sajikoduvath

Documents Produced With the Plaint are Treated As ‘Part of The Plaint’

Jojy George Koduvath

Order 7 Rule 14 CPC Deals with the production of documents

Order 7 Rule 14 CPC reads as under:

“Production of document on which plaintiff sues or relies.-
.(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”

Documents Produced With the Plaint are Treated As ‘Part of The Plaint’

When deciding an application under Order VII, Rule 11 (i.e., for rejection of the plaint) the Supreme Court observed in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajrat), AIR 2020 SC 3310; (2020) 7 SCC 366, as under:

“23.8. Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.”(Followed in: Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 INSC 1025; 2024 KLT Online 3058).

Site-Plan Produced with the Petition was Considered

The site-plan attached to the petition was considered when an ambiguity arose as to pleadings in Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067. Our Apex Court explained the position as under:

“17. A comprehensive look at the pleadings taken by the appellant along with the site-plan attached to the petition makes it evident that the appellant gave out a detailed description of the extent of accommodation available in the suit property as also the accommodation presently in her occupation and the nature and extent of her requirement. In the pleadings, it was indeed specified that the appellant was residing on the property bearing No. “C-586/587”. The pleadings taken by the appellant in paragraph 18(a)(ii) of her petition, of course, begin with the expression “as stated above” and there had not been any earlier mention of property bearing No. “C-586/587” but, there had been detailed description in the preceding paragraphs and the site plan was also attached to the petition. The appellant further made the position clear in her cross-examination that the building in question was constructed on Plot Nos.586 and 587 jointly and she and her sister-in-law were residing in the same building as one family.
18. Taking the pleadings as a whole and reading the same with the evidence, it is clear that there had not been any such mis-description of the property which would amount to a material flaw in the case of the appellant or which could have caused prejudice to the respondents-tenants.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Makardhwaj Ram v. Jagdish Rai, Valuable Decision of the Supreme Court on Constructive Res Judicata

Saji Koduvath, Advocate, Kottayam

In Makardhwaj Ram v. Jagdish Rai, 2026 INSC 636, Supreme Court of India (Sanjay Karol, N. Kotiswar Singh, JJ.) rendered a valuable decision on Constructive Res judicata.

Crux of the Decision

1. The application of constructive res judicata depends on the facts of each case.
2. The principle of constructive res judicata will not be applied in cases where the plaintiff had no occasion to plead the grounds and seek relief thereon in the earlier litigation.
3. The twin requirement of “might” and “ought” in constructive res judicata operates cumulatively.

Facts in a Nutshell

In 1960, Mahabir Rai, the father of the present plaintiff, transferred a portion of his property to his mother and the plaintiff.
In 1962, Mahabir Rai, along with his mother and wife, executed a General Power of Attorney in favour of Rambhajan.
In 1969, Rambhajan first sold 21.43 acres; and then sold 33.76 acres, using the GPA.
In 1969 itself, after the sales, the said GPA was cancelled by the grantors.
The father of the plaintiff filed a suit for cancellation of the first sale of 21.43 acres.
The suit was dismissed. (The reason was that the present plaintiff could not establish that he was the successor of his father.)
The second transfer of 33.76 acres was challenged by the mother of the plaintiff, as legal guardian of her minor children.
It was also dismissed.
In 1985, Rambhajan, the GPA holder, applied for mutation.
It was allowed in (revenue) appeal.
This mutation pushed the plaintiff to file the present civil suit.
This suit is for a declaration of title and possession, against Rambhajan.
In 1993, the suit was partly decreed. As against the claim of 95.8 acres, the plaintiff was held to be entitled to 43.69 acres (the remaining extent after the said two sales).
Successor- in-interest of Rambhajan appealed to the Additional District Judge.
In 1996, it was dismissed.
LRs (of the successor- in-interest of Rambhajan) took the matter to the High Court
In 2009, by the impugned judgment, the High Court allowed the appeal and dismissed the suit on the ground that the suit was barred by constructive res judicata.

Grounds in Appeal before the Supreme Court

The earlier suits were filed to recover certain lands lost in two sales.
The present appeal is in respect of the land that remained after the (two) alienations.
There is a difference between the two rounds of litigation. Because the subject matter of the present suit is separate and distinct from the earlier suits.
There was no occasion for the plaintiff to seek the present relief in the earlier proceedings. Hence, constructive res judicata is not attracted.

Res Judicata under Section 11 CPC

Section 11 of the Code of Civil Procedure, 1908, deals with res judicata.

It reads as under:

“11. Res judicata.—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
“Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”

Also Read: Res Judicata and Constructive Res Judicata

Decisions Relied on by the Apex Court

1. NagabhushanAmmal v. C. ChandikeswaraLingam, (2016) 4 SCC 434

For res judicata to apply, it has to be shown that not only the cause of action was the same, but also that the plaintiff had the occasion to seek the same relief in the earlier proceedings.

2. Morris LJ in Kameswar Pershad v. Rajkumari Ruttun Koer, 1892 SCC OnLine PC 16

It is held in this decision as under:

…That it “might” have been, made a ground of attack is clear. That it “ought” to have been, appears to their Lordships to depend upon the particular fact of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word “ought” would become important…

3. Daryao v. State of U.P., 1961 SCC OnLine SC 21, it was held as under:

“9. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicata may be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.”

4. State of Karnataka v. All India Manufacturers Organisation, (2006) 4 SCC 683, B.N. Srikrishna J., held as under:

“38. The spirit behind Explanation IV is brought out in the pithy words of Wigram, V.C. in Henderson v. Henderson [(1843-60) All ER Rep 378 : (1843) 3 Hare 100 : 67 ER 313] as follows: (All ER pp. 381 I-382 A)
- “The plea of res judicata applies, except in special case (sic), not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” [Ibid., at pp. 381-82]
In Greenhalgh v. Mallard [(1947) 2 All ER 255 (CA)] (hereinafter “Greenhalgh [(1947) 2 All ER 255 (CA)] ”), Somervell, L.J. observed thus:
- “I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.” [Ibid., at p. 257 H (emphasis supplied)]
The judgment in Greenhalgh [(1947) 2 All ER 255 (CA)] was approvingly referred to by this Court in State of U.P. v. Nawab Hussain [(1977) 2 SCC 806 at p. 809, para 4 : 1977 SCC (L&S) 362] . Combining all these principles, a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] expounded on the principle laid down in Forward Construction Co. [(1986) 1 SCC 100] by holding that:
- “[A]n adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had (sic) decided as incidental to or essentially connected with (sic) subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.” [Ibid., at p. 741, para 35, per L.M. Sharma, J.]”

5. Samir Kumar Majumder v. Union of India, (2024) 16 SCC 738, K.V. Viswanathan J., considered the law on constructive res judicata while dealing with an employment dispute as follows:

“Law on constructive res judicata
33. Almost two centuries ago, in Henderson v. Henderson [Henderson v. Henderson, (1843) 3 Hare 100 : 67 ER 313] , the Vice-Chancellor Sir James Wigram felicitously puts the principle thus: (ER p. 319)
- “In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”

Law Laid Down by the Apex Court on Constructive Res Judicata

After considering the above judgments, the following aspect of constructive res judicata is highlighted by the Apex Court –

“8.1 Constructive res judicata mandates that all grounds that might and ought to have been employed in the proceedings should be employed to avoid multiplicity of proceedings.
8.2 It is a deeming fiction of law, but its application is not uniform and instead is dependent on the facts and circumstances of a particular case with ‘due regard to ambit of the earlier proceedings’ and ‘the nexus which the matter bears to the nature of the controversy’.
8.3 This principle is founded on public policy. It is a generally acceptable rule that one person should not be “vexed twice over” for the same kind of litigation. As such, it also applies to the proceedings under Article 226/32 of the Constitution of India.
8.4 In respect of ‘ought’ referred above, the said word implies the threshold to be above mere possibility.
8.5 The parties while conducting litigation are expected to apply ‘reasonable diligence’, ‘legitimate purview’. It is from this lens that it shall be adjudicated whether all issues that were properly arising to the litigation; which ought to have been raised; were raised or not?
8.6 The principle applies with equal force in cases where the ground that might and ought to have been raised was not done, on account of negligence, inadvertence or accident. In other words, might and ought to apply cumulatively with full force, without exception. The party therefore commits these errors at their own peril.”

Question to be considered in the matter of Constructive Res Judicata

The Apex Court laid down the point of law as under:

“The question is whether the earlier proceedings provided opportunity enough for the plaintiff by being substantially similar, to raise the point of his ownership of the suit properties by virtue of the 1960 sale deed, when the main ground urged otherwise was cancellation of sale deed.”

The above questions were answered in favour of the plaintiff by the Apex Court. It can be summarised as under:

By virtue of the 1960 sale deed, the appellant-plaintiff was the owner of a large extent of land.
The case of the plaintiff was that Rambhajan had wrongfully sold portions through two separate sales. (The subject matter of the present suit is separate and distinct from the earlier suits.)
In those proceedings, the plaintiff had no occasion to seek a declaration of title over the larger property, as his ownership under the 1960 sale deed was not in dispute.
The focus of the earlier proceedings was only on the validity of the impugned sale transactions.
The need to assert title over the entire property arose only when Rambhajan applied for mutation of his name in respect of the entire land extending beyond the property covered by the sale transactions.
It was this claim over the larger extent of land that gave rise to a fresh apprehension regarding the plaintiff’s rights.
Consequently, the plaintiff instituted the present suit, asserting his title to the property, which, according to him, had remained unquestioned until then.

SC set aside the Judgment of HC on Constructive Res judicata

On the above reasoning, the Apex Court held that the impugned judgment of the High Court, founded on an erroneous application of the principles of constructive res judicata, was liable to be set aside.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Can the Forest Tribunal Render a Finding on Title so as to Operate as Res Judicata?

No. Because of the automatic vesting of all private forests in Govt., the principal enquiry (by the FT) is whether the land is a private FOREST or whether it is cultivated land. Title enquiry is not contemplated under the Act.

Saji Koduvath, Advocate, Kottayam.

Part I

Introduction

The authoritative modern decisions reflect a ‘strict and technical’ interpretation of res judicata, in contrast to earlier broader views that required only a ‘decision on the same matter‘, or a ‘similar issue‘ in both suits.

The modern trend, in substance, requires the following:

The ‘same issue‘ must have been adjudicated in the former suit.
Finding on the issue in the earlier suit must have been ‘necessary or essential‘.
That is, the issue must have been heard and decided consciously.
The parties should have had an opportunity to meet the contentions on the matter.

Sec. 11 of the Code of Civil Procedure deals with Res Judicata. It reads as under:

“Res Judicata -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”

Res Judicata: The Issue Should Have Been ‘Necessary to be Decided’

In PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:

“57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”

Should the Matter be in “Actual Issue”, Or Need be in “Substance” alone

Sec. 11 CPC says as to “suit or issue in which the matter directly and substantially in issue“.

Modern Trend (Stricter Approach): Same Issue Must Have Been Adjudicated in the Former Suit giving due emphasis to ‘directly and substantially in issue‘

In M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, paras 439 and 446 are noteworthy. They read as under:

439. The applicability of Section 11 is premised on certain governing principles. These are:
- .(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
- (ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
- (iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
- (iv) The Issue should have been heard and finally decided by the court in the former suit.
446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.”

Part II

If Forest Tribunal to Render Finding on Title – Established Principles

To answer the question whether the Forest Tribunal can render a finding on title, the following well-established principles of law are germane.

1. A finding will not be res judicata if :
- observation or finding touching upon the title is incidental and collateral to the principal issue falling within the Tribunal’s jurisdiction [Jamia Masjid v. K. V. Rudrappa 2021 AIR SC 4523; 2022-9 SCC 225; Sri Gangai Vinayagar Temple v. Meenakshi Ammal, 2015 3 SCC 624; Asrar Ahmed v. Durgah Committee, AIR 1947 PC 1].
- the finding is limited to the special jurisdiction of the Tribunal, and it is not a direct and substantive adjudication upon title. [Sajjadanishin Sayed v. Musa: (2000)3 SC 350]
2. A finding of a Quasi-Judicial Tribunal also may operate as res judicata in certain circumstances [Anil Paul v. South Indian Bank, 2022-2 KHC 332; 2022-2 KLT 169, Joseph v. State of Kerala: 1987(1) KLT 651; Satish Babu v. State of Kerala: 2000(3) KLT 55; Govindan Gopalan v. Raman Gopalan: 1978 KLT 315 (FB) ].
- Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, remains the locus classicus on the law relating to the exclusion of jurisdiction and the adjudicatory competence of special tribunals.
3. Civil Court jurisdiction will be barred (Dhulabhai v. State of MP, AIR 1969 SC 78) only if –
- the Statute gives a finality to the orders of the special tribunals,
- there is adequate remedy by the special tribunal to do what the Civil Courts would normally do in a suit,
- there is an express bar of the jurisdiction of the Court,
- the remedies (such as appeal) normally associated with actions in Civil Courts are prescribed by the particular Statute under which the Tribunal is constituted.

Kerala Private Forest Act, 1971 –

Section 3 of the Forest Tribunal, constituted under the Kerala Private Forest (Vesting and Assignment) Act, 1971, declares – Private forests vest in Government, automatically (State of Kerala v. Popular Estates, AIR 2021 SC 5593; 2021-6 KLT 208).

Section 3 reads as under:

“3. Private forests to vest in Government– (I) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the state of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2) Nothing contained in sub-sections (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation. – For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species.
(3) …. (4) … “

Section 8 of the Kerala Private Forest Act, 1971

Section 8 states that the disputes as to whether a land is a private forest or not, or has not (automatically) vested in the Government, are determined by the Tribunal. From the wording of Section 8, it is noteworthy that what is determined is not the title, but whether it is a private forest or not.

Section 8 reads as under:

“8. Settlement of disputes – (1) where any dispute arises as to whether- (a) any land is a private forest or not; or (b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be prescribed, apply to the Tribunal for decision of the dispute.
(2) ….. (3) …”

Title Enquiry Not Contemplated u/S. 8; If Finding, Incidental or Collateral

It is also important to note – an independent title enquiry is not contemplated under Section 8; for, ‘all private forests’ “stand transferred to and vested in the Government ” under Section 3; therefore –

because of the statutory and automatic vesting of all private forests under Section 3, the principal enquiry is whether the land is a private FOREST or whether it is cultivated land. The Explanation to Section 3, which provides that “cultivation” includes cultivation of trees or plants of any species, makes it clear that the enquiry is directed to the character and use of the land and not to the ownership thereof.
Ownership, as such, is not the matter directly put in issue.
The finding on title/ownership, if any, will be surplusage; in any case, such a finding would remain as ‘incidental or collateral’.

Read also:

End Notes 1

Section 81 of the KLR Act exempted ‘private forests’ and ‘plantations’.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Law on Travancore Grant Deeds

Jojy George Koduvath

Contents in a Nutshell

Grant denotes a right or privilege.
Salmond includes it under ‘Classes of Agreements’.
In Govt. Grants, the Land Continues to be Govt. Lands.
Grant is subject to conditions and restrictions.
Travancore-Grants are made under (various) Rules.
It does not signify absolute ownership.
Travancore Grant Deeds bear the caption “Title Deeds”.
Courts found – no proprietary rights in grant deeds.
Guidance may be drawn from S. 15, Easements Act.
It refers to – “claiming title – as an easement”.
..
Court Decisions
A Planter under a Grant from Govt. is not a Jenmi –
Padmanabharu Govindaru v. State of Kerala, AIR 1963 Ker 86,
Kannan Devan Hills v. State of Kerala, AIR 1972 SC 2301
State of Kerala v. Kanan Devan Hills Co., (1991) 2 SCC 272
State of Kerala v. The Kannan Devan, AIR 1998 Ker 267
..
Govt. cannot assign land on their whims and fancies.
Public trust doctrine imposes limits to Government.
(Mahindra Holidays v. State of Kerala, 2019-2 KLT 978)
..
Patta may be for Personal Cultivation.
In such a case, the assignee cannot get a better title.
(Mahindra Holidays v. State of Kerala, 2019-2 KLT 978)
..
The land is given for personal cultivation.
It cannot be used for another purpose.
Assignees of Pattadar cannot Claim More Rights.
Authorities could not recommend construction.
The local authority could not have issued permits.
The holders are aware of the conditions.
Such permits cannot confer rights on the holders.
Revenue authorities may collude with assignees.
It causes damage to the ecology and environment.
(R. Haridas v. State of Kerala, 2016-4 KLT 707)
..
Rights forfeited, on Claim of Ownership By ‘Grantee’.
(Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730).

What is ‘Grant’?

‘Grant’ is a generic term to indicate ‘transfer’ of property (e.g., sale, lease, gift, etc.).

But, in property law, ‘grant’ does not convey the idea of an ‘absolute transfer’, especially when it is used in place of sale, gift, etc., and it manifests a concession, permission, or settlement (with conditions).
The word ‘grant’ is also used to convey the idea of a donation, aid, easement, or dedication to a trust, among other things.
‘Grant’ is also a technical term to denote conditional transfer of lands by a sovereign; and it is more than a licence (which is personal and does not create an interest in land) and less than an outright and unconditional ‘transfer’ of property.
- Thus, when a ‘grant’ is made, some interest is retained by the grantor; and it arises from a contract, express or implied, with conditions.
It is used to differentiate from a ‘sale’ – sale being ‘an absolute transfer of all rights in the property sold; and no rights are left in transferor’ (Bai Kanku v. Victorbhai Kanjibhai Khristi, AIR 1969 Guj 239; Basanti Mohanty v. Brahmanand Das, AIR 1996 Ori 86; Bhaskaran v. Raghavan, 2021-3 Ker LJ 498).

Is Nomenclature of ‘Grant Deeds’ as ‘Title Deeds’ – a Misnomer?

Travancore Grant Deeds bear the caption “Title Deeds”. Does this nomenclature constitute a misnomer?

