Law notes for ias

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LAW ESSAYSPREVENTIVE DETENTION LAW AND

THE RIGHTS OF AN INDIVIDUALThe Unlawful Activities (Prevention) Act, 2008 (UAPA) hasbeen not as stringent as the Prevention of Terrorism Act,2002 (POTA), which was repealed by the present UFA gov-ernment immediately after it came to power in 2004, thenew amendments allow longer detention without bail. Anynew law is bound to narrate a very tragic tale of life and itsrelations: the relation between government and individual.One more law has been enacted. After dithering for fourand a half years, the Congress-led UFA Government hadmade crucial changes to the Unlawful Activities (Preven-tion) Amendment Act, 1967 that could give law enforce-ment agencies more powers to deal with those accused ofinvolvement in terrorist activities. The Unlawful Activities(Prevention) Act, 2008 (UAPA) has been not as stringentas the Prevention of Terrorism Act, 2002 (POTA), whichwas repealed by the present UPA government immediatelyafter it came to power in 2004, the new amendments allowlonger detention without bail. Any new law is bound to nar-rate a very tragic tale of life and its relations: the relationbetween government and individual. It is full of oppression,invasion and coercion. By nature man believes in anarchy.A child does not do what he/she has been told. But a hu-man being has a big limitation. He cannot live in isolation.He can survive only in collectivity. For this he creates soci-ety. The society cannot survive without proper regulation.For this he creates state and government. The governmentcontrols his anarchic nature and provides him safety andsecurity. The creation of state is not imposed on him. Hehas chosen it. A state is a voluntary process and its cre-ation is the natural requirement of an individual. Once thestate comes into existence, the struggle between the stateand individuals tend to start. The entire history tells thatthe state has always tried to dominate the individual some-times directly by force and sometimes indirectly bymanoeuverings. In tribal societies, the chief was electedon the basis of his capabilities. The survival of the chiefdepended on his performance. The chiefs made deliberateattempt to ensure heredity succession. He knew that hischarismatic qualities could not be transmitted to his ownsons. Then he started manoeuvering the things in order tosettle the future of his sons. In doing so, the principles ofequality and the rule of law were forgotten, ignored andinvaded. That was the origin of the tendency to betray themandate of the people. This tendency has acquired a natu-ral instinct.History directly tells that almost every tribal system wasconverted into a monarchic system. The Athens and Spartawere converted into Roman Empire; the tribals of centralAsia were brought under Ummayids and Abbassids; the6th century B.C Mahajanapadas into Magadha and Mauryandynasties; the tribal groups of China into Manchu dynasty;the tribals of the Japan transformed into Meiji dyanasty.Once the extended patrimonial bureaucratic state was es-tablished, it lasted for centuries. In the mean time the con-cept of liberty, rights, equality and likewise was subvertedand the relations were perverted. The individual’s rights weretransgressed and vandalized.Dynasties were created and perished; rulers came and wentout; new rulers came and also gone and thus it became anincessant process. It lasted so long that the individual evenhad forgotten that who were ruling them. They also had

