Category: LLB Part-I Jurisprudence

Title in Jurisprudence Notes

Title is a link between a person and an object to establish ownership of
property. A title is the de facto antecedent of which the right is the de
jure consequent. Right of possession on ownership comes in term of de
facto first and later de jure. For example, I have a watch on my hand.
How it can be said that it is my, or I have title over it. I have either
purchased it, or someone has gifted me, or I have inherited it from
elsewhere. Title is created even of stolen objects. It is right of ownership
in fact and in law over property.

Kinds of Title

There are two kinds of title are as follow

 Investitive factsInvestitive facts create rights. This right is created first

time on the objects, which are ownerless. When I catch fish it is my
original title and if I purchase it from elsewhere then it is called
derivative title. Derivative right is second right, which is created after
gone away of original right.
 Divestitive factsDivestitive facts are those, which loss or keep away of
right is termed as divestitive facts.
 Alienative rightAlienative right is right which is separated or
transferable.
 Extinctive rightExtinctive right is right which is kept away or destroyed.

Persons in Jurisprudence Notes

In an ordinary meaning any living human being either male or female is
person. In old Roman law slaves were not supposed to be person
because they were not possessed rights.
In legal term a being who is capable to possess rights and obligation and
liabilities is person. All human being are person. Any being whom law
regards as capable of rights and duties.
Kinds of persons
There are two kinds of person in law

 Natural persons
 Legal person
 Natural persons
All the human beings are natural persons. The entire male and female
are persons. All the living beings which are recognized as person by
state, they are persons in law and persons in fact.
Legal persons
Legal persons are created artificially and law regards them as legal
person. They are persons only in the eyes of law. They are also created
by legal fiction so called as fictitious also. They are also called juridical,
conventional, imaginary, and they have rights and obligations as natural
person. They can sue and be sued.
Animals
They are no persons because they do not possess rights and obligations.
Some people say that they are persons because law prohibits cruelty to
them. They should be treated sympathetically and kindly. But this is our
cultural heritage and the duty of society and not the duty of animals.
Rights always correlate with duties. Since they do not have any duty so
no rights and are not persons although in ancient Roman law a rooster
was prosecuted and punished but in modern law master of animals can
be sued and punished and not the animals itself.
Dead human beings
They cease their rights and obligation at the moment they go away from
this world and their connection is cut down. They are immune from
duties and not subject of rights. Law recognize the compliance of will,
burial ceremony, no defamation, no desecration of graves, but despite of
this fact they are not persons and these duties lie to their legal heirs or
living society members.
Statues of unborn babies
In civil law they can sue after they are born through their next friends or
at attaining the age of majority. A child in womb has certain rights and
inherits property. These all things are subject to his living birth.
Following are important points

 He can claim damages after birth, for the injuries he received before
birth.
 He can claim compensation for the death of his father or mother in fatal
accidents.
 He inherits even his father is died before his birth. He is natural person
even his birth is only for a moment.
 A woman cannot be punished after conviction if she is pregnant, till birth
of baby.
 Kinds of legal persons They are three kinds of Legal Person are as
follows

 Institutions are not personified or group of persons but institutions

itself are legal persons, such as, mosque, library, hospital etc.
 CorporationsCorporations are a group or series of persons and natural
persons are its members.
 Funds or estatesFunds or estates are used for specific purpose.
Property or fund of deceased person for trust or charity is kind of legal
person.
Kinds of Corporation

 Corporation aggregate
Corporation aggregate is a group or collection of persons who become
joint to accomplish a task. Even all members of this corporation die, it
will remain live and continue until death by law. Common example of
this corporation is Municipal Corporation or registered company.
 Corporation sole
Corporation sole is series of successive persons or individuals. It consists
of only one person at a time like king, postmaster general, Assistant
Commissioner, or Prime Minister. When a person dies, second one
comes, fills in vacancy and performs functions. After death of office
holder, for the time being, office becomes dormant or inactive or goes in
sleeping position and as well as other person fills in the position, it
become active.