No.
The word title does not invariably denote absolute ownership. Guidance may be drawn from Section 15 of the Easements Act, 1882, which says that an easement may be acquired by prescription through open and uninterrupted enjoyment by a person claiming title thereto—that is, claiming a right to the easement and not ownership of the servient land.
Other familiar examples:
- Possessory title, Mortgagee’s title, Tenant’s title, Title to possession, Title to fish.

‘Grant’ – Salmond on Jurisprudence

What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’, as under:

• “…. A contract is an agreement which creates an obligation or a right in Personam between the parties to it. A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth. An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)

Kerala Grants and Leases (Modification of Rights) Act, 1980

Kerala Grants and Leases (Modification of Rights) Act, 1980 was enacted with a view to modify the rights under grants and leases, for cultivation, made by the former States of Travancore and Cochin. The Act was made for the reason that such grants and leases brought about heavy loss to the Government, and they resulted in huge unearned profits to the grantees and lessees; and it was found necessary in the public interest that such undue profits to a few person were to be utilised for the common benefit of the general public.

Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:

“4. Grantees and lessees to pay current seigniorage rates – Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease.”

The Act required the Grantees and lessees also to pay rent to the Government. The Collector was authorised to revise the assessment and rent. The Constitutional validity of this Act was upheld in Majeed v. State of Kerala, 2006(1) KerLT 19.

Travancore Govt. Grants – No Proprietary Rights Conferred

The following decisions held – a Planter under a Grant from the Government is not a Jenmi (beneficial owner).

Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86,
Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
State of Kerala v. The Kannan Devan Hills Produce Co., AIR 1998 Ker 267

During second half of the 19^th century in erstwhile Kingdoms in South India gave very large extent of Government lands, on “grant” to various persons (mostly foreigners) or institutions for putting up plantation.

The lands granted by the Erstwhile (Travancore or Cochin) Sircar continued to be lands belonging to the Sircar, and the grantees did not acquire absolute proprietary rights. It is made clear in the following decisions.-

Clauses in Grant Deeds Construed by Courts to say – No Proprietary rights

The following clauses in the Travancore Grant-Deeds were considered by the Courts to determine whether the Grantees in those deeds obtained proprietary rights over the properties in the Grant Deeds:

“The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved, viz., Teak, Coal-teak, Black-wood, Aboney, Karinthali Sandalwood. Should he carry any timber without the limits of the grant it will be subject to the payment of Kuttikanam or customs duty or both as the case may be in the same way as timber ordinarily felled. In the case of the excepted timber the grantee is required to pay seigniorage according to the undermentioned scale…….
..
“The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
..
“The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
..
“The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”

Acceptance of Rent- Not recognition of Title; Right Not Stand Confirmed by Govt.

In Murlidhar Jalan v. State of Meghalaya, AIR 1997 SC 2690, the Supreme Court held further as under:

“It is true that a lower level officer accepted the rent; and recognition was obviously made on a mistaken impression that the land was required for a public purpose; but on the basis thereof, it cannot be construed that the title of the appellant was confirmed by the conduct of the Government. Accordingly, the declaration of title as land-holder cannot be granted. The High Court, therefore, was right in refusing to grant the relief. It is not a case of taking possession without due process of law. The possession only continues to a facet of the facts. Apart from that there is no other documentary evidence on the basis of which it could be concluded that the title of the Government is defeated by acceptance of the rent or by requisition of the property by mistaken act on the part of the Government.”
See also: R. Hanumaiah v. Secretary to Govt. of Karnataka, 2010 -5 SCC 203.

Rules under which Travancore Govt. issued Grants

The Rules included –

i. Rules for the sale of Waste Land on the Travancore Hills (for Coffee cultivation), 1865.
ii. Rules for the grant of grass lands to Coffee estates, 1877.
iii . Rules for the sale of Waste Lands for Coffee or Tea cultivation, 1913.
iv. Rules for the sale of Government lands on the Travancore Hills for Coffee or Tea cultivation, 1923.

Grant of Reserved Forest Land

Sec. 23 of the Indian Forest Act, 1927, reads as under:

23. No right acquired over reserved forest, except as here provided – No right of any description shall be acquired in or over a reserved forest except by succession or under a grant or contract in writing made by or on behalf of the Government or some person in whom such right was vested when the notification under section 20 was issued.

Corresponding provision in the Kerala Forest Act, 1961 is Section 22. It reads as follows –

“22. No right acquired over Reserved Forests except as herein provided –
No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was published or succession from such person:
Provided that no patta shall, without the previous sanction of the Government be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void.”

Referring Sec. 22 of the Kerala Forest Act, 1961, it is held in Joonktolle Tea And Industries Ltd. v. State of Kerala, Feb. 28, 2020, it is held by the Kerala High Court as under:

“11. … Though the learned Senior Counsel attempts to show a distinction between sale in the said case and an amalgamation in the case on hand, since Section 22 specifically prohibits the ‘acquisition of rights of any nature’ without a grant or contract on writing by the Government, I am of the opinion that the mode of acquisition of the rights would be irrelevant. The prayers sought for in the writ petition, therefore, cannot be granted.”

Important Decisions on Grant

Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301	Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272	Company did not acquire absolute proprietary rights over the Concession Area (under the grant deeds)
Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 –	A coffee planter who holds lands under a grant is not a Jenmi.
Majeed v. State of Kerala,(2006) 1 KerLT 19	Petitioner contended – ‘grant’ was free hold property. The court did not accept.
Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578	Arguement that deed of ‘grant’ ‘for coffee or tea cultivation’ was not a grant, but a title deed was not accepted

Our Apex Court considered the effect of “grant” by the Erstwhile Governments, in the following decisions. The importance of conditional transfer that restrict interest in the property (contra-distinct to absolute transfer) is emphasised in these rulings.

1. Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
3.Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578
4. Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86
5. Majeed v. State of Kerala, (2006) 1 KerLT 19

1. Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301

The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.

Points came for consideration were the following:

1. Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate” in art. 31A of the Constitution.
2. If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)

According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute, owner thereof’.

The position taken by the State was –

that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
- “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja (Travancore) executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land. It contained the following clauses:

Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
“the grantee can appropriate to his own use within the limits of the grant all timber except … Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood……….
..
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer … be immediately made known to the Sircar….”
..
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, ….”
..
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams …. fifty yards …. Similarly … preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”

The Apex Court found the following:

The janmam rights (even if remained with the Poonjar Chief), H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estate and it is the freehold interest.
The Sircar itself is one of these Janmis and it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways.
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.

The Apex Court held that it was difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right” vested with Sircar.

The Apex Court further found –

The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands. “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
It thus appears that the State grants like
- Kanan Devan Hills Concession and
- Ten Square Miles Concession, and
- Munro Lands,
were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar.

On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.

2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272

With respect to the same property it was held in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272, as under:

“The Trial Court in a detailed and well-reasoned judgment dismissed the suit of the company. The Trial Court on the interpretation of First Concession (Exhibit P- 1), Second Concession (Exhibit P-2), deed of ratification (Exhibit P-62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P-64) came to the conclusion that the company did not acquire absolute proprietary rights over the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”

It is observed:

“An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie v. State of Kerala, [1969] K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under:

“We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”

“We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”

It is observed further:

“It was further held by Mathew, J. (in George A. Leslie v. State of Kerala, 1969 KLT 378) that kuttikanam being the governments share of the value of the trees owned by the government it has the power to fix the value of the trees. We agree with the reasoning and conclusions reached by Mathew, J.”

The Apex Court upheld and approved “the judgment and findings” of the Trial Court.

3. George A. Leslie vs State Of Kerala – AIR 1970 Ker 21

In this case, the grant made under the Travancore Regulation II of 1040 and Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865 is considered.

It is observed:

“Ext. P-l is a grant made under the Travancore Regulation II of 1040 and the Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865. It conferred a heritable and transferable interest in the grantees of the land comprised in it. Clause 5 in Ext. P-l, which is identical with Section 5 in Form A of the Rules for the sale of Waste Land on the Travancore Hills, is the relevant provision for deciding this question. It provides:

“Grantees can appropriate to their own use within the limits of the grant all timber except the following and such as may hereinafter be reserved, namely, Teak, Gole Teak, Blackwood, Ebony, Karcomthaly, Sandalwood; should they carry any timber without the limits of the grant, it will be subject to the pay ment of kuttikanom or customs duty or both, as the case may be, in the same way as timber ordinarily felled”.

10. We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”

4. Thomas Philip v. Forest Range Officer – 1923 ‘Grant’ of Travancore Government

Grant made by the Travancore Government, in 1923 was considered in Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578. The Chief Secretary to the Government of Travancore ‘granted’ land ‘for coffee or tea cultivation’. The fifth condition read as under:

“The full right to Royal trees within the grant is reserved and continues to vest in the Government. The Grantee shall be bound to take care of the Royal trees particularised in column 5 of the schedule hereunder written until they are removed or otherwise disposed of by the Government. The Grantee shall also be bound to deliver to the Government all ivory found and other Royalties produced in the land, and all captured elephants, and will be paid the regulated price for the articles of produce, and the regulated reward for the elephant, at the discretion of the Government.

It was contended that the ‘ownership’ of the land was purchased by the petitioner’s father in 1941. He planted trees. The petitioner made an application in 2006 to the Forest Range Officer seeking NOC for felling rosewood trees and teak wood trees. It was denied in view of the fifth condition of title deed to the effect that the full right over all the trees in the properties were fully vested with the Government. The petitioner argued that the 1923 deed is not a grant, but a title deed. The Government Pleader argued that the property held by the petitioner is a grant which would come under the purview of the Kerala Grants and Leases (Modification of Rights) Act, 1980. In view of the said Act, 1980, the appropriation of teak, Blackwood, etc. were subject to payment of seigniorage at the rates specified. Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:

“4. Grantees and lessees to pay current seigniorage rates- (1) Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease.”

On the basis of Jose v. State of Kerala, 2020 (2) KLT 560 and Manoj A.N. v. State of Kerala 2013 (3) KLT 649, it was argued for the State that the trees came into existence subsequent to the assignment was also covered by the Act.

Relying on Gopi v. Tahsildar, 2002 (3) KLT 526, and Majeed v. State of Kerala, 2006 (1) KLT 19, it was contended that that the rights obtained in terms of 1923 grant was not absolute. (The Government Pleader also relied on two unreported judgments – in W.P.(C) No. 804/2006 and Crl. M.C. No. 7347/2017).

The petitioner argued that the restriction was only in respect of the trees made mention in 1923 title deed and the trees sought to be cut and removed by the petitioner are those planted by the father of the petitioner. The Court held as under:

“But, the fifth condition quoted above would show that the grantee is bound to deliver to the Government other royalties produced in the land also and Government is expected to pay regulated price for the articles of produce. The term ‘other royalties produced’ would indeed include subsequently planted royal trees also…..
..
In view of sub-section (1) of Section 4 and the non-obstante clause therein, the petitioner is liable to pay seigniorage for the trees proposed to be cut and removed by him. The fifth condition in Ext.P1 (1923) will stand modified to the extent provided under Section 4(1) of the Act, 1980.”

The High Court concluded analysing the Ext. P1 (1923) Title Deed, Kerala Grants and Leases (Modification of Rights) Act, 1980, Kerala Preservation of Trees Act, 1986 and Kerala Promotion of Tree Growth on Non-Forest Areas Act, 2005 as under:

.(1) The fifth condition in Ext. P1 Title Deed will stand modified by the Kerala Grants and Leases (Modification of Rights) Act, 1980, as per which every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the timber cut and removed from any land held under the grant or lease.
(2) For cutting, uprooting or burning any tree falling within the definition of tree as contained in Section 2(e) of the Kerala Preservation of Trees Act, 1986, it is necessary to obtain previous permission of the Authorised Officer.
(3) Notwithstanding anything contained in any other law, except in respect of trees:
- .(i) reserved by the Government at the time of assignment of such land, or
- (ii) trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 every owner of non-forest land shall have the right to cut and transport any tree, other than sandalwood tree standing on his land.”

Note: Note: In this case, the expression “title deed” does not denote a document conferring full ownership. This can be clarified by the use of the phrase “title thereto” in the definition of ‘Prescriptive Easement’ under the Easement Act.

5. Padmanabharu Govindaru v. The State of Kerala– Coffee Planter under a Grant is not a Jenmi

Following passage from Sri T. Madhava Row’s Memorandum (Travancore Land Revenue Manual) regarding the origin and nature of Jenmom rights is quoted in the Judgment (Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86). Sri T. Madhava Row stated as under:

“A Jenmi is often termed a landlord. But, it must be clearly understood and also always remembered that a Jenmi though certainly a landlord, is a peculiar Kind or landlord. Any person, who holds a pattah from a Collector in a British District and under it holds from the British Government subject to Government tax more or less, is called a landlord in ordinary language.
Even in Travancore, any coffee planter or indeed any ryot, who holds lands under a grant from the Sirkar, etc. , is or may be called a landlord. But, be it remembered, such landlords are not Jenmies.
A Jenmi differs from such landlords in that he does not derive his title to lands from the Sirdar etc. His title to the Jenmom lands is inherent. He is, so far as his Jenmom lands are concerned, a little territorial sovereign in a limited sense. He is landlord of his Jenmom domain exactly in the sense in which this Sirkar is landlord of all the land it grants to planters and indeed to all ryots in general; in the sense in which the British government is landlord of all the Ryotwari lands of the East Coast Zillahs of the Madras Presidency.
It is necessary, in view to avoid errors and misconceptions, to familiarize the mind to this definition of t Jenmi. The origin of Jenmom property may be briefly explained here with a view to make the rights of jenmis clear. Kerala Desom (in which Travancore is included) was originally conquered by Parasurama, and this great warrior parcelled out the conquered lands among a limited number of brahmins. The Brahmins then became territorial lords, each independent of the rest. From that early age, the lands have descended with the tenure almost unimpared. The lands so belonging to each Brahmin are said to constitute his Jenmom, and the Brahmin himself is called a jenmi. These lands, so long as they continue in possession of the Jenmi, are free of all taxation. To this day this exemption continues in full force.
Jenmom lands are precisely what are in Europe called allodial properties as contradistinguished from feudal. It must be clear from what has been stated that all the lands in Travancore belong to a body of jenmis. There are no lands that do not belong to some Jenmi or other. Be it remembered that the Sirkar itself is one of these Jenmis, it having come to possess Jenmom lands by gift, purchase, eacheat, confiscation and other ways. It is only a great Jenmi, great in the sense that its jenmom property is extensive. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Jenmis, i. e. , from the Sirhar, which is the chief Jenmi, or from some other Jenmi”. (pp. 2 and 3 of Travancore land Revenue Manual, Vol. IV)

Note: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 gives us “illuminative information as to the concept of ‘jenmom’” as pointed out in Harrisons Malayalam Limited v. State of Kerala, 2018 2 KerHC 719; 2018 2 KerLT 369 – though this decision was overruled by the larger Bench in Rev. Fr. Victor Fernandez Vs. Albert Fernandez, AIR 1971 Ker 168 :1971 KerLT 216).

It was held in Rev. Fr. Victor Fernandez v. Albert Fernandez that Pandarapattom land in the Travancore area of the State was ‘estate’ within the meaning of Article 31-A(2)(a).

6. Majeed v. State of Kerala Grant and the Right of Ownership

In Majeed v. State of Kerala,(2006) 1 KerLT 19 (K.A. Abdul Gafoor, K. Thankappan, K. Hema, JJ.), the State demanded seigniorage under Kerala Grants and Leases Modification of Rights Act, 1980. Petitioner was a person who purchased trees from Travancore Rubber and Tea Company Ltd. Disputes, and questions arose in the light of the Kerala Grants & Leases (Modification of Rights) Act, 1980. Admittedly, there was originally a grant. The scope of the ‘grant’ was disputed.

The question that came before the Full Bench was –

whether, in the light of Section 4 of the Kerala Grants & Leases (Modification of Rights) Act, 1980, ‘seigniorage (or kuttikanam) is liable to be paid for removal of the timber of the trees stated to be planted by the grantee from a property assigned by way of grant by the Government’.

The legal background for reference to Full Bench was the following:

In State of Kerala v. Kannan Devan Hills Produce Co. Ltd., 1991] 2 SCC 272, our Apex Court has held that “the State Government could refuse to permit transportation of timber from the Concession Area” and the “Government being the owner had a right to impose kuttikanam on the removal of the trees out of the Concession Area.
The Division Bench that referred the matter to the (present) Full Bench noted that a similar matter was considered by a Division Bench, and opined that the contention that Kuttikanam (or seigniorage) could not be charged in respect of “such timber which was planted by the grantee in the Concession Area” was negatived by the Apex Court.
The said decision of the Apex Court has been distinguished by yet another Division Bench of the High Court in State of Kerala v. Kannan Devan Hills Produce Co. Ltd.,1998 (1) KLT 28: AIR 1998 Ker 267 (K.K. Usha, N. Dhinakar, JJ.), holding that “if the Government and intended to claim ownership on the trees which are to be cultivated by the grantee, specific reference would have been made to such trees also in the documents”. The Bench, therefore, concluded that if the trees are planted by the grantee, “the grantee is not liable to pay any seigniorage or kuttikanam in respect of timber of those shade trees”.

The Full Bench, in reference, held as under:

“14. Apart from this, the Special Government Pleader has pointed out to us the departmental rules regarding the sale of waste land, subject to which grant has been made as per Ext. R2(a), which categorically makes it clear that: “The other terms of the grant shall be the same as those that apply to waste lands granted under the coffee land dated 7th July 1898.”_{(The Government Pleader also relied on two unreported judgments – in W.P.(C) No. 804/2006 and Crl. M.C. No. 7347/2017)}
The rules for the sale of wasteland on the Travancore Hills for coffee or tea cultivation provide for reservation of trees to attract Clause (c) of Section 3 of the Act. She further submits that, the grant in terms of Ext. R2(a) is not absolute. Notwithstanding the terms of the lease, the government can, as per Section 4, demand seigniorage from the grantee.”

The contention of the petitioner was that it was the free hold property.

The Full Bench rejected the contention on ‘free hold’..

