Civil Law in India

Washington University Law Review
Volume 1969 Issue 1
1969
Civil Law in India

K. M. Sharma
The Indian Law Institute
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K. M. Sharma, Civil Law in India, 1969 WASH. U. L. Q. 1 (1969).
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WAS4INGTON UNIVERSITY
LAW QUARTERLY
Volume 1969 Winter 1969 Number 1
CIVIL LAW IN INDIAt
K. M. SHARMA*
I. INTRODUCTION
The viability of a country's legal system in the face of the rapid

changes in social and economic conditions is often a function of the
variety of solutions which can be suggested and accommodated within
the framework of law adopted by that society. The two supposed sys-
tems of law-the civil law and the common law-are often spoken of
as mutually exclusive alternatives. In fact, however, there has in many
jurisdictions been a very fruitful interplay between the two. The inter-
relationship of common law and civil law in India, for example, offers
a fascinating field of study for comparative lawyers.
That Roman law and the thinking of continental legal systems did
play, and have continued to play,' a not altogether insignificant role
f The author desires to acknowledge the guidance of Professors Arthur Taylor von
Mehren and Jerome A. Cohen in the preparation of this article.
0 B.A., 1959 (Rajasthan), MA., 1961 (Rajasthan), LL.B., 1963 (Rajasthan), LL.AI, 1965
(Rajasthan); Assistant Editor, Journal of The Indian Law Institute, New Delhi, India
(1965-67); LL.M., 1968 (Harvard); S.J.D. Candidate (Harvard).
1. The Law Commission found it too late to shift to some of the continental institu-
tions to avoid some procedural delays. LAw COMI'N OF INOA, REP. No. 14, RFoRm OF
JUDICIAL ADMIISTATION 677-94 (1958). However, under the Village Panchayat Acts of
various states, enacted in pursuance of the directive prindple of the Constitution, the
dispute-solving organ of the panchayat (nyaya panchayat) is free from the rule of the
"bindingness" of precedents and normally does not permit the parties to be represented
by lawyers. It can seek their assistance as non-partisan lawyers only. These departures
from the common law practice partake of some of the attributes of the continental
system.
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WASHINGTON UNIVERSITY LAW QUARTERLY
in Indian jurisprudence is a phenomenon hardly noticed by authors

of Indian legal history2 or by scholars engaged in the study of reception
of foreign laws3 on Indian soil. The seepage of civilian features into the
Indian legal system was barely perceptible owing to the dominance
of common law4 which has molded Indian legal thought for more than
two centuries. The post-independence attempts at codification" and
consolidation, 6 along with the avowed objective of the Constitution in
securing a uniform civil code for the entire population of India 7 are
perhaps characteristic of the civil law concepts used to neutralize the
inelegant excrescences of the imported common law.
In this paper an effort is made to trace the extent of civil law in-
fluence on Indian law and to indicate the need for the teaching of
civil law in Indian law schools. Studying the civil law system will not
only enlarge the knowledge of a student's storehouse of alternatives
2. See, e.g., H. DUBEY, A SHORT HISTORY OF THE JUDICIAL SYSTEMS OF INDIA AND SOME
FOREIGN COUNTRIES (1968); M. JAIN, OUTLINES OF INDIAN LEGAL HISTORY (2d rev. ed. 1966);
B. MISRA, THE CENTRAL ADMINISTRATION OF THE EAST INDIA COMPANY 1773-1834 (1959);
B. PANDEY, THE INTRODUCTION OF ENGLISH LAw IN INDIA (1967). One of the major gaps in
Indian studies today is the relative absence of studies in the area of legal history. Rarely
are historians trained in the law and still more rarely are they experienced in legal prac-
tice. Lawyers, on the other hand, lack the time to double as historians. With few excep-
tions, lawyers have not shown much interest in the complex historical circumstances-
social, political, intellectual-that have given rise to legal change. As a consequence, there
has been little produced in India in the field of legal history.
3. Significantly, the Indian Law Institute, in its research project on the degree and
depth of received foreign law, has not even considered the possibility of contact with
civil law. See also Lipstein, The Reception of Western Law in India, 9 UNESCO INTER-
NAT'L SOCIAL SCIENCE BULL. 85 (1957).
4. Professor R. W. Lee, in his painstaking study The Civil Law and the Common Law
-A World Survey, has pointed out the great reliance of Indian law upon English law,
leaving the implication that the continental European law had little or no effect on the
growth of Indian law; 14 MICH. L. REV. 89, 92 (1915). See M. SSTALvAD, THE COMIMON
LAW IN INDIA passim (1960); C. Amerasinghe, Roman Law Thinking and the Modern
World, 21 U. CEYLON REV. 14 (1963).
5. See, e.g., the attempts in the area of personal laws.
6. MINISTRY OF LAW, GOVERNMENT OF INDIA, INDIA CODE (8 vols. 1955-). It is interest-
ing to note that as early as 1872, Andrew Lyon preferred the French classification for
giving "a complete view of the whole of the statute law in force." "No existing classi-
fication of law has succeded [sic] better . . . than that of the law of France. . . . So
successful has it been, that nearly every nation of Europe has followed its arrangement
with only slight deviations. For these reasons I have taken the French law as the basis
for the classification of the law of India. A. LYON, GUIDE TO THE LAW OF INDIA 9-10
(1872) (footnotes omitted).
7. INDIA CONST. art. 44 (1950). See also Husein, Unified Code for India, 36 ALL INDIA
RPmT. (Journal Section) 68, 71-72 (1944); Nigam, A Plea for a Uniform Law of Divorce,
5 J. IND. L. INsT. 47 (1963); Ramchandran, Uniform Civil Code for India-Its Scope and
Practicability,89 ALL INDIA RPM. (Journal Section) 12, 14, 19, 22 (1952).
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CIVIL LAW IN INDIA
but will also enrich his understanding of the common law itself. The
importance of the historical events of the annexation of former Portu-
guese and French possessions into the Union of India, and the fact
that civilian thinking was not too infrequently utilized by judges and
lawyers in British India, are demonstrative of the need for the com-
parative scholar to appreciate the relevance of the infusion of civil law
elements into the Indian legal system.
II. CIVILIAN THINKING IN BRITISH INDIA
A. Early Tinkerings of Civil Law

Out of a plethora of sometimes conflicting details relating to the
administration of justice over a period of two centuries, relevant evi-
dence must be culled to trace the contact with civil law. Until 1661
(when Bombay became British territory by cession under Charles II's
marriage treaty with Portugal), responsibility for the administration
of justice to Indians was not considered. Charles II leased Bombay in
1668 to the East India Company for the princely sum of £10 a year.
The same year he granted a charter empowering the Company, inter
alia, to make laws and establish law courts in this newly-acquired
British possession "consonant to reason, and not repugnant or con-
trary to, but as near as may be agreeable to the laws of England."
Before the British takeover, Bombay for more than a century and
a quarter had been a Portuguese possession, under Portuguese law.
Briefly thereafter (for a period of three and a half years), it had been
under English rule. The view that during this period English laws
superseded Portuguese is not a sound one.9 The Governor, Humphrey
Cooke, initially toyed with the idea of introducing English law, 10 but
ultimately dropped the idea.
8. See W. MORLEY, THE ADMINISTRATION OF JUSTICE IN BRITISH INDIA 5 (1858). The is-
land had been since its cession by the Sultan of Gujarat in 1534 under Portuguese rule.
See A. KEITH, A CONSTITUTIONAL HISTORY OF INmA 1600-1935, at 81-35 (1936). See also
Mitra, Administration of Justice in India, 4 INDIAN L. REv. 209 (1950).
9. C. FAWCETT, FIRST CENTURY OF BRITISH JusTIcE IN INDIA 2-7 (1934). It was erroneously
held in Advocate-General v. Richmond, E. PERRY, CASES ILLusIrA TRA OF ORIENTAL LIFE
566. 573 (1853): "[There is not the least vestige of Portuguese Law or Courts at any time
after the cession by the King of Portugal; . . . English law was the law of the place."
Also, the treaty of cession did not stipulate the continuance of Portuguese laws.
10. S. KHAN, ANGLO-PORTuGUESE NEGOTIATIONS RELATING TO BOMBAY 1660-1667 (1922),
quoting Cooke's first official report of March 3, 1665:
In this Island was neither Government nor Justice, but all cases of Law was carried
to Tannay and Bassin, now it is in his Majesties Jurisdiction there must bee a settle-
Inent of Justice, according to such Lawes as his Majestie shall think fitt. . . . T]he

The Portugalls on the Maine and Neighbouring places in these

parts, have some lands on this Island, and many Inhabitants heere,
have lands ther, so that I have been forced to (to excuse a con-
fusion) settle the Civill law among them in this Island, the which
hath hugely pleased boath partys; among overselves is marshall
law, and for religion liberty of conscience is given to all.11
Cooke preserved the continuance of the Portuguese civil law to "ex-
cuse a confusion" (perhaps precipitous change may have been resisted
bitterly). His successor, Sir Gervase Lucas, and Henry Gary, who suc-
ceeded Lucas, did not alter these arrangements. 12
The Portuguese laws and customs, left untouched in 1670 when the
first judicial system was created, were formally abolished on August 1,
1672.13 The new court of Judicature was inaugurated on August 8,
1672. Gerald Aungier stated in his address1 4 on that occasion that some
people wondered "why the English having had possession of this Is-
land now seaven years have not in all this time governed by their own
laws."'15 The comment leaves little room for doubt about the continu-
ance of Portuguese law from 1661-1668. They were, as has been seen,
also left intact from 1668-1672. The court of Judicature became a
prelude to the creation of a new judicial system.
Aungier pressed the Company to send out a judge-advocate to insure
a more systematic functioning of the courts of judicature. The Com-
pany declined the request for a man learned in civil law, since it feared
that he might be disposed to stir up strife, contention and litigation in
the nascent settlement. 16 (The Company's apprehension was propheticl)
generall Language is Portugueez, soe that it will be necessary the Statutes and Lawes
should bee Translated into that Language ....
Id. at 467.
11. Id., at 476, quoting Cooke's second report of Dec. 23, 1665 (emphasis added). See
also A. KErTH, supra note 8, at 31-35. It must be conceded however that this term "civill
law" has been interpreted also as being in contradistinction to military law instead of
as opposed to the common law. See Naoroji Beramji v. Rogers, [1866-67] 4 Bombay High
Court Reports (Original Civil jurisdiction) 1, 47 (1866) [hereinafter cited as Bomb. H. Ct.
(O.C.J.)].
12. See W. FoSrER, TaE ENGLISH FACroTREs IN INDIA 1665-1667, at 70 (1925): "All cases
of law and processes having bein determined heere by the lawes of Portugall, it will be
very requisit that His Majesty send hither a civilian...." See also C. ILaar-, Tan Gov-
EBNMENT OF INDIA 19 (3d ed. 1915); A. KrrH, supra note 8, at 32.
13. S. KHAN, supra note 10, at 490-91, reproducing George Wilcox's Report.
14. Id. at 497.
15. Id.
16. P. ANDERSON, Tan ENGLISH IN WvasrERN INDIA 130 (1856); 2 J. BRucE, ANNALS OF THE
HONORABLE EAST-INDIA ComPANY 279 (1810). While refusing to send a lawyer from
England, the Company asked Aungier to select someone expert in the laws from amongst
its existing servants in India.
CIVIL LAW IN INDIA
The refusal amounted to requiring Aungier to institute a law court

without lawyers. However, before his departure Aungier appointed
Simon Serron, a Portuguese lawyer, the chief law officer of the Com-
pany. Serron was "well read in the civill and Imperiall lawes and one
who by his experience and practice in the Lawes and customes of
Portugalls is ably qualified to doe the Company effectuall service in
discovering their Just rights and priviledges."' 17 This learned attorney's
advice was so profound as to be embarrassing to other judges: "[H]e
quotes so many Authors and spins out his advice into so many hard
words, that the Justices of the Peace are so startled at the perusall of
it, that being not able to contradict what therein contained they agree
with his opinion though never so unjust.... ."18 In the absence of proper
or sufficient libraries, the unfortunate judges had difficulties in verify-
ing the quotations from "so many learned authors," with which Simon
Serron fortified and embellished his arguments.
The next phase of the possibilities of infusion of civil law opened
with the Charter of 1683. The charter provided for the establishment
of an admiralty court consisting of one person learned in the civil law.
This court, therefore, was established in Bombay in 1684; Dr. John
St. John, D.C.L., a Roman law scholar, was sent from England to
preside as judge-advocate. Strained relations with the Governor, Sir
Child, culminated in his dismissal in 1687. Probably, this unpleasant
experience of the Company with the civilian judge-advocate abated
any enthusiasm for the reception of civil law,'9 for which attempts
were afoot.20
B. Fascination for Civilian Models
Further evidence of civilian influence2 ' must be gleaned from the
Warren Hastings' judicial plan of 1772 and the events following. Reg-
17. Bombay Consultation of Feb. 12, 1670 (3 FACroRY REcoRDs SURAT 48, 49).
18. Complaint about Simon Serron in a Bombay letter of May 18, 1672 (106 FACtORY
RaEoiws SurAT 106, 107). The career of this learned lawyer ended with his dismissal for
"various cheats."
19. After the departure of Dr. St. John, there is no positive evidence that another
person, learned in the civil law, was sent from England to succeed him. C. FAWCmTr, supra
note 9, at 128; P. MALABARI, BOMBAY IN TiE MAKNG 169 (1910).
20. See C. FAwcETr, supra note 9 at 132, 133, 134, 138.
21. In 1726, English law was introduced in three settlements: Madras, Bombay and
Calcutta (then known as presidency towns), by the charters which established Mayors'
Courts. The Charter of 1753 provided that these courts were not to try actions between
Indians, such actions being left to be determined amongst themselves, unless both
parties, by consent, submitted the litigation for determination by the Mayors' Courts.
However, in order to place matter beyond doubt the Act of 1781 directed the Supreme

