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Res Judicata and Appeal: No Res Judicata on Adverse Findings, in a Favourable Decree

Saji Koduvath, Advocate, Kottayam

Abstract

There will be no res judicata on adverse findings if the suit or appeal is ultimately decided in favour of a party.  Because an appeal lies against a decree in terms of Section 96 of the Code (State of Andhra Pradesh v. B. Ranga Reddy, 2020-15 SCC 681), and not merely against findings.

No Res judicata if Appeal could not have been filed

In State of Andhra Pradesh v. B. Ranga Reddy, 2020-15 SCC 681, it is held as under:

  • The defendants-State could not file an appeal against a decree which was of a dismissal of a suit simpliciter. The findings on Issue No. 1 against the State could be challenged by way of cross-objections in terms of amended provisions of Order XLI Rule 22 of the Code but such filing of cross-objections is not necessary to dispute the findings recorded on Issue No. 1 as the defendants have a right to support the ultimate decree passed by the trial court of dismissal of suit on grounds other than which weighed with the learned trial court. Even in terms of Order XLI Rule 33 of the Code, the Appellate Court has the jurisdiction to pass any order which ought to have been passed or made in proceedings before it.

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

  • “48. Last but not the least reason to hold that the finding in the Vattipanam Suit recorded by the High Court in its original judgment on canon etc. could not operate as res judicata is where a decree is one of dismissal in favour of the defendants, but there is an adverse finding against him, a plea of res judicata cannot be founded upon that decision because the defendant having succeeded on the other plea had no occasion to go further in appeal against the adverse finding recorded against him [see Midnapur Zamindari Company Ltd. vs. Naresh Narayan Roy, AIR 1922 PC 241 ] …..
  • Similarly, in the decision of the Patna High Court in Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1 the primary question was whether a party against whom a finding is recorded has got a right of appeal even though the ultimate decision was in his favour and it was held that there was no bar, but what was necessary was that the finding so recorded should operate as res judicata. On facts it was found that the Appellate Court while maintaining the order of dismissal of the suit on preliminary issue recorded findings on other issues which were against the plaintiff, yet the plaintiff was not entitled to file an appeal as the findings on merits which were adverse to him could not operate as res judicata.
  • In Sham Nath’s case (Sham Nath Madan vs. Mohammad Abdullah, AIR 1967 J&K 85) the learned Single Judge rejected the plea of res judicata raised on behalf of the plaintiff, but while considering the alternative argument, observed that an adverse finding recorded against a defendant in a suit dismissed could not operate as res judicata unless the adverse finding formed a fundamental part of the decree itself.”

In Ravinder Kumar Sharma v. State of Assam, AIR 1999 SC 3571, the Supreme Court held as under:

  • “23. The respondents before us are, therefore, entitled to contend that the finding of the High Court in regard to absence of reasonable and probable cause or malice – (upon which the decree for pecuniary damages in B and C Schedules was based) can be attacked by the respondents for the purpose of sustaining the decree of the High Court refusing to pass a decree for non-pecuniary damages as per the A Schedule. The filing of cross-objections against the adverse finding was not obligatory. There is no res judicata. …” (Quoted in: Mohammed v. Chandrika, ILR 2010-3 Ker  358; 2010-3 KHC 233;  2010-3 KLT 306)

In Balu Mahadeo Randhir v. Nabilal Haji Habib Gadiwale, 1997-2 BomCR 462; 1997-1 MhLJ 302, it is oheld as under:

  • “Where a suit is dismissed, the defendant against whom an adverse finding might have come to be recorded on some issue has no right of appeal and he canot question those findings before the Appellate Court. Inasmuch as the defendant could not have filed an appeal, the decision in the aforesaid Regular Civil Suit No. 298 of 1971 cannot act as res judicata…”

In Bakerbag Subhanbeg Vs. Shrikant Laxminarayan Zanwar: 2008-3 All MR 656 it is pointed out that an appeal would lie against only those findings that amount to a ‘decree’ or ‘order’ that falls under Section 96 or Section 100 CPC. Similarly, no appeal lies against an Order under Section 104 read with Order 43, Rule 1. In Bakerbag Subhanbeg earlier decisions were referred to in detail. It includes the following:

  • Midanpur Zamindari Co. v. Naresh Narayan Roy, AIR 1922 PC 241; 
    Run Bahadur Singh v. Lucnokoer,  ILR (1885)11 Cal 301 (PC); 
    Pateswari Din v. Mahant Sarjudass, AIR 1938 Oudh 18;
    Bansi Lal Ratwa v. Laxminarayan, 1969-2 AWR 246,
    Arjun Singh v. Tara Das Ghosh, AIR 1974 Pat 1.

Res Judicata: The issue should have been necessary to be decided

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

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

It is the appellate decision that operates as res judicata

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, continued as under:

  • “When a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata.”

Appeal dismissed on limitation; Trial Court decision on merits ceases to be final

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, further continued as under:

  • “Where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality.
  • In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed.”  (The apex Court also referred to Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV. )
  • “58. The rationale of these decisions is founded on the principle that if the suit was disposed of in appeal not on merits but for want of jurisdiction or for being barred by time or for being defectively constituted then the finality of the findings recorded by the Trial Court on merits stands destroyed as the suit having been found to be bad for technical reasons it becomes operative from the date the decision was given by the trial court thus rendering any adjudication on merits impliedly unnecessary. “

Finding in Review Sustains; Other Earlier Findings Not Res Judicate

PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, proceeded further as under:

  • “58. …. On the same rationale, once the Royal Court of Appeal allowed the Review Petition and dismissed the appeal as the ex-communication of Dionysius was contrary to principles of natural justice and he had not become heretic then the finding on authenticity of the canon etc. rendered in the original order was rendered unnecessary. Therefore, the finding recorded on the authenticity of the canon and power of the Patriarch etc. recorded in the earlier order could not operate as res judicate in subsequent proceedings.”

No Res Judicata on a Finding on Title, in an Injunction Suit and in Probate Action

An incidental finding will not constitute res judicata.

