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Marking of Photocopy and Law on Marking Documents on Admission (Without Formal Proof)

Abridged From: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introspection

Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is Irregularity in Mode of (Formal) Proof or (ii) it is a Photocopy?

  • Answer: No, the Court Cannot.

It is for the following two main reasons –

  • First, Right of undertaking: Sec. 136, Indian Evidence Act, 1872 permits a party to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
  • Second, Right to Admit: Marking a document unopposed (by the opposite party), or the opposite party acquiesces irregularity of mode adopted for proving the document, amounts to waiver (of rights with the opposite side). It is based on the principles in Sec. 58, Evidence Act which directs that ‘facts admitted need not be proved’.

Proof of Document is, Normally, Proof of (both) Execution and Contents

  • When existence of a document is proved (either by admission or by proof), normally, Contents thereof are also taken as proved.
  • In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’. But, it is not a rigid rule, for it falls under the caption, “appreciation of evidence”.
  • Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents. It is left to the discretion (Sec. 3) of the court. In proper cases court is expressly authorised to presume (Sec. 114) truth.

Therefore, by virtue of our procedure-laws (especially, Sec. 3 and 114 Evidence Act) and the law handed down by our Apex Court, the Courts are free to appraise that marking of a document –

  • 1. Contents and ‘Truth of its Contents’ stand proved, or
  • 2. Mere marking does not amount to proof of contents (even), or
  • (3) admission of contents; not truth of contents (especially when truth is in issue), or
  • (4) admission of contents and truth of contents; but, its probative value is small or nil.

PART I

Documents Marked Without Objection as to MODE OF PROOF – Effect, Waiver

The law prevails in India is the following –

  • If documents are marked without objection as to its mode of proof,  it is not open to the other side to object to their admissibility afterwards.

Following are the decisive authorities in this line.

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection.  Hence it was not open to the respondent to object to their admissibility.Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)Photo copies were admitted in evidence without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082Objection to be taken    at     trial before document is marked as an ‘exhibit’.   Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder
PC Thomas v. PM Ismail (R.M. Lodha, D.K. Jain, JJ.), AIR 2010 SC 905; 2009-10 SCC 239.Non-examination of Witness to Prove Truth-
If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”		…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315No objection about the truth of contents of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved…
Sarkar on Evidence .If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appealReferred to in:
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

Who Should Object FIRST – Court or Opposite Side?

There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.

First view
Court is under an obligation to exclude inadmissible materials.		H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree  v.  U. Srinivas: AIR 2013 SC 415.)
Yeshoda v. Shoba Ram:  AIR 2007 SC 1721
Second view
The court cannot object first.
If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).		R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

First View: Court is under an Obligation to Exclude

In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held:

  • “Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree  v.  U. Srinivas: AIR 2013 SC 415.)

In Yeshoda v. Shoba Ram:  AIR 2007 SC 1721, it is held:

  • “In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.

Second and Typically Followed View

  • 1. ‘Failure to raise timely objection‘ as to the irregularity of mode adopted for proving the document “amounts to waiver“.
    • R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
    • Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
  • 2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
  • 3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

Failure to Raise Objection as to Irregularity of mode, Amounts to Waiver

In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is held “failure to raise timely objection” as to the irregularity of mode adopted for proving a document “amounts to waiver“.

  • (Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court).

In RVE Venkatachala Gounder, our Apex Court held as under:

  • “Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
    • (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
    • (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
  • In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”

Admission by the other side, Proves Contents – No Blindfold Application

Court has wide powers under Sec. 165 of Evidence Act to require evidence to prove a document marked on ‘admission’. Besides the powers under Sec. 165, the Procedural Acts show that the courts have jurisdiction to require the party concerned to prove admitted-documents. It is evident from the Provisos of –

  • Sec. 58 of Evidence Act
  • O. XII, r. 2A, CPC and
  • Sec. 294 of the CrPC.

The Courts are free to refrain from acting upon any document, in the particular nature of a case, especially when the Court feels that injustice will be resulted by the blindfold application of this principle (admission of a document by the other side, proves its contents also), for it falls under the caption, “appreciation of evidence”. It is the reason why the courts refuse to apply this principle in certain cases, saying –

  • (i) Contents are ‘not proved’ (Though signature Proved)
  • (ii) Truth of contents are ‘not proved’ (Though contents Proved)
  • (iii) Probative value of the document is small or nil (Though contents and truth Proved).

Proof must be by one who can Vouchsafe for Truth – Not Beseem in All Cases

The normal rule as to proof of execution is made clear in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, under the following words –

  • “Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Though it is the “normal principle” that proof must be by one who can vouchsafe for truth (Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24), it may not be correct in all cases; because, (besides documents ‘admitted’ by the other side) there may be cases where proof as to ‘existence and contents’ of a document can be given by a witnesses who cannot vouchsafe truth – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, if ‘truth’ as to the contents of the document is in dispute, it has to be proved by a competent person.

Relevant Provisions as to Appreciation of Evidence – Sec. 3 & 114, Evid. Act

The definition of “Proved” in Sec. 3 gives vast discretion to the court. It reads as under:

” ‘Proved‘ — A fact is said to be proved when, after considering the matters before it, the Court; either BELIEVES it to exist, or CONSIDERS its existence so PROBABLE that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.”

Sec. 114 reads as under:

“114. Court may presume existence of certain facts —The Court may PRESUME the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.”
  • “Any fact” may include “truth” of contents of documents.

Relevancy of Evidence

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Sec. 5 Evidence Act, 1872 deals with Relevancy

Sec. 5 of the Indian Evidence Act, 1872 reads as under:

“5. Evidence may be given of facts in issue and relevant facts – Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation – This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure

Sec. 136, Evidence Act – Permits Evidence on Undertaking of the Party

Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”. It reads as under:

“S. 136. Judge to decide as to admissibility of evidence.
             When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
             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.
             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.”

Court can Reject ‘Irrelevant’ or ‘Inadmissible’ Document At Any Stage

Order 13 Rule 3 CPC reads as under:

“Rejection of irrelevant or inadmissible documents – The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

It is pertinent to note that Order 13 Rule 3 CPC speaks as to the rejection of irrelevant and inadmissible documents at any stage of the suit. It does not deal with the probative value of a document or marking/exhibiting the same in evidence. The courts can adjudicate the matters before them only on the basis of substantive evidence.

Court Cannot Discard Documents, Straight Away. It has to be marked ‘subject to proof’

When a ‘relevant’ and ‘admissible’ document is tendered in evidence, otherwise than through its executant (or a witness to the document) –

  • Can it be discarded outright by the Court, pointing out – no ‘formal proof’?
  • What will be the situation if the opposite side does not raise objection (or expressly say – they have no objection) to such marking?
  • Can a copy of a document be marked without ‘foundational evidence’, on admission?

It is definite –

  • The court cannot discard such documents, straight away.
  • It has to be marked ‘subject to proof’ or ‘subject to objection’, as it is the practice followed. The law also supports it.

Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’

Usually, a document is proved through its author, or through a witness or a person acquainted with handwriting. Admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act). Even ‘Truth of the contents’ of documents can also be established by concession or admission from the other side (“at the hearing”).

Sec. 58, Evidence Act reads as under:

“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
             Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

Sec. 58 says that no fact need be proved in any proceeding in three circumstances:

  1. the parties or their agents agree to admit at the hearing
  2. before the hearing, they agree to admit by any writing under their hands
  3. by any rule of pleading they are deemed to have admitted by their pleadings.

“Hearing” Partakes ‘recording evidence’

Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’.

Admissions – by the Advocate – at Hearing

Admissions (at ‘hearing’) – by the advocate – may be made at the evidence-stage (while the witnesses are examined) and at the time of ‘final hearing’. Admissions by advocate are to be deciphered from Judgment (Sarcar) or Order-sheet.

Admissions are Substantive Evidence By Themselves

In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: 1966-1 SCR 606, it was observed as under:

  • “Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted.”

Bharat Singh v. Bhagirathi is quoted/referred to in:

  • Dipakbhai Jagdishchandra Patel v. State of Gujarat, AIR 2019 SC  3363; 2019-16 SCC 547.
  • Union of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
  •  Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1  SCC 78,
  • Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49,
  • Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.

In the case of Murlidhar Bapuji Valve v. Yallappa Lalu Chougule, AIR 1994 Bom 358, it was held that an “admission” made by a party in a sale deed was liable to be considered as substantive evidence, and there was no need to confront the witness with the statement.

Marking Documents “Subject to Objection or Proof”

In M.  Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:

  • “539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. KV Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. ….”

The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –

  • Jarnail Singh v. State of Punjab, 2022-10 SCC 451 (photocopy),
  • Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018-10 SCC 484,
  • Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639,
  • Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt.  Ltd., 2015-9 SCC 755,
  • State of Bihar v. PP Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222,
  • Nilavarnisa v. MM  Faizal, 2019-1 KHC 699; 2019-1 KLT 652.

PART II

Effect of Marking Documents without Objection

Following two things are different processes –

  • (i) admission or exhibiting of a document in evidence; and
  • (ii) proving the ‘truth of its contents‘ (or veracity of the same).

But, in certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, or marked without objection separate proof as to ‘truth of contents’ may not be warranted.

  • Similarly, separate proof need not be required when presumptions (Sec. 114, Evidence Act) can be invoked (e.g. document in ordinary course of business, a letter obtained in reply or a public document).

What is the effect of marking documents without objection; do contents stand proved; does it bar raising objection afterwards?

  • Divergent views are taken by the Courts depending on the facts of each case.
First view
(a) Proof (Contents and ‘Truth of its Contents’) stands established.  It cannot be questioned afterwards.

(b) Admission of contents – but, does not dispense with proof of truth of its contents.		(a) RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003  SC  4548; Narbada Devi  v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata:  (2007) 8 SCC 575; Thimmappa Rai v. RamannaRai,(2007) 14 SCC 63; Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718.
(b) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 .
Second View
Even if no objection,
it does not dispense with proof (as to, both, existence of the document and its truth).
In such a case the document will not be taken as proved.

(Note: It may not be legitimate to apply this principle literatim. A close analysis of each case is essential.)		LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents);
Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view
If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.		See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view
Admission of contents, and
dispenses with proof and truth;
but its probative value will be a matter for appreciation by court.		See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015  AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758;  H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492;  Rasiklal Manikchand  v. MSS Food Products: 2012-2 SCC 196.
Fifth view
Admission of contents, and
dispenses with proof and truth;
but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking –
              • Sec. 165 of Evidence Act
              • Sec. 58 of Evidence Act
              • O. XII, r. 2A Proviso, CPC and
              • Sec. 294 of the CrPC.		See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.

1. (a) Once no Objection to Mode of Proof, Right to Objection Stands Waived

 It is trite law that once no-objection is raised to the mode of proof on account of lack of original, then the right of the opposite party to raise objection (on this score) stands waived. RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is often quoted to establish the proposition – 

It was the position of law accepted by our legal system. See:

  • Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487 (Quoted in Sonu @ Amar v. State of Haryana, AIR  2017  SC 3441; 2017-8 SCC 570)
  • Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315 (relied on:  P. C. Purushottamman v. S. Perumal AIR 1972 SC 608;
  • Pandappa v. Shivlingappa 47 BLR. 962; and
  • Gopaldas  v. ShriThakurli AIR 1943 PC 83).

See also:

  • Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
  • Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
  • Oriental Insurance Co v. Premlata:  (2007) 8 SCC 575,
  • Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107, AIR 2004 SC 4082;
  • R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752;
  • Narbada Devi  v. Birendra Kumar: (2003) 8 SCC 745
  • Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.

When a document is marked without objection, our courts take two (divergent) views:

  • First, both Contents and ‘Truth of its Contents’ stand proved.
  • Second, contents alone stand proved; and, not ‘Truth’ of its Contents.

Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.

The Constitution Bench in Neeraj Dutta v. State (Govt.  of N. C. T.  of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, held as under:

  • “44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”

In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed  as under:

  • “No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
  • In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
  • Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
  • Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”

Objection as to Truth of Contents, First Time In Appeal – Effect

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

  • “It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

(b) Document marked without objection – Contents (‘TRUTH also) proved

When a document is marked without objection, no doubt, the presumption in Sec. 114 of the Evidence Act is wide enough to presume that (i) the “contents” of the document and (ii) its ‘truth’ stand ‘proved’. Therefore, it is the duty of the other side to express its disapproval – that it does not accept the ‘contents’ and/or ‘truth’ (if it is so).

The dissent thereof can be placed by the opposite side by-

  • Raising ‘objection’ at the time of its marking, or
  • Placing the protest by way of ‘suggestion’ to the witness or by proper questions, in cross examination.

(c) TRUTH is left to Discretion (Sec. 3) & Presumption (Sec. 114) of Court

Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”

Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Evidence Act says about ‘proof as to truth‘ of contents of documents.

Inferences as to “TRUTH of contents

  • Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
  • It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
  • In most cases, ‘proof of execution’ leads the court to presume ‘proof of truth’.
  • It is more so, when a document is admitted (by the other side) without objection.
  • But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.

(d) Legal Position on ‘Waiver’ of Mode of Proof, Reprised

It appears that the legal position can be summed-up as under –

  • If a document is marked without objection, the right of objection (vested with the other side) stands waived.  And the entire contents of the document would be admissible in evidence.
  • However, if (i) there is any intrinsic infirmity to the document, or (ii) specific proof as to truth is required in the nature of the case of the parties, or it is marked through a witness who is incompetent to prove it (and the opposite party does not expressly or impliedly accepted it), the court can say – it is not ready to act upon it, for truth or correctness of contents is not established.

In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori  92, it is pointed out that (in such a situation) there must be some evidence to support the contents of such document.

It is apposite to note – in RVE Venkatachala Gounder v. Arumlmigu Viswesaraswami, AIR 2003  SC  4548, the question as to ‘truth’ of contents did not specifically come for consideration. It is dealt with as under:

  • “Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.”

Photocopy of 30 Years Old OFFICIAL DOCUMENTS – Marked WITHOUT OBJECTION– REGULARITY can be Presumed

Quoting Lakhi Baruah v. Padma Kanta, it is elucidated in Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards official/public document, marked without objection, presumption under Section 114(e) of the Indian Evidence Act (there shall be a that all official acts have been regularly performed) can be invoked, over and above the presumption under Ser. 90. It is held as under:

  • “The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non­production of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

2. MERE MARKING, DOES NOT PROVE THE CONTENTS –  NOT AN UNQUALIFIED PROPOSITION 

This Proposition is Not to be Applied “Literatim”

It is disgraceful that several courts in India apply this proposition (Mere Marking Does Not Prove the Contents) ineptly.  

This proposition is not attracted–

  • when a document is marked on ‘admission’ by the opposite side.

This proposition is attracted–

  • when it is evident that the document is marked only for ‘identification‘, or
  • when the objection raised by the other side is sustained and the document is marked ‘subject to proof/objection’.
  • when the document is marked through an incompetent witness and not proved through a competent witness (in spite of the objection in this regard), afterwards;
  • when it has come out in cross examination of the witness through whom it is marked (by other evidence) that it is not proved ‘in accordance with law‘.

Each Case under this Head Requires Distinct Consideration

As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those earlier decisions laid down a ‘ratio decidendi’.)

Read blog: Ratio Decidendi (alone) Forms a Precedent; Not the Final Order or Conclusion

Following are the often-cited cases on this subject.

(a) Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.]

It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745 as under:

  • “Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085. The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof  of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.

Narbada Devi Gupta v. Birendra Kumar Jaiswal (supra) continued as under:

  • “The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”

Note:

  • In this case the rent receipts were taken as proved, for, it was ‘not disputed’. [Hence the ‘legal position’ stated in Ramji Dayawala v. Invest Import (that mere production and marking of a document cannot be held to be a due proof) was not attracted in this case.]

(b) Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court]

In this case the Courts upheld the acceptance of the secondary evidence (of the dying declaration). Our Apex Court held as under-

  • “In the instant case, the Trial Court had granted permission to lead secondary evidence and the same had been adduced strictly in accordance with law and accepted by the courts below.”

It is only pointed out in this decision as under:

  • “However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.Further, mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with the proof , which is otherwise required to be done in accordance with law.
    • (Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457;
    • Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629;
    • RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548;
    • Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
    • LIC of India  v. Rampal Singh Bisen,2010-4 SCC 491).”

(c) Ramji Dayawala v. Invest Import: AIR 1981 SC 2085

[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – Truth of the facts in the document was “in issue”]

It is held as under:

  • “Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”
  • Note: The aforequoted portion itself will show that the proposition – mere proof of the handwriting would not tantamount to proof of contents – is not absolute. It is attracted to this case, because the truth of the facts was “in issue“.

(d) M. Chandra v. M. Thangamuthu, 2010-9 SCC 712

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Validity and Genuineness of the Photocopy (of the Caste Certificate) was very much in question]

In this decision it was held:

  • “The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.”
  • Note: It was an appeal from an Election petition and the Supreme Court allowed the appeal. The validity and genuineness of the Certificate was very much in question. Therefore, the principles in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548 (where the secondary evidence was marked without objection), was not attracted to this case (and it was not referred to also).
  • Principle of law laid down in M. Chandra v. M. Thangamuthu is followed in Rakesh Mohindra v. Anita Beri, 2016 -16 SCC 483.

(e) H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Photocopy was shown to the witness during cross-examination alone, and signature alone was admitted by the witness.]

It was held that the power of attorney was not proved in accordance with the terms of Sec. 65 of the Evidence Act, for the following –

  • The power of attorney had not been proved.
  • Original had never been filed before the Trial Court.
  • Only a photocopy of the same was shown to the respondent during cross-examination.
  • The respondent has only admitted his signature thereon.
  • He had never admitted its contents or genuineness.

It is held in H. Siddiqui v. A. Ramalingam, 2011-4 SCC 240, as under:

  • “In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof.”

It is added:

  • “More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.”

(f) Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865.

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the accounts of the Plaintiff would not be proved by itself.]

It is held that the documents do not prove themselves. It is also observed in this decision as under:

  • “15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs’ books would not have supported the plaintiffs.” (Quoted in: Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365.)

Other Important Decisions –

  • 1. LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); 
  • 2. Birad Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (document on date of birth).
  • 3.  Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (It is observed that mere marking as exhibit and identification of executant’s signature by one of witnesses does not prove contents of a document).
  • 4. Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365 (mere marking of exhibit – letter – without the expert deposing about the opinion given therein would not  dispense with the proof of contents).

3. IF ‘TRUTH’ IS IN ISSUE – Mere Marking Not Amount to ‘Waiver’

The fundamental principles as to proof of execution a document is that the execution has to be proved by proper evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). 

  • Note: In the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’ (as shown elsewhere in this article). But it is subject to the discretion of the court – to take presumption and evaluate probative value.

If ‘TRUTH’ is in issue, or in dispute, marking a document without objection, or mere proof of handwriting or execution, by itself, need not absolve the duty to prove the truth as to the contents of the documents. Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).

In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, it was held as under:

  • “If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”

See also:

  • State of Bihar v. Radhaa Krishna Singh, AIR 1983 SC 684,
  • Narbada Devi Gupta v. Birendra Kumar Jaiswal, AIR 2004 SC 175,
  • Oriental Insurance Co.Ltd. v. Premlata Shukla, 2007-13 SCC 476,
  • Dharmarajan v. Valliammal, AIR 2008 SC 850,
  • Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933,
  • Joseph John Peter Sandy v. Veronica Thomas Rajkumar, AIR 2013 SC 2028
  • Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81;
  • Suresh v. Tobin, 2013-1 KerLT 293.

4. Admission of Contents – May Dispense with Proof; But PROBATIVE VALUE may be Less or Nil

The discretion vested with the court to take presumption; and to evaluate probative value.

It is well settled that when a party leads secondary evidence, the Court is obliged to examine the probative value of the document and its contents, and to decide the question of admissibility of the same [Rakesh Mohindra v. Anita Beri: 2015  AIR(SCW) 6271; Kaliya v. State of MP, 2013-10 SCC 758 ].

Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case.

The probative value of Scene-Mahazar, Postmortem Report, Photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.

In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, after holding – ‘Mere admission of a document in evidence does not amount to its proof’ – it is further held as under:

  • “The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
  • [Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]

In Kaliya v. State of MP: 2013-10 SCC 758 our Apex Court also referred to  H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492, and Rasiklal Manikchand  v. MSS Food Products: 2012-2 SCC 196.

In Rakesh Mohindra v. Anita Beri, 2015 AIR (SCW) 6271, as regards mere admittance of secondary evidence, it is held:

  • “Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”

In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:

  • “26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
  • 27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”

The Calcutta High Court [quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa (2019-2 ACC 36) that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.

Best Evidence Rule and ‘Evidence of High Probative Value‘

Though various kinds of secondary evidences are provided under Sec. 63, the ‘probative value’ of one kind (say, a photograph/photostat of an original document, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists for evidence bearing high ‘probative value’.

In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed as under:

  • “Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”

Secondary Evidence would be Admissible only in Exceptional Cases

In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it had been observed as under:

  • “A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

5. Court should allow to adduce proper evidence to prove documents

Besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. It is evident from –

              • Sec. 58 of Evidence Act,
              • O. XII, r. 2A Proviso, CPC and
              • Sec. 294 of the CrPC.

Inasmuch as –

  • (a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth;
  • (b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and
  • (c) there may be a formal defect to the document for it is a secondary evidence and it is produced without adducing ‘foundational evidence’, 

it is legitimate to say that before taking an adverse stance as to proof in these counts, the court should give an opportunity to the party who relies on the document to cure the deficiency.

Duty of the Court to Aid Fair Trial

As shown above, the Privy Council, in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held, as regards objection as to the admissibility of a certified copy of a will without any objection, as under:

  • “11. … Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”

Defect for not producing a proper power of attorney being curable, in Haryana State Coop.  Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. 

This principle is iterated in following cases also:

  • F.A. Sapa v. Singora, (1991) 3 SCC 375;
  • H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
  • V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
  • Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
  • Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617; (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
  • Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196
  • (held that defective verification or affidavit is curable);
  • Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
  • Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
  • KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428
  • T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KLT 347.

End Notes

1. Proof is of Two Types:

  • First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
  • Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.  

2.Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:

  • Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
  • Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
  • An attesting witness (Sec. 59).
  • Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
  • Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
  • Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
  • Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
  • Public documents – Sec. 74 – 77.
  • Invoking (specific) presumptions under Sec. 79 to 90A.
  • Presumptions (general) under Sec. 114.
  • Circumstantial evidence: on probability or inferences (Sec. 114).
  • Court-comparison (Sec. 73).
  • Facts judicially noticeable (Sec. 56 and 57).
  • A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010  ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
  • Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

3. Proof as to truth is to be established-

  • (i) by oral evidence of one who can vouchsafe the same or
  • (ii) by circumstantial evidence or
  • (iii) by invoking ‘presumption’ or
  • (iv) by express admission by the other side.

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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

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

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

Should the Government Prove Title in Recovery Suits

Saji Koduvath, Advocate, Kottayam.

Introspection.

            •➧ Governments’ rights and powers based on the doctrine, ‘Eminent Domain‘ (arises from:  dominium eminens or ‘supreme ownership’ – Wikipedia) are accepted by all democratic jurisdictions, including the UK, US, and India.  
            •➧ In a dispute between the State and a private individual over property ownership, the burden rests upon the private individual to affirmatively establish his title supported by valid and legally admissible documentary evidence. The State enjoys a presumption of ownership. It becomes even stronger when certain factors are present—such as the land’s proximity to forest areas, coastal zones, or other ecologically sensitive locations—and when foundational revenue documents, including the General Land Register and Settlement Register, indicate a strong likelihood that the property belongs to the Government.
            •➧ In such a dispute, if the private person fails to establish a valid title, it is not open to him to contend that the State has also failed to prove its title or discharge any burden. This is because the law recognises certain presumptions in favour of the State, particularly in cases involving land situated near forests, coastal areas, etc.
            •➧ Disputes may arise when a piece of land is recorded as Government property in revenue or other official records, while a private individual asserts ownership based on a title deed in his possession. In such cases, courts place significant reliance on foundational documents, such as the General Land Register and the Settlement Register, as well as the prior deeds of the claimant. And, it will consider whether the doctrine nemo dat quod non habet—one cannot give what one does not have—is to be applied.

