Chapter 3

Maxims

Actus curiae neminem gravabit

Act of court should not harm the Litigant.

It is no doubt true that a litigant must be vigilant and take care but where a litigant goes to Court and asks for the assistance of the Court so that his obligations under a decree might be fulfilled by him strictly, it is incumbent on the Court, if it does not leave the litigant to his own devices, to ensure that the correct information is furnished. 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. 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 bounded 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".

Jang Singh vs. Brij Lal and others, AIR 1966 SC 1631: 65 Pun LR 884: 1964(2) SCR 145

Contemporanea expositio

Principle has no application in respect of modern statutes

The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes, but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute of that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in astatic society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.

Senior Electric Inspector v. Laxminarayan Chopra, AIR 1962 SC 159: 1962(1) SCJ 593: 1962(3) SCR 146.

If contemporaneous construction is erroneous, Court is not bound to accept it and the application of this doctrine on recent legislation is doubtful.

This principle can be invoked, though the same will not always be decisive on the question of construction. But the contemporaneous construction placed by administrative or executive officers charged with executing the statute, although not controlling, is nevertheless entitled to considerable weight as highly persuasive. We may also add that if the interpretation is erroneous, court would without hesitation refuse to follow such construction.

The application of the doctrine of contemporanea expositio as given to the construction or its applicability to a recent statute that too in the first few years of its enforcement is doubtful.

Oswal Agro Mills Ltd. v. Collector of Central Excise., AIR 1993 SC 2288: 1993 Supp (3) SCC 716: 1993(3) SCR 378: 1993(3) JT 260.

In the construction of a modern statute, the principle has no application.

The maxim contenporanea exposito was applied in construing ancient statutes but not to interpreting Acts which are comparatively modern. In a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made and, unless a contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.

J.K. Cotton Spinning and Weaving Mills Ltd. v. Union of India, AIR 1988 SC 191: 1987 Supp. SCC 350: 1988(1) SCR 700: 1987(2) Scale 903: 1987(4) JT 421

Application of—Maxim is not applicable for interpreting Modern Statutes.

The maxim contemporanea expositio was applied in construing ancient statutes but not in interpreting Acts which are comparatively modern. Indeed, the rule of construction which ought to be applied to a statute either ancient or modern is the same and that is to ascertain the intention of the Legislature. It would be inappropriate to attach wide meaning to the words used by the legislature in a law made in remote ages when society was static and that the position would be different with respect to words used in a law made in a modern progressive society in which the frontiers of knowledge are fast expanding. The Evidence Act was enacted at a time when already a revolution in men's ideas had set in and considerable scientific advances had already been made. The maxim laid down by Coke, cannot therefore properly be applied for construing the language used by the Legislature in Section 25 of the Evidence Act.

Raja Ram Jaiswal vs. State of Bihar, AIR 1964 SC 828: 1964 BLJR 414: 1964(2) SCR 752.

Delegatus non potest delegare

The maxim "delegatus non potest delegare" must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted.

Barium Chemicals Ltd. and another v. Company Law Board and others, AIR 1967 SC 295 : 1966(2) SCWR 567: 1966 Supp. SCR 311.

Exposition ex visceribus actus

Exposition ex visceribus actus is a long recognised rule of construction.

Words in a statute often take their meaning from the context of the statute as a whole. They are therefore, not to be construed in isolation. For instance, the use of the word "may" would normally indicate that the provision was not mandatory. But in the context of a particular statute, this word may connot a legislative imperative, particularly when its construction in a permissive sense would relegate it to the unenviable position, as it were, "of an ineffectual angel beating its wings in a luminous void in vain". "If the choice is between two interpretations", "the narrower of which would fail to achieve the manifest purpose of the legislation, we should avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on the view that Parliament would legislate only for the purpose of bringing about an effective result.

Superintendent and Remembrancer of Legal Affairs to Govt. of West Bengal v. Abani Maity, 1979 CrLJ 897: 1979 AIR (SC) 1029: 1979 SCC (Cr) 902: 1979 CrLR (SC) 551.

Generalia specialibus non derogent

A general later law does not abrogate an earlier special one by mere implication. Generalia specialibus non derogant, or, in other words, "where there are general words in a later Act capable of reasonable and sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold that earlier and special legislation indirectly repealed, altered, or derogated from merely by force of such general words, without any indication of a particular intention to do so. In such cases it is presumed to have only general cases in view, and not particular cases which have been already otherwise provided for by the special Act".

Maharaja Pratap Singh Bahadur vs. Thakur Manmohan Dey and others, AIR 1966 SC 1931: 1966 BLJR 997: 1966(3) SCR 663

Generalia specialibus non derogant.

To this may be added a rider: in a case of reasonable doubt, the construction most beneficial to the subject is to be adopted. But even so, the fundamental rule fo of construction is the same for all statutes, whether fiscal or otherwise. "The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather thatn from any notions which may be enetertained by the court as to what is just or expedient." The expressed intention must guide the court. Another rule of construcion which is relevant to the present enquirey is expressed in the maxim, generalia specialibus non derogant, which means that when there is a conflict between a general and a special provision, the latter shall prevail.