forgotten that what liberty and rights, they owed. That iswhy we had forgotten when the Rajputs were gone, Sultan-ate came and gone and Mughal came and perished andwhen the British came and left. In this process the kingsdevised a number of theories to legitimize their power andthe most durable theory was the divine origin of the statepolicy. These theories had completely disassociated thepeople from the state and made kings answerable to theGods. The ruler was the law and the rule of law was theruler. The justification of the regime was only a formalityand a prerogative of the king.The entire Europe fought against the mercantilist and ab-solutist kings. The struggle between the Parliamentary in-stitutions and British King lasted for centuries and finallythe Glorious Revolution of 1688 removed the hegemony ofthe kings. The French people had to wait for 100 yearseven after their French Revolution. Germany and Russiahad to wait till the second decade of the 20th century toward off the absolutist kings. They are so many countriesthat are still fighting for democracy like Myanmar, Thailand,and a number of African states. The struggle for full-fledgedand stable democracy in Pakistan, Nepal is still on.These historical facts have suggested only two things: (a)the human being has a natural tendency to dominate; and(b) get dominated by others. In other words, he will eitherdominate or will be dominated. He cannot live together inequal manner. That is why one who tastes power, forgetshis relations.His past is cut-off. That is why power is contagious. Any-one who became powerful did the same thing. And will con-tinue to do the same. In doing so, he becomes so identicalthat people tends to forget their names and have found noth-ing new in them. He becomes alien to the world to which heoriginally belonged. He becomes supermandane. That iswhy Mary Antonette said “to starving people that if you donot have bread, eat cake”. A number of accidents and inci-dents have brought democracy. Democracy is the ultimateconsummation of individual’s rights and the rights of state.It evenly balances them. In democracy, people are the sourceof the state. This is probably much closer to the Rousseau’ssocial contract theory. Even in democracy, the human ten-dency has not changed. He is always prepared to exploitthe flaws of the laws. If the flaws are not there then hecreates flaws. Flaws are natural in creations.If there is sufficient mores, norms and values, then there isno need to make stringent laws; and if there is absence ofproper norms and values, then there cannot be proper func-tioning of a law. We cannot become more powerful thanGod because God has created the entire universe. He isour creator. Therefore, a law, which is created by us, can-not be greater than us. A law has to depend on us for itsexistence and effective implementation. It is nebulous toassume that the law itself would eradicate crime and terror-ism. This has been proved by TADA, POTA and MCOCA.The law depends on the will and the intention of theimplementers.There is only one fundamental right: a man’s right to hisown life. The A right to life means the right to engage inself-sustaining and self-generated action-which means free-dom to take all the actions required to the furtherance andthe enjoyment of his life. There are two potential violators ofman’s rights: the criminals and the government. .........


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LEGAL TERMSLEGAL SYSTEM VOCABULARY

Act: a specific piece of legislation passed by a legislativebody, such as Parliament or Congress. An Act of Parlia-ment is divided into parts, sections, sub-sections, para-graphs and at the end are the schedules.ADR: these initials stand for alternative dispute resolution.This includes mediation, conciliation and arbitration.Arbitration: a form of alternative dispute resolution where athird party, acting as an arbitrator, delivers an opinion that isbinding on the parties.Attorney-at-law: usually referred to simply as an attorney.An attorney is a legal professional in the United States withthe right to practice law in the state for which he has beenadmitted to the bar.Attorney-General: in England he is a legal adviser to theCrown. The Attorney-General has political duties which in-clude advising government departments. In the USA thereis also an Attorney-General. He is the head of legal affairsin a state or in the federal government.Barrister: a legal professional in the English legal systemwith a right of audience before all courts. As well as actingas an advocate, a barrister may also be a specialist in acertain area of law.Beneficiary: one who benefits from a trust and who has anequitable interest in the trust property.Bill: an Act of Parliament is called a bill before it has beenformally approved.Binding: if a decision is binding, it must be followed. Forexample, precedents set by a higher court must be followedby lower courts.Brief: in the English system this refers to the written in-structions sent by a solicitor to a barrister briefing him abouta case.Canon law: also referred to as ecclesiastical law. This isthe law of the church.Case law: refers to the decisions made by judges applyinglegal principles from legislation and binding precedent (seedoctrine of binding precedent) to the circumstances of theparticular disputes before them.Certiorari: this order usually transfers a case from an ap-peal court, and in certain special cases from a trial court, tothe US Supreme Court for judicial review.Challenge : potential members of a jury can be challenged,either for a reason that is stated before the court or for noreason. This is a way of excluding potential jurors from ajury.Chambers: accommodation for a group of barristers. Bar-risters in chambers are self-employed and group togetheronly to share facilities and staff. It would therefore be wrongto refer to a firm of barristers.Civil law: this term has two meanings. It can be used inthe sense of the law concerned with private rights ratherthan public law. The term may also be used to describe alegal system. Unlike the common law system, a civil lawsystem has its roots in Roman law and is a codified sys-tem.Clerk: the English legal system knows various types oflegal clerks, for example, lay magistrates are assisted by amagistrate’s clerk. The clerk in barristers’ chambers, oftennow referred to as the practice manager, acts as a busi-ness manager for the barristers of that chamber.