Key Decisions

  • Usha Kapoor v. Govt.  of India, 2014-16 SCC 481: (The General Land Register maintained by the Cantonment Board under the Cantonment Act and the Rules framed thereunder is a public document and the entries therein are conclusive evidence of title and of the fact that the land is covered by an old grant. Followed: Union of India v. Ibrahim Uddin, 2012-8 SCC 148; Union of India v. Kamla Verma, 2010-13 SCC 511; Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294.)
  • Union of India v. Ibrahim Uddin, 2012(8) SCC 148: (It is a settled legal position that the entries made in the General Land Register maintained under Cantonment Land Administration Rules are conclusive evidence of title. …… The appellate courts examined the title of Government instead of the plaintiff/respondent No. 1. The title of Government cannot be disputed. ….. The issue had been as to whether the plaintiff was the owner of the suit-land. Relied on in: Union of India v. Robert Zomawia Street, AIR 2014 SC 2721; 2014-6 SCC 707)
  • R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203: (Presumption available in favour of the government – all lands which are not the property of any person or which are not vested in a local authority, belong to the government.)
  • Government of Kerala v. Joseph, AIR 2023 SC 3988 (When the land subject to proceedings wherein adverse possession has been claimed, belongs to the Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.)
  • Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; 1999-3 SCC 555: (Had there been any conveyance or lease, it should have come from their custody. The Regulations, as well as the General Land Register maintained under the Cantonment Land Administration Rules of 1925, which are old documents, clearly indicate that the land is held on an old grant.)
  • Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1: (It would be deemed that the disputed land vested in the State, and if the other side fails, in law,  it would be taken that the land was vested in the State. Quoted in Mohd.  Shafiq v. Asstt.  Director Of Consolidation, Lucknow, 2011- 9 ADJ 24.)
  • Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843: (Ultimate ownership by the State of all property within the jurisdiction of the State.)
  • Chotte Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361: (The State is the ultimate owner of all property.)
  • Sahana Industries v. State of Kerala,, 2021 KHC OnLine 7110, Kerala High Court, Devan Ramachandran, J.: (If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents. (Followed in: Chitharanjan v. State of Kerala, WP(C) No. 25830/2010, 24.01. 2025, Harisankar V. Menon, J.)
  • The Secretary of State for India v. Chimanlal Jamnadas, (1942)44 BomLR 295, AIR 1942 Bom 161: “Even assuming that the lease be not held as proved, the plaintiffs had no title to the land as rightly held by the lower Court and as nobody else was its owner at the time when it was occupied by the plaintiffs’ ancestor, the presumption under Section 37 of the Land Revenue Code which was also applicable before its enactment was that Government were its owner at that date. If the plaintiffs claim to remain in possession merely on the strength of their long possession in the past, though without any rightful title in them, Government had the right to assert their ownership which had not been divested by the act of the plaintiffs’ ancestor, and they had a right of resumption so long as the plaintiffs had not proved any acquisition of right in them by adverse possession against the Government.”
  • Union of India v. Laxman Yadneshwar Sathe, 2018-4 AllMR 157: “As held by the Hon’ble Apex Court therefore in the case of R. Hanumaiah and Another v. Secretary to Government of Karnataka, Revenue Department and Others (supra), the west lands are presumed to be the Government lands. Rights, entitlement and presumptions of title lie in favour of the Government, distinguished from those of private parties. As held by this Court also, way back in the year 1941, in the case of The Secretary of State for India in Council v. Chimanlal, Jamnadas and Others (1942) Indian Law Reports 358), the Government is presumed to be the owner in case of lands which are not proved to be of a private party.”
  • Satpal Nahar v. Union of India (Sanjay Karol, Tarlok Singh Chauhan, JJ.), 2017 Supp HimLR 2994; ILR 2017-4 (HP) 196: “Even otherwise, it is settled that all lands which are not the property of any person or which are not vested in a local authority, belong to the Government. All unoccupied lands are the property of the Government, unless any person can establish his right or title to any such land. This presumption available to the Government is not available to any person or individual.”

The UK/England Decisions

  • Field Common Ltd v Elmbridge Borough Council (2008): When a local authority encroached the land of the claimant for the construction of a road, and the claimant sued for trespass, it was held that the claimant (private landowner) had to show that the council encroached. Since the defendant council asserted right of way by prescription over that land, it was held that the burden was on the council to prove the elements required for prescription.
  • Delaware Mansions Limited & Others v Lord Mayor and Citizens of the City of Westminster [2001]: In the case of encroachment by tree roots from property owned by Westminster City Council into property of the claimant, it was found that the claimant had to prove that roots had encroached, the existence of damage caused by those roots (for example, damage to drains/walls etc.). The technical distinction between trees being “self‑sown” versus planted, was rejected.
  • Entick v Carrington [1765]: Government agents entered private property under warrant, seized documents. It was held that the claimant had to show that the defendants entered without lawful authority/beyond their legal power. It was also found that the defendants would have to show lawful authority (warrant, statutory power etc.) they had the burden  to show they were acting under law.

The US Decisions

  • United States v. Clarke, 445 U.S. 253 (1980): The US Supreme Court, while considering the burden of proof, made it clear that in ‘inverse condemnation’ the landowner must bring the claim, and that the landowner has the burden to demonstrate that a ‘taking’ in fact occurred. It is pointed out: “To accomplish a taking by seizure, on the other hand, a condemning authority need only occupy the land in question. Such a taking thus shifts to the landowner the burden to discover the encroachment and to take affirmative action to recover just compensation.”
  • Vaughn v. City of Muskogee, Oklahoma Civ. App., 2015: The Oklahoma Court of Civil Appeals held that in an ‘inverse condemnation’ proceeding, the landowner has the burden of proving that a taking has occurred, whether or not the government files an objection.
  • Fowler Irrevocable Trust 1992 v. City of Boulder (Colorado, 2001): The Colorado Supreme Court held that in an inverse condemnation action, the landowner has the burden to prove both (i) a ‘taking’ has occurred and (ii) the amount of compensation.

Will ‘Long Possession’ Invite Civil Suit by the State?

In Government of Andhra Pradesh v. Thummala Krishna Rao, AIR 1982 SC 1081, 1982 (2) SCC 134 (Y.V. Chandrachud,A. Varadarajan, Amarendra Nath Sen, JJ.), the Supreme Court found that the respondents and their predecessors had long possession;  and therefore, a Civil Court enquiry on title was required on two matters:

  • 1. whether the title was vested in the Government
  • 2. whether the title by adverse possession was perfected (by the private person) against the Government of Andhra Pradesh.

The Apex Court said it as under:

  • “The conspectus of facts in the instant case justifies the view that the question as to the title to the three plots cannot appropriately be decided in a summary inquiry contemplated by sections 6 and 7 of the Act. The long possession of the respondents and their predecessors-in- title of these plots raises a genuine dispute between them and the Government on the question of title, remembering especially that the property, admittedly, belonged originally to the family of Nawab Habibuddio from whom the respondents claim to have purchased it. The question as to whether the title to the property came to be vested in the Government as a result of acquisition and the further question whether the Nawab encroached upon that property thereafter and perfected his title by adverse possession must be decided in a properly constituted suit. May be that the Government may succeed in establishing its title to the property but until that is done, the respondents cannot be evicted summarily.”

Govt. of AP v. Thummala Krishna Rao: Critical Appreciation

As pointed out in V. Laxminarasamma VS A. Yadaiah (S.B. Sinha, A.K. Ganguly & R.M. Lodha, JJ.), 2009-5 SCC 478, the ‘long possession’ and ‘adverse possession’ were considered in Thummala Krishna Rao case for the following:

  • (i) A suit for possession filed by Osmania University was dismissed earlier on the premise that Habibuddin had perfected his title by adverse possession.
  • Thereafter Osmania University requested the Government of Andhra Pradesh to take steps for summary eviction

It is clear that the Government of AP need not have gone for a civil suit, if it was definite –

  • (i) the title of the disputed property vested with the Government and
  • (ii) there was no scope for an argument by the private person as regards adverse possession.

In V. Laxminarasamma v. A. Yadaiah (S.B. Sinha, A.K. Ganguly & R.M. Lodha, JJ.), 2009-5 SCC 478, in a Reference for determination of a question of adverse possession — whether it would come within the purview of the jurisdiction of Special Tribunal and/or Special Court constituted under the AP Land Grabbing (Prohibition) Act, 1982, noticing purported conflict in the decisions of two Division Benches — held as under:

  • 45. … We are not oblivious of a decision of this Court in Government of Andhra Pradesh v. Thummala Krishna Rao and Anr. [(1982) 2 SCC 134] wherein it was held that a question of title could not properly be decided in a summary enquiry contemplated by Sections 6 and 7 of the A.P. Land Encroachment Act, 1905. In that case, the principal question, which arose for consideration, was as to whether the property in question was in possession of the family of one Habibuddin for a long time and, thus, the same had not vested in the Government by reason of a land acquisition proceeding initiated for acquisition of the land for Osmania University. In that case, Osmania University filed a suit for possession which was dismissed on the premise that Habibuddin had perfected his title by adverse possession. Thereafter Osmania University requested the Government of Andhra Pradesh to take steps for summary eviction of the persons who are not in authorized occupation of the said plots. The observations made therein must be held to have been made in the aforementioned factual matrix.”
  • See also: Mandal Revenue Officer v. Goundla Venkaiah, AIR 2010 SC 744; 2010-2 SCC 461.

It is further clear from State of Rajasthan v. Padmavatidevi, 1995 Suppl(2) SCC 290, which observed as under:

  • “6. As noticed earlier, Section 91 of the Act prescribes a summary procedure for eviction of a person who is found to be in unauthorised occupation of Government land. The said provisions cannot be invoked in a case where the person in occupation raises bona fide dispute about his right to remain in occupation over the land. Dealing with similar provisions contained in Section 6of the Andhra Pradesh Land Encroachment Act, 1945, this Court in Govt. of A.P. v. Thummala Krishna Rao (1982) 2 SCC 134 : (1982) 3 SCR 500 has laid down that the summary remedy for eviction provided by Section 6 of the said Act could be resorted to by the Government only against persons who are in unauthorised occupation of any land which is the property of the Government and if the person in occupation has a bona fide claim to litigate he could not be ejected save by the due process of law and that the summary remedy prescribed by Section 6 was not the kind of legal process which is suited to an adjudication of complicated questions of title. For the same reasons, it can be said that summary remedy available under Section 91 of the Act is not the legal process which is suited for adjudication of complicated questions of title where the person sought to be evicted as an unauthorised occupant makes a bona fide claim regarding his right to be in possession. In such a case the proper course is to have the matter adjudicated by the ordinary courts of law.
  • 7. In the present case, Respondent 1 has put forward a bona fide claim about her right to remain in occupation over the land. The said claim raises questions involving applicability and interpretation of various laws and documents as well as investigation into disputed questions of fact involving recording of evidence. These matters could not be satisfactorily adjudicated in summary proceedings under Section 91 of the Act and can be more properly considered in regular proceedings in the appropriate forum.
  • 8. In view of the fact that these proceedings have been pending for the past 25 years, we were not disinclined to consider the claim of Respondent 1 that she is entitled to remain in occupation of the land.”
  • (Quoted in: Kaikhosrou (Chick) Kavasji Framji v. Union of India, AIR 2019 SC 1692; 2019 20 SCC 705)

The axioms, in the Government of AP v. Thummala Krishna Rao, on ‘long possession‘ and the scope of adjudication on ‘title by adverse possession‘ were not seen followed in subsequent pronouncements. Later decisions have clarified and reinforced certain key legal principles, including:

  • 1. Presumption available in favour of the government – all lands which are not the property of any person or which are not vested in a local authority, belong to the government (R. Hanumaiah v. Secretary to Govt of Karnataka, (2010) 5 SCC 203).
  • 2. The court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property (Government of Kerala v. Joseph, AIR 2023 SC 3988).

Part I

State is the Ultimate Owner: Escheat and Bona Vecantia – Incidents of Sovereignty

Our Apex Court, in Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare,, AIR 1969 SC 843, appraised the principles of escheat in the Constitutional context (particularly, Article 296 of the Constitution) and held as under:

  • “In this country escheat is not based on artificial Rules of Common Law and is not an incident of feudal tenure. It is an incident of sovereignty and rests on the principle of ultimate ownership by the State of all property within its jurisdiction.”

Also read:

Article 296 of the Constitution

Article 296 of the Constitution of India, provides as under:

“Subject as hereinafter provided, any property in the territory of India which, if this Constitution had not come into operation, would have accrued to His Majesty or, as the case may be, to the Ruler of an Indian State by escheat or lapse, or as bona vacantia for want of a rightful owner, shall if it is property situate in a State, vest in such State, and shall, in any other case, vest in the Union.”

State is the Ultimate Owner of the Property – Recognised Long Back

In Pierce Leslie and Co. Ltd. v. Violet Ouchterlong Waoshare (supra) the Supreme Court relied on the Privy Council decision in 1860 in Collector of Massulipatnam v. Cavali Venata Narrainapeli, (1859-61) 8 MIR 500, where it was declared that the doctrine of bona vacantia or escheat was a part of the law in India. In Collector of Masulipatam v. Cavary Vancata Narrainappah it was observed as under:

  • “There can be, legally speaking, no unowned property, the law of escheat intervenes and prevails, and is adopted generally in all Courts of the Country alike. Private ownership not existing, the State must be owner as ultimate Lord.”

The same principle is iterated by Sinha, CJ, in in Chhote Khan v. Mohammad Obedulla Khan, AIR 1953 Nag 361, as under:

  • “The State Government is not in the position of the assignee interest of the proprietor, nor is it his successor in title, The State does not claim the proprietary interest, either through or under the outgoing proprietor. The State, as the ultimate owner of all property situate within its boundaries, naturally becomes, the owner of all property in villages, except those interests which have been recognized by the State as still vesting in or held by individuals in their rights as cultivators (‘malik-makbuza’ or otherwise) or as house-holders by virtue of being inhabitants of the village, or as having acquired by purchase or otherwise house-sites or buildings on house-sites.”

General Law of Universal Application

In Amir Hussain v. Deputy Director of Consolidation, 1978 RD 204, it had been noted as under:

  • “All important systems of Law provide for escheat to the Crown or Government of the property of a deceased person in the absence or failure of heirs.”

It is pointed out in Biswanath v. Prafulla Kumar Khan, AIR 1988 Cal 275, also that it is a General Law of universal application that ‘private ownership not existing, the State must be the owner as the ultimate Lord’.

Private Person to Prove his Title; State need not Prove Title

  • From Article 296 of the Constitution of India, it is clear that where a property:
    • is abandoned by all,
    • that has no rightful owner,
    • over which all claims raised are invalid, and
    • over which none can raise a valid claim
  • it vests with State.

Therefore, when a dispute comes as to the ownership of property between State and a ‘private person’, and the private person fails to prove his title, it is not Constitutional for him to argue that ‘the State also failed to prove its title and failed in discharging its burden’.

In Amir Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1, it observed as under:

  • “But, in a case where in proceedings under Section 9, the consolidator authorities reached at the conclusion that both the claimants had failed to prove their title, the necessary consequence of the finding was that the land had to be recognised as having vested in the State and in the Gaon Sabha. … To require a Gaon Sabha to file a claim at the commencement of the consolidation proceedings would be placing an impossible burden upon the Gaon Sabhabecause at that stage the Gaon Sabha could not possibly be in a position to know that the claim of the contending parties would be negatived and the land would be deemed to have vested in the State. In our opinion, the proper course in these cases is that if the authorities find that both the parties have failed to prove their title, and that in law the land has vested in the State under the Rule of escheat, they, in order to give effect to their findings, should direct the land to be recorded in the name of the Gaon Sabha.”
  • (Quoted in Mohd.  Shafiq v. Asstt.  Director Of Consolidation, Lucknow, 2011- 9 ADJ 24.)

In Vishwa Vijai Bharti v. Fakhrul Hasan, AIR 1976 SC 1485, it is held as to the presumption of correctness on revenue-records as under:

  • “It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was Made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”

Revenue Settlement Registers of Travancore in 1910, Basic Record of Land matters

The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:

  • “We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14th Kumbhom 1061 corresponding to 24th February 1886.”

If Settlement Register says Government Land, Petitioner to Establish Title

In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court, referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, observed as under:  

  • “Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala (2022 KHC OnLine 7354), 6 April, 2022, Anil K. Narendran, J. and Chitharanjan v. State of Kerala, WP(C) No, 25830/2010,24.01. 2025, Harisankar V. Menon, J.)

In Sahana Industries v. State of Kerala, in WP(C) 20520/2021 (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:

  • “… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”. (Referred to in: Chitharanjan v. State of Kerala, WP(C) No. 25830/2010, 24.01. 2025, Harisankar V. Menon, J.)

In Chitharanjan v. State of Kerala, WP(C) No. 25830/2010 (2025:KER:5422) 24.01. 2025 (Harisankar V. Menon, J.) it is pointed out as under:

  • “7. …. In the settlement register at Ext. R1(a), there is no dispute that the entire properties under old Survey No. 2211 having an extent in excess of 107 Acres are shown as “puramboke“….
  • 8…. As regards the petitioner in WP(C) No. 25830 of 2010 also, the title is traceable to some documents of the Attingal Sub Registry of the yeas 1959, 1957 and 1061. But, it is categorically found that even in these documents, there is no mention as to the receipt of pattayam with respect to the property in question.
  • 11. …. As already noticed, the settlement register describes the property as “Puramboke”. … In view of the discussions made above, I am of the opinion that the contentions raised by the learned Senior Government Pleader with respect to the malpractices committed, cannot be brushed aside.
  • 13….. However, I notice that WP(C) No.25830 of 2010 the entry with respect to the Settlement Register is to be considered at first, which admittedly is against the petitioner. The case of the State is that some foul play is carried out subsequently at the instance of those interested and therefore, the subsequent entries cannot be acted upon.
  • 14. On the other hand, the learned Government Pleader relied on Vallikunnil Janaki Amma and Ors. v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode and Anr. [2014 (1) KHC 57], which laid down the principle with respect to the acceptability/relevance of the Settlement Register. As already noticed, I have found that the Settlement Register describes the property under old Survey No. 2211 as “Puramboke”. To the same effect is the judgment of a learned Single Judge in WP(C) No. 20520 of 2021 dated 11.10.2021. This Court further notices the judgment of the Apex Court in Suraj Bhan and Ors. v. Financial Commissioner and Ors. [(2007) 6 SCC 186] which held that mere entry in the revenue records does not confer title on a person. As already noticed, in view of the entries in the Settlement Register, the requirement of an appropriate assignment cannot be lost sight of.”

In Travancore Devaswom Board v. Mohanan Nair M.N.,  (2013) 3 KLT 132, (T.R. Ramachandran Nair, J ; A.V. Ramakrishna Pillai, J), it is observed as under:

  • “18. …. The land register as well as the settlement register will establish the plea of the Board that the property having an extent of 2.26 acres is Temple property. Thus, Section 27 of Act of 1950 is clearly attracted and the property is clearly Devaswom property.”
  • “51. As far as the property herein is concerned, the land register and the settlement register produced herein are relevant. The property having the entire extent of 2.26 acres is described as ”kavu” (holy grove) in the settlement register. In the land register also it is described as ”kshethram irippu sthalam” (property where the temple is situated). No other document or other evidence is there to prove the contrary. Therefore, these documents will definitely show that the item of property will fit in with the requirement of Section 3(1)(x) of the Act.”
  • “75. … Apart from that, in the light of Section 27 of the Travancore Cochin Hindu Religious Institutions Act and in the light of the settlement register and land register, the property is described as Temple puramboke and not Government puramboke. Further Government lands are covered by the exemption u/s 3(1)(x) of the Land Reforms Act and therefore he cannot claim any fixity of tenure. There is no claim by the Government here to the property.”

Part II

Presumptions in Favour of Govt. Lands

(a) There is a presumption in favour of Government – all lands which are not the property of any person or which are not vested in a local authority, belong to the Government.

(b) In order to defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government.

(c) In Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843, it was held as under –

  • “In this country escheat is not based on artificial rules of common law; and is not an incident of feudal tenure.  It is incident sovereignty and rests on principle of ultimate ownership by the State of all property within the jurisdiction.”

(d) In Chotte Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361, held

  • “the State is the ultimate owner of all property situate within its boundaries”.

(e) In Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1, it is held that it would be deemed that the disputed land vested in State and if the other side fails, in law,  it would be taken that the land was vested in State. (Followed in: Mohd. Shafiq v. Assistant Director of Consolidation, 2011-9 ADJ 24)

(f) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
  • The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. …”

(g) The law as to title of property is laid down in Union of India v. Ibrahim Uddin, 2012(8) SCC 148 as under –

  • “The appellate courts examined the title of Government instead the plaintiff/respondent No. 1.  Such a course was not warranted.  The title of Government cannot be disputed.  In any event, possession of Government for decades is not disputed.  The plaintiff shifted the case from time to time; but failed to prove his title……….   The said courts did not realize that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit-land.”

(h) In Government of Kerala v. Joseph, AIR 2023 SC 3988 – It was pointed out –

  • “When the land subject to proceedings wherein adverse possession has been claimed, belongs to Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

(i) In State of Kerala v. Pathrose Mathai, 1970 Ker LJ 517; 1969 KerLT 507, it was held as under:

  • “There is also no presumption that a person who enters Government land, improves the same & keeps possession, is exercising acts hostile to the title of the State. This is because it is not uncommon for persons to enter upon Government land & reclain and improve such land in the hope of ultimately getting registry or lease of such land.”

(j) In Union of India v. Robert Zomawia Street, AIR 2014 SC 2721; 2014-6 SCC 707, the High Court allowed the second appeal preferred by the plaintiff and decreed the plaintiff’s suit.  The Supreme Court reversed the decree. The Apex Court quoted para 19 of the High Court Judgment.  The following can be deduced from paragraph 19:

  • No evidence to prove the old grant by the State.
  • There can be no presumption of ownership in favour of the State.
  • The plaintiff had created a high degree of probability that he was the owner.
  • The onus to prove ownership had been shifted to the State.
  • Apart from admissions, no document to indicate the old grant.
  • The state miserably failed to discharge such onus.
  • The plaintiff was able to prove his title to the suit land.
  • The courts below put the onus of proving title wrongly upon the plaintiff.
  • The concurrent findings of the courts below were consequently perverse.
  • It could not have been sustained in law and are liable to be interfered with in the second appeal.

The Apex Court, while reversing the findings of the High Court, laid down the following –

  • 1. The entries made in the GLR maintained under the Cantonment Land Administration Rules are conclusive evidence of title.
  • 2. Relied on the following findings in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148) –
    • The General Land Register and other documents maintained by the Cantonment Board under the Cantonment Act, 1924 and the Rules made thereunder were public documents.
    • The certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act.
    • It is a settled legal position that the entries made in the General Land Register maintained under the Cantonment Land Administration Rules are conclusive evidence of title.
  • 3. Also relied on Union of India v. Kamla Verma (2010) 13 SCC 511, to emphasise that the documents under the GLR were conclusive evidence of title.
    • The land in question was originally permitted to be used by a civilian on an “old grant” basis.
    • This fact is reflected in the lease deed executed by the late Shri Roop Krishan Seth.
    • Even in the sale deed executed in favour of the respondent, it has been stated that the vendor was an “occupancy-holder of the land and trees of the aforesaid premises and owner of superstructure of the bungalow…”.
    • Even in the land register, the Government of India has been shown as a “landlord” and Shri Mohan Krishan Seth has been shown to have occupancy right, and his nature of right was shown to be of “old grant”.
  • 4. Also relied on Chief Executive Officer v. Surendra Kumar Vakil, (1999) 3 SCC 555
  • 5. The argument that the word “held” meant “to own with legal title” was rejected. Therefore, the plaintiff cannot be a tenant was not accepted.
  • 6. The GLR showed that the Government was the Landlord.
  • 7. The GLR provided for the ‘table’ of rent and the details of the property.
  • 8. It was not possible to accept the contentions – since the State failed to produce the actual grant documents and there was no explanation, (1) adverse inference had to be drawn against the State, and (2) the grant not being proved, the plaintiff’s suit deserved to be decreed.
  • 9. The GLR supported the defendants’ contention that the plaintiff held the land on an old grant basis.
  • 10. The plaintiff, on the other hand, has not produced any document to show the title of his predecessor-in-interest. Nemo dat quid non habet is the maxim, which means no one gives what he does not possess, aptly applied in the case.
  • 11. The classification of the land as B3 land also points towards the same conclusion.