Possession in jurisprudence
Possession is very difficult to define in English Jurisprudence. But it very
important topic. Human life and society would become impossible
without retention and consumption of material and non-material things.
Food, clothes, tools, etc. are essential items to use. We get hold over the
first to claim possession. It is not just acquisition of things but it is
continuing claim for use of them. It may be legal or illegal.
How the possession is acquired:
Following are some points which can be referred to acquire or loss the
ownership:
 Possession itself is evidence being owner. Pen in my hand is evidence
being owner, regardless legally or illegally.
 The person in possession is presumed to be the owner. A house in my
possession is presumed my ownership along-with all the things lying in
it.
 Anything can be held wrongfully or by fraud.
 Long possession of twelve years confers the title in property, which may
belong to others. When a title is conferred to another even without
ownership is acquisition of possession.
Possession is defined as “it is continuing exercise of a claim to the
exclusive use of it.” It does not cover incorporeal possession. Possession
is different from ownership but normally possession and ownership lie
together.
How the possession is acquired: Lease, renting out, pledge, mortgage,
theft, fraud, and bailment etc. is the general mode of acquisition of
possession. Possession is of two kinds, i.e., possession in fact or de facto
and possession in law or de jure. Some discordance in law and fact
occurs. Law something presumes which may not actually exist. Normally
possession in law and possession in fact exist in a person but it may vary.

 Possession in fact or de facto:

It means the possession, which physically exists in term of control over
it. It can be seen landlord and tenant where tenant holds possession of
house physically or de facto, but it is not possession in law or de jure.
 Possession in law or de jure:
It is the possession which, in the eyes of law, exists. It may exclude
physical control over it. It is also called constructive possession. A
servant may possess car, but in the eyes of law, it is possession of master.
Possession of bailor through bailee is de jure possession on the part of
bailor.

Corporeal and incorporeal possession:

Corporeal possession is the possession of a material or tangible objects,

thus it is continuing exercise of a claim on the use of material or tangible
object.
Incorporeal possession is the possession of a non-material or intangible
object. Thus it is continuing exercise of a claim on the use of non-
material or intangible object.
There are two essential elements of possession, i.e., animus and corpus.
 Animus is the intent or mental condition or activity or claim of exclusive
use of the thing possessed. Cloth at tailor’s shop is in possession of tailor
but he may not intend to exclude the owner or subject of the owner.
Animus may be legal or illegal. The only test is whether the man in
possession intends to exclude others or not. General intent is enough to
constitute possession. All books in library, all fishes in net, all sheep in
flock, are subject of intent whether in knowledge or not, thus possessio
completes.
 Corpus is second element, which is essential and completes possession.
It is objective part of possession. Both animus and corpus are necessary
for possession.
The intent to exclude to others from interfering with the object
possessed must be evidenced by physical facts. If there is no action then
no intention is expressed. Pen in my pocket, ring on my finger, or goods
in my home, are corpus of my possession of each of these.

Completion of possession:

 Power of possession: It shows possession. Books or watch in my hand

excludes others thus possession is complete. Things under lock and key
are also possession.
 Presence of possession: A person may be feeble and unable to exclude
other but his presence may command respect. Cash in the hand of child
is possession.
 Secrecy: Mere knowledge that I have cash in bank, which is exclusive
knowledge, is possession.
 Continuing use: I use pen continuously, read book continuously, use of
transport continuously, is possession.
 Customs: In some localities people are not allowed to interfere to other
things even presence is not there, like in Saudi Arabia where people
leave their shops remain open and go to offer prayer and no interference
is allowed. It is possession even in absence.
 Respect of rightful claim: In law-abiding societies people do not
interfere in the right of other and rightful claim generally obtain security
from general acquisition.

Res nullius
 Res nullius means ownerless things or objects. Terra nullius means no
man land. A person, who finds lost goods, while passing on road, e.g., a
wallet, being first finder, he has good title against the whole world
except the true owner, even if it is found on another person property
without committing trespass. This is the rule. Any other person who
looks at finder of lost goods cannot demand his share from lost goods.If a
customer finds a lost wallet while shopping in a store which is not
identifiable, can retain till reasonable time to wait its true owner. He is
obliged to bring this matter into the knowledge of shopkeeper and give
him his own address. If true owner did not come till reasonable time, he
will hold title. There are many other things which have no owner, i.e.,
gems stone, metal, gold, silver, natural resources, bird, animal, provided
these things are found in way, without committing trespass. Precious
stone cannot be held from the area specified by government. Bird or fish
cannot be hunt from the area of property holder. Things cannot be hold
from others house. Bird cannot be hunt, which is prohibited.
There are three exceptions in this rule:

 Owner of the property on which the thing is found is in possession of the

thing itself as well as property, or
 If the finder is servant or agent then master or principal has title, or
 Wrongful act does not constitute possession. Trespass is not allowed.
Natural resources in economic zone like water, sea, land etc. belong to
government. If treasure comes out from others property will also belong
to government.

