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.
Few of the legal maxims which are followed by Courts in India are as follows:
1. Ab initio – From the very beginning of the law/ act it was bad. Such a term is used in reference to law, agreements, a deed executed between parties, marriage etc. If something is said to be void ab initio, the thing was never created or void to begin with.
- SC used the latin term "ab initio" to arrive at a conclusion that the proceedings were ab initio defective as they could not have been instituted since the firm in whose name the proceedings were instituted was not registered at the date of the institution of the proceedings – Delhi Development Authority Vs Kochhar Construction Work & Ors., MANU/SC/1279/1998: 1998 (8) SCC 559.
- Void marriages are void ab initio which means that in the eye of law that marriage has never come into being – Manjeet Singh Vs Parson Kaur, MANU/PH/0220/1990.
- Transactions of the sale made during the pendency of the proceedings were held to be wholly illegal and void ab initio in law and therefore the same were held to be not sustainable in law – R. Rajashekar & Ors. Vs Trinity House Building Co-operative Society & Ors., MANU/SC/1005/2016: AIR 2016 SC 4329: 2016 (16) SCC 46.
- A purchaser after notification under Section 4 of the Land Acquisition Act, 1894 does not acquire any right in the land as the sale is ab initio void and has no right to claim land under the Policy – Shiv Kumar & Ors. Vs Union of India (UOI) & Ors., MANU/SC/1407/2019: AIR 2019 SC 5374: 2019 (10) SCC 229.
2. 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. 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.
- Save and except the personal cause of action which dies with the deceased on the principle of "action personal is moritur cum persona" i.e. a personal cause of action dies with the person, all the rest of causes of action which have impact on proprietary rights and socio legal status of the parties cannot be said to have died with such a person – Yallawa Vs Shantavva, MANU/SC/0016/1997: AIR 1997 SC 25: 1997 (11) SCC 159.
- In the event of the death of the executor of a will, the maxim actio personalis moritur cum persona does not apply to probate proceedings initiated by the executor before his death. An executor in applying for probate is not fighting a personal action but fighting for the interests of all the beneficiaries under the will and that therefore the action of an executor in applying for a probate is not in substance a personal action. If the executor fails in his duty, any of those whom he represents are entitled to intervene and carry on the proceedings with a formal modification' that the prayer must then be for letters of administration with the will annexed – Vatsala Srinivasan Vs Shyamala Raghunathan, MANU/SC/0498/2016: 2016 (13) SCC 253.
- It was held that a decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. It further stated that "The maxim "actio personalis moritur cum persona" is limited to certain class of cases... and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives – Prabhakara Adiga Vs Gowri & Ors., MANU/SC/0183/2017: AIR 2017 SC 1061: 2017 (4) SCC 97.
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.
- A 3 Judge bench of Supreme Court held that if the Court in supplying the information makes a mistake the responsibility of the litigant, though it does not altogether cease, is at least shared by the Court. If the litigant acts on the faith of that information the Courts cannot hold him responsible for a mistake which it itself caused. It further went on to say that "there is no higher principle for the guidance of the Court than the one that no act of Courts should harm a litigant and it is the bounden duty of Courts to see that if a person is harmed by a mistake of the Court he should be restored to the position he would have occupied but for that mistake. This is aptly summed up in the maxim: Actus curiae neminem gravabit; Thus, in view of the mistake of the District Court which needed to be righted, the parties were relegated to the position they occupied when the error was committed by the Court, which error was rectified by SC nunc pro tunc. Jang Singh Vs Brijlal & Ors., AIR 1966 SC 1631: 1964 (2) SCR 145.
- 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.
- Supreme Court held that the maxim "actus curiae neminem gravabit" formed the basis of the principle of rectification of decree under Section 152 of Code of Civil Procedure whereby any error occurring in the decree on account of arithmetical or clerical error or accidental slip may be rectified by the Court. After considering plethora of case laws, it laid down certain situations in which the Court can invoke the said maxim:-
- In a matter where it is clear that something which the Court intended to do but the same was accidentally slipped or any mistake creeps in due to clerical or arithmetical mistake it would only advance the ends of justice to enable the Court to rectify such mistake.
