards each other. It is type of special law ustomary la%: ?ustomary law means any rule of action or conduct of human beings which is actually obser!ed again and again in uniformity and !oluntary. )echnical la%:$uch rules which create for solutions of technical or practical problems e.g laws of health, laws of architecture, music laws, rules of manufacturing. +nternational la%:hose rules which go!ern so!ereign states in their relations and conduct towards each other. onstitutional la%5 It includes all rules and regulations create by legislati!e bodies and pro!ide framewor* for all other pillars of the state. $o!ereign body ma*es such laws and enforces them. i!il la%:ci!il law is the law of state or law of the land, the law of the lawyers and the law of courts. ?i!il law protect the rights of indi!iduals i.e rights in rem riminal la%: ?riminal law protects rights in personam on!entional la%: ?on!entional law originates as a result of the agreement b;w two parties and it is law only for those who ha!e agreed to be bound by it. E!en they are not recogni3ed by state, they constitute law in generic sense. 8hen they are recogni3ed by the state it is enforceable by law .ocal la%:Local law is the body of law which are for specific territory of the state e.g municipal corporation laws, district go!ernment law. (ll bye laws fall under the definition of local law. Special la%:$pecial laws are those legal rules which are formed for specific time of period for specific purpose and when target or purpose achie!ed they become null and !oid. 4eneral la%5@eneral Law means territorial law or ordinary law of the land. Its application is thought of the country and is recogni3ed by courts and there is no special condition for their enforcement. Pri!ate la%: %ri!ate law deals with the inter/relationship b;w citi3ens Administration la%:(dministrati!e law defines the powers, organi3ations and duties of administration or e>ecuti!e. onstitutional la%:?onstitutionally law defines the all rules and regulations which are necessary for smooth functioning of go!ernment and 0udiciary machinery. It also pro!ides frame wor* or s*eleton to other laws such as ci!il criminal etc. Autonomic la%:Laws form by autonomous bodies li*e railway, %I(, "ni!ersities etc ,artial la%:Law form by military dictator when he occupied the realm or snatch by force. It is also called military law and thus suspends the constitutional or democratic law. ,ercantile la%:It is also *ind of special law and it apply in wor*ing business trade and commerce %ri3e law: pri3e law is part of international law in which law apply on pirates, who capture ships and cargos at sea in time of war 01 ?onclusion o conclude it is right said that law is system of rights and obligations which state enforces. (nd e!ery law is gift of @od and decisions of sages. here are many forms of law. (cts of nature are *nown as laws of nature. (cts of human conduct are *nown as positi!e laws. Laws of nature cannot be change while positi!e laws can be change.

Austin )heory of .a% or +mperati!e )heory of .a% 78 +ntroduction (ustin theory re!ol!es around that command is only for so!ereign. (ustin separates morality and law. 5e considers no similarity b;w morality and law.5is theory does not relate to the nature of law rather it relates to the machinery and mechanism thorough which it is enforced. 5e presented imperati!e theory of law and denounce the theory of naturalist. Law is the command of the $o!ereign. John (ustin belongs to the analytical school of law and is widely considered to be the founder of positi!e law. 79 )hree elements of hus, the three elements of law are. 1. ( command la% in Austin 2. ( so!ereign )heory +. ( sanction 7: A command (ccording to (ustin, law is not the same as morality. It deals with what is and not with what should be. It is imperati!e. It is the command of the *ing. he coerci!e force behind law is its essence. Jurisprudence is not the same as ethics. It is an independent discipline. he theory has often been critici3ed for not including moral considerations but this was apparently not what 5obbes had intended H the way he saw it, such an analysis was preliminary to critical assessment which was, through utility, to help re!eal heretofore unre!ealed di!ine laws. 7; Austin )heory of E!ery positi!e law or e!ery law simply and strictly so called is set by so!ereign indi!idual or so!ereign body of indi!iduals to a person or persons in a state of sub0ection to its author. Ingredients of (ustin .a% %ositi!e Law. It is a type of command It is laid down by a political so!ereign. It is enforceable by sanction. 7< .a% is type of (ccording to (ustin e!ery law is in the form of command. ( command is an e>pression of desire gi!en by superiors to inferiors. he superior en0oy the powers and he has ability to punish inferiors command who disobey him. 7= All commands are (ustin distinguishes laws from other commands by their generality. Laws are general commands.

7?

not la%s .a% is gi!en by so!ereign

Laws are standing orders of military station which remains in force. (ustin second re6uirement of law is that only that command should be gi!en by some so!ereign or some supreme power. o (ustin, a so!ereign is any person or body of persons whom the bul* of political society habitually obeys and who does not obey him he punishes them. (ccording to (ustin there is no so!ereign there is no law. 5e says that the relation b;w the so!ereign and law is the relation b;w the centre and the circumference. (ccording to so!ereign the powers of so!ereign cannot be di!ided and so!ereign is continuous. (ccording to (ustin, law is law until it is effecti!e and generally obeyed. 5owe!er perfect obedience is not necessary. In case of non compliance with the command, one has to face the conse6uence in the form of sanctions. here must be law enforcing agencies who implement the law in letter and spirit. .a%s before the state5he laws which were e>isted before the creation of state or go!ernment were not in the form of commands from so!ereign body. It had its source in customs, religion, ethics or public opinion and was not !ested in some authority or so!ereign or some political superior. herefore (ustin theory that there must be so!ereign who gi!e command fails. 4enerality of .a%5 (ccording to (ustin Law is general and for e!ery indi!idual and they must obey but it is not happens so. (ll persons don-t obey the laws in their full sense. .a% as command: (ccording to (ustin, law is command of so!ereign but all laws cannot be e>pressed in terms of command. he greater part of the legal system consist of laws which neither command nor forbid things to done. Laws not only define duties but also gi!e rights. 'ot applicable in modern democratic societies. (ustin theory of law may be true in monarchy or state where there is dictatorship but not applicable in true democratic states. 0ot applicable to international la%5$ince the world has become global !illage. (ustin theory of law does not apply to constitutional law which cannot say command of so!ereign. he constitutional law defines the powers of !arious organs of the state. Austin theory is against the ethical element5here is smell of dictatorship and against the ethics. End of law is 0ustice and not the punishment. End of 0ustice gi!es you rights and it is bonafide and gi!es you rights. (ccording to (ustin e!ery law is in the form of command. ( command is an e>pression of desire gi!en by superiors to inferiors. he superior en0oy the powers and he has ability to punish inferiors who disobey him.