Commissioner of Income-tax, Patiala vs. Shahzada Nand and Sons, AIR 1966 SC 1342: 1966(1) SCJ 715: 1966(3) SCR 379

Contemporanea expositio est optima et fortissima in lege

Meaning of—Contemporaneous exposition is best and strongest in law—Scope of application of maxim.

The maxim contemporanea expositio as laid down by Coke was applied to construing ancient statutes, but not to interpreting Acts which are comparatively modern. There is a good reason for this change in the mode of interpretation. The fundamental rule of construction is the same whether the Court is asked to construe a provision of an ancient statute of that of a modern one, namely, what is the expressed intention of the Legislature. It is perhaps difficult to attribute to a legislative body functioning in astatic society that its intention was couched in terms of considerable breadth so as to take within its sweep the future developments comprehended by the phraseology used. It is more reasonable to confine its intention only to the circumstances obtaining at the time the law was made. But in a modern progressive society it would be unreasonable to confine the intention of a Legislature to the meaning attributable to the word used at the time the law was made, for a modern Legislature making laws to govern a society which is fast moving must be presumed to be aware of an enlarged meaning the same concept might attract with the march of time and with the revolutionary changes brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a contrary intention appears an interpretation should be given to the words used to take in new facts and situations, if the words are capable of comprehending them.

Senior Electric Inspector and others vs. Laxminarayan Chopra and another, AIR 1962 SC 159: 1962(1) SCJ 593: 1962(3) SCR 146.

Communis error facit jus

Meaning of communis error facit jus.

The principle underlying the maxim is that "the law so favours the public good, that it will in some cases permit a common error to pass for right".

Raman Nadar Viswanathan Nadar and others vs. Snehappoo Rasalamma and others, AIR 1970 SC 1759: 1970 (2) SCJ 738: 1969(3) SCC 42: 1970(2) SCR 471

Approbate and reprobate

It is part of the doctrine of election—A party choosing to claim a transaction to be valid, can not reverse its stand subsequently.

The doctrine of election is not however confined to instruments. A person cannot say at one time that a transaction is valid and thereby obtain some advantage, to which he could only be entitled on the footing that it is valid, and then turn round and say it is void for the purpose of securing some other advantage. That is to approbate and reprobate the transaction.

The maxim that a person cannot 'approbate and reprobate' is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto.

Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593: 1956 And LJ 1029: 1956 SCR 451

Ut res magis valeat quam pereat

Application in interpretation of statutes.

A statute, even more than a contract, must be construed, ut res magis valeat quam pereat, so that the intentions of the legislature may not be treated as vain or left to operate in the air. A second consequence of this rule is that "a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made.

Dhoom Singh vs. Prakash Chandra Sethi and others, AIR 1975 SC 1012: 1975 Jab LJ 463: 1975(1) SCC 592: 1975(3) SCR 595

Sensible construction—The words of statute must be construed to give sensible meaning—The words ought to be construed ut res magis valeant quam pureat.

Avtar Singh v. State of Punjab, 1965(1) CrLJ 605: AIR 1965 SC 666: 1965(1) SCR 103: 1965 Cur LJ 308.

Salus populi est suprema lex

Meaning and scope of.

A valid claim for privilege made under Section 123 proceeds on the basis of the theory that the production of the document in question would cause injury to public interest, and that, where a conflict arises between public interest and private interest, the latter must yield to the former. No doubt the litigant whose claim may not succeed as a result of the non-production of the relevant and material document may feel aggrieved by the result, and, the Court, in reaching the said decision, may feel dissatisfied; but that will not affect the validity of the basic principle that public good and interest must override considerations of private goods and private interest. Care has, however, to be taken to see that interests other than that of the public do not masquerade in the garb of public interest and take undue advantage of the provisions of Section 123. Subject to this reservation the maxim salus populi est suprema lex which means that regard for public welfare is the highest law is the basis of the provisions contained in Section 123. Though Section 123 does not expressly refer to injury to public interest that principle is obviously implicit in it and indeed is its sole foundation.

P: State of Punjab, Sodhi Sukhdev Singh, AIR 1961 SC 493: 1961 Mad.L.J. (Cri) 731: 1961(2) SCJ 691: 1961(2) SCR 371

Actio personalis moritur cum persona

Application of—Breach of fiduciary duties—Scope of liability of legal heirs after the death of wrong doer.

It would not be applicable to actions based on contract or where a tort feaser's estate had benefited from a wrong done. Its application was generally confined to actions for damages for defamation, seduction, inducing a spouse to remain apart from the other, and adultery.

We see no reason to extend the maxim, as a general principle, even to cases involving breaches of fiduciary duties or where the personal conduct of the deceased Director has been fully enquired into, and the only question for determination, on an appeal, is the extent of the liability incurred by the deceased Director. Such liability must necessarily be confined to the assets or estate left by the deceased in the hands of the successors.