ulation II of 1772, section 22, directed that in suits regarding inher-

itance, marriage, caste, religious usage and institution, Hindus and
Muslims were to be governed by their personal laws. These laws were
to be expounded to the courts by the pandits and maulvies. In adopting
this secular approach, Hastings seems to have been inspired by the ex-
ample of the Romans, who "allowed to their foreign subjects the free
22
exercise of their own religion."
Subsequent enactments reiterated this rule. In matters for which
neither the authority of Hindu or Muslim textbooks or advisers nor
the regulations or enactments of government offered appropriate guid-
ance, the court was to act according to "justice, equity, and good con-
science." The application of differing systems of law in the presidency
towns and the surrounding areas in the mofussil created a great deal of
conflict 2 4 The multiplicity of divergent personal laws, secreted in San-
skrit and Arabic languages, presented unusual difficulties for European
judges. Invariably, though grudgingly, they had to depend on the ad-
vice of native lawyers and scholars. Sir William Jones 5 looked for a
solution in the Roman practice:
If we had complete Digest of Hindu and Muhammedan laws, after
the model of JUSTINIAN'S inestimable Pandects, compiled by
most learned of the native lawyers, with an accute verbal transla-
tion of it into English . . . , we should rarely be at a loss for prin-
ciples ...and rules of law, applicable to the cases before us, and
Court at Calcutta, by section 17, that questions of inheritance and succession, and all
matters of contract and dealing between party and party, should be determined in the
case of Muhammedans and Hindus by their respective laws. Where only one of the
parties was a Muhammedan or Hindu, the determination was to be "by the laws and
usages of the defendant." Provisions on the same lines were made for other presidency
towns and were reiterated with slight variations. Thus in Durand v. Boilard, [1830-1834]
5 Ben. Sud. Dew. Rep. 176 (1833) and Joanna Fernandez v. Domingo de Silva, [1812-1819]
2 Ben. Sud. Dew. Rep. 227 (1817) the succession was governed by French and Portuguese
law respectively. See also G. RANKIN, BACKGROUND TO INDIAN LAwv 13 (1946).
22. N. HAtLED, A CODE OF GENTOO LAvs (1776). This code was compiled at the instance
of Hastings to enable English judges to ascertain Hindu law. See also W. MARkery, AN
INTRODUCrION TO HINDU AND MOHAMMEDAN LAw 7 (1906).
23. See notes 31-37, infra and accompanying text.
24. In 1861 the dichotomy between the Supreme Courts and the Sudder Diwani Adalats
was abolished; they were amalgamated into a single system to form the new High Courts.
After this amalgamation the English rule of judicial precedent was firmly established.
25. In 1783 Sir William Jones came as a judge of the Supreme Court at Calcutta.
Pothier, the French lawyer (1699-1772), was the major source of his book AN ESSAY ON THE
LAw OF BAILMENaS (1781). "He praised and imitated Pothier, frequently in his essay,
giving 'invincible reasons' for the rejection of all systems except that of Pothier." G. CAN-
NON, SIR WILLIAM JONES . . . 29 (1952). See also G. CANNON, OREN rAL JONES 86-87 (1964).
CIVIL LAW IN INDIA
should never perhaps be led astray by the Pandits and Maulavis,

who would hardly venture to impose on us, when their imposition
might so easily be detected. . . . It would not be unworthy of a
British Government to give the Natives ... a permanent security
for the due administration of justice among them, similar to that
which JUSTINIAN gave to his Greek and Roman subjects .... 26
Although Jones did not envision himself as the "potential Justinian
of India," Lord Cornwallis perceived the immense value of the sugges-
tion and accepted it with grateful appreciation.2 7 The work was com-
piled by a learned pandit Jagannatha under the direction and super-
vision of Jones. Jones undertook to translate the work into English
when it was completed in 1794, but he was not destined to see its com-
pletion; he passed away in the same year. Henry Thomas Colebrooke,
who was to become a renowned orientalist and the architect of Hindu
law, was entrusted with the gigantic task of translating the Digest-so
ably initiated by his great predecessor.
From the annexation of French and Dutch possessions, 28 Colebrooke
had an experience of applying Dutch and Roman law for governance
of parties. Although Hindu law was his primary passion, his work
Treatise on Obligations and Contracts (1818) discloses evidence of his
unusually rich scholarship in Roman law. 29 References to French law
and other principles of Roman law permeate the book, though it is
26. Letter from Sir William Jones to Lord Marquis Cornwallis, March 19, 1788, quoted
in I H. CoLEnaooda, DIGEST OF HINDU LAW vi-vii (4th ed. 1874).
27. For a critique of Sir Jones' comparison of Hindu law and Roman law, see Venkata-
subrahmanya Aiyar, Three Pioneers in the British Evolution of Hindu Law, 80 MADPAs
L.J. 122, 123-24 (1914).
28. See letter, from Henry Colebrooke to his father, Oct. 22, 1805:
Apropos of English law, I must defend my commissioning the continuation of the
statutes at large.... [AII British subjects residing out of Calcutta are amenable to
the Courts subordinate to mine ... ; that all other Europeans, and descendants of
Europeans, are wholly amenable to our Courts ... ; and, in short, that we have to
administer English, French, and Dutch Law, as well as Hindu and Mohammedan;
you will not be surprised that I am provided with books of reference in the English
and Civil Law. I think you would not object to the commission in question, if you
saw my law library, containing a motely collection, from the Corpus Juris to the
attorney's vade mecum.
T. CoLmRooKF, Tim LIFE OF H. T. CoIEBRooKu 223 (1873). As judge of the Bengal Sudder
Diwani Adalat for several years from 1801, and as trusted adviser of judges and officials
in other provinces, notably of Sir Thomas Strange, Chief Justice of the Madras Supreme
Court, Colebrooke had various opportunities to influence the development of Hindu
law in its day-to-day administration.
29. id. at 315: "He . . . compressed into the space of 250 closely printed pages an
elaborate compendium of legal principles derived chiefly from the Roman jurisprudence
.... " See also G. RANKIN, supra note 21, at 89.

doubtful that the Treatise made any noticeable impact in the popular-
ization of civil law.30
C. Justice, Equity and Good Conscience
The principles of English law infiltrated the jurisprudence adminis-
tered by the courts in the guise of rules of "justice, equity and good
conscience." 3 1 But the predominantly held assumption that these prin-
ciples were interpreted to mean only the rules of English law found
reasonably applicable to Indian society and circumstances8 2 is an over-
statement. Without underrating the great role of common law in India,
it must be noted that courts did refer to Roman law and the writings
of French, Dutch and German civilians in order to fill interspaces and
harmonize differences, as well as to develop the law as a system of gen-
eral principles.33 An exploration8 4 of the judgments of the Bombay,85
30. The absence of comparative lawyers was the reason of this neglect. Otherwise, the
law of contract might have reflected some Romanist ideas instead of English legal ideas
exclusively. Cf. 1 R. WEST & J. Bumaa, HINDU LAw vii (1884): "[L]arge number of com-
parisons .. .between the Hindu law and the Roman, English, and other laws ....
[have been made] partly to show that the Hindu system stands much less isolated than
is usually supposed, but more especially to awaken the interest of Native scholars if
possible in the subject of comparative law." (Emphasis added.) For comparisons with
French law see id. at 204, 597, 771. See also G. SAREAR, HINDU LAw 148, 159, 489 (8th ed.
1940); C. SASTRI, FICTIONS IN THE DEVELOPMENT OF HINDU LAW TExTS passim (1926) for a
comparative and critical study of the Roman, Hindu and English law; F.R.V., HINDU LAW
IN BOMBAY 17 et seq. (1892).
31. See generally M. JAI, supra note 2, at 576-90.
32. Per Lord Hobhouse in Waghela Rajsanji v. Shekh Masuldin, 14 I.A. 89, 96 (1887).
M. SETVAvAD, supra note 4, at 23; M. SETALvAU, THE ROLE OF ENGLISH LAw IN INDIA 11, 12,
13 (1966).
33. A marked influence of continental law is discernible in the law relating to riparian
rights. See T. GHOsE, THE LAW OF ALLUviON AND DILuviON (2 vols. 1920). As far back as
1881, J. H. Nelson invited attention to the complex provisions of the French Code deal-
ing with the rights and duties of the Family Council:
In England the individual is everything, the family of no account. Consequently
Englishmen can hardly be expected sufficiently to sympathise with Indians in adjust-
ing the delicate relations of the family. But the French have thought out the whole
matter, and we should go to them for instruction about it.
J. NELSON, A PROSPECTUS OF THE SCIENTIFIC STUDY OF THE HINDU LAw 192-93 (1881).
34. In fact, Privy Council itself had consulted Roman law. See B. HOLLANDER, COLONIAL
JUST-cE 43 (1961).
35. Whateley v. Palanji Pestanji, [1865-67] 3 Bomb. H. Ct. (O.C.J.) 137, 140 (1866);
Pranjivan Goven v. Jaishankar Bhagvan, [1866-67] 4 Bomb. H. Ct. (A.J.C.) 46, 47 (1867);
Dhondu M. Naik v. Ramji Hanmanta, [1866-67] 4 Bomb. H. Ct. (A.J.C.) 114, 115-16 (1867);
Secretary of State for India v. Bombay Landing & Shipping Co., [1868-69] 5 Bomb. H. Ct.
(O.Cj.) 23, 24, 28, 47, 48, 49 (1868); Dadabhai Narsidas v. Sub-Collector of Broach, 7
Bomb. H. Ct. (AJ.C.) 82, 84, 85, 86, 87 (1870); Keshavrav K. Joshi v. Bhavanji, 8 Bomb.
H. Ct. (AJ.C.) 142, 146 (1871); Collector of Surat v. Daji Jogi, 8 Bomb. H. Ct. (A.J.C.)
166, 171 (1871); Balvantrav T. Bapaji v. Purshotam Sidheshvar, 9 Bomb. H. Ct. 99, 103
CIVIL LAW IN INDIA
Calcutta,3 6 and Madras37 courts reveals instances where judges drew

