LAW OF TORTS AND

CONSUMER
PROTECTION ACT

Trespass
INTRODUCTION
 Torts affecting immovable property arise either by
disturbance or usurpation of the right to hold or
possess it,

 whether such disturbance or usurpation be present or

in expectation (e.g. trespass, dispossession);

 or by actual physical damage to the property (e.g.

waste); or by interference with,

 or impairing of, the enjoyment of it (e.g. nuisance).

TRESPASS TO LAND

 Trespass means ‘the wrongful disturbance of another

person’s possession of land or goods’. It signifies an
infringement or transgression of a right.

 In Entick v. Carrington (1765) 19 How St. Tr. 1066,

Camden, LCJ commented “By the laws of England,
every invasion of private property, be it ever so
minute, is a trespass. No man can set his foot upon
my ground without my licence, but he is liable to an
action, though the damage be nothing”.
 In Semayne’s Case, (1605) 3 Rep. 186, Lord Coke
observed:

“The house of everyone is to him as his castle and

fortress, as well for his defence against injury and
violence, as for his repose”.
KINDS OF TRESPASS

 Trespass may be committed are of two kinds:

 Entry on other’s land i.e. Treapss quare olasum

fregit;
 Taking another’s goods i.e. Trespass de bonis
asportatis.
TRESPASS TO LAND
 Trespass to land may be committed;

 1. By entering upon the land of the plaintiff, or

 2. By remaining there or

 3. By doing an act affecting the sole possession of the

plaintiff, in each case without justification.
1. BY ENTERING UPON THE
LAND OF THE PLAINTIFF
 The entry must be voluntary. If the defendant
consciously enters upon a land believing it to be his
own but which turns out to be of the plaintiff, he is
liable for trespass. However, if the entry is proven to
be involuntary then it is not trespass.

 Smith v. Stone, (1647) Style 65

If a person is thrown upon the land by someone else

i.e. his entry is involuntary, he is not liable. In such
situation, there is no act of entry at all by the
defendant.
 The presumption is that he who owns the surface of land
owns all the underlying strata. So an entry, beneath the
surface at whatever depth, is an actionable trespass at
the instance of the owner of surface. But is is possible
that the underlying strata may be in possession of a
different person.

 E.g. When mining rights are held by a person who is not

in possession of the surface.

 If the surface of the land is in possession of A and the

subsoil in possession of B, entry on the surface will be
trespass against A and entry in the subsoil will be
trespass against B.
 2. If a person who has lawfully entered on the land of
another remains there, after his right of entry has
ceased, he commits trespass.

 Minister of Health v. Bellotti, (1944) KB 298

A licensee whose license has been terminated or is

extinguished by expiry can be sued as a trespasser if
he does not vacate after request and lapse of a
reasonable time.
 Driving a nail into a person’s wall, Lawrence v.
Obee, (1815) 1 Stark 22

 Placing anything against plaintiff’s wall, Gregory v.

Piper, (1829) 9 B & C 591

 Planting trees in plaintiffs land, Muhammad Shafi v.

Bindeshri Saran Singh, (1923) ILR 46 All 52

 Placing any chattel upon plaintiffs land, Turner v.

Thorne, (1959) 21 DLR (2d) 29
 3. Every interference with the land of another is
deemed constructive entry and amount to trespass.
e.g. throwing stones or materials over a neighbour’s
land

 Abdul Gani v. Sadu Ram and Others, (1978) ILR 28

Raj 42

 Discharge of filthy water on plaintiff’s land from a spout

in defendant’s house is trespass.
AERIAL TRESPASS

 The owner of land is entitled to the column of air space

above the surface ad infinitum. The ordinary rule is
that whoever has got the solum-whoever has got the
site- is the owner of everything up to the sky and down
to the centres of the earth.

 In modern times, the owner’s right to air and space

above his land is restricted to such height as is
necessary for the ordinary use and enjoyment of his
land the structures on it.
 Kelson v. Imperial Tobacco Co. Ltd. (1957) 2 QB 334

 An advertising sign erected by the defendants projected

into the airspace above the plaintiff’s single storey shop.
The defendant argued that an invasion of super
incumbent airspace did not amount to a trespass, but
only to a nuisance.