The rejected contention was stated by the Court as under:
“The petitioner contends that the respondents have no authority to demand seigniorage in respect of the timber of the trees planted by the company, as the property in question granted in favour of the company is not a leasehold property, but a free hold property, as is revealed by the order of grant Exts. R2(i).”

The High Court rejected the Writ Petition recording as under:

“Except the liability to pay seigniorage, nothing remains to be resolved in this Writ Petition. Necessarily, the aforesaid finding shall result in dismissal of the Writ Petition.”

No Rule Against Perpetuity in Public Law;

The Government cannot assign land on their whims and fancies

Section 11 of the TP Act says –

where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

But, in Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978 (A. Muhamed Mustaque, J.), it is held as under:

“6. In private law, any restriction repugnant to the interest created is void except to the extent of securing the beneficial enjoyment of another piece of property belonged to the transferor. (See Section 11 of Transfer of Property Act, 1882). The transferee, therefore, in such cases is free to enjoy property absolutely as if there were no stipulations.
7. In public law, the transfer of an interest or assignment of Government land stands on a different footing. The Government is only a public trustee of the land belonging to the State. The Government cannot assign land on their whims and fancies. The land is a natural resource of utmost importance. Therefore, the Government can distribute the natural resources only adhering to the principles of public trust. No land can be assigned ignoring the public interest and detrimental to the public interest.
8. The subsequent incorporation of Rule 8(3) of the Rules for cancellation of patta cannot be relied upon in this matter as the assignment was prior to the amendment. In the absence of any specific condition for cancellation of assignment in the patta or in the statutory provisions at the relevant time, this Court needs to examine the decision taken to cancel the assignment in the light of the public trust doctrine.
9. In Illinois Cent Co. v. State of Illinois City of Chicago [146 US 387 (1892)], principles relating to public trust doctrine were expounded. It is appropriate to refer the opinion in that judgment which reads as follows:
- ‘The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein’.
10. In M.C.Mehta v. Kamal Nath and others [(1997) 1 SCC 388], the Apex Court observed that the State is the natural trustees of all resources, which are by nature meant for public use and enjoyment, and the State is a trustee under a legal duty to protect the natural resources.
11. In Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571], the Apex Court held as follows:
- “53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
- 54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations….”
12. Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1] at para.114 it was observed as follows:
- “114. It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.”
13. In the Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1] at para.75, it was held as follows:
- “75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.””
Note: Appeal to Division Bench (from Mahindra Holidays & Resorts India Limited v. State of Kerala) is dismissed in Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679.

Original Patta for Personal Cultivation; Assignee cannot have a Better Title

In Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978, it is held further as under:

“17. Admittedly, the present use of land is for commercial purposes. It is for personal gain and to subserve the private interest. Commercial purpose is not one on which the land can be assigned. The Government being a trustee is answerable to the public. The public can question if the Government had failed in its duties when it is found that the land is used for other purposes other than for it was assigned. The beneficiary of cultivation is public. That interest of the public is superadded in such assignment. Thus, even in the absence of statutory provisions or conditions in the patta, anyone can question such use of land for commercial purposes.
18. This Court, in fact, had considered use of land for commercial purposes by the assignee of a patta holder, who was assigned land for personal cultivation in Haridas v. State of Kerala [2016 (4) KLT 707] and held that the assignee of original pattadhar cannot have any better claim conferred on him other than the one conveyed to the pattadhar by the assignment. The use of land for commercial purposes is a fraud on the State. The pattadhar or his assignee has a legal obligation to use the land for cultivation.
19. The learned Senior Counsel argued that the Government authorities have issued certificates to run the resort and, therefore, they are estopped from urging that the petitioner had violated the patta conditions. It was also argued that the Government have waived their right to proceed against the petitioner by acknowledging the acceptance of basic tax and conferring certificates relating to tourism.
20. The equitable principles relating to estoppel and waiver cannot have a bearing when the Government is acting as a trustee. This action to protect the interest of the State. No wrong can give rise to a right. The land belongs to the State. If the Government had failed in its duty to check illegal use of land that will not give rise to an equitable right to a wrongdoer. The principles of estoppel cannot be advanced to promote one’s own wrong. This is not a case between the Government and the holder of the land. It is a matter between public interest and breach of trust by a person, who was in relation with the Government to promote the public interest. The principles of estoppel and waiver cannot be pressed against an action of the Government based on public policy. No action of the Government would bind them if it was against the public policy of the State.”

If Land Assigned for Specific Purposes, it Cannot be used for Other Purposes

Kerala High Court, in Haridas v. State of Kerala, 2016 (5) KHC 615 (K. Vinodchandran, J.), had taken a view that when land is assigned for specific purposes, it cannot be said that if there is no prohibition in using it for any other purpose then, an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. Among others, it was further observed therein that the essence is in the assignment made, for a specific purpose, which survives time and tide. (Referred to in: Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679).

Subsequent Assignees of Pattaadar Cannot Claim More Rights

In R. Haridas v. State of Kerala, 2016-5 KHC 615; 2016-4 KLT 707, held further as under:

“8. … The title acquired of the property, which, admittedly, were Government lands assigned under a statute. The petitioners are assignees of the original pattaadar and cannot have any rights over and above that possessed by the original assignee.
9. The Assignment Rules, by Rule 4, as has been pointed out by the learned Additional Advocate General, has three specific purposes; for which alone land may be assigned. These are – personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. …. The original assignment made, as evidenced by Exhibit P2 in both the writ petitions, admittedly, is not for house-site or for beneficial enjoyment. Such an extent could have been assigned only under Rule 5 for the purpose of personal cultivation. The assignment having been specifically made under a statute and the Rules framed thereunder, none can have a legitimate expectation of enjoyment of the property over and above the purpose for which the same has been assigned.
10. The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation. …. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment ….. . These conditions are also incorporated as ‘Conditions’ in the Patta and the respective Pattas produced are incomplete copies as will be presently noticed.
13. … It is a matter of concern and quiet a surprise that the revenue authorities in the district have been issuing recommendations like Exhibit P6; for carrying out construction activities without noticing the embargo created insofar as the constructions intended at promoting commercial activity.
14. … The prescription for a permit to be obtained from the local authority is only so far as complying with any master plan for development applicable to the area and compliance of the building rules applicable to the panchayats and municipalities, as brought out under the respective statutes. This cannot create a carte blanche in favour of a permit holder to make a construction in an assigned land which would go specifically against the prescriptions laid down in the statute for such assignment. ….
16. …. Hence any time it is found that the purpose for assignment is diverted from, the State could definitely take proceedings for cancellation of the assignment and either vest the lands back with the Government or assign it to others for the purpose of cultivation.
17. … The assignee would have a right to hold the land and enjoy it under the terms of assignment and any violation thereat would be a reason for cancellation of the assignment made. …
20. … The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. ….
21. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula. …”

Forfeiture on Claim of Ownership By ‘Grantee’

There is no specific provision for forfeiture of grant for claiming ‘title as owner’, by grantee (similar to the forfeiture of tenancy for claiming ‘ownership’ by a tenant under Sec. 111(g) of the TP Act).

Will claim of ownership (over the granted-property) by grantee amount to forfeiture?

The answer is – Yes. Following are the reasons:

1. Applying the Principles of ‘Forfeiture of Tenancy’ it being on principles on justice, equity and good conscience. The right of forfeiture (for claiming title as owner, by tenant, under Sec. 111(g), TP Act) is a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Rattan Lal v. Vardesh Chander AIR 1976 SC 588).
2. Analogy to Holding-over in Agricultural lease. The right of ‘holding over’ on termination of lease (if lessor accept rent even after termination of the lease period) is provided under Sec. 116 of the TP Act. Though Sec. 117 of the TP Act exempts ‘leases for agricultural purposes’ (from the whole Chapter), it is pointed out in a good number of decisions that the principles thereof (holding over) would apply to agricultural leases also, if no express prohibition, for it contains the principles of justice, equity and good conscience. (See: Amrit Lal v. Mamleshwar, AIR 1973 Del. 75.)
3. Analogy to Forfeiture (itself) in Agricultural lease. Agricultural leases, being specifically exempted in Sec. 117 (it may be argued), the principles on justice, equity and good conscience may not apply to them as regards forfeiture (under Sec. 111). But, the principles thereon definitely apply to grants, for it is not governed by the TP Act (See: Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)

By the advent of this Act, (i) no statutory notice – under Sec. 106 TP Act – was necessary for evicting tenants from Govt. lands; (ii) no bar to apply the provisions in Sec. 111 (g) of the TP Act to invoke forfeiture provision (for claiming title or violating any provision in the agreement) with respect to agricultural tenancy lands owned by Govt.

Right of Forfeiture is a right arose in Common Law

Section 111, Transfer of Property Act, 1882 says as to forfeiture as to lease. It being based on the common law principles as to justice, equity and good conscience, the principles can be applied to ‘grants’ also; for, (i) the provisions of the Transfer of Property Act are not applicable to ‘grants’ and (ii) no provision of law (as regards grant) stands contrary these principles (Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730).

Section 111, Transfer of Property Act reads as under:

111. Determination of lease – A lease of immoveable property determines—
(a) … to … (f)
(g) by forfeiture; that is to say,
- (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or
- (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or
- (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event;
and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) …

Sec.117 of the Transfer of Proper Act provides as follows:

“117. Exemption of leases for agricultural purposes – None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication.”

The right of forfeiture (for claiming title as owner, by tenant) being a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Ratan Lal v. Vardesh Chander AIR 1976 SC 588), it can be applied in “agricultural leases” also, if no express prohibition.

KM Joseph, J. held in Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730 (when he dealt with Sec. 116) as under:

“Whether the principle of Sec. 116 of the Transfer of Property Act will apply in regard to agricultural lease in view of Sec.117 Act ? …
… But there we may notice that the principle of Sec. 116 would apply even to agricultural leases on the basis of it embodying principles of equity, justice and good conscience. In this connection we may refer to a Bench decision of the Delhi High Court in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75).”

The relevant passage in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75) reads as under:

“16. Shri Bindra placed reliance on Section 117 of the Transfer of Property Act which exempts leases for agricultural purposes from the provisions of Chapter V of the Transfer of Property Act. In Anantmal v. Lala, AIR 1964 Raj 88, it was held that the principle underlying Section 116 of the Transfer of Property Act is based upon considerations of equity, justice and good conscience and in the absence of anything to the contrary the provisions are applicable to cases not governed by the Transfer of Property Act. The principles of Section 116 are applicable to leases of agriculture lands. Similarly in Alphanso Pinto v. Thukru Hengsu, AIR 1955 Mad 206, it was held if there is no agreement fixing the terms of a new lease, the terms of the old lease must be deemed to be applicable. Where the tenant holds over after the expiration of the term, he holds subject to all the covenants in the lease which are applicable to the new situation. Therefore, clause 9 must be held to be one of the terms of the tenancy by holding over. The tenancy must be held to be one subject to the covenants in respect of Sardarkhti rights contained in the original lease deed. The rule that principles of equity, justice and good conscience apply to agricultural leases and that the principle contained in Section 116 of the Transfer of Property Act is a principle of equity, justice and good conscience has been enunciated in a number of rulings, for example in
- Krishna Shetti v. Gilbert Pinto, 2nd 42 Mad 654 = (AIR 1919 Mad 12),
- Gangamma v. Phommakka, (1910) 33 Mad 253,
- Mt. Kesarbai v. Rajabhau Sadasheo Rao, AIR 1944 Nag 94,
- Nanjappa Goundan v. Rangaswami Gounda, AIR 1940 Mad 410,
- Moore v. Makhan Singh, Air 1919 Pat 254,
- Eayo George v. Kacki Muthaliyar, AIR 1953 Trav-Co 299,
- Bainani Properties Private Ltd. v. M. Gulamali Abdul Hossain and Co., and
- Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)”

Should Notice Similar to S. 111(g) Necessarily be Issued to Grantees

“Notice in writing to the lessee of his intention to determine the lease” is essential under Sec. 111(g) (on their claiming title). Whether it is required to be issued to (i) agricultural tenants and (ii) grantees on forfeiture of tenancy/grant (on their claiming title)?

The answer is, No.

The potential argument in favour ‘notice in writing is essential’ is the following –

The notice in writing under Sec. 111(g) of the TP Act embodies a principle of justice, equity and good conscience and therefore there can be no forfeiture unless notice in writing is given to (i) agricultural tenants and (ii) grantees though the statutory provisions of the Transfer of Property Act are not made applicable to such transactions.

But, the following are pointed out (in various decisions) in support of the view that no written notice is needed in cases of (i) agricultural tenants and (ii) grantees –

This provision was introduced by 1929 Amendment only.
This provision was not in force in English law.
Institution of suit itself is a notice to (i) agricultural tenants, (ii) grantees, etc.
It is not equitable to argue that a tenant or grantee, who wilfully forfeited the transaction, is entitled for a notice, on principles of equity.

Plantation activity is not a simple “agriculture” activity

There are ever so many decisions of our courts saying that that plantation activity is a business activity and it is not simple “agriculture” activity (that falls under Sec. 117 TP Act). See:

AIR 2001 SC 2672,
2016(8) JT 287; 2016 (7) SCALE 4,
2018(1) Ker LT 84,
2016(3) Ker LT 592,
1999(3) Ker LT 300.

End Notes

Travancore Grant Deeds Bear the Caption “Title Deeds”

The word title does not invariably denote absolute ownership. A cue may be drawn from Section 15 of the Easements Act, 1882, which says that an easement may be acquired by prescription through open and uninterrupted enjoyment by a person claiming title thereto—that is, claiming a right to the easement and not ownership of the servient land.

Other familiar examples:

Possessory title, Mortgagee’s title, Tenant’s title, Title to possession, Title to fish.

Sec. 15 Easement Act

Sec. 15 Easement Act reads as under:

“15. Acquisition by prescription: Where …… a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.”

What does “claiming title thereto” Mean in this Context?

Answer: Title is not confined to ownership of property; it may also denote a legally recognised right or entitlement, such as an easement.

Peacock in his treatise, “Law Relating to Easements in British India”, Third Edn., at page 608 said as under:

“As an easement is not one of the ordinary rights of ownership, it is necessary that either party claiming or relying on an easement should plead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant“.

Quoting Peacock, in Surendrasingh v. Phirosahah, (Sinha C.J. and Hidayatullah, J.), AIR 1953 Nag. 205, it is held as under:

“No doubt, the words ‘title thereto‘ refers tile of ‘easement’ claimed; and the word ‘title’ was not used in the general sense now used (that is, absolute ownership) in the Indian Easements Act, 1882.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)

Gale on Easements (15th Edn.),Pages 415, reads as under:

“Under the present system of pleading, it is conceived that, whether the section be brought against the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at common law, or under the Prescription Act, and in many cases it is advisable to plead, alternatively, a title by all three methods.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)

Mulla – Code of Civil Procedure (14th Edn.) Volume II, at page 986, states the law thus :

“Easement — A party claiming or relying on an easement should plead the nature of the title thereto, so as to clearly show the origin of the right, whether it arises by statutory prescription or express or implied grant, or the old common law method of a lost grant.”

‘Title Thereto’ refers to Title of an Easement

Though the word ‘title’ is now generally used to denote absolute ownership, in the Indian Easements Act, 1882, the phrase ‘title thereto’ refers specifically to the title of an easement.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Copyright and Copyright Infringement – Indian Law

Jojy George Koduvath

Abstract
# Copyright is a Statutory Right (Governed under The Copyright Act, 1957).
# No Copyright in an Idea or Theme of Work.
# Violation of Copyright – Only If:
—- It makes an Unmistakable Impression – Later work is a copy of the Original
—- There is Fundamental or Substantial Similarity.
—- Reproduction in any Material Form (Exact copy, or Substantially a Copy).
# A literal imitation of the copyrighted work with some variations here and there would amount to a violation of the copyright.
# Copyright is explained in Section 14 (Meaning of copyright) of The Copyright Act, 1957; and Section 51 lays down – ‘When copyright infringed‘.

R.G. Anand v. Delux Films— Foundational Indian Decision

R.G. Anand v. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118 (S. Mutrtaza Fazal Ali, Jaswant Singh, R.S. Pathak, JJ.) is the foundational Indian decision on copyright infringement.

This decision –
- .(i) dealt with the dichotomy, ‘Idea v. Expression’ and
- (ii) laid down – ‘Test of Substantial Similarity’

Facts in a Nutshell— R.G. Anand v. Delux Films

The appellant had written a play in Hindi.
One film director produced a motion picture a few years after the appellant’s play was published.
The appellant complained that the film was based entirely on his play and sued for damages on account of infringement of copyright.
The action was dismissed, observing that there could be no copyright in the theme of the work.
The decree was affirmed by the High Court.

In such a context, it is held – “In such a case, the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work.”