7@ 7A

Sanctioned by la% riticism of +mperati!e )heory of .a%

87

onclusion

Primary and Secondary functions of the ourt 78 +ntroduction ?ourt is an organ

79

Primary functions of the court

of the @o!ernment belonging 0udicial department. ,asically court performs two types of functions, primary functions and secondary functions. In primary functions court acts as a form through state administer the 0ustice. $econdary functions are in facts the functions of the state but delegate to the courts for the con!enience of state. E>amples of the $econdary functions are (ctions against $tate, &eclaration of rights etc. i. he primary function of the court is to administer the 0ustice. ii. o ensure that 0ustice is done iii. o ad0udge the case according to the laws of land. i!. o enforce the laws of land by the application of sanctions. !. It is primary function of court to enforce the rights. !i. It is primary function of court to punish the wrongdoers. i. $econdary functions means such functions which in reality are the functions of the state itself but state delegate to the courts of law for the con!enience of state. ii. $econdary functions can change with the passage of time or can be different society to society. $econdary functions of courts of law are based on practical implication. i. (ctions against state ii. &eclaration of rights iii. (dministration i!. itle of rights his is main secondary function of court. It means that courts of law e>ercise in the first place, the function of ad0udicating upon the claims made by the sub0ects or people against the state. In the past when some person wanted to claim against state then in such situation there was only a way of complaint for him was petition of right. 'ow a day if a sub0ect claims against state then he is at liberty to ta*e proceedings in a court of law by an ordinary action for the determination of his right in the matter. E>amples.

7:

Secondary 1unctions of the courts

7;

.ist of secondary functions

7<

Actions against state

i. If some person claims that a debt is due to him from the crown has bro*en a contract with him or wrongfully detains his property then he is at liberty to ta*e proceedings in court by an ordinary action for the determination of his right. ii. %ractice in %a*istan. article << of the ?onstitution of Islamic #epublic of %a*istan 1<2+ lays down these matters may go directly to the 5igh ?ourt. =ollowing are claims in the form of petitions against state i. 5abeas ?orpus ii. %rohibition iii. Mandamus i!. ?ertiorari !. Guo 8arranto It is called writ petition in %a*istan. he enforcement of writ is secondary functions of the courts.
7= 'eclaration of rights

In certain cases the plaintiff does not as* for the enforcement of any right but as* for declaration of such right which does e>ist and such declaration *now as a declaration of right. 8hen a plaintiff can as* or claim for declaration ( plaintiff can claim for the declaration when the rights are uncertain then in such condition the court gi!es authoritati!e declaration of right of the person concerned. i. Bb0ect./ he ob0ect of declaration of right is not punishment but only declaration. ii. &eclaratory $uit./ 8hen a person wants the declaration then for this he files a suit and this suit is called &eclaratory $uit. iii. E>amples: i. &eclaration of legitimacy ii. &eclaration of nullify of marriage iii. (uthoritati!e interpretation of wills

7?

Administration

In this functions all those cases in!ol!e in which the court of 0ustice underta*e the management and the distribution of the property. E>amples Li6uidation of company./ If a company winds up then in this situation, the court will distribute shares among the partners of company. (dministration of property of deceased person./ in such case court will appoint guardian court appoints him only for the safety and administration of deceased-s property. It means a procedure where right of an indi!idual created and transferred and e>tinguished. E>amples i. ( decree of di!orce or 0udicial separation ii. (n ad0udication of ban*ruptcy. iii. (n order of discharge in ban*ruptcy i!. (n order of appointing or remo!ing trustees !. Desting or charging orders !i. ( grant of letters of administration o conclude it is right to said that court performs two types of functions. %rimary functions of the is the administration of 0ustice and to ensure that 0ustice is done whereas secondary function are actually functions of the sate but state has delegated its powers to the ?ourt. Liability is the ultimatum of law. In fact this word is used to describe the condition of a person who has a duty to perform. Liability is responsibility for on act or omission. 8hosoe!er commits a wrong is said to be liable for it.Liability arises from a breach of duty which may be in the form of an act or omission. here are many *inds of liability such as ci!il, criminal, penal, remedial, and constructi!e. 8rongdoers may be punished by imprisonment, fine etc. i. ,lac*-s Law &ictionary.

7@

)itle of rights

7A

onclusion

.iability and its 6inds 78 +ntroduction

79

'efinition of

liability

7:

.ist of liability

7;

i!il liability

7<

riminal liability

7= 7?

