THE INTERPRETATION OF STATUTES

Topic: - A Comprehensive analysis on Presumption

as to Jurisdictions
Class Teacher

NAME: BONNY BASAK

ROLL NO.: 44
COURSE:LL.B. 3 YEARS (3RD SEMESTER)

INDIAN INSTITUTE OF LEGAL

STUDIES
2017
 ACKNOWLEDGEMENT

With profound gratitude and sense of indebtedness I place on record my sincerest

thanks to Miss Rupa Pradhan, class teacher in Law, Indian Institute of Legal Studies,

for his guidance, sound advice and affectionate attitude during the course of the study

work.

There is no hesitation in saying that she molded raw clay into whatever we are

through his incessant efforts and keen interest shown throughout the academic pursuit.

It is due to his patient guidance that I have been able to complete the task.

I would also thank the Indian Institute of Legal Studies Library for the wealth of

information therein. I express my regards to the Library staff for cooperating and

making available the books for this project research paper.

Finally, I thank my beloved parents for supporting me morally and guiding me

throughout the project work.

Date:
_____________________

BONNY BASAK
LL.B (3rd Semester) Roll No: 44
 TABLE OF CONTENTS
___________________________________________________________
Research Methodology....4 - 5
A. Aims and Objectives..4
B. Statement of Problem...4
C. Research Hypothesis..4
D. Research Questions....4
E. Methodology of Research..5
F. Scope and Limitations..5
G. Review of Literature...5
Table of Cases..6

Chapter 1: Introduction7

Chapter 2: Essential of gift(Hiba) 8 -

10

A declaration by the donor .8

Capacity ...9
Right .9
Chapter 3: Acceptance by the donee
..11

Two or More Donees

.11
Chapter 4 Delivery of possession by the donor and taking of the possession by the
done.12

Actual Delivery of Possession ..12

Constructive Delivery of Possession...12
Chapter 5: Revocation of gifts before the delivery of possession..13

Revocation after the delivery of possession..13

Chapter 6: Conclusion.14

BIBLIOGRAPHY.
 RESEARCH METHODOLOGY
___________________________________________________________
A. AIMS AND OBJECTIVES
The aims and objectives of this project are to understand the concept and the principle
of presumption as to jurisdiction. One of the aims of the project is to have a
comparative study on the condition for presumption as to jurisdiction of Interpretation
of Statute.

B. STATEMENT OF PROBLEM

Muslims are lay high importance on providing care and protection for Gift (hiba)
under Muslim Law. Withering of joint family system has contributed to the challenges faced
by elderly. Nowadays they are forced to live alone and are exposed to various kinds of
problems such as lack of physical, social, emotional and financial support. To overcome such
difficulties and to face new challenges, the Government of India has enacted this law in the
fifty- eighth year of republic so as to provide maintenance and protection to parents and
senior citizens.

C. RESEARCH HYPOTHESIS
Research in common parlance refers to a search for knowledge. It is an original contribution
to the existing stock of knowledge making for its advancement. It is the pursuit of truth with
the help of study, observation, comparison and experiment. In short, the search for
knowledge through objective and systematic method of finding solution to a problem is
research. This research work is an attempt to distil lessons from the presumption as to
jurisdiction under Interpretation of statutes.

D. RESEARCH QUESTIONS
Based on the statement of problem and research hypothesis aforementioned, the following
research questions have been formulated:

1. What is the concept of gift (hiba) under Muslim Law?

2. Is the gift (hiba ) valid without the delivery of possession?

3. What is the condition when acceptance done by the donee?

 4. What is the essential condition for a valid gift (hiba)?

E. METHODOLOGY OF RESEARCH

Methodology implies more than simply the methods the researcher used to collect
data. It is often necessary to include a consideration of the concepts and theories
which underlie the methods. The methodology opted for the study on the topic is
Analytical and Doctrinal. Doctrinal research in law field indicates arranging, ordering
and analysis of the legal structure, legal frame work and case laws by extensive
surveying of legal literature but without any field work.

F. SCOPE AND LIMITATIONS

The scope of the study refers to the parameters under which the study is operating. An
extensive attempt has been made in order to search for the quest with regard to the topic
under this paper. Though there is ample scope to highlight on the principle of good faith and
duty of disclosure according to different Statutes, but the scope of research work is limited to
a particular area in search of answer. Therefore, the researcher confines to the materials
which are available and widely accepted.