In Sajjadanashin Sayed v. Musa Dadabhai Ummer, (2000) 3 SCC 350, it is observed as under:

  • “24. Before parting with this point, we would like to refer to two more rulings. In Sulochana Amma v. Narayanan Nair [(1994) 2 SCC 14] this Court held that a finding as to title given in an earlier injunction suit would be res judicata in a subsequent suit on title. On the other hand, the Madras High Court, in Vanagiri Sri Selliamman Ayyanar Uthira-soma-sundareswarar Temple v. Rajanga Asari [AIR 1965 Mad 355 : ILR (1965) 1 Mad 232] held (see para 8 therein) that the previous suit was only for injunction relating to the crops. Maybe, the question of title was decided, though not raised in the plaint. In the latter suit on title, the finding in the earlier suit on title would not be res judicata as the earlier suit was concerned only with a possessory right. These two decisions, in our opinion, cannot be treated as being contrary to each other but should be understood in the context of the tests referred to above. Each of them can perhaps be treated as correct if they are understood in the light of the tests stated above. In the first case decided by this Court, it is to be assumed that the tests above-referred to were satisfied for holding that the finding as to possession was substantially rested on title upon which a finding was felt necessary and in the latter case decided by the Madras High Court, it must be assumed that the tests were not satisfied. As stated in Mulla, it all depends on the facts of each case and whether the finding as to title was treated as necessary for grant of an injunction in the earlier suit and was also the substantive basis for grant of injunction. In this context, we may refer to Corpus Juris Secundum (Vol. 50, para 735, p. 229) where a similar aspect in regard to findings on possession and incidental findings on title were dealt with. It is stated:
  • “Where title to property is the basis of the right of possession, a decision on the question of possession is res judicata on the question of title to the extent that adjudication of title was essential to the judgment; but where the question of the right to possession was the only issue actually or necessarily involved, the judgment is not conclusive on the question of ownership or title.””
  • (Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

The Apex Court (Sulochana Amma Vs. Narayanan Nair, (1994) 2 SCC 14) also pointed out as under:

  • “The decision in earlier case on the issue between the same parties or persons under whom they claim title or litigating under the same title, it operates as a res-judicata. A plea decided even in a suit for injunction touching title between the same parties, would operate as res-judicata. It is a settled law that in a Suit for injunction when title is in issue, for the purpose of granting injunction, the issue directly and substantially arises in that suit between the parties when the same is put in issue in a later suit based on title between the same parties or their privies in a subsequent suit, the decree in injunction suit equally operates as a res-judicata.”

In the locus classicus, Anathula Sudhakar Vs. P. Buchi Reddy, AIR 2008 SC 2033, the Supreme Court held that where the issue of title involves complicated or complex questions of fact and law, or where court feels that parties had not proceeded on the basis that title was at issue, the court should not decide the issue of title in a suit for injunction. It is clear that findings of title in such suits are redundant so far as res judicata is concerned, the Court proceeded to hold as under:

  • “21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
  • (a) Where a cloud is raised over the plaintiff’s title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff’s title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff’s lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
  • (b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases where de jure possession has to be established on the basis of title to the property, as in the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
  • (c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific, or implied as noticed in Annaimuthu Thevar [Annaimuthu Thevar v. Alagammal, (2005) 6 SCC 202] ). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
  • (d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously or wrongfully makes a claim or tries to encroach upon his property. The court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case.”
  • (Quoted and followed in: M.S. Ananthamurthy v. J. Manjula, Neutral Citation: 2025 INSC 273; 27.02.2025)

(Both, Sulochana Amma and Anathula Sudhakar are referred to in T. Ravi Vs. B. Chinna Narasimha, 2017-7 SCC 342)

In Hem Nolini Judah v. Isolync Saroibashini Bose, AIR 1962 (SC) 1471, it was held that questions of title are not decided in proceedings for the grant of probate or letters of administration.

Appellate Decision Operates As Res Judicata

Decree of a lower court merges with the decree of the appellate court. Hence appellate decree is to be looked into to determine res judicata. In PMA Metripolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is observed as under:

  • “If the ex-communication of Dionysius was invalid for violation of principles of natural justice, as was found by the Bench reviewing the order, then the findings on earlier issues were rendered unnecessary and it is fairly settled that the finding on an issue in the earlier suit to operate as res judicata should not have been only directly and substantially in issue but it should have been necessary to be decided as well. For instance, when a decision is taken in appeal the rule is that it is the appellate decision and not the decision of the Trial Court that operates as res judicata. Consequently where a suit is decided both on merits and on technical grounds by the Trial Court, and the appellate court maintains it on technical ground of limitation or suit being not properly constituted then the decision rendered on merits by the Trial Court ceases to have finality. In Abdullah Ashgar Ali Khan v. Ganesh Dass AIR 1917 PC 201 the Court while considering the expression, `heard and finally decided’ in Section 10 of the British Baluchistan Regulation IX of 1896 held that where the suit was dismissed by two courts on merits but the decree was maintained in second appeal because the suit was not properly constituted then the finality on merits stood destroyed. In Sheosagar Singh & Ors. v. Sitaram Singh ILR 1897 Cal. Vol. XXIV where parentage of defendant was decided in his favour by the Trial Court but the High Court maintained the order as the suit was defective the claim of the defendant in the latter suit that the finding on parentage operated as res judicata was repelled and it was held, that the question of parentage had not been heard and finally decided in the suit of 1885. The appeal in that suit had put an end to any finality in the decision of the first Court, and had not led to a decision on the merits.”

Res Judicata on Ex Parte Decree

An ex-parte decree might also will constitute res judicata if the defendant  had express notice of the pleadings and the prayer that a particular issue or matter would be decided.

  • (State of UP v. Jagdish Saran Agrawal: AIR  2008 SC 817;
  • Raj Lakshmi Dasi v. Banamali Sen – AIR 1953 SC 33;
  • Ram Gobinda Dawan v. Bhaktabala – AIR 1971 SC 664;
  • Pandurang v. Shantabai – AIR 1989 SC 2240;
  • Thiruvengadam Mammad v. Chathamkara Ammad – AIR 1929 Madras 89;   
  • H.R  C.E. Commissioner v. V. Krishnaswami – AIR 1975 Madras 167).

Whether a Consent/Compromise Decree Operates as Res judicata

In Pulavarthi Venkata Subbarao v. Valluri Jagannadha Rao, AIR 1967 SC 591, the Supreme Court observed as under:

  • “….A compromise decree is not a decision by the Court. It is acceptance by the Court of something to which the parties had agreed. The decree merely sets the seal of the Court on the agreement of the parties. The Court does not decide anything. Nor can it be said that the decision of the Court was implicit in it. Only that decision by the Court can be res judicata where the case has been heard and decided on merit . … the statutory prohibition under Sec. 11 of the code of civil procedure or that of constructive res judicata would apply as a matter of public policy ….. Such a decree cannot strictly be regarded as a decision on the matter which was heard and finally decided, and cannot operate as res judicata. ..”. 
  • See also: Daryao v. State of UP, 1962- I SCR 574;
  • Vidya Sagar v. Sudesh Kumari, 1976-1 SCC 115;
  • Jamia Masjid v. K. V.  Rudrappa, AIR 2021 SC 4523; 2022-9 SCC 225.

It is held in Baldevdas Shivlal v. Filmistan Distributors (I) P. Ltd., AIR 1970 SC 406, that ‘a matter in contest in a suit may operate as res judicata only if there is an adjudication by the Court’. 