 It was held that the projection into plaintiff’s airspace was

a trespass and not a mere nuisance, and granted a
mandatory injunction.
AIRCRAFT AND AERIAL
TRESPASS
 England

 Under the Civil Aviation Act, 1949, no action shall lie

in respect of trespass by reason only of the flight of
aircraft over any property at a height above the ground
which, having regard to wind, weather and all the
circumstances of the case, is reasonable, or of the
ordinary incidents of such flight so long as certain
provisions of the Act or nay orders made there under
are observed.
 It further provides that where material loss or damage
is caused to any person or property on land or water
by, or by a person in, or an article or person falling
from, an aircraft while in flight, taking off or landing,
then unless the loss or damage was caused or
contributed to by the negligence of the person by
whom it was suffered, damages in respect of the loss
or damage shall be recoverable without proof of
negligence or other cause of action as if the loss or
damage had been caused by the wilful act, neglect or
default of the owner of the aircraft.

 The Act does not apply to aircrafts in the service

of Her Majesty.
 India

 The Indian Aircraft Act, 1934: - Section 17 provides

that no suit shall be brought in respect of trespass or
nuisance, by reason only of the flight of aircraft over any
property at a height above the ground which having
regard to wind, weather, and all the circumstances of the
case is reasonable, or by reason only of the ordinary
incidents of such flight.

 The Act provides that whoever flies so as to cause

damage to person or property may be punished with
imprisonment for six months or a fine of Rs. 1,000 or
with both.
CHARACTERISTICS OF
TRESPASS
 The following are the main characteristics of the tort
constituting trespass:

 1. It is an interference with the sole or exclusive possession

of another without lawful justification.

 Harrison V. Duke of Rutland, (1893) 1 QB 142

A public road is to be used only as a passage. A person
using it for other purposes like loitering commits trespass.

 Force is not necessary in trespass. The slightest physical

contact with the plaintiff’s property is sufficient. Nor is it
necessary to prove it s actual damage nor malice nor
negligence on the part of the trespasser.
 2. Trespass is actionable per se.

 To sustain the action, no need to prove damage. If the

entry is intentional, it is actionable even though made
under an inevitable mistake of law or fact.
 3. Trespass ab initio.

 Where a person enter upon the land of another under

authority of law and is subsequently guilty of an abuse
of his authority by an act of misfeasance, his
misconduct relates back so as to make his original
entry tortuous, and he is liable in damages, not only
for the entry itself, but all subsequent acts.
 Two conditions must be satisfied before applying
the doctrine of trespass ab initio.

 1. The authority to enter must have been given by law

or statute and not by an individual;

 2. The subsequent act must be misfeasance i.e. a

positive wrongful act.
 Six Carpenters Case, (1610) 8 Co. Rep. 146a

 The proprietor of an inn brought an action for trespass

against six carpenters who, having entered the inn and
ordered a quart of wine and drank it, refused to pay for
it. The questions was whether in such circumstances
their failure to pay for the wine could be treated as a
misfeasance which would make the original entry into
the inn unlawful as a Treapss.

 It was held that a man was not liable for trespass ab

initio by reason of his failure to pay for food an d wine
consumed at an inn.
 Three points were laid down:

 that if a man abuses an authority given to him by law,

he becomes a trespasser ab initio;

 that in an action for trespass, if the authority be

pleaded, the subsequent abuse may be replied;

 that a mere non-feasance does not amount to such an

abuse as renders a man trespasser ab initio.
 Elias v. Pasmore, (1934) 2 KB 164

 In order to effect the arrest of a person, the defendants,

police officers, entered the plaintiffs premise. They
seized and carried away documents found on the
premises, out of which some documents constituted
evidence on the trial of the person arrested but there
were others which did not so constitute and were
subsequently returned.

 In an action for trespass it was held that the defendants

were only trespassers ab initio as to the documents that
were seized and returned, but not as to land.
 Candian Pacific Wine Co. v. Tuley, (1921) 1 AC 417

 If police officers enter the premises for a lawful arrest

and afterwards seize books, papers, and money which
could not be lawfully seized, they do not become
trespassers ab initio.
 Brojendra Kissore Ray Choudhuri v. M.A.
Luffeman, (1908) 12 CWN 982

 The Calcutta High Court held that where there is an

authority given by law for doing an act, then an abuse
may (not necessarily must) turn the act into a trespass
ab initio. If a police officer, whilst lawfully conducting a
search, assaults some person on the premises, his
entry on the premises does not necessarily become
unlawful from the outset.
REMEDIES

 The person whose land is trespassed upon may-

 bring an action for trespass against the wrongdoer;

 forcibly defend his possession against a trespasser;
 forcibly eject him.
DEFENCES
 Following defences may be available in an action for
trespass.