significantly from the great reservoir of Romanist jurisprudence.
(1872); Padu Malharr v. Rakhmai, 10 Bomb. H. Ct. 435, 438 (1873); Reg. v. Dod Basaya,
11 Bomb. H. Ct. 13, 15 (1874); Vyakunta Bapuji v. Government of Bombay, 12 Bomb.
H. Ct. (Ex. O.C.J.) 1, 42 (1875); Baban Mayacha v. Nagu Shravucha, [1878] 2 Indian L.R.
(Bomb.) 19. 27-28, 48 (1876); Lalubhai Surchand v. Bai Amrit, [1878] 2 Indian L.R.
(Bomb.) 299, 306, 313 (1877); Mathura Naikin v. Esu Naikin, 4 Indian L.R. (Bomb.)
545, 557 (1880); Badhabai and Ramchandra Kanher v. Anantrav Bhagvant Deshpande, 9
Indian L.R. (Bomb.) 198, 223, 224, 226 (1885). Justice Raymond West was a great scholar
.well versed in Roman Law and comparative jurisprudence." P. VACHHA, FAMOUS JUDGES,
LAWYE S AND CASES OF BOMBAY 74 (1962).
36. Evidence of the reliance on civilian jurisprudence is relatively sparse in the earlier
judgments of the Calcutta High Court. See John Syars Jebb v. Charles Lefevre, 1 Mor-
ton's Decisions 152, 169, 170 (1826) (2d ed. Montriou 1851) (Grey, C.J., dissenting);
Sibchunder Ghose v. Russick Chunder Neoghy (1842), 1 Fulton's Reports 86, 42-43, 44,
45, 46, 47, 52 (1845); Kumara Asima Krishna Deb v. Kumara Kumara Krishna Deb, [1869]
2 Beng. L.R. (O.C.) 11, 26-27 (1868); Lopez v. Muddun Mohun Thakoor, [1869-70] 13
M.IA. 467, 473 (1870); Hemendro Coomar Mullick v. Rajendro Lall Moonshee, Indian
L.R. (Calc.) 353, 362 (1878). One is, however, struck by a characteristic fascination for
such thinking in the judgments of Sir Asutosh Mookerjee. Sir Asutosh Mookerjee's
interest in Roman Law, evident in his stress for its study, obviously was projected in his
judgments:
[Tihe Indian student of law must acquire a competent knowledge of the principles
of the Roman Law which has pervaded the jurisprudence of every civilised nation.
The Roman jurists assimilated theory and practice in a remarkable manner.
Their theory was so thoroughly worked out as to be fit for immediate application....
[A] discriminating study of the principles of Roman law is of inestimable value, not
merely as a mental discipline, but as a broad foundation for the full appreciation of
comparative jurisprudence.
Asutosh Mookerjee, The Study of Law, 38 CALCUtrA L.J. 9, 34 (1923). Some of his judg-
ments are: Satish Chandra v. Ram Doyal De, [1921] All India Rptr. (Calc.) 1, 7; Bhudeb
v. Kalachand Mallik, [1921] All India Rptr. (Cac.) 129, 130; EA. Gubray v. Ramjusroy
Golabroy, [1921] All India Rptr. (Calc.) 305, 309; Sarojini v. Krista Lal, [1923] All India
Rptr., (Calc.) 256, 259.
37. An unusually impressive amount of evidence of the extensive use of Roman law
and other continental thinking is found in the judgments of the Madras High Court
(1863-1879), particularly in the opinions of Justice Holloway: Ramagopal v. Majeti
Mallikkarjanudu, [1862-63] 1 Madras High Court Reports 396, 397 (1863) [hereinafter
cited as Mad. H. Ct.]; Crinivasammal v. Vijaymmal, [1864-65] 2 Mad. H. Ct. 37, 38 (1864);
Mayna Bai v. Uttaram, [1864-65] 2 Mad. H. Ct. 196, 203, 204 (1864); Collector of Madura
v. M. Ranalinga Sethupati, [1864-65] 2 Mad. H. Ct. 206, 215, 233, 234 (1864); Yarakalamma
v. A. Naramma, [1864-65] 2 Mad. H. Ct. 276, 278, 279, 282, 283, 284, 285, 288 (1864);
Komathi v. Gurunada Pillai, [1866-68] 3 Mad. H. Ct. 141, 143 (1866); Chinniya Mudal v.
Vankatachella Pillai, [1866-68] 3 Mad. H. Ct. 320, 327, 329-33 (1867); Desouza v. Coles,
[1866-68] 3 Mad. H. Ct. 384, 403, 408-09, 410, 413, 414, 415, 418, 419 (1868); S.Namasevayam
Pillay v. Annammai Ummal, [1868-69] 4 Mad. H. Ct. 342 (1869); Ponnusawmi Tevar v.
Collector of Madura, [1869-70] 5 Mad. H. Ct. 6, 12, 20-21 (1869); Arunachella Thudayan
v. Veludayan, [1869-70] 5 Mad. H. Ct. 215, 222 (1870); Pattaravy Mudali v. Audimula
Mudali, [1869-70] 5 Mad. H. Ct. 419, 423-24 (1870); Ibrahim Saib v. Muni Mir Udin Saib,
[1870-71] 6 Mad. H. Ct. 26, 30, 31, (1870); Akilandammal v. Venkatachala Mudali, [1870-71]
6 Mad. H. Ct. 112, 115, 116 (1871); N. Visalatchni Ammal v. N. Subbu Pillai, [1870-71]
6 Mad. H. Ct. 270, 276 (1871); J. D. Robinson v. Ayya Krishama Chariyar, [1871-74] 7

The reference to continental jurisprudence through the residual

clause of "justice, equity and good conscience," however, tended to
decline as a result of three operative factors. First, the incoming com-
mon-law-trained judges, lawyers of the Privy Council and the higher
judiciary in India brought to bear the imprint of the English outlook
and techniques upon the judicial administration of India. They were
naturally disposed first to look to the legal tradition to which they had
been "accustomed for a lifetime" and only secondly to turn to conti-
nental tradition. This factor, though perhaps imperceptible, was in no
way insignificant in the reception of English law in India. Second, the
doctrine of stare decisis, firmly entrenched in India after the passing of
the High Courts Act of 1861, can be said to have precluded reference
to other judicial systems. In 1887, the Privy Council in Waghela Raj-
sanji v. Shekh Masuldin8 8 held that "justice, equity and good con-
science" meant the application of the rules of English law if found suit-
able to Indian conditions. In a rigidly precedent-oriented judiciary, as
India's, the effect of this decision, it is fair to assume, was to discourage
reliance on principles of other judicial thinking, especially when the
Privy Council itself did not commend such a practice.8 9 The Waghela
observations-cited in subsequent Indian decisions with remarkable
frequency-have because of their precedential character, so heavily
shifted the lawyer's attention toward the contribution of English law
as to almost entirely obscure the role played by civil law. Third, in
addition to the assimilation of the rules of English law into the texture
of Indian law by the judiciary, a planned effort was made, beginning
in 1833, to introduce English law through codification. The law com-
missions of 1833, 1861 and 1879 were directed to frame for India "a
Mad. H. Ct. 37, 44, 45 (1872); Thathu Baputty v. Chakayath Chathu, [1871-74] 7 Mad. H.
Ct. 179, 181 (1873); Namasivaya Gaundan v. Kylasa Guandan, [1871-74] 7 Mad. H. Ct.
200, 209 (1873); Ramu Naikan v. Subbaraya Mudali, [1871-74] 7 Mad. H. Ct. 229, 231
(1873); Eathamukala Subbammah v. Ragiah, [1871-74] 7 Mad. H. Ct. 293, 295.96 (1873);
C. Vencataramanier v. Manche Reddy, [1871-74] 7 Mad. H. Ct. 298, 300 (1874); P. Krishnen
Numbudry v. K. Kunhunni Kurup, [1871-74] 7 Mad. H. Ct. 378, 385-86 (1874); Chinna
Nagayya v. Pedda Nagayya, [1876-78] 1 Indian L. R. (Mad.) 62, 65 (1875); Mathappa
Chetti v. Chellappa Chetti, [1876-78] 1 Indian L. R. (Mad.) 196, 199, 200, 201, 202 (1876);
Valia Tamburatti v. Vim Rayan, [1876-78] 1 Indian L. R. (Mad.) 228, 230, 231, 233, 234
(1876); Secy. of State v. Arathoon, [1880] 5 Indian L. R. (Mad.) 173, 175-76 (1879).
38. [1887] 14 IA. 89. See also M. SrrA.LvA, supra note 4, at 23-24.
39. See, e.g., Imambandi v. Mutsaddi, [1818] 45 IA. 73:
Their Lordships cannot help deprecating the practice which seems to be growing
in some of the Indian Courts of referring largely to foreign decisions. However useful
in the scientific study of comparative jurisprudence, reference to judgments of foreign
Courts ... is only likely to confuse the administration of justice.
Id. at 93.
CIVIL LAW IN INDIA
body of substantive law, in preparing which the law of England should

be used as a basis."40 Large areas of laws were codified by these law com-
missions, generally based on English law.4 1 It is, however, interesting
to note the influence of civilian thinking in the enactment of some of
these codes.4
This brief sketch of the flavorings of Romanist jurisprudence in
Indian law during the British regime may appear simply as a curiosity
of Indian legal history rather than offering practical significance in the
modern context. But the Portuguese and French systems of law,
founded as they are on a civil law base, cannot adequately be under-
stood without an acquaintance with Roman law. 43 Roman law and, in
turn, continental law are thus fundamental to jurisprudence and com-
parative legal study; they have a functional significance in the period
after the merger of the former Portuguese and French possessions into
the territory of India.
III. PORTUGUESE LAW PROBLEMS
A. HistoricalBases
The first Portuguese expedition to the Indian subcontinent was led
by Vasco de Gama, who landed on the Malabar coast in 1498. By 1571,
the Portuguese had captured Goa as well as other territories. For the
40. See B. ACHARYYA, CODIFICATION IN BRITISH INDIA passim (1914).
41. As Rankin observes:
The influence of the common law in India is due not so much to a "reception,"
though that has played no inconsiderable part, as to a process of codification carried
out on the grand scale....
G. RANKIN, supra note 21, at 19-20.
42. The observations of the authors of the Indian Penal Code, 1860, need be noted:
We have derived much valuable assistance from the French Penal Code, and from the
decisions of the French Courts of Justice on questions touching the construction of
that Code. We have derived assistance still more valuable from the Code of Louisiana,
prepared by the late Mr. Livingston.
INDIA, A PENAL CODE PREPARED BY THE INDIAN LAw COMsMISSlONERS 6 (1837). See also
Keshavray K. Joshi v. Bhavanji Babaji, 8 Bomb. H. Ct. (A.J.C.) 142, 146 (1871). Although
the influences in the matter of form are discernible, research is necessary in order to trace
the influence of actual French rules in the finished product of the Indian Penal Code.
Likewise, a study of the marginal notes (along with proposed provisions) of the draft
of the law of torts in India shows that had the law of civil wrongs been codified, it
would hase offered an excellent example of a statute embodying many Roman and con-
tinental law principles. See INDIA, DRAFr LAW OF TORTS passim (undated).
43. Cf. von Mehren, Roscoe Pound and ComparativeLaw, 13 Am. J. Comp. L. 507 (1964):
Scholars in the comparative field are today in very large agreement that, at least for
beginning students, study of contemporary civil-law system such as those of France
and Germany is much more rewarding and practical than study of the Corpus Juris.
Id. at 509.

next 250 years, the Portuguese, Dutch, French and British struggled
for supremacy. By the mid-nineteenth century, Britain eliminated its
western rivals, subdued the Indian rulers, and assumed dominion over
India (now, India and Pakistan). During the British rule in India,
Portugal retained Goa, Diu and Daman, and its enclaves, Dadra and
Nagar Haveli. 44 The system of laws, education, administrative machin-
ery and social institutions in these possessions all developed in a pat-
tern quite different from those that evolved in India under the influ-
45
ence of the British.
In July, 1954, "nationalist volunteers" occupied Dadra and Nagar
Haveli. A pro-Indian administration was formed and requested incor-
poration into the Indian Union. Under the tenth amendment to the
Constitution, these territories became a centrally administered ter-
ritory on August 11, 1961.
Goa, Daman and Diu were incorporated into the Indian Union in
December, 1961 (following conquest by military action), through arti-
cle 1(3)(c) of the Constitution. 46 The Goa, Daman and Diu (Admin-
istration) Ordinance, 1961, the Goa, Daman and Diu (Administration)
Act, 1962, and the Goa, Daman, and Diu (Laws) Regulation, 1962,
were effective in 1962 to extend both the administration and the rule
of certain laws in force in the rest of India. The scheme of this legis-
lation 47 was both to continue the operation of laws in force before the
appointed day (i.e., December 20, 1961) until amended or repealed,
and also to enable judges and other authorities to continue to exercise
lawful functions in connection with the administration of the territory
until any further provisions were enacted.
The Tribunal de Relacao48 continued to exercise its vested jurisdic-
44. For a story of Goa from the earliest times to the integration of the former Portu-
guese colonies into the Indian Union, see R. RAO, PORTUGUESE RULE IN INDIA (1963). See
also F. DANVERs, HISTORY OF THE PORTUGUESE IN INDIA (1894); C. KILOGUEN, AN HISTORICAL
SKEmrcH OF GOA (1831). France also retained small enclaves known collectively as Pondi-
cherry. This terminated in a 1954 accord by which France agreed to yield administration
of the enclaves to India. See notes 65-66 infra and accompanying text.
45. Aiyar & Sinha, The Problem of Transition in Goa, in THE PROBLEM OF TRANSITON 9
(A. Shah ed. 1965). For a "symposium of the many facets of this territory's [Goa's] crisis
of transition" see 69 SmINAR (1965). Both of these works, however, throw no light on
problems of law and judicial administration in this territory.
46. The article inter alia provides that the territory of India shall comprise "(a) the
territories of the states; (b) the Union territories specified in the First schedule; and (c)
such other territories as may be acquired." See also INDIA CONST. art. 240 (1950).
47. Identical laws were enacted almost contemporaneously for the governance and
judicial administration of Dadra and Nagar Haveli enclaves.
48. For a detailed description of the working of this court, see C. PEREIRA, TRBUNAL DA
RELACAo DE GOA (1964).
CIVIL LAW IN INDIA
tion under the laws in force until December 16, 1963, when the Goa,
Daman and Diu (Judicial Commissioner's Court) Regulation, 1963,
was promulgated "to provide for the constitution of a Judicial Com-
missioner's Court in Goa, Daman and Diu and for certain other mat-
ters." The court was established under section 3, effective December
16, 1963. Section 8 states that the court shall be the highest civil and
criminal court of appeal and revision, and shall have all such jurisdic-
tion as was vested in the Tribunal. This jurisdiction is in addition to
the jurisdiction exercisable under Indian laws. Section 22(i) provides
for abolition of the Tribunal, although under section 23(1), its aboli-
tion shall not prejudicially affect the continued operation of any notice
served, injunction issued, direction made or proceedings taken by the
Tribunal under the powers then conferred upon it. Section 23(3) then,
resorting to another legal fiction, provides that every decree, order
made, or sentence passed by the Tribunal shall be deemed for the pur-
poses of execution to have been made or passed by the Judicial Com-
missioner's Court.
The 1963 regulation was followed by the Goa, Daman and Diu
Judicial Commissioner's Court (Declaration as High Court) Act, 1964,
which was enacted by Parliament on May 16, 1964, and applied retro-
actively from December 16, 1963. The purpose of this act was to declare
the Judicial Commissioner's Court a high court for certain purposes
and to apply the provisions of chapter V of part VI of the Constitution
with certain exceptions and modifications.
B. Replacement of Portuguese Laws
The Portuguese laws, based on Code Napoleon and other conti-
nental systems, 49 have been and are being replaced. Details on the intro-
duction of various Portuguese laws can be found elsewhere,5 0 but the
history of personal laws deserves brief reference. Non-Christians were
governed by a customary law which apparently corresponded with pre-
49. See obiter observations of Judicial Commissioner Mr. Jetley in Xec Ayub v. Goa,
[19671 All India Rptr. (Goa) 102:
[W]hen called upon to deal with Portuguese Laws in accordance with their system
we have to pass from an environment of case law into a "World governed by Codes."
The Portuguese system is based on Code Napoleon and generally follows the pattern
of the Continental system of law. The Continental Judges have somewhat wider
powers of interpretation than those enjoyed by Judges in England and in our Coun-
try. This is so because the Continental Legislatures ordinarily are content to lay
down a principle and leave it to Judges to work out the details. The Continental
Judges can mitigate the rigidity of the rule or to prevent it from coming into collision
with moral dictates.
Id. at I10.
50. C. PEREiRA, HISTORaA DA ADMISNITRACAO DA JUSTICE NO ESTADO DA INDIA (2 vols. 1964,
1965). See also P. MALABARI, supra note 19, at 26 et seq.