Coded systems: systems where the codification of the lawhas taken place, i.e. the laws of the land have been com-piled to form a systematic, formal legal code.Common law: a system of law which originated in medi-eval England and was later applied in former British colo-nies, including the United States. Common law is basedon judicial precedent arising from cases rather than lawbased on codes or other forms of legislative enactments.Competence: a court has the competence to hear a caseif it has jurisdiction over the person or property at issue inthat case.Conciliation: alternative form of dispute resolution wherea third party, acting as a conciliator, offers the parties anon-binding opinion.Concur: verb used to indicate that judges in a case agreewith the majority conclusion. The reasons for reaching thatconclusion may, however, vary.Congress: the federal legislative body of the United States.It consists of two houses, the Senate and the House ofRepresentatives.Conveyancing: drawing up legal documents to transferthe ownership of property from seller to buyer; in generalthe law and procedure with respect to the purchase andsale of property.Coroner’s Court: holds an inquest where death appearsto be violent, unnatural or sudden and the cause is un-known.Counsel: when representing a party in court, a barrister isreferred to as counsel and an attorney as counsel or coun-sellor.County Court: in the English system it hears civil cases inits local area of jurisdiction. The name county court mayalso be found in the court systems of several states in theUnited States, where it has a limited jurisdiction in civil andcriminal cases.Court of Appeal: this is an appellate court to be found inmany common law jurisdictions hearing appeals from lowercourts.Court of first instance: this term can be used to describea court in which proceedings are initiated.Crown Court: this is a court in the English court systemthat hears primarily criminal cases.Custom: this is unwritten law that is legally valid if a prac-tice can be shown to have been continuously in operationsince time immemorial.Discretionary: where a remedy is not available as of rightbut depends upon the consideration of the court.Dissent: where a judge disagrees with the majority opinionin a case. A dissenting judgment is classed as obiter dicta.Distinguish: if a case is distinguished, a judge finds a pre-cedent laid down in a previous case not binding on the casebefore him because the material/key facts in the presentcase differ from those of the previous case.District courts: these are the trial courts of the Americanfederal court system.Doctrine of binding precedent: the precedent laid downin a prior case of a similar nature must be followed. TheLatin term for the doctrine of binding precedent is staredecisis.


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LATEST & IMPORTANT IN

LAWLAW AND JUSTICE

Surrogate Mother and Her Children’s Citizenship• In a landmark judgment, the Gujarat High Court has heldthe surrogate mother as the “natural mother” and her na-tionality to decide the citizenship of the new-born babiesirrespective of the nationality of the father. The High Courtalso asked the central government to immediately framenecessary laws to clear the complications over surrogacywhile directing it to restore the Indian passports to the twinsons of a German father given birth by an Indian surrogatemother.• The matter was appealed in the Supreme Court later andthe apex court on December 4 asked the Centre to givetravel documents to the surrogate twins within 48 hours ofparents Jan Balaz and Susane Lohle approaching the pass-port authority for it despite the parents expressing fear inthe Supreme Court that their first-borns could be staring atthe possibility of being stateless citizens.• A HC Division Bench comprising Chief Justice KSRadhakrishnan and Justice Anant Dave held that the chil-dren born of a surrogate mother on Indian soil are Indiansby birth, irrespective of the nationality of the father. How-ever, it said immediate legislation was necessary to injectclarity to the situation created by reproductive science andtechnology as the existing legal systems in the countryhad no clear answer. The judgment was delivered in thecase of a German national, Jan Balaz, who had soughtIndian passports for his twins, Nikolas and Leonard, bornto surrogate mother Martha Khristi, in Anand in centralGujarat last year. Dr. Nayana Patel, the famous surrogacyexpert aided the birth. The German couple who had twinsthrough an Indian surrogate mother, planned to take thenewborns back to Germany as Indian citizens since Ger-man laws did not recognize surrogacy as a means of par-enthood. Considering the German Laws, the father of thechildren appealed to the Gujarat high court, which held thatsince the surrogate mother was an Indian national, the sur-rogate children would also be treated as Indian nationalsand would be entitled to Indian passports.• Mr. Balaz and his_wife, Sussane Lohle, came to India toseek Dr. Patel’s help as Sussane could not produce ovaand conceive a child. An unnamed Indian woman donatedeggs, which were fertilized with Balaz’s sperms and plantedin Martha’s womb. She (surrogate mother) gave birth to thetwins on January 4 last year.• Mr. Balaz, a freelance writer, who had since shifted to theUnited Kingdom since surrogacy was banned in Germany,applied for Indian passports for his boys to take them to theUK. The passports were initially issued but later he wasasked by the Ahmedabad passport office to surrender thepassports on the ground that the column of mother’s namecarried that of Sussane who did not conceive the childrenand violated the Birth and Death Registration Act 1969.• Mr. Balaz after surrendering the passports moved the HighCourt to get them back, so that he could take the boysalong with him and make them citizens of his country.• Dwelling upon the complexity of the issue, the Benchpointed out that “a lot of legal, moral and ethical issuesarise for our consideration in this case, which has no pre-cedents in this country. We are primarily concerned with