Ratio Decidendi is the Binding Precedent; Not  Findings on Facts or Issues

In Jagdish Prasad v. State of MP, 2004(4) MPLJ 537, it was held by the Supreme Court as under:

  • “Any observation made or relief given by a Court, out of sympathy, compassion, sentiments and not based on any discernible principle of law or de hors the merits of the case, cannot be a binding precedent. A judgment of a Court contains three parts :
    • (i) finding of facts;
    • (ii) statement of principle of law applicable to the legal problem raised on the facts, based on which the case is decided; and
    • (iii) decision which is based on the finding of fact, applicable principles of law, and in some cases, discretion and the need to mould the relief in a particular manner.
  • Out of the three parts, it is only the second part, that is ratio decidendi or statement of law applied and acted upon by the Court, that is a binding precedent. Neither the findings on facts nor the ultimate decision, that is, the relief given or the manner adopted to dispose of the case, is a precedent.” (Quoted in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282)

In A-One Granites v. State of U.P. [(2001)3 SCC 537], the Supreme Court observed that where no consideration was given to the question, the decision cannot be said to be binding; and precedents sub silentio and without arguments are of no moment. (Referred to in: Satpura Narmada Kshetriya Gramin Bank, Chhindwara v. A. K.  Chaturvedi, 2012-1 JLJ 78; 2012-1 MPLJ 282.)

Res Judicata Binds Parties; Ratio Decidendi (as Binding Precedent) Binds Courts

In The Modern English Legal System (4th Edition) by Smith, Bailey and Gunn (Sweet & Maxwell, 2002), pages 518-519, says as under:

  • “…. Thus the Court’s order is binding on the parties under the res judicata doctrine; the ratio decidendi is binding on other Courts in accordance with the principles outlined above under the doctrine of binding precedent. A startling illustration of the distinction was provided by the following series of cases. A testator, John Arkle Waring, left annuities to Mr. Howard and Mrs. Louie Burton-Butler ‘free of income tax’. In 1942 the Court of Appeal in Re warning, Westminster Bank Ltd. v. Awdry : (1942) Ch. 426 on an appeal in which Howard was a party, held that income tax had to be deducted. Louie was not a party as she was in an enemy occupied country. Leave to appeal to the House of Lords was refused. Four years later the House of Lords in Berke¬ley v. Berkeley : (1946) A.C. 555 overruled the Awdry case. Subsequently, Jenkins J. held that the Awdry case was res judica¬ta so far as Howard was concerned notwithstanding that its ratio had been overruled in Berkeley v. Berkeley and that Louie’s annuity would be dealt with in accordance with the later case. (See Re Warning, Westminster Bank v. Burton-Butler : (1948) Ch. 221).”
  • (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

Spencer Bower, Turner and Handley’s Commentary on the Doctrine of res judicata (Butterworths: London, Edinburgh, Dublin – 1996, pages 8 and 9), explains the concept of res judicata as under:

  • “There is an essential difference between res judicata estoppel and the doctrine of judicial precedent. Under the former a final decision in fact or law by any Court having jurisdiction precludes either party (except on appeal) from again raising the same issue against the other in any Court. The doctrine of judicial precedent, on the other hand, is not concerned with issues between parties. …
  • The difference is illustrated by the cases of Re Waring decided in 1942 and 1948. In the first Farwell J held that Section 25 of the Finance Act 1941 was not applicable (1942) Ch. 309 to an annuity; but the Court of Appeal reversed this decision. (1942) Ch. 426. The effect was two-fold; it decided as res judicata between the parties that Section 25 applied, and it bound Courts up to the Court of Appeal in other cases. In Berkeley v. Bekeley (1946) AC 555, the House of Lords overruled Re Waring. In 1948 the trustees sought a decision as between themselves and the annuitant who had not been joined in the first proceedings. (1948) Ch. 221. The other annuitant remained bound by the earlier decision, but the result (see Duke of Bedford v. Elliz : (1901) AC 1 at 8), was otherwise governed by Berkeley v. Berkeley: Gisborne Sheepfarmers’ Mercantile Co. Ltd. v. IRC : (1962) NZLR 810 at 814.” (Quoted in: Kalinga Mining Corporation v. Union of India (AK Ganguly, CJ, then) 2007-104 CLT 737, Ori)

In State of M.P. v. Mulam Chandi, AIR 1973 MP293, it has been held as under:

  • “As between a decision which operates a s res judicata and a decision which is binding as a precedent but not res judicata, the former must prevail.”

Interpretation of a Document can Be A Binding Judicial Precedent

In Sahu Madho Dass v. Mukand Ram, 1955 AIR SC 481, it was observed out as under:

  • “Mukand Ram was not a party to that litigation and the decision does not bind him but it operates as a judicial precedent about the construction of that document, a precedent with which we respectfully agree.”
  • (Referred to in: Syed Hafiz Mir v. Abdul Nayeemkhan, AIR 1960  MP 50; Potluri Saraswathi v. Vallabhaneni Veerabhadra Rao, 2004-7 ALT 120; Harabati v. Jasodhara Debi, AIR 1977  Ori  143; Ramachandra Bhat v. Srideviamma, AIR 1976 Kar 217; Katragadda China Anjaneyulu v. Kattragadda China Ramayya, 1965  AIR AP 177.)

In R. V. Bhupal Prasad v. Saleha Begum, 2002 Supp2 ALD 735; 2001-5 ALT 770, it is pointed out that in Anjaneyulu v. Ramaiah, 1965-1 ALT 149, a Full Bench of the Andhra High Court held that interpretation of a material document in a prior proceeding between the same parties even if does not operate as res judicata would be a binding judicial precedent in a subsequent proceeding between the parties based on that document.

Even an erroneous decision operates as Res Judicata

In Bindeswari v. Bageshwari, AIR 1936 PC 46, it was held as under:

  • “Where the decision of the Court in a previous suit determined that the section had never applied to a transaction, a Court in a new suit between the same parties with regard to the same transaction cannot try a new the issue as to its applicability in face of the express prohibition in Section 11 of the Code. “

In Mohanlal Goenka v. Benoy Kishna, AIR 1953 SC 65 it was laid down  as under:

  • “(23) There is ample authority for the proposition that even an erroneous decision on a question of law operates as res judicata between the parties to it. The correctness or otherwise of a judicial decision has no bearing upon the question whether or not it operates as res judicata. A decision in the previous execution case between the parties that the matter was not within the competence of the executing court even though erroneous is binding on the parties; see Abhoy Kanta Gohain v. Gopinath Deb Goswami AIR 1943 Cal. 460.”

Erroneous decision on a Question of Law does not Operate as Res Judicata

In Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228, (relying on S.P.A. Annamalay Chetty v. B.A. Thornhill AIR 1931 PC 263) it is held as under:

  • “An erroneous judgment on a question of law, which sanctions something that is illegal, also cannot be allowed to operate as res judicata.”