Mitakshara law. Afonso Mexia codified this law (Foral) in 1526; it

served as a code of Hindu law for many years. By the middle of the
seventeenth century the Hindu inhabitants of Goa had begun voicing
their strong dissatisfaction with the law of escheat; strictly administered
by the old Hindu kings and their Muslim successors, it denied the right
of testamentary disposition, limited succession to male descendants
only, and allowed widows only a restricted right to maintenance.5 1 To
avoid this draconian law, they petitioned the King of Portugal for the
application of Portuguese law to Hindus as well. The petitions were
not granted for more than a century. Ultimately Hindu law was abol-
ished in the Portuguese possessions in the latter half of the nineteenth
century and the Portuguese Civil Code was applied to all inhabitants
52
without discrimination.
Since 1961 the laws extending particular Indian enactments to the
territories of former Portuguese possessions have invariably empowered
the courts (or any adjudicating authorities) to construe the law intro-
duced in such a manner as may be necessary or proper to adapt it to a
given fact situation without contravening the substance of the law.5 3 Such
a provision, which expects judicial adaptation of the new law to the
background of the old Portuguese legal system so as to avoid injustice
and at the same time forward the cause of unification, asks much of the
judiciary. As yet the courts in India have not faced fact situations in-
volving major problems of Portuguese law pressing for application or
adaptation in the common-law context. The significance of the few
reported decisions 4 can at best be seen in the occasional comparison
51. Azvao, As CommuNEDADEs DE GOA 179-82 (1830) shows how until 1691 Hindus
circumvented the Foral in respect of escheat. See Derrett, Hindu Law in Goa, 67
ZEITSCHRIFT FUR VERGLEICHENDE RECHrSIVISSENSCHAT 203 (1965).
52. For an excellent account of how "minds trained in the pre-Napoleonic Civil (Roman)
Law handled ...typical, barely penetrable, oriental 'mystery'" of Hindu law problems
see Derrett, supra note 51. Our summary reproduces Professor Derrett's scholarly treat-
ment.
53. See, e.g., Goa, Daman and Diu (Extension of the Code of Civil Procedure and
Arbitration) Act, 1965, § 5 (2).
54. See, e.g., Data Xiva v. State, [1967] All India Rptr. (Goa) 4, 5, 7, 8 (comparing the
provision relating to the admissibility of statements made to a police official in the
Portuguese Criminal Procedure Code, the Indian Code of Criminal Procedure, and the
law as to corpus delicti, etc., in both the systems). In the case the court referred to the
decisions of the Portuguese Supreme Court of Justice which "after liberation have only
persuasive value." Id. at 10. See also V.V. Kamble v. P.A. Mascarenhas, [1967] All India
Rptr. (Goa) 97; A.E.N. Fernandes v. J.A.D. Fernandes, [1967] All India Rptr. (Goa) 100;
Parxurama v. Jaia, [1967] All India Rptr. (Goa) 120; Ministerio Publico v. Filomeno,
[1967] All India Rptr. (Goa) 51 (citing many decisions of the Portuguese Supreme Court).
CIVIL LAW IN INDIA
the judges have made between the Portuguese and Indian law rules.
Two cases may be noted.
In Xec Ayub v. State15 the accused was charged under section 368 of
the Portuguese Penal Code for involuntary homicide of four persons.
Xec Ayub, owner of a mine, entrusted the actual work of supervising
the mine to a supervisor (co-accused who did not appeal). On the fateful
day when the laborers were away on lunchbreak, a part of the mining
site (between 50 and 125 feet from where the work of mining was
actually being done) was blasted with dynamite. There had been ex-
cessive rain between 12 a.m. and 2 p.m.; at 4 p.m. a considerable part
of the rock and other material from the face of the mine tumbled down,
seriously injuring four workers who, despite quick hospitalization, suc-
cumbed to their respective injuries. Experts who probed the tragic
occurrence concluded that it was attributable to vis major and also
because the works-in-charge failed to take proper care to verify that the
site (where the victims were working) was safe in the context of the
blasting operations and the heavy showers. Section 368, translated,
reads:
The involuntary homicide which any person commits or causes
due to his lack of skill; to his lack of attention; to his negligence;
to his lack of expert knowledge or to his lack of obedience to the
provisions of any regulation shall be punished with imprisonment
from the month to two years and the corresponding fine.
The accused contended that the evidence marshaled against him did
not warrant the conclusion that he was guilty under the above section:
the experts had not put any blame against him, nor was it the conten-
tion of the prosecution that he was present at the scene of the accident.
The majority found the facts insufficient to warrant section 368:
[I]n view of the wording and tenor of section 368 of the Code, the
master cannot be held criminally liable for any of the acts of his
servant made punishable by that section. One can easily visualize
situations where the master may be liable civilly for those acts of
his employee where the latter can be hauled up criminally as well
as in damages. But to make the master liable criminally for the
acts which can justify a criminal charge against his servant, phrase-
ology more explicit than used in section 368 shall have to be
pressed into service.56
The court therefore quashed the order of the magistrate which ac-
55. [1956] All India Rptr. (Goa) 17. See also Xec Ayub v. Goa, [1967] All India Rptr.
(Goa) 102.
56. [1966] All India Rptr. (Goa) at 20.

cepted the charge against Xec Ayub and fixed the date for his trial.
The dissenting judge, Mr. Jetley, however, held that before vis major
can be used as a defense, a party must have done all that he was bound
to do. The defense of vis major is not a complete answer when there
is want of reasonable care on the part of the defendant. He read the
words "causes due to his lack of skill; lack of attention; failure to fol-
low the provisions of any regulation" in section 368 as eliminating the
requirement of mens rea:
This section seems to make the master criminally liable for the
acts of his servants. If it were not so, masters in accident cases in
mines would escape punishment by saying that they are not crim-
inally responsible for the acts of their servants.... The absence of
personal guilt seems to be immaterial in this case. The statute may
make the master liable for the acts of his 57
servants unless he can
prove that he himself is not in default.
Under the Portuguese law, he maintained, reports of the experts are
treated as substantive evidence; but discretion rests with the magistrate
to question the experts in order to scrutinize their conclusions. In the
absence of an examination of the experts, it was unsafe to accept their
conclusions with regard to vis major and the failure to take proper
precautions. It was for the court to determine whether or not the acci-
dent was really attributable to vis major, and it was improper to accept
uncritically the findings of experts (who are hardly expected to know
the legal concept of vis major).
In State v. Sebastiao Fernandez,8 one is struck by the presence of a
provision in Portuguese criminal law (in contradistinction to its Indian
counterpart) reflecting a concern for the protection of familial institu-
tions. The accused and a girl, close neighbors, were in love and had had
sexual intimacies on more than one occasion. He promised the girl that
he would marry her and on this basis persuaded her to have pre-marital
relations. After some time the accused (probably at the instance of
his parents) showed an unwillingness to marry her. The police exam-
ined the complainant, her father, and other witnesses and prosecuted
the accused for an offense of rape under section 292 of the Portuguese
Penal Code. Before the conclusion of the trial the accused married the
girl; but since he was less than 18 years old when the offense was com-
mitted, the magistrate had no option but to convict. The magistrate,
however, suspended the sentence in view of the marriage, relying on the
57. Id. at 22.
58. [1967] All India Rptr. (Goa) 86.
CIVIL LAW IN INDIA
provisions of article 400(1) of the Portuguese Penal Code; and the

court approved the action. Article 400 also puts a check on husbands
who might divorce their wives after sentences are suspended by pro-
viding for service of the sentence if the accused obtains a divorce
within a five year period. The Indian Penal Code does not have such
a provision. Were an analogous case to appear in the courts now that
the Indian act has been introduced, much would depend on whether
or not the particular judge were prepared to take into account the fact
of the subsequent marriage in awarding punishment, in order to strike
a balance between the needs of society and the purposes of criminal
law. 9
As a practical matter, however, the necessity for special considera-
tions in the application of Indian laws in the former Portuguese terri-
tories is fast decreasing. Nearly all of the Portuguese laws have now
been replaced by their Indian counterparts. In time one can expect
the relevant pattern of life in these small territories to conform to the
rest of the Indian mainland. Except in those cases calling for the appli-
cation of Portuguese conflicts of law60 or inheritance rules, or which in-
volve a party claiming his rights as a Portuguese citizen, the Portuguese
legal system will not be significant in the future.
IV. FRENCH LAW IN INDIA
A. Introductory Observations
It is unnecessary to consider the details of the confusing struggles of
the French and British in attempts to extend their influence in India.
Unlike the British, French success was only partial, being limited ul-
timately only to a small segment in the south, known as Pondicherry. 61
Founded by the French in 1674, taken by the Dutch in 1693, and re-
stored to the French in 1699, the English took it in 1761, restored it in
1765, retook it in 1778, restored it a second time in 1785, retook it
again in 1793, and finally gave it to the French in 1814. England's
dominion was too short and casual to have any material weakening
effect upon the continued prevalence of French civil law in this region.
59. An alternative more in keeping with the admonition to preserve the substance of
the introduced Indian Penal Code might be accomplished through liberal use of the
Probation of Offenders Act, 1958.
60. See, e.g., Pires v. Pires, [1967] All India Rptr. (Goa) 113.
61. There was another very small French settlement near Calcutta known as Chandra-
nagore. It was transferred by a separate treaty in 1952. See Union of India v. Manmull
Jain, [1954] All India Rptr. (CaIc.) 615.