Law Laid Down In R.G. Anand V. M/S. Delux Films

In R.G. Anand v. M/s. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118, held as under:

“46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
. 1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.”
(Quoted in: Academy of General Edu. , Manipal v. B. Malini Mallya, AIR 2009 SC1982; 2009-4 SCC 256)

Coincidences or Similarities

In Corelli v. Gray, (1913) 29 TLR 570, Sargant, J. observed as under:

“The plaintiffs case is entirely founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may be due to any one of the four hypotheses – namely (1) to mere chance, or (2) to both sketch and novel being taken from a common source; (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any of the first three hypotheses would result in the success of the defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed.”
“Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one in which the proof is cumulative, I am irresistibly forced to the conclusion that it is quite impossible they should be due to mere chance coincidence and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiffs novel.” (Quoted in: R.G. Anand v. M/s. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118)

Aggregate of the Similarities and Cumulative Effect Matters

In R.G. Anand v. M/s. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118, it is said as under:

“Thus it was pointed out in this case (Corelli v. Gray, (1913) 29 TLR 570) where the aggregate of the similarities between the copyrighted work and the copy lead to the cumulative effect that the defendant had imitated the original and that the similarities between the two works are not coincidental, reasonable inference of colourable imitation or of appropriation of the labour of the owner of the copyright by the defendant is proved. This case was followed by the Master of Rolls in the case of Corelli v. Gray (1914) 30 TLR 116.
22. The case of Hawkes and Son (London) Limited v. Paramount Film Service Limited (1934) 1 Ch D 593 was whether a musical composition made by the owner was sought to be imitated by producing a film containing the said composition. An action for violation of the copy right was filed by the owner. Lord Hansworth, M. R. found that the quantum taken was substantial and a substantial part of the musical copyright could be reproduced apart from the actual film. In this connection, Lord Hansworth observed as follows:-
“Having considered and heard this film. I am quite satisfied that the quantum that is taken is substantial, and although it might be difficult, and although it may be uncertain whether it will be ever used again, we must not neglect the evidence that a substantial part of the musical copyright could be reproduced apart from the actual picture film”.
Similar observations were made by Lord Slesser which may be extracted thus:-
“Anyone hearing it would know that it was the march called “Colonel bogey” and though it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital and an essential part which is there reproduced. That being so, it is clear to my mind that a fair use has not been made of it; that is to say, there has been appropriated and published in a form which will or may materially injure the copyright that in which the plaintiffs have a proprietary right”.
“27. In the case of Frederick B. Chattertom and Benjamin Webster v. Joseph Arnold Cave (1878) 3 AC 483 Lord Hatherley observed as follows:-
‘And if the quantity taken be neither substantial nor material, if, as it has been expressed by some Judges, ” a fair use” only be made of the publication, no wrong is done and no action can be brought. It is not, perhaps, exactly the same with dramatic performances. They are not intended to be repeated by others or to be used in such a way as a book may be used, but still the principle de minimis non curat lex applies to a supposed wrong in taking a part of dramatic works, as well as in reproducing a part of a book’.
‘”‘I think’ my Lords, regard being had to the whole of this case, to the finding of the Lord Chief Justice that the parts which were so taken were neither substantial nor material parts, and the impossibility of damage being held to have accrued to the plaintiff from such taking, and the concurrence of the other Judges before whom the case was brought, that this appeal should be dismissed, and dismissed with costs’.”

Copyright Subsists in Work, Not in Title

In Krishika Lulla v. Shyam Vithalrao Devkatta, 2016-2 SCC 521, our Apex Court, holding that ‘copyright subsists in work, not in title’, it is held as under:

“A title by itself is in the nature of a name of a work and is not complete by itself, without the work.”

Eastern Book Company v. D.B. Modak

Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, is another important decision on this subject. It is held in this case as under:

“57. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.”
(Quoted in: Academy of General Edu. , Manipal v. B. Malini Mallya, AIR 2009 SC1982; 2009-4 SCC 256)

The Dichotomy: ‘Idea v. Expression’ : UK and US Decisions

UK and US courts recognized this dichotomy as fundamental to the doctrine of copyright. In Hollinrake vs. Truswell (1894) 3 Ch.420, Lindley, L.J. expressed it as under:

“Copyright …………. does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied the copyright is not infringed.” (Quoted in: Shamoil Ahmad Khan v. Falguni Shah, 2020-4 AllMR 555).

This maxim has been often repeated in later copyright cases and finds expression even in the celebrated case of R.G. Anand vs. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118.

The US Supreme Court in Mazer vs. stein (1954) US SC 36 put the matter as under:

“Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – not the idea itself.” (Quoted in: Shamoil Ahmad Khan v. Falguni Shah, 2020-4 AllMR 555).

The US case of Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930), said it in the following words :

“Upon any work, and especially upon a play, a great number of patterns of increasing generality fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.”

Copyright is a Statutory Right

Krishika Lulla v. Shyam Vithalrao Devkatta, 2016-2 SCC 521,
R.G. Anand vs. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118
E. M. Forster v. A. N. Parasuram, 1964-2 SCJ 186
Macmillan and Company, Limited v. K. and J. Cooper, AIR 1924 PC 75.

Note: Passing off (protection of goodwill and reputation) is traditionally a common-law action and survives independently of statute.

Modern copyright systems throughout the common-law world, including India, follow the statutory model.

The Delhi High Court, in Giant Rocket Media And Entertainment Pvt Ltd v. Priyanka Ghatak, 2020 0 Supreme(Del) 1230 (Rajiv Sahai Endlaw, J) dismissing the petition of the plaintiff, held as under:

.(A) Copyright is a statutory right and no right outside the statute exists. Reference in this regard can be made to
- Time Warner Entertainment Company L.P. Vs. RPG Netcom, (2007) 140 DLT 758 ,
- Entertainment Network (India) Ltd. Vs. Super Cassette Industries Ltd., (2008) 13 SCC 30 ,
- Krishika Lulla Vs. Shyam Vithalrao Devkatta, (2016) 2 SCC 521 ,
- Navigators Logistics Ltd. Vs. Kashif Qureshi, (2018) 254 DLT 307 and
- Satish Kumar (supra) Satish Kumar v. Khushboo Singh, MANU/DE/3411/2019.
Thus, unless a case of defendant No.3 having any copyright and the defendants No.1&2 having infringed the same is made out, the plaintiff is not entitled to any interim relief on the said ground.
(B) Per Section 13 of the Copyright Act, copyright subsists in, (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. The copyright claimed by the plaintiff being in a book authored by the defendant No.3, the same will fall under the category of “literary work”. However, for a copyright to subsist in a literary work, it has to be “original“.
(C) In Macmillan & Company Ltd. Vs. K & J Cooper, (1924) AIR PC 75 , it was held that the word “original” does not mean that work must be the expression of original or inventive thought; Copyright Act is not concerned with originality of ideas, but with the expression of thought and in the case of literary work, with the expression of thought in print or writing; the originality which is required, relates to expression of the thought but the Act does not require that the expression must be an original or novel work but that the work must not be copied from another work. Comparatively recently, in Eastern Book Company Vs. D.B. Modak, (2008) AIR SC 809 , it was held that,
- (a) the words “literary work” cover work which is expressed in print or writing, irrespective of, whether the quality or style is high;
- (b) the commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection, will not be entitled to copyright;
- (c) the word “original” demands only that the work should not be copied but should originate from the author;
- (d) the Court has to see whether the work is a result of skill or expense and if finds it so, it is entitled to be considered original, and to be protected against copying;
- (e) copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work; and,
- (f) the courts will have to evaluate whether derivative work is not the end product of skill, labour and capital which is trivial or negligible but substantially the Courts need not go into evaluation of literary merit of derivative work or the creative aspect of the same.
The Division Bench of this Court in Dart Industries Inc. Vs. Techno Plast, (2016) 233 DLT 1, held that the content of what is “original” has undergone considerable change from the previously applicable “sweat of the brow” doctrine to the “modicum of creativity” standard. It was held that while under the “sweat of the brow” doctrine copyright was conferred on works merely because time energy skill and labour was expended, now under the “modicum of creativity” standard not every effort or industry or expending of skill results in copyrightable work but only those which create works that are somewhat different in character, involve some intellectual effort and involve a certain degree of creativity. Reference in this regard may also be made to
- The Chancellor Masters and Scholars of the University of Oxford Vs. Narendra Publishing House,MANU/DE/1377/2008,
- Mattel Inc. Vs. Jayant Agarwalla, (2008) 153 DLT 548 , Reckeweg and Co. GMBh Vs. Adven Biotech Pvt. Ltd.,MANU/DE/0961/2008,
- Syndicate of the Press of the University of Cambridge Vs. B.D. Bhandari, (2011) 185 DLT 346 (DB) ,
- Emergent Genetics India Pvt. Ltd. Vs. Shailendra Shivam,MANU/DE/3012/2011,
- Tech Plus Media Private Limited Vs. Jyoti Janda,MANU/DE/2438/2014 and
- Navigators Logistics Ltd. supra.
(D) Though the entire book authored by the defendant No. 3 has not been placed before this Court, with only a copy of the cover and table of contents thereof together with Chapter 7 thereof filed but a reading of the preface thereof reveals that the defendant No.3, in the book has narrated facts about the incident that created news and the book is described as a tale of investigation and prosecution by the CBI that never saw the light of the day. Chapter 7 of the book is defined in the preface as “a crime of passion” and showing “how blue blood suffers from streaks of jealousy and lust and commits murder most vile”. Chapter 7 also describes Syed Modi Murder case as a fascinating case of political interference, changing the course of law.
(E) In paragraph 6 of the plaint, it is pleaded that the defendant No. 3 from his career in CBI from August, 1963 till his retirement as Joint Director in April, 1996, acquired a deep understanding of the inner workings of the CBI and its interplay with the political system and the book contains a series of highly original narratives of important cases with selection and compilation of facts and materials such as could only have been made by defendant No.3 with his narrative skills and deep understanding of the working of the criminal justice system in matters of the kind handled by the CBI.
(F) Applying the law aforesaid, it cannot be said with certainty at this stage, whether Chapter 7 of the book with which this suit is concerned constitutes an “original literary work” or is merely a reproduction of the case files of the crime and its prosecution. If it turns out that it is merely a reproduction, with no innovative thought and creativity, it would not qualify as a copyrighted work. The plaintiff has not produced before this Court the said case files with which a comparison of Chapter 7 can be made and thus the plaintiff cannot be said to have a prima facie case as the defendant No.3, through whom the plaintiff claims, cannot be said to have a copyright. It is in this context only that I had enquired from the counsel for the plaintiff, whether the Investigating Officer of a crime and prosecution has any copyright in the charge sheet filed and/or investigation done. In my prima facie view, the Investigating Officer has no such copyright and if narrates the same in print or otherwise elsewhere, would not have a copyright therein also.
(G) Per Section 14 of the Copyright Act, copyright means the exclusive right to do or authorize the doing of acts mentioned therein. With respect to the literary works, the exclusive right is to inter alia reproduce the work in any material form and to make any cinematograph film in respect of the work. Thus, even if the defendant No.3, through whom the plaintiff claims were to have any copyright in Chapter 7, it was incumbent upon the plaintiff to, in the plaint, make out a case of the book of the defendant No.1 having reproduced any part of Chapter 7 in any material form and/or of the defendant No.2 in its web series having made a cinematographic film with respect to Chapter 7 of the book of the defendant No.3. The plaint is bereft of any pleas in this regard. In fact, the counsel for the plaintiff or the counsel for the defendant No.3 in their arguments have not even attempted to make any comparison of Chapter 7 of the book of the defendant No.3 with the book of the defendant No.1 or between Chapter 7 and the film script of the web series of the defendant No.2. Rather, the counsel for the plaintiff, on enquiry, whether has watched the web series, has answered in the negative. Without the plaintiff pleading a case of reproduction of Chapter 7 of defendant No.3”s book or summary of the script of the web series with Chapter 7, no cause of action on the ground of infringement of copyright is found pleaded in the plaint. The plaintiff appears to have filed the suit on the assumption that production of the web series by the defendant No.2, after approaching the plaintiff and defendant No.3 to acquire rights in the book of the defendant No.1, to be itself constituting infringement of copyright but which, as aforesaid, is not the position in law. Even if both Chapter 7 of the book of the defendant No.3 and the book of the defendant No.1 along with the web series of the defendant No.2, are premised on the Syed Modi Murder case which was in public domain, no case for infringement of copyright will be made out.
(H) A reading of Chapter 7 and portions of the book of the defendant No.1 also shows the two, though to be concerning the same case, to be as different as chalk and cheese, with Chapter 7 of the book of the defendant No.3 reeking of official language and the book of the defendant No.1 flavored as fiction and covering not merely the crime and its prosecution but other parts of the lives of the dramatis persone of the drama which unfolded with the crime, with wide coverage, not only in Delhi newspapers, but in other periodicals. In fact, even till date whenever photographs of the survivors of the incident appear, even if in some other context, but are always invariably with reference to the crime and its prosecution. The said crime is as iconic in the history of Indian crimes as the Nanavati Murder case of the erstwhile times and the Talwar and Nithari case of comparatively recent origin with, as far as I remember, four films and one web series having been produced inspired by the Nanavati Murder case. Thus, no prima facie case of infringement of copyright even if any is pleaded or an attempt to prove the same is made out.
Perhaps realizing so, the counsel for the plaintiff, early in his arguments, based his arguments primarily on breach of confidentiality. However as aforesaid noticed and also argued by the senior counsel for the defendants No.1&2, the plaint is bereft of any plea of any relationship of confidentiality between the parties or anything in confidentiality having been transacted between the parties. All that the plaintiff has pleaded is the repeated approaches made by the defendant No.2 to the plaintiff and the defendant No.3 to acquire rights in the book of the defendant No.3 and defendant No.3 though initially having shown reluctance thereto having subsequently informed the defendant No.2 of its willingness to negotiate. There is not an iota of plea of any jural relationship having come into existence on the premise of confidentiality.
(J) The only response of the counsel for the plaintiff when quizzed in this respect was that the book of the defendant No.3 was already in public domain. However if that was so, the same negates any ground urged of confidentiality.
(K) As far as the judgments relied upon by the counsel for the plaintiff are concerned, in Zee Telefilms Ltd. supra, the plaintiff was found to have developed a novel concept of Bal Krishna residing with a family whose life is disturbed and solving their troubles and of having developed the said idea into a plot which was submitted to defendant No.1 in trust and it was further found that the defendant No.1, in an attempt to wriggle out of culpability sought to contend that at about the same time, the defendants No.2&3 approached the defendant No.1 with the same plot. The Court found the two works to be having striking similarity and further found it impossible to accept that the similarities in two works were mere coincidence. It was for this reason that injunction was granted. As distinct therefrom, Chapter 7 of the book of the defendant No.3 is not based on any novel concept but on a crime and its prosecution, already in public domain and the possibility of the defendant No.1, much after publication of book by the defendant No.3 having chosen to write a piece of fiction premised on the same crime and its prosecution, is writ large, particularly when the law permits the same and no similarity is found between the two works much less reproduction by the defendant No.1 or the defendant No.2 of the work of the defendant No.3.
(L) Thus, no pleadings or cause of action for grant of any interim relief to the plaintiff on the ground of breach of confidentiality is made out. In view thereof, the need to deal with the existence of the right of confidentiality in the context of Indian Law is not felt.
(M) The plaintiff is giving undue emphasis to the change effected by the defendant no.2 in its web series with respect to the game played by the victim. The same is of no significance to the entitlement of the plaintiff to the relief claimed.
(N) Merely because the defendant no.2 approached the plaintiff and defendant no.3 for acquiring rights in the book of the defendant no.3 would also not entitle the plaintiff to the relief without plaintiff making out a case of having a copyright and infringement thereof or of the defendant no.2 having misappropriated anything handed over to it in trust or confidence. What has to be judged is the conduct of the defendant and if the said conduct is found to be above law even though the defendant no.2 under misconception/ignorance of law or otherwise was earlier of the view that consent of the plaintiff and/or defendant no.3 was required, the same would not estop the defendant no.2 from, on realising the correct position in law, proceeding to make and release the film/web series without any agreement with the plaintiff or defendant no.3.
(O) I am also of the view that the ex-parte relief as granted against the defendants no.1& 2 on 3rd January 2020, even though couched in the language of a prohibitory injunction, owing to undisputed release of the web series by the defendant no.2 on 1st January 2020 was in exparte ad-interim mandatory form. Rather, it was incumbent upon the counsel for the plaintiff to, at the time of hearing on 3rd January 2020, inform the court of the web serial having already been released on 1st January 2020 and to request the court to direct the said web series to be taken down and which the plaintiff failed to do.
(P) Not only is the plaintiff not found to be having a prima facie case but the plaintiff is found to fail on the anvil of irreparable loss and injury and balance of convenience. The defendant no.2 having already made and released the web series, at a huge cost would suffer irreparable loss on being restrained to reap the benefit of not only the monies invested but also the effort of love for filmmaking, including of all artists involved in the making thereof. On the contrary, the plaintiff, even if ultimately succeeds, can always be compensated in monetary terms and post facto recognition conferred on the defendant no 3. The senior counsel for the defendants no.1&2, yesterday on enquiry informed that a sum of Rs.14 crores had been expended on making of the web series. I had yesterday only enquired from the counsel for the plaintiff, whether was willing to furnish security to the defendant in the said sum plus reasonable profits likely to be reaped therefrom. No response was given, neither yesterday nor today.
(Q) I must however observe that even though the plaintiff is not found to have made out a case for interim relief but the defendants No.1&2 are also not found to be playing fair and making a clean breast of the state of affairs. However, such conduct of the defendants No.1&2 would not be a ground for granting interim relief to the plaintiff.

End Notes

Section 14(a) in The Copyright Act, 1957

14. Meaning of copyright.– For the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely—

.(a) in the case of a literary, dramatic or musical work, not being a computer programme,—
- .(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
- (ii) to issue copies of the work to the public not being copies already in circulation;
- (iii) to perform the work in public, or communicate it to the public;
- (iv) to make any cinematograph film or sound recording in respect of the work;
- (v) to make any translation of the work;
- (vi) to make any adaptation of the work;
- (vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme:
- .(i) to do any of the acts specified in clause (a);
- (ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programmer:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]
(c) in the case of an artistic work,–
- to reproduce the work in any material form including–
- the storing of it in any medium by electronic or other means; or
- depiction in three-dimensions of a two-dimensional work; or
- depiction in two-dimensions of a three-dimensional work;]
(d) in the case of a cinematograph film,–
- .(i) to make a copy of the film, including–
  - (A) a photograph of any image forming part thereof; or
  - (B) storing of it in any medium by electronic or other means;]
- (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film.]
- (iii) to communicate the film to the public;
(e) in the case of a sound recording,–
- .(i) to make any other sound recording embodying it 6[including storing of it in any medium by electronic or other means];
- (ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;]
- (iii) to communicate the sound recording to the public.

Explanation.–For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation].

Section 51 of the Copyright Act, 1957:

“51. When copyright infringed – Copyright in a work shall be deemed to be infringed–

.(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act–
.(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
(b) when any person–
- makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
- distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
- by way of trade exhibits in public, or
- imports into India,
- any infringing copies of the work:

Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.