Remedial .iability Penal liability

(n obligation one is bound in law or 0ustice to perform ii. $almond./ Liability is the bond of necessity that e>ists b;w the wrongdoer and remedy of wrong. iii. Mar*by./ he wor*ed liability is used to describe condition of a person who has !iolated right or acted contrary to duty. i. ?i!il Liability ii. ?riminal liability iii. #emedial liability i!. %enal liability !. Dicarious liability !i. (bsolute or strait liability ?i!il liability is enforcement of the right of plaintiff against defendant in ci!il proceedings. ?i!il liability is measured by the magnitude of wrong done E>amples./ e>amples of ci!il proceedings are an action of reco!ery of a debt, restoration of property, reco!ery of damages, in0unctions. ( criminal liability gi!es rise to criminal proceedings whose purpose is to punish wrongdoer. he criminal liability is measured by moti!e, intention, character of offender and magnitude of offence consider. It may be happen in assault, defamation, theft, malicious in0ury in property. 8hen same wrong gi!e rise to both ci!il and criminal proceedings then in such situation wrongdoer may be punished by imprisonment or he may be ordered to pay compensation to in0ured party. E>amples./ Imprisonment of life, death plenty and fine If after successful proceeding, the defendant is as*ed to pay damages or pay a debt or to ma*e specific performance etc, the liability is called remedial liability %enal liability is such liability in which punishment awards to wrongdoer for wrong. =or e>amples death penalty, imprisonment for life etc. %enal labiality can arise either from a criminal or ci!il wrong. ?onditions. there are two conditions of penal liability i. (ctus #ea: It is material condition of penal liability. It is physical condition of liability ii. Mens #E(. It is mental condition of liability. It is formal condition of penal liability his is such liability in which a person is made liable for the wrongs committed by another."sually a person is liable for his own wrong but in !icarious another becomes liable for wrong of the wrongdoer. Situations %hen !icarious liability arises Dicarious liability occurs in two cases i. Master and ser!ant ii. #epresentati!es of a dead man It is *ind of liability in which a person becomes liable whether he has committed an offence or not or without his fault. 'ature./ Law does not in6uire whether guilty person has committed wrong intentionally, negligently or innocently. It merely presumes formal conditions of the liability. 8rong of absolute or strict liability Mista*e of law Mista*e of act Ine!itable accident Mista*e of law. It is based on legal me>im that ignorance of law has no e>cuse. his wrong shows that if a person commits or offers an account of mista*e of law, then it would be no e>cuse in the eye of law and he is liable to punished although he had no guilty mind at the time of committing offence. It the duty of e!ery citi3en to get *nowledge of law of that part which is concerns to him. Mista*e of fact Mista*e of fact is good defiance but in the criminal cases but in ci!il law is in!ol!es absolute liability. Ine!itable accident. Ine!itable accident is good defense or ground of e>emption from liability in ci!il and criminal cases. Liability is ultimatum of law. (nd it is bond of legal necessity. It is ultimate ob0ect of law because by this the wrongdoer suffers. It can be a!oided. here are many *inds of liability such as penal, strict liability and ci!il liability etc.

7@

2icarious liability

7A

Strict .iability

87

onclusion

Possession 78 +ntroduction

79

'efinitions of possession

In law the possession is the physical control of a person o!er some material or immaterial thing intentionally. In all cases, to possess something, a person must ha!e an intention to possess it. %ossession means ac6uire, detention, ta*ing o!er the right of property or some material thing. %ossession is also claim of right o!er something and the person in possession en0oys its benefits. ( person has possession of something if the person *nows of its presence and has physical control of it, or has the power and intention to control it. IMore than one person can be in possession of something if each *nows of its presence and has the power and intention to control it.J he law recogni3es se!eral *inds of possession. ( person may ha!e actual possession or constructi!e possession. ( person may also ha!e sole possession or 0oint possession. ( person who has direct physical control of something on or around his person is then in actual possession of it. ( person who is not in actual possession, but who has both the power and the intention to later ta*e control o!er something either alone or together with someone else, is in constructi!e possession of it. If one person alone has possession of something, possession is sole. If two or more persons share possession, possession is 0oint. $almond: %ossession reflects a relation of a person with a material ob0ect which a person continues claim of its ownership and e>clusi!ely use it and en0oy all the benefits attached with it. %ossession is prima facie e!idence of title of ownership he long possession is also sufficient proof of ownership he person in possession is presumed to be the owner. he first possession constitutes a good title to it. he person in possession can en0oy the benefits of it. %ossession is one of the most important concepts in property law. In common law countries, possession is itself a property right. (bsent e!idence to the contrary, it pro!ides e!idence of ownership. %ossession of a thing for long enough can become ownership. In the same way, the passage of time can bring to an end the ownerKs right to reco!er possession of a thing. In ci!il law countries, possession is not a right but a FlegalE fact which en0oys certain protection by the law. It can pro!ide e!idence of ownership but it does not in itself satisfy the burden of proof. =or e>ample, ownership of a house is ne!er pro!en by mere possession of a house. %ossession is a factual state of e>ercising control o!er an ob0ect, whether owning the ob0ect or not. Bnly a legal Fpossessor has legal groundE, bona fide Fpossessor does not *now he has no right to possessE and regular possession Fnot ac6uired through force or by deceitE can become ownership o!er passage of time. ( possessor en0oys certain 0udicial protection against third parties e!en if he is not the owner. here may be !arying degrees of rights to possession. =or e>ample, if you lea!e a boo* that belongs to you at a cafe and the waiter pic*s it up, you ha!e lost possession. 8hen you return to reco!er the boo*, e!en though the waiter has possession, you ha!e a better right to possession and the boo* should be returned. his e>ample demonstrates the distinction between ownership and possession. throughout the process you ha!e not lost ownership of the boo* although you ha!e lost possession at some point. here are two elements of possession i. ?orpus %ossession ii. (nimus possidendi orpus Possession ?omplete control or complete physical control o!er something possession. ( person ha!ing possession must en0oy its benefits. is called corpus

7:

+mportance of possession

7;

Elements of possession

Animus Possidendi (n intention to possess something is called (nimus %ossidendi. 'ormally, it is pro!ed by the acts of control and surrounding circumstances. hus animus possidendi ha!e following important points he possessor must ha!e e>clusi!e claim o!er the thing which he has possessed he possessor must use and en0oy the possessed thing

