Legal maxims in india

The presentation deals with some legal maxims used in India starting from what is a legal maxim to some legal maxims used in Indian Courts viz. Actus Dei Nemini Injuriam , Actori incumbit onus probandi , Actio Personalis Moritur Cum Persona , Actus Non Facit Reum Nisi Mens Sit Rea , Assignatus utitur jure auctoris etc .with their English meaning and related case law.

1.  Legal Maxims In India Dr. Ashis Dash 1

2. What is legal maxim ? A  legal maxim  is an established principle or proposition of law or a legal policy usually stated in Latin form. Most of these Latin maxims originated from the Medieval era in the European states that used Latin as their legal language. These principles guides Courts all over the world in applying the existing laws in a fair and just manner to enable the Courts in deciding issues before it. Such principles don't have the authority of law but when Courts apply the maxims in deciding issues of law or the legislature incorporates such maxims while framing laws, they take the form of law and form the basis of sound judgements. 2

3. Some legal maxims followed by Courts in India Actus Dei Nemini Injuriam  -law holds no man responsible for the Act of God. Court held strike to be an act of god and held the maxim Actus Dei Nemini Facit Injuriam squarely applicable to such cases. Court further stated that in abnormal situations like strike in question, which can hardly be resisted by any litigant by applying any amount of skill or ability of his own, the courts should not insist for strict adherence to the procedural law so as to prejudice the interest of such litigants. In legal sense such incidents are well covered by the expression "Acts of God." –  Mali Ram Mahabir Prasad Vs Shanti Debi & Ors ., MANU/ BH /0010/1992: AIR 1992 PAT 66. 3

4. Actus Curiae Neminem Gravabit  – An Act of the Court shall prejudice no man This principle has been held to be fundamental to the system of justice and application to Indian Jurisprudence – that no man should suffer because of the fault of the court or delay in the procedure –  Busching Schmitz Private Limited Vs P.T. Menghani & Ors ., MANU/SC/0344/1977: AIR 1977 SC 1569: 1977 (2) SCC 835. Supreme Court used the legal phrase  "actus curiae neminem gravabit "  in support of its conclusion that the legislature could not have intended to put a period of limitation on the act of the court of taking cognizance of an offence so as to defeat the case of the complainant –  Bharat Damodar Kale & Ors . Vs State of A.P., MANU/SC/0794/2003: AIR 2003 SC 4560: 2003 (8) SCC 559. 4

5. Actio Personalis Moritur Cum Persona – A personal right of action dies with the person . Supreme Court held that the maxim  " actio personalis moritur cum persona"  – a personal action dies with the person – has a limited application – operates in a limited class of actions such as: actions for damages for defamation, actions for assault or actions for other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. It was held that an action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory –  Girja Nandini Devi & Ors . Vs Bijendra Narain Choudhury, MANU/SC/0287/1966: AIR 1967 SC 1124: 1967 (1) SCR 93. 5

6. Actori incumbit onus probandi – the burden of proof lies on the plaintiff The cardinal principle of law of evidence is that " Actori incumbit onus probandi" – The burden of proof rests upon the plaintiff –  Indra Raja & Ors . Vs John Yesurethinam , MANU/TN/4369/2011. 6

7. Actio personalis moritur cum persona – a personal action dies with the person This rule operates in a limited class of actions ex delicto such as actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages ex delicto, and does not fall within the enumerated classes. Nor is it such that the relief claimed being personal could not be enjoyed after death, or granting it would be nugatory. Death of the person liable to render an account for property received by him does not therefore affect the liability of his estate –  Girja Nandini Devi & Ors . Vs Bijendra Narain Choudhury, MANU/SC/0287/1966: AIR 1967 SC 1124: 1967 (1) SCR 93. 7

8. Actus Non Facit Reum Nisi Mens Sit Rea – The intent and act must both concur to constitute the crime Criminal guilt would attach to a man for violations of criminal law. However, the rule is not absolute and is subject to limitations indicated in the Latin maxim,  actus non facit reum , nisi mens sit rea . It signifies that there can be no crime without a guilty mind. To make a person criminally accountable, it must be proved that an act, which is forbidden by law, has been caused by his conduct, and that the conduct was accompanied by a legally blameworthy attitude of mind. thus, there are two components of every crime, a physical element and a mental element, usually called  actus reus and mens rea  respectively –  R.Balakrishna Pillai Vs State of Kerala, MANU/SC/0212/2003: 2003 (9) SCC 700: 2003 (2) SCR 436. 8

9. Assignatus utitur jure auctoris  – an assignee is clothed with the rights of his principal A leading rule concerning alienations and forfeitures is  “ assignatus utitur jure auctoris ”  – an assignee is clothed with the rights of his principal –  K. Subbanna Rai Vs Deranna Rai & Ors ., MANU/ KE /2503/2010 . 9