Kinds of corporeal possession:

Immediate possession means direct or proximate possession without

agency and mediates possession means in between or remote
possession. It is acquired with agency.

 A being a servant holds something for his master B. A has immediate

possession while possession of B is mediate.
 Where both claim possession, e.g., tenant and landlord.
 In case of bailment, pledge or mortgage, both have claim.
A has exclusive right of possession on his land while right of way over
his land is concurrent.
 Acquisition of possession:

Possession is acquired when both the animus and corpus are acquired:

 By taking: When someone takes anything, he has possession. It may

either be rightful or wrongful possession.
 By delivery: The thing is acquired by delivery with consents of previous
possessor.
 Actual deliveryActual delivery is a kind in which goods are delivered
while constructive delivery is the rental or sold goods.

Ownership in jurisprudence
Jurists have defined ownership in different ways. All of them accept the
right of ownership as the complete or supreme right that can be
exercised over anything. Thus, according to Hibbert ownership includes
four kinds of rights within itself.
 Right to use a thing
 Right to exclude others from using the thing
 Disposing of the thing
 Right to destroy it.
Austin’s definition
Austin while defining ownership has focused on the three main
attributes of ownership, namely, indefinite user, unrestricted disposition
and unlimited duration.

 Indefinite User
 Unrestricted Disposition
 Unlimited Duration
The abolition of Zamindari system India , the abolition of privy purses,
nationalization of Bank etc. are some example of the fact that the
ownership can be cut short by the state for public purpose and its
duration is not unlimited.
Austin’s definition has been followed by Holland. He defines ownership
as plenary control over an object. According to him an owner has three
rights on the subject owned

 Possession
 Enjoyment
 Disposition
 Planetary control over an object implies complete control unrestricted
by any law or fact. Thus, the criticism levelled against Austin’s definition
would apply to that given by Holland in so far as the implication of the
term “plenary control” goes.
Salmond’s Definition:
According to the Salmond ownership vests in the complex of rights
which he exercises to the exclusive of all others. For Salmond what
constitute ownership is a bundle of rights which in here resides in an
individual. Salmond’s definition thus point out two attributes of
ownership:

 Ownership is a relation between a person and right that is vested in him

 Ownership is incorporeal body or form

MODERN LAW AND OWNERSHIP

Under modern law there are the following modes of acquiring ownership
which may be broadly classed under two heads,viz,.
Original mode
Derivative mode
The original mode is the result of some independence personal act of the
acquire himself. The mode of acquisition may be three kinds

 Absolute when a ownership is acquired by over previously ownerless

object
 Extinctive, which is where there is extinctive of previous ownership by
an independence adverse act on the part of the acquiring. This is how a
right of easement is acquiring after passage of time prescribed by law.
 Accessory that is when requisition of ownership is the result of
accession. For example, if three fruits, the produce belongs to the owner
unless he has parted with to the same. When ownership is derived from
the previous version of law then it is called derivate acquisition. That is
derived mode takes place from the title of s prior owner. It is derived
either by purchase, exchange, will, gift etc.Indian Transferee Acts of
property rules for the transfer of immovable property, Sale of goods Acts
for the transfer of property of the firm and the companies Act for the
transfer of company property.
 SUBJECT MATTER OF OWNERSHIP

Normally ownership implies the following:

 The right to manage

 The right to posses
 The right to manage
 The right to capital
 The right to the income

CHARACTERISTICS OF OWNERSHIP

An analysis of the concept of ownership, it would show that it has the

following characteristics: Ownership ma either be absolute or restricted,
that is, it may be exclusive or limited. Ownership can be limited by
agreements or by operation of law.The right of ownership can be
restricted in time of emergency. An owner is not allowed to use his land
or property in a manner that it is injurious to others. His right of
ownership is not unrestricted.The owner has a right to posses the thing
that he owns. It is immaterial whether he has actual possession of it or
not. The most common example of this is that an owner leasing his house
to a tenant. Law does not confer ownership on an unborn child or an
insane person because they are incapable of conceiving the nature and
consequences of their acts. Ownership is residuary in character. The
right to ownership does not end with the death of the owner; instead it is
transferred to his heirs. Restrictions may also be imposed by law on the
owner’s right of disposal of the thing owned. Any alienation of property
made with the intent to defeat or delay the claims of creditors can be set
aside.