7<

,odes of acBuiring of possession

he possessor must ha!e intention to claim o!er its possession. %ossession is ac6uired and complete whene!er there is union of two elements of possession i.e animus and corpus. here are three modes of ac6uisition of possession Cy ta-ing It is the act of ac6uiring possession with or without the consent of pre!ious possessor. 6inds of ta-ing #ightful ta*ing #ightful ta*ing possession is ac6uired by the consent of a person already holding that thing. E.g $hop*eeper gets the money and customer gets possession of the things. Briginal ac6uisition It is such possession of property where nobody claims o!er it as ownership or possession. =or e>ample capturing of wild animal which does not belong to any one. 8rongful ta*ing It is one which is ac6uired wrongfully without the consent of its pre!ious possessor or already who possessed it. E.g stealing of things Cy deli!ery It is the act of ac6uiring possession with the consent of pre!ious possessor. It may be of two *inds (ctual &eli!ery (ctual deli!ery is the transfer of immediate possession from its pre!ious possessor to new possessor. ?onstructi!e deli!ery ?onstructi!e deli!ery is the mode of ac6uiring possession to two persons 0ointly. ,y operation of law his ac6uiring of possession ta*es place when court passes orders or gi!es some in0unctions or directions for possession. =or e>ample in the case of death of the possession of property passes from the deceased person to his legal heirs or representati!es. %ossession is prima facie or ample proof or e!idence of ownership ransfer of possession is one of the chief modes of transfereing ownership Long ad!erse possession shows title of ownership he first possession of thing has ad!antage o!er the second possession. =ollowing are types of possession i. ?orporeal and incorporeal possession ii. Immediate and mediate possession iii. ?oncurrent possession i!. %ossession in fact and possession in law !. ?onstructi!e possession !i. (d!erse possession ?orporal possession is the possession of a material ob0ect whereas the incorporeal possession anything other than a material ob0ects. ?orporeal possession is commonly called the possession of a thing and incorporeal possession is commonly *nown as the possession of right. he person who directly ac6uire or detain the possession of property or thing is called immediate possession and the person who ac6uire things or attain its possession through another person is called mediate possession. he other person may be agent or ser!ant. In such case actual possessor authori3e his agent or ser!ant to attain its possession on his behalf. $almond instances three types of mediate possession. firstly, that
ac6uired through an agent or ser!ant: secondly, that held through a borrower, hirer, or tenant where the res can be demanded at will: thirdly, where the chattel is lent for a fi>ed time or deli!ered as security for the repayment of a debt.

7=

.egal conseBuences of possession

7?

6inds of possession

7@

orporeal and incorporeal possession +mmediate and mediate possession

7A

87

oncurrent possession

It is not actual possession. It is possession in law but no possession in fact. ( person who, although not in actual possession, *nowingly has both the power and the intention, at a gi!en time, to e>ercise dominion or control o!er a thing, either directly or through another person or persons, is then in constructi!e possession of it. =or e>ample the owner of 0ewelry in a deposits that bo> with someone else but he himself has the *ey to that bo>, he is said to be in constructi!e possession of it. (d!erse possession is such possession, in which a person holds, detains or claim that he has initially holds the land on behalf of some other person and for !ery long period and no one claim of right of possession for the last 20 years or so. If ad!erse

88

Ad!erse possession

89

Actual possession

possession continues peacefully for a prescribed time of period, then title of true owner is e>tinguished and the person in possession becomes true owner of the land.. ( person who *nowingly has direct physical control o!er a thing, at a gi!en time, is then in actual possession of it.

$r. 'o. 01

$ub0ect Introduction

.egal rights #ights are legal, social, or ethical principles of freedom or entitlement: that is, rights are the fundamental normati!e rules about what is allowed of people or owed to people, according to some legal system, social con!ention, or ethical theory. #ights are of essential importance in such disciplines as law and ethics, especially theories of 0ustice and deontology. #ights are often considered fundamental to ci!ili3ation, being regarded as established pillars of society and culture, and the history of social conflicts he purpose of administration of 0ustice is to maintain peace, law and order and o!erall the protection of rights of people or public by use of physical force and punishing the wrongdoers or who !iolate or infringe the rights. 'ow 6uestion arise what are legal rights. Legal rights are those which are granted by any statute of laws. #ights are interests of the indi!idual or person protected by law. 8here there are wrongs, there will be interests and where there are interests, there will be rights. hese rights may be moral or legal. here are two *inds of rights a. Moral #ights b. Legal #ights aEMoral #ights ( moral right is also called natural rights and such rights are recogni3ed and protected by rule of morality and the !iolation of moral right would be moral wrongs and it is moral duty to protect the moral right. bELegal #ights ( legal rights are such rights which are recogni3ed by rule of law and its !iolation is legal wrong and it is legal duty to protect the legal rights.

02

)inds of #ights

?haracteristics legal #ights

of Legal rights are freedom of speech, freedom of mo!ement, freedom of worship. hese are all fundamental rights of people which are granted by state through statue of laws. itle holder, ob0ect, and conte>t are essentials of legal rights. In the legal right there are three parties first is state, second is person or persons on whom the right confer and third person on whom duty imposes. Legal rights are enforcing by way of damages, in0unctions or we can say it is primary functions of the courts to preser!e the legal rights of citi3ens. here are many *inds of legal rights such as perfect and imperfect, positi!e and negati!e rights. here are a number of distinguishing features of rights. $ome of these are. FiE ( right is always !ested in a person but not in an inanimate being or animal or e!en a dead person. FiiE ( right is generally correlati!e of a duty in relation to the fulfillment of a right. FiiiE he right must relate to a sub0ect matter, namely the ob0ects, which in a gi!en case may relate to a person or property, place or a thing. Fi!E he nature of a right may be to get something done from another or to refrain him to do something. hus, there may be a right to get bac* the money lent, or to get the house built as per agreement, or to pre!ent a person to trespass upon your property. F!E E!ery right can be traced to a source which may be a contract, a custom, a natural law, etc.