Explanation.-For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Survey and Revenue Authorities Do Not Decide TITLE

Title to be Established by Title Deeds, and Survey and Revenue Records can be Relied on to show Boundary and Possession

Saji Koduvath, Advocate, Kottayam.

Contents in a Nutshell

Relevant Provisions in the Bharatiya Sakshya Adhiniyam, 2023
S. 29, BSA: Entry in public record or an electronic record made in performance of duty are relevant.
S. 82, BSA – Court shall presume maps or plans made by the Central Government or State Government are accurate.
Survey Would Not Confer Title; Survey Authorities Not to Decide Title
The properties are identified by title deeds. The survey or resurvey would not confer title. Survey or resurvey records are not documents of proof of title.
State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Survey authorities not to decide title: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
Entry in resurvey and revenue records (on subjective satisfaction) would not lose title
Cochin Devaswom Board v. Union of India, 2023-6 KHC 328.
Simply because resurvey plan, no title conferred
Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67 (N.K. Balakrishnan, J.).
Title and Possession Decided by Civil Court
The title and possession are matters to be decided by a Civil Court. Resurvey under S. 13 has to yield to the adjudication by the Civil Court based on title: Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.)
Title would prevail over Revenue/Survey records
In title declaration suits, survey plan & revenue records are less significant; in suits involving title dispute, title would prevail over revenue records: Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Title to property has to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
Reliefs are not denied merely on entries in revenue records/resurvey records – Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey Conclusive Proof on Boundaries
Survey authorities determine the boundaries of the land: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
Survey conclusive proof, boundaries determined & recorded correctly; it will not affect the right and title: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
Title to be Established by Title Deeds; Not with reference to the Survey demarcation
A party to the suit has to establish the title to a property by producing its title deed. In Title declaration suits, survey plan & revenue records are less significant.
Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418; Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey and Revenue Records can be Relied on to show Boundary and Possession
Survey Records shall be conclusive proof of boundaries and presume correctness. Therefore, one can rely on the presumption that the survey records establish possession and boundary.
Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418 (Vide: Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KHC 699, Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)], Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and Achama Alexander v. Assistant Director, Survey and Land Records (2022 (2) KHC 131); Thomas v. Philip,2022(4) KerHC 451;.
This view is fortified by the decisions of the Kerala High Court in:
- Kannan v. Kannan (1964 KLT 228), The Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KerHC 699), Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717); Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.); Ibrahim v. Saythumuhammed, (2013 (4) KLT 435); Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198); Thomas v. Philip (2022(4) KerHC 451); Elambilan Nani Amma v. Mulavana Antony (2023-7 KHC 418).
Survey Raises Presumption of Possession
When a person is holding a survey division, there is presumption of possession: Achuthan Unni v. Vally, 1962 KLT 1010. Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, (Quoted in: Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)
Survey authorities determine boundaries – Based on Possession, predominantly based on possession: Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) It is.
Survey authority is empowered to determine the disputes regarding the fixation of boundary; not empowered the survey authority to change the ownership: Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198
Entries in Revenue Records or Jamabandi serve only a “fiscal purpose”
Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation is for revenue or fiscal purposes
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation not create or extinguish title; No presumptive value of Title
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Balwant Singh v. Daulat Singh (D) By Lrs., (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191.
Title is Not Proved by Revenue Entries
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802.
Jubin v. Village Officer, Koottickal Village – 2026(3) KLT 532 [Relied on: Santhosh Jacob v. Tahasildar, Muvattupuzha Taluk, 2024(2) KHC 665;Marunnoli Vijayalakshmi v. Tahasildar, Koyilandi, 2019(2) KLT 373, 2019(1) KHC 142]
Revenue Records can raise a presumption regarding possession.
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319.
Fabricated records in collusion – not defeat rights of Govt.
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Baleshwar Tewari v. Sheo Jatan Tiwary, (1997) 5 SCC 112 ; State of Punjab v. Sadhu Ram, (1997) 9 SCC 544; R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203.

Survey-Plan: Presumption under Section 82 BSA

Section 82 of the Bharatiya Sakshya Adhiniyam, 2023, provides as under:

“82. Presumption as to maps or plans made by authority of Government: The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.”

Properties Identified on Title Deeds

The properties are to be identified based on the title deeds.
The changes in the extent of the property in the resurvey would not confer title.

Survey Authorities Not to Decide Title

It is not for the survey authorities to decide the question of the title (based on resurvey records).
The decision of the survey authorities shall not affect the right and title of the properties acquired by a party as per a valid title deed.

In Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706, it is held as under:

“13. Section 2(vi) of the Kerala Survey and Boundaries Act, 1961 defines “survey.” …. But this definition or any other provision in the Act confers (no) power on the survey authorities to decide a question regarding title to a property.”
“15. Under Section 9 of the Act the Survey Officer has power to determine and record as undisputed any boundary in respect of which no dispute is brought to his notice. As per Section 10 of the Act, where a boundary is disputed, the survey officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision. Those provisions make it clear that the powers invested on the Survey Officers as well as the District Collectors under the Act is only to determine the boundaries of the land and not to decide title to the properties. Its corollary is that the survey authorities or the District Collector shall not decide the question of the title based on resurvey records.”
“16. In Nandakumar v. District Collector, Ernakulam, 2018 (2) KHC 58, a Division Bench of this Court observed that land conservancy proceedings cannot be carried out merely based on re-survey records. Entries in re-survey records are predominantly on the basis of possession as of now. They would be totally worthless, when the question is as to whether lands vested in Deities and controlled by the Devaswom Boards or trustees have been encroached upon and reduced to occupation by private persons or other agencies. Obviously, the prior revenue records have to be looked into to ascertain whether there is any parcel which stands vested, in a particular Deity. If that be so, collateral materials will also have to be looked into to ascertain the genesis of the property. Even if there is no revenue record in that regard, the vesting, if any, in any deity has to be ascertained.”
19. As pointed out above the survey or resurvey records are no documents of proof of title to a property. …. The learned Special Government Pleader would submit in this regard that property in question assumed the character of a road having the potential of being a public utility and in the user of the general public. …. It vested in the panchayat under the provisions of Section 169(1) of the Pancayat Raj Act. The learned Special Government Pleader placed reliance on Mariam Beevi vs. Secretary, Athirampuzha Grama Panchayath, Kottayam and Others, 2015 (2) KLT 768 : 2015 (3) KHC 199 to fortify his contention. The said decision rendered by a learned Single Judge was affirmed by a Division Bench of this Court in Mariam Beevi vs. Secretary, Athirampuzha Grama Panchayath, Kottayam and Others, 2017 SCC Online Ker. 7182.
20. …. The local authority would have maintained it out of its social obligation. Albeit such maintenance, the road never was brought to the asset register. It being a property of the Deity, by such an overt act of tarring alone, the title of the Deity will not be divested. There shall be a process known to law, such as acquisition, voluntary transfer, etc. for the Deity to lose its title to a property. In that view of the matter, the law laid down in Mariam Beevi 2015 (3) KHC 199 cannot have application to this case.
21. As observed hereinbefore entry in the resurvey and revenue records that the property is a puramboke, obviously, is on the basis of the subjective satisfaction of the authorities concerned. That would not have the effect of losing title of the Devaswom to the property in question. The 3rd respondent without understanding the law in the proper perspective took the view in Ext.P14 order that the petitioner does not have right in the road in question thereby cancelling the settlement of it in favour of the Devaswom and denied compensation.”
“23. In Manharlal Shivlal Panchal and Others vs. Deputy Collector and Special Land Acquisition Officers and Others, 2022 SCC Online SC 1707 : 2023 (1) CCC 18, the Apex Court considered a question whether on account of the delay, which has sufficient justification, the claim for compensation could be rejected as barred by the law of limitation. Under Section 18(2) of the Land Acquisition Act, a claim has to be made within six months. ….. The facts of this case are different. But, the infraction of law occurred in the process of acquisition, especially that no notice as contemplated in Section 9(3) of the Land Acquisition Act was given to the petitioner, certainly justifies the delay in staking the claim.”

Revenue Records not confer title; It is for ‘fiscal purpose’; Civil Court Decides Title

Suraj Bhan av. Financial Commissioner, 2007(6) SCC 186, held as under:

“9. There is an additional reason as to why we need not interfere with that order under Art.136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Others, AIR 1994 SC 1653: 1993 KHC 989: 1993(4) SCC 403)”.

Title and Possession Decided by Civil Court

The title and possession are matters to be decided by a Civil Court.

Merely because a portion of the plaintiff’s property is shown in the resurvey records as with defendant’s survey number, it cannot lead to an inference that possession was with the defendant.

In Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.) held as under:

“The questions of law regarding conclusiveness of the re-survey conducted under the Survey Act is held against the appellants and in favour of the 1st respondent/plaintiff. Necessarily, the resurvey conducted under Section 13 has to yield to the adjudication by the competent Civil Court with respect to the identity based on title.”

In Title Declaration Suits, Survey Plan & Revenue Records are Less Significant

In Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380, it is observed as under:

“16. … When a suit for recovery of possession has been filed on the strength of title or in a suit for title declaration, title would prevail over revenue records and resurvey numbers. To put it differently, tax receipts, survey plan, resurvey plan or revenue records do not confer title to anybody, when there is title deed in relation to the said property in favour of the title holder. Therefore, in suits involving title dispute, title would prevail over revenue records, if it is found on measurement that the property covered by the title deed is identified properly justifying the declaration of title and recovery of possession on the strength of title. The said reliefs never be denied merely on the ground that in the revenue records/resurvey records, the said portion of the property is not shown as the property of the plaintiffs.

Survey Conclusive Proof – Boundaries Determined & Recorded Correctly

In Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418, it is observed as under:

“It is also trite that the decisions of the survey authorities under Chapter II of the Act (Kerala Survey and Boundaries Act) will not affect the right and title of the property acquired by a party as per a valid title deed. The right and title to property have to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed. The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly. (Vide: Cheriyanad Grama Panchayath v. The State of Kerala and Ors. (2019 (5) KHC 699, Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)], Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and Achama Alexander (Died. Lrs impleaded) and Others v. Assistant Director, Survey and Land Records and Others (2022 (2) KHC 131).”

The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly (when survey was made). This view is fortified by the decisions of the Kerala High Court in:

Kannan v. Kannan (1964 KLT 228),
The Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KerHC 699),
Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717);
Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.);
Ibrahim v. Saythumuhammed (2013 (4) KLT 435);
Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198);
Thomas v. Philip,2022(4) KerHC 451;
Elambilan Nani Amma v. Mulavana Antony, 2023-7 KHC 418.

Survey and Demarcation of lands raises Presumption of Possession

In Achuthan Unni v. Vally, 1962 KLT 1010, it is held as under:

“3. The survey and demarcation of lands by the State have a purpose; they are intended to identify the different pieces of land so as to regulate the rights of landholders. Rights in land will normally be presumed to be in terms of the survey divisions. When a person is admitted or found to be in possession of a survey division, the presumption is of such possession being extensive with the survey division concerned; and he is not to be constrained to prove his possession of every inch of it. It is then for the person who asserts the contrary to prove by positive evidence that a defined portion thereof is in his adverse possession and has been lost to the owner thereof. If the court finds the same, the Land Records will be corrected accordingly sub-dividing the original survey division so as to demarcate each holding with separate survey number.”

In Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, it is held as under:

5. Where the disputed land is a narrow strip, (in this case, it is of width ranging from two or three feet) at the verge of the plaintiff’s land adjoining the defendants’ property it would in most cases, be difficult to prove its actual possession as such. If the remaining portion of the plaintiff’s land is admitted or found to be in the plaintiff’s possession, the same must be held to extend to the border, unless there be clear evidence to the contrary. In other words, when a person is admitted or found to be in possession of his land identified by a Survey Number and the dispute by the adjoining landholder concerns only a narrow strip at the mutual boundary, the possession of the former will be presumed to be coextensive with the relative survey division and the burden will be on the party claiming the encroachment to prove his adverse possession thereof for over the statutory period (of 12 years). [See: Achuthan Unni v. Vally, 1962 KLJ 400].” (Quoted in: n Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)

Simply Because Resurvey Plan – No Title Conferred

In Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67 (N.K. Balakrishnan, J.), the argument of the appellant in the Second Appeal was laid down by the court as under:

“5. The learned counsel for the appellant submits that the appellant who was examined as PW1 had a definite case that her property extends up to the ‘chal’ and the ridge on the eastern side of the property and so the findings entered by the appellate court that the boundary of the respondents’ property should be along the ‘EF’ line, cannot be accepted at all. Simply because resurvey was conducted and a plan was drawn by the Survey Authorities, it cannot be said that the appellant’s property does not extend up to the dotted line shown by the Commissioner, which is actually the natural boundary of the property, it is argued.”

Dismissing the second appeal, it is held as under:

“12. If it is a case where large extent of property lying in a different survey number is claimed by the plaintiff based on a survey record alone, when actually it is in the possession of the defendant, the plaintiff has to seek recovery of possession of that large extent of property which is in the possession of the defendant. So far as the case on hand is concerned, it is only a very narrow strip of land lying along the boundary line. Hence, the presumption should be that the person, who has got title to the property and whose boundary extends up to the line stated above is in possession of that narrow strip of land as well.”

Survey Authorities Determine Boundaries – Based on Possession

Kerala High Court held in Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) to the following effect:

The Survey and Boundaries Act, 1961 empowers the survey authorities to determine the boundaries of different sub-divisions.
It is predominantly based on possession.
As per the Act, the survey officer has the power to determine and record any boundary as undisputed in respect of which no dispute is brought to his notice.
Where a boundary is disputed, the survey officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.

Power of Survey Officer to determine disputed boundary

In Cheriyanad Grama Panchayat v. State of Kerala, 2019 (4) KLT 916, it is laid down as under:

Section 10 of the Act authorizes the survey officer to re-define the boundary lines of a particular survey already settled by old survey records.
Section 6 and 7 of the Act do not empower survey officer to re-define any boundary line of a particular survey which was already settled and finalised in an earlier survey (except for the purpose of Section 5 of the Act which deals with the situation wherein certain area was taken away by sea erosion or action of river.)
Section 4 of the Act also permits a survey of the land, but its purpose should be understood in relation to the necessity to have a re-survey, certainly, not for altering the earlier survey records, but for recording the further divisions of property out of a large extent within a particular survey.

In Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198, it is observed as under:

“24. A reading of Sec. 10 of the Act makes it candidly clear that the survey authority is only empowered to determine the disputes regarding the fixation of boundary between owners of land comprised in a particular survey division. The act of determination envisaged in Sec. 10 of the Act essentially draws a dividing line based on ownership within a particular survey or, in other words, Sec. 10 of the Act does not authorise the Survey Authority to redefine the boundary line of a particular survey already settled by old survey records. Section 10 of the Act does not empower the survey authority to change the ownership of a particular sub-division and make it part of another survey sub-division.”

Sec. 10 of the Kerala Survey and Boundaries Act reads as inder:

“10. Power of Survey Officer to determine and record a disputed boundary with reasons– (1) Where a boundary is disputed, the Survey Officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.
(2) Notice of every decision of the Survey Officer under sub-section (1) shall be given in the prescribed manner to the parties to the dispute and other registered holders of the lands, the boundaries of which may be affected by the decision.

Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Is a Section 63(4) Certificate an Essential Prerequisite for the Admission of a Photograph (Computer output) in Evidence?

Answer: No.

Saji Koduvath, Advocate, Kottayam.

Contents in a Nutshell

Neither (i) the production of a certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023, nor (ii) the examination of the photographer, is an indispensable requirement for proving a photograph (Computer output) where its authenticity is admitted by the witness or the opposite party.

By virtue of Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, a copy of an electronic record (computer output) can be proved by any method permissible under the Act for proving a document.
The expression, “nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in evidence on the ground that it is an electronic or digital record,” contained in Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, is evidently intended to override the effect of the decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which mandated the production of a certificate under Section 65B of the Evidence Act (now Section 63 of the BSA) as a condition precedent for admitting a computer output (copy) in evidence.
Section 119 of the BSA (Section 114 of the Evidence Act) allows the Court to ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.
A photograph or a video, by its very nature, speaks for itself. Therefore, the courts in India can commence with a presumption as to the correctness of the photograph or video when its authenticity is prima facie established. In such an event, the onus shifts to the opposite party to rebut that presumption by placing material on record sufficient to dislodge the presumption.
Indian courts have consistently held that, in cases attracting a general presumption, a mere ‘bald denial’ of the contents of a document is inadequate to rebut such presumption.
Note: If the photograph does not fall under the head ‘electronic evidence’ and ‘computer output’, Sections 61 to 63 have no relevance.