KINDS OF OWNERSHIP

There are many kinds of ownership and some of them are corporeal and
incorporeal ownership, sole ownership and co-ownership, legal and
equitable ownership, vested and contingent ownership, trust and
beneficial ownership, co- ownership and joint ownership and absolute
and limited ownership.
Corporeal and Incorporeal Ownership

Corporeal ownership is the ownership of a material object and

incorporeal ownership is the ownership of a right. Ownership of a house,
a table or a machine is corporeal ownership. Ownership of a copyright, a
patent or a trademark is incorporeal ownership. The distinction between
corporeal and incorporeal ownership is connected with the distinction
between corporeal and incorporeal things. Incorporeal ownership is
described as ownership over tangible things. Corporeal things are those
which can be perceived and felt by the senses and which are intangible.
Incorporeal ownership includes ownership over intellectual objects and
encumbrances.

Trust and Beneficial Ownership

Trust ownership is an instance of duplicate ownership. Trust property is

that which is owned by two persons at the same time. The relation
between the two owners is such that one of them is under an obligation
to use his ownership for the benefit of the other. The ownership is called
beneficial ownership. The ownership of a trustee is nominal and not real,
but in the eye of law the trustee represents his beneficiary. In a trust, the
relationship between the two owners is such that one of them is under
an obligation to use his ownership for the benefit of the other. The
former is called the trustee and his ownership is trust ownership. The
latter is called the beneficiary and his ownership is called beneficial
ownership.

Legal and Equitable Ownership

Legal ownership is that which has its origin in the rules of common law
and equitable ownership is that which proceeds from the rules of equity.
In many cases, equity recognizes ownership where law does not
recognize ownership owing to some legal defect. Legal rights may be
enforced in rem but equitable rights are enforced in personam as equity
acts in personam. One person may be the legal owner and another
person the equitable owner of the same thing or right at the same time.
The equitable ownership of a legal right is different from the ownership
of an equitable right. The ownership of an equitable mortgage is
different from the equitable ownership of a legal mortgage.

There is no distinction between legal and equitable estates in India.

Under the Indian Trusts Act, a trustee is the legal owner of the trust
property and the beneficiary has no direct interest in the trust property
itself. However, he has a right against the trustees to compel them to
carry out the provisions of the trust.

Vested and Contingent Ownership

Ownership is either vested or contingent. It is vested ownership when

the title of the owner is already perfect. It is contingent ownership when
the title of the owner is yet imperfect but is capable of becoming perfect
on the fulfillment of some condition. In the case of vested ownership,
ownership is absolute. In the case of contingent ownership it is
conditional. For instance, a testator may leave property to his wife for
her life and on her death to A, if he is then alive, but if A is dead to B.
Here A and B are both owners of the property in question, but their
ownership is merely contingent. It must, however, be stated that
contingent ownership of a thing is something more than a simple chance
or possibility of becoming an owner. It is more than a mere spes
acquisitionis. A contingent ownership is based upon the mere possibility
of future acquisition, but it is based upon the present existence of an
inchoate or incomplete title.

Sole Ownership and Co-ownership

Ordinarily, a right is owned by one person only at a time. However,

duplicate ownership is as much possible as sole ownership. When the
ownership is vested in a single person, it is called sole ownership; when
it is vested in two or more persons at the same time, it is called co-
ownership, of which co-ownership is a species. For example, the
members of a partnership firm are co-owners of the partnership
property. Under the Indian law, a co-owner is entitled to three essential
rights, namely
 Right to possession
 Right to enjoy the property
 Right to dispose

Co-ownership and Joint Ownership

According to Salmond, “co-ownership may assume different forms. Its

two chief kinds in English law are distinguished as ownership in
common and joint ownership. The most important difference between
these relates to the effect of death of one of the co-owners. If the
ownership is common, the right of a dead man descends to his
successors like other inheritable rights, but on the death of one of two
joint owners, his ownership dies with him and the survivor becomes the
sole owner by virtue of this right of survivorship.

Absolute and Limited Ownership

An absolute owner is the one in whom are vested all the rights over a
thing to the exclusion of all. When all the rights of ownership, i.e.
possession, enjoyment and disposal are vested in a person without any
restriction, the ownership is absolute. But when there are restrictions as
to user, duration or disposal, the ownership will be called a limited
ownership. For example, prior to the enactment of the Hindu Succession
Act, 1956, a woman had only a limited ownership over the estate
because she held the property only for her life and after her death; the
property passed on to the last heir or last holder of the property.
Another example of limited ownership in English law is life tenancy
when an estate is held only for life.