the rights of two new born innocent babies, much morethan the rights of the biological parents, surrogate mother,or the donor of the ova.• The court observed that a comprehensive legislation de-fining the rights of a child born out of a surrogacy agree-ment, rights and responsibilities of a surrogate mother, eggdonor, commissioning parties, legal validity of the agree-ment, the parent child relationship, responsibilities of theInfertility Clinic was also required. Upholding the citizen-ship rights of the boys, the court said: “We, in the presentlegal frame-work, have no other go but to hold that the ba-bies born in India to the gestational surrogate are citizensof this country and therefore entitled to get the Passportand therefore direct the Passport authorities to release thepassports withdrawn from them forthwith.”

Judges Asset Enquiry Bill (2009) Controversy• Judges Assets Bill is a proposed legislation which wouldmake disclosure of personal assets of judges mandatory inIndia. The Bill titled ‘Judges (Declaration of Assets and Li-abilities) Bill, 2009’ was attempted to be introduced in RajyaSabha by Justice Minister M. Veerappa Moily on August3,2009. However, it was postponed due to opposition fromboth Left and Right about Clause 6 of the bill which statesthat High Court and Supreme Court judges would declaretheir assets but the same would not be made public.• The bill would mandate Chief Justice of India and otherjudges of the Supreme Court and High court and their de-pendents declare their assets. The bill was approved bythe cabinet on 25 July 2009. The Union Ministry of Law andJustice in October, 2009 said it would introduce a newJudges (Inquiry) Bill in the following Session of Parliament.This Bill would also have a clause making it mandatory forjudges of the Supreme Court and the High Courts to de-clare their assets on a regular basis to their respective ChiefJustices.• But, more importantly, it was told to the newly-reconsti-tuted Department-related Parliament Committee on Law andPersonnel that the citizens of the country would be able toaccess details of assets of the judges under the Right toInformation Act, 2005.• Having lost face in its failed attempt to introduce the Judges(Declaration of Assets and Liabilities) Bill, which was aimedat preventing any attempt by anybody, including any courtor public authority, to access details of assets filed by thejudges, the Law Ministry decided to shelve its plan to bringin a standalone legislation on the matter of judges’ assets.• Some MPs raised the issue of growing instances of cor-ruption in the higher judiciary. Some member questionedthe present system of appointment of judges of High Courtsand Supreme Court by the collegium of judges, with oneMP saying the same needed to be reviewed. An MP wascritical of the policy to allow kin of High Court and SupremeCourt judges to practice in the same court. Some MPsalso underlined the need to bring in a fresh transfer policyfor judges.