Essentials of legal )itle

rights

itle of legal right is important essential. =acts must show how right !ests in owner of right. =or e>ample if a person purchases house then he gets the title of house now it is the duty of others to admit his right of ownership. )itle Holder here should be a person who is owner of right. 5e is main role of legal right. #bject Bb0ect of right should be positi!e and effecti!e and lawful. onte$t ?onte>t is an act which sub0ect of incidence is bound to do or it may be a forbearance on his part. Subject of duty ( legal right arises against another person who is bound to perform the duty. he duty of one person is the right of other person. Perfect and imperfect:%erfect rights are enforceable through court action but imperfect rights are not.%erfect right arise in case of perfect duty and imperfect right arise in case of imperfect duty. %erfect right is recogni3ed by law and imperfect does not recogni3e by law. Positi!e and negati!e:%ositi!e right arises in case of positi!e duty and negati!e right arises in case of negati!e duty. %hilosophers and political scientists ma*e a distinction between negati!e and positi!e rights Fnot to be confused with the distinction between negati!e and positi!e libertiesE. (ccording to this !iew, positi!e rights permit or oblige action, whereas negati!e rights permit or oblige inaction. hese permissions or obligations may be of either a legal or moral character. Li*ewise, the notion of positi!e and negati!e rights may be applied to either liberty rights or claim rights, either permitting one to act or refrain from acting, or obliging others to act or refrain from acting. #ights considered negati!e rights may include ci!il and political rights such as freedom of speech, pri!ate property, freedom from !iolent crime, freedom of worship, habeas corpus, a fair trial, freedom from sla!ery and the right to bear arms. #ights considered positi!e rights, as initially proposed in 1<2< by the ?3ech 0urist )arel Dasa*, may include other ci!il and political rights such as police protection of person and property and the right to counsel, as well as economic, social and cultural rights such as public education, national security, military, health care, social security, and a minimum standard of li!ing. In the 7three generations7 account of human rights, negati!e rights are often associated with the first generation of rights, while positi!e rights are associated with the second and third generations. Real and personal ( real right corresponds to a duty imposed upon person in general and this right is a!ailable against the whole world. =or e>ample right of possession is a real right and right of ownership is real right. %ersonal right corresponds to a duty imposed upon determinate indi!idual and this right is a!ailable only against a particular person. Rights in rem and rights in personam #ights in rem are rights against the whole world. =or e>ample right of possession or ownership. #ights in personam against the specific persons who has !iolated some offence. =or e>ample murder, false imprisonment etc Proprietary and personal %roprietary rights are those rights which are associated with property or wealth. hese rights are economic !alue. =or e>ample rights of loan and good will. %ersonal rights are not economic nature but they are of social types. =or e>ample right of freedom and speech. %roprietary #ights are rights in relation to one-s own property, which consists of things, assets, belonging in possession and ownership rights of a person or entity. he personal rights are relating to the body of the concerned person which may affect his ;her character, liberty, and status in the society. +nheritable and inheritable Inheritable rights are those rights sur!i!es its owner e.g proprietary rights are the inheritable rights. Inheritable rights cannot transfer to legal heirs. =or

0A

)inds of legal rights

e>ample personal rights of deceased person cannot transfer to the legal heirs. Rights in properia and in re aliena #ights of owner his own property *now as right in re properia. #ight in re aliena in such right which limits from some more general right belonging to some other person. Principal and accessory hese rights which e>ist independently called principals rights and accessory rights does not e>ist independently. Public and pri!ate %ublic rights are those rights which possess by e!ery member of public e.g right to !ote. %ri!ate right is such right which en0oy by indi!iduals. 2ested and contingent Dested right is right in respect of which all e!ents necessary to !est it in the owner. ?ontinginent rights are such rights which depend on happening and not happening of a future e!ent. 'o time is specified as to when it is ta*e effect or2E (ccording to the terms thereof it is ta*e effect immediately +E It is to ta*e effect on the happening of an e!ent which must happen &eath of transferee before possession does not di!est a !ested interest. here is no presumption against a !ested interest by reason of . aE he en0oyment ha!ing been postponed to a future date, or bE ( prior interest is gi!en or reser!ed to another in the same property, or cE Income is to be accumulated till the arri!al of the date of en0oyment, or dE he interest is to pass to another on the happening of a particular e!ent $ection 21 L ?ontingent Interest $cope of application Bn a transfer of property an interest is said to be contingent when it is ta*e effect only if a specified uncertain e!ent aE$hall happen, or bE$hall not happen $cope 1. Bn transfer in case a specified uncertain e!ent shall happen does not !est until the e!ent happens. 2. Bn transfer in case a specified uncertain e!ent shall not happen does not !est until the happening of that e!ent becomes impossible. +. In either case until a condition has been fulfilled the interest is contingent. Dested ?ontingent 'ot dependent upon happening or not happening of any uncertain e!ent. En0oyment of property is dependent on happening or unhappening of some uncertain e!ent. Desting may depend on happening of certain e!ent. ransfer is conditional. ransfer is not sub0ect to any uncertain conditions. 8hen condition fulfilled transfer is complete. 'o uncertainty in !esting. $o long the condition is not fulfilled it is contingent L as soon as the condition is fulfilled / it becomes !ested. Desting present L en0oyment may remain postponed. he transfer with no present en0oyment. ransfer is sub0ect to fulfillment of conditions. here is uncertainty in the right of en0oyment #ight of en0oyment may remain postponed. Desting / future. ,unicipal and international Municipal rights are granted by municipalities of big cities whereas international rights are enforced by international law. At rest and in motion 8hen a right is studied with reference to its orbit and its infringement, it would be called at rest. #rdinary and fundamental $er!ient and dominant Legal and e6uitable 0C E>tinction of rights performance: when rights or obligations has been performed agreement./ when parties are on agreement impossibility to perform death operation of law: when the law or court has passed orders to peform time period: when time period or limitations act passed or time barred right

#%nership 78 +ntroduction

79 7:

,eaning of o%nership 'efinitions of o%nership Essentials of o%nership

7;