Legal Rights jurisprudence notes

There can be on duty without a right and According to Hibbert “a right is
one person’ capacity of obliging others to do or forbear by means not of
his own strength but by the strength of a third party. If such third parts
is God, the right is Divine. If such third parts is the public generally acting
though opinion, the right is moral. If such third parts is the stale acting
directly or indirectly, the right is legal.”
 Definition Of Legal Right

The term legal right has been used in two senses:

Restricted Or Popular Sense:
According to Gray:A legal is that powers which a man has to take a
person or person do or refrain form doing a certain act or certain acts, so
far as the power arises form society imposing a legal duty upon a person
or persons.
Wider Sense:
In a wide sense, legal right include any legally recognized interest
whether it corresponds to a legal duty or not. It is an addition or benefit
conferred upon a person by a rule of law.

Kinds Of Legal Rights:

Following are the kinds of legal rights:

 Perfect right
 Imperfect right
 Real And Personal Rights
 Rights In Rem And Rights In Personam
 Proprietary And Personal Rights
 Inheritable And Uninheritable Rights
 Rights In Repropria And Rights In Re Aliena
 Principal And Accessory Rights
 Legal And Equitable Rights
 Primary And Secondary Rights
 Public And Private Rights
 Vested And Contingent Rights
 Servient And Dominant Rights
 Municipal And International Rights
 Rights At Rest And Rights In Motion
 Ordinary And Fundamental Rights
 Jus Ad Rem

Perfect right:

According to salmond, a perfect right is one which corresponds to a

perfect duty I .e., which is enforced by law.
 Example:
A contract specically enforceable through the Court of law is an example
of perfect right.

Imperfect right:

An imperfect right is that which is recognized by law but cannot be

enforced by law due to some impediment. These may be turn into
perfect rights.

 Positive right:
A positive right corresponds positive duty and the person subject to the
duty is bound to do something.
 Negative right:
Negative right corresponds to negative duties. The enjoyment of
negative rights is complete unless such interference takes place.

Real And Personal Rights:

 Real right:
According to salomond, a real right corresponds to a duty imposed upon
persons in general. It available against whole word. Real rights are
generally a negative rights as the duties which can be expected form the
whole world are of a negative character.
Example:
I have a right to be deprived of my life is a real right as it is available
against the whole world.
 Personal right:
A personal right corresponds to a duty imposed upon determinate
individuals. It against a particular person. Personal rights are generally
positive right as it imposes a duty on a particular person to do
something.
Example:
I have a personal right to receive compensation form any individual who
is any harms me.

Rights In Rem And Rights In Personam:

 Rights in Rem:
It is derived form the Roman term action in Rem” . It is available the
whole world Examples are rights of ownership and possession. My right
of possession and ownership is protected by law against all those who
those may interfere with the same.
 Rights in Personam:
It is derived form the Roman term “ action in personam,” Right in
personam corresponds to duty imposed upon determinate persons.
Example:
Rights under a contract are right in Personam as the parties to the
contract alone are bound by it.

Proprietary And Personal Rights:

 Proprietary Right:
The proprietary rights of a person include his estate, his assets and his
property in many forms. They have some economic or monetary value.
They possess both judicial and economic importance.
Example:
The right to debt, the right to goodwill etc.
‘

 Personal right:
Personal right pertain to man, s status or standing in the law. They
promote the man, s well being. Personal rights possess merely judicial
importance.
Example:
Right to life, reputation etc are personal rights.

Inheritable And Uninheritable Rights:

 Inheritable Rights:
Inheritable rights are those which survives its owners.
Example:
‘A’ dies leaves his property him ‘B’ his legal heir becomes owner of such
property. This is an inheritable right.
 Uninheritable right:
A right is uninheritable if it dies with its owners e. g. personal rights die
with its owner and cannot be inherit.
 Rights In Repropria And Rights In Re Aliena:

 Rights in Re Propria:
Rights in Re propria are rights in one, s own property. These are
complete rights to which other right can be attached.
Example:
The owner of a chattel has a right in re propria over it.
 Right in Re aliena:
Rights is Re aliena are rights over the property of another person. These
rights derogate form the rights of another person and add to the rights of
their holder.
Example:
My right of way across the land another person is a right re aliena.

