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  • in reply to: Hindu Succession Act, 1956 and Customary Law #3702
    Intern
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    In traditional Hindu Law, the order of succession is based on spiritual benefit, but the Act has changed the order of succession based on affinity. In the old Hindu Law, women were entitled to a limited estate ( property inheritance), the Hindu Succession Act, 1956 abolished the limited estate, and now they are entitled to the absolute estate. In the past, the coparcenary could not make a will regarding his interest in Joint family property, whereas after passing the Act, he can execute a will in respect of his interest in the property. In old Hindu Law, Mithakshara and Dayabhaga schools recognized separate rules of succession; there were no uniform rules. But the Act has now adopted a uniform set of rules for all Hindus. The rule of spiritual benefit used to be the previous rule, whereas now it’s the rule of equality. Finally, in old Hindu Law, unchastity was a ground for excluding from inheritance on the part of women, but now it is not a ground.

    in reply to: Part Performance under Transfer of Property Act, 1882 #3695
    Intern
    Participant

    In Indian Law, this doctrine is contained in Section 53 – A of Transfer of Property Act 1882 (Amendment Act Of 1929), whereas in English Law, it is included in Section 40 of the Law of Property, 1925. The right contained under this doctrine in India is a statutory right, and in English Law, it’s an equitable right. In Indian Law, the contract should be in writing and must be signed by the transferor. But in English law, it is not necessary to be in writing and signed by the transferor. In Indian Law, it does not create a title in the transferee, whereas in English Law, it creates a title in the transferee. Finally, in Indian Law, this doctrine can only be used for defending the possession of the transferee, but in English Law, it can be used both for enforcing and defending the right.

    in reply to: Mistake of fact under IPC #3678
    Intern
    Participant

    So, basically, when a person does an act bound by law, he commits no offence. Here in Section 76 of the IPC, it says that mistake of fact may be a defence in a criminal act, and it is essential for the offender to prove for escaping the punishment. But the mistake of law is not a defence under both civil and criminal law. This finds a place in the expression called ignorantia facit excusat, ignorantia Juris non excusat. It is clear that the mistake of law is not an excuse. So, everyone needs to be up to date with the law, and no one can take a defence by saying that they were not aware of the law. At the same time, Section 79 of the IPC protects the acts that are justifiable by the law or in good faith believed to be justified by the law. So, the act justified by law is not an offence. When we look at both sections, they look pretty similar as in both the sections there should be a bona fide intention. Still, there is a key difference that in Section 76, the essential element is a legal compulsion, and in Section 79, it is legal justification.

    in reply to: Indemnity and Guarantee #3673
    Intern
    Participant

    Contract Of Indemnity has been defined under Section 124, whereas the contract of guarantee has been defined under Section 126, the Indian Contract Act 1872.
    Following are the main differences between the two:
    Contract of indemnity consists of two parties, namely Indemnifier and Indemnity holder. Contract of guarantee consists of three parties, Principal debtor, creditor, and surety. In a contract of indemnity, there is only one contract between indemnifier and indemnity holder, but in a contract of guarantee, there are three contracts: principal debtor & creditor, surety & principal debtor, and finally the surety & creditor. The object of a contract of indemnity is to reimburse the loss. A contract of guarantee is to give security to the creditor. The liability in a contract of indemnity is primary and independent, whereas it is secondary in a contract of guarantee. In Common Law, a contract of indemnity may either in oral or written, but a contract of guarantee should be in writing. But when it comes to Indian Law, there is no such difference; both can be either oral or written. In a contract of indemnity, the indemnifier should always bring the suit in the name of indemnified, and they cannot sue a third party in his own name, but in a contract of guarantee, if surety discharges the debt payable by the principal debtor, he steps into the shoes of the creditor and becomes entitled to realize the money paid in this own right.

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