For over 150 years the French legal system has been present in the
former colonies of Pondicherry, Karikal, Mahe, and Yanam.12 None-
theless there remain major differences between the effect of the French
and the Portuguese on the Hindu law in territories under their posses-
sion. First (unlike in the latter territories where Afonso's Foral had ex-
haustively codified the Hindu rules of law), the French administration
left the law for the most part in its traditional, uncodified state. Re-
maining as custom, the Hindu legal system under the French was able
to adapt itself to changes more easily than could its counterpart under
the Portuguese, frozen in the pages of Afonso's tomes. Moreover, the
flexibility of this custom-based approach allowed easy access to the
wealth of material in the ancient shastras and in the modern commen-
taries written by Indian and English masters in various parts of British
India.6 3 Secondly, whereas there was strong pressure from the Hindus
in the Portuguese territories to modernize and "civilianize" their laws,
the fact that Hindu citizens in French territories were able to opt to be
governed by French law obviated the necessity to undertake major re-
forms in Hindu law itself. Instead, the French Hindu who desired to
adopt western modes of living needed only to declare himself subject
to the French Civil Code. As a result of these two major distinctions,
Hindu law survived and continued to flourish in the former French
colonies in a much more real sense than was the case in the former
Portuguese colonies. 4
Administration of Pondicherry was transferred to India on Novem-
ber 1, 1954.65 A treaty of cession, signed on May 28, 1956, was ratified
62. For a brief but "careful exposition" of the constitutional history of the French
settlement of Pondicherry, see the opinion of Anantanarayanan, J., in Gobalousamy v.
Pondicherry, [1967] 2 Indian L.R. (Mad.) 10, 18-20.
63. See J. NELSON, A PROSPECTUS OF THE SCIENTIFIC STUDY OF THE HINDU LAW (1881).
64. For a good description of Franco-Hindu law see G. DiAGou, PRINCIPES DE DROIT
inuNou (1932); L. SORG, INTRODUCTION A L'WTUDE DU DR01T HINDOU (1895); L. SORG, TRATrL
TMaORIQUE Er PRATIQUE DE DRorr iNou (1897); Herchenroder, Study of the Law Applica-
ble to Native Christians in the French Dependencies and in India, 18 J. CoMP. LEG. &
INT'L L. (3d Ser.) 186, 189-90 (1936).
65. By an agreement dated Oct. 21, 1954, the Government of France transferred, and
the Government of India took over, administration of the territory of all French estab-
lishments in India with effect from Nov. 1, 1954. Thereafter in exercise of the powers
conferred by the Foreign Jurisdiction Act, 1947, the Government of India appointed a
Chief Commissioner for Pondicherry and extended 22 enactments in force in India to
the French establishments by virtue of the French Establishment (Application of Laws)
Order, 1954. For a discussion of some of the constitutional problems arising out of these
developments see N. Masthan Sahib v. Chief Commissioner, Pondicherry, [1962] All India
Rptr. (S. Ct.) 797; N. Masthan Sahib v. Chief Commissioner, Pondicherry, [1963] All
India Rptr. (S. Ct.) 533; K.S. Ramamurthy Redien v. Chief Commissioner, Pondicherry,
[1963] All India Rptr. (S. Ct.) 1464.
CIVIL LAW IN INDIA
on August 16, 1962 (from which date by the fourteenth amendment

to the Indian Constitution Pondicherry, comprising the four territor-
ies, became a Union Territory). The treaty of cession which ended
French sovereignty over Pondicherry stipulated that:
Legal proceedings instituted prior to the 1st of November 1954
shall be judged in conformity with the basic legislation and pro-
cedure in force at that time in the Establishments.
To this end, and up to final settlement of such proceedings, the
existing courts in the Establishments shall continue to function.
Officers of the Court shall be law graduates, habitually domiciled
in the Establishments, honourably known and selected in accor-
dance with the French regulations governing the designation of
temporary judicial officers.
The interested parties shall be entitled, if they so decide by com-
mon agreement, to transfer to the competent Indian Courts, the
said proceedings as well as proceedings which, though already
open, are not yet entered with the Registrars of the French Courts,
and also proceedings which constitute an ordinary or extraordinary
appeal.
Judgments, decrees and orders passed by the French Courts,
prior to the 1st November of 1954, which are final or may become
so by expiration of the delays of appeal, shall be executed by the
competent Indian authorities. Judgments, decrees and orders passed
after the 1st November 1954 in conformity with the competent
Indian authorities, irrespective of the courts which exercise the
jurisdiction.
Acts or deeds constitutive of rights established prior to the 1st of
November 1954 in conformity with French law, shall retain the
value and validity conferred at that time by the same law...."
As these provisions suggest, the Government of India did not contem-
plate any sudden reform of the judicial organization and administra-
tion of laws in Pondicherry.
B. Supreme Court and French Law

An example of the conflict between the existing French and Indian
laws appeared in the Supreme Court decision Universal Imports
Agency v. Chief Controller.67 By the
Indo-French Agreement of 21
October 1954, the Government of India had passed the French Estab-
66. FRANCE-INDIA, TREATY OF CESSION OF THE FRENCH ESTABLISHMENTS OF PONDICHERRY,
KARIKAL, IMAHE AND YANAM, WITH PROTOCOL AND AGREFI PROMS-VERBAL art. 14 (1962).
67. [1961] All India Rptr. (S. Ct.) 41. The petitions were filed under article 32 of
the Constitution. This case was followed in the two subsequent cases. See French India
Importing Corp. v. Chief Comptroller of Imports & Exports, [1961] All India Rptr. (S. Ct.)
1752; Pioneer Traders v. Chief Comptroller of Imports & Exports, [1963] All India
Rptr. (S. Ct.) 734.

lishments (Application of Laws) Order, 1954, under the Foreign Juris-

diction Act, 1947, applying the Indian laws to Pondicherry. The effect
of that order was to repeal French laws by application of Indian law
in the same field, subject to a saving clause.
[A]1l laws in force in the French Establishments immediately be-
fore the commencement of this Order, which correspond to the
enactments specified in the schedule, shall cease to have effect, save
as respects things
68
done or omitted to be done before such com-
mencement.
The petitioners in Pondicherry entered into firm contracts of sales
by import with foreign sellers before the merger of the territories made
foreign exchange available under letters of credit or otherwise.
The goods were shipped either before or after the merger, reaching
Pondicherry after it. These goods were confiscated by the Collector of
Customs on the ground that they were imported without the license
required under Indian law. The petitioners contended that their trans-
actions with the foreign dealers were "things done" within the mean-
ing of paragraph 6, quoted above, thereby saving them from the oper-
ation of the order. The respondent argued that since the confiscated
goods were brought into India after the commencement of the order,
the goods confiscated were outside the pale of the saving clause.
In order to determine the application of paragraph 6, the majority,
speaking through Mr. Justice Subba Rao (as he was then), examined
the following facts:
(1) What are the laws specified in the schedule?
(2) What were the laws in force in the French Establishment before
the commencement of the order corresponding to the enactments
so specified?
(3) What were the "things done" or omitted to be done under the
said laws?
On examination of the laws specified in the schedule, the learned Jus-
tice concluded that imports into India without a license were prohib-
ited, that the goods so imported in contravention of the restrictions im-
posed were liable to be confiscated, that the foreign exchange could not
be obtained otherwise than under the provisions of the act, and that
the persons infringing upon the laws were susceptible to prosecution
in addition to confiscation of the goods involved.
68. French Establishments (Application of Laws) Order, 1954, para. 6.
CIVIL LAW IN INDIA
Concerning the "pre-existing French laws in Pondicherry correspond-

ing to the enactments specified in the schedule," the Justice, on the
basis of affidavits" filed by the rival parties, stated that Pondicherry
was a free port without any restrictions on imports, except a few items,
and that importers could acquire foreign exchange either at the official
rate for some transactions or in the open market for others.
The determination of the question of what were the "things done"
under the pre-existing French law was crucial to the decision of the
case. Pursuant to the terms of the contracts, the sellers had placed the
goods on board the various ships and the goods arrived at Pondicherry
port after its merger with India. Payment was made in full to the
foreign sellers and delivery was taken by the buyers after examination
upon arrival. Before the merger, if the customs authorities had imposed
any restriction not authorized by law, the affected party could have
enforced the free entry of the goods in a court of law. While the peti-
tioners contended that "things done" take in not only things done
but also their legal consequences, the state contended that once the
goods were brought into India before the merger, it was not a "thing
done" before the merger and, therefore, would be governed by the
enactments specified in the schedule.
Justice Subba Rao, however, did not find it necessary to consider
whether the concept of import takes in (in addition to the factual
bringing of goods into India) the entire process of import commencing
from the date of the application for permission to import and ending
with the crossing of the customs barrier into India. Instead, the words
"things done" in paragraph 6 must be reasonably interpreted, he said,
to mean "not only things done but also the legal consequences flowing
therefrom." 7 Otherwise, the saving clause would become unnecessary:
If what it saves is only the executed contracts, i.e., the contracts
whereunder the goods have been imported and received by the
buyer before the merger, no further protection is necessary as
ordinarily no question of enforcement of the contracts under the
pre-existing law would arise. 71
The phraseology "things done," the learned Judge said, was not an
innovation but was copied from other statutory clauses:
69. Neither the acts governing the imports nor any authoritative textbooks disclosing
the relevant French law were placed before the Court. Universal Imports Agency v.
Chief Comptroller of Imports & Exports, [1961] All India Rptr. (S. Ct.) 41, 45.
70. Id. at 46.
71. Id.

Section 6 of the General Clauses Act (X of 1827) says that unless

a different intention appears, the repeal of an Act shall not affect
anything duly done or suffered thereunder. So too, the Public
Health Act of 1875 ... which repealed the Public Health Act of
1848 contained a provision to S. 343 to the effect that the repeal
"shall not affect anything duly done or suffered under the enact-
ment hereby repealed." This provision came under judicial
scrutiny in... Queen v. Justices of the West Riding of Yorkshire,
(1876) 1 Q B D 220. There was notice given by a local board of
health of intention to make a similar notice. The board, in ig-
norance of the repeal, made a rate purporting to be made under
the repealed Acts. It was contended that as the rate was made after
the repealing Act, the notice given under the repealed Act was
not valid. The learned Judges held that as the notice was given
before the Act, the making of the rate was also saved by the words
"anything duly done" under the repealed enactments. This case
illustrates the point that it is not necessary that an impugned thing
in itself should have been done before the Act was repealed, but it
would be enough if it was integrally connected with and was a legal
consequence of a thing done before the said repeal. Under similar
circumstances Lindley L.J., in Heston and Ilseworth Urban Dis-
trict Council v. Grout, (1897) 2 Ch 306 confirmed the validity of
the rate made pursuant to a notice issued prior to the repeal. Ad-
verting to the saving clause, the learned judge tersely states the
principle thus at p. 313: "That to my mind preserves that notice
and the effect of it." On that principle the Court of Appeal held
that the rate which was the effect of the notice was good.7 "
The dissenting Justices suggested that the phraseology of the saving
clause of the English statutes and of the General Clauses Act, 1827,
were of wider import than that of paragraph 6 of the order and that,
therefore, the English decisions do not provide any assistance in con-
sidering the scope of the saving clause. And, they said, the English
decisions apply only to a saving clause of an act which repeals another
but preserves the right created by it.
Judge Subba Rao saw no reason why the same construction could
not be placed upon the wording of paragraph 6, which is practically
similar in terms to those found in the relevant saving clause of the
English statute and that of the General Clauses Act. Likewise, since by
reason of the Indo-French Agreement, the Government of India had
made the order under the Foreign Jurisdiction Act, 1947, applying the
Indian laws to Pondicherry, its effect was to repeal the French laws by
application of Indian laws in the same field, subject to a saving clause.
72. Id. at 46-47.
CIVIL LAW IN INDIA
The position was analogous to that of a statute repealing another with

a saving clause. If the English decisions apply to the latter situation,
it was difficult to see why they do not apply to the former. In both cases
the pre-existing law continues to govern the things done before a par-
ticular date. Therefore, the Court held, the words "things done" were
comprehensive enough to take in a transaction effected before the
merger, though some of its legal effects and consequences projected into
the post-merger period.
The majority judgment failed to appreciate the real character of the
contract in the present case. Physical delivery of goods after their in-
spection is not an essential ingredient of a standard C.I.F. contract: it
is not consistent with C.I.F. obligations. Variations in the standard
terms may destroy the C.I.F. nature of the contract. Thus, a C.I.F. sale
loses its character and becomes a simple contract to deliver when the
parties have provided for verification of the goods upon arrival3 3 In
the instant case it would have been enough for the Court to determine
the date of physical delivery, i.e., a date on which the contract would
have become final. Goods coming under a contract, delivery of which
had not even taken place under its terms before the merger, could not
have been excepted from the operation of enactments specified in the
schedule. By no stretch of imagination are they "things done" under
the French law. The Court's holding that "things done" were compre-
hensive enough to take in a transaction effected before the merger,
though some of its legal effects and consequences projected into the
post-merger period, is tenuous for a transaction which has not yet legally
taken place.
The Court, in order to avoid the burdensome result indicated in the
present case, in which the petitioners would have had to pay a heavy
customs duty, obviously introduced in a subtle form the usual concept
of C.I.F. contract. The Court took resort in the sophisticated technique
of relying on the provisions of the General Clauses Act, 1827, to inter-
pret the term "things done." Apart from the doctrinal objections raised
by the minority against such a reference, unnecessary to recapitulate
here, it is submitted that section 6 of the General Clauses Act has no
application when the Court is called upon to determine the effect of
supersession of French law by the application of specified statutes un-
der clause 6 of the French Establishments (Application of Laws) Order,
73. See, e.g., Comptoir d'Achat et de Vente du Boerenbond Beige S.A. v. Luis de Ridder
Limitada, [19491 A.C. 293; Commercial Court of Antwerp, August 16, 1919, Jurisprudence
du Port d'Anvers, 1921, 34.

1954. Section 6 of the General Clauses Act applies to the effect of the
repeal of enactments of the Indian legislature, and there is nothing in
the order which contemplates that the French law in operation before
merger of the French establishment is to be regarded as a statute
enacted by the Indian legislature. The French law after its supersession
has not been expressly kept alive in respect to any right or privilege
acquired or accrued under "things done" under that law. It would
be an unwarranted incursion into the field of legislation to attempt to
extend the protection of that law to transactions which have taken
place after the prescribed date by relying upon the General Clauses
Act.
The majority's assumption that "if what the saving clause saves is
only the executed contracts no further protection is necessary as no
question of enforcement of the contracts under the pre-existing law
would arise" is equally assailable. The saving clause does not say that
the French laws would apply to events following after "things done"
earlier. The argument that otherwise the saving clause would be otiose
is not appealing. The saving clause was meant, it is maintained, to
cover such situations as suits for damages arising out of the later dis-
covery of damage done to goods in transit or some other readjustment
of rights arising out of an event occurring before the completion of the
"things done." In such a situation the question would have to be de-
cided by the French laws. In the absence of the saving clause what the
effect of the transfer was on things previously done would have been
open to argument.
C. Madras High Court and French Law
Having incorporated Pondicherry into its territory by the treaty of
cession,7 4 which stipulated the continuance of existing laws, the Gov-
ernment of India has been aware of the danger of precipitating a hasty
changeover and has allowed the perpetuation of civil law principles.
The Madras High Court, which has acquired all jurisdiction exercis-
able in the former French possessions by the Cour de Cassation, Conseil
d'Etat, and the Cour Superieur d'Arbitrage, administers French law.75
Perhaps it is not insignificant that most of the opinions dealing with
74. See note 66 supra.