- But before exercise of such power the Court must be legally satisfied and arrive at a valid finding that the order or the decree contains or omits something which was intended to be otherwise i.e. to say that while passing the decree the court must have in its mind that the order or the decree should be passed on a particular manner but that intention is not translated into the decree or order due to clerical, arithmetical error or accidental slip.
- The facts and circumstances may provide clue to the fact as to what was intended by the court but unintentionally the same does not mention in the order or the judgment or something which was intended to be there stands added to it.
- The power of rectification of clerical, arithmetical errors or accidental slip does not empower the court to have a second thought over the matter and to find that a better order or decree could or should be passed. There should not be re-consideration of merits of the matter to come to a conclusion that it would have been better and in the fitness of things to have passed an order as sought to be passed on rectification.
Jayalakshmi Coelho Vs Oswald Joseph Coelho, MANU/SC/0145/2001: AIR 2001 SC 1084: 2001 (4) SCC 181..
- Court held that no one shall suffer by an act of the Court. The factor attracting the applicability of restitution is not the act of the Court being wrongful or a mistake or error committed by the court; the test is whether an act of the party persuading the Court to pass an order held at the end as not sustainable, has resulted in one party gaining an advantage it would not have otherwise earned, or the other party suffering an impoverishment which it would not have suffered but for the order of the Court and the act of such party. There is nothing wrong in the parties demanding to be placed in the same position in which they would have been had the Court not intervened by its interim order, when at the end of the proceedings, the Court pronounces its judicial verdict which does not match with and countenance its own interim verdict. The injury, if any, caused by the act of the Court shall be undone and the gain which the party would have earned unless it was interdicted by the order of the Court would be restored to or conferred on the party by suitably commanding the party liable to do so. Thus the Court held the successful party to be entitled to compensation in terms of money at the end of litigation – South Eastern Coalfields Ltd. Vs State of M.P. & Ors., AIR 2003 SC 4482: 2003 (8) SCC 648: 2003 Supp 4 SCR 651.
- Supreme Court applied the effect of the maxim in criminal law as well and used it as one of the guiding principles to interpret Section 468 of the Code of Criminal Procedure to conclude that the said provision is made for condonation of delay and thus treated the date of filing of complaint or date of initiation of proceedings as the relevant date for computing limitation. The Court further stated that the court's inaction in taking cognizance i.e. court's inaction in applying mind to the suspected offence should not be allowed to cause prejudice to a diligent complainant – Sarah Mathew Vs Institute of Cardio Vascular Diseases and Ors., 2014 (2) SCC 62: AIR 2014 SC 448: 2014 (2) SCC 62.
- In situations where interim orders have been passed and ultimately petition/ suit dismissed as being frivolous or devoid of any merit, Supreme Court was of the view that "no litigant can derive any benefit from the mere pendency of a case in a Court of Law, as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the Court. The fact that the case is found, ultimately, devoid of any merit, or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim "Actus Curiae neminem gravabit", which means that the act of the Court shall prejudice no-one, becomes applicable in such a case. In such a situation the Court is under an obligation to undo the wrong done to a party by the act of the Court. Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the Court must be neutralised, as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the Court – Kalabharati Advertising Vs Hemant Vimalnath Narichania and Ors., AIR 2010 SC 3745: 2010 (9) SCC 437: 2010 (10) SCR 971.