Principal And Accessory Rights:

 Principal rights
Principal rights exist independently of other rights. Accessory rights are
appurtenant to other rights and they have a beneficial on the principal
rights.
Example:
‘X’ owes money to ‘Y’ and he executes a mortgage deed in favour of ‘Y’.
the debt is the principal right and the security in the form of mortgage is
the accessory right.

Legal And Equitable Rights:

 Legal Rights:
Legal rights are those which were recognized by common Law Court e.
g., right to vote etc.
 Equitable Rights:
Equitable rights are those which were recognized by the Court of
chancery.
Example:
The right of the mortgagor to redeem the property is regarded as a
creation of the Courts of equity and is an equitable right knows as the
equity of redemption.
 Primary And Secondary Rights:

 Primary Rights:
Primary rights are also called antecedent, sanctioned or enjoyment
rights. These are those rights which are independent of a wrong having
been committed. They exist for own sake. They are antecedent to be
wrongful act or omission.
Example:
Right of reputation, Right to life etc.
 Secondary Rights:
Secondary rights are also called sanctioning, restitutory or remedial
rights. Secondary rights are a part of the machinery provided by the
state of the redress of injury done to the primary rights. Their necessity
arises on account of the fact that primary rights are very often violated
by the persons.
Example:
Rights to obtain compensation for defamation to person.

Public And Private Rights: Public rights:

 Public rights:
A public right is possessed by every member of the public. It is between a
state and the private individual e. g. , right to vote etc.
 Private right:
A private right is concerned only with the individuals. Both the parties
connected with the right are private persons e.g., contract entered into
by two individuals.

Vested And Contingent Rights:

 Vested right:
A vested is a right in right in respect of which all events necessary to vest
it completely in the owner have happened. No other conditions remains
to be satisfied.
Example:
If a valid deed of transfer is executed by ;A; in favour of ‘B’, ‘B’ acquires a
vested right.
 Contingent right:
According to paton when part of the in vestitive acts have occurred, the
 right is contingent until the appening of all the facts on which the title
depends.
Example:
‘A’ executes a deed in favour of ‘B’ according to which he entitles to the
possession of certain property when attains the age of 21, the right is
contingent right and it will be vested only when he attains the age of 21.s

Servient And Dominant Rights:

A servient right is one which is subject to an encumbrance. The

encumbrance which derogates form it may be contrasted as dominant.
Example:
“X” as the owner of certain house a right of way over the land of ‘Y’ , his
neighbor. The house of ‘X’ is the dominant heritage and ‘X’ is the
dominant owner. The house of ‘Y’ is the servient heritage and ‘Y’ is the
servient owner.

Municipal And International Rights:

 Municipal rights:
Municipal right are conferred by the law of a country, it is enjoyed by the
individuals living in a country.
 International rights:
International rights are conferred by international law. The subject of
the International rights are the persons recognized as such by
International law.

Rights At Rest And Rights In Motion:

According to Holland, when a right is stated with reference to its ‘orbit’

and its “ infringement’, it is a right at rest. “Orbit’ means the extent of
advantages conferred by such right and infringement means an act
which interference with the enjoyment of those advantages. Causes by
which rights are either connected or disconnected with persons are
discussed under rights in motion.

Ordinary And Fundamental Rights:

Some rights are ordinary and some are fundamental rights. The
distinction between the two lies that fundamental rights are often
guaranteed by the onstitution i. e., right to life, liberty etc.

Jus Ad Rem:

A jus ad rem is a right to right. It is always a right in personam.

Example:
If ‘A’ sell his house to ‘B’. ‘B’ acquires a right against ‘A’ to have the house
transferred to himself.

Conclusion:

To conclude, I can say, that legal rights are those which are conferred by
the state on certain individuals and imposes corresponding duties on
others. It is enforced by the physical force of the state. It is been
classified into different kinds according to their scope by various
authors.

Custom in jurisprudence
Custom can simply be explained as those long established practices or
unwritten rules which have acquired binding or obligatory character. In
ancient societies, custom was considered as one of the most important
sources of law; In fact it was considered as the real source of law. With
the passage of time and the advent of modern civilization, the
importance of custom as a source of law diminished and other sources
such as judicial precedents and legislation gained importance.
There is no doubt about the fact that custom is an important source of
law. Broadly, there are two views which prevail in this regard on
whether custom is law. Jurists such as Austin opposed custom as law
because it did not originate from the will of the sovereign. Jurists like
Savigny consider custom as the main source of law. According to him the
real source of law is the will of the people and not the will of the
sovereign. The will of the people has always been reflected in the custom
and traditions of the society. Custom is hence a main source of law.