In Allahabad Development Authority v. Nasiruzzaman, (1996) 6 SCC 424, it is held that when the previous decision was found to be erroneous on its face, such judgment cannot operate as res judicata (referred to in: Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228).

In Shakuntla Devi v. Kamla, (2005) 5 SCC 390, it is held that in view of the changed position in law consequent to a contrary interpretation put on Section 14 of the Hindu Succession Act, 1956 by V. Tulasamma v. V. Sesha Reddy, (1977) 3 SCC 99, the earlier decree based on judgments that were overruled cannot operate as res judicata (referred to in: Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228).

In Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228it is held – Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata

Erroneous decision on Jurisdiction of Court – Not Operate as Res Judicata

In Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613, it is observed as under:

  • “9. A question of jurisdiction of the Court, or of procedure, or a pure question of law unrelated to the right of the parties to a previous suit, is not res judicata in the subsequent suit. Rankin, C.J., observed in Tarini Charan Bhattacharjee’s case:
    • “The object of the doctrine of res judicata is not to fasten upon parties special principles of law as applicable to them inter se, but to ascertain their rights and the facts upon which these rights directly and substantially depend; and to prevent this ascertainment from becoming nugatory by precluding the parties from reopening or recontesting that which has been finally decided.”
  • 10. A question relating to the jurisdiction of a Court cannot be deemed to have been finally determined by an erroneous decision of the Court. If by an erroneous interpretation of the statute the Court holds that it has no jurisdiction, the question would not, in our judgment, operate as res judicata. Similarly by an erroneous decision if the Court assumes jurisdiction which it does not possess under the statute, the question cannot operate as res judicata between the same parties, whether the cause of action in the subsequent litigation is the same or otherwise.
  • 11. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness or otherwise of the earlier judgment. The matter in issue, if it is one purely of fact, decided in the earlier proceeding by a competent Court must in a subsequent litigation between the same parties be regarded as finally decided and cannot be reopened. A mixed question of law and fact determined in the earlier proceeding between the same parties may not, for the same reason, be questioned in a subsequent proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties where the cause of action is the same, for the expression “the matter in issue” in Section 11 of the Code of Civil Procedure means the right litigated between the parties i.e. the facts on which the right is claimed or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.” (Quoted in: Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228)

In Canara Bank v. N. G. Subbaraya Setty, AIR 2018 SC3395; 2018-16 SCC 228, it is pointed out that Mathura Prasad Bajoo Jaiswal v. Dossibai N. B. Jeejeebhoy, (1970) 1 SCC 613, has been followed in a number of cases. In Sushil Kumar Mehta v. Gobind Ram Bohra, (1990) 1 SCC 193, following Mathura Prasad Bajoo Jaiswal, it is held that where there is an inherent lack of jurisdiction, which depends upon a wrong decision, the earlier wrong decision cannot be res judicata. In Isabella Johnson (Smt.) v. M.A. Susai (1991) 1 SCC 494, after setting out the law contained in Mathura Prasad, stated that a Court which has no jurisdiction in law cannot be conferred with jurisdiction by applying the principle of res judicata, as it is well settled that there is no estoppel on a pure question of law which relates to jurisdiction.

No Binding Precedent if relevant statutory provision was Not considered

In Union of India v. Maniklal Banerjee, AIR 2006 SC 2844, the Apex Court has held as under:

  • “It is now well-settled that if a decision has been rendered without taking into account the statutory provision, the same cannot be considered to be a binding precedent. This Court, in Pritam Singh, while exercising its discretionary jurisdiction, might have refused to interfere with the decision. The same, therefore, did not constitute any binding precedent.” (Referred to in: Hameeda Begum v. Champa Bai Jain (Arun Misra, J.), ILR 2009 MP 2328; 2009-3 MPLJ 472)

Arun Misra, J., referred to the House of Lords’ decision in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472, and said as under:

  • “(35) Another decision relied upon is rendered by the House of Lords in Watt vs. Ahsan (2007) UKHL 51. In the aforesaid case, question arose on Section 12 of the Race Relations Act, 1976. The submission was made that they were party and that All vs. Mcdonagh (2002) ICR 1026 was wrongly decided. In any case, the interpretation given to Section 12 by the EAT in Sawyer v. Ahsan (2000) ICR 1 is res judicata between him and the Labour Party, not only for the purposes of his first complaint but for the other two as well. It was opined that the EAT was wrong in Sawyer vs. Ahsan (2000) ICR 1 to hold that the Labour Party was a qualifying body, but there was no appeal against the decision of EAT , it was held that decision was binding upon the parties though wrong in law. When the Tribunal was-having the jurisdiction to decide the question, it is binding upon the parties though erroneous.
  • There is no dispute with the aforesaid proposition, but here we are concerned with the fresh cause of action on which suit is based and previously relevant statutory provision of Section 111 (d) of TP Act was not taken into consideration, question of determination of tenancy was also not decided.”

Exceptions to the Rule of Res Judicata

Arun Misra, J., pointed out as regards Rule of Res Judicata, in Hameeda Begum v. Champa Bai Jain, ILR 2009 MP 2328; 2009-3 MPLJ 472 (referring to State of MP. v. Mulamchand 1973 MPLJ 832), as under:

  • ( 36 ) …. The rule admits of certain exceptions.
    • One is that where the decision relates to the jurisdiction of the Court to try the earlier proceeding, it will not operate as res judicata if in the subsequent suit it is found to be erroneous because the question of jurisdiction is unrelated to rights claimed by one party and denied by other.
    • Another exception is where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same parties.
    • Third exception is that a decision of a Court sanctioning something which is illegal does not operate as res judicata, and a party affected by the decision is not precluded from challenging its validity.
  • In the instant case, the earlier decisions rendered by this Court were not on the question of law of merger of tenancy into co-ownership and section 111 (d) of the TP Act was not considered, thus, it cannot be said to be operating as res judicata in the present suit based on fresh cause of action of ejectment of tenant and title. Tenant has protection under Rent Act, he can be evicted only on availability of ground under Section 12 of the Act. It is a question pertaining to jurisdiction to evict. There is no finding of fact which is coming in the way in the instant suit. The main question is that of the status of the defendants and beyond iota of doubt, they are tenants and tenancy is not determined by the fact that only portion of the property had been purchased by one of the heirs of the original tenant.”

Whether O. I, r. 8 Decree is Res Judicata 

Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity for the benefit of a class of (numerous) persons.

Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy.  In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.

Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee)  parties (and hence not res judicata and not enforceable in execution)  does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:

  • Sahib Thampi v. Hamid, 36 Mad. 414
  • Walker v. Sur, 1914-2 KB 930
  • Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
  • Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281

It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because,  all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:

  • Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
  • Abdulla v. Parshotam Singh, AIR  1935 Lah 33
  • Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623

Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar Vs. Velandi Goundar, AIR 1955 Mad 281, the Kerala High Court has in Narayanan V. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.