The principles in Sec. 110 and 114 CANNOT be invoked –

It is held in the following decisions that the Principle ‘Possession Follows Title’ does not apply in the following situations-

  • The facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1)
  • There is evidence of independent possession/title (Bhavnagar Municipality v. Union of India, AIR 1990 SC 717).

As we find in M.  Siddiq  v. Mahant Suresh Das (Ayodhya Case), 2020-1 SCC 1, Section 110 or the principle ‘title follows possession‘ applies when the facts disclose no title in either of the disputants in which case, possession alone decides (presumption cannot be invoked when the facts are known). But, with respect to the principle ‘possession follows title‘, as we find in Anathula Sudhakar  v. Buchi Reddy, AIR 2008 SC 2033, if only title is proved by one party, then only the principle ‘possession follows title’ comes in.

It is equally important that both these principles on presumption, ‘possession follows title’ and ‘title follows possession’, cannot be invoked in cases where:

  • (i) the defendants do not claim title/possession to the suit property (Devasia @ Kutty v. Jose, 2014-4 KLJ 41; 2014-3 KLT(SN) 50).
  • (ii) the facts (on title/possession) are known (M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1), or
  • (iii) there is evidence of independent possession/title (Bhavnagar Municipality v.. Union of India, AIR 1990 SC 717).

Mutation will not confer ‘Title’ (only Presumption on Possession)

It is a settled proposition of law (i) that the mutation entry in revenue documents will not confer any right, title or interest in favour of any person and (ii) that the mutation in the revenue record is only for the fiscal purpose. Mutation is made mainly based on possession. After pointing out these legal propositions, it is observed in Jitendra Singh v. The State of Madhya Pradesh, 2021 SCC OnLine SC 802, as under:

  • “6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
  • 6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. 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. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”

Revenue Records Not Confer Presumptive Value on Title

The Supreme Court in  Smt. Bhimabai Mahadeo Kambekar v. Arthur Import and Export Company (2019) and Commissioner, Bruhath Bangalore Mahanagra Palike v. Faraulla Khan (2021)observed that mutation in revenue records will not confer or lose title (Relied on Sawarni (Smt.) v. Inder Kaur (1996) 6 SCC 223, Balwant Singh & Anr. v. Daulat Singh (dead) by L.Rs. & Ors. (1997) 7 SCC 137,  Narasamma & Ors. v. State of Karnataka & Ors. (2009) 5 SCC 591).

As pointed out above, it is observed by the Apex Court in State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 that a revenue record is not a document of title; it merely raises a presumption in regard to possession (Quoted in M.  Siddiq   v. Mahant Suresh Das, 2020-1 SCC 1). The argument as to ownership based upon entries in the revenue records had been negated in Prahlad Pradhan  v. Sonu Kumhar,(2019) 10 SCC 259. It was held that the revenue record does not confer title to the property nor do they have any presumptive value on the title. (Quoted in Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (SC): 2021)

Effect of Travancore Govt. Leases after Royal Pattom Proclamations of 1040 and 1061

Now a question arises: What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ made after 1061 (1886)? Do such leased lands qualify as “estate” under Article 31A of the Constitution?

The legitimate answer is that the lands leased out (by the Government) after 1061 (1886) do not acquire the rights of ‘permanency of tenure’ or attain the ‘proprietary interest’ conferred by the Pattom Proclamations of 1040 and 1061. If such rights are axiomatically conferred as a matter of course, the result would be that the Government cannot ‘lease’ lands (after the Proclamations), for, the lease character would be lost at the moment it is made.

In Rev. Fr. Victor Fernandez v. Albert Fernandez (five Judge Bench), 1971 Ker LT 1, AIR 1971 Ker 168 (Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.), concluded that the land covered by the Royal Proclamations of 1040 and 1061 were “estates” falling under Art. 31A of the Constitution. It was on the finding that the Proclamation “secured permanency of tenure”, and “proprietary interest” in the soil. It was observed as under:

  • “7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that,even after the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil.”

Therefore, there is a clear difference between leases made before and after the Proclamations, and the rights conferred by the Proclamations do not apply to leases made after them.

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Who is the OWNER of Leasehold (Exempted) Plantation Lands in Kerala?

Saji Koduvath, Advocate, Kottayam.

1. Introspection

It is held in Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-4 Ker LT 121 –
            •➧The “vesting” in Government under Sec. 72, KLR Act, is a “legal fiction”.
            •➧The cultivating tenant has an “absolute right” to seek assignment. 
The Division Bench failed to consider –
            •➧1. The right, title and interest of the land (above ceiling limit) ‘vest’ with the Government under Sec. 72. It is absolute. It is not a ‘fiction‘; but, it is real and actual.
            •➧2. The nature of this statutory ‘vesting in Govt’ (under Sec. 72) is further clear from – Sec. 72E (tenant has to pay rent) and Sec. 112(5A) (land-value need not be given to the land-owner or the tenant, in case of acquisition).
            •➧3. Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit. (It is limited to the improvements made, in case of acquisition.)
            •➧4. Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres). Therefore, the analogy drawn by the Bench (tenant has a right seek assignment) is not apt at all.
            •➧5. The provisions of the KLR Act (in this regard) are legislated following Proviso to Article 31A(1) of the Constitution which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.

2. Who is the OWNER of Leasehold (Exempted) Plantation Lands in Kerala?

It is the Government. 

Reasons:

  • (i). Plantation (lease) lands Statutorily VEST in GOVT, under S. 72.
    • Sec. 72 of the Kerala Land Reforms Act, 1964, provides for absolute vesting (of lease-land) in Government.
    • Tenants of leasehold-exempted-plantation lands (above ceiling-limit) are entitled only to ‘fixity of tenure‘ by virtue of Chapter II, Sec. 13 (and they are not entitled for Purchase Certificate, over and above ‘ceiling limit’).
    • Note: ‘Tenure’ is derived from the Latin term, “tenere“;  means “to hold” or “to keep”.
  • (ii). ‘Vesting’ in Govt. is ‘Vesting of Ownership‘
    • Sec. 72 speaks about ‘Vesting of landlord’s rights in Government’.
    • It pertains to –
      • “all right, title and interest” of the landowners and intermediaries in respect of holdings held by cultivating tenants”.
  • (iii). Tenant has no “absolute rights”
    • Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit. (It is limited to the improvements made, in case of acquisition, under Sec. 112(5A), as stated below.)
    • Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land (above ceiling limit). The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres).
    • Tenant to Pay Rent to the Govt.: Sec. 72E directs – such a cultivating tenant is liable to pay ‘Rent’ to the Government (obviously over and above ‘ceiling limit’). Sec. 72F(5) authorises Land Tribunal to fix the rent.
  • (iv). Government Need Not Pay ‘Land-Value‘, as such, if Acquired
    • Sec. 112(5A) provides that the Government need not pay ‘Land-Value‘, as such, to the tenant, or the former land owner, if such Lands (above ceiling limit) are Acquired. (It is for the reason that ownership of such plantation-land vest in Govt., absolutely.)
  • (v). Proviso to Article 31A(1) of the Constitution of India
    • The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the former land owners (when land is acquired) above the ‘ceiling limit‘.
Proviso to Article 31A(1) reads as under:
“Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”

3. Tenant cannot ‘Sell’ Plantation Land as his Absolute Property

  • A tenant who got ‘fixity’ over such land cannot ‘sell’ this land as his absolute (ownership) property.

4. ‘Exemption’ in Chapter III Cannot be Read Into Sec. 72B(2)

  • The provision of law for giving Purchase-Certificate under Sec. 72B specifies that the provisions of Sec. 82 (as to ceiling limit) shall apply for the calculation of the ceiling area (alone).
  • Sec. 72B(2) reads-
    • “(2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1)”
  • The exemption provision in Sec. 81 (Chapter III), which excludes plantation lands from the ceiling limit, cannot be brought-forth or read-into Sec. 72B (provision for assignment of purchase-certificate) in Chapter II.
    • In other words, purchase-certificates cannot be given for land above ceiling-limit, rigging the exemption provisions (for plantations etc.).
  • Because,
    • Sec. 72B(1), in Chapter II shows – Sec. 72B(1) is an independent provision (though the Proviso says –  no cultivating tenant shall be entitled to assignment of the right, title and interest … (more than) … the ceiling area, mentioned in Sec. 82 in Chapter III)
    • When a provision in a latter Chapter of an Act (here, Sec. 82 that deals with extent of ceiling limit, in Chapter III) is referred to in an independent provision in an earlier Chapter (here, Sec. 72B, as regards issuing purchase certificate, in Chapter II), for a specific purpose (here, to state the limit in area alone), it cannot be said – the attributed colour or smell of the provision in the latter chapter (by virtue of other provisions, i.e., entire characteristics or attributions added to Sec. 82 by virtue of other provisions in Chapter III), would stand reflected on the earlier provision (here, Sec. 72B).
  • Further:
    • Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’, and ‘vesting’ of land in Government.
    • It is not stated anywhere in the Act – the right and title of the (leased-plantation) land legitimately vested in Government under Sec. 72, will be divested in any manner (in favour of the previous owner, or of the tenant or anybody else), in any circumstance.
    • Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation and Sec. 72F(5) authorises the Land Tribunal to fix the rent. (It goes without saying saying that it is for the reason that the ownership of the land vests in Govt.)
    • Note: Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.

5. What is the legal right attached to former ‘tenants’, after vesting the land with Govt. under Sec. 72?

  • It is not Tenancy – For no landlord-tenant relation with the Govt.
  • Not Grant or Licence/Permission – for Grant as well as Licence/Permission arise from a contract (express or implied).
  • Therefore, it can termed only as a “Legal Right conferred by Statute“, that is, the KLR Act.

6. What are the Stipulations attached to that “Legal Right conferred by Statute” to tenants (of Plantation land) having fixity?

  • 1. Liable to pay ‘Rent’ (under Sec. 72E).
  • 2. Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
  • 3. From Sec. 112(5A)(b) it is clear that the tenant will be entitled (on acquisition of the land) for the compensation for his homestead or hut, if any, and the value of his improvements (alone).

7. When Such a land (Vested In Govt. under S. 72) is Required for Govt. (Public Purpose), Should it be ‘Acquired’? Is the landowner Entitled for any Compensation? What is the Compensation Entitled to by the Tenant?

  • When Such a land (Vested In Govt. under S. 72) is Required for Govt. (Public Purpose), Should it be Acquired?
    • The ownership being vested in Govt. it need not be ‘strictly’ “acquired”. But no specific provision in Sec. 72 for ‘resuming’, if and when Govt. needs it. 
    • Sec. 112 (5A) of the KLR Act uses the term ‘acquisition’ itself (for the possessory rights remain with the tenant).
  • Is the landowner Entitled for any Compensation?
    • Sec. 112(5A) deals with the land acquired that has been vested in the Government under Section 72. From the sub section (5A) it is clear that the entire rights of the (former) landowner is vested with the Govt. and he cannot claim any right over the land (when it is acquired).
  • What is the Compensation Entitled to by the Tenant?
    • Sec. 112(5A)(a) says that the compensation for any building or other improvements belonged to such land owner and intermediaries shall be awarded (?) to the Government ; and
    • from Sec. 112(5A)(b) it is clear that the tenant will be entitled for the compensation for his homestead or hut, if any, and the value of his improvements (alone).

8. Apportionment of land value in cases of Acquisition

Sec. 112 of the KLR Act reads –

“112. Apportionment of land value in cases of acquisition  – (1) Where any land is acquired under the law for the time being in force providing for the compulsory acquisition of land for public purposes, the compensation awarded under such law in respect of the land acquired shall be apportioned among the landowner, intermediaries, cultivating tenant and the kudikidappukaran in the manner specified in this Section.
(2) The compensation for any building or other improvements shall be awarded to the person entitled to such building or other improvements.
(3) The kudikidappukaran shall be entitled to the value of the land occupied by his homestead or hut subject to a minimum of-
               three cents in a city or major municipality; or
               five cents in any other municipally; or
               ten cents in a panchayat area or township.
(4) The difference between the value of three cents or five cents or ten cents, as the case may be, and the value of the extent of the land occupied by the homestead or hut shall, notwithstanding anything contained in the Kerala Land Acquisition Act, 1961, be borne by the Government or the local authority or the company or other person on whose behalf the land is acquired.
(5) The balance remaining after deducting the compensation referred to in Sub-section (2) and the value of the land occupied by the homestead or hut shall he apportioned among the landowner, the intermediaries and the cultivating tenant in proportion to the profits derivable by them from the land acquired immediately before such acquisition .
Explanation. – “Profits derivable from the land” shall be deemed to be equal to (i) in the case of a landowner, the rent which he was entitled to get from the tenant holding immediately under him; (ii) in the case of an intermediary, the difference between the rent which he was entitled to get from his tenant and the rent for which he was liable to his landlord; and (iii) in the case of a cultivating tenant, the difference between the net income and the rent payable by him; and the rent payable by the cultivating tenant and the intermediary for the purposes of this Explanation shall be as calculated under the provisions of this Act.
(5A) Notwithstanding anything contained in Sub-sections (2) and (5), where there the right, title and interest of the landowner and the intermediaries in respect of the land acquired have vested in the Government under Section 72, –
               (a) the compensation for any building or other improvements belonging to such land owner and intermediaries shall be awarded to the Government ; and
               (b) the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
Explanation. – “Profits derivable from the land” shall be deemed to be equal to- in the case of the cultivating tenant, the difference between the net income immediately before the acquisition and the rent which he was liable to pay immediately before the date on which the right, title and interest of the landowner and the intermediaries have vested in the Government; and
in the case of the Government, such rent.
(7) In this Section, “homestead” includes a dwelling house occupied by a person who is deemed to be a kudikidappukaran under Explanation IIA to clause (25) of Section 2.”

9.Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-4 Ker LT 121 – Not Correctly decided

Following were the basic factual situation in Glen Leven Estate (P) Ltd. v. State of Kerala (supra)  –

  • The land was leased out by landlords.
  • The lease-rights came in the cultivating tenants by transfer.

Following were the rival claims raised by (i) the Govt. (ii) tenant and (iii) the landlord.

Contention of the Govt.

  • The Government contended that the tenant was a cultivating tenant and the land (absolutely) vested in the Govt. under Sec. 72 KLR Act.
    • Hence, tenant would be entitled to get compensation for the improvements (alone) to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.

Contention of the Tenants

  • A cultivating tenant has absolute right to seek assignment (subject to the payment of purchase price in contemplation of Sec. 72D). Therefore, vesting of rights in the Government under Sec. 72 is a legal fiction.

Claim of Land Owners

  • In view of Sec. 3(i)(viii), if the extent of the plantation is above 30 acres, and if the land was a plantation (put up by the land owner) when it was leased, the tenant will not be entitled for ‘fixity’; and the land will return to the land owner after the lease-period. Therefore, the land owners in one Writ Appeal claimed that the land involved therein was such a land entitled to by them (after the lease period).
  • Land owners also claimed that Sec. 72BB(1) gives them a right (i) to apply for assignment to the tenant and (ii) for the payment of the compensation due to him under Section 72A (as regards the property within ceiling limit).

10. The Division Bench Finding on Vesting Under Sec. 72

  • The contention of the Govt. that the land was (absolutely) vested upon it was rejected and held –
    • 1. the vesting in Govt. ‘is a legal fiction‘.
    • 2. cultivating tenant ‘has an absolute right to seek assignment‘ subject to the payment of purchase price.

11. The Division Bench observed as under –

  • “31. On an analysis of the provisions of Section 72(1) of the Act, 1963, it is clear that when the Government notified the said provision with effect from 01.01.1970, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under sub-Section (2) of Section 59 have not been issued, vested in the Government.
  • 32. Therefore, it is clear from Section 72 that what is vested with the Government is the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants. It is nothing but a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970.”
  • “34. On a conjoint reading of Sections 72 and 72A, it can be seen that vesting of rights in the Government contained under Section 72 is the rights held by the landlord and the intermediary in respect of holdings held by the cultivating tenants. However, the same will not, in any manner, interfere with the rights enjoyed by a cultivating tenant in contemplation of the provisions of the Act, 1963.”
  • “41. On an indepth analysis of the aforesaid provision, we find that when Section 72 came into force on 01.01.1970, the cultivating tenant is entitled for the assignment of the land for possession, subject to the liabilities fixed under Section 72 of the Act, 1963 to pay the purchase price. As per Section 72C, if no application is filed by the cultivating tenant, the Land Tribunal shall subject to the Rules made by the Government ensure that the assignment is granted to the cultivating tenant, assigning such title and interest to the cultivating tenant entitled thereto, which rights, title and interest are vested with the Government by virtue of the legal fiction created under Section 72 of the Act, 1963.
  • 42. Therefore, we have no doubt in our mind to hold that Section 72 of Act, 1963 would only deal with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants free from encumbrances created by the land owners and intermediaries. However, the legal provisions discussed above would make it clear that insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.”

12. The following logic put forwarded by the Bench is inappropriate.  

  • “… insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963″.

Because–

  • Sec. 72B spells out that the Purchase-Certificate can be given within the ceiling limit alone.
  • Note: Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres). Therefore, the analogy drawn by the Bench (tenant has a right seek assignment) is not apt at all.

13. The Division Bench failed to consider the following as regards Vesting Under S. 72

  • 1. The vesting in Govt’ under Sec. 72 is absolute. It is further clear from Sec. 72E (tenant has to pay rent) and Sec. 112(5A) (land-value need not be given to the land-owner or the tenant, in case of acquisition).
    • The Division Bench went wrong in observing that it is “a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970“.
  • 2. Sec. 72B(2) KLR Act provides that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit.
    • Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land (land above ceiling limit). The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres).
    • Tenant has to Pay Rent to the Govt.: Sec. 72E directs – such a cultivating tenant is liable to pay ‘Rent’ to the Government (obviously over and above ‘ceiling limit’). Sec. 72F(5) authorises Land Tribunal to fix the rent.
  • 3. The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated following Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.
    • When a landowner has no vested right over and above the ceiling limit, it is illogical and irrational to say that the tenant will have it.

14. The DB Avoided Consideration of Factual Matters u/S. 3(i)(viii) & 72BB

While considering the claims of landlord (basing on Sec. 3(i)(viii) and Sec. 72BB), the Bench avoided consideration of these matters (as they were absolutely factual in nature) observing as under:

  • “36. So also, sub-Section (1) of Section 72BB dealing with ‘the right of landlord to apply for assignment and compensation’ specifies that any landowner or intermediary, whose right, title and interest in respect of any holding have vested in the Government, may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A.”
  • “55. However, the landlords, who are the appellants in W.A. No. 500 of 2016, in their appeal have raised a claim against the cultivating tenant basically contending that the tenancy is exempted in view of Section 3(i)(viii) of Chapter II of the Act, 1963 and therefore, the lessee is not entitled to fixity of tenure. Other contentions are also raised. But, in our considered opinion, the dispute with regard to the apportionment of the claim for compensation by rival claimants is a matter for consideration by the competent authority, and also in contemplation of the provisions of Section 64 of the Act, 2013, and therefore, the said dispute, which are absolutely factual in nature depending on evidence, has to be decided by the statutory authority in accordance with law.”
  • The landlords argued that the land was a plantation (over 30 acres) when it was (originally) leased, and therefore, they are entitled to claim exemption and benefits in the light of the exemption under clause (viii)  of Section 3 (1) of the KLR Act. Since there would be no fixity of tenure, it being a plantation, there would not be vesting of rights of the land owner in the Government. Hence, there should be the apportionment of the compensation between the lessor and the lessee and it should be decided in the acquisition proceedings.
  • The single Judge dismissed the writ petition, ‘leaving open the liberty of the lessee as well as the landlords, to approach the civil court seeking relief against the Government, and also to resolve the inter se dispute by and between the tenant and the landlords’.

Epitome

When Land Reform Measures were implemented in the State of Kerala, it jaded and wearied small and moderate landlords and tenants, on the bedrock of “ceiling limit”. But, the Plantations were not “touched” taking “economy” into consideration. Still, the well-visioned legislators were particular to see that the ownership of this large extent of plantations (otherwise thick forest of the Western Ghats) was remained with the State. It was based on the principles in Article 31A(1) of the Constitution which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit’.

Therefore, it can say definitely –

  • For (even) the landowner has no vested right on land beyond the ceiling limit, a tenant can never claim such a right; and, it is too illogical and irrational for the tenant to have such a right.
  • Interpretation of law, especially when Constitutional principles are involved, should subserve the interests of the nation and future generations, and not that of a few ones.

Conclusion

In short, the juridical status of the ‘plantation land’ (beyond the ceiling limit), vested in Govt. under Sec. 72, can be placed as under –

  • 1. Title and ownership of the same is vested with the Govt.
  • 2. Because of the Exemption (Sec. 81) and Fixity (Sec. 13) the tenant can continue the plantation activity therein.
  • 3. But the tenant has to pay the ‘Rent’ to the Govt. (Sec. 72E) fixed by the Land Tribunal (Sec. 72F).
  • 4. Because of the restrictions in Sec. 72B and 72C, a tenant cannot obtain Purchase Certificate (and become the land-owner) for more extent than the ceiling limit.

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Glen Leven Estate v. State of Kerala: Not Correctly Decided?

Saji Koduvath, Advocate, Kottayam.

Part I

Contents in a Nutshell

The point placed for consideration in Glen Leven Estate (P) Ltd. v. State of Kerala, 2022 (4) KHC 97, was the following –

  • Whether the tenant of a plantation-tenancy-land is entitled to compensation for the entire ‘plantation-tenancy-land’ (including the land over and above the ceiling limit – vested in Government under Section 72 of the Kerala Land Reforms Act, 1963).

The Division Bench pronounced to the following effect –

  • (i) The ‘vesting’ of land in the Government under Section 72 of the Kerala Land Reforms Act is only a ‘legal fiction’;
  • (ii) the cultivating tenant has an ‘absolute right’ to seek assignment of the entire plantation-tenancy-land (irrespective of the ceiling limit); and
  • (iii) the cultivating tenant is entitled to get ‘compensation for the entire plantation-tenancy-land’.

Para 42 of the decision reads as under:

  • “42. … Insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.”

The Division Bench Totally Ignored Relevant Provisions of Law

The Division Bench erred in holding that a cultivating tenant has the absolute right to seek ‘assignment’ of the entire plantation-tenancy-land (disregarding the ceiling limit). It failed to consider the following relevant statutory provisions.