Photograph Evidence

Photographs are admissible in evidence as documents.	P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
While considering a case on dowry death, the prosecution argued that a *photograph* was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence. But, the court accepted the photograph as ‘no dispute was raised by the prosecution witnesses’.	Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551
A large number of photographs were marked and considered in this case. In para 525, it is stated – the witness “was confronted with photographs of the inscription” There were three sets of albums containing photographs taken by the State Archaeological Department pursuant to an order dated 10 January 1990 (Para 533). In para 538, the Court considered the evidence of a witness as to the “photographs placed within the structure in 1990”.	M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1 (Ayodhya case)
A Witness can be Confronted with a Photograph of the place of occurrence During Cross-Examination Without its Prior Production	Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2026(6) KLT (SN) 2
The factum of photo identification (of an accused) by PW 2, as witnessed by the officer concerned, is a relevant and admissible piece of evidence.	Rabindra Kumar Pal v. Republic of India, 2011-2 SCC 490
Nothing prevented the appellant-State Government from producing the relevant *photographs* of the purported pucca pond existing at some spots.	State of Rajasthan v. Ultratech Cement Ltd. , 2022-12 Scale 606; 2022-13 SCR 1
A statement about the photograph made by any expert would not be admissible before examining the photographer.	Dr. Pankaj Kumudchandra Phadnis v. Union of India, (2018) 5 SCC 785
Photographs, tape-records of speeches [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17] are documents.	Shamsher Singh Verma v. State of Haryana, 2016 15 SCC 485; Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143
Photo identification of an accused during the investigation, who was seen by the witness at the relevant time.	Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic AIR 1999 SC 2562, 2000-1 SCC 138; Rabindra Kumar Pal v. Republic of India, AIR 2011 SC 1436; 2011 2 SCC 490
Inventory, photographs and the list of samples certified by the Magistrate are admissible as primary evidence. It is a substitute for the production of physical evidence of seized contraband samples.	Nisar Ahmed Bhat, v. Union Territory of Jammu and Kashmir 2024 0 Supreme(J&K) 187
The tape record corroborated his testimony, as a *photograph* taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is *res gestae*.	K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275; R.M Malkani v. State of Maharastra, AIR 1973 SC 157; Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720

Photo and Video: Relevant and Admissible

Audio/Video cassettes	Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17
Tape records of speeches	Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
Photo or video	Mohammed Rafiq v. Madhan, 2018-1 Mad LJ(CRI) 641; Moti Rabidas v. The State of Bihar, 2015-145 AIC 435; Vaman Narain Ghiya v. State of Rajasthan 2014-1 Raj Cri C 31; State of MP v. Shankarlal, ILR 2010 MP 717; P Rajagopal v. Inspector of police 2009-2 Mad LJ(Cri) 161; Santhosh Baccharam Patil v. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.
CD	Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485
Photographs including photographs of tombstones and houses	Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
Video recordings	State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053
Audio and video	State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053; Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31; Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
Cassettes	Tukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
Moving cinematograph	Senior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
Film	Rex v. Daye ((1908)2 K.B. 333, 340)
Floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives–	North West Airlines v. Union of India 2007 (214) ELT 178 (Bom.)

Pictorial Testimony Theory and Silent Witness Theory

Pictorial Testimony Theory – Photograph need not be proved (if admitted by the witness).
Silent Witness Theory – Photograph must be proved.

In Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 Ker HC 31), these two theories governing the proof and authenticity of photographs were explained.

First, the pictorial testimony theory: It is applied when a photograph is used merely as an aid to a witness in explaining or illustrating his testimony—for example, a doctor explaining injuries with reference to a photograph, or identification of a deceased through a photograph. In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph, and the photographer need not be examined in court, since the photograph is admitted merely to aid a witness in explaining his testimony.
Secondly, under the silent witness theory or communication theory: It is invoked when the photograph itself constitutes substantive and probative evidence of what it depicts, speaking for itself without supporting oral testimony—for instance, an X-ray film showing a fracture, a photograph depicting the accused in a crowd holding a weapon (though the photographer did not notice him), or a photograph of the scene of occurrence of a crime. In such cases, the photographs must be proven.

Presumptions on Photographs and Videos

Section 119 of the Bharatiya Sakshya Adhiniyam (Section 114 of the Evidence Act) allows the Court to ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.

A photograph or a video, by its very nature, speaks for itself. Therefore, the courts in India can commence with a presumption as to the correctness of the photograph or video when its authenticity is prima facie established. In such an event, the onus shifts to the opposite party to rebut that presumption by placing material on record sufficient to dislodge the presumption.

Invoking this general presumption, the courts in India have consistently held that ‘a mere bald denial of the contents of a video recording is insufficient‘; but, ‘there should be material to show that the video clippings are doctored or morphed’ (State Represented by the Inspector of Police, Chennai v. V. P. Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129).

Silent Witnesses Theory – Photograph /Video ‘Speaks for Itself‘

In State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court explained the “silent witness” theory, stating as under:

“115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray.”

The following two foreign decisions were specifically dealt with by the High Court:

(a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)]: The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
- “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
(b) Her Majesty v. Jaiyhi He, [2017 ONCJ 790,]: The Ontario Court of Justice in Canada opined to the following effect:
- The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility: (i) The video is relevant, showing the crime scene or other evidence linked to the issues at trial; and (ii) the video is authentic — that it accurately represents the events depicted.

Circumstantial evidence be Used – No Particular Evidence or Class of Witness

In State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court said further as under:

“Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog (2015 ABCA 251), the Ontario Court (in Her Majesty v. Jaiyhi He, 2017 ONCJ 790), said: “Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video, provided the whole of the evidence establishes that the video in question is substantially accurate and a fair depiction.”

“Can a digital video only be Authenticated by an Eyewitness”?

This was the second question raised in R. v. Bulldog (2015 ABCA 251). The question was whether a digital video can only be authenticated by an eyewitness or whether a member of any class of witnesses can provide evidence of authentication.

The answer of Alberta Court of Appeal (in R. v. Bulldog) was “No.”

It held as under:

“[20] [The appellants argue] that Nikolovski sets two preconditions to the admissibility of video recordings – specifically, proof that the video accurately depicts the facts, and that it has not been altered or changed. The appellants refer to the process of establishing these facts as ‘authentication,’ and we are content to adopt that term, since ‘authentication’ simply refers to the process of convincing the court that certain tangible evidence matches the claims made about it . . .
[21] The second proposition, which relies on R v Doughty, 2009 ABPC 8 (CanLII) at para 37 (citing Elliot Goldstein, Visual Evidence, A Practitioner’s Manual, Vol 1 (Thomson-Carswell, 2007) at 2-19 to 2-20), is that there is an exclusive list of classes of witnesses who can authenticate a video in a manner that meets these two putative Nikolovski preconditions: (1) the camera operator; (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw; (3) a person qualified to state that the representation is accurate; or (4) an expert witness.
[22] Based on these two propositions, the appellants argue that the Crown’s evidence in this case could not authenticate the DVD. They submit (but do not really argue) that the authenticating witness was Reddick, who did not create the DVD tendered, did not know who created it, did not know whether the person who did create it used or might have used options which changed the content of the source video footage, was not an expert in the software and in the format changes entailed in copying the DVD and, accordingly, could not give the expert evidence of the effect of format changes which the appellants say is necessary to authenticate the DVD: R v Penney, 2002 NFCA 15 (CanLII), 2002 NFCA 15 at para 24, 210 Nfld& PEIR 209.
[23] In short, the appellants say that, absent evidence from a particular class of qualified person verifying that the video recording had not been altered or changed in the course of undergoing various format changes, the DVD was inadmissible.
. . . . . .
[34] It will be recalled that the appellants say that, because Reddick does not fit into any of the four categories identified by Goldstein
- [at para. 21 of the judgment and consisting of: (1) the camera operator; (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw; (3) a person qualified to state that the representation is accurate; or (4) an expert witness.]
as persons capable of authenticating video evidence, it follows that the Crown could not authenticate the video recording. We assume that the appellants also maintain that none of the other Crown witnesses would fit into those categories, although we observe that Hodge would have fallen into Goldstein’s second category as an eyewitness, had he viewed the video in court and testified that it accurately depicted what he saw. In any event, these categories are not exhaustive in the sense that, if the Crown does not call one of these four kinds of witnesses, the video recording is inadmissible. Rather, other kinds of evidence or different combinations of witnesses may be employed to satisfy a court of the video recording’s substantial accuracy and fairness.”

Should there be Proof – Video not been Altered or Changed?

The appellants in R. v. Bulldog (Alberta Court of Appeal) challenged the authenticity and admissibility of the DVD. They relied on R. v. Nikolovski, [1996] 3 S.C.R. 1197. The Court considered whether the Crown was bound to prove that the video recording had not been altered or changed. The appellants argued that R. v. Nikolovski mandated a two-fold test (i) requiring proof that the video accurately depicted the facts and (ii) proof that it had not been altered or changed. The Alberta Court of Appeal disagreed. It held (paragraphs 26 to 33):

1. As long as other evidence satisfied the accuracy, no evidence regarding the presence or absence of alteration was necessary.
2. The mere fact of alteration did not automatically render a video recording inadmissible.
3. The Crown’s failure to establish that the DVD was not altered was not fatal as long as the Crown had proven that the DVD was a substantially accurate and fair representation of what it purported to show.

The Alberta Court of Appeal said it as under:

“[26] . . . the appellants say that Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.
[27] It must first be borne in mind that Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing ‘Use That Can Be Made of Photographs or Videotapes,’ which clearly presupposes admissibility.
[28] Further, the passage itself fails to support the appellants’ contention. It reads as follows:
Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.
This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R v Jamieson, [2004] OTC 369 at paras 36-37, [2004] OJ No 1780 (QL) (SCJ).
[29] We do agree with the appellants, however, that in some cases Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: Penney; R v.MacNeil, 2008 QCCS 915 (CanLII) at para 11, [2008] QJ No 1784 (QL); R v Chevannes, 2011 ONCJ 754 (CanLII) at para 16, [2011] OJ No 5937; R v Ellard, 2004 BCSC 780 (CanLII) at para 11, [2004] BCJ No 2914. In Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited Nikolovski as authority for the statement that ‘[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.’ With respect, we do not read Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible . . .
[30] Other courts have taken a different view of Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R v Brown, [1999] OTC 213, [1999] OJ No 4865 (CJ), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is: one of substantial accuracy . . . [T[he Crown must … prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them in accordance with [Nikolovski] ….
[31] Similarly, in R v Crawford, 2013 BCSC 2402 (CanLII) at para 48, [2013] BCJ No 2879 (emphasis added), the court said that Nikolovski should be interpreted in a ‘purposive’ manner, such that a video recording’s admissibility is not precluded, even if ‘complete accuracy’ no longer subsists, so long as ‘the alteration of the recorded event is not so substantial as to be misleading’ or ‘if the image is distorted or otherwise changed in a material way.’ What matters, said the court in Crawford, is that the video recording ‘accurately and fairly presents he information that it is to convey.’ Other courts, including this Court, said much the same thing prior to Nikolovski . . .
[32] There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of ‘substantial’ accuracy over the appellants’ preferred test of ‘not altered.’ It will be recalled that ‘authentication’ simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something – the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.
[33] Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (Penney), where its prejudicial effect exceeds its probative value (R v Veinot, 2011 NSCA 120 (CanLII) at paras 24-27, 311 NSR (2d) 267), or where there is reasonable doubt that the video identifying the accused is a fabrication.”

“Balance of probabilities“

In R v Penney, (2002) 163 CCC (3d) 329, the court considered the ‘falsification of evidence’ and pointed out that the members of a jury ‘can be expected to have, if not experience with, knowledge of the possibilities for manipulating the content of photographs and videotapes’, and concluded that the ‘standard by which the trial judge is to determine the question is on the balance of probabilities’

Bald Denials are Insufficient to Discredit the Authenticity of Video Footage

The Madras High Court, in this decision (State Represented by the Inspector of Police, Chennai v. V. P. Pandi), also observed as under:

“113. It is true that the cameraman can zoom or minimize an image. It is also true that trick photography is possible. In Suo Motu taken up (PIL) WP Chief Secretary to the Government of Tamil Nadu v. The Government of Tamil Nadu and others (WP 3335 etc. of 2009) decided on 29.10.2009, a Division Bench of this Court (F.M. Ibrahim Kalifulla and R. Banumathi, JJ) held that bald denials are insufficient to discredit the authenticity of video footage. In her lead judgment, Banumathi, J (as she then was) has opined as under:
- ‘349. That a bald denial of the contents of a videotape is not adequate to doubt its authenticity; there should be material to show that the video clippings are doctored or morphed’.
The Division Bench proceeded to look into the video tape as a corroborative piece of evidence and held as under:
- ‘350. The respondents have not disputed that the video clippings filed by the petitioners relate to the occurrence. Even though video clippings filed by the petitioners do not have the running time, we have watched the videos and looked into the photos as corroborative piece of evidence’.”

In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, the conclusion of the Speaker on CDs received from TV News channels, that ‘there is no room for doubting the authenticity and accuracy of the electronic evidence produced by the petitioner’, was accepted by the Apex Court holding as under:

“The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing of that opportunity, the petitioners preferred to adopt the course of vague denial.”

In Umesh v. State of Karnataka, 2023-2 KarLJ 397, while dealing with a ‘trap case’, after laying down the importance of digital evidence, it is cautioned as under:

“Qualified and trained expert should test the samples. The report should contain the procedure adopted for testing the samples. The equipments used should be duly calibrated and updated periodically. The electronic device should be tested for editing and tampering in order to establish its genuineness and authenticity.
Digital evidence form be created for every memory card/chip used in the trap case containing the unique identification features of the memory chip/card used. The defence should be provided with a cloned copy or a mirror image of the electronic device.”

Distinct Evidentiary Position of a Section 63(4) Certificate

Once the computer output (copy) accompanies the Section 63(4) certificate, the computer output becomes admissible in evidence, and it is not mandatory to examine the CCTV operator or the person who snapped the photograph, for the purpose of its admission.

See: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473,
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

The Person Who Signed Section 63/65B Certificate Need Not Be Examined: Having regard to the special features of the photographs and videos (that is, visual depictions of facts), even if the Section 63(4) certificate is not that given either by the plaintiff or by the defendant, but by another, the photograph or video can be marked in evidence through the plaintiff or the defendant.

Unless the authenticity or correctness of the certificate issued under Section 63(4) is specifically disputed, oral evidence has no role to play in proving (for the purpose of marking) that the computer output is the exact copy of the (original) electronic record. Therefore, the photographer who issued the certificate under Section 63(4) need not be examined if the correctness of the certificate is not specifically disputed.

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC, our Apex Court further affirmed as under:

“50. … However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons.”

Presumption on Computer Output (copy) Admitted under Sec. 63

A computer output (copy) of a CCTV footage or video, or of a photograph captured on a mobile phone, can be admitted in evidence in place of the original — if it is produced with a certificate under Section 63(4) of the BSA.

Note: Section 63(1), BSA says about admissibility of copy — “Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

Proof by Certificate under Section 63(4)

The Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, established a strict interpretation. It laid down (before promulgation of Adhiniyam, 2023) that the proof by the certificate under Section 65B (Section 63, Adhiniyam) was mandatory for admitting a computer output (copy) in evidence.

Therefore, even in cases where formal proof of the digital photos or videos is dispensed with (for the opposite party admits it), a certificate under Section 65B(4) was necessary.
However, Section 61 of the Adhiniyam made a drastic legislative change to the deliberation presented by Arjun Panditrao Khotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.

Admission and Proof of Computer Output (copy): Independent Matters

Section 63(1), BSA says about admissibility of copy alone — the computer output (copy) “shall be deemed to be also a document“.

(i) Admitting a copy of a computer output (such as a copy of a statement of accounts) in evidence (with a certificate under Section 63), and (ii) the formal proof thereof at the time of trial, are two distinct and independent matters.

On production of such evidence before the court, the court can presume the truth of the contents in certain cases (e.g., a photograph) under Section 119 BSA (Section 114 EA).
The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

The Burden of Impeaching the Certificate is upon the Party who Disputes it

The presumption arising under Section 63—by which a computer output is deemed to be a document—is rebuttable and does not render the contents of the electronic record conclusive.

If such a challenge on the certificate is overruled by the court, it can draw a presumption as to the genuineness and authenticity of the photographs or videos contained in the computer output (copies).

S. 63 deals with Admissibility of computer output or copy, and not Proof

The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.

However, the court can draw presumptions as to the genuineness and authenticity of such photographs or videos, as stated earlier.

Once Copy Admitted by S. 63 Certificate, Oral Evidence has No Place in Marking

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, is an authority on the following matters –

(i) The certificate under Section 65B(4) is a condition precedent to admissibility of the computer output (copy);
(ii) The certificate is meant to replace the oral evidence of the device-handler or operator.
(iii) Once the certificate is produced, oral evidence has no place (for the purpose of marking it).

However, the person who issued the certificate (operator) has to be examined if:

the authenticity or correctness of the certificate is specifically disputed;
allegations of fabrication, manipulation, or false certification are raised;
the issuer’s control over the device/system is seriously questioned; or
the court needs clarification to assess probative value, not admissibility.

Photographer Need Not be examined (In pictorial testimony theory)

When a photograph is admitted merely to aid a witness in explaining his testimony, it need not be proved formally.

Photograph Must Have Been Proved (In silent witness theory)

As stated above, in silent witness theory cases, the photographs must be proved. No doubt, in the peculiar nature of a particular case, the examination of the photographer may not be insisted upon, and the photograph could be proved by another ‘proper’ witness. Formal proof of a photograph may not be necessary where the opposite party admits its genuineness or correctness.

Examination of the Photographer may not be insisted (In silent witness theory)

As stated above, in silent witness theory cases, photographs or videos are required to be proved. However, such proof need not necessarily be by way of formal proof through the examination of the photographer or the person who captured the image. Besides admission of the other side as regards the authenticity, the photographs or videos may instead be proved through a ‘proper’ witness who is competent to depose by way of general evidence regarding the factual features depicted therein, such as the identity of the persons shown, the place, the time, or the surrounding circumstances.

Note: 1. Formal proof of a photograph or copy of a video and the requirement of the certificate under Section 63(4) are two distinct and independent matters.
2. A photograph or a copy of video, admitted in evidence on the strength of a certificate under Section 63(4), stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory presumptions that the court can invoke, it being direct visual depictions of facts.
3. The certificate under Section 63(4) is accepted unless its correctness is specifically challenged. The oral evidence of the person who issued the certificate becomes relevant (for the purpose of admitting the document) only where the certificate itself is specifically and successfully challenged by the party who disputes its authenticity or correctness.
4. Therefore, the court is entitled to infer that a photograph or video, once duly admitted in evidence, correctly represents the scene or object as it existed at the time of recording. It is doctrinally recognised as the ‘silent witness’ theory – the document “speaks for itself”.
5. Accordingly, once a photograph or copy of a video is duly admitted in evidence, the court can act upon it (usually as a corroborative piece of evidence), on the basis of general evidence relating to the identity of the persons depicted, the place, the time, and the surrounding circumstances, without insisting upon any further primary or direct proof of the facts.
6. The presumption attached to a photograph or a video admitted in evidence being one rebuttable, the opposite party can rebut it by placing appropriate evidence to show that the photograph or video does not correctly represent the scene, object, or occurrence as it existed at the relevant point of time, or that the factual position had materially changed.