 1. Exercise of easement and prescription

 A defendant may plead that he was justified by reason

of prescription, as by showing a right of common, or
right of way over the land; or that his right of way was
wrongfully obstructed by the plaintiff, and the trespass
was necessary to avoid it. [Marshall v. The
Ulleswater Company, (1871) LR 7 QB 166; Bourke
v. Davis, (1899) 44 Ch 110]
 2. Leave and License

 A licence only makes an action lawful which without it

would be unlawful. It may be express or implied.

 E.g. inviting someone for a party by sending a

invitation card is express license, whereas entry into a
shop or public house is implied license.
 Hurst v. Picture Theatres Limited, (1915) 1 KB 1

 The plaintiff had purchased a ticket for a seat at a

cinema show. He was forcibly turned out of his seat by
the manager under a mistaken impression that he had
not paid for his ticket. It was held that the plaintiff was
entitled to recover substantial damages.
 Winter Garden Theatre Ltd. v. Millenium
Productions Ltd. (1948) AC 173 (HL)

 When the license is granted for a specific period for a

specific purpose, it may imply a contract not to revoke
arbitrarily before the expiry of the period and the Court
may prevent premature revocation by an injunction.
 3. Acts of Necessity

 Entry on the land of another person, without his

consent, is justifiable on the ground of necessity.


 Putting out fire, Cope v. Sharpe, (1912) 1 KB 496

 4. Self-defence

 A trespass may be excused as having been done in

self-defence, or in defence of man’s goods, chattels,
or animals.
 5. Authority of Law

 Entry under a legal process is justifiable.

 Hutchison v. Birch, (1812) 4 Taunt 619

 An officer cannot break the outer door without a

demand; but after he has entered the house in which
the person or the goods of the defendant are
contained he may break open any door within the
house without any further demand.
 Eagleton v. Gutteridge, (1843) 11 M & W 465

 If the officer is forcibly ejected, after he has peaceably

obtained entrance by the outer door, he may break
open the door to re-enter.
 Semayne v. Gresham, (1604) 5 Coke 91

 Two men, B and G, lived together in a house at Black

friars as joint-tenants. B contracted heavy debts; and
one of the largest and pressing of his creditors was
Semayne, to whom he acknowledged a recognizance
in the nature of a Statute staple. In these
circumstances B died, and by right of survivorship, the
ownership of the house became vested in G. in that
house were diverse goods of B, and to these, in virtue
of the Statute staple, Semayne not unreasonably
considered himself entitled.
 Accordingly, he instructed the sheriffs of London to do the
best for him and these persons, armed with a proper writ,
set off for Blackfriars. But when they came to the house, G,
who had come to know of this, shut the door in their faces,
whereby they could not come and extend the same goods,
disturbing the execution.

 In an action brought by Semayne it was held that G had

done nothing wrong in locking the front door, and that,
even when the King is a party, the house holder must be
requested to open the door before the sheriff can break his
way in.
 6. Re-entry on land

 A person who is wrongfully dispossessed of land may

retake possession of it if he can do so peaceably and
without the use of force. He will not be liable in an
action for trespass to land.
 Hemmings v. Stoke Poges Golf Club, (1920) 1 KB
720

 If an owner of landed property finds a trespasser on

his premises, he may enter the premises and turn the
trespasser out, using no more force than is necessary
to expel him, without having to pay damages for the
force used.
 Section 6 of the Specific Relief Act, 1963 and the
Bombay Mamlatdars’ Courts Act, 1906 (in the states
of Maharashtra and Gujarat), if one in possession of
immovable property is disposed, otherwise than by
due course of law, he may, within six months, sue to
recover possession without reference to any title set
up by another, which is left to be determined in a
separate action.
 7. Re-taking of goods and chattels

 If a person takes away the goods of another upon his

own land, he gives to the owner of them an implied
license to enter for the purpose of reception.
 Anthony v. Haney, (1832) 8 Bing 186

