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Saturday, June 29, 2013

What were the jurisdictions of Equity Court.


The jurisdiction of Equity Court has been classified as follows:-
            1.      Exclusive Jurisdiction.
            2.      Concurrent Jurisdiction.
            3.      Auxiliary Jurisdiction.

1.      Exclusive Jurisdiction:
In many case, a claimed by a plaintiff would only be enforceable in a court of chancery. In these cases, when the court of chancery granted relief, it was said to be exercising its exclusive jurisdiction. The jurisdiction was exclusive because only chancery recognized it, the common law did not provide such relief for such rights.

For example, rights of persons claiming under uses and trusts, rights of a married woman in relation to property for her separate use, mortgages, right of redemption of a mortgage etc.

2.      Concurrent Jurisdiction:
Cases wherein the plaintiff has his option, he could proceed either at the common law courts or at the chancery court. In some situation,    a single set of fact will give rise the both legal and equitable actions. When equity provides as would have been issued at common law. That was concurrent jurisdiction. But the method and manner of equity was more effective than common law courts.

For example, fraud, accident, mistake, partnership, recovery of specific Chattels, specific performance of contracts, set off etc.

3.      Auxiliary Jurisdiction:
Where the equitable jurisdiction did not have concurrent jurisdiction over a legal right, auxiliary jurisdiction was exercised in there, in order to assist the defective procedure at common law for giving better and effective justice. In these cases equity was unable to provide any actual relief. But it could only grant aid in the enforcement of the right. 

For example, the Court of Chancery did not itself adjudicate upon the validity of plaintiff’s claim. The adjudication was made by the common law courts. But Chancery Court could help common law court before the adjudication. 

In Cervisy vs Cervisy, 1982, 2 NSWLR 567. Case it was held that the claimant must establish that damages are not and adequate remedy thus would be a ground under which court exercise its auxiliary jurisdiction.

Sunday, June 2, 2013

What are the sources of Hindu law?


Hindu Law is more religious than secular in character. The Hindus believed that their law is of divine origin to them. This is positive law emanated from the deity. It is not codified law, but extracted from various religious test, commentaries, usages and customs, and judicial decisions.
Sources of Hindu Law:
The sources of Hindu law can be classified under the flowing two heads:
A.    Ancient Sources:
1.      Sruti
2.      Smriti
3.      Commentaries or Nibandhas
4.      Customs and Usages
5.      Puranas

B.     Modern Sources:
6.      Judicial Decision
7.      Factum Valet.
8.      Equity, Justice and Good Conscience
9.      Legislation

1.      Sruti:
Literally sriti means, ‘what was heard’ the sruti is believed to contain the very words of the Deity. The sruti comprise the four veds, the six vedangas and eighteen Upanishadas. The four vedas are known as-
                    i.            The Rik-Veda
                  ii.            The Sum-Veda
                iii.            The Yajur-veda
                iv.            The Atharva-Veda
The Vedangas are appendages to Ved and are six in number. The Upanishadas are known as Vedantas or concluding portions of the Vedas and embody the highest principles of Hindu religion. Although the Srutis are believed to be the ultimate sources of law, in the sense of rules of human conduct. They are mostly religious in character and one finds very little secular law in Srutis.

Saturday, June 1, 2013

What are the schools of Hindu law, describe their fundamental differences & effects of migration on the Schools of Hindu law.


Broadly speaking, there are two main schools of Hindu law, namely:-
1.      The Dayabhaga school, and
2.   The Mitakshara school.

The Mitakshara is a running commentary on the code of Yajnavalka. It has been written by an eleventh century jurist by the name of Vijnaneshwar (বিজ্ঞানেশ্বর), and prevails in all parts of India (except the province of West Bengal) and in Pakistan. The Dayabhaga School, which is followed mainly in Bengal, Bangladesh, is not a commentary or any particular code, but is a digest of all the codes. It has been written by Jimutavahana (জিমুতবাহ). It may also be noted that the Mitakshara is the orthodox school, whereas the Dayabhaga is the reformist school of Hindu law.

     The Dayabhaga is not divided into any sub-schools, However, the Mitakshara is sub-divided into four schools prevailing in different part of India, and these four sub-schools are as follows:-

a.    The Banaras School, which prevails in northern and western India;
b.   The Mithila School, which has most of its followers in Bihar
c.    The Dravida or Madras School, which prevails in Southern India; and
d.   The Maharashtra or Bombay School, which prevails in Western India.

The Mitakshara and the Dayabhaga school differed on important issues as regards the rules of inheritance. However, this branch of law is now codified by the Hindu succession Act, 1956, which has dissolved the differences between the two.

     Today, the main divergence between the two refers to certain matters connected with the joint family system. Under the Mitakshara system, rights in the joint family properties are acquired by birth, and as a rule females have no right of succession to the family property, which passes by survivorship to the other male members of the family.  Under the Dayabhaga system, rights in the joint family property are acquired by inheritance or by will, and the share of a deceased male member goes to his widow in default of a closed heir.
Although it is the Dayabhaga schools that prevails in Bengal, the Mitakshara is also regarded there is being a very high authority on all question in respect whereof there is no express conflict between the two schools. Likewise, the Dayabhga is also referred to sometimes in a case governed by Mitakshara law, on points on which the letter is silent.
Case Ref: Mahavir Prasad vs Rai Bahadar Singh