  • 1. Sec. 72, Kerala Land Reforms Act, 1963: All right, title and interest of the land-owners held by cultivating-tenants as on 1.1.1970 entitled to fixity of tenure under Section 13 shall vest in the Government.
  • 2. Sec. 72A directs compensation to the land owner for vesting land under Sec. 72 in Govt. – No right remains with (erstwhile owner) thereafter. 
    • For the land above the ceiling limit, payment to land owner is made under Sec. 88 – on surrendering land. It is paid by the Government; not by the tenant. (Under Sec. 72D, the cultivating tenant pays the purchase price for getting the assignment – below the ceiling limit – alone.)
  • 3. Sec. 72B: It deals with “cultivating tenants’ right to assignment” (of the land vested in Government under Section 72).  Sub Section 1(a) and (b) of this Section direct that the assignment should be within the ceiling limit (mentioned in Section 82).
    • It is stated in Sec. 72B: “The provisions of Sec. 82 shall so far as may be applied to the CALCULATION of the ceiling area for the purpose of the proviso to sub section (1)”. It is obvious –
    • The legislature incorporated Sec. 82 only for a limited or a “specific” purpose – to the calculation of the ceiling area.
  • 4. Sec. 72C: It deals with assignment of land, where the cultivating-tenant has not made application under Section 72B. All provisions of Section 72B, except sub section 3, are made applicable to Section 72C.  The opening words of Section 72C (“notwithstanding anything contained in sub Section 3 of Section 72B”), indicate the nexus between Section 72B and Section 72C.  Therefore, the purchase certificate can be issued, within ceiling limit alone, under Section 72C, as in the case of Section 72B.
  • 5. Sec. 72E: It says that a tenant (under Government) is liable to pay rent to the Government for the unassigned land (i.e., unassigned–exempted-plantation-land, over and above the ceiling limit).
  • 6. Sec. 72F(5)(h): Land Tribunal fixes the rent for the said unassigned–exempted-plantation-land land.
  • 7. Sec. 87(1) and its Explanations I and II: Only a limited right to continue; and, fragmentation is prohibited.  The specified plantation-crop alone is permitted.  The exemption is given subject to the condition – not to “convert” the land for any other use.
    • In case the land is ‘converted’, the exemption-benefit would be lost, and the exemption may be withdrawn.
  • 8. Sec. 112 (5A): It says: on acquisition, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Sec. 72.
  • 9. Sec. 112 (5A)(a), which says that the compensation for any building or other improvements belonging to the landowner shall be awarded to the Government.
  • 10. Sec. 112 (5A)(b): Itsays that the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
  • 11. Proviso to Article 31A(1) of the Constitution of India: It says that the State need not pay compensation to the land owners (when land is acquired) above the‘ceiling limit‘.
    • The provisions of the KLR Act, in this regard, are legislated following this proviso in Article 31A(1). It goes without saying – if no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.

Legal Right Conferred by the Statute
From the above, it is clear:

  • The land allowed to be held by a tenant (over and above the ceiling limit for which the tenant is liable to pay rent to the Government under Sec. 72E) can be termed as a “Legal Right conferred by the Statute“. It is not an absolute right that is conferred to some, including the BIG tenants.

The policy of the Act
Sec. 83, lays down the policy of the Act – No person “be permitted to hold any land in excess of the ceiling area.” (Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571).

Unjustifiable to Confer Undue Benefits to BIG Tenants
Under Sec. 72A and Sec. 88, meagre compensation is paid to the land owners on vesting landlords’ rights in the Govt. and on surrendering land. It is most unjustifiable to confer undue rights or benefits on the plantation-tenants (and not to the land owners) when their lease-lands are acquired  (the majority of such lessees are BIG Companies)

Lands of the Maharaja of Travancore were taken

It is a matter of record that even the lands of the Maharaja of Travancore—191 acres situated within Thiruvananthapuram City, far in excess of the statutory ceiling of 7.5 acres—were taken over pursuant to the orders of the Land Board, Thiruvananthapuram, vide Order No. LB(B)2-18919/70 dated 15-01-1972. Equally, it is an indisputable fact that thousands of middle-class landowners were subjected to the rigour of the Act, and their excess lands were taken by the force of law.

  • Therefore, it would be wholly unreasonable to contend that the Legislature intended to confer any special or undue benefit upon plantation tenants—benefits which were not extended even to the Maharaja of Travancore, to middle-class landowners, and to other categories of tenants governed by the Act.

Any interpretation that elevates plantation-tenants to a privileged class, beyond the plain limits imposed by the statute, would be contrary to the scheme, object, and egalitarian ethos of the Kerala Land Reforms Act.

  • The legislature never intended to give undue benefit to the plantation-tenants, which were not given to the Maharaja and the middle-class property owners; so also the other tenants (other than the plantation-tenants).

Sec. 72, KLR Act – ‘Vesting of Ownership’ in Government

Sec. 72 of the Kerala Land Reforms Act speaks about ‘vesting of landlord’s rights in Government’. It pertains to –

  • “All right, title and interest of the landowners and intermediaries … and in respect of which certificates of purchase… have not been issued, shall …. vest in the government”.

Section 72(1) reads:

“72. Vesting of landlord’s rights in Government: (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under Sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the government free from all encumbrances created by the landowners and intermediaries and subsisting thereon the said date”

Part II

Is Vesting in Government ‘Fictional’ and such Land to be Transferred to Tenants?

No. The vesting in the Government is real, as regards lands above the ceiling limit; and such lands are not liable to be transferred to tenants.

Reasons:

  • (i). Lease lands Statutorily VEST in GOVT, under S. 72.
    • Sec. 72 of the Kerala Land Reforms Act, 1963, provides for absolute vesting (of lease-land) in Government.
    • It is vesting of all right, title and interest. Sec. 72 reads: “… the right, title and interest of the landowner and all other persons… shall cease, and the land shall vest in the Government, free from all encumbrances…”
    • There cannot be any further right or interest in anybody (Aru v. Nakkunni, 1987 -1 KLT 177).
  • (ii). Tenant has no “absolute rights”
  • (a) Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit.
    • Tenants of leasehold-exempted-plantation lands (above ceiling-limit) are entitled only to ‘fixity of tenure’ (that is, right to continue as tenant) by virtue of Sec. 13, Chapter II (and they are not entitled for Purchase Certificate, over and above ‘ceiling limit’).
    • Plantation-lands, usually, involve Hundreds or Thousands of Acres of “excess” land (above ceiling limit). The assignment-possible-land (within ceiling limit) may be miniscule (7.5 acres or 15 acres).
    • Note: 1. ‘Tenure’ is derived from the Latin term, “tenere“; means “to hold” or “to keep”.
    • 2. The holding of plantation land on the basis of ‘exemption’ provision under Sec. 81, is only a “right” conferred by the law just like the ‘right’ of easement – which does not bestow any ‘interest’ in the land.
  • (b) Tenant to Pay Rent to the Govt.: Sec. 72E directs – such a cultivating tenant is liable to pay ‘Rent’ to the Government (obviously over and above ‘ceiling limit’, if purchase certificate has been obtained for the same).
  • (c) Sec. 72F(5)(h) authorises the Land Tribunal to fix the rent.
  • (d) Government Need Not Pay ‘Land-Value‘, as such, if Acquired
    • Sec. 112(5A) provides that the Government need not pay ‘Land-Value‘, as such, to the tenant, or the former land owner, if such Lands (above ceiling limit) are Acquired. (It is for the reason that ownership of such plantation-land vest in Govt., absolutely.)
  • (e) Proviso to Article 31A(1) of the Constitution of India
    • The provisions of the KLR Act as regards ‘vesting’, ‘excess land’ etc. are legislated predicating upon Proviso to Article 31A(1) of the Constitution which states that the State need not pay compensation to the former land owners (when land is acquired) above the ‘ceiling limit‘.
    • It goes without saying – If no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.
Proviso to Article 31A(1) of the Constitution of India reads as under:
“Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”

(iii) Tenant or Former Owner cannot ‘Sell’ Plantation Land (above ceiling limit) as his Absolute Property

  • An owner, or a tenant who got ‘fixity’ over such land, cannot ‘sell’ this land as his absolute (ownership) property.

(iv) ‘Exemption’ in Chapter III Cannot be Read Into Sec. 72B(2)

  • The provision of law for giving Purchase-Certificate under Sec. 72B specifies that the provisions of Sec. 82 (as to ceiling limit) shall apply for the calculation of the ceiling area (alone).
    • Note: That is why it is specifically stated in Sec. 72B and in all places wherever Purchase Certificate is mentioned in Chapter II that the extent of land in Purchase Certificate should be limited to the ‘ceiling area’.
  • Sec. 72B(2) reads-
    • “(2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1)”
  • The exemption provision in Sec. 81 (Chapter III), which excludes plantation lands from the ceiling limit, cannot be brought-forth or read-into Sec. 72B (provision for assignment of purchase-certificate) in Chapter II.
  • Because,
    • Sec. 72B(1), in Chapter II denotes – Sec. 72B(1) is an independent provision (that is why the Proviso says –  no cultivating tenant shall be entitled to assignment of the right, title and interest … (exceeding) … the ceiling limit, mentioned in Sec. 82 in Chapter III).
    • When a provision in a latter Chapter of an Act (here, Sec. 82 that deals with extent of ceiling limit, in Chapter III) is referred to in an independent provision in an earlier Chapter (here, Sec. 72B, as regards issuing purchase certificate, in Chapter II), for a specific purpose (here, to state the limit in area alone), it cannot be said – the attributed colour or smell of the provision in the latter chapter would stand reflected on the earlier provision (here, Sec. 72B).
  • Further:
    • Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’, and ‘vesting’ of land in Government.
    • It is not stated anywhere in the Act – the right, title and interest of the (leased-plantation) land legitimately vested in Government under Sec. 72, will be divested in any manner (in favour of the previous owner, or of the tenant or anybody else), in any circumstance.
    • Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation (for the unassigned–exempted-plantation-land vested in Government under Sec. 72); and Sec. 72F(5) authorises the Land Tribunal to fix the rent. (It goes without saying saying that it is for the reason that the ownership of the land vests in Govt.)
    • Section 81(4) “permits” use of the land not exceeding 5% of the extent of such holding for floriculture, dairy farms, hotels, restaurants, etc.
    • Note: Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not divest title vested in Govt.

(v) In State of Kerala v. Gwalior Rayon Silk, AIR 1973 SC 2734, while considering similar [Kerala Private Forests (Vesting and Assignment) Act 26 of 1971] “vesting”, similar to that in the KLR Act, it was observed as under:

  • “Section 3 of the impugned Act vests the ownership and possession of all private forests in the State.”
  • “As to its constitutionality we have shown that the Act purports to vest the janmam rights to the forests in the Government as a step in the implementation of agrarian reform.”
    • Note: Section 3 Kerala Private Forests (Vesting and Assignment) Act, 1971 reads as under:
    • “3. Private forests to vest in Government
    • (1) 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. …”

(vi) Section 82 KLR Act – Bar on Civil Courts & Finality of Vesting

  • Section 82 of the KLR Act bars civil courts from questioning orders made under Chapter III.

This includes the finality of orders determining excess land and vesting.

S. 82 (in Chp. III) cannot be enlarged while referring it in S. 72B (in Chp. II)

Section 82 deals with ceiling area. Sec. 81 states about the exemption of various provisions of Chapter III. By virtue of Sec. 81 private forests, plantations, etc. are exempted. Therefore, the provisions of ‘ceiling area’ in Sec. 82 do not apply to plantations, private forests, etc.

Section 72B(1) in Chapter II limits the assignment of land (within the ceiling area) while a Purchase Certificate is given. Section 72B(2) says –

  • “The provisions of Sec. 82 shall so far as may be applied to the CALCULATION of the ceiling area for the purpose of the proviso to sub section (1)”.

From the above it is clear –

  • The provisions as to the exemption in Section 81 will not be attracted to sec. 72B.
  • The legislature incorporated the referred provision only for a limited or a “specific” purpose – to the calculation of the ceiling area.
    • It can be made clear on a reading of the relevant provision – without the words “the CALCULATION of “.
  • ‘Calculation of the ceiling area‘ in Section 82 stands independent to Section 81.
  • Therefore, other controlling provisions of Section 82 (such as Section 81) do not automatically brought in.

Interpretation of Law in this regard

  • In Ram Sarup v. Munshi, AIR 1963 SC 553 : (1963) 3 SCR 858, it is held as under:
    • “Where the provisions of an Act are incorporated by reference in a later Act the repeal of the earlier Act has, in general, no effect upon the construction or effect of the Act in which its provisions have been incorporated.”
  • In TVS Motor Company Ltd. v. State of Tamil Nadu, AIR 2018 SC 5624; 2019-13 SCC 403, it is held as under:
    • “It is, therefore, clear that the definition of ‘motor vehicle’ as existing prior to 1956 Amendment would alone be applicable as being incorporated in the Taxation Act.”

‘Doctrine of Incorporation’ and the ‘Doctrine of Reference’

The ‘principles’ of doctrine of incorporation (only a restrictive and strict application) is to be applied in this matter – whether Section 72B(1) in Chapter II limits the assignment of land (within the ceiling area) while a Purchase Certificate is given. The decisive factor to determine whether a case is of ‘legislation by incorporation’ or ‘legislation by reference’ is whether “the reference is specific or general”.

  • Doctrine of incorporation (only a restrictive and strict application) – subsequent change (amendment or repeal) of the referred provision does not affect the incorporating provision.  That is, the incorporated original provision alone applies, verbatim.
  • Doctrine of reference or a citation (wider application) – future changes in the referred provision will also apply to the referring provision. The statute referred to is taken as it exists from time to time. Therefore, subsequent amendments to the referred statute will apply.
  • Doctrines of ‘legislation by reference’ and ‘legislation by incorporation’ are the creation of judicial pronouncements. See:
    • Insolvency and Bankruptcy Board of India v. Satyanarayan Bankatlal Malu, BR Gavai, Sandeep Mehta, JJ., AIR 2024 SC 2835; 2024-4 SCC 508
    • Bolani Ores v. State of Orissa : (1974)2 SCC 777
    • Mahindra v. Union of India: (1979)2 SCC 529
    • State of M.P. v. Narasimhan : (1975)2 SCC 377;
    • Bharat Co-operative Bank v. Employees’ Union : (2007)4 SCC 685
    • Girnar Tradeers v. State of Maharashtra, 2011 (3) SCC 1
    • Secretary of State for India in Council v. Hindusthan Co-operative Insurance Society Ltd., AIR 1931 PC 149.
    • Municipal Commissioner of Howrah v. Shalimar Wood Products, (1963) 1 SCR 47;
    • Ujagar Prints v. Union of India, (1989) 3 SCC 488;
    • U.P. Avas Evam Vikas Parishad v. Jainul Islam, (1998) 2 SCC 467;
    • Nagpur Improvement Trust v. Vasant Rao, (2002) 7 SCC 657 and
    • Maharashtra State Road Transport Corporation v. State of Maharashtra. (2003) 4 SCC 200.

When a statute refers to another provision, only the provision specifically referred to is attracted, and it shall not be construed as importing the entire body of law relating to that subject, or other connected or ancillary provisions – especially in the absence of express words and the intention is manifest.

It is reasonable to hold that the same position applies when a section incorporates a provision in another section, in the same Act. That is, that particular provision alone is attracted.

  • See: K. Prabhakaran v. P. Jayarajan, AIR 2005 SC 688, 2005 (1) SCC 754.

Part III

What is the legal right attached to former ‘plantation-tenants’, after vesting the land with Govt. under Sec. 72?

  • It is not Tenancy  – For no landlord-tenant relation with the Govt.
  • Not Grant or Licence/Permission – for Grant as well as Licence/Permission arise from a contract (express or implied).
  • Therefore, it can termed only as a “Legal Right conferred by Statute“, that is, the KLR Act.

What are the Conditions attached to that “Legal Right conferred by Statute” to tenants (of Plantation land) having fixity?

  • 1. Liable to pay ‘Rent’ (under Sec. 72E) for the unassigned–exempted-plantation-land vested in Government under Sec. 72.
  • 2. Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
  • 3. If no purchase certificate is given to the tenant, from Sec. 112(5A)(b) it is clear that the tenant will be entitled (on acquisition of the land) for the compensation for the actual area where his homestead or hut, if any, is situated (whatever may be the area of land outside it).

Purport of Sec. 87 and the Explanations in S.87(1)

Section 87 reflects the legislative intention in protecting plantations. The protection is on economic grounds. That is, certain crops and cultivations that made the land of Kerala renowned from ancient times were to be protected. Section 87 and the Explanations are to be read and interpreted in the light of their intentions. The Kerala High Court aptly appreciated these provisions in this background in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.

In State Human Rights Protection Centre, Thrissur v. State of Kerala, 2009(3)KLJ 110, it is held as under:

  • “19.There is no restriction on alienation of lands exempted under Section 81 (1)(a) of the Land Reforms Act ,since such lands are exempted from the operation of Chapter III of the Kerala Land Reforms Act dealing with ceiling on holding. It is not the excess land that is alienated but the exempted land………”

It was further held in para 21-  

  • ”……Any exemption from ceiling provision under the Kerala Land Reforms Act has a purpose and the purpose in the present case is public interest and that public interest is the use of land for industrial purpose. Since under the Kerala Land Reforms Act there is no restriction on alienation of the exempted category of lands and since the transferee is subjected to the acid test of eligibility and entitlement for exemption in terms of use of the land, the transfer made by the HMT will also be subjected to the same test, namely use of the transferred land for industrial purpose. In other words, HMT is legally entitled to transfer 100 acres of land notified under Ext.R1(i) notification, but the transferee will have to use that land for industrial purpose and that purpose only. Therefore, the transfer is not vitiated in any way; but the transferee will have to use the land only for industrial purpose. That is a covenant on the land.” (Quoted in: One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985)

In Everest Stone Crusher and Granites v. District Collector, District Collectorate, Kannur, 2020-6 KHC 289, it is held as under:

  • “Therefore, Ext.P13 prohibitory order issued by the 1st respondent District Collector, during the pendency of suo motu proceedings under Section 87 of the Act, cannot be said to be one issued without reasonable grounds to believe that any document relating to transfer of land of the land owned by the petitioner, which may be presented before the 3rd respondent registering officer, is intended to defeat the provisions of the said Act. The said order warrants no interference in this writ petition, invoking the extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India.”

Acquisition of land Vested In Govt. under S. 72

  • When Such a land (Vested In Govt. under S. 72) is Required for Govt. (Public Purpose), it need not be Acquired?
    • The ownership being vested in Govt. it need not be ‘strictly’ “acquired”. But no specific provision in Sec. 72 for ‘resuming’, if and when Govt. needs it. 
    • Sec. 112 (5A) of the KLR Act uses the term ‘acquisition’ itself (obviously for the possessory rights remain with the tenant).
  • No Compensation to the landowner
    • Sec. 112(5A) deals with the land acquired that has been vested in the Government under Section 72. If no purchase certificate is given to the tenant, from the sub section (5A) it is clear that the entire rights of the (former) landowner is vested with the Govt. and he cannot claim any right over any fixed portion of land (when it is acquired).
  • What is the Compensation Entitled to by the Tenant?
    • Sec. 112(5A)(a) says that the compensation for any building or other improvements belonged to such land owner and intermediaries shall be awarded (?) to the Government ; and
    • If no purchase certificate is given to the tenant, from Sec. 112(5A)(b) it is clear that the tenant will be entitled for the compensation for the land where his homestead or hut, if any, is situated (whatever may be the area of land outside it).

Apportionment of land value in cases of Acquisition

Sec. 112 of the KLR Act reads –

“112. Apportionment of land value in cases of acquisition  – (1) Where any land is acquired under the law for the time being in force providing for the compulsory acquisition of land for public purposes, the compensation awarded under such law in respect of the land acquired shall be apportioned among the landowner, intermediaries, cultivating tenant and the kudikidappukaran in the manner specified in this Section.
(2) The compensation for any building or other improvements shall be awarded to the person entitled to such building or other improvements.
(3) The kudikidappukaran shall be entitled to the value of the land occupied by his homestead or hut subject to a minimum of-
               three cents in a city or major municipality; or
               five cents in any other municipally; or
               ten cents in a panchayat area or township.
(4) The difference between the value of three cents or five cents or ten cents, as the case may be, and the value of the extent of the land occupied by the homestead or hut shall, notwithstanding anything contained in the Kerala Land Acquisition Act, 1961, be borne by the Government or the local authority or the company or other person on whose behalf the land is acquired.
(5) The balance remaining after deducting the compensation referred to in Sub-section (2) and the value of the land occupied by the homestead or hut shall he apportioned among the landowner, the intermediaries and the cultivating tenant in proportion to the profits derivable by them from the land acquired immediately before such acquisition.
Explanation. – “Profits derivable from the land” shall be deemed to be equal to (i) in the case of a landowner, the rent which he was entitled to get from the tenant holding immediately under him; (ii) in the case of an intermediary, the difference between the rent which he was entitled to get from his tenant and the rent for which he was liable to his landlord; and (iii) in the case of a cultivating tenant, the difference between the net income and the rent payable by him; and the rent payable by the cultivating tenant and the intermediary for the purposes of this Explanation shall be as calculated under the provisions of this Act.
(5A) Notwithstanding anything contained in Sub-sections (2) and (5), where there the right, title and interest of the landowner and the intermediaries in respect of the land acquired have vested in the Government under Section 72, –
               (a) the compensation for any building or other improvements belonging to such land owner and intermediaries shall be awarded to the Government ; and
               (b) the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut,*fn* if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
Explanation. – “Profits derivable from the land” shall be deemed to be equal to- in the case of the cultivating tenant, the difference between the net income immediately before the acquisition and the rent which he was liable to pay immediately before the date on which the right, title and interest of the landowner and the intermediaries have vested in the Government; and
in the case of the Government, such rent.
(7) In this Section, “homestead” includes a dwelling house occupied by a person who is deemed to be a kudikidappukaran under Explanation IIA to clause (25) of Section 2.”
  • *fn* 1. “Value of the land occupied by the homestead or hut” says as to the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
  • 2. This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant).

Sec. 72A – Compensation to land owner; No right remains with him thereafter.

  • It is 16 times fare rent for land plus (+) value of structures of land owner plus (+) half value of timber trees. Note: Same rate under Sec. 55 & 72D(2) Land above ceiling limit payment is only under Sec. 88 – on surrendering land. (It is paid by Govt.)
  • Sec. 72D – Cultivating tenant to pay purchase price (for getting assignment – below ceiling limit).
  • Sec. 72D(1A) – No purchase price to be paid if extent of land is land below One Hectare.
  • Sec. 72D(2)  – Purchase price to Govt. by Cultivating Tenant – 16 times fare rent for land plus (+) value of structures of land owner plus (+) half value of timber trees) Note: Same rate under Sec. 72A & 55

Surrendering SURPLUS LAND: Land Owners’s Right for Compensation

Relevant provisions are Sec. 82, 83, 85 & 88 of the KLR Act.

  • Sec. 82 – Ceiling area is fixed (for an adult unmarried person – 5 standard acres; family of 2 or more persons – 10 standard acres; more than 5 persons – 10 standard acres increased by one standard acre for each member).
    Sec. 83 – No person to own or hold land in excess of ceiling area.
    Sec. 85(1): Surrender excess lands. 
    Sec. 85 (2) File a Statement before the Land Board including lands exempted under Sec. 81 indicating the land proposed to be surrendered.
    Sec. 85 (3) Special duty on tenant – Final settlement of claims under Sec. 72(4). (Right, title and interest of the land owner vest in Govt.  But claims for resumption can be filed within six months.)   After purchasing the land under Sec. 72B or 72C (by the cultivating tenant), excess with the tenant shall be surrendered. 

Sec. 88 – Persons surrendering land entitled compensation. 

No right remains with (erstwhile owner) thereafter.

  • Compensation is calculated at the rates specified in Schedule IV. Note: Maximum compensation is Rs. 2 Lakh.

Implied Declaration as “Excess Land” When Land Board Fixes Exempted Plantation-Land

  • When Land Board fixes land as exempted plantation-land, there is an implied declaration as regards “excess land”; and implied “liability to surrender” (by land holder to Govt.) if plantation is not continued or there is fragmentation.
    Similarly, if it is a lease-land there is implied finding on “vesting” under Sec. 72.

No Land value to be given for the “excess” land (Beyond Ceiling Limit)

As stated above, under Sec. 112(5A) the claimants will not be entitled (on acquisition of the land) for the compensation for the entire area he possessed. It is limited to the following –

  • “building or other improvements“
  • “land occupied by the homestead or hut”
  • “any building or other improvements“.

Only Statutory Permission or Right

It is true, “exemption” is given to plantation, to hold land over and above ceiling limit. It is only a statutory permission to continue, subject to conditions. It will be lost when it is “fragmented” or the crop is abandoned. As stated elsewhere, it is also most unjustifiable to confer undue rights or benefits to the plantation owners or tenants (majority are BIG Companies) which had not been given to thousands of middleclass property owners whose property had been harshly sized or expropriated under the provisions of the KLR Act.

Vesting in  Government u/s. 72 is independent of issuance of Purchase Certificate

The rights of the landlord would vest in the Government, under Sec. 72 KLR Act. A tenant is free to apply for and obtain Purchase Certificate within the Ceiling Limit under Sect. 59(2) and 72B or 72C from such property. Vesting of lease property in Government under Sec. 72 is independent of issuance of Purchase Certificate.