 If the goods are on the land of another in pursuance of

a felonious act of third person, the entry will be
justifiable. But it will be otherwise, if the goods or
chattels are on the land of another owing to some
negligence or wrongful act of the owner himself.
 8. Abating a nuisance

 Abatement means removal of the nuisance by the party

injured. It is justifiable provided:

 It must be peaceable,

 without danger to life or limb and

 after notice to remove the same, if it is necessary to

enter another’s land to abate a nuisance, or where the
nuisance is a dwelling house in actual occupation or a
common, unless it is unsafe to wait.
 Lemmon v. Webb, (1895) AC 1: Putraya v. Krishna
Gota, (1934) 40 MLW 639

 The occupier of land may cut off the overhanging

branches of his neighbour’s trees, or sever roots which
have spread from these trees into his own land.
 Someshwar v. Chunilal, (1919) 22 Bom LR 790

 One cannot cut the branches if the trees stand on the

land of both parties.

 As per Section 36 of the Easements 1882, the

dominant owner cannot himself abate a wrongful
obstruction of an easement.
 Raghuwath Patnaik v. Dullabha Behera, ILR 1951
Cut 522

 Where the roots of trees originally planted by

defendants in their own land had penetrated into
plaintiff’s land wherefrom fresh trees had sprung up
and the defendants cut and removed such trees from
plaintiff’s land, it was held that where the roots of a
tress extended into the lands of both owners and the
tree derived its nourishment from soils of both, it
became the common property of both though it might
actually stand on the land of one of them and
consequently the plaintiff was entitled to half of the
value of the trees cut and removed by the defendants.
DISPOSSESSION
 Dispossession or ouster is wrongfully taking
possession of land from its rightful owner.

 One must understand every trespass does not amount

to dispossession.
 Gobind Lall Seal v. Debendronath Mullick, (1880)
ILR 6 Cal 311

 The word ‘dispossession’ applies only to cases where

the person in enjoyment of land has, by the act of
some person, been deprive altogether of his dominion
over the land itself or the receipt of its profits.
 Sudhir Jaggi v. Sunil Akash Sinha Choudhary,
(2004) 7 SCC 515

 Possession implies a right and a fact. It involves power

of control and intention to control. The test for
determining whether a person is in possession is
whether he is in general control of it.
 Remedy

 The party dispossessed can bring an action to recover

possession of the land.
 Defence

 The defences to suits under Section 5 of the Specific

Relief Act, 1963 are mainly two-fold: -

 that the defendant has a better title than the plaintiff;

 Prescription
TORTS RELATING TO MOVABLE
PROPERTY
 Torts affecting movable property are:

 Trespass to goods,
 Trespass ab initio,
 Detention or detinue,
 Conversion or trover.
A. TRESPASS TO GOODS
 Technically, trespass to goods is known as trespass
de bonis asportatis.

 It means an unlawful disturbance of the possession of

the goods by seizure or removal or by direct act
causing damage to the goods.
 Trespass to goods is also actionable per se i.e.
without proof of damage.

 But when the plaintiff has suffered no loss, he

will be awarded only nominal damages.
FORMS OF TRESPASS TO GOODS
 1. Taking the thing away from the plaintiff’s
possession i.e. asportation. This would amount to
crime of theft or larceny, if a dishonest intent was
present and to robbery if it was forcible.

 2. Direct application of force.

e.g. Killing or injuring an animal, or defacing a work
of art . Damage is not essential, and even the
slightest application of force like touching is
wrongful.
ESSENTIALS OF TRESPASS TO
GOODS
 The plaintiff must show:

 1. That he was in possession, actual or constructive,

of the goods.

 The Winkfield, (1902)

 Ship M was sunk due to the negligent management of

ship W. In claim by the Postmaster-General against
ship W, for loss of mails aboard M. It was held that
though the Postmaster General was no more than a
bailee of the mails, he could recover.
 2. That his possession has been wrongfully disturbed.
The fact that the trespass was unintentional is no
ground of defence.

 P.A. Jacob v. Nanda Timber Trading Co. AIR 1990

Mad 140

 It was alleged by the plaintiff that the defendants had

unlawfully removed timber logs belonging to the
plaintiffs. The defendants wrongly claimed the timber
and firewood covered by Forest Department passes
as their own. The defendants have denied the right of
the plaintiff and set up title in themselves knowing well
that they had no title to the property.
 It was held that it is well settled rule that any person
when he unlawfully interferes with the exercise of
property rights of another commits an ct in the nature
of trespass to the property, he is liable in an action for
trespass without proof of malice or want of reasonable
or probably cause.