Pictorial Testimony Theory: No Enacted Law; Only Judicial Exposition

The pictorial testimony theory rests on judicial exposition rather than statutory codification. It finds only indirect support, in principle, from Section 162 (Refreshing Memory), BSA. Section 162 is to be understood as one not exhaustive in its operation.

Section 162 of the BSA reads as under:

“Refreshing memory: (1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory:
- Provided that the witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.
(2) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
- Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:
- Provided further that an expert may refresh his memory by reference to professional treatises.”

Connected Articles:

Pictorial Testimony

The Kerala High Court (KT Thomas, J.), in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification – Pictorial Testimony – so far as the witness was concerned.

The Court held as under:

“PW I identified the person in M.O.9 photo as the person who was killed. There is no doubt that M.O.9 is the photograph of Chacko, the film representative. It was contended that since P. W.I himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it would be possible to identify him later.”

Here, the photo had been proved through competent witnesses – under the Silent Witness Theory – though the photographer was not examined.

A Witness be Confronted with a Photograph Without its Prior Production?

The Kerala High Court held in Anu C.R v. State of Kerala, 2025(7) KHC 150; 2026(6) KLT (SN) 2 (G. Girish, J.), 16 October, 2025, as under:

“i) The learned Additional Sessions Judge is directed to permit the counsel for the accused to confront PW2 by showing the photograph of the interior of the building which he had leased out to the accused (Annexure-A3) and to ask whether it is the photograph of the interior portion of the building which he had leased out to the accused.
ii) If the witness gives an affirmative answer to the above question, the defence counsel shall be permitted to ask further questions related to it, with due regard to its relevancy, and to get the said document marked as an exhibit on the part of the accused, subject to production of that document immediately thereafter, following the formalities prescribed in that regard.
iii) If the witness denied the above suggestion, or says that he is not able to say anything on the basis of the above document, the counsel for the accused need not be permitted to proceed with further questions on that document.
iv) The learned Additional Sessions Judge is directed to permit the counsel for the defence to confront PW2 by showing the site plan prepared by the Village Officer and ask whether the aforesaid document was the plan of the building which he had rented out to the accused.
v) If the witness gives an affirmative answer to the above question, then the defence counsel should be permitted to ask further questions on that site plan, with due regard to its relevancy, and also to admit the document as an exhibit of the prosecution, marked at the instance of the accused.
vi) If the witness denies the suggestion, or says that he is not able to state anything about it, then the defence counsel need not be permitted to ask further questions on that document to that witness.”

Objections Raised Against Marking of Photograph and Site Plan

The objections raised against the marking of the photograph and site plan were the following:

“The aforesaid photograph is not pertaining to the witness, or made by the witness, and it is not falling within the purview of Section 145 of the Evidence Act”.
“The site plan prepared by the Village Officer, which formed part of the prosecution records, was also refused by the learned Additional Sessions Judge stating the reason that the aforesaid site plan is not prepared by that witness.”

Law Relied on to Take View that the Sessions Judge Went Wrong

The Three Judge Bench of the Supreme Court in Anees v. State Government of NCT (DY Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.), AIR 2024 SC 2297; 2024-6 SCR 164; 2024 KHC 6256, held as under:

“The object of the cross – examination is to impeach the accuracy, credibility and general value of the evidence given in – chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross – examining party.”

Legal Principles Lend Support to the Kerala High Court View

The following legal principles lend support to the view taken by the Kerala High Court:

1. Section 148 BSA (Section 145 Evidence Act)

Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 (Sec. 145 Evidence Act) enables to contradict witnesses with his previous statements:
- “Without such writing being shown to him”.
Here the materials are “shown” and asked.

2. Section 141 BSA [Section 136 Evidence Act]

Section 141(2) and (3) of the Bharatiya Sakshya Adhiniyam, 2023 [Sec. 136 (2) and (3) Evidence Act] reads as under:
- “(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
- (3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

If the court permitted the cross examiner to proceed (without raising objection) it can be presumed that the the party has ‘undertaken’ to give proof of such fact, “and the Court is satisfied with such undertaking”.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

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Title, ownership and Possession

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Revenue Records, Mutation

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Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

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Contract Act

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Book No. 2: A Handbook on Constitutional Issues

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Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
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Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
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Ayodhya and Sabarimala Disputes
General

Rama S/o Gunda Malkapure v. The State of Maharashtra held -Property Rights Cannot be Taken Away on Technical Grounds of Delay

Jojy George Koduvath

Legal Findings in a Nutshell

Erroneous revenue entries that led to a reduction in area will not defeat the rights of the landowners, under Article 300-A of the Constitution of India.
The revenue authorities, being custodians of the record, are required to explain how such reduction occurred. The petitioner cannot be blamed for incorrect entries maintained by the authorities.
A legal-constitutional right cannot be taken away on technical grounds of delay when the fault lies with the authorities.
There will be no specific period of limitation for seeking corrections to such wrong entries. (The failure of authorities to issue statutory notices often prevents landowners from discovering errors in real-time.)
Article 300A declares – ‘No person shall be deprived of his property save by authority of law’.

Rama S/o Gunda Malkapure v. The State of Maharashtra

The Bombay High Court (Siddheshwar S. Thombre, J.), Aurangabad Bench, in Rama S/o Gunda Malkapure v. The State of Maharashtra, 2026:BHC-AUG:20436, quashed and set aside the Order of the Minister upholding the property rights of the landowners, under Article 300A of the Constitution.

Case of the Petitioner in a Nutshell

The petitioner purchased certain agricultural land under a registered sale deed in 1982.
The petitioner had to approach a Civil Court, Regular Civil Suit No.300 of 1996, to get his title to the suit property declared on the basis of the registered sale deed, and the said decree had attained finality.
However, after implementation of the consolidation scheme, the land area shown in his name was allegedly reduced from 82R to 28R in the revenue records..
Despite his clear title and possession, the subsequent implementation of a consolidation scheme, his land area was erroneously recorded in the revenue records. The land area shown in his name was reduced from 82R to 28R.
There was a failure to follow the procedure under Section 15A(1) of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947, which requires notice to landowners.
Pursuant to the application filed by the petitioner, the Superintendent of Land Records conducted an enquiry and, after considering actual possession, forwarded the draft scheme to the Deputy Director of Land Records for correction under Section 32(1) of the Maharashtra Prevention of Fragmentation and Consolidation of Holdings Act, 1947.
Thereafter, the draft scheme was published, and after considering the objections raised by respondent Nos. 4 to 6, an order dated 09.03.2016 was passed.
Section 16 of The Consolidation of Fragmentation and Consolidation of Holdings Act provides for compensation.
The scheme prepared by the Consolidation Officer shall provide for the payment of compensation to any owner who is allotted a holding of less market value than that of his original holding and for the recovery of compensation from any owner who is allotted a holding of greater market value than that of his original holding. But No Compensation is paid to the petitioner.
Any person loosing land i.e. gets a land of lesser value has to be compensated for loss of land and any person entitled to receive the land of higher value has to deposit the compensation.
Against the said order dated 09.03.2016, respondent Nos. 4 to 6 preferred a revision.
The learned Minister allowed the revision by (erroneously) observing that in Regular Civil Suit No.47/2002, the registered sale deed executed in favour of the petitioner was set aside by judgment dated 21.12.2005.
The petitioner submitted that the Order of the learned Minister is liable to be set aside.
The respondents argued that the correction request of the petitioner was delayed and that an earlier application had already been rejected. It is also urged that consolidation schemes cannot ordinarily be altered after several years.

Right To Property Under Article 300A

The High Court pointed out as under:

“17. Merely because the consolidation scheme was implemented earlier, the petitioner cannot be deprived of his property, particularly when the reduction in area occurred due to incorrect revenue entries. The right to property under Article 300-A of the Constitution of India cannot be defeated on the basis of erroneous entries. The right to property under Article 300-A of the Constitution of India cannot be defeated on the basis of erroneous entries. The right to property under Article 300-A of the Constitution reads as under:-
CHAPTER IV.–RIGHT TO PROPERTY 300A. Persons not to be deprived of property save by authority of law. –
- “No person shall be deprived of his property save by authority of law.”

No Limitation for Seeking Corrections To Revenue Entries

The Court pointed out that no specific period of limitation is stated either in the Maharashtra Prevention of Fragmentation and in the Consolidation of Holdings Act, 1947 or in the Maharashtra Land Revenue Code, 1966. Therefore not bars for an an owner for seeking corrections to such entries. It was also found that the failure of authorities to issue statutory notices often prevents landowners from discovering errors in real-time.

Issue of Delay: Remedy Cannot be Taken Away on Technical Ground

“43. So far as the issue of delay is concerned, the scheme of the Act is silent on it. It can be said that the Act does not provide limitation for objecting to the scheme or raising a dispute against reduction of holding of a land owner. Being a legal-constitutional right of land owner, his remedy to correct the record cannot be taken away on technical ground of delay.
As the records transpire that notice under Section 15A(1) of the Act were not issued to the land owners, it can be said that the land owners were not aware of reduction in their respective holding. Therefore, once the reduction was noticed and complained of by the land owners, it is incumbent upon the authorities to correct the same without going into the issue of delay, as the fault is on the authorities due to failure to issue notice. The record was prepared behind their back.”

S. 16 provides for Compensation. But No Compensation Paid

“49. There is no dispute with respect to the fact that the agriculturists are aggrieved by the record created after enforcement of scheme. The consent as required under Section 15A of the Act was never obtained and no compensation was paid to the agriculturists whose holding has been reduced. It is not even the case that the agriculturists whose holding was increased were paid compensation. The procedure prescribed for recovery of compensation was not initiated. Section 16 provides for compensation. The agriculturist who is allotted holding of less market value than that of his original holding has to be paid compensation. Whereas, the land owner who is allotted holding of greater market value than that of his original holding has to pay compensation”.

Order of the Minister is Quashed and Set Aside

Finally, the Order of the Minister is quashed and set aside, stating as under:

“51. In the present case, the learned Minister has set aside the orders passed by the revenue authorities by observing that the sale deed executed in favour of the petitioner was set aside in Regular Civil Suit No.47/2002. However, the record indicates that no such finding was recorded setting aside the petitioner’s sale deed. On the contrary, the petitioner’s title has already been declared by the competent Civil Court. Therefore, the findings recorded by the learned Minister are perverse and unsustainable.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Book No. 3: Common Law of CLUBS and SOCIETIES in India

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Is Anu C.R. v. State of Kerala Correctly Decided? Can a Witness be Confronted with a Photograph During Cross-Examination Without its Prior Production?

Saji Koduvath, Advocate, Kottayam

Preface

The Kerala High Court, in Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2025(6) KLT (SN) 2 (G. Girish, J.), allowed the defence counsel to confront a prosecution witness with a photograph of the alleged scene of occurrence and inquire whether the photograph represented the interior of the building concerned.

The Facts and Legal Principles Assume Significance

At the outset, the following facts and legal principles assume significance:

The court merely permitted the defence counsel to confront a prosecution witness, during cross-examination, with a photograph of the alleged place of occurrence.
If the photograph does not qualify as an “electronic record” or a “computer output”, the provisions contained in Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023, have no application. In any case, the Court was not called upon to consider the applicability of Sections 61 to 63 of the Bharatiya Sakshya Adhiniyam, 2023.
If the photograph is used solely for the purpose of confronting a witness during cross-examination, the mere fact that the witness admits its correctness does not render it liable to be marked as an exhibit. By analogy to the principle underlying Section 148, BSA (Section 145, Evidence Act), material employed only for confrontation does not become substantive evidence merely because the witness accepts its correctness.
However, the fact that a photograph is capable of being used merely for confronting a witness does not preclude its admission in evidence. Where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, the court may admit and mark the photograph as an exhibit on the basis of such admission, particularly if it is prepared to draw the presumption contemplated under Section 119 of the Bharatiya Sakshya Adhiniyam, 2023.
The Bharatiya Sakshya Adhiniyam, 2023, like the Evidence Act, 1872, contains no express provision dealing with the use of photographs for confronting a witness during cross-examination. The statutory scheme principally addresses cross-examination concerning previous statements and matters in writing (Section 147 and 148 of the Adhiniyam), leaving the admissibility and use of photographs to be governed by general principles of evidence and judicial discretion.

The Kerala High Court, in Anu C.R. v. State of Kerala, held as under:

“i) The learned Additional Sessions Judge is directed to permit the counsel for the accused to confront PW2 by showing the photograph of the interior of the building which he had leased out to the accused (Annexure-A3) and to ask whether it is the photograph of the interior portion of the building which he had leased out to the accused.
ii) If the witness gives an affirmative answer to the above question, the defence counsel shall be permitted to ask further questions related to it, with due regard to its relevancy, and to get the said document marked as an exhibit on the part of the accused, subject to production of that document immediately thereafter, following the formalities prescribed in that regard.
iii) If the witness denied the above suggestion, or says that he is not able to say anything on the basis of the above document, the counsel for the accused need not be permitted to proceed with further questions on that document.
iv) The learned Additional Sessions Judge is directed to permit the counsel for the defence to confront PW2 by showing the site plan prepared by the Village Officer and ask whether the aforesaid document was the plan of the building which he had rented out to the accused.
v) If the witness gives an affirmative answer to the above question, then the defence counsel should be permitted to ask further questions on that site plan, with due regard to its relevancy, and also to admit the document as an exhibit of the prosecution, marked at the instance of the accused.
vi) If the witness denies the suggestion, or says that he is not able to state anything about it, then the defence counsel need not be permitted to ask further questions on that document to that witness.”

Objections Raised Against Marking of Photograph and Site Plan

The objections raised, in Anu C.R. v. State of Kerala, against the marking of the photograph and site plan were the following:

“The aforesaid photograph is not pertaining to the witness, or made by the witness, and it is not falling within the purview of Section 145 of the Evidence Act”.
“The site plan prepared by the Village Officer, which formed part of the prosecution records, was also refused by the learned Additional Sessions Judge stating the reason that the aforesaid site plan is not prepared by that witness.”

Law Relied on by HC to say that Trial/Sessions Judge Went Wrong

“The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party.”

Legal Principles Lend Support to the Kerala High Court View

The following legal principles lend support to the view taken by the Kerala High Court:

1. Section 148, BSA

Section 148 of the Bharatiya Sakshya Adhiniyam, 2023 (Section 145, Evidence Act) enables to contradict witnesses with his previous statements:
- “Without such writing being shown to him”.
Here, the materials are “shown” and asked.

2. Section 141, BSA

Section 141(2) and (3) of the BSA [Section 136 (2) and (3), Evidence Act] reads as under:
- “(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
- (3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

(If the court permitted the cross-examiner to proceed, without raising objection by the court, it can be presumed that the party has ‘undertaken’ to give proof of such fact, “and the Court is satisfied with such undertaking”.)

Summary and Conclusion

The use of a photograph during cross-examination does not invariably amount to proving the photograph in evidence. Nor does it necessarily involve the doctrine of refreshing memory embodied in Section 162 of the BSA. A photograph may be shown to a witness merely for the purpose of identification, clarification, testing the accuracy of his testimony, or confronting him with a particular factual situation. In such cases, the photograph functions only as an aid in the examination of the witness and not as substantive evidence.

However, where the witness admits that the photograph correctly depicts the person, place or object portrayed therein, and the Court is prepared to draw the presumption contemplated under Section 119, BSA, the photograph may be admitted in evidence and marked as an exhibit on the basis of such admission.

End Notes

Person Sees a Display (in Court) may Give Evidence (as to the Place and Persons)

In Taylor v. Chief Constable of Cheshire, (1986) 1 WLR 1479 : (1987) 1 All ER 225: 84 Cr App R 191 (DC), it was held that a video recording of an incident which is in issue is admissible; and a witness who sees an incident on a display or a recording may give evidence (as to the place and persons) of what he sees in the display or a recording.

In Halsbury’s Laws of England [Fourth Edition, 2006 reissue, Vol. 11(3) Criminal Law, Evidence and Procedure], dealing with Chapter – “Documentary and Real Evidence”, it is stated as under:

“A video recording of an incident which is in issue is admissible [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.]. There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr. App. Rep 191, DC. As to the admissibility of video recordings as evidence identifying the defendant, see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of the defendant by still photographs taken by an automatic security camera, see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr. App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA..”
(Quoted in: P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1)

Witness Acquainted with a person, Scene, etc. can Testify Photo and Video

Indian courts have accepted the “pictorial testimony” approach, under which a photograph may be authenticated by a witness having personal knowledge of the person, place, object, or scene depicted therein and who can testify that the photograph is a fair and accurate representation of what he observed.

Examination of the photographer is not an indispensable requirement in every case. The principle finds support in

Santhosh Madhavan @ Swami Amritha Chaithanya v. State of Kerala, 2014 Ker HC 31
P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551.

Should Photographer Necessarily be Examined?

No. In Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551, the question came for consideration included the following –

“The photograph (Ex. Kha-1) was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence.”

The Court considered it and accepted the photograph observing as under:

“A photograph of the deceased (Ex. Kha 1), regarding which no dispute was raised by the prosecution witnesses, showing her alone with a male stranger, had surfaced. In the statement under Section 313 CrPC, a stand was taken that this photograph had shamed her. ….”

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Arjun Dass v. The State of AP: Natural Justice Violation in Removal of Mathadhipati

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way.
In an enquiry, a delinquent cannot effectively defend himself unless copies of the relevant statements and documents proposed to be relied upon are furnished. Failure to supply these materials would be tantamount to a denial of a reasonable opportunity to the appellant to defend himself.
Violations Considered were the following
- .(a) Non-supply of the complete charge memo and the 29 relied-upon documents running over 600 pages.
- (b) Only six pages of relevant orders were affixed. The physical possession of the Mutt had already been taken over.
- (c) Service by email was said to be in the institutional Mutt email.
- (d) The High Court’s finding that the Appellant answered each charge with reference to supporting documents in minute detail is based on a perverse inference.
- (e) Violation of bias does not require proof of actual bias; reasonable apprehension of bias is sufficient.
- (f) The history of proceedings reveals repeated attempts by the State to control the administration of the Mutt; there is a conflict of interest. In this manner, the entire proceeding is coram non judice.
- (g) Appellate jurisdiction is vested in the High Court. The judgment is without any independent reasoning.