G. REVIEW OF LITERATURE
The researcher while writing this project has taken recourse to various primary and secondary
sources. Primary sources would include various laws. Secondary sources would include
books and articles, reports and websites.
 TABLE OF CASES

Smt Hussenabi v Husensab Hasan

Samsuddin v. Jaitunbi Maqbul
Hesabuddin v Md. Hesaruddin
Maimuna Bibi v. Rasool Mian
Noor Jahan v. Muftkhan, AIR (1970)
Alimonassa v. Sudhir Chandra De, AIR (1991)
 Chapter-1

Introduction

Statutory interpretation is the process by which courts interpret and

apply legislation. Some amount of interpretation is often necessary when a case
involves a statute. Sometimes the words of a statute have a plain and
straightforward meaning. But in many cases, there is some ambiguity or vagueness in
the words of the statute that must be resolved by the judge. To find the meanings of
statutes, judges use various tools and methods of statutory interpretation, including
traditional canons of statutory interpretation, legislative history, and purpose.
In common law jurisdictions, the judiciary may apply rules of statutory interpretation
both to legislation enacted by the legislature and to delegated legislation such as
administrative agency regulations.

Presumptions in interpretation are guidelines used by courts in the process of

interpretation. Presumptions are more like conclusions. Some say that presumptions
are only used if there are any ambiguities in language.1

But Cross says even if there are no ambiguities, presumptions can be used by
judge2.The courts can make certain presumptions/assumptions about the Law.
However if the statute clearly states the opposite to the presumption, it is void.

Presumptions are made by certain assumptions made by the Courts. They are
used only as a starting point. If they are disapproved then it is said the presumption
is rebutted.

There are certain presumptions in the field of interpretation. These are as

under:

1. Maxwell, The Interpretation of Statues, 12th Edition, p-86

 2. Maxwell, The Interpretation of Statues, 12th Edition, p-87

Chapter-2

Presumptions against ouster of established jurisdiction, creation of new

jurisdictions and enlargement of existing jurisdiction of Courts. 3

There is a strong presumption that a statue should not be given such an

interpretation as takes away the jurisdiction of the courts unless the language of the
statue unambiguously so states. Perhaps this presumption originated in the ancient
times when the emoluments of the judges depended mainly of fees and
consequently there were a large number of contests between the courts about
jurisdiction.4

In K.R Rashid V. Income Tax Investigation Commission AIR 1954 SC 207 5

The Supreme Court held that the Punjab High Court has jurisdiction to issue writ to
the Investigation Commission in Delhi investigating under Section 5 of the Taxation
of Income (Investigation Commission) Act 1947 the case of the petitioners, who were
the assesses within the State of Uttar Pradesh and whose original assessments were
made by the Income Tax authorities of that State, even though subsequent
proceedings, which would have to be taken in pursuance of the report of the
Investigation commission would have to be taken by the income Tax authorities in
Uttar Pradesh , and if a case would have to be stated, it would has to stated to the
High Court at Allahabad. The question of the jurisdiction to issue writs by the High
Court, even though another remedy is available to the petitioner, came up for
consideration in

3. T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-202

4. Scott v. Avery, (1856) 5 H.L. Cas. 811
5. T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-205
 veluswami v. Raja Nainar AIR 1959 SC 4226, The Supreme Court held that the
jurisdiction of the returning officer in hearing objections to nomination papers is
defined in Section 36 (2) of the Representation of People Act, 1951 and the
tribunal must, therefore, have jurisdiction to decide all questions which could
have been raised was not, in fact raised before the returning officer does not put
an end to his jurisdiction to decide it, and what he could have decide if it had
been raised, could be decided by the tribunal when raised.

The court further observed that the jurisdiction of a tribunal in election

petitions even it raises a question under section 100 (1) (c) is not in the nature of
an appeal against the decision of the returning officer. An election petition is an
original proceeding instituted under section 81 of the Act and the provisions of
the Code of Civil Procedure, 1908 regulated the trial of the tribunal is undoubted;
but then, it is well settled that where there is another remedy provided, the court
may properly exercise its discretion in declining to interfere under Article 226 of
the Constitution.

6.
T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-209
 Chapter-3

Presumption against of violation of International Law7

A statue will not be so interpreted generally as to be inconsistent with

established rules of international law if the court feels that it is in conflict with
international law, the court will try not to g8ive effect to such an interpretation, as
far as possible. But if the language of the statue is clear and unambiguous, the court
has no option but to construe it in its normal sense even though such an
interpretation clashes with international law. The basis of the presumption against
conflict with international law seems to be that the legislature of a nation has a
limited ambit as compared to the sphere of international law. If there are more than
one possible reasonable construction of a statue one of which is in consonance with
international law, the court will generally be inclined to accept that construction
unless there are compelling reason to interpret otherwise. A reference to Article 51
(c) of the Constitution can be made here according to which the State shall
endeavour to foster respect for, international law and treaty obligations in the
dealings of organised people with one another.