 Damages were awarded to the plaintiff.

DEFENCES TO AN ACTION FOR
TRESPASS TO GOODS
 1. Self defence of property: -

 if a person has actual possession of goods and

another wrongfully attempts to take the same from
him, he is justified in using such force as may be
necessary for the purpose of defending his own
possession.
 2. Exercise of ones absolute or relative rights: -

 Seizing the goods of another under a lawful distress

for rent, damage feasant, is lawful.
 3. Obedience to some legal or personal
authority: - Such authority may be distress,
execution of legal process, abatement of nuisance,
abatement of sale by the owner.

 4. Negligent or wrongful act of the plaintiff

himself: - If a person places his horse or cart so as
to obstruct the right of way, it may be removed even
by applying force for that purpose.
 5. Recaption: -

 It is the retaking by the lawful owner of goods of

which he has been wrongfully deprived. The owner
may justify an assault in order to re-possess them.
 6. Jus Tertii: -

 When a person who is prima facie liable to another

on being sued by him, sets up a defence that the
paramount title is vested in a third person, he is said
to set up jus tertii (right of a third person).

 The general rule is that a wrong doer cannot set up

jus tertii the right of possession outstanding in some
third person, as against the fact of possession in the
plaintiff.
 7. Estoppel: -

 Estoppel is an admission, or something which the

law treats as an equivalent to an admission, of so
high and conclusive a nature that any one who is
affected by it is not permitted to contradict it.

 In other words, it is an impediment or bar to a right of

action arising from a man’s own act; or where he is
forbidden by law to speak against estopped to allege
or speak the truth.
 For instance, a bailee is prima facie estopped as
between himself and the bailor from disputing the
bailor’s title.

 The true basis of the bailor’s right to sue in trespass

and trover is his position as the person in possession
and had no reference to his liability to the bailor.
 8. Rightful claim: -

 The defendant may plead that the goods belonged

to him.
B. TRESPASS AB INITIO
 A person who lawfully takes a chattel , but afterwards
abuse or wastes it renders himself liable for trespass
ab initio.

 The plaintiff must show: -

 that he was in possession (actual or constructive) of

the goods;

 that his possession has been wrongfully disturbed.

C. DETENTION OR DETINUE
 Detention or detinue means withholding of the goods of
another. In an action for detinue, the plaintiff must prove:

 That he has special and general property in the goods and

right to the immediate possession thereof.

 That the defendant is wrongfully detaining it.

 E.g. A, a bailee, wrongfully refused to restore, B’s property,

lent to him. A is liable in an action to return the goods lent to
him amounted to wrongful detention without lawful
justification, which gave rise to an action for detinue.
 In England, the action for detinue has been abolished
by “Tort (Interference with Goods) Act, 1977” which
retains the wrongs to trespass and conversion.
 Distinction between trespass to goods and detinue

 An action for detinue may be distinguished from

trespass. In an action for detinue the defendant
assumes the possession of goods whereas there
could be a trespass to the goods while the same
continue to be in the possession of the plaintiff.
 Banshi v. Goverdhan, AIR 1976 MP 125

 The Madhya Pradesh High Court held that detinue

consists in wrongful detention of the possession of
movable property even though the original possession
may be lawful. Thus a bailee is liable in detinue if
holds over after the bailment is determined.
DEFENCES/JUSTIFICATION
 In an action for detinue the defendant can plead
successfully his lien on the goods.

 A lien on the goods by the defendant is a good

defence.
REMEDY
 Damages

 Rosenthal v. Alderton and Sons Ltd. (1946) 1 KB

374
 In an action for detinue the value of the goods to be
paid by the defendant to the plaintiff in the event of
failure to return it to him is to be so assessed as at the
date of the verdict or judgment and not at that of the
defendant’s refusal to return goods; and the same
principle applies whether the defendant has converted
the goods by selling them or has refused to return
them for some other reason.
 General and Finance Facilities Ltd. v. Cooks Cars
Ltd. (1963) 2 All ER 314

 A successful plaintiff in an action for detinue entitled to

have assessed separately, i. the value of the chattel at
the date of assessment, ii. the damages up to the
date.
 Dhian Singh v. Union of India, AIR 1958 SC 274

 In an action for wrongful detention the plaintiff is

entitled besides the redelivery of the chattel on
payment of its value in the alternative, also to
damages for such wrongful detention.
D. CONVERSION OR TROVER
 Conversion is the wrongful taking, or using or
destroying of the goods, or an exercise of dominion
over them inconsistent with the title of the owner.