See Blog: Decree in OI R8 CPC-Suit & Eo-Nomine Parties

Res Judicata, Order II Rule 2 Bar and Sec. 10 CPC

Sec. 11 CPC and Order II rule 2 CPC bar suit/relief. But, Sec. 10 CPC bars trial only. Because:

  • Sec. 11 CPC (Res Judicata) begins as – “No Court shall try any suit or issue”.
  • Order II Rule 2 bars to – “sue for any relief omitted“.
  • Sec. 10 CPC (Res sub judice – Latin: ‘under judgment’) begins as – “No Court shall proceed with the trial of any suit“.

See Blog: Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action

Change of Law and Res judicata

When the law has been changed, subsequent to a decision rendered by a Court, it is held in Alimunnissa Chowdharani v. Shyam Charan Roy, 1905-1 CLJ 176, that the earlier decision would not operate as res judicata.

In Mathura Prasad Bajoo Jaiswal v. Dossibai N.B. Jeejeebhoy, 1970-1 SCC 613, it is observed that when the law has undergone a change, there would be no question of res judicata or constructive res judicata. It is observed as under:

  • “5. But the doctrine of res judicata belongs to the domain of procedure: it cannot be exalted to the status of a legislative direction between the parties so as to determine the question relating to the interpretation of enactment affecting the jurisdiction of a Court finally between them, even though no question of fact or mixed question of law and fact and relating to the right in dispute between the parties has been determined thereby. A decision of a competent Court on a matter in issue may be res judicata in another proceeding between the same parties: the “matter in issue” may be an issue of fact, an issue of law, or one of mixed law and fact. An issue of fact or an issue of mixed law and fact decided by a competent court is finally determined between the parties and cannot be reopened between them in another proceeding. The previous decision on a matter in issue alone is res judicata: the reasons for the decision are not res judicata. A matter in issue between the parties is the right claimed by one party and denied by the other, and the claim of right from its very nature depends upon proof of facts and application of the relevant law thereto. A pure question of law unrelated to facts which give rise to a right, cannot be deemed to be a matter in issue. When it is said that a previous decision is res judicata, it is meant that the right claimed has been adjudicated upon and cannot again be placed in contest between the same parties. A previous decision of a competent Court on facts which are the foundation of the right and the relevant law applicable to the determination of the transaction which is the foundation of the right and the relevant law applicable to the determination of the transactions which is the soured of the right is res judicata. A previous decision on a matter in issue is a composite decision: the decision of law cannot be dissociated from the decision on facts on which the right is founded. A decision on an issue of law will be as res judicata in a subsequent proceeding between the same parties, if the cause of action of the subsequent proceeding be the same as in the previous proceeding, but not when the cause of action is different, nor when the law has since the earlier decision been altered by a competent authority, nor when the decision relates to the jurisdiction of the Court to try the earlier proceeding, nor when the earlier decision declares valid a transaction which is prohibited by law. …….
  • 7. Where the law is altered since the earlier decision, the earlier decision will not operate as res judicata between the same, parties: Tarini Charan Bhattacharjee’s case. It is obvious that the matter in issue in a subsequent proceeding is not the same as in the previous proceeding, because the law interpreted is different.”

Can res judicata be raised as a preliminary point/issue

The Kerala High Court in V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840 it is held as under:

  • “The question of res judicata can be raised as a preliminary point in certain circumstances. Sub-rule (2) of Rule 2 of Order XIV of the CPC states that where issues, both of law and of fact, arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to: (a) the jurisdiction of the Court, or (b) a bar to the suit created by law for the time being in force. The said sub-rule also provides that the Court may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue. In ML Sethi v. RP Kapur, AIR 1972 SC 2379, it was held that it is well settled that a plea of res judicata is a plea of law which concerns the jurisdiction of the court and a finding on the plea in favour of the party raising it would oust the jurisdiction of the court. If the question of res judicata can be decided without reference to the disputed questions of fact and without the necessity of there being any evidence to be adduced, the Court would be justified in dealing with the said contention as a preliminary issue. However, if the Court finds that disputed questions of fact are involved or that the plea of res judicata is a mixed question of law and fact, the Court is not bound to decide the said question as a preliminary issue.”

Effect of failure to raise bar of res judicata as a preliminary issue

In V. Narayana Bhakthan v. The President, Anantha Narayanapuram, 2008-3 Ker LT 840, it is held, further as under:

  • Even if a party, who is entitled to request the court to consider the contention of res judicata as a preliminary issue, fails to make a request in that behalf at the appropriate time, that does not operate as a bar for him to raise the contention of res judicata at the final stage of the suit. Such a contention would not be barred by res judicata by his not requesting the same to be considered as a preliminary issue. On the other hand, if such a question is raised as a preliminary issue and a decision is rendered against the party raising it, he would be precluded at a later stage of the same proceeding from raising the very same contention that the suit is barred by res judicata except by challenging the final decision in Appeal.”

S. Nagaraj (dead) by LRs. VS B. R. Vasudeva Murthy, 08 Feb 2010
2010 2 AIR(Kar)(R) 274; 2010 Supp AIR(SC) 551; 2010 0 AIR(SCW) 1519; 2010 2 JT 185; 2010 3 KarLJ 513; 2010 Supp1 KLT 95; 2010 2 Scale 232; 2010 3 SCC 353; 2010 1 SCC(Civ) 695; 2010 4 SCJ 258; 2010 2 SCR 586; 2010 2 SLT 441; 2010 0 Supreme(SC) 140;

Correctness of the Finding has no bearing

Rankin, C.J. of the Calcutta High Court in Tarini Charan Bhattacharjee v. Kedar Nath Haldar,AIR 1928 Cal. 777 held as under:

  • “The question whether decision is correct or erroneous has no bearing upon the question whether it operates or does not operate as res judicata.”

