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Codification of Law: Mohammedan law of succession. There are cases on record
Need for Codification:
There were much confusion about the laws prevailing in
India during beginning of the 19th century. Charter of 1726
introduced English law in the Presidency Towns. A number
of Charters were issued subsequent to 1726, e.g. Charter of
1753 and 1774. A question arose whether English law was
or was not introduced by these subsequent charters.
For example, Charter of 1753 which superseded that of 1726
expressly provided that the Mayor’s Courts were not to try
actions between Indians unless both parties consented to its
determination by the Court concerned. If such consent was
given, the Mayor’s court was to apply English law.
The Regulating Act, 1773 and the Charter of 1774 issued
thereunder were silent as to the law which the Supreme
Court was to apply to the Indians. The Supreme Court was a
court of English law but there is evidence to show that it did
not disregard indigenous law in matters of marriage and
succession. In Patna case1, the Court applied the
1
This case happened in 1777-1779. One Shahbaz Beg, a
soldier in the Company’s army, had no son and so he called
his nephew Bahadur Beg from Kabul to live with him. He
expressed a desire to adopt Bahadur Beg and to hand over
his property to him. But before he could do so, he died in
1776. Thereafter, a struggle ensued for property between
Bahadur Beg and Shabhaz’s widow Nadira Begum. The
Begum claimed entire property on the basis of gift said to
have been executed in her favour by her late husband.
Bahadur Beg claimed the entire property as the adopted son
of the deceased. He filed a suit against the Begum in the
Patna Provincial Council which also functioned as a Diwani
Court for the town. The Patna Council remitted the entire
case to its law officers Kazis and Muftis and required them
to make an inventory of property of the deceased, to collect
the property and seal it, and to transmit to the Council a
written report specifying the shares of parties. Under the
Regulations then prevailing, the law officers were neither to
perform any executive functions nor were they to concern
themselves with deciding the questions of fact, their only
function was to expound the law applicable to the facts of
the case. The law officers locked and sealed the house of the
deceased. The widow of the deceased was insulted and
humiliated to such an extent that she left the house and took
refuge in a mosque. They rejected her claim holding that ^itt
deeds were forged. As Muslim law does not recognise
adoption, Bahadur Beg’s claim was also rejected. The
deceased’s property was thus to be divided according to the
Muslim law of intestate succession.
The widow approached the Supreme Court and filed an
action against Bahadur Beg, the Kazis and Muftis for assault
breaking and entering her house and taking away her
property, and claimed damages amounting to Rupees 6
lakhs. Bahdur Beg, Kazi and Mutis were arrested and
brought from Patna to Calcutta and were lodged in prison.
The legal issues raised in trial, which started in November
1078, were, (1) Whether Bahadur Beg, who lived outside
Calcutta was subject 10 the jurisdiction of Supreme court,
and (2) Whether the law officers could be prosecuted for
acts done in their judicial capacity?
in which the Supreme Court invoked the help of the Indian
Law Officers of the Sadar Diwani Adalat to throw light on
controversial points of Hindu and Muslim Law.
The non-Hindu and non-Muslim sections of the population
was subject to different laws according their residence in the
mofussil or the Presidency Town. This question was raised
very forcefully by Grant J. of the Calcutta Supreme Court in
Musleah vs. Musleah in which a Jew was held subject to
the English law in the Supreme Court with respect to
succession of his property situated in the mofussil, whereas
he would have been subject to the Jewish law if the case had
been started in the Company’s court in the Mofussil.
Thus the property of one person could be subject to two
different laws depending on the chance as to where the suit
was filed or if a non-Hindu or non-Muslim died leaving
behind property partly in a Presidency Town and partly in
the mofussil. Then different laws applied to different parts
of property.
Four Sadar Diwani Adalats and three Supreme Courts
functioned in the country without any co-ordination but
independently of each other. Each of the superior courts in
India was thus free to interpret the law in its own way.
Under such a system, it was natural that in course of time,
there would arise in the country a large collection of cases
which might be contradictory to each other but having equal
authority. The law thus became bulky, uncertain and
contradictory.
The chaos with which the legal system was afflicted in India
could be effectively dealt with only through the process of
codification.