In Perumal Smaraka Nidhi v. Harrisons Malayalam Limited (RFA No. 336/2011; dt. 31 Jan, 2010, K.M. Joseph, J.) held-

  • The rights of the landlord would vest in the Government, under Sec. 72 KLR Act.
  •  Sec. 72 would appear to contemplate vesting when there is no certificate of purchase issued under Sec. 59 (2).
  • If no certificate of purchase has been issued under sub Sec. (2) of Sect. 59 (irrespective of whether the tenants have applied), under Section 72, there will be vesting, if other conditions are satisfied.

Part IV

Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-4 Ker LT 121 – Not Correctly decided

Following were the basic factual situation in Glen Leven Estate (P) Ltd. v. State of Kerala (supra)  –

  • The land was leased out by landlords.
  • The lease-rights came in the cultivating tenants by transfer.

Following were the rival claims raised by the parties.

1. Contention of the Govt.

  • The tenant was a cultivating tenant. The land (absolutely) vested in the Govt. under Sec. 72 KLR Act.
    • Hence, tenant would be entitled to get compensation for the improvements (alone) to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.

2. Contention of the Tenants

  • A cultivating tenant has absolute right to seek assignment (subject to the payment of purchase price in contemplation of Sec. 72D). Therefore, vesting of rights in the Government under Sec. 72 is a legal fiction.

3. Claim of Land Owners

  • In view of Sec. 3(i)(viii), if the extent of the plantation is above 30 acres, and if the land was a plantation (put up by the land owner) when it was leased, the tenant will not be entitled for ‘fixity’; and the land will return to the land owner after the lease-period. Therefore, the land owners in one Writ Appeal claimed that the land involved therein was such a land entitled to by them (after the lease period).
  • Land owners also claimed that Sec. 72BB(1) gives them a right (i) to apply for assignment to the tenant and (ii) for the payment of the compensation due to him under Section 72A (as regards the property within ceiling limit).

4. The Division Bench Finding on Vesting Under Sec. 72

  • The contention of the Govt. that the land was (absolutely) vested upon it was rejected and held –
    • 1. the vesting in Govt. ‘is a legal fiction‘.
    • 2. cultivating tenant ‘has an absolute right to seek assignment‘ subject to the payment of purchase price.

5. The Division Bench observed as under –

  • “31. On an analysis of the provisions of Section 72(1) of the Act, 1963, it is clear that when the Government notified the said provision with effect from 01.01.1970, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under sub-Section (2) of Section 59 have not been issued, vested in the Government.
  • 32. Therefore, it is clear from Section 72 that what is vested with the Government is the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants. It is nothing but a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970.”
  • “34. On a conjoint reading of Sections 72 and 72A, it can be seen that vesting of rights in the Government contained under Section 72 is the rights held by the landlord and the intermediary in respect of holdings held by the cultivating tenants. However, the same will not, in any manner, interfere with the rights enjoyed by a cultivating tenant in contemplation of the provisions of the Act, 1963.”
  • “41. On an indepth analysis of the aforesaid provision, we find that when Section 72 came into force on 01.01.1970, the cultivating tenant is entitled for the assignment of the land for possession, subject to the liabilities fixed under Section 72 of the Act, 1963 to pay the purchase price. As per Section 72C, if no application is filed by the cultivating tenant, the Land Tribunal shall subject to the Rules made by the Government ensure that the assignment is granted to the cultivating tenant, assigning such title and interest to the cultivating tenant entitled thereto, which rights, title and interest are vested with the Government by virtue of the legal fiction created under Section 72 of the Act, 1963.
  • 42. Therefore, we have no doubt in our mind to hold that Section 72 of Act, 1963 would only deal with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants free from encumbrances created by the land owners and intermediaries. However, the legal provisions discussed above would make it clear that insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.”

The Line of Reasoning Put Forward by the Bench is Inappropriate.  

The interpretative approach adopted by the Bench (“an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D”) appears to be inappropriate; because–

  • Section 72B spells out that the Purchase-Certificate can be given within the ceiling limit alone.

Plantation holdings typically extend to hundreds or thousands of acres, of which the assignable extent within the ceiling may be a negligible fraction (7.5 or 15 acres). The statutory right of assignment, therefore, cannot be extended to the vast excess land.

Also Read: Balanoor Plantations & Industries Ltd. v. State of Kerala – Based on the Principle: LT to fix Tenancy’; TLB to Fix Plantation Exemption.  

The Division Bench failed to consider the following as regards Vesting Under S. 72

  • “All right, title and interest of the landowners and intermediaries … and in respect of which certificates of purchase … have not been issued ‘vest’ with the Government under Sec. 72. It is absolute. It is not a ‘fiction’; but, it is real and actual.
  • In K. Jayaprakashan v. State of Kerala, 2023-3 KLT 541, it is observed as under:
    • “Section 72 of the Act deals with vesting of landlord’s rights in Government. As per sub-section (1) of Section 72 ….  all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyiruppus and holders of karaimas) entitled to fixity of tenure under Section 13 … shall, subject to the provisions of this section, vest in the Government free from all encumbrances created by the landowners and intermediaries and subsisting thereon on the said date”.
  • In V.N. Narayanan Nair v. State of Kerala (P.T. Raman Nayar, T.C.Raghavan, K.K.Mathew, JJ.) , AIR 1971 Ker 98, it is held as under:
    • “By Section 72 the rights of landlords whose rights have not been purchased by cultivating tenants vest in the Government free of all encumbrances on a date to be notified by the Government in that behalf -the date has been notified as the 1st January, 1970”
  • The absolute nature of vesting is further clear from Sec. 72E and Sec. 112(5A).
  •  The nature of this statutory ‘vesting in Govt’ (under Sec. 72) is further clear from – Sec. 72E (tenant has to pay rent for the unassigned–exempted-plantation-land vested in Government under Sec. 72). Such payments are required in two occasions – (i) after vesting in Government (for there is cultivating tenant and fixity of tenure) the tenant has not got his rights purchased under ‘Purchase Certificate’ and (ii) holding exempted-plantation land excess of ceiling limit.
  • In Lakshmi v. Rama Iyer, 1992-1 ILR-Ker 398; 1991-2 KLT 897it is pointed out: “Consequently the title and interest of the land-lord would vest in the Government on the appointed day that is, on 1-1-1970. Then as per S. 72Q the land owner would be entitled to recover rent accrued till 1-1-1970 only”.
  • In Aru v. Nakunni (Padmanabhan, J.), 1987-1 KLT 177, it is held as under:
    • “Under S.72 of the Act all the right, title and interest of the land owners and intermediaries in respect of a holding held by a cultivating tenant entitled to fixity of tenure under S.13 shall, subject to the various provisions of S.72, vest in the Government free of all encumbrances created by the land owners and intermediaries and subsisting on the date notified by the Government. ….. When once vesting has taken place there cannot be any further rights in any body. …. By assignment all such rights vest in the tenant”.
  •  Sec. 72A directs compensation to the land owner for vesting land under Sec. 72 in Govt. – No right remains with (erstwhile owner) thereafter. 
  • For the land above the ceiling limit, payment is made under Sec. 88 – on surrendering land. It is paid by the Government, not by the tenant. (Under Sec. 72D, the cultivating tenant pays the purchase price for getting the assignment – below the ceiling limit – alone.)
  • Sec. 112(5A) deals with unassigned land (that is, no purchase certificate is given). Under this sub section land-value need not be given (even to) to the land-owner or the tenant(tenant has no right above that of land owner in this regard) over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
  • This provision is applied to lease-lands vested in Govt. under Sec. 72 and no purchase certificate is given (to the tenant)., in case of acquisition).
  • Sec. 72B(2) KLR Act spells-out that a cultivating tenant will get Purchase Certificate for the extent below the ‘ceiling limit’ alone. That is, the tenant has no “absolute rights” above the ceiling limit.
    • Note: Plantation-lands usually involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be minuscule (7.5 acres or 15 acres). Therefore, the analogy that a tenant has a right to seek assignment is not apt at all.
  • When land vested in Govt. under Sec. 72 is acquired, in the light of Sec. 112(5A) land-value need not be given to the land-owner or the tenant, over and above the “value of the land occupied by the homestead or hut” – that is, the actual area where the ‘homestead or hut’ is situated; whatever may be the area of land outside it.
  • The aforesaid provision of law in the KLR Act is legislated following Proviso to Article 31A(1) of the Constitution which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.
  • The rights of ‘tenants’ of Plantations, to continue in the land till the plantation exists, after vesting the land with Govt., is a ‘Legal Right conferred by Statute’. It is not Tenancy – for no landlord-tenant relation with the Govt. It is not a Grant or Licence/Permission – for such rights arise from a contract (express or implied). Therefore, it can be termed only as a “Legal Right conferred by Statute“, the KLR Act.
  • It goes without saying – If no compensation is payable (as per the Constitution) to the land-owners above the ceiling limit, it need not be given to tenants.
  • Under Sec. 72A and Sec. 88, meagre compensation is paid to land owner on vesting landlords’ rights in Govt. and on surrendering land. It is most unjustifiable to confer undue rights or benefits to the plantation-tenants when their lease-lands are acquired  (majority are BIG Companies). It is apposite to remember that the lands of Maharaja of Travancore (191 acres of lands in Thiruvananthapuram – above the ceiling limit, 15 acres – in the City) were ‘mercilessly’ taken under the Orders of the Land Board Trivandrum under No. LB(B)2-18919/70, dated 15.01.1972. It is a sheer fact that lands of thousands of middleclass property owners was also harshly taken by under the provisions of the Act.
  • (Note: Only limited right to continue the specified plantation-crop alone is given by the ‘exemption’; and, according to law, in case the land is ‘converted’, the exemption-benefit would be lost.)

Land Reform wearied Middle Class landlords and tenants

When Land Reform Measures were implemented in the State of Kerala, it wearied small and moderate landlords and tenants, on the bedrock of “ceiling limit”. But the Plantations were not “touched”, taking “the economy” into consideration. Still, the well-visioned legislators were particular to see that the ownership of this large extent of plantations (otherwise thick forest of the Western Ghats) remained with the State. It was based on the principles in Article 31A(1) of the Constitution, which says that the State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit’.

Therefore, it can be stated with certainty –

  • Where the landowner has no vested right on land beyond the ceiling limit, a tenant cannot claim such a right; and, it is too illogical and irrational for the tenant to have such a right.
  • Interpretation of law, especially when Constitutional principles are involved, should subserve the interests of the nation and future generations, and not that of a few (BIG) ones.
  • It is most unjustifiable to confer undue rights or benefits to the plantation-tenants (majority are BIG Companies), which had not been given to the Maharaja of Travancore.  It is a sheer fact that lands of thousands of middle-class property owners were also harshly taken under the provisions of the Act.
    • (Note: Only a limited right to continue the specified plantation-crop alone is given by the ‘exemption’; and, according to law, in case the land is ‘converted’, the exemption-benefit would be lost.)

Conclusion

In short, the juridical status of the ‘plantation land’ (beyond the ceiling limit), vested in Govt. under Sec. 72, can be placed as under –

  • 1. Ceiling Limit: The maximum extent of land assignable under a Purchase Certificate is circumscribed by the ceiling limit, under Section 72B(1)(a) and (b) of the Kerala Land Reforms Act, 1963.
  • 2. Plantation Exemption: Owners and tenants of plantations are permitted to retain plantation lands in excess of the ceiling limit by availing the ‘exemption’ provided under Section 81. However, the said exemption does not confer any absolute proprietary right over such land.
  • 3. Exempted-plantation-land Vest in Government: Title/ownership of unassigned–exempted-plantation-land is vested with the Government, under Section 72(1).
  • 4. Prior Owners and Tenants will be Deemed as Tenants of the Govt. Such tenants have to pay ‘Rent’ to the Government (Section 72E) for the unassigned–exempted-plantation-land.  The rent is fixed by the Land Tribunal [Section 72F(5)(h) ].
  • 5. On Acquisition, No Land Value to Previous Owners or Tenants: If the land vested in Government under Section 72 is acquired, land-value will not be paid to the former land-owner or the tenant (Section 112(5A).
  • 6. Exemption will be lost, if “Fragmented”:The exemption granted to a plantation will be lost if it is “fragmented” or the plantation-crop is abandoned (under Section 87).

Also Read: Plantation-Tenants Not Approached The Land Tribunal are Ineligible for Plantation-Exemption-Orders from the Land Board.

Do the Plantation-Tenants have the Right to Seek ‘Assignment’ of the Entire Plantation-Tenancy-Land (under Purchase Certificates)?

End Notes:

Effect of Travancore Govt. Leases after Royal Pattom Proclamations of 1040 and 1061

What is the impact of 1040 and 1061 (1886) Proclamations over the ‘Government Land Leases’ made after 1061 (1886)? Do such leased lands qualify as “estate” under Article 31A of the Constitution?

The legitimate answer is that the lands leased out (by the Government) after 1061 (1886) do not acquire the rights of ‘permanency of tenure’ or attain the ‘proprietary interest’ conferred by the Pattom Proclamations of 1040 and 1061. If such rights are axiomatically conferred as a matter of course, the result would be that the Government cannot ‘lease’ lands (after the Proclamations), for, the lease character would be lost at the moment it is made.

In Rev. Fr. Victor Fernandez v. Albert Fernandez (five Judge Bench), 1971 Ker LT 1, AIR 1971 Ker 168 (Per PT Raman Nayar, CJ, T Krishnamoorthy Iyer, P Unnikrishna Kurup, JJ.), concluded that the land covered by the Royal Proclamations of 1040 and 1061 were “estates” falling under Art. 31A of the Constitution. It was on the finding that the Proclamation “secured permanency of tenure”, and “proprietary interest” in the soil. It was observed as under:

  • “7. It is impossible to accept the contention advanced on behalf of the plaintiff in this case that,even after the Proclamation of 1040, the holders of these lands had no proprietary interest whatsoever in the soil and remained tenants in the strict sense of that term, with only the right of enjoyment, the only difference being that they secured permanency of tenure, the Government still remaining the full and absolute proprietor of the soil.”

Therefore, there is a clear difference between leases made before and after the Proclamations, and the rights conferred by the Proclamations do not apply to leases made after them.

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End Notes

Relevant provisions of KLR Act, in a Nutshell

Section Provisions in a Nutshell
Chap. II 
3(1)		Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres.
“Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7 EPersons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Ha. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
22Landlord desiring to resume any land shall apply to the Land Tribunal.
31Fair rent determined by Land Tribunal.
51B. Landlord not to enter on land surrendered or abandoned by the tenant. 
Contravention is made punishable.
54(1)
55
57
57 (3)
57 (6)
61		54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal.
55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59
57. The LT after enquiries, pass orders determining purchase price.
(3). The Land Tribunal allows the purchase of the land it determines.
(6). The Land Tribunal forwards  orders to the Land Board.
61. Tenant to pay rent (under orders of LT) pending proceedings.
59When Sec. 54 application is allowed (by the LT), the purchase price (determined u/s. 57 by the LT) shall be deposited with the Land Tribunal to the credit of the Land Board and issue of certificate – to cultivating tenant.
72
Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt.  ILR 2010(2) Ker. 845. 
72(1) says: Holdings upon which tenanat entilted fixity under sec. 13 vest in govt.
72BCultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72DThe cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
72ESuch a tenant is liable to pay rent to the Govt. for the unassigned land – under Purchase Certificate (e.g., unassigned–exempted-plantation-land). The Land Tribunal fixes the rent under Sec. 72F(5)(h).
72CProvides for suo moto action by LT. (No time limit)
Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See  S.72C also). 
72KLT shall issue purchase certificate.  It shall be conclusive proof of assignment.
74Prohibition of future tenancies.
Chap. III 
81		Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertakings, etc.
Proviso – There will be an exemption (as plantation, land given to educational institution, trust, etc.) on Government lands, given under grant, lease, etc.
See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v.  State of Kerala, AIR 1974 Ker 28.
82Ceiling area – 5/10 standard acres.
83No person can hold or possess excess of ceiling area. (Holding is by tenant.)  It is a total bar. (Note:  plantations, industrial area etc. are exempted.)
Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306  (Thomas Mariamma Vs. TLB), Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137)
The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84Certain transfers – void.
85(1)Surrender excess.
85(2)Owners and Tenants (having land in excess of the ceiling area) should furnish ceiling return to Land Board before March31, 1971, before the Land Board (including lands exempted under S. 81).
Note: Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
 According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)Excess shall be surrendered.
Note: Tenant must have approached the LT (with respect to each plantation, if he has more plantations) (He cannot declare himself a tenant)
It is clear from the following provisions:
(Before 1. 1. 1970)
S. 54(1) – A cultivating tenant has to apply to LT(for the purchase of right, title and interest.)
S. 55 – Purchase price and fair rent fixed by LT
S. 57 – LT after giving notice and enquiries, pass orders (on the application for the purchase of right, title and interest).
S. 57(3) – LT allots the purchase land it determines.
S. 57(6) – The Land Tribunal forwards a copy of orders to the Land Board.
S. 61 – Cultivating tenant to pay rent (under orders of LT)
S. 59 – The purchase price shall be deposited with the LT (to the credit of the Land Board) and issue of certificate – to cultivating tenant.
(After 1. 1. 1970)
S. 72B – cultivating tenant to apply to the LT, for Purchase Certificate.
S. 72D. The cultivating tenant has to pay purchase price to the Government [fixed by the LT] on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
S. 72F(5) – Land Tribunal shall issue notice to consider the claims and objections from the land owner or intermediaries, and pass an order specifying, inter alia, the rent [under S. 72F(5)(h) ] payable by the cultivating tenant to the Government.
S. 72F(6) & (7) – LT shall pass Orders on encumbrance or charge for maintenance or alimony and compensation payable to the landowner or that intermediary.
It is the principle applied in the Balanoor case. Note: (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’(to the credit of the Land Board)  under sec. 61 and 59.
85(3A)The person bound to file a statement under sub-section (2) (that is, Owners and Tenants – having land in excess of the ceiling area)  shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)Whereon a person fails to file statement under 85(2) or (3A), LB shall intimate that fact to TLB  –  TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also has to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement:  State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
[TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85AFile ceiling return within March  2, 1973 before Land Board..
86(1)On determination of the extent to be surrendered under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
86(3)Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)Nothing applies to property of Govt. under KLC Act.
87
Exp. II		If a person converts any portion of exempted land for any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for the portion that exceeds the ceiling limit. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)

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‘Once Admitted, Always Admitted’ – Stamp Act Theory Explored in G. M.  Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339

Taken from: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introduction

The following two forceful propositions stood paradoxical and incongruent to each other-

  • 1. Section 33 of the Stamp Act (both Indian Stamp Act and State Stamp Act) casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge, under Sec. 35 of the Indian Stamp Act (Sec. 34 of the State Act), not  to  admit a document that is not duly stamped (even if no objection raised to mark it).
  • 2. The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection, under Sec. 36 of the Indian Stamp Act (Sec. 35 of the State Act).
  • Note: This incongruity is pointed out by this author in the article “Unstamped Documents – Should the Court Sit Silent if Marking Unopposed and Question it Afterwards?” (Published in 2023(2) KerLT, Journal Section).

The Law Applied in India – Once Admitted, Always Stand Admitted

RVE Venkatachala Gounder v. Arulmigu (R.C. Lahoti & Ashok Bhan, JJ.), AIR 2003 SC 4548: (2003) 8 SCC 752, is the well-established decisive leading decision in the following propositions of law.

  • Objection as to the irregularity of mode adopted for proving the document should be taken when the evidence is tendered;
  • Once the document has been marked as an exhibit, the objection cannot be allowed to be raised at any subsequent stage.
  • Failure to raise a prompt and timely objection amounts to waiver of that right.
  • The objection enables the court to apply its mind and pronounce its decision on the question of admissibility.
  • It is a rule of fair play for it would have enabled the party tendering the evidence to cure the defect by giving formal proof of a document.

Law on Unstamped or Insufficiently Stamped Instrument

The law applied in India, hitherto, invoking Sec. 35 of the (State) Act was the same that was laid down in RVE Venkatachala Gounder v. Arulmigu (supra). It was the following –

  • Once an unstamped or insufficiently stamped instrument has been admitted in evidence, (even if mechanically or inadvertently), its admissibility cannot be contested at any stage of the proceedings.

Sec. 35 of the State Act (Sec. 36 of the Indian Stamp Act) reads as under:

  • “35. Admission of instrument where not to be questioned– Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

In Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655: 1962-2 SCR 333, it was observed as under:

  • “4…. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the (Indian) Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.”

In Ram Rattan v. Bajrang Lal, 1978-3 SCC 236, it was held as under:

  • “6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objections in accordance with law. …. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the (Indian) Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 [see Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655] . The endorsement made by the learned trial Judge that ‘Objected, allowed subject to objection’, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.”
  • Note: In Ram Rattan v. Bajrang Lal (supra) ‘objection’ as regards inadmissibility had been raised “as it was not duly stamped”; and this decision was read by our Courts so as to find it relevant only in cases where there was ‘objection’ by the ‘other side’.
  • See: Shyamal Kumar Roy v. Sushil Kumar Agarwal (S.B. Sinha & Dalveer Bhandari, JJ.), AIR 2007 SC 637; 2006-11 SCC 331 (It was held after referring Ram Rattan v. Bajrang Lal: “If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question. …. The question of judicial determination of the matter would arise provided an objection is taken when document is tendered in evidence and before it is marked as an exhibit in the case.)

Unless “Judicial Determination”, Sec. 35 is Not Attracted

This long-stood concept, as regards unstamped or insufficiently stamped instrument, is relooked in the recent decision in G. M.  Shahul Hameed v. Jayanthi R.  Hegde (Dipankar Datta, Pankaj Mithal, JJ.), AIR 2024 SC 3339.

It is held that sheer technicalities should not triumph over the legislative intent and the fiscal interests of the State. It is held as under:

  • “10. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the Trial Court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under section 114 read with Order XLVII, CPC but in exercise of its inherent power saved by section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty.”
  • “12. Read in isolation, a literal interpretation of section 35 of the 1957 Act seems to make the position in law clear that once an instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings on the ground of it not being duly stamped. A fortiori, it would follow that any objection pertaining to the instrument’s insufficient stamping must be raised prior to its admission.
  • 13. However, section 35 of the 1957 Act is not the only relevant section. It is preceded by sections 33 and 34 and all such sections are part of Chapter IV, tiled “Instruments Not Duly Stamped”. Certain obligations are cast by section 33 on persons/officials named therein. Should the presiding officer of the court find the instrument to be chargeable with duty but it is either not stamped or is insufficiently stamped, he is bound by section 33 to impound the same. Section 34 places a fetter on the court’s authority to admit an instrument which, though chargeable with duty, is not duly stamped. The statutory mandate is that no such instrument shall be admitted in evidence unless it is duly stamped.
  • 14. The presiding officer of a court being authorised in law to receive an instrument in evidence, is bound to give effect to the mandate of sections 33 and 34 and retains the authority to impound an instrument even in the absence of any objection from any party to the proceedings. Such an absence of any objection would not clothe the presiding officer of the court with power to mechanically admit a document that is tendered for admission in evidence. The same limitation would apply even in case of an objection regarding admissibility of an instrument, owing to its insufficient stamping, being raised before a court of law. Irrespective of whether objection is raised or not, the question of admissibility has to be decided according to law. The presiding officer of a court when confronted with the question of admitting an instrument chargeable with duty but which is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 [1899 Act, hereafter] by this Court. However, once a decision on the objection is rendered – be it right or wrong – section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by section 58 of the 1957 Act.”
  • “18. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was admitted in evidence and marked as an exhibit, the Trial Court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a ‘decision’ on the question of admissibility or, in other words, the Trial Court not having ‘decided’ whether the GPA was sufficiently stamped, section 35 of the 1957 Act cannot be called in aid by the respondent. For section 35 to come into operation, the instrument must have been “admitted in evidence” upon a judicial determination. The words “judicial determination” have to be read into section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by section 35. However, in a case of “no judicial determination”, section 35 is not attracted.”
  • “21. We may not turn a blind eye to the fact that the revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the state. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.”