Res Judicata in Writ Proceedings

Our Apex Court observed in State of Tamil Nadu v. State of Kerala, AIR 2014 SC 2407; 2014-12 SCC 696as under:

  • “156. The rule of res judicata is not merely a technical rule but it is based on high public policy. The rule embodies a principle of public policy, which in turn, is an essential part of the rule of law. In Duchess of Kingston; 2 Smith Lead Cas 13 Ed. Pp. 644, 645, the House of Lords (in the opinion of Sir William de Grey) has observed:
    • “From the variety of cases relative to judgments being given in evidence in civil suits, these two deductions seem to follow as generally true: first, that the judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea, a bar, or as evidence, conclusive, between the same parties, upon the same matter, directly in question in another court; secondly, that the judgment of a court of exclusive jurisdiction, directly upon the point, is, in like manner, conclusive upon the same matter, between the same parties, coming incidentally in question in another court, for a different purpose.”
  • 157. Corpus Juris explains that res judicata is a rule of universal law pervading every well-regulated system of jurisprudence, and is put upon two grounds, embodied in various maxims of the common law; the one, public policy and necessity, which makes it to the interest of the State that there should be an end to litigation; and the other, the hardship on the individual that he should be vexed twice for the same cause.
  • 158. In Sheoparsan Singh v. Ramnandan Prashad Narayan Singh; [AIR 1916 PC 78], Sir Lawrence Jenkins noted the statement of law declared by Lord Coke, ‘interest reipublica ut sit finis litium,’ otherwise great oppression might be done under colour and pretence of law. – (6 Coke, 9A.)
  • 159. In Daryao and Ors. v. State of U.P. and Ors.; [AIR 1961 SC 1457], P.B. Gajendragadkar, J. while explaining the rule of res judicata stated that on general considerations of public policy there seems to be no reason why rule of res judicata should be treated as inadmissible or irrelevant while dealing with the petitions filed under Article 32 of the Constitution. P.B. Gajendragadkar, J. referred to earlier decision of this Court in Pandit M.S.M. Sharma v. Dr. Shree Krishna Sinha and Ors.; [AIR 1960 SC 1186] wherein the application of the rule of res judicata to a petition filed under Article 32 was considered and it was observed that the question determined by the previous decision of this Court cannot be reopened and must govern the rights and obligations of the parties which are subsequently the same.
  • 160. In Gulab Chand Chhotalal Parikh v. State of Bombay; [(1965) 2 SCR 547], this Court stated that a decision in a writ petition is res judicata in a subsequent suit.
  • 161. In Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] the question whether the decision in a writ petition operates as res judicata in a subsequent suit filed on the same cause of action has been settled. In Nanak Singh, this court observed that there is no good reason to preclude decisions on matters in controversy in writ proceedings under Article 226 or Article 32 of the Constitution from operating as res judicata in subsequent regular suits on the same matters in controversy between the same parties and, thus, to give limited effect to the principle of finality of decision after full contest.
  • 162. Union of India v. Nanak Singh; [(1968) 2 SCR 887 : AIR 1968 SC 1370] has been followed by a three Judge Bench of this Court in State of Punjab v. Bua Das Kaushal; [ (1970) 3 SCC 656]. In our view, the rule of res judicata which is founded on public policy prevents not only a new decision in the subsequent suit but also prevents new investigation. It prevents the defendant from setting up a plea in a subsequent suit which was decided between the parties in the previous proceedings. The legal position with regard to rule of res judicata is fairly well-settled that the decision on a matter in controversy in writ proceeding (Article 226 or Article 32 of the Constitution) operates as res judicata in subsequent suit on the same matters in controversy between the same parties. For the applicability of rule of res judicata it is not necessary that the decision in the previous suit must be the decision in the suit so as to operate as res judicata in a subsequent suit. A decision in previous proceeding, like under Article 32 or Article 226 of the Constitution, which is not a suit, will be binding on the parties in the subsequent suit on the principle of res judicata.
  • 163. For the applicability of rule of res judicata, the important thing that must be seen is that the matter was directly and substantially in issue in the previous proceeding and a decision has been given by the Court on that issue. A decision on issue of fact in the previous proceeding – such proceeding may not be in the nature of suit – constitutes res judicata in the subsequent suit.
  • 164. In light of the above legal position, if the 2006 judgment is seen, it becomes apparent that after considering the contentions of the parties and examining the reports of Expert Committee, this Court posed the issue for determination about the safety of the dam to increase the water level to 142 ft. and came to a categorical finding that the dam was safe for raising the water level to 142 ft. and, accordingly, in the concluding paragraph the Court disposed of the writ petition and the connected matters by permitting the water level of Mullaperiyar dam being raised to 142 ft. and also permitted further strengthening of the dam as per the report of the Expert Committee appointed by the CWC. The review petition filed against the said decision was dismissed by this Court on 27.7.2006. The 2006 judgment having become final and binding, the issues decided in the said proceedings definitely operate as res judicata in the suit filed under Article 131 of the Constitution.
  • 165. Shri Harish Salve, learned senior counsel for Kerala, placed reliance upon the decision of this Court in N.D. Jayal and Anr. v. Union of India and Ors.; [(2004) 9 SCC 362]. In N.D. Jayal69 Dharmadhikari, J. made general observations on the dam safety aspect that plea like res judicata on the earlier decisions passed by the Supreme Court cannot be allowed to be raised. The observations made by Dharmadhikari, J. in N.D. Jayal have to be read as an exception to the res judicata rule in the matters where, by their very nature, the factual situation has drastically changed in course of time. If substantial changes in the circumstances occur and such circumstances are shown to the Court necessitating departure from the earlier finding on the issue of safety, the Court can be approached and in that event the Court itself may exercise its discretion to reopen the safety aspect having regard to the drastic change in circumstances or in emergent situation as to the safety of dam. In our view, a judicial decision, having achieved finality, becomes the last word and can be reopened in the changed circumstances by that Court alone and no one else.
  • 166. On behalf of Kerala, it is contended that the jurisdiction of this Court under Article 32 of the Constitution for enforcement of the fundamental rights conferred by Part III of the Constitution is ousted or excluded in respect of disputes between two or more States: since such disputes fall within the ambit of the original jurisdiction of this Court under Article 131 of the Constitution or jurisdiction of a tribunal constituted under the provisions of Inter-State River Water Disputes Act, 1956 read with the provisions of Article 262 of the Constitution. Thus, it was submitted that the 2006 judgment is not binding and that the rule of res judicata can hardly be attracted in this situation.
  • 167. We are unable to accept the submission of the learned senior counsel for Kerala. The label of jurisdiction exercised by this Court is not material for applicability of principles of res judicata if the matter in issue in the subsequent suit has already been concluded by the earlier decision of this Court between the same parties. The 2006 judgment was the result of judicial investigation, founded upon facts ascertained in the course of hearing. The plea of lack of jurisdiction of this Court was taken in the earlier proceedings on both the grounds, viz.,
  •        (1) whether the jurisdiction of this Court is barred in view of Article 262 read with Section 11 of the Inter-State River Water Disputes Act, 1956, and
  •        (2) whether Article 363 of the Constitution bars the jurisdiction of this Court. On both these questions the findings were recorded against Kerala. It is too much for Kerala to say that the 2006 judgment is without jurisdiction and not binding.
  • xxxxx
  • 169. Explanations VII and VIII were inserted in the above provision by Code of Civil Procedure (Amendment) Act, 1976 w.e.f. 1.2.1977. Explanation VIII in this regard is quite relevant. The principles of res judicata, thus, have been made applicable to cases which are tried by Courts of limited jurisdiction. The decisions of the Courts of limited jurisdiction, insofar as such decisions are within the competence of the Courts of limited jurisdiction, operate as res judicata in a subsequent suit, although, the Court of limited jurisdiction that decided the previous suit may not be competent to try such subsequent suit or the suit in which such question is subsequently raised. If a decision of the Court of limited jurisdiction, which was within its competence, operates as res judicata in a subsequent suit even when the subsequent suit is not triable by it, a fortiori, the decision of the highest Court of the land in whatever jurisdiction given on an issue which was directly raised, considered and decided must operate as res judicata in the subsequent suit triable exclusively by the highest Court under Article 131 of the Constitution. Any other view in this regard will be inconsistent with the high public policy and rule of law. The judgment of this Court directly upon the point, is as a plea, a bar, or as evidence, conclusive between the same parties, upon the same matter, directly in question before this Court, though, label of jurisdiction is different.
  • 170. The principles of res judicata are clearly attracted in the present case. The claim of Kerala in the earlier proceeding that water level cannot be raised from its present level of 136 ft. was expressly not accepted and the obstruction by Kerala to the water level in the Mullaperiyar dam being raised to 142 ft. on the ground of safety was found untenable. The judgment dated 27.2.2006 of this Court, thus, operates as res judicata in respect of the issue of safety of the dam by increasing its water level from 136 ft. to 142 ft.”

