The Common Law in India - College of Social Sciences and ...

The Rise of the Common Law 28made a court of record. A Regulation made in 1781provided that in " all cases within the jurisdiction ofthe Mofussil Diwani Adalats for which no specificdirections are hereby given the respective judgesthereof do act according to justice, equity and goodconscience." A similar provision was also made inregard to the Sadar Diwani Adalat. What we haveseen so far relates to the mofussil of Bengal. Butthe same system of administration of justice andsimilar regulations as to the laws which were to beapplicable were soon extended to other parts of thecountry like Banaras, Oudh and Allahabad and eventuallyto the mofussil areas of Madras and Bombay.This rule of decision in accordance with justice,equity and good conscience in the absence of specificdirections meant, in substance and in the circumstancesthe rules of English law wherever applicable.In the words of Sir Henry Maine, 29 India was then"regard being had to its moral and material needs,a country singularly empty of law." The inevitableresult was that the courts of justice had to legislate.The " vast gaps and interspaces in the substantivelaw " were filled by the principles of English commonand statute law. The wide door of "justice, equityand good conscience " made it easy for these principlesto become, through the decisions of the courts, thegoverning law of the country.In 1862, the Privy Council reversing the SadarDiwani Adalat applied the principles of English lawregarding equitable mortgage by deposit of title deeds,29 Sir M. E. Grant Duff, Sir Henry Maine, p. 51.