Conclusion

Following are the outcome of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339.

  • To attract the bar to question the marking of the document under Section 35 (State Act), the instrument must have been “admitted in evidence” upon a ‘judicial determination‘, “irrespective of whether objection is raised or not“.
  • The words “judicial determination” have to be read into Section 35.
  • If “no judicial determination” (or if the document is mechanically or inadvertently marked), Section 35 is not attracted.
  • In proper cases (such as the senior counsel was not present when the document was marked) the Trial Courts have the authority to revisit and recall the process of admission in exercise of its inherent power saved by section 151 CPC.
  • Once there is such a judicial determination, whether it is right or wrong, it cannot be examined except as provided in Section 35.

Prior to G. M. Shahul Hameed v. Jayanthi R. Hegde (supra) the determinative point considered in various court decisions (as regards the ‘bar to question the marking of the document’) was “objection” from the ‘opposite party’. But, now, for the first time by the Apex Court, by virtue of this decision (G. M. Shahul Hameed v. Jayanthi R. Hegde) what is taken as decisive is ‘judicial determination’ (alone),  “irrespective of whether objection is raised or not”.

End Notes 1:

Sec. 33, 34 and 35, Stamp Act (State Act) read as under:

  • “33. Examination and impounding of instruments.- .(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
  • (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument was executed or first executed: Provided that …
  • (3) For the purposes of this section, in cases of doubt, the Government may determine,- (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in charge of public offices.
  • 34. Instruments not duly stamped inadmissible in evidence, etc.– No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided that …
  • 35. Admission of instrument where not to be questioned.-Where an instrument has been admitted in evidence such admission shall not, except as provided in section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”
  • 58. Revision of certain decisions of Courts regarding the sufficiency of stamps. – (1) When any Court in the exercise of its Civil or Revenue jurisdiction or any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898, makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under Section 34, the Court to which appeals lie from, or references are made by, such first mentioned Court may, of its own motion or on the application of the Deputy Commissioner, take such order into consideration.
  • (2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under Section 34, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.
  • (3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Deputy Commissioner and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.
  • (4) The Deputy Commissioner may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under Section 41, or in Section 42, prosecute any person for any offence against the stamp law which the Deputy Commissioner considers him to have committed in respect of such instrument.
  • Provided that …. .”

End Notes 2:

The Andhra High Court has already took the view that objection is not a condition precedent to avoid an insufficiently stamped document. Sure Ranga Murali Krishna Reddy v. Sure Yerri Vara Prasada Reddy, 2018-5 ALD 396; 2018-4 ALT 616 referred the following decisions to point out that a Court can exclude all irrelevant or inadmissible evidence, including insufficiently stamped documents,  even if no objection is taken by the opposite side.

  • Syed Yousuf Ali v. Mohd. Yousuf, 2016 (3) ALD 235, (5 February, 2016, M.Satyanarayana Murthy, J.)
  • Srinivasa Builders, Hyderabad v. A.Janga Reddy, 2016(2) ALT 321, (8 February, 2016, A. Ramalingeswara Rao,J.)
  • A.P. Laly v. Gurram Rama Rao, 2017 (6) ALD 300 (A. Ramalingeswara Rao,J.).

It is held in Sure Ranga Murali Krishna Reddy v. Sure Yerri Vara Prasada Reddy (supra), as under:

  • “In the decision in Srinivasa Builders, Hyderabad v. A. Janga Reddy [2016(2) ALT 321], this Court held that it is the duty of the Court of Law to exclude all irrelevant or inadmissible evidence even if no objection is taken by the opposite side. The same view was also expressed by this Court in the decision in Syed Yousuf Ali v. Mohd. Yousuf [2016 (3) ALD 235]; and, in the decision in A.P. Laly v. Gurram Rama Rao [2017 (6) ALD 300]. In the above decision, this Court reviewed the entire case law on the point and held that the Court has power to reject a document at any time. Therefore, inspite of prohibition contained in Section 36 of the Indian Stamp Act, the trial Court has power to exclude exhibit B1 from the evidence as the original of it is not properly stamped and is not registered and is inadmissible in evidence even for collateral purpose. So, it is in the interests of justice to exclude the CC of unregistered partition deed from evidence after de-exhibiting it, as it is not properly stamped and registered.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

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

‘Once Admitted, Always Stand Admitted’ – Stamp Act Theory Explored in G. M.  Shahul Hameed v. Jayanthi R. Hegde

Taken from: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introduction

The following two forceful propositions stood paradoxical and incongruent to each other-

  • 1. Section 33 of the Stamp Act (both Indian Stamp Act and State Stamp Act) casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge, under Sec. 35 of the Indian Stamp Act (Sec. 34 of the State Act), not  to  admit a document that is not duly stamped (even if no objection raised to mark it).
  • 2. The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Sec. 36 of the Indian Stamp Act (Sec. 35 of the State Act).
  • Note: This incongruity is pointed out by this author in the article “Unstamped Documents – Should the Court Sit Silent if Marking Unopposed and Question it Afterwards?” (Published in 2023(2) KerLT, Journal Section).

Law on Unstamped or Insufficiently Stamped Instrument

The law applied in India, hitherto, invoking Sec. 35 of the (State) Act was the same that was laid down in RVE Venkatachala Gounder v. Arulmigu (supra). It was the following –

  • Once an unstamped or insufficiently stamped instrument has been admitted in evidence, (even if mechanically or inadvertently), its admissibility cannot be contested at any stage of the proceedings.

The Law Applied in India – Once Admitted, Always Stand Admitted

RVE Venkatachala Gounder v. Arulmigu (R.C. Lahoti & Ashok Bhan, JJ.), AIR 2003 SC 4548: (2003) 8 SCC 752, is the well-established decisive leading decision in the following propositions of law.

  • Objection as to the irregularity of mode adopted for proving the document should be taken when the evidence is tendered;
  • Once the document has been marked as an exhibit, the objection cannot be allowed to be raised at any subsequent stage.
  • Failure to raise a prompt and timely objection amounts to waiver of that right.
  • The objection enables the court to apply its mind and pronounce its decision on the question of admissibility.
  • It is a rule of fair play for it would have enabled the party tendering the evidence to cure the defect by giving formal proof of a document.

Once Admitted, Always Stand Admitted

In Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655: 1962-2 SCR 333, it was observed as under:

  • “4…. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.”

In Ram Rattan v. Bajrang Lal, (1978) 3 SCC 236, it was held as under:

  • “6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law. …. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 [see Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655] . The endorsement made by the learned trial Judge that ‘Objected, allowed subject to objection’, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.”
  • Note: In Ram Rattan v. Bajrang Lal (supra) ‘objection’ as regards inadmissibility had been raised “as it was not duly stamped”; and this decision was read by our Courts so as to find it relevant only in cases where there was ‘objection’ by the ‘other side’.
  • See: Shyamal Kumar Roy v. Sushil Kumar Agarwal (S.B. Sinha & Dalveer Bhandari, JJ.), AIR 2007 SC 637; 2006-11 SCC 331 (It was held after referring Ram Rattan v. Bajrang Lal: “If no objection had been made by Appellant herein in regard to the admissibility of the said document, he, at a later stage, cannot be permitted to turn round and contend that the said document is inadmissible in evidence. Appellant having consented to the document being marked as an exhibit has lost his right to reopen the question. …. The question of judicial determination of the matter would arise provided an objection is taken when document is tendered in evidence and before it is marked as an exhibit in the case.)

Unless “Judicial Determination”, Sec. 35 is Not Attracted

This long-stood concept, as regards unstamped or insufficiently stamped instrument, is relooked in the recent decision in G. M.  Shahul Hameed v. Jayanthi R.  Hegde (Dipankar Datta, Pankaj Mithal, JJ.), AIR 2024 SC 3339.

It is held that sheer technicalities should not triumph over the legislative intent and the fiscal interests of the State. It is held as under:

  • “10. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the Trial Court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under section 114 read with Order XLVII, CPC but in exercise of its inherent power saved by section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty.”
  • “12. Read in isolation, a literal interpretation of section 35 of the 1957 Act seems to make the position in law clear that once an instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings on the ground of it not being duly stamped. A fortiori, it would follow that any objection pertaining to the instrument’s insufficient stamping must be raised prior to its admission.
  • 13. However, section 35 of the 1957 Act is not the only relevant section. It is preceded by sections 33 and 34 and all such sections are part of Chapter IV, tiled “Instruments Not Duly Stamped”. Certain obligations are cast by section 33 on persons/officials named therein. Should the presiding officer of the court find the instrument to be chargeable with duty but it is either not stamped or is insufficiently stamped, he is bound by section 33 to impound the same. Section 34 places a fetter on the court’s authority to admit an instrument which, though chargeable with duty, is not duly stamped. The statutory mandate is that no such instrument shall be admitted in evidence unless it is duly stamped.
  • 14. The presiding officer of a court being authorised in law to receive an instrument in evidence, is bound to give effect to the mandate of sections 33 and 34 and retains the authority to impound an instrument even in the absence of any objection from any party to the proceedings. Such an absence of any objection would not clothe the presiding officer of the court with power to mechanically admit a document that is tendered for admission in evidence. The same limitation would apply even in case of an objection regarding admissibility of an instrument, owing to its insufficient stamping, being raised before a court of law. Irrespective of whether objection is raised or not, the question of admissibility has to be decided according to law. The presiding officer of a court when confronted with the question of admitting an instrument chargeable with duty but which is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 [1899 Act, hereafter] by this Court. However, once a decision on the objection is rendered – be it right or wrong – section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by section 58 of the 1957 Act.”
  • “18. On the face of such an order, it does not leave any scope for doubt that on the date the GPA was admitted in evidence and marked as an exhibit, the Trial Court did not deliberate on its admissibility, much less applied its judicial mind, resulting in an absence of judicial determination. In the absence of a ‘decision’ on the question of admissibility or, in other words, the Trial Court not having ‘decided’ whether the GPA was sufficiently stamped, section 35 of the 1957 Act cannot be called in aid by the respondent. For section 35 to come into operation, the instrument must have been “admitted in evidence” upon a judicial determination. The words “judicial determination” have to be read into section 35. Once there is such a determination, whether the determination is right or wrong cannot be examined except in the manner ordained by section 35. However, in a case of “no judicial determination”, section 35 is not attracted.”
  • “21. We may not turn a blind eye to the fact that the revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the state. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.”

Conclusion

Following are the outcome of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339.

  • To attract the bar to question the marking of the document under Section 35 (State Act), the instrument must have been “admitted in evidence” upon a ‘judicial determination‘, “irrespective of whether objection is raised or not“.
  • The words “judicial determination” have to be read into Section 35.
  • If “no judicial determination” (or if the document is mechanically or inadvertently marked), Section 35 is not attracted.
  • In proper cases (such as the senior counsel was not present when the document was marked) the Trial Courts have the authority to revisit and recall the process of admission in exercise of its inherent power saved by section 151 CPC.
  • Once there is such a judicial determination, whether it is right or wrong, it cannot be examined except as provided in Section 35.

Prior to G. M. Shahul Hameed v. Jayanthi R. Hegde (supra) the determinative point considered in various court decisions (as regards the ‘bar to question the marking of the document’) was “objection” from the ‘opposite party’. But, now, for the first time, by virtue of this decision (G. M. Shahul Hameed v. Jayanthi R. Hegde) what is taken as decisive is ‘judicial determination’ (alone), “irrespective of whether objection is raised or not”.

End Notes:

Sec. 33, 34 and 35, Stamp Act (State Act) read as under:

  • “33. Examination and impounding of instruments.- .(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
  • (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument was executed or first executed: Provided that …
  • (3) For the purposes of this section, in cases of doubt, the Government may determine,- (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in charge of public offices.
  • 34. Instruments not duly stamped inadmissible in evidence, etc.– No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided …
  • 35. Admission of instrument where not to be questioned.-Where an instrument has been admitted in evidence such admission shall not, except as provided in section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

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Time to Object Marking Documents – While Exhibiting; Failure, Amounts to Waiver

Taken from: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introduction

Contents of documents can be placed before the court in two ways:

  1. producing the documents in original
  2. (by way of) secondary evidence.

Time to Place Objections

Before Trial: The objections as to the admissibility of documents can be placed on record, before trial (i) by raising them in pleadings, or (ii) by tendering positive statement (filing petition/ affidavit/ objection).

At the Trial: Two (apparently incongruent) propositions are seen strongly propounded as regards placing objections, at the trial –

  1. right-at-the-time of tendering the same for exhibiting;
  2. any time in trial (and not in appellate stage).

It is emphasised in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, that the objection is to be taken before a document is marked as an exhibit and admitted in Court, as the mode of proof falls within procedural law.

Mode of proof falls within Procedural Law

In Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, it is held as under:

  • “23. This Court in the opinion written by Justice S. H. Kapadia in Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107 has similarly held that objection as to the mode of proof falls within procedural law. Therefore, such objections could be waived. Moreover, objection is to be taken before the document is marked as an exhibit and admitted in Court.
  • 24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of R.V.E. Venkatachala (Supra).”

To the pointed question, when the objection is to be placed (either at the time of marking, or at any time in trial), the following assertions may be the feasible answer:

  • First – raise objection while Tendering/Exhibiting the document;
  • Second – raise objection in cross examination of the witness through whom it is marked;
  • Third – Place “objection” by filing an application, memo, affidavit etc. (at any time during trial); or
  • Fourth – place “objection” in the final argument in the trial court (to be reflected in the proceeding-paper or Judgment).
    • Note: 1. The third and fourth modalities can be invoked only if the right to object marking of document had not been expressly or impliedly waived.
    • 2. If the validity or genuineness of the document itself is a subject matter of issue, no objection need be raised.
    • 3. In a proper case, if objection as regards a document is already raised in pleadings, or tendered positive objection-statement (filing petition/ affidavit/ objection), specific objection may not be necessary.

Following decisions lay down that the objections to marking or exhibiting a document cannot be permitted to be raised for the first time in appeal-

  • Pandappa v. Shivlingappa 47 BLR. 962;
  • Padman v. Hanwanta, AIR 1915 PC 111;
  • Gopal Das v. Sri Thakurji, AIR 1943 PC 83;
  • Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655,
  • P. C. Purushottamman v. S. Perumal AIR 1972 SC 608;
  • Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315;
  • R.V.E Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P Temple, (2003) 8 SCC 752.
  • Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873

Factual foundation, to give secondary evidence, must be established  

The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced [Rakesh Mohindra v. Anita Beri: 2015 AIR (SCW) 6271].

Documents Marked Without Objection as to its MODE OF PROOF – Effect

The law prevails in India is the following –

  • If documents marked without objection as to its mode of proof,  it is not open to the other side to object to their admissibility afterwards.
  • Following are the important decisions in this line.
P.C. Purushothama Reddiar v. S.Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection.  Hence it was not open to the respondent to object to their admissibility.Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)Photo copies were  admitted in evidence  without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082Objection to be taken    at     trial before document is marked as an ‘exhibit’.   Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachalam Gounder
Sarkar on Evidence .If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appealReferred to in:
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

Who Should Object FIRST – Court or Opposite Side?

There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.

First viewCourt is under an obligation to exclude inadmissible materials.
In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held: “Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree  v.  U. Srinivas: AIR 2013 SC 415.)
In Yeshoda v. Shoba Ram:  AIR 2007 SC 1721, it is held – “In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.
Second viewIf no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

It is pointed out in Hemendra Rasiklal Ghia v. Subodh Mody, 2009 (2) AIR Bom R 296, 2008-6 MhLJ 886 (FB) that the weight of the aforesaid authorities suggests that the objection to the admissibility of evidence should be raised by the objector and decided by view the Court at the earliest opportunity. (That is it supports the second view.)

Controversy resolved

  • 1. The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
    • R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
    • Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
  • 2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
  • 3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

Why objection be taken at the proper time

When the party gives in evidence a certified-copy, or other secondary-evidence, without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if any) at the proper time. The Privy Council in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held as regards objection as to the admissibility of a certified copy of a will, as under:

  • “11. The defendants have now appealed to His Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being laid for its admission. No objection, however, appears to have been taken in the first Court against the copy obtained from the Registrar’s office being put in evidence. Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”

In case, objection is not raised at the relevant point of time, he is precluded from raising it at a belated stage. It stands waived. [Kaliya v. State of MP: 2013-10 SCC 758]

Odd View: Bipin Shantilal: Mark document Tentatively, and Decide Objection in Final Judgment

It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158, that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And, the Court directed as under:

  • “When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.” (Quoted in: Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873; RVE Venkatachala Gounder v. Arulmigu , AIR 2003 SC 4548: (2003) 8 SCC 752)

Subsequent Contra view to Bipin Shantilal

Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, spoke as to admissibility of

  • (i) documents (or material) and 
  • (ii) oral evidence (questions).

Bipin Shantilal did not favour taking a final decision as to marking an objected document (and receiving objected questions), then and there.

Contra view taken as regards objection to marking documents

  • The law laid down in Bipin Shantilal, as regards objection to marking documents (or material), had been (impliedly) reversed by RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

Contra view taken as regards objection to oral evidence

  • The view taken in Bipin Santilal as regards objection to recording oral evidence had been expressly varied, or reversed, by In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598.

In Re: To Issue Certain Guidelines Regarding Inadequacies

In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh (Three Judge Bench), 2021-10 SCC 598, considered oral evidence (questions) and ruled that Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, stood modified (overruled), and directed as under:

  • “…….. Therefore, this court is of opinion that the view in Bipin Shantilal Panchal should not be considered as binding. The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”

Courts in India Consistently follow RVE Venkatachala Gounder

In RVE Venkatachala Gounder v. Arulmigu (R.C. Lahoti & Ashok Bhan, JJ.) AIR 2003 SC 4548: (2003) 8 SCC 752, it is held as under:

  • “17. The other document is the rent note executed by Defendant 2 in favour of the plaintiff. Here also the photocopy of the rent note was produced. Defendant 2 when in the witness box was confronted with this document and he admitted to have executed this document in favour of the plaintiff and also admitted the existence of his signature on the document. It is nobody’s case that the original rent note was not admissible in evidence. However, secondary evidence was allowed to be adduced without any objection and even in the absence of a foundation for admitting secondary evidence having been laid by the plaintiff.
  • 18. … 19. …
  • 20. The learned counsel for the defendant-respondent has relied on Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] in support of his submission that a document not admissible in evidence, though brought on record, has to be excluded from consideration. We do not have any dispute with the proposition of law so laid down in the abovesaid case. However, the present one is a case which calls for the correct position of law being made precise. Ordinarily, an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes: (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient. In the first case, merely because a document has been marked as “an exhibit”, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken when the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The latter proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the latter case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in a superior court.
  • 23. Since documents Exts. A-30 and A-34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photocopies, the originals of which were not produced.”

RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is referred to and quoted with approval in the following decisions:

  • Dayamathi Bai v. KM Shaffi, AIR 2004 SC 4082; 2004-7 SCC 107.
  • Directorate of Revenue v. Mohammed Nisar Holia, 2008 2 SCC 370;
  • Shalimar Chemical Works Ltd.  v. Surendra Oil & Dal Mills, 2010-8 SCC 423;
  • Malay Kumar Ganguly v. Sukumar Mukherjee, AIR 2010 SC 1162; 2009-9 SCC 221;
  • Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt.  Ltd., AIR 2015 SC 3796; 2015-9 SCC 755;
  • Sonu @ Amar v. State of Haryana, 2017 AIR SC 3441; 2017-8 SCC 570;
  • Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;

Law does Not Favour Bipin Shantilal Panchal v. State of Gujarat

It is definite that the courts in India consistently follow RVE Venkatachala Gounder v. Arulmigu (Two Judge Bench), AIR 2003 SC 4548: (2003) 8 SCC 752, and Dayamathi Bai v. K.M. Shaffi (Two Judge Bench), AIR 2004 SC 4082: 2004- 7  SCC 107, declining Bipin Shantilal Panchal v. State of Gujarat (Three Judge Bench), AIR 2001 SC 1158.

In no subsequent case the Apex Court applied the dictum in Bipin Shantilal Panchal v. State of Gujarat. In State of NCT of Delhi v. Mukesh (Three Judge Bench), 2014-15 SCC 661, refuted to follow Bipin Shantilal Panchal observing as under:

  • “The decision referred to by the learned Counsel in the case of Bipin Shantilal Panchal [supra] has to be read and understood in that context.”

Sec. 36, Stamp Act: Once Admitted, Always Stand Admitted

The law applied in India, invoking Sec. 36 of the Indian Stamp Act (Sec. 35 of the State Act) is the following –

  • Once an (unstamped or insufficiently stamped) instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings.

In Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655: 1962-2 SCR 333, it was observed as under:

  • “4…. Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Section 35 is in the nature of a penal provision and has far-reaching effects. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the court. The court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. … Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, Section 36* of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the trial court itself or to a court of appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same court or a court of superior jurisdiction.” (*Section 36 of the 1899 Act is pari materia to section 35 of the 1957 Act.)

In Ram Rattan v. Bajrang Lal, (1978) 3 SCC 236, it was held as under:

  • “6. When the document was tendered in evidence by the plaintiff while in witness box, objection having been raised by the defendants that the document was inadmissible in evidence as it was not duly stamped and for want of registration, it was obligatory upon the learned trial Judge to apply his mind to the objection raised and to decide the objects in accordance with law. …. If after applying mind to the rival contentions the trial court admits a document in evidence, Section 36 of the Stamp Act would come into play and such admission cannot be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped. The court, and of necessity it would be trial court before which the objection is taken about admissibility of document on the ground that it is not duly stamped, has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case and where a document has been inadvertently admitted without the court applying its mind as to the question of admissibility, the instrument could not be said to have been admitted in evidence with a view to attracting Section 36 [see Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655] . The endorsement made by the learned trial Judge that ‘Objected, allowed subject to objection’, clearly indicates that when the objection was raised it was not judicially determined and the document was merely tentatively marked and in such a situation Section 36 would not be attracted.”

Once Admitted, Always Stand Admitted – Theory Exploded

The aforestated long-stood concept is shattered in the recent decision in G. M.  Shahul Hameed v. Jayanthi R.  Hegde (Dipankar Datta, Pankaj Mithal, JJ.), AIR 2024 SC3339.