End Notes 1:

Sec. 11 Civil Procedure Code, 1908, reads as under:

  • Res Judicata -No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
  • Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
  • Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
  • Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
  • Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
  • Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
  • Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
  • Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
  • Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

End Notes 2:

A party cannot challenge the findings without filing a Cross-Appeal.

In Laxman Tatyaba Kankate v. Taramati Harishchandra Dhatrak [(2010) 7 SCC 717], the Supreme Court held that though a party is entitled to support the decree on other grounds, he cannot challenge the findings without filing a cross appeal.

Also see:

  • Union of India v. Vijay Krishna Uniyal, (2018)11 SCC 382. (referred to in Jagdish Chandra Gupta v. Madanlal,2019-2 JLJ 568; 2019 3 MPLJ 353)
  • Banarsi v. Ram Phal, (2003)9 SCC 606 (referred to in Jagdish Chandra Gupta v. Madanlal,2019-2 JLJ 568; 2019 3 MPLJ 353)
  • Hardevinder Singh v. Paramjit Singh, 2014(2) Mh.L.J. (S.C.) 126 (referred to in Indrakumar v. Atmaram, 2015-3 MhLJ 613)
  • Choudhary Sahu v. State of Bihar, AIR 1982 SC 98 (referred to in Indrakumar v. Atmaram, 2015-3 MhLJ 613)
  • Tummalla Atchaiah v. Venka Narasingarao, AIR 1978 SC 725 (referred to in Indrakumar v. Atmaram, 2015-3 MhLJ 613)
  • Hasanate Taheriyyah Fidayyiah vs. Mahesh, 2014(2) Mh.L.J. 884, (6) Surjansingh s/o Mohansingh v. Jasbir Kaur, 2008(2) Mh.L.J. 763.

End Notes 3:

No Modification of Decree if No Cross Appeal

In Banarsi v. Ram Phal, (2003)9 SCC 606, our Apex Court held as under:

  • “We are, therefore, of the opinion that in the absence of cross appeal preferred or cross objection taken by the plaintiff-respondent the First Appellate Court did not have jurisdiction to modify the decree in the manner in which it has done. Within the scope of appeals preferred by the appellants the First Appellate Court could have either allowed the appeals and dismissed the suit filed by the respondent in its entirety or could have deleted the latter part of the decree which granted the decree for specific performance conditional upon failure of the defendant to deposit the money in terms of the decree or could have maintained the decree as it was passed by dismissing the appeals. What the First Appellate Court has done is not only to set aside the decree to the extent to which it was in favour of the appellants but also granted an absolute and out and out decree for specific performance of agreement to sell which is to the prejudice of the appellants and to the advantage of the respondent who has neither filed an appeal nor taken any cross objection.
    The learned counsel for the respondent forcefully argued that even in the absence of appeal preferred by the plaintiff or cross objection taken by the plaintiff-respondent the Appellate Court was not powerless to grant the decree which it has done in exercise of the power conferred by Rule 33 of Order 41 of the CPC. Rule 33 of Order 41 as also Rule 4 thereof, which have to be read necessarily together, are set out hereunder:
    ORDER 41 Appeals from Original Decrees
    • “33. Power of Court of Appeal.-The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees:
      Provided that the Appellate Court shall not make any order under section 35A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.
      Illustration A claims a sum of money as due to him from X or Y, and in a suit against both obtains a decree against X. X, appeals and A and Y are respondents. The Appellate Court decides in favour of X. It has power to pass a decree against Y.
      4. One of several plaintiffs or defendants may obtain reversal of whole decree where it proceeds on ground common to all.-Where there are more plaintiffs or more defendants than one in a suit, and the decree appealed from proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be.”

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Sabarimala Review: Supreme Court to Decide the Contours of Constitutional Morality

Saji Koduvath, Advocate, Kottayam

Preface

Constitutional morality is triggered when human dignity is impaired. It is a constitutional tool employed by constitutional courts to override prevailing social morality whenever such intervention is found necessary.

The Sabarimala Temple review reference, along with other connected matters, is scheduled to be heard by a Nine-Judge Bench of the Supreme Court of India, from 7 April 2026. The Court will determine, on the touchstone of constitutional morality, whether (i) the practice of ‘female genital mutilation’ in the Dawoodi Bohra community, and (ii) the ‘social exclusion of women’ from certain religious places on the basis of faith or custom, are unconstitutional. The issues of exclusion include:

  • (i) women between the age group of 10 to 50 years from the Sabarimala temple;
  • (ii) Muslim women from dargahs/mosques; and
  • (iii) Parsi women married to non-Parsis from the holy fire place of an Agyari.

Sabarimala Decision

The Supreme Court of India held by Majority (4:1), on 28 September 2018, in Indian Young Lawyers Association v. State of Kerala (2019-1 SCC 1), that the exclusion of women between the age group of 10 to 50 years from the Sabarimala temple was unconstitutional.

Findings in the Majority Judgement

The pivotal findings that ultimately tilted the majority decision (Dipak Misra, CJI , A.M. Khanwilkar, Rohinton Fali Nariman, D.Y. Chandrachud, JJ.) were the following:

  • .(i) The exclusion of women, based on a biological factor unique to the female sex, could not be sustained as a matter of ‘faith’ under Article 25 of the Constitution, which guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion.
  • (ii) The exclusion of women could not be held as an ‘essential religious practice’ required under Article 25.
  • (iii) The devotees of Lord Ayyappa, were not separate religious ‘denomination’ so as to claim the benefits of Article 26, which guarantees the freedom to manage religious affairs.
  • (iv) The exclusion of women violated Article 14, which ensures equality.
  • (v) The conscience (faith) in Article 25 did not override Article 14.
  • (vi) Both Articles 25 and 26 begin with the words—‘subject to public order, morality and health’. This ‘morality’ includes constitutional morality. It renders the exclusion of women unconstitutional.