 In short, a person who treats goods as if they were his

own when they are not, is liable for conversion.
 In an action against conversion, the plaintiff must
prove at the time of the defendant’s act he had:

 ownership and possession of the goods; or

 possession of them, or

 an immediate right to possess them.

 But without either ownership or actual possession,
there could be no conversion in law unless the
defendants interfered with the plaintiff’s possessory
right.
 To constitute conversion, two ingredients are required:

 A wilful interference with the chattel, inconsistent with

the rights of the persons entitled to it. It must be shown
that the trespass to the goods has amounted to
deprivation of possession to such an extent as to be
inconsistent with the right of the owner;

 In such interference an intention to deny things must

be evident.
 Fouldes v. Willoughby, (1841) 9 M & W 540

 A ferryman wrongly refused to carry the plaintiff’s

horses an on the plaintiff’s refusal to disembark them
did so himself, the plaintiff remaining on board. This
was held not to be conversion, because it was not
exercising over the horses any right which the plaintiff
had in them.
 Paramananda Mohanty v. Bira Beharea, AIR 1978
Orissa 114

 A person in possession the defendant cannot take the

defence of Jus tertii.
 Armory v. Delamirie, (1721) 1 Str. 505

 The defendant cannot take advantage of the fact that

the third person has a better title to the goods than the
person in possession.
 Roop Lal v. Union of India, AIR 1972 J & K 22

 Some military men, who found some fire wood lying by the
side of the river, took away the wood under the impression
that it belonged to the Government. The wood was used for
campfire and fuel.

 The plaintiff who was the real owner of the woods brought a
suit against the Union of India for the tort of conversion by its
servants.

 It was held that the fact that the Union of India was liable to
compensate the plaintiff for the loss.
MODES OF CONVERSION
 1. When the property is wrongfully taken possession of

 Anyone who, without authority, takes possession of

another man’s goods with the intention of asserting
dominion over them is liable for conversion.

 Belvoir Finance Co. Ltd. v. Stapleton, (1971) 1 QB 210

 The plaintiff Finance company bought a car from a dealer

and let it on hire-purchase to defendant’s employer. The
contract of sale and hire-purchase, both were illegal. The
defendant sold the car on behalf of the employer. It was
held that he was liable for conversion.
 2. when the property is wrongfully parted with.

 If a man, who is entrusted with the goods of another,

hands over goods to another so as to give him some
right over the property itself, whether as owner or
‘dominous protemper’. It amounts to conversion.

 E.g. Misdelivery by a carrier will amount to conversion.

 Dhian Singh v. Union of India, AIR 1958 SC 274

 Every person is guilty of conversion, who without lawful

justification deprives a person of his goods by delivering
them to someone else so as to change the possession.

 Paramananda Mohanty v. Bira Behaera, (1887) 19 QBD

68

 The plaintiff was a lessee of a tank of fishing belonging to

the Gram Panchayat. After the expiry of plaintiffs lease the
defendants caught and removed the fish from the tank with
the permission of the Gram Panchayat. The defendant held
not liable for conversion.
 3. When the property is wrongfully sold

 The man who howsoever innocently obtains possession of

the goods of a person who has been fraudulently deprived
of them, and disposed of them, whether for his own benefit
or that of any other person.