Facts of the Case, in a Nutshell

The following are the facts of Arjun Dass v. The State of Andhra Pradesh, decided on 29 May 2026, 2026 INSC 592 (J.K. Maheshwari, Atul S. Chandurkar, JJ.), in a nutshell.

Disciplinary Step – 1

Arjun Dass was the 21^st Mahant (Mathadhipathi) of Sri Swamy Hathiramji Mutt, Tirupathi.
In 2017, some reports were published in ‘Mayavi’ Newspaper regarding misconduct of Arjun Dass.
An enquiry notice was issued. Arjun Dass filed W.P. No. 9716 of 2018.
High Court granted interim relief and suspended the consequent proceedings.

Disciplinary Step – 2

While continuing the interim order in W.P. No. 9716 of 2018 _{(Later, W.P. No. 9716 of 2018 was dismissed as infructuous in 2023)}, the Commissioner of Endowments suspended Arjun Dass. 24 charges were framed.
Arjun Dass filed W.P. No. 2391 of 2020 challenging the said suspension order.
The High Court allowed Arjun Dass to continue as Mathadhipati under an interim order.
Ultimately, the High Court allowed W.P. No. 2391 of 2020 on 13.04.2023, setting aside the suspension order and remitted the matter to the Dharmika Parishad to proceed and take action in accordance with law.

Disciplinary Step – 3

The Dharmika Parishad convened a meeting on 09.05.2023.
The legal advisor prepared 16 charges against Arjun Dass.
The charge-memo dated 08.06.2023 was issued to Arjun Dass. He was suspended.
One Om Prakash was appointed as an administrator called the ‘Fit Person’.
Pursuant to this, the Endowments Department physically seized the Mutt office as well as the residence Arjun Dass.
Arjun Dass filed W.P. No. 13919 of 2023
Single Judge dismissed this writ petition. Writ Appeal No. 1080 of 2023, preferred against the order. It is still pending.

Disciplinary Step – 4

In pursuance of the charge memo dated 08.06.2023, the Dharmika Parishad issued a notice dated 14.07.2023 directing Arjun Dass to appear before a three-member committee for enquiry on 19.07.2023.
This notice was served to the Appellant through WhatsApp.
Arjun Dass, through his Advocate, sent three separate communications in reply.
The first, dated 17.07.2023, was sent by email.
It was informed to the Dharmika Parishad –
- .(a) W.P. No. 13919 of 2023 was pending;
- (b) Arjun Dass, aged 67 years, having been unceremoniously expelled from the Mutt premises while on pilgrimage, had fallen ill with viral fever at Ayodhya;
- (c) The entire record of the Mutt was seized; and
- (d) Documents forming the basis of the charge memo were not furnished.
The second communication was a legal notice dated 24.07.2023, personally delivered to the office of the Dharmika Parishad by the Appellant’s Advocate, who obtained an acknowledgement of receipt.
The third was an email dated 31.07.2023, reiterating the earlier request.
The Enquiry Committee concluded its enquiry on 19.07.2023.
It submitted its report on 01.08.2023. It found that all 16 charges were proved.

Disciplinary Step – 5

Vide the show cause notice dated 19.10.2023, Dharmika Parishad sought an explanation within 15 days from Arjun Dass.
Arjun Dass submitted his explanation, and on 16.11.2023, he requested Dharmika Parishad to conduct an enquiry afresh after supplying the documents.
Finally, on 24.11.2023, Dharmika Parishad passed an order for removal.
The Government of Andhra Pradesh confirmed the Removal Order passed by the Dharmika Parishad.
Subsequently, appointed one interim Mahant.

Disciplinary Step – 5

Proceedings before the High Court

Arjun Dass filed Civil Miscellaneous Appeal No. 538 of 2023 before the High Court challenging the Removal Order and the consequential order directing identification of a new Mathadhipati.
The High Court granted interim protection to the Appellant
After hearing the matter at length, the High Court, by the impugned judgment dated 09.05.2025, dismissed C.M.A., upholding the removal of the Appellant.
The following were the main findings of the High Court
- (a) Arjun Dass did not make any specific denial to the averment that all the relevant documents and materials were supplied in the previous writ petition i.e., W.P. No. 13919 of 2023.
  (b) The manner in which Arjun Dass replied to the charges in minute details. It clearly indicates that the Appellant was served with supporting documents.
  (c) The true intent of serving the charge memo and supporting documents was complied with in the present case. Hence, principles of natural justice were followed.
  (d) Arjun Dass was duly represented before the Dharmik Parishad.
- Charge no. 1 is not sound as no final sale ever took place. Charge 4 of violation of celibacy was held to be not proved. Charge 13 relating to an increase in encroachments was also held to be not proved, as there was no actual survey conducted at the time of taking charge of the properties of the Mutt by the Appellant.
Arjun Dass preferred the Appeal before the Supreme Court of India.

Arguments Advanced in (and accepted by) the SC

.(a) The most fundamental infirmity were the following:
- non-supply of the complete charge memo and
- the non-supply of the 29 relied-upon documents.
The charge memo of 27 pages is accompanied by 29 supporting documents running over to 600 pages.
(b) The service of charge memo was by alleged affixation. The Panchanama the photographs reveal that only six pages of relevant orders were affixed on the gate of the Mutt. Those six pages were confined to the Fit Person’s appointment order. This is not a disputed fact as it emerges from the Respondents’ own documents. Moreover, as on the date of the alleged affixation, the physical possession of the Mutt premises including the Appellant’s residence had already been taken over by the Endowments Department.
(c) The alleged service by email, was said to be in the institutional Mutt email. It was on the day on which the Fit Person was appointed. Whether the Appellant received or had access to this email after his dispossession from the Mutt is, at the very least, not established.
(d) The further contention, as accepted by the High Court, was that the documents were supplied as annexures to the counter affidavit filed in W.P. No. 13919 of 2023 and therefore the Appellant “must have” had them, is, with respect, a non sequitur. Even assuming the Appellant received those documents through that channel, the supply occurred after the Enquiry Committee had already concluded the enquiry on 19.07.2023.
(e) The High Court’s finding, that “the way in which the Appellant answered each charge with reference to supporting documents in minute detail clearly indicates that the Appellant was served with the supporting documents”, is based on a perverse inference.
(f) The principle nemo judex in causa sua is not a technical rule of procedure. Its violation does not require proof of actual bias, reasonable apprehension of bias is sufficient. The three members of the Enquiry Committee who conducted the enquiry on 19.07.2023 were members of the very body, the Dharmika Parishad, that had on 09.05.2023 resolved, unanimously and without any charge having yet been framed, that the Appellant would be both charged and suspended.
(g) A member of a body that has already collectively determined the course of action cannot then sit as an impartial enquiry officer.
(h) Dharmika Parishad is, by its constitution, composed entirely of State nominees and ex-officio government functionaries. Where the body that initiates removal proceedings, selects its own members to enquire into the charges, receives the enquiry report, and passes the final removal order is composed entirely of agents of the State, and particularly where the history of proceedings reveals repeated attempts by the State to control the administration of the Mutt, there is a conflict of interest. In this manner, entire proceeding is coram non judice.
Appellate jurisdiction is vested in the High Court under the Statute and not a mere supervisory or certiorari-like jurisdiction. It requires the High Court to independently examine the evidence, frame points for determination, and return reasoned findings on each material issue. The impugned judgment, fails to frame any point for determination and resolve the Appellant’s specific and documented complaints of non-supply of documents and non-grant of opportunity. The judgment merely summarizes the charges and the parties’ contentions, and then records a finding that the removal order ‘cannot be set aside’, without any independent reasoning.
(j) The punishment of removal is grossly disproportionate and not sustainable on the nature of charges as pressed.

Main Issue – Principles of Natural Justice

The main issue before the Supreme Court was whether the removal order suffered a breach of the principles of natural justice.

The removal of a Mathadhipati from the office of the head of a religious institution is not an administrative act of ordinary character. It involves substantive civil rights involving the right to religious office and to carry on one’s spiritual vocation.

The constitutional guarantee of fairness in procedure, enshrined in the principle of audi alteram partem and evinced from Article 14 of the Constitution of India, applies with full force to such quasi-judicial proceedings.

Importance To Adhere By The Principles Of Natural Justice

In this decision (Arjun Dass v. The State of Andhra Pradesh, 2026 INSC 592), the Apex Court referred to the following decision, highlighting the importance of the principles of natural justice – Canara Bank Vs. V. K. Awasthy, (2005) 6 SCC 321. It is observed in this decision as under:

“8. Natural justice is another name for common-sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common-sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
9. The expressions “natural justice” and “legal justice” do not present a watertight classification. It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant’s defence.
10. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audi alteram partem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the “Magna Carta”. The classic exposition of Sir Edward Coke of natural justice requires to “vocate, interrogate and adjudicate”. In the celebrated case of Cooper v. Wandsworth Board of Works [(1863) 143 ER 414 : 14 CBNS 180 : (1861-73) All ER Rep Ext 1554] the principle was thus stated : (ER p. 420) “[E]ven God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God), ‘where art thou? Hast thou not eaten of the tree whereof I commanded thee that thou shouldest not eat?’ ” Since then the principle has been chiselled, honed and refined, enriching its content. Judicial treatment has added light and luminosity to the concept, like polishing of a diamond.
11. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.”

The rule of audi alteram partem is the obligation to furnish to the affected person the material and documents sought to be relied upon against him. Opportunity of hearing should be real and cannot be abstract. Unless the person proceeded against is made aware of the precise allegations, the evidentiary basis thereof, and the material forming the foundation of the proposed action, the opportunity to defend becomes illusory rather than real.

Failure To Supply Documents Amounts to Denial Of Reasonable Opportunity

In Arjun Dass v. The State of Andhra Pradesh (2026 INSC 592), the Apex Court then referred to Kashinath Dikshita v. Union of India, (1986) 3 SCC 229. It underscored that a delinquent cannot effectively defend himself unless copies of the relevant statements and documents proposed to be relied upon are furnished to him. The Court observed:

“10. …. The extracts quoted hereinabove leave no room for doubt that the disciplinary authority refused to furnish to the appellant copies of documents and copies of statements. When a government servant is facing a disciplinary proceeding, he is entitled to be afforded a reasonable opportunity to meet the charges against him in an effective manner. And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the concerned employee prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? It is difficult to comprehend why the disciplinary authority assumed an intransigent posture and refused to furnish the copies notwithstanding the specific request made by the appellant in this behalf. Perhaps the disciplinary authority made it a prestige issue. If only the disciplinary authority had asked itself the question:
- “What is the harm in making available the material?”
and weighed the pros and cons, the disciplinary authority could not reasonably have adopted such a rigid and adamant attitude. On the one hand there was the risk of the time and effort invested in the departmental enquiry being wasted if the courts came to the conclusion that failure to supply these materials would be tantamount to denial of reasonable opportunity to the appellant to defend himself. On the other hand by making available the copies of the documents and statements the disciplinary authority was not running any risk. There was nothing confidential or privileged in it. It is not even the case of the respondent that there was involved any consideration of security of State or privilege. No doubt the disciplinary authority gave an opportunity to the appellant to inspect the documents and take notes as mentioned earlier. But even in this connection the reasonable request of the appellant to have the relevant portions of the documents extracted with the help of his stenographer was refused….”

In view of the above, supply of relevant documents constitutes the most elementary and fundamental requirement of procedural fairness as no person can be expected to answer a case which is not fully disclosed to him.

Natural Justice, Prejudice And Mandatory Procedural Requirement

Section 51 of the 1987 Act governs the removal of a Mathadhipati.

Section 51 makes it clear that the Dharmika Parishad does have the power to frame charge specifying the grounds as per sub-section (1) against the Mathadhipati or Trustee.
The charges so framed were required to be supplied and “opportunity of meeting such charges” used therein indicates in implied terms to supply the allegation of imputation and the basis thereof which includes the material to frame the charge.
On supply of such allegation of imputation and the material thereto, the Mathadhipati may have an opportunity to meet such charges.
Thereafter, in view of the documentary and oral evidence so adduced by the parties on either side, the order ought to be passed in the manner as specified.
The instinct of sub-section (2) is clear and unambiguous in its terms to follow the principles of natural justice.
The intention of the legislature was clear that without supply of relied upon documents qua the allegation, if any, meaningful rebuttal could not be possible.
Therefore, in terms of the language used in the Statute, principles of natural justice are required to be adhered to in the sense as specified.

The submission advanced on behalf of the Respondents that the enquiry is not vitiated in the absence of prejudice caused to the Appellant cannot be accepted in the facts of the present case. It is true that in State of U.P. v. Sudhir Kumar Singh, (2021) 19 SCC 706, the Apex Court explained that breach of the principles of natural justice does not invariably result in invalidation unless prejudice is shown. However, the same decision expressly carves out an exception in cases involving a mandatory procedural requirement conceived not merely in individual interest but also in public interest. The Court observed that:

“42.2. Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.”

In view of the literal interpretation of Section 51(2) and a Mathadhipati is going to be removed, it is incumbent upon the Dharmika Parishad to follow the principles of natural justice since religious institutions connected to the Mutt under the control of Mathadhipati and the public at large may also be affected. Therefore, in such a situation, substantive compliance with audi alteram partem is non-negotiable.

Proceedings of Removal Vitiated For Violations of Natural Justice

The proceedings resulting in the removal of the Appellant as Mathadhipati of Mutt are vitiated by multiple violations of the principles of natural justice –

First, the charge memo of 27 pages and the 29 relied-upon documents running to over 600 pages were never duly served upon the Appellant. Purported service by affixation on the door of premises in the physical possession of the Respondents themselves is not service in the eyes of the law;
Second, the Appellant’s requests for the supply of documents and a reasonable time were wholly ignored, and the enquiry was conducted ex parte; and
Third, the pre-decisional resolution of 09.05.2023, directing simultaneous preparation of charges and suspension order, reveals that the entire process was predetermined and not a genuine quasi-judicial exercise of statutory power.

Service of Charge Memo was by Affixation on the Door

The service of notice was affected upon the Appellant by affixation on the door of his residence in the premises of the Mutt. The following facts are clear from the record:

.(i) the physical possession of the Mutt premises, including the Mahant’s residence, had been taken over by the Respondents;
(ii) the Panchanama and photographs dated 08.06.2023 and 09.06.2023, filed by the Respondents themselves, reveal that only six pages were affixed on the door and those six pages were confined to the Fit Person’s appointment order;
(iii) the charge memo of 27 pages and the 29 supporting documents were never affixed.

In this context, to contend that service of the charge memo was completed by affixation on the door of the residence that is not in the possession of the Appellant is a legal absurdity.

in Neerja Realtors Pvt. Ltd. v. Janglu, (2018) 2 SCC 649, it is held that substituted service by affixation under Order V Rule 17 of the CPC cannot be turned into an empty technicality; it can only be validly executed on a house where the noticee actually and ordinarily resides at the time of service.

Effect of Dismissal of Communication – As an Unsigned Letter Through WhatsApp

Furthermore, the Appellant, through his Advocate, sent three separate communications to the Dharmika Parishad and its members on 17.07.2023 (by email to official IDs through advocate), 24.07.2023 (personally served against acknowledgement), and 31.07.2023 (by email through his advocate). Each of these communications specifically requested the supply of all relied- upon documents and a minimum of one month to submit a defence. While not heeding to such requests, the Enquiry Committee dismissed the communication of 17.07.2023 on a technical ground that it was an unsigned letter received on the mobile of a committee member through WhatsApp. In our view, this conduct of the Enquiry Committee discloses a deliberate disregard for the principles of natural justice as it deprived the Appellant of any meaningful chance to test the evidence adduced against him and to adduce evidence in his favour, as mandated by Section 51(2) of the 1987 Act.

The defect pointed out in the present case pertains to the fairness of the enquiry process itself and, therefore, strikes at the root of the proceedings. Once such a foundational infirmity is established, the question whether charges may otherwise have been capable of being sustained does not arise for consideration at the appellate stage.

Bias And Nemo Judex In Causa Sua: Enquiry Be Done By Independent Body.

It is undisputed that the enquiry committee was constituted under Rule 26 of the 2009 Rules read with Section 152(3) of the 1987 Act. For ready reference, Rule 26 of the 2009 Rules is reproduced as thus:

“Rule – 26. (i) The Dharmika Parishad may appoint, from amongst its members, such number of committees as the Dharmika Parishad deems necessary, with not more than 3 members and assign to them such functions and duties as it may consider for the purpose, which in turn has to submit its report to the Chairman of the Dharmika Parishad.
(ii) A member shall cease to be a member of such Committee if he ceases to be a member of the Dharmika Parishad.
(iii) The Committee of the Dharmika Parishad may meet frequently depending upon the exigencies of work.” A bare perusal of this Rule indicates that appointment of committees as envisaged therein is in the context of administrative committees, and it ought not to constitute an enquiry committee. This understanding of Rule 26 of the 2009 Rules is further bolstered by reading the sub-rule
(ii) of Rule 26, which prescribes that members of any such committee shall first be members of the Dharmika Parishad.

The adjudicating authority cannot itself become the investigator and also the decision maker.

Prior Acts

After the appointment of the Appellant as Mathadhipati by the Endowment Department in 2000, it was cancelled suo motu in 2003. An attempt was made to take over the entire properties of the Mutt, which was made nugatory by the orders of the High Court.

Again in 2017, merely on the basis of some newspaper cuttings, initiation of enquiry was made by the Dharmika Parishad against the appellant, which resulted into several rounds of litigation including the present one.

Similarly, the manner in which the enquiry was done in the present case, the apprehension of bias in the matter cannot be ruled out.

In this view of the matter, the Apex court found that an enquiry regarding the allegations against the Appellant ought to be done following the principles of natural justice by an independent body.

A De Novo Enquiry

The Supreme Court, in these circumstances, ordered a de novo (independent) enquiry.

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