10. Affirmatis est probare – he who affirms must prove and  Affirmanti non neganti incumbit Probatio  – the burden of proof lies upon him who asserts and not upon him who denies. Madras High Court followed the above 2 maxims for arriving at its conclusion that it is the bounden duty of the plaintiff to prove his case. The burden of proof is ambulatory. It reiterated the law on the point that the initial burden of proof is only on the plaintiff, who should enter into the box and prove his title positively –  Pappannan & Ors . Vs Kolandasamy , MANU/TN/1886/2012: 2012 (7) Mad LJ 693 High Courts assessed the evidence led by the parties, including the plaintiff by applying the above 2 principles – ( i )  Ramaiyan Chinnadurai & Ors . Vs Ramamirtham , MANU/TN/8822/2019; Arjunan Vs Munusamy & Ors ., MANU/TN/0233/2013; (ii) Balbir Singh Vs Ganga Vishan , MANU/DE/1141/2015 10

11. Caveat venditor  – seller beware The concept of ‘as is where is’ and ‘as is what is’ basis has lost its significance in the current commercial milieu and the principle of caveat venditor is more on the rise as compared to the outdated principle of caveat emptor. The Transfer of Property Act, 1882, requires the seller to own up to certain duties and it is not open to a responsible bank to take an innocent auction purchaser for a ride by selling to him a tainted property and thereafter claim protection under the principles of ‘buyer beware’ – ( i )  Mandava Krishna Chaitanya Vs UCO Bank, Asset Management Branch, MANU/AP/0087/2018 (DB); (ii) V. Ravi Kumar Vs UCO Bank, MANU/AP/0398/2018 (DB). Various judgments of SC and HC have replaced the rule of caveat emptor by  caveat venditor  and when a property is put to sale, the Bank is under statutory obligation to sell the secured asset with clear title free from any encumbrance –  The Corporation Bank & Ors . Vs Jayesh Kumar Jha, MANU/WB/2300/2019; Rekha Sahu Vs UCO Bank & Ors ., MANU/UP/1191/2013 11

12. Delegatus non potest delegare  – In the absence of power, a delegate cannot sub-delegate its power to another person. A 7 Judge Constitution bench of Supreme Court held that no legislative body can delegate to another department of the government, or to any other authority, the power, either generally or especially, to enact laws which embody the principle underlying the maxim, delegatus non-protest delegate. The Court further clarified that all that it means is that the legislature cannot abdicate its legislative functions and it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted –  In Re: The Delhi Laws Act, 1912, MANU/SC/0010/1951: AIR 1951 SC 332: 1951 (2) SCR 747 12

13. Ei incumbit probation, qui dicit, non qui negat  – burden of proof lies upon him who asserts and not upon him who denies. The general rule as to the onus of proof is, that the proof of any particular fact lies on the party who alleges it, not on him who denies it,  “ ei incumbit probatio qui dicit, non qui negat ” . The reason for the rule is, first that it is but just that he who invokes the aid of the law should be the first to prove his case, and, secondly, that a negative is more difficult to establish than an affirmative. These principles have been clearly laid down in Sections 101 and 103 of the Evidence Act –  Patel Ramanbhai Mathurbhai Vs Govindbhai Chhotabhai Patel & Ors ., MANU/ GJ /0774/2018. 13

14.  Ejusdem Generis – Of the same class, or kind. A 5 judge Constitution bench held that the rule under the maxim is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. As laid down clearly by decided cases, the specific words must form a distinct genus or category –  Kavalappara Kottarathil Kochuni & Ors . Vs The State of Madras & Ors ., MANU/SC/0019/1960: AIR 1960 SC 1080: 1960 (3) SCR 887. 14

15.   Falsus in Uno Falsus in Omnibus – False in one thing, false in everything. This maxim has been held not applicable in India and the witnesses cannot be branded as liars. It was held that the maxim  falsus in uno falsus in omnibus  has not received general acceptance nor has this maxim come to occupy the status of a Rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a court may apply in a given set of circumstances, but it is not what may be called “a mandatory Rule of evidence”. Merely because some of the Accused persons have been acquitted, though the evidence against all of them, so far as direct testimony went, was the same does not lead as a necessary corollary that those who have been convicted must also be acquitted – ( i )  Rizan & Anr . Vs State of Chhattisgarh, MANU/SC/0036/2003: (2003) 2 SCC 661; (ii) Krishna Mochi & Ors . Vs. The state of Bihar, MANU/SC/0327/2002: AIR 2002 SC 1965: 2002 (6) SCC 81: 2002 (3) SCR 1. Thank You!!! 15