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RECENT JUDGMENTSLIMITATION

Hamid Khan v. Ashabi(2009) 1 SCC 530: JT 2009 (1) SC 236: (2008) 16 SCR297: (2008) 15 SCALE 528Law Point: Commencement of Limitation Period:Fact: A sale agreement was made between charitable trustand respondent for sale of land by the said Trust with thestipulation that permission would be taken from CharityCommissioner in terms of the relevant statutory provisions.The Charity Commissioner directed the sale of the land inpublic auction. Setting aside the said order the High Courtdirected the Charity Commissioner to pass a fresh order.The Charity Commissioner then passed an order in favourof the respondent.Decision: The suit for specific performance of the sale agree-ment was filed by the Respondent against the said CharityCommissioner as was held, maintainable.

State Bank of India v. B.S. Agriculture Industries(2009) 5 SCC 121

Law Point: It is for the court to determine whether a suit isbarred by Limitation. The Limitation being a jurisdictionalfact need not be pleaded.Fact: A complaint was filed on 5-5-1997 against the appel-lant Bank claiming an amount of Rs. 2,47,154 for deficiencyin service along with interest @ 12% p.a., litigation ex-penses and compensation. The complainant averred that ithad sent to the bank seven bills for collection of paymentand remittance of proceeds to the complainant and the bankwas instructed to return the bills and GRs if the drawee didnot pay the bills upto 7-6-1994 and despite repeated lettersand legal notice, the bank has neither sent the amount norreturned the said bills and GRs. necessitating the com-plainant to report to the District Forum. The District Forumconcluded that there was deficiency is service and directedthe Bank to pay the amount with interest @ 15% per an-num, from 21-4-1994 and Rs. 500 as compensation. Thechallenge to the order before the State Commissioner forRedressal of Consumer Disputes and the National Com-missioner was without any success,Decision: On the ground of limitation the Supreme Courtheld that Section 24A of the Consumer Protection Act, 1986was peremptory in nature and required the consumer fo-rum to see before it admits the complaint that it had beenfiled within two years from the date of accrual of cause ofaction. The consumer forum, however, for the reasons tobe recorded in writing may condone the delay in filing thecomplaint occurring in Section 24A of Consumer Protec-tion Act, 1986 is a sort of a legislative command to theconsumer forum to examine on its own whether the com-plaint has been filed within to limitation period prescribedthereunder.

Annakali v. A. VedanayagamAIR 2008 SC 346: (2007) 12 SCALE 523

Law Point: Adverse possession.Facts: One of the main questions involved in this appealwas that whether a mere long possession for a period ofmore than 12 years would ripen into title.Decision: Claim by adverse possession has two ele-ments:—(i) the possession of the defendant should become ad-verse to the plaintiff; and (ii) the defendant must continueto remain in possession for a period of 12 years thereafter.

Animus possidendi as is well-known is a requisite ingredi-ent of adverse possession. It is now a well settled principleof law that mere possession of the land would not ripen intopossessory title for the said purpose. Possessor must haveanimus possidendi and hold the land adverse to the title ofthe true owner. For the said purpose, not only animus pos-sidendi must be shown to exist, but the same must beshown to exist at the commencement of the possession.He must continue in said capacity for the period prescribedunder the Limitation Act. Mere long possession, it is trite,for a period of more than 12 years without anything more donot ripen into title.Jagadguru Annadanishwara Swamiji v. V.C. Allipur

(2009) 4 SCC 625Law Point: The terms “court” must be held to be ofwide import in the context of Limitation Act, 1963.Fact: It is well-settled principle of law and having regard tothe definition of the court contained in various statutes likethe Code of Civil Procedure or the Evidence Act, it wouldmean a tribunal, whose decision shall be final and/or wouldbe entitled to take evidence in terms of the provisions of theEvidence Act. It is also well settled that although a tribunalmay exercise some of its powers in terms of the Code ofCivil Procedure and have all trappings of a court but stillwould not be treated as a court.Decision; In the context of Section 29(2) of the LimitationAct, 1963, the terms “court” must be held to be of wideimport. However, again there exists a distinction between acourt and the civil court.