In G. M.  Shahul Hameed v. Jayanthi R.  Hegde (supra) it is held that sheer technicalities should not triumph over the legislative intent and the fiscal interests of the state. It is held as under:

  • “10. Despite the GPA having been admitted in evidence and marked as an exhibit without objection from the side of the appellant, we propose to hold for the reasons to follow that the Trial Court did have the authority to revisit and recall the process of admission and marking of the instrument, not in the sense of exercising a power of review under section 114 read with Order XLVII, CPC but in exercise of its inherent power saved by section 151 thereof, and that the other remedy made available by the 1957 Act was not required to be pursued by the appellant to fasten the respondent with the liability to pay the deficit duty and penalty.”
  • “12. Read in isolation, a literal interpretation of section 35 of the 1957 Act seems to make the position in law clear that once an instrument has been admitted in evidence, then its admissibility cannot be contested at any stage of the proceedings on the ground of it not being duly stamped. A fortiori, it would follow that any objection pertaining to the instrument’s insufficient stamping must be raised prior to its admission.
  • 13. However, section 35 of the 1957 Act is not the only relevant section. It is preceded by sections 33 and 34 and all such sections are part of Chapter IV, tiled “Instruments Not Duly Stamped”. Certain obligations are cast by section 33 on persons/officials named therein. Should the presiding officer of the court find the instrument to be chargeable with duty but it is either not stamped or is insufficiently stamped, he is bound by section 33 to impound the same. Section 34 places a fetter on the court’s authority to admit an instrument which, though chargeable with duty, is not duly stamped. The statutory mandate is that no such instrument shall be admitted in evidence unless it is duly stamped.
  • 14. The presiding officer of a court being authorised in law to receive an instrument in evidence, is bound to give effect to the mandate of sections 33 and 34 and retains the authority to impound an instrument even in the absence of any objection from any party to the proceedings. Such an absence of any objection would not clothe the presiding officer of the court with power to mechanically admit a document that is tendered for admission in evidence. The same limitation would apply even in case of an objection regarding admissibility of an instrument, owing to its insufficient stamping, being raised before a court of law. Irrespective of whether objection is raised or not, the question of admissibility has to be decided according to law. The presiding officer of a court when confronted with the question of admitting an instrument chargeable with duty but which is either not stamped or is insufficiently stamped ought to judicially determine it. Application of judicial mind is a sine qua non having regard to the express language of sections 33 and 34 and interpretation of pari materia provisions in the Indian Stamp Act, 1899 [1899 Act, hereafter] by this Court. However, once a decision on the objection is rendered – be it right or wrong – section 35 would kick in to bar any question being raised as to admissibility of the instrument on the ground that it is not duly stamped at any stage of the proceedings and the party aggrieved by alleged improper admission has to work out its remedy as provided by section 58 of the 1957 Act.
  • “21. We may not turn a blind eye to the fact that the revenue would stand the risk of suffering huge loss if the courts fail to discharge the duty placed on it per provisions like section 33 of the 1957 Act. Such provision has been inserted in the statute with a definite purpose. The legislature has reposed responsibility on the courts and trusted them to ensure that requisite stamp duty, along with penalty, is duly paid if an unstamped or insufficiently stamped instrument is placed before it for admission in support of the case of a party. It is incumbent upon the courts to uphold the sanctity of the legal framework governing stamp duty, as the same are crucial for the authenticity and enforceability of instruments. Allowing an instrument with insufficient stamp duty to pass unchallenged, merely due to technicalities, would undermine the legislative intent and the fiscal interests of the state. The courts ought to ensure that compliance with all substantive and procedural requirements of a statute akin to the 1957 Act are adhered to by the interested parties. This duty of the court is paramount, and any deviation would set a detrimental precedent, eroding the integrity of the legal system. Thus, the court must vigilantly prevent any circumvention of these legal obligations, ensuring due compliance and strict adherence for upholding the rule of law.”

Conclusion

Though the decision taken by a Magistrate to mark a document ‘subject to proof/ objection’ is improper, it appears, in a proper case, marking a document (with the rider) “subject to proof/ objection” may be a legitimate action – if it is a “decision” (after applying mind) as ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh (supra). Nevertheless, a document can be marked (with the rider) “subject to proof/ objection” only if it is not possible to take a decision (in a summary manner) then and there; and the law does not favour the principles laid down in Bipin Shantilal Panchal v. State of Gujarat (defer the whole matter for decision in future).

End Notes:

Sec. 33, 34 and 35, Stamp Act (State Act) read as under:

  • “33. Examination and impounding of instruments.- .(1) Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
  • (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in the State of Karnataka when such instrument was executed or first executed: Provided that …
  • (3) For the purposes of this section, in cases of doubt, the Government may determine,- (a) what offices shall be deemed to be public offices; and (b) who shall be deemed to be persons in charge of public offices.
  • 34. Instruments not duly stamped inadmissible in evidence, etc.– No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped: Provided …
  • 35. Admission of instrument where not to be questioned.-Where an instrument has been admitted in evidence such admission shall not, except as provided in section 58, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped.”

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Can a Photocopy of a Sale Deed be Marked, Uncontrolled by Sec. 65, clause (f) of the Evidence Act? 

Is Certified Copy of Sale Deed Essential, Under Sec. 65, clause (f)? Answer – ‘No’.

Taken from: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introduction

The doubt (can a photocopy of a sale deed be marked) arises from clauses (e) and (f) of Sec. 65 Evidence Act.

Sec. 65 clauses (e) and (f) read as under:

  • “(e) when the original is a public document within the meaning of section 74;
  • (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence**.”

Sec. 65 further lays down –

  • “In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
  • ** “(permitted) to be given in evidence“ propounds – giving copy in evidence without reference to or accounting for “original” (without saying “where the original is”).
  • That is, under Sec. 65 clause (a) to (d), a copy can be given by a party to a proceeding if only any one of the conditions therein (original is with other side, original has been destroyed or lost, etc.) is satisfied; but, Sec. 65 (e) and (f) says that secondary evidence (certified copy) can be given in evidence even if original is with him; (or in other words, he can produce the secondary evidence – certified copy – without saying “where the original is”, i.e., without reference to “original”).

By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed alone, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,

  • (1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65,and
  • (2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence” (without reference to “original”) – referred to in clauses (f) of Sec. 65.

No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original).

Note: Sec. 57 of the Registration Act reads as under:

  • “57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries —
  • (1)… (2) … (3) … (4) …
  • (5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.”

It is definite – the words, “shall be admissible for the purpose of proving the contents of the original” cannot be read as (or equated to): “certified copy … permitted by this Act, or by any other law in force in India to be given in evidence” (that is, without reference to “original”).

  • Note:
  • The expression (in proof of the contents) in Sec. 77 of the Evidence Act makes the difference clear:
  • “77. Proof of documents by production of certified copies – Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.”

Therefore, any kind of (admissible) secondary evidence of a sale deed can be given in evidence; and production of certified copy cannot be insisted. (If it falls under clause (e) or (f) of Sec. 65, certified copy alone can be given – as secondary evidence.)

Following decisions considered both Sec. 57 of the Registration Act and Sec. 65 (e) & (f) Evidence Act and found that in the absence of a registered sale deed, a certified copy could be filed as secondary evidence. Though these decisions did not ponder on the point whether a certified copy ‘alone‘ (and “no other kind of secondary evidence“) can be filed, they definitely state that secondary evidence of a sale deed (or similar other deeds) can be given in evidence only when it is shown – the original is lost or not in a position to produce before the court (foundational evidence), as provided in Sec. 65 (a), (b) & (c). [That is, Sec. 65 (f) is not attracted.]

  • Puspa Dey v. Sukanta Dey, 2019-3 CalLT 206
  • Upendra Rao v. M. K. Ammini, ILR 2017-1 (Ker) 466;
  • Om Parkash v. Ram Gopal, 2011-4 PLR 364;
  • Ismail Gafurbhai Vohra v. Kirit Bhagvatprasad Vyas, 2013-2 GLR 1230;
  • Sandeep v. State of Haryana, 2011-4 LawHerald 3507,
  • Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 306,
  • Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706,

Sale deed Copy permitted only after foundational evidence

  • Hence S. 65(f) not attracted.

Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112, it is held as under:

  • “Production and marking of a certified copy as secondary evidence of a private document (either a registered document like a sale deed or any unregistered document) is permissible only after laying the foundation for acceptance of secondary evidence under Clause (a), (b) or (c) of Section 65.”

Om Parkash v. Ram Gopal alias Paali Ram alias Doojpuri Maharaj, 2011-4 PLR 364 (P&H) it is observed as inder:

  • “In this case original sale deed has not been filed. However as per case of petitioners-plaintiffs, the original has been lost and the same was not traceable, after the death of their father, hence, sufficient explanation has come on the record for not filing the original document.”

Referring Krishna Kishore Chowdhari v. Kishore Lal Roy, 14 IA 71 it is observed in G. Chikkapapanna v. Kenchamma, 1999-1 CivCC 611; ILR 1998 Kar 3450; 1998-5 KarLJ 360, also, it is held that the party concerned has to lay foundation and establish reason for non-production nor availability of original (registered) document.

  • (Inasmuch as it is necessary to show the reason for non production of original to produce a copy of a registered deed, it does not fall under Section 65(f); and therefore certified copy is not essential – any type of secondary evidence can be adduced in evidence.)

It is said in G. Chikkapapanna v. Kenchamma as under:

  • “38. In the case of Krishna Kishore, supra, their lordships referring to Section 65 of the Evidence Act, observed as under:
  • “There are however cases under the act in which secondary evidence is admissible even though the original is in existence, one of the cases is under Section 65, clause (e) when the original is a public document within the meaning of Section 74 and another under clause (f) when original is document of which certified copy is permitted by this act or any other law in force in British India to be given in evidence but no other kind of secondary evidence is admissible. “If then the anumati patra was a public document within the meaning of Section 74 of the Act, which in their lordships opinion it was not, no secondary evidence would have been admissible except a certified copy. As an anumati patra, even if registered, is not a public document, as held by the Privy Council so the settlement deed will stand on same footing, it also cannot be said to be a public document.”
  • 40. The private settlement deed or a trust deed executed by an individual stand on some footing as receipt executed by an individual or individuals or Anumati patra and it remains a private document even after registration. The plaintiff relied on Exh. P-l and urged it to be copy of settlement deed creating trust, even if trust as urged, its original was registered one but it was not a public document vide Ravindra N. Das v Santosh Kumar.
  • 41. That as regards clause (f) of Section 65, it will be applicable in cases where the original is one, the certified copy of which is permitted under the Evidence Act or any other law. Sections 76 and 77 of the Evidence Act reveal that under these sections, the certified copies of public documents have been made permissible and admissible to prove the contents of public documents or the parts of public documents of which the copies they purport to be.
  • 42. That as found earlier, the settlement deed of 1933 is and has been only private document and did not become public document, merely because of its having been registered, as after registration, as held by the Privy Council, the document (original) is returned and does not form part of public record, vide, Gopal Das case, supra, and as per Section 61(2) of the Registration Act.
  • 43. The learned Counsel for appellant referred to Section 57(5) of the Registration Act and urged that the section permits filing of certified copies and make the certified copies issued under Section 57 of the Registration Act, to be admissible to prove the contents of original documents as such certified copy of settlement deed of 1933, Exh. P-1 was admissible as secondary evidence under Section 65(f) of the Evidence Act. He urged that the Court below erred in law in holding that the same was not admissible without proof of loss of the original or without original of Exh. P-1 being accounted for.
  • 44. If a case for filing secondary evidence is established or sbown to be covered by clause (e) or (f), secondary evidence is admissible or permissible in the form of certified copy of such a document beyond doubt as held in the case of Krishna Kishore, referred to above by the Privy Council, hut the question is what Section 57 of Registration Act provides and whether it can be said to be a case covered under Section 65(f) of the Evidence Act.
  • 45. Section 57 of the Registration Act, provides that registering office have to allow the inspection of certain books and indexes as well as to have to, or have been authorised to, give certified copies of the entries made in such books as are referred to in Section 57 of the Registration Act. Sub-section (11) of Section 57 provides that Book Nos. 1 and 2 and index relating to Book No. 1 shall be subject to payment fee payable at all times be open to inspection by any person applying for inspection. It further provides that subject to Section 62 of the Registration Act, all persons who apply for the supply of copies of entries contained in such books shall be given the copies of entries in such books.
  • 45-A. Sub-sections (2) and (3) of Section 57 provides for copies of entries in Books 3 and 4 and indexes relating thereto to be given to person referred therein only or in circumstances specified therein i.e., in the sub-section concerned.
  • 46. Sub-section (5) of Section 57 provides that all copies given under this section shall be signed and sealed by the registering officers and shall be admissible for the purpose of proving the contents of the original documents.
  • 47. The entries made in Book No. 1 or Book No. 2 etc., are only entries of books. May it contain a copy of original document, i.e., copied in the book concerned but the said entry by itself is not the original document. The entry may be a copy, in register or book, from the original deed itself, which original deed is, as per Section 61(2) of Registration Act, returned to person presenting it. So the copy of entry which is given under Section 57 is not the copy from original deed itself but the copy from the copy of deed only. Sub-section (5) of Section 57 makes provision for copy from copy of document given under Section 57(1), (2) and (3), admissible only for limited purpose namely of proving the contents of the original document. Such a copy cannot be termed to be certified copy of the original document, but a copy of the entry or of the (copy) of the document. It may be a secondary evidence but not covered by clause (f) of Section 65 of the Evidence Act.
  • 48. In the case of Karuppama v Kaland Swami, Madras High Court laid it down as under.-
  • “Section 57 of the Indian Registration Act deals with among other things, with the grant of certain certified copies and sub-section (5) lays down that all copies given under that section shall be signed and sealed by registration officer and shall be admissible for the purpose of proving the contents of the original documents. But the law is that a certified copy of what has been copied in the books of the Registration is admissible to prove the contents of the original document only when a case is made out for the introduction of secondary evidence i.e., by proof of loss of the original or where the original is withheld by a party in whose possession it is or is presumed to be”.
  • 49. Similar view has been expressed in the case of Badhawa Ram v Akbar Ali, by Hon’ble Mr. Justice Tek Chank, as he then was, as well as by the Division Bench of Nagpur High Court in the case of Kashinath Shankrappa v New Akol Cotton Ginning and Pressing Company, and also in the case of Gopal Das, supra, by the Privy Council, referred to above. The Punjab and Haryana High Court in the case of Paras Singh v Parkash Kaur, as well as Rajasthan High Court in the case of Motilal v Sardar Mal, have construed Section 57 of Registration Act, in the context of Section 65 of the Evidence Act on the same lines and way.
  • 50. In the case of P. Ram Reddy v Land Acquisition Officer, their Lordships of the Supreme Court dealing with Section 51-A of the Land Acquisition Act and Section 57 of the Registration Act has been pleased to lay down:
  • “Certified copies of a registered document under Registration Act, 1908, but for the above provision (Section 51-A of the Land Acquisition Act) could have been only secondary evidence which could have been accepted by the Court when primary evidence relating to original documents were shown to be unavailable.
  • 51. The observations made in the case of Nani Bai v Gita Bai Kom Rama Gunge, referred by learned Counsel for appellant are not of any assistance to appellant i.e., plaintiff. The material observations reveal that it only lays down that “the Sale deeds themselves are primary evidence of interest sold. If those sale deeds which are said to be registered document, were not available for any reasons, certified copies thereof could be adduced as secondary evidence, but no foundation has been laid in the pleading for the reception of other evidence which must always be a very weak character in place of the registered document evidencing those transactions”.
  • The above marked portion clearly reveals that before leading secondary evidence, such as the certified copy thereof, the party concerned has to lay foundation and establish reason for non-production nor availability of original document.
  • 52. In the present case, in my opinion as clauses (e) and (f) of Section 65 of the Evidence Act are not applicable therefore, in order to produce Exh. P-1, the certified copy of entry under Section 57 of the Registration Act, as secondary evidence the plaintiff-appellant had to make out case of foundation to lead secondary evidence, but as held earlier plaintiff-appellant has failed to lay the foundation therefor.”

Public Document Lost; Any secondary evidence becomes admissible

  • ‘Only Secondary Evidence Admissible’ Does Not Apply

In Marwari Kumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629; 2000-6 SCC 735, it is held as under:

  • “10. Thus it is to be seen that under sub-clause (c) of Section 65, where the original has been lost or destroyed, then secondary evidence of the contents of the document is admissible. Sub-clause (c) is independent of sub-clause (f). Secondary evidence can be led, even of a public document, if the conditions as laid down under sub-clause (c) are fulfilled. Thus if the original of the public document has been lost or destroyed then the secondary evidence can be given even of a public document. This is the law as has been laid down by this Court in Mst. Bibi Aisha and Others v. The Bihar Subai Sunni Majlis Avaqaf and Others , AIR 1969 SC 253. In this case a suit had been filed for setting aside a registered mokarrari lease deed and for restoration of possession of properties. The suit had been filed on behalf of a Waqf. The Original Waqf Deed was lost and an ordinary copy of the Waqf Deed was produced in evidence. The question was whether an ordinary copy was admissible in evidence and whether or not secondary evidence could be led of a public document. The Court held that under Section 65 clauses (a) and (c) secondary evidence was admissible. It is held that a case may fall both under clauses (a) or (c) and (f) in which case secondary evidence would be admissible. It was held that clauses (a) and (c) were independent of clause (f) and even an ordinary copy would, therefore, be admissible. As stated above the case that the original was no longer available in Court records and the certified copy was lost has not been disbelieved. Thus the ordinary copy of the earlier judgment was admissible in evidence and had been correctly marked as an exhibit by the trial Court.”

In Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, it is held as under:

  • “Under Sec. 65(a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, and when after the notice mentioned in sec. 66, such person does not produce it. Where the case falls under s. 65(a) any secondary evidence of the contents of the document is admissible. In the present case the conditions of s. 65(a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that cl. (f) of s. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence, a certified copy alone was admissible in evidence. There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f).
  • In the case of A Collision Between The Ava [(1879) I.L.R. 5 Cal. 568] a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted cl. (c) of sec. 65 and the failure to produce it after notice attracted cl. (a) Cl. (f) of sec. 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said:
  • “By s. 65 in cases under cls. (a) and (c) any secondary evidence is admissible; in cases under cls. (e) and (f) only a certified copy. The present case falls under cl. (a) or (c) and also under (f). In such a case which rule applies ? I think the words, ‘In cases (a), (c) and (d) any secondary evidence is admissible,’ are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received.” (Folloed in: Arunkumar Pritamlal v. Ramanlal Bhagubhai, 1975 AIR Guj 73.)

In Jupudi Kesava Raos v. Pulavarthi Venkata Subbarao, AIR 1971 SC 1070, it was held, relying on Bibi Aisha v. Bihar Subai Sunni Majlis Avaqaf, AIR 1969 SC 253, that under Sec. 64 of the Evidence Act, a document must be proved by primary evidence. But, Sec. 65 of the Evidence Act allows secondary evidence as to the existence, condition or contents of a document in circumstances specified in Clauses (a) to (g).

In Chandreshwar Prasad Narain Singh v. Bisheshwar Pratab Narain Singh: AIR 1927 Patna 61 it was held as under:

  • “Mr. Sultan Ahmad, on behalf of the respondents, contended that the rule as to the production of any secondary evidence does not apply to the case of a public document, in which case, a certified copy of the document but no other kind of secondary evidence, is admissible. If this argument be well founded, then it is obvious that the Legislature has made no provision for cases in which the original is a record of a Court of justice, and, therefore, a public document, which has also been lost or destroyed. In my opinion, the rule laid down in Sec. 65 that a certified copy is the only secondary evidence admissible when the original is a public document does not apply where the original has been lost or destroyed.” (followed in: Bhola Prasad v. Nabi Rasul Mian, 2007-1 PLJR 752 – Pat)

From the above, it appears that the following observation in Bhola Prasad v. Nabi Rasul Mian, 2007-1 PLJR 752, is not correct.

  • “In a case of the present nature where the document produced is registered sale deed the case also gets covered by clause (f) of Sec. 65 under which when the original is a document of which a certified copy is permitted by the Evidence Act or any other law in force to be given in evidence, even a certified copy of the document, but no other kind of secondary evidence is admissible.”

Next Best Evidence Rule on Copy of a Sale Deed

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

  • G. Balamani v. Parimi Manga Devi, 2019-4 ALD 401; 2019-4 ALT 203; 2019-3 CivCC 590
  • Raghunath Ramnath Zolekar v. State of Maharashtra, 2013-1 Crimes(HC) 532
  • Biju Paul v. Nedungadi Bank Ltd. 2012-2 KerLT(SN) 113 (For creating equitable mortgage),
  • Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the  next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
  • Jagdamba Tea Factory v. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17 (Where no lease deed, the entries in the house-tax register, which was the next best evidence available, could very well be taken into consideration for determining the rate of rent.),
  • 2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the  next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
  • Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
  • M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456 (in the absence of the original deed of transfer the next best evidence of the owner’s title to the property is a certified copy of that document).
  • Ananthakrishnan v. K. G.  Rangasamy (Mad), 2020-4 CTC 411; 2020-1 LW 355 (quoted: M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456)

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that, for the purposes of creating an equitable mortgage, the copy of a transfer-deed is not (ordinarily) a ‘document of title’, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the next best evidence of the owner’s title to the property would be a certified copy of that document.

Photocopy is a Reliable Secondary Evidence

It falls under Sec. 63(2) it being the product of ‘mechanical processes which in themselves insure the accuracy of the copy‘. In Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991-3 SCC 451, it is held as under:

  • “A photostat copy is prepared by mechanical process which in itself ensures the accuracy of the original.”

In M.  Ratnavarma Padival v. Rathnavarma Ajri, 2023-6 KarLJ 614, it is held as under:

  • “Xerox copy, as is known in common parlance, is a photostat copy, made from a mechanical process, which ensures the accuracy. To bring a photostat copy, within the ambit of the first part of secondary evidence, as provided in Sec. 63(2) of the Indian Evidence Act, one must establish that the copy is made from the original through a mechanical process which ensures the accuracy.”
  • See also:
  • C.  Siva Ranadheer Raju v. K.  Prasannalakshmi, AIR 2023  AP 43
  • Amangenti Prameela v. P. Venkat Reddy, 2004 (3) ALT 218
  • Shaikh Aftab Ahmed v. Bhimrao, 2020-1 BomCR 251
  • Nirma Limited v. Addl. Dist. and Sessions Judge Sojat, 2019 3 CivCC 733, (Raj);
  • Keshu Ram v. Sonaki Bai, AIR 2018 Raj. 10

Contra Proposition – ‘Accuracy shall be Established on Oath’

In Aneeta v. Saraswati, (2012)4 MPLJ 56, it was held that for admitting a document as secondary evidence not only the satisfaction of Sec. 65 was required, but it was also required that photocopy was compared with the original in terms of Section 63(3). Referring this decision it is observed in Makhanlal v. Balaram, 2018-1 RN 174 (MP) as under:

  • “The application filed by the petitioner reveals that no factual foundation was laid by the petitioner in respect of the preparation of the photocopy from the original, comparing the copy with the original or its preparation by such mechanical process which ensures the accuracy of the copy .”

As regards photocopy, it is laid down in Surinder Kaur v. Mehal Singh, 2014(1) RCR(Civil) 467 (P&H) as under:

  • “a) Photostat copy of a document can be allowed to be produced only in absence of original document.
  • b) When a party seeks to produce photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it.
  • Mere assertion of the party is not sufficient to prove these foundational facts.
  • c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the photostat copy is tendered in evidence.
  • d) When the opposite party raises objection as to authenticity of the photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied.
  • e) Allowing production of photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time.
  • f) In cases where the photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence.
  • g) The accuracy of photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.”
    • Note: It appears that the proposition, ‘accuracy shall be established on oath’, is a surplusage (for, a photocopy, by itself, ‘insures the accuracy of the copy’ under Sec. 63, and the court is free to apply the presumptions under Sec. 114).

If No Objection, Can a (Relevant) Photocopy of Document be Marked?

Yes.

It would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof, including production of a photocopy), in the scheme of our Procedure Codes and Evidence Act.

If No Objection, Photocopy can be Marked (as Secondary Evidence)

  • Thayyil Chandrasekharan v. Athikkotu Prasad , 2019 3 CurCC 297 (In the written-statement it had been stated that the original agreement was destroyed.)
  • Kishore Kumar Khaitan v. Praveen Kumar Singh, 10 Jul 2019 (Indiakanoon)
  • National Insurance Company Limited v. Dipannita Acharya, 2019 ACJ 1823.
  • Krishna Ponnuswamy v. Punitha Anand, 2018-1 MLJ 799.
  • Union of India v Rabindra Ch.  Das, 2013-6 GauLJ 335; 2013 9 RCR(Civ) 624 (No objection raised, at the time of admitting the document.)

In Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:

  • The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
  • The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. 
  • The photocopies were marked as exhibits without objection.
  • The respondents never questioned the genuineness of the same. 
  • Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non­production of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.

In this premises the Supreme Court held as under:

  • “This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

Delhi High Court held in Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon), as under:

  • “…. it is conceded by the counsel for the appellants/defendants that before commencement of cross-examination of PW-1 and PW-2 there was no objection raised that the Will cannot be proved inasmuch as the Will only is a photocopy. Once no objection is raised to the mode of proof on account of lack of original, then now the objection cannot be raised to the mode of proof as the objection to the mode of proof stands waived in view of the ratio as laid down in the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

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

Substantial and Auxiliary Documents Used in Evidence

Saji Koduvath, Advocate, Kottayam.

Evidence – Three  Classes

On a broad classification, ‘evidence’ can be arrayed into following three classes –

  • 1.  Oral evidence
  • 2. Documentary evidence (including electronic records)
  • 3. Opinions of experts including views of persons specially skilled in foreign law, science or art, or in questions as to identify of handwriting or finger-impressions. It may also be termed as scientific evidence.