On the first issue, the court said that Bahadur Beg was a
farmer of land revenue and he was not different from the
revenue Collector and therefore was ‘directly or indirectly in
the services of the Company’. On the second issue, the court
held that although the Patna council was a legally
constituted court having jurisdiction to decide the civil
disputes between the Indians, it had no jurisdiction to
delegate its functions to the law officers, the Kazi and
Muftis.
The court criticised the manner in which the Kazi and
Muftis had acted for ascertaining facts. All the proceedings
in the Council were ex parte without any I notice being
given to the Begum. No regular trial was held and witnesses
had not been examined on oath. Thus, the law officers were
tried not for what they had done in the discharge of their
regular functions, but for something outside thereto the
court had an undoubted jurisdiction over the Company’s
servants.
The Supreme Court awarded damages of Rupees 3 lakhs to
the widow which was quite inproportionate. The Patna case
brought to light the inherent defects in the Dmpany’s
judicial system (that is Adalats and Councils). Also, the case
involved he question of the Supreme Court jurisdiction and
its relationship with the officials Of the Adalats. A lesson
was perhaps learnt, which became the basis of further
reforms in administration of justice carried out later.

The 19th century in England was the period of Bentham
(1748 – 1832). He was an ardent supporter of law reform
and a strong advocate of codification. In fact, Bentham is
responsible for the invention of the word codification and its
introduction into the English language. He demonstrated the
necessity and practicability of codification. Many important
reforms in the field of law and procedure were undertaken
under the inspiration of his reforming influence.
Charter Act of 1833:
At this time, the Charter Act of 1833 was under
consideration in the British Parliament. There were a
number of people in Parliament who had been influenced by
the Bentham’s doctrine. As a result, Charter Act of 1833 had
a few clauses incorporated therein which were designed to
promote the process of codification of law in India.
The Charter redesignated the Governor-General of
Bengal as the Governor-General of India. Under this
provision Lord William Bentinck became the first Governor-
General of India.
It deprived the Governors of Bombay and Madras of their
legislative powers. In the Governor General’s Council a
fourth member was introduced who was to be known as
Law Member. The Governor General’s Council with the law
member was to be known as Indian Legislative Council.
The Indian Legislative Council was given exclusive
legislative powers for the whole of British India. The Law
member was not entitled to act as a member of the council
except for legislative purposes. Lord Macaulay was
appointed as the first Law Member.
Section 53 of the Charter act of 1833 made provisions for
the appointment of a Law Commission in India. Members
of the Commission were to be appointed by the Governor
General - in – Council on the recommendation of the Court
of Directors.
As proposed by the Charter Act of 1833, the First Law
Commission was appointed by the Govt. of India in 1835,
with Lord Macaulay as its Chairman. In 1837 Lord
Macaulay went back to England and Andrew Amos was
appointed in his place.
The Charter Act placed the Law Commission wholly under
the direction and control of the Governor General – in –
Council which determined from time to time the subjects
upon which the Commission was to institute enquiries and
submit reports.
Penal Code:
The first task assigned to the Commission by the
Government was to prepare a draft of the Penal Code. The
draft was submitted to the Government of India in 1837.
This remains the most constructive and significant
contribution of the First Law Commission.
Lex Loci Report:
Another major achievement of the First Law Commission
was the lex loci report. The status of Europeans residing in
the mofussil and the application of law to them were quite
uncertain for a number of years2. It was not clear what civil
2
In 1793 Lord Cornwallis, in 1799 Bombay and in 1802
Madras prohibited the British subjects from residing beyond
10 miles of Calcutta unless they executed a bond placing
themselves under the jurisdiction of Mofussil Diwani Adalat
2
law will apply to them unless they resided within the
jurisdiction of the Supreme Court as in the Presidency
Towns, English law was applicable to them.
In the mofussil, on the basis of justice, equity and good
conscience, the adalats administered to every person other
than a Hindu and Muslim, the law of the country of such
person, or of his ancestors. As such the adalats could be
called upon to decide point of inheritance under any legal
system prevailing in any part of the world which was a very
difficult task.