75. Pondicherry (Administration) Act, 1962, §§ 9, 10. Unlike the French Consel d'Etat
which consists of civil servants only, two judges of the court perform their functions.
And, again, unlike the French practice, they hear arguments and do not have their pro.
ceedings in camera. It is interesting to note that, whereas in France judiciary is denied
any power to interfere with the executive, in India they have been required to handle
that tabooed jurisdiction.
CIVIL LAW IN INDIA
the application of French law have been delivered by Mr. Chief Justice
Anantanarayanan. That even the decisions of a judge like Mr. Anan-
tanarayanan, richly endowed with a comparative law perspective, can-
not withstand deep analysis indicates the immense difficulties involved
in applying the laws and techniques of one legal system to another. The
brief examination here of reported decisions in the areas of French civil
code, labor code, and penal code is preceded, when necessary, by a brief
reference to the major distinguishing features of civil law and Indian
law principles in order to properly appreciate the role of the Madras
High Court in handling these problems.
1. Code Civil and ProcessualLaw
The Code Civil,76 repository of the major branches of the French
civil law, deals with such matters as nationality, civil rights, marriage,
contract, and prescription. Unlike the Indian law, limitation (prescrip-
tion) is viewed as conferring rights and not as barring remedies. The
common-law doctrine of consideration in the realm of contracts (as well
as offer, acceptance 7 7 and other elements) is alien to French law, al-
though it has its own analogues.7 s The marked differences and similar-
ities in the various provisons of the Code Civil and their Indian coun-
terparts will be best understood when unfolded through concrete fact
situations involving their adjudication. It would be interesting, though
outside the scope of the present article, to observe the role played by
the courts in France when they interpret the provisions of the code and
to compare the solutions reached with those offered by the Indian law.
The case law in this area has yet to develop; nevertheless the decision
to which we shall refer offers interesting insights into the nature and
pattern of problems courts in India are likely to face. 79
76. For a brief description see J. DAWSON, THE ORACLES OF THE LAw (1968), M. Amsos
& F. WALTON, INTRODUCTION TO FRENCH LAW (3d ed. 1967); R. DAvm & H. DE VRIES,
THE FRENCH LEGAL SYSTEM 13-16, 49-50 (1958).
77. See generally von Mehren, The French Civil Code and Contract: A Comparative
Analysis of Formation and Form, 15 LA. L. Rv. 687 (1955), in THE CODE NAPOLEON AND
THE COMMON LAW WORLD 110 (1956). Although the fundamental notions of the English
law have been incorporated in the Indian Contract Act, 1872, there are certain significant
variations from the English law. See Rajaraman, The Law of Contracts in India, 8-9
REVIsrA DEL INSFITUTO DE DERECHO COMPARADO 180 (1957).
78. See, e.g., Glaser, Doctrine of Consideration and the Civil Law Principles of Cause,
46 DicK. L. REv. 12 (1941); Henry, Cause in the Civil Law and Consideration in the
Common: Much Ado About Nothing, 29 Ky. L.J. 369 (1941); von Mehren, Civil-Law
Analogues to Consideration:An Exercise in Comparative Analysis, 72 HARv. L. REv. 1009
(1959).
79. One trend is obvious. Despite language barriers the court has been taking con-
siderable pains in analyzing the involved fact-situations and in ascertaining the relevant
French law applicable to them. See, e.g., Selvaradjou v. Marie Josephine, [1964] 2 Indian

The case Sadasivam v. Ramadasse,80 instituted before the court as a

pourvoi en cassation, concerned the rights of a bona fide subsequent
purchaser who had no notice of prior agreement of sale. It also in-
volved the question of unilateral and bilateral contracts in French law
and the importance of the deposit of a document with a notaire. One
Dr. Muruguessin executed a document in favor of a Ramadasse
Padeatchy on April 27, 1958, reciting that the former understood to sell
and convey certain specified properties to the latter for Rs. 8,650 as
agreed to between them, of which an advance of Rs. 700 was paid on
that day by the vendee to the vendor. The document was signed by
Dr. Muruguessin and two witnesses, although Ramadasse was not a
signatory. On May 12, 1958, the vendee Ramadasse, as required by the
Code Civil, deposited the document before a notaire, the deed being
formally transcribed on May 16, 1958. Two days earlier, i.e., on May 14,
1958, Dr. Murguessin had sold the same properties to one Sadasivam
Pillay for Rs. 10,000, the documents being registered on May 21, 1958,
and transcribed on May 24, 1958. Ramadasse instituted a writ of dis-
traction on June 16, 1958, to annul the sale to Sadasivam. The Tribunal
Premiere de Instance reasoned that the agreement relied upon by
Ramadasse was a unilateral agreement in French law and, in the ab-
sence of acceptance, created no right in the properties. On appeal the
Tribunhl Superieur d'Appeal reversed the holding of the first court for
two reasons. First, if the document were a unilateral private deed of
sale, it need not be in double or multiple original. Second, the docu-
ment itself evidenced an advance payment which was acknowledged
by the vendor. This constituted an acceptance, rendering this unilat-
eral agreement a full sale; thus its transcription was anterior to the
second deed. The aggrieved party, Sadasivam, appealed to the High
Court, exercising the powers of Cour de Cassation.
The High Court, speaking through Justice Anantanarayanan, was
convinced that several vitally relevant provisions of the French proces-
sual law were neither cited or pressed by parties nor considered by the
superior court; and that the appeal itself was somewhat restricted in
scope and in the manner of its presentation. The learned judge ana-
lyzed the problem in order to remit the appeal for de novo disposal.
L.R. (Mad.) 267 (dealing with articles 728, 729, 748, 774 and 873 of the Code of Procedure
Civil); Nadessin v. Bharathy Mills, [1964] 2 Indian L.R. (Mad.) 468 (dealing with article
"1319 of the Code Civil).
80. [1964] 2 Indian L.R. (Mad.) 471. For a strikingly similar Louisiana case see Allen
v. Ponchatonla Beach Development Corp., 137 So. 2d 649 (La. Ct. App. 1962); Comment,
23 LA. L. Rav. 133 (1962).
CIVIL LAW IN INDIA
[O]ur powers as a Court of Cassation to entertain any ground of

law, even though such ground of law might not have been dealt
with by the Superior Court of Law are not in dispute .... [T]he
very situation presented by the facts involves those grounds, and
they cannot be considered exterior to the facts in any sense. 8 '
Under article 1589 of the French Civil Code, "A promise to sell is
equivalent to sale when there is mutual agreement between the parties
as to the object and the price." Such a promise is not subject to any
particular written form; it could even be an oral transaction. Since
under French law a sale in actuality is not required, a promise of sale
alone would prevent a vendor from dealing afresh with the property.
The situation could be interpreted upon two broad alternatives:
"Either we have here only a valid promise of sale, though it may be
coupled with receipt of an advance by the vendor, and no sale in ac-
tuality, or we have a complete and valid sale."8 2 In the former situation,
the judge said, the crucial question of whether or not a vendee like the
appellant (if he be a vendee for valuable consideration without infor-
mation of the earlier contract) would be allowed to validly purchase,
as in Indian law, must be determined by the Superior Court of Appeal.
But if the document were itself a complete sale, the situation would
appear to be heavily in favor of the respondent, since French law does
not require any particular form of conveyance to effect a sale of im-
movable property. Articles 1102 and 1103 of the Code Civil make it
dear beyond doubt that the document was really bilateral in char-
acter because the contracting parties, as evidenced by the document,
were under an obligation to each other. Such a private bilateral docu-
ment of sale, the French authorities specify, must be in as many
originals as there are parties. It is essential that a bilateral document
of sale should not be a single document signed by one party alone (as
it was in this case), but should at least be in duplicate (or in multiple)
in order to make the vendee also a party thereto. Such a document be-
comes effective not simply on deposit with the notaire (as was done in
this case); it is necessary for the parties to deposit it jointly.
Reducing these observations in the form of four points,8 the court
remitted the case for fresh disposal with the following instructions:
[T]he Tribunal Superieur d'Appeal should not merely analyse
the relevant provisions of the French Code Civil and Articles and
81. [19641 2 Indian L.R. (Mad.) at 473.

82. Id. at 474.
83. Id. at 475.

commentaries of standard authors as Daloz, as well as the Juris-

prudence on the subject, but should also furnish its conclusions
in the form of a reasoned judgment, giving the process of reason-
ing and with a discussion of the authorities cited.... The Superior
Court of Appeal which disposes of this appeal should be composed
differently (autrement compose) from the Court which originally
disposed of the appeal under the French law. 4
The learned judge correctly appreciated the central problem of the
case relating to the rights of a bona fide subsequent purchaser who had
no notice of prior sale in French law. In a situation of an executory
agreement of sale in Indian law, which is parallel to French promise
of sale but no sale in actuality, a vendee for valuable consideration
without notice of the earlier contract could assert his right against any
prior purchaser. Also, the notary (who has no correspondent under the
common law) plays an important role in French law in that he has
almost virtual control over documents relating to marriages, contracts,
succession, conveyances and other written deeds; whereas his counter-
part in India-the public notary or registrar-has a less active role.
2. Code du Travail8 5
The opinion of Mr. Justice Ramakrishnan in Anglo-French Textiles
v. Pondicherry6 throws considerable light on French labor law 7
Under the French Labor Code, enacted by the French National As-
sembly in 1952 for application to the overseas French territories, the
parties to a collective dispute are required to notify the Inspector of
Labor and Social Legislation, who thereupon can assist the parties in
arriving at a settlement as provided in section 209 of that code. If this
procedure is unsuccessful, the conciliation procedure must be applied.
The dispute is brought before the Labor Advisory Board either at the
request of one of the parties to the dispute, or in the absence of such
a request, on the initiative of the chairman of the Board. The Board
is empowered to delegate its duty to the Special Conciliation Board,
composed of equal numbers of management and labor representatives,
and under the chairmanship of the Inspector of Labor and Social
Legislation. The conciliation agreement, if accepted and signed by the
parties, becomes immediately enforceable. If this is also unsuccessful,
84. Id. at 475-76.

85. The Code du Travail is a collection of various statutes.
86. [1964] 1 Indian L.R. (Mad.) 771.
87. For details see W. MCPHaON & F. MEYERS, THE FRENCH LABOR COURTS (1966);
Reynard, Collective Bargaining and Industrial Peace in France, I Am. J. ComnP. L. 215
(1952).
CIVIL LAW IN INDIA
section 210 takes effect and the recommendation procedure provided

by the code is pursued as detailed in section 211. The Labor Concili-
ation Board makes a record of non-conciliation (described as proces-
verbal): the official report of proceedings or minutes. In substance this
is a reference agreed to by the contesting parties, submitting the dis-
pute for decision to an Expert. The reference must be prepared by
the Conciliation Board and signed by all the parties, (preferably)
stating the subject matter of the dispute and the points to be sub-
mitted. The parties have an option to appoint an Expert of their
choice within four days; failing this, the Chief Officer of the territory
(the Chief Commissioner) is required to appoint an Expert but has
no power to formulate the dispute. The Expert is required to give his
opinion on all matters set out in the record on proces-verbal, includ-
ing all incidental considerations which might have a bearing on the
dispute.
In the present case (on the construction of proces-verbal) the court
held that the collective dispute referred to the Expert for his recom-
mendation concerned the conditions of work and wages of spinners in
the spinning department and not of other workers in that department.
Further, as the matters had been clarified by defining the exact scope
of the terms of the referral there was no need to quash the notification
of the Chief Officer by certiorari or to give any direction by way of
mandamus.
This decision is significant in that it makes an elaborate analysis of
the importance of proces-verbal in French labor laws s-a comparable
counterpart of which it is difficult to identify in Indian labor law. 9
3. Code Penal and Code d'Instruction Criminelle0
The French Code Penal divides offenses according to their gravity
(distinguishable by the maximum penalties): crimes (major crimes),
triable in the cour d'assizes (composed of three judges and a jury);
delits (minor crimes), triable in the tribunal correctionnel (composed
88. See [19641 1 Indian L.R. (Mad.) at 776-79.
89. See A. AGGARwAL, INDIAN AND AMERICAN LABOR LEGISLATION AND PRACICES passim
(1966).
90. In 1958, the Code de Procedure Penal was adopted, replacing the former Code d'
Instruction Criminelle (enacted in its original form in 1808). Since the old code is appli-
cable to Pondicherry, our description ignores the subsequent reforms. For a discussion of
later changes see FRENCH CODE OF CRIMINAL PROCEDURE (G. Kock transl. 1964); Anton,
L'lnstruction Criminelle, 9 Am. J. ComP. L. 441 (1960); Patey, Recent Reforms in French
Criminal Law and Procedure, 9 INT'L & Comsp. L.Q. 383 (1960); Pugh, Administration of
Criminal Justice in France: An Introductory Analysis, 23 LA. L. REv. 1 (1962); Vouin,
The Privilege Against Self-Incrimination Under Foreign Law: C. France, 51 J. CRI. L.C.
& P.S. 169 (1960).