Documentary Evidence

Documentary Evidence can be classified into following categories –

  • 1.  substantive evidence
  • 2. documents used for contradicting
  • 3. documents used for corroboration
  • 4. documents used for refreshing memory.

Substantive Evidence

Substantive evidence is direct and admissible evidence. The courts adjudicate the matters before it on the basis of the substantive evidence. Order 13 Rule 3 CPC speaks as to rejection of irrelevant and inadmissible documents,  at any stage of the suit. Inadmissible evidence includes hearsay evidence.

Relevancy of Evidence

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:

  • “5. Evidence may be given of facts in issue and relevant facts—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
  • Explanation—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure

Documents used for Contradicting

Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:

  • “145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Sec. 145 Enables to Contradict Witnesses with his previous statements:

  1. Without such the writing being shown to him
  2. Without such (previous) writing being proved.
  3. Even when the writing is used to contradict the witness by the writing and his attention is called to those parts of it which are to be used for the purpose of contradicting him, it need not be shown to the counsel of the witness (or other side) for his perusal.
  4. The writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
  5. Material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

  1. The writing must be a ‘previous’ one.
  2. The (previous) writing must be of that witness himself.
  3. It must be relevant to matters in question
  4. If it is intended to contradict the witness by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradicting him.
  5. If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have undertaken to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.
  6. If the witness denies such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
  7. When it is to be proved, original or other admissible copy must be produced.
  8. This provision being a statutory one, the courts will allow to prove it , even if the ‘right to give evidence’ of that party ‘is over’.

Important points to be noted while invoking Sec. 145:

  1. If the witness admits the previous statement, no question as to proving the same arises for consideration.
  2. The purpose of invoking sec. 145 is only testing the veracity of the witness, under Sec. 155 (3); such writing will not be a substantive evidence.
  3. Even if the document or the contradicting part is marked, and it is proved, for the purpose of contradicting him, it cannot be read in evidence (as the purpose of this provision is only impeaching the credit of the witness).
  4. The court has to allow the cross examiner to produce and prove the previous statement (if the witness denies such previous statement) even if technically his ‘evidence is over’ (it being statutory right).

A ‘Certificate’ is not Per Se Admissible

A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’.

Documents used for Corroboration

Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges.  Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.

Section 156 of the Evidence Act reads as under:

  • “156. Questions tending to corroborate evidence of relevant fact, admissible. When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
  • Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”

The requirement of corroboration in certain cases is described by our Apex Court as under in Khema v. The State of Uttar Pradesh, AIR 2022 SC 3765, as under:

  • “21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras, (1957) SCR 981, has observed thus:
    • ‘…….Hence, in our opinion, it is a sound and well­established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
    • Wholly reliable.
    • Wholly unreliable.
    • Neither wholly reliable nor wholly unreliable.
    • In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……’
  • 22. We find that the testimony of Inder (PW­2) would fall under the 3rd category i.e. his evidence can be said to be ‘neither wholly reliable nor wholly unreliable’. As such, it will be necessary that there is some corroboration to his ocular testimony.”

Expert Evidence is only Corroborative; Not Substantive

In case of a conflict between oral evidence and scientific evidence, which will prevail? The answer is that it depends upon the nature of the subject matter. In everyday practice we see that trustworthy and credible oral evidence get primacy status over the scientific evidence. It is on the principle that the scientific evidence always renders an ‘opinion’ or ‘possibility’ only. By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.  

It is important that Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.

In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:

  • “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:

  • “15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 Cr.L.J. 3508 (Ori. -DB).

In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa.AIR 1987 SC 1507).

In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.

Substantive Evidence and Evidence used for Refreshing Memory.

Section 157 in the Evidence Act reads as under:

  • “157. Former statements of witness may be proved to corroborate later testimony as to same fact. In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”

Post-Mortem Report, Wound Certificate, Commission Report in a former case etc. are not a substantive evidence.  Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

  • “That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”
    • See also: Munshi Prasad v. State of Bihar,(2002) 1SCC 351;
    • State of Haryana v. Ram Singh,  (2002) 2SCC 426;
    • Vijay Paul v. State of Delhi: 2015 SC 1495;
    • Mohanan v. State of Kerala: 2011(4) KLT 59.

Ante litem motam documents The Supreme Court had said in Harihar Prasad Singh v. Must. of Munshi Nath Prasadand, AIR 1956 SC 305, that ante litem motam documents that extend over a considerable period of time, form cogent and strong evidence that the lands were private lands.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

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

Can the True Owner Seek Cancellation of a Deed, Executed by a Stranger to the Property

Answer: No.

Saji Koduvath, Advocate, Kottayam.

Taken from: Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds

Abstract

               •➧Sect. 31 of the Specific Relief Act does not give a right to a stranger to a document (including the true owner of the property) to sue for cancellation. Sec. 31 reads –
“31. When cancellation may be ordered— (1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.
(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.”

             •➧Sec. 7 of the Transfer of Property Act, sets down that a transfer of property, made by a person who is not competent to transfer, is not valid. (It need not be got cancelled – for availing a substantive relief from a civil court.) Sec. 7 reads –
“7. Persons competent to transfer— Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.”

Introduction

Sec. 7 of the Transfer of Property Act, sets down that a transfer of property, made by a person who is not competent to transfer, is not valid.

  • Siriki Appalaswamy v. Sub-Registrar (N.V. Ramana, J.) 2009-1 ALD 321; 2009-1 ALT 101;
  • Abdul Satar Haji Ibrahim v. Shah Manilal Talakchand, AIR 1970 Guj 12.

Sect. 31 of the Specific Relief Act does not give a right to a stranger to a document (including the true owner of the property) to sue for cancellation. That is, when an immovable property is transferred by a person without authority to a third person, the true owner cannot file a suit under Sec. 31 of the Specific Relief Act; such a suit is not maintainable. See:

  • Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Mad 1
  • Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57,
  • Deccan Paper Mills Co. Ltd. Versus Regency Mahavir Properties; (2021) 4 SCC 786,
  • Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330.

Also read:

Cancellation of Instruments – Sec. 31 Sp. Relf. Act

The Full Bench of the Madras High Court, in Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Mad 1, said analysing Sec. 39 of the Specific Relief Act, 1877 (pari materia provision to Sec. 31 of the 1963 Act) as follows:

  • “13. … The provisions of Section 39 make it clear that three conditions are requisite for the exercise of the jurisdiction to cancel an instrument :
    • (1) the instrument is void or voidable against the plaintiff;
    • (2) plaintiff may reasonably apprehend serious injury by the instrument being left outstanding;
    • (3) in the circumstances of the case the court considers it proper to grant this relief of preventive justice.
  • On the third aspect of the question the English and American authorities hold that where the document is void on its face the court would not exercise its jurisdiction while it would if it were not so apparent. In India it is a matter entirely for the discretion of the court.
  • 14. The question that has to be considered depends on the first and second conditions set out above. As the principle is one of potential mischief, by the document remaining outstanding, it stands to reason the executant of the document should be either the plaintiff or a person who can in certain circumstances bind him. It is only then it could be said that the instrument is voidable by or void against him. The second aspect of the matter emphasises that principle. For there can be no apprehension if a mere third party asserting a hostile title creates a document. Thus relief under S. 39 would be granted only in respect of an instrument likely to affect the title of the plaintiff and not of an instrument executed by a stranger to that title.” (Quoted in Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties, AIR 2020 SC 4047.)

S. 31(1) – Action (only) by a Party to the Deed or by one obtained Derivative Title

After quoting Muppudathi Pillai v. Krishnaswami Pillai, AIR 1960 Mad 1, it was held (R.F. Nariman, J.) in Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties, AIR 2020 SC 4047, as under:

  • “A reading of the aforesaid judgment of the Full Bench would make the position in law crystal clear. The expression “any person” does not include a third party, but is restricted to a party to the written instrument or any person who can bind such party….
  • … A reading of section 31(1) then shows that when a written instrument is adjudged void or voidable, the Court may then order it to be delivered up to the plaintiff and cancelled – in exactly the same way as a suit for rescission of a contract under section 29. Thus far, it is clear that the action under section 31(1) is strictly an action inter parties or by persons who obtained derivative title from the parties, and is thus in personam.”

Title of True Owner Remains Intact even if a Stranger Conveys the Property

In Yanala Malleshwari v. Ananthula Sayamma, AIR 2007 AP 57, it is held as under:

  • “Unless and until, a person is competent to contract and entitled to transfer the property, a valid transfer of property cannot take place (Sections 5 and 7 of TP Act). As a necessary corollary, if the transfer of property is by a person without title or such transfer is opposed to nature of interest or for an unlawful object or consideration within the meaning of Section 23 of the Contract Act or transferee is legally disqualified to be transferee, title in the property does not pass to the transferee (Sections 6(h) and 8 of TP Act and Section 23 of the Contract Act). ….(Quoted in: Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330; Sahara India Commercial Corporation Ltd.  v. Uday Shankar Paul, AIR(NOC) 2022  Jhar  663; Latif Estate Line India Ltd. v. Hadeeja Ammal, AIR 2011 Mad 66)
  • 33. The law, therefore, may be taken as well settled that in all cases of void or voidable transactions, a suit for cancellation of a deed is not maintainable. In a case where immovable property is transferred by a person without authority to a third person, it is no answer to say that the true owner who has authority and entitlement to transfer can file a suit under Section 31 of the Specific Relief Act for the simple reason that such a suit is not maintainable. Further, in case of an instrument, which is void or voidable against executant, a suit would be maintainable for cancellation of such instrument and can be decreed only when it is adjudicated by the competent Court that such instrument is void or voidable and that if such instrument is left to exist, it would cause serious injury to the true owner…… (Quoted in: Deccan Paper Mills Co. Ltd. v. Regency Mahavir Properties, AIR 2020 SC 4047; Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330)
  • 36. What would be the remedy for the person who actually and factually holds a valid title to a property in respect of which a fraudulent transfer was effected by deceitful vendors and vendees or deceitful vendors and genuine vendees, who parted with consideration. The legal maxims ‘nemo dat quod non habet’ and ‘nemo plus juris ad alium transferee potest quam ipse habet’ postulate that where property is sold by a person who is not the owner and who does not sell under the authority or consent of the real owner, the buyer acquires no title to the property than the seller had. The Indian law recognizes this principle in various provisions of various statutes which in pith and substance deal with Contracts, Transfer of property and Specific relief (See Sections 17, 18, 19, 20, 23, 25 and 29 of the Contract Act; Sections 6(h), 7, 25, 38, 42 to 48, 52, 53 and 55 of TP Act and Sections 13, 15, 17, 21, 31 and 34 of the Specific Relief Act)…..
  • 77. In the considered opinion of this Court if a person sells away the property belonging to other, it would certainly be fraud on the statute. It would be adding insult to injury, if such person is asked to go to civil Court and get the subsequent sale deed cancelled or seek a declaration. Be it also noted that under common law, as discussed supra, the title of a person remains intact even if a stranger conveys that title to another stranger, which is ineffective”

Execution of or Registration of a Document by itself Will not Create any new Title

In Siriki Appalaswamy v. Sub-Registrar (N.V. Ramana, J.) 2009-1 ALD 321; 2009-1 ALT 101, it was found as under:

  • “The transfer of property is subject to the provisions of the Transfer of Property Act, 1882, while the title, capacity of the parties to transfer the property etc. are governed by different laws such as Law of Succession, Testamentary or otherwise, etc. The normal understanding of the general public is that once a document is registered under the provisions of the Registration Act, they get title to the property. But that is not so. The law is well settled that execution of or registration of a document by itself will not create any new title, and the execution of or registration of such document covering an immovable property is governed by the principle Nemo Oat Quad Non Habet, which means that no one can transfer better title than what he has. Therefore, unless and until the vendor has title to the property, by mere registration of a document transferring the property vested in him, does not confer any title on the vendee.”

Sec. 7 of the TP Act – Person must be competent to contract; Otherwise, not valid

Siriki Appalaswamy v. Sub-Registrar (N.V. Ramana, J.) 2009-1 ALD 321; 2009-1 ALT 101, preceded as under:

  • The transfer of property has been defined under Section 5 of the Transfer of Property Act, to mean that an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, and one or more other living persons and, “to transfer property”, is to perform such act. The persons competent to transfer the property is dealt with under Section 7 of the Transfer of Property Act. As per Section 7 of the Transfer of Property Act, unless a person is competent to contract or entitled to transfer the property, transfer, if any, made is not valid. A conjoint reading of the provisions of the Registration Act, with the provisions of the Transfer of Property Act, would make it crystal clear that transfer of title in a property by way of registration, is subject to any other law for the time being in force. Therefore, mere registration of a document will not confer any new title, and in the case of any title disputes arising out of such registrations, they are subject to and to be decided under the provisions of various other laws, governing the transfer of immovable property.

In Pavakkal Noble John v. Kerala State, ILR 2010-3 Ker 979; 2010-3 KLT 941, held as under:

  • “Under Section 7 of the Transfer of Property Act, 1882, for a person to become competent to transfer property, two conditions have to be satisfied viz. (1) he has to be competent to contract and (2) he must be entitled to transferable property or he must be authorised to dispose of transferable property not his own.”

Factual Existence of Title, Important; and Not the Knowledge of Purchasor

In Moidu v. Mammunhi Beaky, ILR 1974-1 (Ker) 201; 1974 KLT 879, it is observed as under:

  • “Under S.7 of that Act a person is competent to transfer only property which he is entitled to or authorised to dispose of. In other words, it is the well-settled rule of the law of property that no one can transfer or convey title to property unless he himself has title to it or is authorised to transfer by a person having title to it. The question of title of the purchaser is not dependent upon his knowledge about the vendor’s title, but on the factual existence of his title; and, if the mortgagee-purchaser does not acquire title to a share of the property purchased the mortgage in respect of that share will subsist, unless there are circumstances which will go to show that the mortgagee-purchaser intended to wipe off the mortgage-transaction, by his purchase, though defective in respect of a portion of the property. …
  • 12. Those who conveyed properties to the mortgagee as per Exts. B 42 and B43 sale deeds had only 41/48 share in those properties. They could convey only that much interest in those properties. Though they purported to convey the full right in the whole of the two items, in fact what is conveyed is only their interests or shares.”

Competency of the transferor is dealt with in Abdul Satar Haji Ibrahim v. Shah Manilal Talakchand, AIR 1970 Guj 12, also.

No suit by True Owner will lie under S. 31 Where a stranger executed a sale: Real owner may file a suit under S 34 (for Declaration)

In Vinod Shankar Jha v. State of Jharkhand, 2024-1 CurCC 330, after considering all the above decisions, it is held as under:

  • “34. What follows from the above settled position of law, is that an executant can seek cancellation of a registered instrument on the ground of fraud, by a suit filed under Section 31 of the Specific Relief Act. In case, where a stranger without any title has executed a sale, such a suit will not lie under Section 31. Real owner may file a suit under Section 34, if his peaceful enjoyment of ownership right is impinged due to the said sale.
  • 2012-3 KerLT 264.

When one is NOT PARTY to Document, No Need to Annul by Cancellation

It is held in Y. G. Gurukul v. Y. Subrahmanyam, AIR 1957 AP 955, as under:

  • “When a person is not eo-nomine a party to a suit or a document, it is unnecessary for him to have the deed or the decree annulled, and he can proceed on the assumption that there was no such document or decree. (Followed in Sankaran v. Velukutty, 1986 Ker LT 794.)

In Usman Kurikkal v. Parappur Achuthan Nair, ILR 2012-3 Ker 343; 2012 3 KHC 89, it is held as under:

  • “Plaintiff is neither a party to the sale deed nor a party to the resolution empowering the Board to execute the sale deed. The prayer in the plaint is essentially for a declaration that the sale deed is not valid and binding on the plaintiff. The plaintiff has not sought for a cancellation of the sale deed obviously because he was not an executant thereto. The plaintiff can very well ignore the sale deed and need not seek its annulment as has been held in Sankaran v. Velukutty (1986 KLT 794).”
  • See also: SR Suresh Babu v. Beena, 2022 KHC OnLine 196.

The Supreme Court observed in V.  Kalyanaswamy v. L.  Bakthavatsalam, 2020 3 RCR(Civ) 404; 2020 9 Scale 367, as under:

  • “Plaintiffs-appellants in OS No. 36 of 1963 were not parties to the suit in 1958 and the compromise in OS No. 71 of 1958 will not bind the appellants.”

Incumbent for the Executant to Seek Cancellation of Sale Deeds

It is held in Chellakannu v. Kolanji (R. Banumathi, J.), AIR 2005 Mad 405, that the word “Cancellation” implies that the persons suing should be a party to the document; and that it is incumbent on the executant of the document (for avoiding its binding nature) to seek cancellation of sale deeds, and a prayer to declare the sale deeds as invalid  tantamount to cancellation; and therefore, court fee applicable to cancellation has to be paid. Our Apex Court approved this decision (Chellakannu v. Kolanji) in J. Vasanthi v. N. Ramani Kanthammal, AIR 2017 SC 3813.

Cancellation of alienations in Partition Suits

In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held that in Partition of property, it is not always necessary for a plaintiff in a suit for partition to seek cancellation of alienations.

Propositions as to Questioning a Deed WHERE ONE is NOT a Party

In Noorul Hoda v. Bibi Rafiunnisa, 1996 (7) SCC 767, our Apex Court held as follows:

  • “When the plaintiff seeks to establish his title to the property which cannot be established without avoiding the decree or an instrument that stands as an insurmountable obstacle in his way which otherwise binds him, though not a party, the plaintiff necessarily has to seek a declaration and have that decree, instrument or contract cancelled or set aside or rescinded.” 

In Chellakannuv. Kolanji (R. Banumathi, J.), AIR 2005 Mad 405, it is observed as under:

  • “12. The word “Cancellation” implies that the persons suing should be a party to the document. Strangers are not bound by the documents and are not obliged to sue for cancellation. When the party to the document is suing, challenging the document, he must first obtain cancellation before getting any further relief. Whether cancellation is prayed for or not or even it is impliedly sought for in substance, the suit is one for cancellation. In the present case, when the Plaintiff attacks the Sale Deeds as having been obtained from him under fraud and mis-representation the Plaintiff cannot seek for any further relief without setting aside the Sale Deeds.”

Where one person is not a party to a deed, following propositions can be laid down:

  1. Where a deed is ‘null and wholly void‘ (e.g., unregistered sale/gift), he can simply avoid the deed and advance with other reliefs.
    • Limitation statute will have no application in such cases.
  2. If it is not ‘null and wholly void‘, he cannot simply avoid the deed and advance with other reliefs.
    • But, in such cases, it is not mandatory to seek ‘annulment’ of the deed – by ‘setting it aside’ or ‘cancelling it’.
    • It will be sufficient – to resort to “appropriate proceeding”, for avoiding the same, before a court of law, seeking proper declaration or otherwise.
    • It must be done within the limitation period prescribed.
    • In such cases the plaintiff need not pay Court Fee for ‘cancellation’ of a deed; it will be sufficient to pay the fee for ‘declaration’.

Person affected by a deed can obtain Cancellation if a co-sharer ‘sold’ it.

In Kedar Prasad v. Ganga Prasad, AIR 1980 All 85, it was held as under:

  • “16. … Section 31 has been expressed in the widest terms. In my judgment, an instrument can be void or voidable even against persons who are not directly parties to it. Where, as here, one of the members of a family or co-sharers of a property purports to transfer the whole of the rights in a property belonging to a family or to a body of persons, the other members and persons having a right, title or interest in that property are clearly persons against whom such a transaction would be void or voidable, even though they may not be parties to it. That being so, on the instrument being adjudged void, the Court may, in its discretion, order the instrument to be cancelled. In B. Rajgorhia v. Central Bank of India reported in (1972) 76 Cal WN 807 (858) it has been held that this section is available to a person affected by an instrument even though he may not be a party to the instrument. To the same effect are the decisions reported in (1948) 52 Cal WN 389 (392) and AIR 1934 All 1071 (1072).”

It Is Logically Impossible For A Person Not A Party To Ask For Its Cancellation

It is said in Hussain Ahmed Choudhury v. Habibur Rahman, 23 April, 2025, 2025 INSC 553, as under:

  • “33. In fact, it is logically impossible for a person who is not a party to a document or to a decree to ask for its cancellation. This is clearly explained by Wadsworth, J., in the decision rendered in Vellayya Konar v. Ramaswami, 1939 SCC OnLine Mad 149, (1939) 2 MLJ 400, AIR 1939 Mad 894, thus:
  • “When, the plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void ‘in toto’, and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he Is not in a position to get that decree or that deed cancelled ‘in toto’. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy therefore in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore sue for such a declaration and not for the cancellation of the decree or deed.”
  • 34. Therefore, filing a suit for cancellation of a sale deed and seeking a declaration that a particular document is inoperative as against the plaintiff are two distinct, separate suits. The plaintiff in the present case, not being the executant of the sale deed dated 05.05.1997 executed in favour of the respondent no. 1, was therefore, not obligated to sue for its cancellation under Section 31 of the Act, 1963. The question that remains is whether the plaintiff ought to have sought for a declaration that the sale deed dated 05.05.1997 was inoperative in so far as he is concerned or is not binding on him.”

Declaration Of Title Is As Good As A Relief Of Cancellation Of The Sale Deed

In Hussain Ahmed Choudhury v. Habibur Rahman, 23 April, 2025, 2025 INSC 553, it is held further as under:

  • “36. Therefore, the High Court having concurred with the Courts below on the legality and validity of the Gift Deed should not have dismissed the suit only on the ground that the plaintiff failed to pray for cancellation of the sale deed. The High Court should have kept the settled position of law in mind that the declaration of title is as good as a relief of cancellation of the sale deed or at least, a declaration that the sale deed is not binding on the plaintiff being void and thus non est.”

Proper Reliefs Can Be Granted, Though Not Directly Or Specifically Claimed

In Hussain Ahmed Choudhury v. Habibur Rahman, 23 April, 2025, 2025 INSC 553, it is held further as under:

  • “37. Furthermore, it is a well-known and settled principle of law that the plaint must be read as a whole and the actual relief sought can also be culled out from the averments of the plaint. Those reliefs can be granted, if there is evidence and circumstances justifying the grant of such relief, though not directly or specifically claimed, or asked as a relief. The plaintiff had averred in his plaint that the original defendant nos. 1 to 6 had no title or saleable rights over the suit property. This reflects the intention of the plaintiff to not be bound by any instrument which they may have executed in favour of another party.
  • 38. Courts have ample inherent powers and indeed it is their duty to shape their declaration in such a way that they may operate to afford the relief which the justice of the case requires. Section 34 of the Act, 1963 is not exhaustive of the cases in which a declaratory decree may be made and the courts have power to grant such a decree independently of the requirements of the Section. Section 34 merely gives statutory recognition to a well-recognised type of declaratory relief and subjects it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of courts to give declarations of right in appropriate cases falling outside Section 34. The circumstances in which a declaratory decree under Section 34 should be awarded is a matter of discretion depending upon the facts of each case. [See: Supreme General Films Exchange Ltd. v. His Highness Maharaja Sir Brijnath Singhji Deo of Maihar and Ors., reported in (1975) 2 SCC 530]”

Partial or Complete Cancellation

In a proper case it may be possible to cancel a part of the document. But, if it is an indivisible agreement such bifurcation is not possible. It is held in Laxmanlal K. Pandit v. Mulshankar Pitambardas, (1908) 10 BomLR 553 7, as under:

  • “Finally, it was urged that even if part of the consideration for the rent note failed, yet part of it should be held not to fail, and to the extent of the part held good relief should be allowed to the plaintiff in this suit. It is, however, clear to us that the agreement was an indivisible agreement. Part of a single consideration for one object was unlawful, and therefore the whole agreement is void under Section 24 of the Contract Act. As was said by Mr. Justice Chitty in Baker v. Hedgecock (1888) 39 Ch. D. 520 it is not possible for the Court to “create or carve out a new covenant for the sake of validating an instrument which would otherwise be void.” The suit is a suit for rent, and is based upon a rent note which is void.”

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