In 1837, the attention of the First Law Commission was
drawn towards the uncertainty of the law applicable to the
non-Hindus and non-Muslims in the mofussils.
On October 31, 1840, the Commission presented the Lex
Loci Report dealing with this question. The Commission
proposed that the substantive law of England should be
declared to be the law of land (lex loci) even outside the
Presidency Towns. Two important factors led the
Commission in making this suggestion.
Firstly, in the Presidency Towns, the Supreme Court already
administered the English law to all except Hindus and
Muslims in certain matters, and the Commission therefore
felt that as far as possible, the law of the land should be the
same throughout the Company’s territory.
Secondly, the number of British subjects in the Company’s
territory was increasing and they were increasingly
acquiring land in the Presidency Towns as well as in the
mofussil. The Company’s courts were already giving to
them the advantage of the English law under the maxim of
justice, equity and good conscience, and the Commission
wanted to ensure that these persons continued to be under
the English law. The Commission thought that there was
nothing in the English law which could prevent it from
being easily adopted to the condition of all persons in India
other than Hindus and Muslims.
Other Recommendations:
1. The Commission also recommended various changes in
the procedure of civil suits and drafted a Code of Civil
Procedure.
2. In 1842, it prepared a draft of the Law of Limitation.
Except for the preparation of these drafts, the First Law
Commission could not achieve much. Lord Macaulay as its
chairman was the main motive force to the Commission.
Activity of the First Law Commission declined after Lord
Macaulay’s return to England in 1837.
The Commission continued to function in India till 1843
when Directors wound up it. Although First Law
Commission worked hard but no important positive
enactments had resulted.
Charter Act of 1853:
The Charter Act of 1853 again made provisions for the
appointment of a Law Commission, but this time the
Commission was to work in England and not in India.
Section 18 of the Charter Act of 1853recited that the First
Law Commission had in a series of reports recommended
in cases up to 500 rupees. Charter Act of 1813 enacted that
British subjects residing, trading or holding immovable
property at a distance of more than 10 miles from
Presidency Towns were amenable to Company’s courts.

several alterations in the law but no final decision had been
taken on these reports. It therefore, authorized to appoint
Second Law Commission to report its opinion to Her
Majesty. The reports were to be made within three years
after passing of the Charter Act of 1833. Thus the life of
Second Law Commission was fixed at three years and it
was to expire in 1856.
Second Law Commission:
By virtue of the provisions of the Charter Act of 1853, the
Second Law Commission was appointed in England on
Nov. 29, 1853. The Commission consisted of leading
lawyers of England and a few persons who had knowledge
of the Indian law and those who were personally associated
with the First Law Commission. The Second Law
Commission functioned till the middle of 1856.
During its tenure, it submitted four reports.
1. The first task assigned to the Commission was to
consider the measures which would be necessary for
amalgamation of the Sadar Adalats and the Supreme Courts
at each Presidency Towns as British Parliament had already
announced its intention to such plan.
Accordingly in the First Report the Commission submitted
the plan for the amalgamation of the Supreme Court at
Fort William in Bengal with the Sadar Diwani and Nizamat
Adalats as well as for simple and uniform Codes of Civil
and Criminal Procedures which were to be applicable to
the High Courts to be so formed .as well as to all inferior
courts within the limits of its jurisdiction.
2. In the second report the Commission agreed with the Lex
Loci Report.
3. In the Third Report, the Commission prepared the plan
for the North Western Provinces in order to establish there
a judicial system similar to the system recommended for
Bengal (i.e. constitution of High Court).
4. The Fourth Report was devoted to the preparation of a
similar plan for the Presidencies of Bombay and Madras.
Thus in the First, Third and Fourth reports a common
pattern was recommended for the High Courts and this part
of the report was effectuated in 1861.
Enactments of Laws:
The Codes of Civil Procedure and Criminal Procedure
were enacted by the Indian Legislature in 1859 and 1861
respectively. The Law of Limitation prepared by the First
Law Commission was passed into law in 1859 immediately
after the Code of Civil Procedure. Macaulay’s Penal Code
was taken up and revised and was passed as law in 1860.