 Lancashire Waggon Co. v. Fitzhugh, (1861) 6 H & N 502

 The auctioneer who gets possession of the articles sent to

be sold by him for the purpose of sale, and wrongfully sells
them is liable to the true owner. Sale in this type of
conversion should be in open market.
 4. When the property is wrongfully detained

 Conversion may be committed by detention, if the

detention is adverse to the right of the person entitled
to possession.

 e.g. a bailee refuses to return chattel to the bailor on

demand.
 5. When property is wrongfully destroyed

 Wilful destruction of a chattel, or wilful and wrongful

damage to it, whereby the owner is deprived of the
use of it in its original state, is a conversion of it.
 6. Where there is a denial of the lawful owner’s title

 There may be conversion of goods, even though the

defendant has never been in actual physical
possession of it, if his act amount to absolute denial
and repudiation right of the plaintiff.
REMEDIES

 Recaption

 Order of restoration of property

 Suit for damages

DEFENCES IN AN ACTION FOR
CONVERSION

 1. Lien:

 Either, general or particular, that is lien of a solicitor,

carrier, vendor, in keepers.
 2. Right of Stoppage in transit

 Vendor’s right of stoppage in transit which means

when an unpaid seller has parted with the possession
of goods he has a right of stopping them in transit
when the buyer of goods becomes insolvent.
 3. Execution of the legal process
 Warrant of attachment of the goods of a judgement-debtor

 4. Sale in market overt

 In market overt the property passes to the purchaser by
sale because in England such a sale operates to transfer
the title, it is equivalent to physical destruction. The
purchaser in such case cannot be sued for conversion,
though the seller can be.

 In India, Section 108 of the Indian Contracts Act will

apply where a person sells goods to which he has no
title.
 5. Distress: goods where taken under distress or in
execution of a decree
TORTS AGAINST BUSINESS
INTERESTS
 Torts arising out of false representation relating to the
plaintiff’s right to immovable or movable property have
been compendiously characterised by Sir John
Salmond as “injurious Falsehood” which may be
“Slander of Title” or “Slander of Goods”.

 Torts of injurious falsehood may be divided as

 a. Fraud or Deceit
 b. Slander of Title
 c. Slander of Goods
 d. Passing Off
A.FRAUD OR DECEIT
 Fraud means “false representation of the fact made
with the knowledge of its falsehood or without
belief in its truth, or reckless statement whether it
be true or false, with intent to induce a person to
act in reliance upon it with the result that the
person acts on it and suffers damage”.
ESSENTIALS OF THE TORT OF
DECEIT

 1. False Statement of Facts

 2. The statement must be made with knowledge of its

falsity or recklessness

 3. The plaintiff must rely and act on the statement

 4. The plaintiff acted upon the statement and suffered

damage in consequence.
 1. False statement of facts

 A particular statement verbally accurate may be false

statement in effect as if the fact had been mis-stated
altogether.
 S. Chatterji v. Dr K. I. Bhave, AIR 1960 MP 323

 A misrepresentation may be implied from a party’s

conduct if one conducts himself in a particular way
with the object of fraudulently inducing another to
believe in the existence of a certain state of things
contrary to the true fact and to act upon the basis of its
existence and damage results therefrom to the party
misled, he who misled him will be just as much liable
as if he had misrepresented the fact in express terms.
 Palsey v. Freeman, (1789) 3 TR 51
 The plaintiff was dealing in cochineal and at the time when
the cause of action arose had a large stock at hand which
he was anxious to dispose of. The defendant learning this
told the plaintiff that he knew one Falch who would
purchase the cochineal.

 The plaintiff said: “Is he a respectable and substantial

person?” “Certainly he is” answered the defendant, well
knowing that he was not. On the faith of his representation
the plaintiff gave to Falch 16 bags of cochineal of the
value of about 3,000 sterling pound on credit.
 Upon the bill becoming due it turned out that Falch
was insolvent, and being unable to recover his money
from Falch, the plaintiff sued the defendant for making
to him a false representation whereby he was
damnified and it was held that the defendant was
liable to the plaintiff to the extent he had suffered in
consequence of the former’s false statement as to the
credit and character of Falch.
 2. Knowledge of falsity or recklessness

 The defendant either knew it to be false, or made it

without belief in its truth or was reckless whether it
was true or not.
 Derry v. Peek, (1889) 14 AG 337

 An act incorporating a tramway company provided that carriages

might be moved by animal power and with the consent of the
Board of Trade, by steam power. The directors issued a
prospectus containing a statement that the company had the right
by the Act to use steam power instead of horses.

 The plaintiff took shares on the faith of this statement. The board
of trade refused their consent to use steam power and the
company was wound up.

 In an action against the directors for false statement, it was held

that they were not liable for the misrepresentation as they honestly
believed the statement to be true although they were guilty of
some carelessness in making it.
 3. Acting on the statement

 Where the defendant made the representation with intent

that the plaintiff should act upon it.