of three judges); and contraventions (petty offenses), triable by the

tribunal de police (presided over by a single justice).9 1
The divergence between the French and Indian systems lies more
in techniques for discovering truth than in the fundamental question
of what constitutes anti-social behavior. The French system is pre-
dominantly an inquisitorial with some flair of an accusatorial system. 92
Police judiciaire, consisting mainly of procureurs de la Republique
(prosecuting attorneys), juges d'instructions (investigating magistrates),
and juges de paix (justices of the peace), combines the functions of
investigation and prosecution. Investigation by the juge d'instruction
is mandatory in cases involving crimes. He undertakes the investigation,
except in flagarant delit, either on the report of the procureuror at the
request of the injured party. (In a case of flagarant delit, the procureur
may himself initiate a judicial investigation, normally conducted by
a juge d'instruction.)
The procureurexercises two roles. First, in the case of delits he may
either forward the case to a juge d'instruction or investigate it for
trial himself. And, second, before the tribunalde premiere instance and
upon presentation of the case, he acts as a public prosecutor.93 When
a matter reaches juge d'instruction, he rigorously investigates it. On
the basis of all data gathered, he refers the dossier to procureurgeneral
for proceedings in the chambre de mises en accusation. The chambre
sits in cameraand decides whether or not the case should be committed
to the cour d'assizes. (The cour d'assizes has jurisdiction only over
persons who have been indicted for a crime by the chambre.) The
chambre may nullify the entire proceedings or, if necessary, can ask
for a supplemental inquiry.
The committal proceedings 94 in the magistrate's court in India are to
91. FRENCH PENAL CODE art. 1 (J. Moreau & G. Mueller transl. 1960).
92. See Ploscowe, Development of Inquisitorial and Accusatorial Elements in French
Procedure,23 J. Calm. L. 372 (1932). In the Hindu or the Muhammedan system, operative
before the advent of the British, the judge played a more active role in eliciting the truth
as in the continental systems. See M. SETALvAD, supra note 4, at 45.
93. For details see Freed, Aspects of French Criminal Procedure, 17 LA. L. REv. 730
(1957); "Grzybowski, The Criminal Law of France, in WASHINGTON FOREIGN LAW SOCIETY,
ESSAYS ON FRENcH LAW 47 (1958); Hamson, The Prosecution of the Accused-English and
French Legal Methods, 1955 Calm. L. R y. (Eng.) 272; Keedy, The PreliminaryInvestigation
of Crime in France, 88 U. PA. L. REv. 385, 692, 915 (1940); Wright, French CriminalProce.
dure, 44 L.Q. REv. 324 (1928); 45 L.Q. REv. 92 (1929).
94. See observations of Anantanarayanan, J., in In re Rethinaswamy, [1967] 1 Indian
L.R. (Mad.) 226, 233. The accused has no constitutional guarantee to a trial by jury, and
the mode of trial is determined by the trial judge and the prosecution. Code of Criminal
Procedure, 1898, § 269, 3 INDIA CODE pt. 4 (1956).
CIVIL LAW IN INDIA
some extent inquisitorial in nature and resemble the French process. 5

Only after the commencement of the trial does the process resemble
an adversary proceeding. Unlike the Indian system, the chambre per-
forms the dual role of investigation and adjudication.
The dossier (the ensemble of extensive and painstakingly prepared
reports by both the police and the juge d'instruction)enables the pre-
siding judge to evaluate the statements given in open court by wit-
nesses and the defendant. He is then in a position to question them
effectively and to discern any contradictions. Broad and intricately de-
veloped evidentiary rules of exclusion as to hearsay and opinion testi-
mony, so firmly imbedded in Anglo-Indian criminal jurisprudence,
are generally quite unknown in the French counterpart. 8 Unfettered
by formalities, all material evidence which contributes to discovery of
the truth is admissible in France. Unlike the Indian procedure,
statements made to a police officer are admissible in evidence,9 7 since
both the judge and prosecutor represent the same arm of the judiciary.
In contradistinction to the Indian procedure, there is a virtual ab-
sence of cross-examination in the French system. An uninterrupted
spontaneous narration, the French believe, offers a far more accurate
picture of the knowledge of the witness than one elicited by cross-
examination. In the event of any discrepancy between the accused's
statements and those of the witnesses, the judge is likely to resort to
a confrontation. He then re-interrogates the accused. This interroga-
tion, handled exclusively by the presiding judge, might be regarded
as a partial substitute for cross-examination. The active clarifying
function of the judge under the Indian procedural system is a typically
"inquisitorial" feature as opposed to the "accusatorial" nature of the
proceedings under the adversary system.
Civil party intervention in criminal proceedings is another char-
acteristic feature of the French procedure. 98 By this procedural mecha-
nism, called procedure d'adhesion, a party who has suffered damage
through an offense may instead of filing a separate civil action, inter-
pose in the criminal proceeding against the delinquent party and de-
95. See Code of Criminal Procedure, 1898, § 173, 3 INDIA CODE pt. 4 (1956).
96. See 0. BODINGTON, AN OUTLINE OF THE FRENCH LAW OF EVIDENCE 122 (1904).
97. For an excellent analysis of the law relating to confessions in India and France see
Comment, Developments in the Law-Confessions, 79 HARv. L. Rv. 935, 1106-15 (1966).
98. For general discussion of civil party and civil action see Howard, Compensation in
French Criminal Procedure, 21 MODERN L. REv. 387 (1958); Larguier, The Civil Action
for Damages in French Criminal Procedure, 39 TUL. L. Rxv. 687 (1965); Pugh, supra
note 90, at 12 et seq.; Vouin, The Protection of the Accused in French Criminal Proce-
dure, 5 INT'L & CoMp. L.Q. 1, 7, 11 (1956).

mand reparation. If the judgment is one of acquittal, the court may,

in appropriate circumstances, award damages to the accused for un-
justified and reckless prosecution by the partiecivile. A verdict of guilty
is an automatic finding of civil liability against the accused and the
amount of damages is then decided in a subsequent hearing. This
mechanism, which not only saves time and money but also takes from
the victim the great burden of personally initiating a separate civil ac-
tion, has no counterpart in India or in the United States.
From the tribunal de premiere instance (the court of the first in-
stance) an appeal lies to cour d'appeal in matters relating to delits and
contraventions. On the ground of violation or wrong application of
the law, or on the ground that the lower court transgressed its juris-
diction, the accused may secure review in the chambre criminelle de la
cour de cassation. Pourvoi en cassation is the most common of these.
The court can only quash the decision and remand it for retrial in a
court of co-ordinate rank; unlike the Anglo-Indian practice, in France
a new trial cannot be held in the court which originally decided the case.
The driving consideration is that in order to safeguard the interest of the
accused the court trying the case anew should be one that is free from
any predisposition. Remedy to cour de cassation, in cases of crime, is
available in two stages. First, the accused can question the committal
order of the chambre de mises en cassation itself. Second, he can assail
the conviction by the tribunal criminal cour d'assizes on a question of
law. The procureur may appeal from an order of acquittal, but it is
for the sole purpose of safeguarding principles of law and not to preju-
dice the acquittal of the accused.0 9
With this abbreviated reference to some of the salient features of
the French criminal law, several cases in which the Madras High Court
was called upon to decide appeals pourvoi en cassation are examined
below.
In Andonissamy v. Marie00 the court was to determine whether a
conviction for theft was justified under the French law. The appellant
Andonissamy, in October 1959, by a written agreement, undertook to
99. Thus in Natesa Pillai v. Public Prosecutor, [1967] M.L.J. (Cri.) 124, the Madras
High Court correctly held that it had no jurisdiction to interfere with the order of
acquittal at the sole instance of the partie civile in the exercise of its power of cassation.
If the party who moves the Cour de Cassation in appeal is the public prosecutor, the
entire decision can be at large and the partie civile may also agitate his rights within the
forum of such an appeal. In the case decided as a corrective matter, the acquittal of the
accused will leave open to the partie civile a right to pursue his civil remedy in inde-
pendent civil proceedings, unlike in the case of an acquittal by the Court of Assizes of
an accused charged with a major crime.
100. [1964] 1 Indian L.R. (Mad.) 915.
CIVIL LAW IN INDIA
hold the property of a convent on lease subject to the payment of a cer-

tain quantity of harvest. In 1960, he demanded the original copy of
the agreement to make some entries with regard to rent; and the docu-
ment was given to him by the head of the convent. The appellant, it
was alleged, did not return the valuable document and misappro-
priated the same. He was charged under articles 379, 401, and 463 of
the Code Penal, convicted, and sentenced by the court of the first in-
stance to one month's imprisonment, which was modified to a proba-
tionary period of five years by the Superior Court of Appeal.
The High Court, on appeal of the question of the propriety of the
conviction and sentence, held the convictions under articles 379 and
401 misconceived. Article 379 reads:
Any person who fraudulently takes away anything of which he
is not the owner, is guilty of larceny.
Relying on Dalloz's ReportoirePratiquethat soustractionis the fraudu-
lent abstraction or taking away referred to in article 379, Justice
Anantanarayanan held that French law, like Indian law, contemplated
that the abstraction or taking away should be without the knowledge
and consent of the owner in order to render it fraudulent. The act of
removal per se does not constitute theft, although the offense of crimi-
nal misappropriation might be involved in the subsequent dishonest
conversion of the object removed or its destruction, if such were detri-
mental to the true owner. Hence, on the established facts, the justice
found that the present document was taken with the "knowledge, con-
sent and willingness" of the complainant and thus was not a theft
either under French law or Indian law. Since the conviction was based
upon an erroneous application of the law to the facts, the court, by
virtue of its powers as Cour de Cassation, sent the case back for re-
hearing and fresh judicial disposal by a court constituted otherwise
than the original appeals court.
The court's observation that the French provision of larceny is
similar to that of the Indian Penal Code' 01 is open to question. The
French provision may perhaps be better comparable with its English
counterpart. The Indian law of theft is different from the concept of
larceny as understood in the English law. As Setalvad observes:
The Indian Code emphasises the possession of the person from
whom property is stolen, whereas the English definition is con-
cerned with the owner of the property. In India a theft may be
committed though the person from whom the thing is taken has
101. Indian Penal Code, 1860, § 379.