Kinds of Customs
 Customs can be broadly divided into two classes:
Customs without sanction:
These kinds of customs are non-obligatory in nature and are followed
because of public opinion.
Customs with sanction:
These customs are binding in nature and are enforced by the State.
These customs may further be divided into the following categories:

 Legal Custom:
Legal custom is a custom whose authority is absolute; it possesses the
force of law. It is recognized and enforced by the courts. Legal custom
may be further classified into the following two types:
 General Customs:
These types of customs prevail throughout the territory of the State.
 Local Customs:
Local customs are applicable to a part of the State, or a particular
region of the country.
 Conventional Customs:
Conventional customs are binding on the parties to an agreement. When
two or more persons enter into an agreement related to a trade, it is
presumed in law that they make the contract in accordance with
established convention or usage of that trade. For instance an agreement
between landlord and tenant regarding the payment of the rent will be
governed by convention prevailing in this regard.

Essentials of a valid custom

All customs cannot be accepted as sources of law, nor can all customs be
recognized and enforced by the courts. The jurists and courts have laid
down some essential tests for customs to be recognized as valid sources
of law. These tests are summarized as follows:
Antiquity:
In order to be legally valid customs should have been in existence for a
long time, even beyond human memory. In England, the year 1189 i.e.
the reign of Richard I King of England has been fixed for the
determination of validity of customs.
Continuous:
A custom to be valid should have been in continuous practice. It must
have been enjoyed without any kind of interruption. Long intervals and
disrupted practice of a custom raise doubts about the validity of the
same.
Exercised as a matter of right:
Custom must be enjoyed openly and with the knowledge of the
community. It should not have been practised secretly. Acustom must be
proved to be a matter of right. A mere doubtful exercise of a right is not
sufficient to a claim as a valid custom.
Reasonableness:
A custom must conform to the norms of justice and public utility. A
custom, to be valid, should be based on rationality and reason. If a
custom is likely to cause more inconvenience and mischief than
convenience, such a custom will not be valid.
Morality:
A custom which is immoral or opposed to public policy cannot be a valid
custom. Courts have declared many customs as invalid as they were
practised for immoral purpose or were opposed to public policy.
Status with regard to:
In any modern State, when a new legislation is enacted, it is generally
preferred to the custom. Therefore, it is imperative that a custom must
not be opposed or contrary to legislation. Many customs have been
abrogated by laws enacted by the legislative bodies. For instance, the
customary practice of child marriage has been declared as an offence.

Precedent in Jurisprudence
JUDICIAL PRECEDENT AS A SOURCE OF LAW

In simple words, judicial precedent refers to previously decided

judgments of the superior courts, such as the High Courts and the
Supreme Court, which judges are bound to follow. This binding character
of the previously decided cases is important, considering the hierarchy
of the courts established by the legal systems of a particular country.
Judicial precedent is an important source of law, but it is neither as
modern as legislation nor is it as old as custom. It is an important feature
of the English legal system as well as of other common law countries
which follow the English legal system. In most of the developed legal
systems, judiciary is considered to be an important organ of the State. In
modern societies, rights are generally conferred on the citizens by
legislation and the main function of the judiciary is to adjudicate upon
these rights. The judges decide those matters on the basis of the
legislations and prevailing custom but while doing so, they also play a
creative role by interpreting the law. By this exercise, they lay down new
principles and rules which are generally binding on lower courts within
a legal system. It is important to understand the extent to which the
courts are guided by precedents. It is equally important to understand
what really constitutes the judicial decision in a case and which part of
the decision is actually binding on the lower courts.

Judicial decisions can be divided into following two parts:

Ratio decidendi (Reason of Decision):

Ratio decidendi’ refers to the binding part of a judgment. ‘Ratio
decidendi’ literally means reasons for the decision. It is considered as the
general principle which is deduced by the courts from the facts of a
particular case. It becomes generally binding on the lower courts in
future cases involving similar questions of law.
Obiter dicta (Said by the way):
An ‘obiter dictum’ refers to parts of judicial decisions which are general
observations of the judge and do not have any binding authority.
However, obiter of a higher judiciary is given due consideration by lower
courts and has persuasive value.