- Supreme Court cautioned against use of the maxim "actus curiae neminem gravabit". It stated "the legal maxim that has been taken recourse to cannot operate in a vacuum. It has to get the sustenance from the facts. As is manifest, after the admissions were over as per the direction of this Court, the Appellants, who seemed to have resigned to their fate, woke up to have control over the events forgetting that the law does not assist the non-vigilant. One cannot indulge in luxury of lethargy, possibly nurturing the feeling that forgetting is a virtue, and thereafter, when the time has slipped through, for it waits for none, wake up and take shelter under the maxim "actus curiae neminem gravabit". It is completely unacceptable." Court thus declined to come to the rescue of such lethargic party – Neeraj Kumar Sainy And Ors. Vs State of U.P. & Ors., MANU/SC/0283/2017: AIR 2017 SC 1524: 2017 (14) SCC 136: 2017 (3) SCALE 583.
- Supreme Court relied upon the said maxim to arrive at a conclusion that since the interim order was passed at the instance of the Respondent, the Appellant should be permitted to retain the amount and complete the process by providing opportunity to the private Respondents. The Court went on to say that when it is prima-facie indicated that due to the delay caused at the instance of the private Respondents the value of the Kendu leaves had reduced, thereby causing loss, in view of legal proceedings initiated by the private Respondents, the Court will have to bear in mind the maxim actus curiae neminem gravabit, namely, no party should suffer due to the act of Court – Odisha Forest Development Corporation Ltd. Vs Anupam Traders & Ors., MANU/SC/1643/2019: 2019 (17) SCALE 531.
5. 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. 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.
- Save and except the personal cause of action which dies with the deceased on the principle of actio personalis moritur cum persona i.e. a personal cause of action dies with the person, all the rest of the causes of action which have an impact on proprietary rights and socio-legal status of the parties cannot be said to have died with such a person – Smt. Yallawwa Vs Smt. Shantavva, MANU/SC/0016/1997: (1997) 11 SCC 159.
- Decree for injunction can also be executed against legal representatives of the deceased judgment-debtor. The maxim "actio personalis moritur cum persona" is limited to certain class of cases as indicated by this Court in Girijanandini Devi v. Bijendra Narain Choudhary and when the right litigated upon is heritable, the decree would not normally abate and can be enforced by LRs. of decree-holder and against the judgment-debtor or his legal representatives. It would be against the public policy to ask the decree-holder to litigate once over again against the legal representatives of the judgment-debtor when the cause and injunction survives. No doubt, it is true that a decree for injunction normally does not run with the land. In the absence of statutory provisions it cannot be enforced. However, in view of the specific provisions contained in Section 50 Code of Civil Procedure, such a decree can be executed against legal representatives – Prabhakara Adiga Vs Gowri & Ors., MANU/SC/0183/2017: AIR 2017 SC 1061.
7. 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.
- To commit a criminal offence, mens rea is generally taken to be an essential element of crime. It is said furiosi nulla voluntus est. In other words, a person who is suffering from a mental disorder cannot be said to have committed a crime as he does not know what he is doing. For committing a crime, the intention and act both are taken to be the constituents of the crime, actus non facit reum nisi mens sit rea. Every normal and sane human being is expected to possess some degree of reason to be responsible for his/her conduct and acts unless contrary is proved. But a person of unsound mind or a person suffering from mental disorder cannot be said to possess this basic norm of human behavior – State of Rajasthan Vs Shera Ram, MANU/SC/1428/2011: AIR 2012 SC 1: 2012 (1) SCC 602.
- 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 their 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 – C.K. Jaffer Sharief Vs State (Through CBI), MANU/SC/0960/2012: AIR 2013 SC 48: 2013 (1) SCC 205.
- Court relying on Halsbury Laws of England held that in general a person does not incur criminal liability unless he intended to bring about, or recklessly brought about, those elements which constitute the crime which is traditionally expressed in maxim "actus non facit reum nisi mens sit rea". Enforcement of a right and seeking remedy are two distinct facets. It should not be confused – Subramanian Swamy Vs Union of India (UOI) and Ors., MANU/SC/0621/2016: AIR 2016 SC 2728: 2016 (7) SCC 221.
To view the full article please click here.
Author: Meenakshi Ogra Mukherjee - Principal Associate in Litigation
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.