no title to it, but in the case of larceny the owner should have
some general or special ownership in it.102
It is interesting to note that while the French judges had no difficulty
in classifying theft of electric current as larceny under the French
Penal Code, recourse in India has been sought under a separate
statute. 103
The appeal in In re Rethinaswamy,10 4 brought as pourvoi en cas-
sation (and also under section 10 of the Pondicherry Administration
Act, 1962), involved the murder of a young man by a group of smug-
glers. The deceased had acted as an informant to the customs authori-
ties. By way of revenge, the smugglers conspired to abduct and injure
him. The informant was kidnapped by the accused; he was mercilessly
beaten near the seashore at Karikal and, with the assistance of some
fishermen, his body was dropped into the sea.
While there was acceptable evidence concerning the abduction of
the victim, the actual circumstances of the murder were "shrouded in
an almost impenetrable obscurity." There was no independent evi-
dence corroborating the charge of murder against any appellant; there
were only the unreliable and mutually incriminating statements of
several co-accused. The nature and the probative value of the testi-
mony of the accomplice (who alone gave a clue as to who committed
the major offense) came to be considered. As in English and Indian
law, the accomplice's evidence is worthless in French law unless it is
corroborated in material particulars by independent testimony. 05 In-
sofar as the tribunal criminel passed the maximum sentence of twenty
years imprisonment on all the accused under article 344 of the Code
Penal based on the accomplice's evidence, the High Court, speaking
through Justice Anantanarayanan, held that there was no evidence to
convict the accused on the capital charge and consequently reduced
the sentence under article 341 to that for kidnapping alone.
Although the opinion has a marked meticulousness in its analysis
of the many provisions of French law and their application to the
102. M. SETALVAD, THE COMMON LAw IN INDIA 134 (1960). See also R. RANGCHIHODDAS
D. T KoR, Tns LAW OF CRIMES 220 (21st ed. ,1966).
103. Electricity Act, 1910, § 39. See also Avatar Singh v. State of Punjab, [1965J All India
Rptr. (S.Ct.) 666, for a summation of rival contentions as to whether dishonest
abstraction of electricity is an offense under the Indian Penal Code, 1860, § 378 or
against the Electricity Act, 1910.
104. [1967] 1 Indian L.R. (Mad.) 226.
105. Id. at 236. The court relied upon 12 DALoz, R PrToiRE PRATiQUE para. 102 (no
date cited by the court).
CIVIL LAW IN INDIA
present fact situation, its following obiter observations about the role
of the jury in France are not wholly supportable.
As in the system of jurisprudence that has been administered in
this country, from the British period, the jury would appear to be
the sovereign and exclusive judges of fact, even under the French
processual law. 106
In fact, the French jury is quite unlike the jury known to common law
countries; it sits more in the capacity of lay judges than as triers of facts.
The jurors deliberate and vote with the judges on both the question
of guilt and the appropriate penalty. 0 7 The absolute separation of
fact and law has worked badly in France.
In re A lamelou'0 8 offers an interesting situation where the accused's
acquittal was a fortuitous circumstance. The appellant, convicted by
the cour d'assizes of Karikal under article 300 of the Code Penal for
having murdered her infant child born out of an allegedly promiscuous
relationship, was sentenced to solitary confinement for five years. The
appellant contended that either she gave birth to a dead child or the
child was alive at the moment of delivery, but since she was alone at
the time of delivery, it probably was the absence of any assistance that
led to the death of the child. The unusual feature of the case was that
the accused decided to withdraw her appeal proffered to the Cour de
Cassation under a procedure known as desistement (available to parties
except in matters involving grave crime). The public prosecutor drew
the court's attention to the fact that desistement was improper in this
case, since the conviction was for grande crime. The High Court heard
the appeal and, on a perusal of the evidence, concluded:
We are unable to find any such evidence or even a shred of such
testimony, which would support the conviction .... We cannot
rule out the possibility that the child might have met with some
accident at delivery .... It is a cardinal principle of all systems of
criminal jurisprudence, including French criminal jurisprudence,
that suspicion cannot displace proof, and that guilt cannot be in-
ferred by guesswork of any kind .... We find from a perusal of
article 694 of Dalloz Reportoire Pratique, volume II, that our
powers in cassation, even apart from section 10 of the Pondicherry
106. [1967] 1 Indian L.R. (Mad.) at 232.

107. See generally Henry, The Story of the Criminal Jury in the Civil Law and in the
Common Law, in LGAL EssAYs IN TRIBUTE TO ORm Kip M MuRRAY 135 (M. Radin 9-
A. Kidd ed. 1935); Ploscowe, supra note 92; Ploscowe, Jury Trial in France, 29 MINN. L.
REv. 376 (1945); Dunbar, The French Criminal Jury, 3 U. or TAsMANIA L. REv. 68 (1968).
108. [1964] 2 Indian L.R. (Mad.) 811.

Administration Act, are wide enough to justify interference in

appeal, where a conviction is based on material which is totally
destitute of the legal elements of the crime. 109
Had her appeal been allowed to be withdrawn, the accused would have
missed the benefit of acquittal.
In re Ramaswami"0 dealt with an interesting problem regarding the
application of French law. The appellant was alleged to have fabri-
cated and forged certain bills, signatures and departmental sales dur-
ing 1956 in order to obtain certain import quota rights from the
Government. The investigation having been carried out in conformity
with the provisions of the French Criminal Procedure Code, a prima
facie case for the several offenses of fabrication and forgery was made
out by the tribunal criminel at Karikal against the accused. Conform-
ing to the French law, on November 20, 1961, the accused declared
his intention to appeal to the Cour de Cassation at Paris. Following
the de jure transfer of the former French Establishments to the Indian
Union and the conferment on the Madras High Court of the powers
of the Cour de Cassation, the appeal came to be heard by Mr. Justice
Ramakrishnan.
The appellant contended that after the extension of the Constitu-
tion to Pondicherry, which applied from the date of the de jure trans-
fer (i.e., August 1, 1962), only the Indian Penal Code and the Code of
Criminal Procedure should have been applied to his trial, and not the
provisions of the French Code of Criminal Procedure or the French
Penal Code. Article 21 of the Indian Constitution states that no person
shall be deprived of his life or personal liberty except according to
procedure established by law; article 13(3) defines "law" as including
any ordinance, order, by-law, rule, regulation, notification, custom or
usage having in the territory of India the force of law.
The court negatived the contention of the appellant. It is a well-
settled principle of international law, the court observed, that a foreign
settlement, obtained in an inhabited country by conquest or cession,
stands in a different position than a settlement made by colonizing an
uninhabited country. In the latter case the immigrants carry with them
the laws of the country of their origin, there being, of course, no lex
loci. In the former, the native law of the country continues until the
Crown or the legislature changes it."' This principle had been carried
109. Id. at 812.

110. [1965] 2 M.L.J. 532.
111. Id. at 834, quoting Mayor of Lyons v. East Indian Co., [1836] M.I.A. 175.
CIVIL LAW IN INDIA
out successively in section 511- of the French Establishments (Adminis-

tration) Order, 1954, section 4113 of the Pondicherry (Administration)
Act, 1962, and section 4(2)(d) 114 of the Pondicherry (Laws) Regulation,
1963. By the force of these repealing and saving provisions, the pre-
existing French law had become as much "the established law" in force
in the territory of India within the meaning of article 13(3)(a) of the
Constitution of India as any other law of the Indian Union (such as
the Criminal Procedure Code or the Penal Code). That the law thus
given validity was originally a law in force in what was foreign terri-
tory would not affect the question of its being an established law in
the territory newly added to the Indian Union.
The pre-existing French law, preserved for enforcement in the newly
added French territories, was not ad hoc legislation designed to meet
a particular contingency or a particular set of persons. Instead, it was
law, firmly and well established in the territory, having general accep-
tance under the principles of international law. The citizens of that
territory had, therefore, a vested right to be governed by the French
law (i.e., the French Criminal Procedure and French Penal Code) until
such time as competent authority introduced new patterns of legis-
lation.
The modified provision of the Code de Procedure Penale, which
became effective in France and other French territories after the date
when the former French possessions in India came under the de facto
jurisdiction of the Government of India in 1954, and before the de
jure transfer of jurisdiction in 1962, would have no application in this
case. Here, the case was heard after the de facto transfer in 1954 (and
before the de jure transfer in 1962), the investigation by the police in
a criminal case, and other processes, and a committal had been made
112. The section reads:
All laws in force in the French Establishments or any part thereof immedi-
ately before the commencement of this Order and not repealed by paragraph 6
of the French Establishments (Application of Laws) Order, 1954, shall continue
to be in force until repealed or amended by a competent authority.
113. It contains an identical provision to section 5, supra note 112, providing for the
continuance of the pre-existing laws until amended or repealed by a competent legislature
or authority.
114. The section reads:
(1) Any law in force in Pondicherry or any area thereof corresponding to any
Act referred to in section 3 shall stand repealed as from the coming into force
of such Act in Pondicherry; and the laws specified in the second schedule are
hereby repealed.
(2) Nothing in subsection (I) shall effect -.
(3) Any investigation, legal proceeding or remedy in respect of any such
right, privilege, obligation, liability, penalty, forfeiture or punishment as
aforesaid.

for trial before the tribunal criminel. It is not the law that after the
extension of the Constitution of India to Pondicherry, only the Indian
Criminal Procedure and Penal Code and not French law should be
applied at the trial of the accused in such a case.
Doctrinally, this is a sound analysis of the legal situation, but it
would be appropriate to draw the attention of the legislature to a
problem unfolded by this decision. The continuance of pre-existing
laws, 115 especially when their anomalies have been removed in the
country of their origin, should be accompanied by appropriate re-
vision. A mechanical continuation has at times resulted in anachro-
nistic results.1 16
V. CONCLUDING R.EMARKS
It is evident from the foregoing discussion that had the practice of

sending a civilian judge-advocate (begun by the East India Company)
been continued there would have been a greater possibility of recep-
tion of civilian elements in Indian jurisprudence. The statutory em-
bodiment of common law principles in various enactments during the
nineteenth century further minimized the reception of other juridical
thinking into the corpus of Indian law through judicial interpretation.
In addition, the relative absence of the teaching of Roman law at In-
dian law schools inhibited a proper influx of continental jurisprudence.
The pervasive influence of common law tradition has thus dwarfed
the civilian impact. Nevertheless, after the annexation of the former
Portuguese and French possessions in the Union of India, civil law
assumed a new importance. With a varying degree of modification,
civil law principles have been preserved in these areas, but with the
ultimate goal of gradually fusing them with the Indian common law.
One of the major difficulties confronting the courts is an unfamiliarity
with the structure and fabric of the civil law system, although efforts
at unification have not been without merit.117 The presence of alien
115. For changes in the French criminal procedure, after the annexation of Pondicherry
to Indian Union, see the materials cited in note 90 supra.
116. In India the liability of Government in torts continued to be governed by the
principles of old English law based on the immunity of Crown even after the passing of
the Crown Proceedings Act, 1947, in England. The situation has been recently corrected
by the legislature.
117. The Madras High Court, exercising the powers of the Cour de Cassation, has tried
to synthesize both systems. The French judgments are highly compressed in form as the
codes are the fundamental source of law. The Madras High Court has adopted the
technique of giving a fairly elaborate judgment interpreting the provisions of the code
CIVIL LAW IN INDIA
legal culture within a predominantly common law country is likely

to present many conflicts of laws problems to lawyers and jurists alike.
There is, therefore, a new need to utilize comparative legal studies
in order to familiarize Indian lawyers with some of the more impor-
tant areas of civil law. The approach should be to emphasize the ad-
vantages inherent in different methods and solutions rather than
superficial variations based on diverse historical developments. The
study of the institutions or phenomena of the civil law (or any other
legal order), as compared with those of Indian law, is necessary in
order to evaluate their respective merits. Parallels to the Indian situ-
ation are to be found in various countries throughout the world (for
example: Quebec, Canada; Louisiana, United States; South Africa,
Africa). In many of these jurisdictions the enclaves of civil law have
been permitted to exist or flourish as separate legal cultures. In the
period of assimilation of the former Portuguese and French legal sys-
tems into the Indian legal structure, these parallels indicate that with
diligence a harmonious relationship can be maintained for the time
being. While it is clear that the small size of these former foreign en-
claves and the common ethnology with the rest of India leaves little
justification for maintaining them as separate legal and judicial ad-
ministrations, it is also important to remember that until the task of
assimilation is complete the Indian government must take great pains
to appreciate the civil law and the different conditions it has produced
within these areas. Such a comparative law study would greatly assist
the extraction of the best from other legal orders and contribute to a
better understanding of contemporary problems.
and also giving what is known in French jurisprudence as the motif for its decision.
Contrary to French tradition, which is marked rather by a comparative disregard of
precedents, the court has in true common law fashion accorded precedential value to
the judgments of the Cour de Cassation.

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Washington University Law Review

Volume 1969 Issue 1

Civil Law in India

Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview

CIVIL LAW IN INDIAt

The viability of a country's legal system in the face of the rapid

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in Indian jurisprudence is a phenomenon hardly noticed by authors

II. CIVILIAN THINKING IN BRITISH INDIA

A. Early Tinkerings of Civil Law

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The Portugalls on the Maine and Neighbouring places in these

The refusal amounted to requiring Aungier to institute a law court

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ulation II of 1772, section 22, directed that in suits regarding inher-

should never perhaps be led astray by the Pandits and Maulavis,

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Calcutta,3 6 and Madras37 courts reveals instances where judges drew

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The reference to continental jurisprudence through the residual

body of substantive law, in preparing which the law of England should

III. PORTUGUESE LAW PROBLEMS

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Mitakshara law. Afonso Mexia codified this law (Foral) in 1526; it

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provisions of article 400(1) of the Portuguese Penal Code; and the

IV. FRENCH LAW IN INDIA

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on August 16, 1962 (from which date by the fourteenth amendment

B. Supreme Court and French Law

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lishments (Application of Laws) Order, 1954, under the Foreign Juris-

68. French Establishments (Application of Laws) Order, 1954, para. 6.

Concerning the "pre-existing French laws in Pondicherry correspond-

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Section 6 of the General Clauses Act (X of 1827) says that unless

72. Id. at 46-47.

The position was analogous to that of a statute repealing another with

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74. See note 66 supra.

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The case Sadasivam v. Ramadasse,80 instituted before the court as a

[O]ur powers as a Court of Cassation to entertain any ground of

81. [19641 2 Indian L.R. (Mad.) at 473.

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commentaries of standard authors as Daloz, as well as the Juris-

84. Id. at 475-76.

section 210 takes effect and the recommendation procedure provided

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of three judges); and contraventions (petty offenses), triable by the

some extent inquisitorial in nature and resemble the French process. 5

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mand reparation. If the judgment is one of acquittal, the court may,

hold the property of a convent on lease subject to the payment of a cer-

101. Indian Penal Code, 1860, § 379.

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106. [1967] 1 Indian L.R. (Mad.) at 232.

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Administration Act, are wide enough to justify interference in

109. Id. at 812.

out successively in section 511- of the French Establishments (Adminis-

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