In Kesavananda Bharthi v. State of Kerala AIR 1973 SC 14618

Sikri, C. J. of the Supreme Court observed that according to Article 51 of the

Constitution the State shall endeavour to, inter alia, foster respect for international
law and treaty Consequently, according to this directive principle under Article 51,
the court must interpret the language of the Constitution, if not intractable, which is
after a municipal law, in the light of United Nations charter and the solemn
declaration subscribed to by India. Article 8 and 9 of the Uniersal declaration of
Human Rights according to which everyone has the right to ab effective remedy by
the competent national tribunals for acts violating the fundamental rights granted to

7 T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-224

 8. T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-226

Him by the Constitution or by law, were binding on India since resolutions on these
were passed by the United Nations on the basis of support from many countries
including India.

In A.D.M. Jabalpur v. Shi Kant Shukla AIR 1976 SC 12079

The dissenting judge Khanna J. of the Supreme Court, while considering

whether a writ of habeas corpus would lie during emergency under the Maintenance
of Internal Security Act, forcefully advocated the desirability of taking help from
international law while determining questions under the municipal law. He observed
that the International Commission of justice which is affiliated to the UNESCO has
been attempting with considerable success to give material content to the Rule of
Law, an expression used in the Universal Declaration of Human Rights. Respect for
the supreme value of human personality was stated to be the basis of all laws.

Meneka Gandhi v. Union of India AIR 1978 SC 59710

The Supreme Court while holding that the freedom of speech and expression
guaranteed by Article 19 (1) (a) of the Constitution is not restricted to the territory of
India was in fact taking reference from Article 13 of the Universal Declaration of
Human Rights which declares that the freedom of expression and opinion is available
to all regardless of frontiers.

9.
T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-226
10.
T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-226
 Chapter-4

Presumption against Extra-Territorial Operation of Statue

The Presumption in the United Kingdom is that an Act of Parliament

generally applies within its territory only unless provided otherwise. Provision may,
however, be made in a statue that the statue applies to all subjects of the United
Kingdom whether living within its territory or abroad. Similarly, foreigners who stay
in United Kingdom are subject to jurisdiction of the English Courts. There may be
clearly stated exceptional situations in a statue wherein foreigners living abroad may
also be subject to the English jurisdiction. The general principle of private
international law is that land is subject exclusively to the laws of the State within
whose territory it lies, the nationality, residence and domicile of the owner of the
land being all irrelevant.

G.D. Singh v. Government of India AIR 1973 SC 2667 the Supreme Court

held that a foreigner national who is likely to continue indulging himself in activities
which are prejudicial to the security and integrity of India, as he has been doing in
the past, can be prevented from leaving India, as he has been doing in the past can
be prevented from leaving India to go a foreign country.

In Ajay Agarwala v. Union of India AIR 1993 SC1648

The Supreme Court held that criminal conspiracy is an offence of a continuing nature
and so overt acts of criminal conspiracy are committed at Dubai or Chandigarh are
immaterial and thus the offence can be tried in India without obtaining permission of
the Central Government as is required under section 188 of the Code of Criminal
Procedure, 1973 for offences committed outside India but tribal in India under
section 4 of the Indian Penal Code.

11.
T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-230
 Chapter-5

Presumption whether Statutes affect the State12

Since a law is passed by the Crown for its subjects, there is a presumption that
a statute does not bind the crown. The Crown, by passing a statue, does not wish to
harm his own interest nor does he wish to interfere with his own rights. Therefore,
the normal presumption that the Crown is not bound by a statute unless so is
provided by express terms of the statute or by necessary implication. Maxwell states
that the Crown may be held to be bound by a statute in the following four cases:

1. Where the Crown is clearly bound by a provision in which it is expressly

stated to be bound;
2. Where the intention to bind the Crown is manifest;
3. Where the prerogative, rights or property of the Crown are not in
question; and
4. Where a statute is for advancement of religion or learning and for the
maintenance of the poor, or for suppression of wrong, or for performing
the will of a donor.13

Hindustan Steel Works Construction Ltd. V. State of Kerala AIR 1997 SC 2275 14

The Supreme Court held that even though the Kerala Construction Workers Welfare
Funds Act, does not apply to the Central Government, a company which is fully
owned by the Central Government is bound by the provisions of the Act because a
company whose share capital is subscribed by the government has independent
existence and is not a government department.

Samatha v. State of Andhra Pradesh AIR 1997 SC 3297

The Supreme Court was seized of interpreting section 3 (1) (a) Andhra Pradesh
Scheduled Area Land Transfer Regulations, 199. Under this provision no person is
authorised to transfer any land in the scheduled area to a non-tribal person. The
Supreme Court while interpreting the word person in this provisions held that the
government is also include within the word person and as such even the
government cannot transfer land in the scheduled area to a non-tribal person.
12.
T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-232
13.
Ibid., at pp. 166 and 167
14. T. Bhattcharyya The Interpretation of Statues, 6th Edition, p-237