#%nership means collection of rights to use and enjoy the property including right to transfer> sell and dispose off. )he idea of o%nership de!elop %ith the gro%th of ci!iliDation %hen human beings started plantation> !egetation> culti!ation and building their homes. Po%er of transferring> disposing and selling are elements of o%nership. #%nership can be acBuired by original and deri!ati!e %ay. )rus and beneficial o%nership> legal o%nerhip and eBuitable o%nership are some of its -inds. #%nership means collection of rights to use and enjoy property inclufing right to transit it to others. Salmond:- o%nership means the relation bet%een a person and right !ested to him. Austin:- o%nership is a right indefinite in point of user> unresisting and unlimited in point of duration. i. +ndefinite is point of user:- this element sho%s that o%ner is at liberty to use the property in any %ay he li-e. He is no under any obligation or no one can interfere. )his right of o%nership does not terminate e!en %ith his o%n death. +n case of his death> the property and all benefits associated %ith it transfer to legal heris. ii. 3nrestricted in point of disposition )he o%ner can disposed of > sell it > transfer it > gift it to any one or e!en destroy iii. 3nlimited in point of duration +t means the o%ner can retain property as long as he %ished till death and can enjoy all the benefits associated %ith it i!. Right to posses #%nership means real possession or actually o%ned !. Right to e$haust +t the property is perishable or e$haustible or consumable> he can do them. !i. Residuary character +t means all the easement of rights attached %ith that property> he Eo%nerF can enjoy )he rights of o%nership is limited or restricted subject to paying ta$es and other dues chargeable on property ii. )he o%ner cannot e$ercise the right of o%nership by infringing right of others iii. #%ner cannot transfer his property to defraud hi creditors. i!. #%nership does not terminate %ith the death of o%ner !. )he right of o%nership become limited or restricted during natinalemergency or contry at %ar. )here are t%o theories of o%nership i. +st theory describes that o%nership is a relation %hich subsist bet%een a person and that thing %hich is object of o%ner. ii. 9nd theory prescribes that o%nership is realtion bet%een a person and a right that is !ested in him )here are t%o modes of acuBuistion of o%nership 'eri!ati!e and original 'eri!ati!e +t means coming from another. )his %ay has not its origin itself. #riginal #riginal o%nership may be acBuired by long and continousous and undisputed possession of a thing as a o%ner. )he principle of ad!erse possession %or-s in this connection. )here are three modes of original mode of acBuisition +. Absolute #%nership is absolute %hen the same is acBuired o!er pre!iously o%neries objects. ++. E$tincti!e #%nership is e$tincti!e if o%nership of a pre!ious person is finished on account of ad!erse possession by the acBuirer. +++. Accessory #%nership is accessory if the o%nership is acBuired as result of accession. i. orporeal and incorporeal ?orporeal ownership means ownership of a material sub0ect e.g ownership of house or car. It is ownership of the tangible things. hings can be percei!ed and can be felt. Incorporeal ownership means ownership of right e.g debt, good will . the things cannot be percei!e and intangible. ii. Sole and co-o%nership If the right is !ested in single person then such ownership would be sole ownership wherase if there are more than one person ha!ing owner is called co/owners and such ownership is called co/ownership e.g partnership iii. EBuitable o%nership E6uitable ownership is such ownership which proceeds from rules of e6uity e.g ( debt sign by M to N, M remains legal owner of it but here N becomes its e6uitable i.

7<

haracteristics of o%nership

7=

)heories of o%nership

7?

,odes of acBuiring of o%nership

7@

6inds of o%nership

owner. E6uitable rights are rights in personame. i!. 2ested and continengent o%nership If the title of owner is already perfect then such ownership would be !ested ownership. E.g ( ma*es a gift to , for life and then to ?. 5ere possession on basis of gift is postponed during the inter!ention of a prior interest in fa!our of ,, but ne!ertheless ? has !ested right. ontingent o%nership It means such ownership in which title of owner is yet imperfect and its perfections depends upon the fulfilment of condition. ( says to , that when yhou shall become a doctor, I shall gi!e you a ?ar. !. Absoulute o%nership and limited o%nership (bsoulute ownership has all rights o!er a thing !est to owner. E.g ( is absoultue owner of a house but cannto use it for gambling 8hen owner has limited rights such ownership *nown as limited ownership. E.g life tenancy is its e>ample because in it estate hold only for a life. !i. )rust and Ceneficial o%nership In trust and beneficial ownership relation b;w two owners is such that one of them is under an obligatiohn to use his ownership for benefit of others. he former is called trustee and later called beneficiary. =or e>ample if a property is gi!e to N on trust for N then M would be trustee and N would be beneficiary. M would be legal owner and aN would be befinficial owner. 7A onclusion

E2+'E0 E 78 +ntroduction

79

,eanings

7:

'efinition of E!idence

7;

,odes of e!idence

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'istinction bet%een proof and e!idence 6inds of e!idence

E!idence is information upon which court decides the balance of con!enience for particular fact or set of facts.E!idence means and includes all statements that a court re6uires by a witness. (ll the documents which a court re6uires to pro!e a cases fact and to see what is truth and what is false. 8hen a dispute, whether relating to a ci!il or criminal matter, reaches the court there will always be a number of issues which one party will ha!e to pro!e in order to persuade the court to find in his or her fa!our. he law must ensure certain guidelines are set out in order to ensure that e!idence presented to the court can be regarded as trustworthy. he law of e!idence go!erns the use of testimony Fe.g., oral or written statements, such as an affida!itE and e>hibits Fe.g., physical ob0ectsE or other documentary material which is admissible Fi.e., allowed to be considered by the trier of fact, such as 0uryE in a 0udicial or administrati!e proceeding Fe.g., a court of lawE. (ll 6uestions of fact are answered by the e!idence. .iteral sense he proof of 6uestion of fact. he material sub0ect of the case is called e!idence .egal sense $omething that tends to pro!e and disappro!e the e>isting of alleged fact Salmond E!idence may be defined as any fact which possesses probati!e force. Bne fact is e!idence of another fact Phipson:- e!idence is the term used in 0udicial proceedings in order to find true aspects of the case or in6uiry. According to &S# 8A@; Article:- E!idence means and includes all statements which the court permits or re6uires to be made before it by witnesses, in relation to matters of fact under in6uiry. #ral e!idence he e!idence which are made by a witness before court of law thourgh oral statment is called oral e!idence. 'ocumentary E!idence (ll documents which are e>hibited for proof and inspection are called documentary e!idence. Real e!idence he material ob0ects which are produced before the court in course of 0udicial proceedings are called real e!idence %roof consists of all immediate and mediate facts which tends to con!ince the mind about the truth or falsehood of the case whereas e!idence is the medium of proof. Just li*e e!idence is bric*s, cement or other materials and proof is house. here are two *inds of e!idence. Judicial and E>tra/Judicial. 8. Judicial e!idence

7<

Rules of e!idence

7= 7?

