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Report No. 185

Section 45B (proposed by the 69th Report)

The 69th Report contains a separate chapter (ch. 18) on the question of expert opinion on 'Foreign Law' and refers to the procedure in UK, USA etc. and to Indian law e.g., Section 26 of the Negotiable Instruments Act, Section 11 of the Contract Act relating to capacity, the constitutionality of foreign law, and specially of the British statutes applicable to India (Section 5, Report of the Law Commission of India, page 45, entry 55, and the British States (Application to India) Repeal Act, 1900 (Act 58 of 1960). The 69th Report stated:

"whether they (British statutes) should be incorporated in the Evidence Act or elsewhere, is a matter of detail, which we leave to the draftsman"

The Recommendation for insertion of new section in the 69th Report (see p. 348-349) is as follows: (18.33, though para number not given)

"In the light of the above discussion, we recommend

(a) insertion of a provision requiring notice to be given where a party in a civil case desires to raise a question of foreign law;

(b) incorporation of the substance of the British statutes of 1859 and 1861 into our statute law;

(c) insertion of a provision enabling the court to look at the relevant material relating to foreign law, where it considers such a course necessary in the interests of justice."

Though Section 45 refers to the evidence of an expert on foreign law, we are of the view that procedure in that behalf should be provided in a separate section. In fact, the decision of the court on a foreign law is treated as a question of law and not as a question of fact.

Our Recommendation on Section 45B & British statutes of 1859, 1861:

So far as the above recommendation for insertion of Section 45B with two sub-sections, we do not want to repeat the reasons given in the 69th Report but we wholeheartedly support the recommendation.

So far as the recommendation for making a separate Act incorporating the substance of British statutes of 1859 and 1861 are concerned, we are of the view that it is unnecessary.

We shall briefly refer to the 1859 and 1861 statutes as contained in the 69th Report itself.

This aspect is contained in the 5th Report of the Law Commission of India page 45, entry 55. The two British statutes whose substance is to be incorporated as per the proposal, into our law ar.-

(1) British Law Ascertainment Act, 1859

(2) Foreign Law Ascertainment Act, 1861

Phipson refer to the 1859 UK statute and to the 1861 UK statute (see para 37.59) and they read as follows:

"By the British Law Ascertainment Act, 1859, a case may be stated for the opinion of the superior Court in any of Her Majesty's Dominions to ascertain the law of that part (see Lord v. Colvin: 1 D&S 24 (Scotish law); Login v. Princess of Coorg: 30 Beav 632 (Hindu law). And by the Foreign Law Ascertainment Act, 1861, a similar case may be stated for the opinion of the court in any foreign state with which Her Majesty may have entered into a convention for the ascertainment of such law. The latter Act is a dead letter as no convention has ever been made in this behalf."

The proposed section 45B is to be the following effect:

"45B. Procedure to prove foreign law and Court's power.- (1) A party to a suit or other civil proceeding who intends to raise an issue concerning the law of a foreign country shall give notice in his pleadings or other reasonable written notice.

(2) The Court, in determining a question of foreign law, in any particular case may, after notifying the parties, consider any relevant material or source, including evidence, whether or not submitted by a party, and the decision of the Court shall be treated as a decision on a question of law".

Review of the Indian Evidence Act, 1872 Back

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