 Langridge v. Levy, (1837) 2 M & W 519

 The defendant sold a gun to the father of the plaintiff for

the use of himself and his sons, representing that the gun
was made by a well known maker and safe to us, the son
used the gun which exploded injuring his hand. It was held
that the defendant was liable to the son, not on his
warranty for there was contract between them, but for
deceit.
 4. Damage by acting on the statement

 That the plaintiff acted in reliance on the statement

and suffered damage in consequence. No action will
lie for a false statement unless the plaintiff, in fact
relies upon it.
 George v. Skivington, (1869) LR 5 Ex. 1

 The plaintiffs, husband and wife, alleged that the

defendant, in the course of his business, professed to
sell a chemical compound represented by him to be
used for a hair wash. The husband thereupon bought
a bottle of the hair wash which was used by the wife,
who was injured by the wash. It was held that there
was a good cause of action.
 Denton v. G.N. Rly. Co. (1856) 5 E & B 860

 Where a train which had been taken off was

announced as still running in the current time-table of
a railway company, this was a false representation,
and a person by relying on it had missed an
appointment and incurred loss, was held to have an
action for deceit.
B. SLANDER OF TITLE
 It may be defined as “a false, fallacious statement in
writing, printing or by words, injurious to any persons
title to property, whether movable or immovable, and
causing a damage to such person”.
 Barret v. Associated Newspapers, (1907) 23 T & R
666

 A makes a false statement that B’s house which he is

proposing to sell, was haunted. It amounts to slander
of Title.
 To sustain an action for slander of title, the plaintiff must
prove:

 1. That the statement, whether oral or written, is false.

 2. That there was a publication of the false statement, or

representation by the defendant

 3. That the statement was made mala fide and was malicious.

 4. That the words go to defeat his title of property.

 5. That special damage has resulted from slander.

C. SLANDER OF GOODS
 This is also called as ‘trade libel’.

 It may be defined as “consisting of a false statement,

disparaging man’s goods published maliciously, and
causing him special damage”.

 e.g. Mr A makes false statement that B’s goods are in

infringement of C’s trade mark and warns B’s
customers not to buy them. A is liable to B in an action
for slander of goods.
 To maintain an action for slander of goods, it is necessary
to prove:

 1. That the defendant disparaged the plaintiff’s

goods.

 White v. Millin, (1893) AC 154

 The defendant was charged with having made a
statement that his food for infants was more nutritious
than any preparation yet offered in the market. It was held
that his statement would not support a cause of action,
since it was merely a piece of puffery, intended more to
promote the sale of defendant’s than to disparage the
plaintiff’s food.
 2. That such disparagement is false.

 3. That there was publication of such disparagement.

It was in writing or by word of mouth.

 4. That the disparagement was made maliciously.



 5. that a special damage has resulted thereby.

D. PASSING-OFF

 It means a false representation tending to deceive

purchasers into a belief that the goods which
defendant is selling, are really the plaintiffs.

 The object of tort of passing off is to protect the

commercial goodwill; to ensure that people’s business
reputations are not exploited.

 The underlying philosophy of the tort of passing off is

that “no man can have any right to present his goods
as the goods of somebody else”.
 The plaintiff must prove the following to make one
liable of tort of passing off:

 1. That his goods were known to the public by some

distinctive name, mark, get up, appearance, or badge.

 2. that the defendant made representation, spoken or

written, by word of mouth or by conduct of others.
 3. that the defendant’s use or initiation of the name,
mark was likely to mislead the public into believing that
the defendant’s goods were the plaintiffs.

 4. that defendant’s conduct complained of was

calculated, or is likely in ordinary course of business,
to deceive or mislead the public, at least unwary or
incautious, if not the intelligent or careful purchaser.
 Ellora Industries, Delhi v. Banarsi Das, AIR 1980 Delhi
254

 The plaintiff was the manufacturer of watches under the

registered trade mark of Elora. The defendant also
manufactured watches under the trademark of “Grayon” but
their business name was “Ellora Industries” used
conspicuously by them in advertisements as part of their
business name.

 It was held to be a case of passing off and of infringement of

registered trademark of plaintiffs.
REMEDIES FOR PASSING-OFF

 1. an injunction

 2. Damages

 3. an account of profits.
 Thank You!