)he probati!e force of e!idence Rules of probati!e force of e!idence

Judicial e!idence is that which is produced before the court. It consists of all facts which are brought into the *nowledge of court. It may be either oral, testimony, oath, pledge, documents produced before the court. 9. E$tra-Judicial E>tra 0udicial e!idence consists of facts and not directly pro!ed in the court. :. Personal e!idence It includes all *inds of statements by a witness. %ersonal e!idence may be oral or written. It may be 0udicial as well as e>tra 0udicial. ;. Real E!idence: (ny e!idence which is belie!ed to be true for any other reason is called real e!idence <. Primary e!idence %rimary e!idence is the immediate e!idence for the 6uestion of act. =or e>ample document is primary e!idence. =. Secondary e!idence $econdary e!idence re6uires which may be gi!en in the absence of better of e!idence which the law re6uires to be gi!en first. ?. 'irect e!idence &irect e!idence is testimony relating immediately to the principle fact. It is the e!idence of fact percei!ed by a witness his own senses @. ircumstantial e!idence It is such e!idence which relates to a series of other facts than the fact in issue, but which is closely related with that fact. A. #riginal e!idence Briginal e!idence is that which is independent of probati!e force of its own e.g witness with his own eyes or ears. 87. Hearsay e!idence 5earsay e!idence is which is not percei!ed by a witness with his own senses but by some other person. @eneral rule./ there is no role of hearsay e!idence in G$B (rticle 12. #ules of best e!idence is that e!idence which is of the highest 6uality a!ailable, as measured by the nature of the case rather than the thing being offered as e!idence. =or e>ample original document rather than the photo copy. his is base on ma>im #es Ipsa Lo6uitar i.e things must spea*s itself. he probati!e force of e!idence is that e!ery e!idence is an e!idence of different effect ?onclusion, conditional, insufficient, e>clusi!e, facts which are not e!idence i. ?onclusi!e It means the acceptance and recognition of fact by law as conclusi!e proof. It consists of facts which ha!e such probati!e force that they cannot be contradicted. ii. ?onditional It means such proof which may be considered insufficient, if there is no pro!ed fact to the contrary. iii. Insufficient If law prescribed a certain amount of e!idence to be absoulutely necessary and e!idence produced does not come up to the necessary standard. i!. =acts which are not e!idence here are certain facts which ha!e absolutely no probati!e force at all. hey can neither produced in the court acted upon.

7@

onclusion

.a% of property> definition and its -inds and acBuisition of property 78 +ntroduction he substanti!e ci!il law has three main parts i.e law of property, law of obligations and law of status. 5ere we discuss its first part i.e law of property. In modern times, the law of property includes all *inds of rights associated with person including his rights of life, reputations, liberty and all other claims which he might ha!e against all other persons. 79 oncepts of property =ollowing are concepts of property i. All legal rights $almond says property includes all personal legal rights of what e!er descriptions in its widest sense ii. oncept of proprietary rights %roprietary rights includes all person-s rights associated or attached with his property. In this sense, a man-s chattels, land, shares and all the debts due to him are his property but do not include his personal rights such as reputation, life or liberty. iii. oncept of Proprietary rights in rem (ccording to this concept it includes all rights of property e>cept free hold property, leasehold property, debt or benefit attached to the property i!. oncept of corporal property (ccording to this concept property includes only materialistic or physical things or ob0ect.

7:

6inds of property

=ollowing are *inds of property i. orporeal and incorporeal property ?orporal property has its e>istence and its ownership and they are !isible and tangible. e.g land, houses, money, ornaments, gold etc incorporeal property ha!e no physical e>istence and they are in!isible and abstract from e.g logo, title, intellectual property, brand name etc. ii. mo!eable and immo!able ?orporeal property may further di!ided into mo!able and immo!able property. In englsih law mo!eable are called chattels and immo!able called land. $almond says immo!eable property must ha!e following elements a. It must some portions of earth-s surface. b. he ground beneath the surface down to the centre of the earth. c. he space abo!e the earth d. (ll ob0ects attached to the earth whether natural or unnatural. e. (ll ob0ects placed on that piece of earth e.g walls, doors, bric*s etc ii. Real and personal property #eal property is reco!erable in a real action while personal property is that which is reco!erable in a personal action. iii. Rights in re properia in immaterial things =ollowing are immaterial things %atents, copy rights, literary copy rights, logo, trade mar*, brand name, artistic copy right, commercial good will. i!. Right in re aliena hese are rights of property which is in possession of other person rather its actual owner e.g a. .ease of land actual owner of the property transfer the right to another person called lessee for some period of time b.ser!itudes the limited use of land without ha!ing its possession e.g right of way or access or easement right c.securities $ecurity is *ind of ad!ance; deposit of material things !ested in a creditor o!er the property of his debtor for the purpose of reco!ering his debt. here are two *inds of securities i. ,ortgages 8hen immo!eable property is secured to another for obtaining debt, consideration or transactions is called mortgages, if the property is mo!eable it is called pledge. ii. .ien Lien mean right to detain or retain any thing or ob0ect which belong to other until certain demands fulfilled c.trusts rust is a *ind of re aliena. In trust the ownership of property is limited. he owner only can dealt to the e>tent that benefits en0oy by the other.

7;

,odes of acBuisition of property

i.

Possession he possession of a material ob0ect is a title to the ownership of it by possessing a material ob0ect. ii. Prescription %rescription means continuous possession and no one claim against that possession. It is the operation of time as !estiti!e fact. iii. Agreement (greement is an e>pression by two or more person communicated to each other under common intention to create legal relationship between them. +2. +nheritance ( right is inheritable when its real owner dies, all rights or property transferred to its real or legal heirs or according to will of deceased person. =ollowing are modes in which property is di!ested or e>tinguished. a. ,y contract or sale b. ,y gi!ing in trust c. ,y operation of law d. ,y forfeiture or attachment or ac6uisition under the law.