Supreme Bank Ltd. v. P.A. Tendolkar, AIR 1973 SC 1104: 973(1) SCC 602: 1973(3) SCR 364.

Application of—Term 'other proceedings' as occurring in Section 69(3) of Partnership Act, 1932 includes proceedings under Section 8(2) of Arbitration Act, 1940 and therefore, the proceedings under Act of 1940 are barred qua un-registered partnership firm.

Interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted.

Jagdish Chandra Gupta v. Kajaria Traders (India) Ltd., AIR 1964 SC 1882: 1964 All LJ 971: 66 Bom LR 709: 1964(8) SCR 50.

Ex turpi cause non oritur action

Application of—Extent of illegality—Trivial nature of illegality found and therefore, Maxim has no application.

The correct position in law, in our opinion, is that what one has to see is whether the illegality goes so much to the root of the matter that the plaintiff cannot bring his action without relying upon the illegal transaction into which he had entered. If the illegality be trivial or venial, as stated by Williston and the plaintiff is not required to rest his case upon that illegality, then public policy demands that the defendant should not be allowed to take advantage of the position. A strict view, of course, must be taken of the plaintiff's conduct, and he should not be allowed to circumvent the illegality by resorting to some subterfuge or by mis-stating the facts. If, however, the matter is clear and the illegality is not required to be pleaded or proved as part of the cause of action and the plaintiff recanted, before the illegal purpose was achieved, then, unless it be of such a grass nature as to outrage the conscience of the Court, the plea of the defendant should not prevail.

Kedar Nath Motani and others vs. Prahlad Rai and others, AIR 1960 SC 213: 1960 BLJR 260: 1960 (1) SCR 861

Impotentia excusat legem

Meaning and effect of—Necessity to perform a provision of law—Considerations for determination of.

The maxim of law impotentia excusat legem is intimately connected with another maxim of law lex non cogit adimpossibilia. Imptentia excusat legem is that when there is necessary or invincible disability to perform the mandatory part of the law that impotentia excuses. The law does not compel one to do that which one cannot possibly perform. "Where the law creates a duty or charge, and the party is disabled to perform it, without any default in him, and has no remedy over it, there the law will in general excuse him". Therefore, when it appears that the performance of the formalities prescribed by a statute has been rendered impossible by circumstances over which the persons interested had no control, like the act of God, the circumstances will be taken as a valid excuse. Where the act of God prevents the compliance of the words of a statute, the statutory provision is not denuded of its mandatory character because of supervening impossibility caused by the act of God.

In re, Presidential Election, 1974, AIR 1974 SC 1682: 1974(2) SCC 33: 1975(1) SCR 504

Noscitur a sociis

The doctrine is wider than ejusdem generis.Use of words susceptible of analogous meaning— The words are to be used in their cognate sense.

Where the words of the staute are plain and clear, there is no room for applying any of the principles of interpretation which are merely presumption in cases of ambiguity in the statute. The Court would interpret them as they stand. The object and purpose has to be gathered from such words themselves. Words should not be regarded as being surplus nor be rendered otiose. Strictly speaking there is no place in such cases for interpretation or construction except where the words of statute admit of two meanings.

When two or more words which are susceptible of analogous meaning are clubbed together, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general is restricted to a sense analogous to a less general. The philosophy behind it is that the meaning of the doubtful words may be ascertained by reference to the meaning of words associated with it. This doctrine is broader than the doctrine of ejusdem generis. This doctrine was accepted by this Court in catena of cases but its application is to be made to the context and the setting in which the words came to be used or associated in the statute or the statutory rule. Equally the doctrine of contemporanea expositio is also being invoked to cull out the intendment by removing ambiguity in its understanding of the statute by the executive.

Oswal Agro Mills Ltd. v. Collector of Central Excise, AIR 1993 SC 2288: 1993 Supp (3) SCC 716: 1993(3) SCR 373: 1993(3) JT 260.

The maxim noscitur a sociis should not be applied mechanically.

The principle is that the meaning of a word is to be judged by the company of words it keeps. The principle of statutory interpretation by which a generic word receives a limited interpretation by reason of its context is well established. In the context with which we are concerned, we can legitimately draw upon the "noscitur a sociis" principle. This expression simply means that "the meaning of a word is to be judged by the company it keeps.

These maxims and precedents are not to be mechanically applied; they are of assistance only in so far as they furnish guidance by compendiously summing up principles based on rules of common sense and logic.

Rohit Pulp and Paper Mills Ltd. v. Collector of Central Excise, Baroda, AIR 1991 SC 754: 1990(3) SCC 447: 1990(2) SCR 797: 1990 Supp (1) Scale 55: 1990(3) JT 245.

Pari delicto potiorest conditio defendentis

Application and exceptions.

The principle that the Cours will refuse to enfore an illegal agreement at the instance of a person who is himself a party to an illegality or fraud is expressed in the maxim in pari delicto potiorest conditio defendentis.

Sita Ram vs. Radha Bai, AIR 1968 SC 534: 1968 (2) SCJ 231: 1968(1) SCR 805