Shakuntala Devi v. Chamru Mahto(2009) 3 SCC 310: 2009 Cr LJ 1770

Law Point: The provision of the Limitation Act are ap-plicable to proceedings under Section 145 of Crimi-nal Procedure Code.Fact: The appeal arose out of the order passed by the PatnaHigh Court on 5-1-2007 quashing the order dated 6-1-2006passed by the Additional Session Judge-cum-Fact TrackCourt No. 5, Khagaria, in Criminal Revision No. 74 of 2003,confirming the order dated 2-5-2003 passed by the Sub-Divisional Magistrate, Khagaria directing restoration of pos-session of the land in dispute to respondent.The predecessor-in-interest of the appellants, one DayanandPrasad, filed an application under Section 145 of the Codeof Criminal Procedure, 1973 for restoration of possessionof the land on the ground that he had been forcibly dis-posed by respondent 1 within two months of such petitionbeing filed. Both the parties in the said proceeding filedtheir respective responses showing cause and adduced evi-dence, whereupon the Executive Magistrate by his orderdated 7-10-1994 declared the possession of the appellantsover the land in dispute. Further the original petitionerDayanand Prasad, the husband of Appellant No. 1 and thefather of the appellants No. 2 and 3, expired in 1995. InNovember 1997, the appellants filed Misc. Case No. 20(M)2/97 before the Sub-Divisional Magistrate Khagaria, for resto-ration of possession in pursuance of the order of the Ex-ecutive Magistrate under Section 145(4) of the Code on 7-10-1994. Allowing the said miscellaneous case the Sub-Divisional Magistrate, Khagaria, passed an order underSection 145(6) of the Code of Criminal Procedure on 2-5-2003 directing restoration of possession of lands in ques-tion in favour of the appellant.....


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LAWUNIT-I

ESSENTIAL FEATURES OF INDIAN CONSTITUTION

DISTRIBUTION OF LEGISLATIVE POWERS BETWEENUNION AND STATES

FUNDAMENTAL RIGHTS,

FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLESOF STATE POLICY

JUDICIARY

PARLIAMENT AND STATE LEGISLATURES

AMENDING PROCESS OF THE CONSTITUTION

ROLE OF ELECTION COMMISSION IN DEMOCRATICPROCESS

SALIENT FEATURES OF THE CONSTITUTIONA “Constitution” means a document having a special legalsanctity which sets out the framework and the principalfunctions of organs of government of a State and declaresthe principles governing the operation of those organs. Con-stitution means a written organic instrument, under whichgovernment powers are conferred and circumscribed(Schwartz).The Constitution is the supreme or fundamental law of land,and all governmental organs, which owe their origin to theConstitution and derive their powers from its provisions, mustfunction within the framework of Constitution, and must notdo anything which is inconsistent with provisions of Consti-tution.The ‘Constitutional Law’ refers to the rules which regulatestructure, functions and interrelations of governmental or-gans. The rules are legal as well as include conventions,etc. A country may have a Constitution, but not necessar-ily ‘Constitutionalism’ e.g. a country where dictator’s wordis law, can be said to have a Constitution, but not Constitu-tionalism. The Constitutionalism connotes in essence the‘limited government’. It is the antithesis of arbitrary power.Only when Constitution of a country seek to decentralizepower and also impose other restrains, does a country haveboth-Constitution and Constitutionalism.Following are the principles and norms which promote Con-stitutionalism in a country: a written Constitution, federal-ism, free elections, independent judiciary with judicial re-view, fundamental rights, doctrine of rule of law and separa-tion of powers (Rule of Law implies the absence of arbitrarypower, equality before law, and individual liberties).Making of the Indian Constitution- On 29 August 1947,a Drafting Committee was formed under the chairmanshipof Dr. B. R. Ambedkar. It formed the Draft Constitution,which was put before the ‘Constituent Assembly’ (a statu-tory sovereign body formed in 1946 by the British, whichgot plenary powers to frame the Constitution to suit thegenius of the people of India) on 21 February 1948. TheDraft Constitution was thoroughly discussed in the Con-stituent Assembly. Members of the Constituent Assemblyproposed 7635 Amendments and 2473 Amendments Reso-lutions were discussed. May provisions of the Governmentof India Act, 1935 were incorporated in the Constitution.It took 2 years 11 months and 18 days to make the IndianConstitution. On the 26th day of November 1949 the Consti-tution received the signature of the President of the Con-stituent Assembly (Dr. Rajendra Prasad) and was declaredas passed. The provisions relating to citizenship, elections,provisional parliament, temporary and transitional provisions,were given immediate effect i.e. from November 26, 1949.The rest of the Constitution came into force on January 261950, and this date is referred to as the date of the com-mencement of the Constitution.