These codifications were done after the East India Company
was dissolved in 1858 and Govt. of India was taken over by
the Crown by Govt. of India Act, 1858 after the first war of
the Independence in 1857.
Third Law Commission:
On 2nd December, 1861, Third Law Commission was
constituted consisting of certain gentlemen for the purpose
of preparing a body of substantive civil laws for India. The
Third Law Commission was directed to frame “a body of
substantive law”, for which law of England was to be used
as basis. The Commission was to function in England.
The Third Law Commission submitted seven reports
containing the drafts of the proposed laws to the Secretary
of State for India. The Secretary of State for India
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transmitted these drafts to the Government of India with a
view to their enactment through the Legislative Council of
India.
The progress of legislation in India was not as expeditious
as the Commission would have liked. Some objections were
being raised to some of these drafts in India. For example,
the draft of the Law of Negotiable Instruments concerning
Bills of Exchange was being opposed by the Indians on the
ground that it contravened their customs as to hundis.
The Law Commission in England was becoming restive and
dissatisfied at the delay in India in enacting their drafts.
The bone of contention between the Commission and the
Government of India was that while the Government
wanted to effect certain modification which it thought to be
desirable in the drafts submitted by the Commission, the
Commission did not relish any change in the drafts.
The breaking point reached on the draft Law of Contracts.
Sir Henry Maine, Law Member (till 1869) objected to the
provisions contained in the draft bill with respect to specific
performance. Secretary of State desired the Government of
India to enact the draft bill as it was, but when it was not
feasible, he allowed the Government of India to take its own
course. The Commission resented to this and therefore,
resigned in protest in 1870, saying that the draft over which
it had devoted so much time and labour and which had been
with the Government of India for quite sometime were not
being enacted into law by the Indian Legislature. Thus the
Third Law Commission came to an end with an unhappy
note.
Although the Commission ended with unhappy note, it
rendered great service to the cause of Indian law through its
various drafts which it had submitted. The drafts were
enacted with some modifications in the course of time.
Drafts submitted by the Third Law Commission:
First Report:
The first report submitted on June 23, 1863 contained the
draft of the law of succession and inheritance generally
applicable to all classes of persons other than the Hindus
and Muslims. By this time Sir Henry Maine had become the
Law Member. This draft bill was enacted with little
modifications under the title of the Indian Succession Act,
1865.
Second Report:
The second report of the Commission dated July 18, 1866
contained a draft of the Law of Contracts including Sale of
Goods, Indemnity, guarantee, bailments, agency and
partnerships. The Law was enacted as Contract Act, 1872.
Third Report:
Third Report dated July 24, 1867 contained a draft of the
law of Negotiable Instruments. The law was enacted in
1881.
Fourth Report:
In Fourth Report dated December 18, 1867, the
Commission submitted reply to the remarks and
objections of the Government of India against the inclusion
of sections dealing with the law of specific performance
under the draft law of Contract. Specific Relief Act, 1877
was enacted.
Fifth Report:
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The Fifth Report dated August 3, 1868 contained draft of

Law of Evidence. Evidence Act was enacted in 1872.
Sixth Report:
Sixth report dated May 28, 1870 contained draft Law of
Transfer of Property. Transfer of Property Act, 1882 was
enacted
Seventh Report:
The last seventh report dated June 11, 1870 was related to
the revision of the Criminal Procedure Code which had
already been enacted in 1861.
Other legislations:
The period of the Third Law Commission was by and large
the period of Sir Henry Summer Maine’s tenure as the Law
Member. He was appointed to the office in 1862 and
continued till 1869.
Apart from the work of the Third Law Commission, the
legislative department of the Govt. of India under the
guidance of Sir Henry Maine and Sir James Stephen (who
succeeded Maine in 1869 and retired in 1872) was busy in
its legislation. The Indian Companies Act, 1866 based on
English Companies Act, 1862, The General Clauses Act
passed in 1868 now that of 1897, Indian Divorce Act,
1869, The Limitation Act, 18713 to repeal the Act of 1859
were some other important legislations.
Thus began the era of codification of Indian laws.

3
The Act of 1871 was repealed by the Act of 1877 then by
the Act of 1908 then the present Act of 1963.