7< ,odes in %hich property may be di!est

PERS#0 78 +ntroduction

79

'efinition of person

7:

6inds of person

Law ta*es all human beings as person who has rights and duties towards each other but in broader term all *ind of institutions, organi3ations, firms, partnership or associations are also considered as person in their indi!idual capacity and being a separate legal entity or identity. %erson is also *ind of unit which has claims, duties, liberties and obligations. Salmond %erson is any being whom the law has gi!en rights and duties. (ny being which is capable to perform duties and en0oy the rights are called person whether human being or not. 4ray ( person is separate entity to which rights and duties may be attributed )here are t%o -inds of person i. 0atural person ii. .egal person i. 0atural Person ( natural person is a human being which is capable of rights and duties. hey may be person in fact or persons in law. ii. .egal person Legal persons are being real or imaginary whom the law has recogni3ed or his authority has been recogni3ed in the same way as that of human beings. hey are persons in law but not in fact. 6inds of legal persons )here are three -inds of legal persons a. orporations ( corporation is a group or series of person which are recogni3ed by law and treated as person. b. +nstitutions Institutions are legal persons created for accomplishment of some legal, social, political or economic purpose. E.g uni!ersity or church c. 1und or estate o run corporations or institutions funds are corpus person e.g charitable fund or trust estate (ccording to salmond only human beings are person and beasts are not persons because they don-t ha!e natural or legal rights. hey are merely things or ob0ects. 5owe!er law in some countries ha!e recogni3ed their separate entity and they ha!e legal rights as law has granted them. =or e>ample cruel treatment to the animals is a criminal offence "nborn persons ha!e some legal rights. Law does not pre!ent a man from owing property before he is born. 5is ownership is real and present ownership but it is contingent until he or she born. In law dead person are things and not persons and they ha!e no rights. 5owe!er dead person has some rights such as he may be buried in respect and honor and his will may be honoured. 5e may not be defamed or his reputation may not be defamed through libel. 5is left property may be distributed among his legal heirs according to law or according to his will. here are persons who ha!e double personality in different set of circumstances. $ometime he acts as in personal capacity and sometimes acts as official or 0udicial capacity.

7;

.egal status of lo%er animals

7<

.egal status of unborn persons .egal status of dead person

7=

7?

'ouble personality

6inds of precedent #riginal precedent i. 1. $uch precedents establish original or new rules of law ii. 2. Briginal precedent creates a new principle of law. iii. +. heir numbers are !ery small but their importance is !ery good.

'eclaratory precedent 1. 1. $uch precedents re/ affirm an already e>isting rule of law. 2. 2. @ood source of law. +.

Persuasi!e precedent 1. 1. $uch precedents upon which the 0udges are under no obligation to follow but only they ta*e into consideration. hese are historical source of law 2. 2. 5istorical source of law and ha!e no legal effects. +. E.g. 0udgements of foreign courts and e>perts !iew

Authoritati!e precedent 1. 1. $uch precedents which the 0udges must ha!e to follow without 6uestion 2. 2. Important legal source of law. +. +. here are two *inds of authoritati!e precedents 4. a. Absolute authoritati!e precedent. A. he precedents which ha!e to be followed by the 0udges e!en if they don-t appro!e of them. hese decisions are absolutely followed. 6. ,. onditional authoritati!e precedent 2. he precedents which are normally binding upon the court but court may or may not follow.

4. <.

E>ample ( decision gi!e by double bench is more authoritati!e than single bench.

10. 11. 1actors %hich reduce binding authorities 8. Abrogated decisions he decision or precedent of lower courts abrogated by the higher courts. =or e>ample the precedent of high court may be abrogated by the $upreme ?ourt. 9. Split decisions 8hen the decisions is di!ided among the 0udges and there is no unanimous decision among 0udges, it binding force will be reduce. $tate !s Oulfi6ar (li ,hutto :. Re!ersal or affirmation on a different ground %recedents or 0udgement which the lower court re!erses on different points of !iew. ;. +nconsistency bet%een earlier decision of same ran- courts ( court is not bound by its own pre!ious decision that is in conflict with one another. <. Erroneous decisions $uch precedents which ha!e basic errors or which conflict with basic or fundamental principles of common law. =. +gnorance of statutes $uch precedents are agisnt the basic statues law and loses its binding force. ?. 'ecisions not follo%ed for a long time hough lapse of time does not e>tinguish precedent but reduce its binding force if not followed by long time. @. 'ecisions of eBually di!ided courts (ll such decisions where tie of 0udges decisions come across also loses their binding force. A. 'ecision based on compromise If both parties ma*e compromise outside of the court and there is no argument in the case and such decisions or precents lose its authority. 87. 'ecisions %hich create anarchy hose decisions which create anarchy in the state or citi3ens 88. 'ecisions %hich create injustice If the decisions are not based on 0ustice it will wea*en the binding force of a precedent. 89. 'ecisions %hich badly criticiDed ?riticised by 0urist; lawyers ; students of law or public 8:. 'ecisions gi!en in haste by summary proceedings 11. &ecisions based on doubts or uncertain. 1A. E>/parte decision 1actors %hich enhance the binding force 1. "nanimous decision ,, Ds =ederation of %a*istan 2. (ffirmation by superior courts ( decision made by high courts and affirmed by supreme courts +. %articipation of eminent 0udges 1. $upport by enacted law or codified law. A. &ecisions made on learned arguments and reasoning and possess scholarly angles add to the !alue of precedent. C. (bsence of criticism and hesitation and followed by other courts. 2. &ecisions which are without ambiguity 4. (ppro!al of the earlier decisions of superior courts <. (ppro!al of the earlier decisions of same ran* courts. 10. =ully argued decisions. 11. (ppreciation by the people 12. =ully contested case 1+. =re6uently followed. 11. 'umber of 0udge-s full bench than single bench. 1A. Eminent lawyers 1C. Lapse of time ,erits of Precedents 1. %roper interpretation of statutes %recedents interpret the statues and its principles 2. In harmony with the law +. %ractical law 1. More fle>ible 5. More concrete C. ,est preparation for statutes law 7. #e!iew of social law4. ,asis of common law <. $cientific de!elopment of law.

10. 11. 12. 1+. 11.

'atural means of getting 0ustice certainty easily understandable ?reates confidence in the minds of litigants. %ro!ide better results 'emerits 1. "ncertain and un*nown and re6uire great efforts for lawyers to search them. 2. hey are undetermined +. hey are complicated 1. hey are less accessible A. ?lash with logical interpretation of law C. 'o test of !alidity 2. ?onfusion in selection 4. 'o abrogati!e power <. Made in haste 10. 'ot comprehensi!e 11. ?auses incon!enience 12. Judges mista*es cannot be set right.