SALIENT FEATURES OF THE CONSTITUTIONThe Constitution of India is unique in many ways. It hasseveral special features that distinguish it from other Con-stitutions of the world.(1)Size of the Constitution :-It is the lengthiest Constitu-tion ever given to any nation. It is a very comprehensivedocument and includes many matters which could legiti-mately be the subject matters of ordinary legislation or ad-ministrative action. This happened because the Governmentof India Act, 1935, which was after all basically a statute,....


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UNIT-XPARTNERSHIP ACT—NATURE AND ESSENTIALS OF PARTNERSHIP

MUTUAL RIGHTS AND LIABILITIES OF PARTNERS,

ADVANTAGES OF REGISTRATION OF FIRMS

SALES OF GOODS ACT

NEGOTIABLE INSTRUMENTS ACT

COMPANY LAW—

ROLE OF DIRECTORS,

DOCTRINES OF INDOOR MANAGEMENT AND ULTRAVIRES

THE INDIAN PARTNERSHIP ACT, 1932(ACT No. 9 OF 1932)

[8TH APRIL, 1932]An Act to define and amend the law relating to partnership.WHEREAS it is expedient to define and amend the lawrelating to partnership; It is hereby enacted as follows :—

CHAPTER 1 PRELIMINARY1.Short title, extent and commencement.(1)This Act may be called the Indian Partnership Act, 1932.(2) It extends to the whole of India except the State of Jammuand Kashmir.(3)It shall come into force on the 1 st day of October, 1932,except section 69, which shall come into force on the 1stday of October, 1933.2.Definitions. In this Act, unless there is anything re-pugnant in the subject or context,—(a)an “act of a firm” means any act or omission by all thepartners, or by any partner or agent of the firm which givesrise to a right enforceable by or against the firm(b) “business” includes every trade, occupation and profes-sion(c) “prescribed” means prescribed by rules made under thisAct(d) “third party” used in relation to a firm or to a partnertherein means any person who is not a partner in the firmand(e) expression used but not defined in this Act and definedin the Indian Contract Act, 1872, shall have the meaningsassigned to them in that Act.3.Application of provisions of Act 9 of 1872. The unrepealedprovisions of the Indian Contract Act, 1872, save in so faras they are inconsistent with the express provision of thisAct, shall continue to apply to firms.

CHAPTER II THE NATURE OF PARTNERSHIP4.Definition of “partnership”, “partner”, “firm” and “firm name”,“Partnership” is the relation between persons who haveagreed to share the profits of a business carried on by all orany of them acting for all.Persons who have entered into partnership with one an-other are called individually “partners” and collectively “afirm”, and the name under which their business is carriedon is called the “firm name”.5.Partnership not created by status. The relation of part-nership arises from contract and not from status and, inparticular, the members of a Hindu undivided family carry-ing on a family business as such, or a Burmese Buddhisthusband and wife carrying on business as such, are notpartners in such business.6.Mode of determining existence of partnership. In deter-mining whether a group of persons is or is not a firm, orwhether a person is or is not a partner in a firm, regard shallbe had to the real relation between the parties, as shownby all relevant facts taken together.Explanation 1. —The sharing of profits or of gross returnsarising from property by persons holding a joint or commoninterest in that property does not of itself make such per-sons partners.Explanation 2 .—The receipt by a person of a share of theprofits of a business, or of a payment contingent upon theearning of profits or varying with the profits earned by abusiness, does not of itself make him a partner with thepersons carrying on the business and, in particular, thereceipt of such share or payment—......

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