Minority Judgement

Justice Indu Malhotra handed down a dissenting Judgment. She held, inter alia, the following:

  • .(i) The Ayyappans constituted a religious denomination. They could claim the benefits of Article 26.
  • (ii) Article 14 would not override Article 25.
  • (iii) The Constitutional Morality implied harmonisation.
  • (iv) A working formula to be adopted to decide religious denomination.
  • (v) Notions of Court should not be the criterion.
  • (vi) Supreme Court must be a balancing wheel.
  • (vii) What was permitted by Article 25(2)(b) was a State made law and not judicial Intervention.
  • (viii) The proper forum to decide the point in issue was civil court.
  • (ix) Rule 3(b) of the 1965 Rules, made under Section 3 of the Kerala Hindu Places of Public Worship Act, 1965 (imposing limited restriction on the entry of women during the notified age group), was not ultra vires.
  • (x) The limited restriction on the entry of women did not fall within the purview of Article 17 that pertained to doctrine of untouchability.

Review Petitions: To a Larger Bench

Several review petitions were filed against the findings in the Sabarimala case. After hearing the petitions, by the Five-Judge Bench, in Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, the majority (Ranjan Gogoi, A.M. Khanwilkar, Indu Malhotra, JJ.) found that there was a conflict of opinion as regards the role of the court in matters of ‘essential religious practices’, between two earlier Judgments of the Supreme Court. They were the following:

  • .1. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282).
  • 2. Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402).

The majority found it necessary to resolve the conflict between these decisions for the proper determination of the review applications. It framed seven issues. The majority were of the opinion that it was proper to place these issues before a Larger Bench. It is held further that the review petitions will “remain pending until determination of the questions” by the larger bench.

Durgah Committee case: Court has an Active Role

The Five-Judge Bench in Durgah Committee case emphasied that the Court has an active role to decide andto exclude what are secular practices or superstitious beliefs while considering the impact of Article 25 and 26.

Shirur Mutt case: Prerogative of Religious Denomination

But, it has been found in the locus classicus decision of Seven Judges, in Shirur Mutt case that a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold; and no outside authority has any jurisdiction to interfere with their decision in such matters. It was also observed in this decision that the right to manage its own affairs in matters of religion is a fundamental right which no legislature can take away. It was further held – what are essential religious practices of a particular religious denomination is to be ascertained with reference to the doctrines of that religion, and they should be left to be determined by the denomination itself.

These review applications are now placed before a Nine-Judge Bench of the Apex Court. 

Review-Reference: Minority Findings

R.F. Nariman and D.Y. Chandrachud, JJ. (minority) held that no grounds had been made out for reviewing the majority judgments. They emphasised that the proper inquiry required in this matter was whether the impugned practice of exclusion of women between the ages of 10 and 50 from Hindu temples constituted an essential practice relatable to the Hindu religion, and not the practice of one particular temple. They further noted that no material—textual or otherwise—had been placed to demonstrate that such exclusion of women from Hindu temples forms an essential practice of the Hindu religion. The minority further held as under:

  • “The position under our constitutional scheme is that the Supreme Court of India is the ultimate repository of interpretation of the Constitution. Once a Constitution Bench of five learned Judges interprets the Constitution and lays down the law, the said interpretation is binding not only as a precedent on all courts and tribunals, but also on the coordinate branches of Government, namely, the legislature and the executive. What follows from this is that once a judgment is pronounced by the Constitution Bench and a decree on facts follows, the said decree must be obeyed by all persons bound by it.”

Nine-Judge Bench Reframed the Issues

On 10.02.2020, the Nine-Judge Bench reframed the issues (Quoted in the Order, Kantaru Rajeevaru v. Indian Young Lawyers Association, dated 11 May 2020: 2020-9 SCC 121) referred to it, as under:

  1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
  2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
  3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
  4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
  5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
  6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
  7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Other Cases Considered in the Review Matter

The following three cases have also been referred for the consideration of the Nine-Judge Bench:

1. Female Genital Mutilation

In the public interest litigation, Sunita Tiwari v. Union of India, filed before the Supreme Court, under Article 32 of the Constitution, prayed for a direction to impose complete ban on the inhuman practice of female genital mutilation and for making it punishable. It is argued that the Dawoodi Bohra community outside of India, in the United States of America, Australia and Kenya, consider female circumcision an illegal practice.

The Attorney General, KK Venugopal, pointed out that the FGM practice had been banned in 42 countries.  27 countries thereof are in Africa. AG further indicated that the World Health Organisation had called for banning this practice.

Dawoodi Bohra community claimed that it is an essential age-old practice going back to 1400 years and also claimed to have the support of over 80,000 Dawoodi Bohra women. It is further argued that ‘a minor’s consent can be presumed when family members take a decision for them’; and that the ‘family enjoys a zone of privacy and autonomy with respect to a minor child’. The Three-Judge Bench of the Apex Court, on 24.09.2018, found it necessary to refer the matter to a larger Bench; and it is now tagged for hearing with the Sabarimala review petitions.

2. Ban on Certain Parsi Women from Entering the Holy Place

The Gujarat High Court, by a 2:1 majority, dismissed the writ petition in Ms. Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266. The petition challenged a practice within the Parsi community whereby a Parsi woman, upon marrying a non-Parsi, is considered to have lost her religious identity and is consequently denied entry into the holy fire temple (Agyari). In contrast, a Parsi man marrying a non-Parsi does not face such exclusion.

The petitioner sought the right to perform the funeral rites of her parents. It was contended that the tenets of Zoroastrianism do not deprive a Parsi-born woman of her religious identity, dignity or associated rights even if she married a non-Parsi. The impugned practice was argued to be discriminatory and violative of the right to equality under Article 14 of the Constitution of India. It was further contended that such exclusion amounted to excommunication raising serious social and constitutional concerns.

Accepting the submissions of the Parsi Trust, the High Court upheld the practice, holding that the exclusion constituted an “essential religious practice.” The appeal filed against this decision is also listed for consideration along with Sabarimala Review matter.

3. Prohibition of Muslim Women in Mosques

 The Writ Petition, Yasmeen Zuber Ahmad Peerzade  v. Union of  India, is filed before the Supreme Court, under Article 32 of the Constitution of India, challenging the practices on entry of Muslim Women to Mosques in India. It is pointed out that women are allowed to enter mosques that have a separate space for them, but most mosques in India do not have such separate enclosures. The petitioner argues that this exclusion of women is illegal and unconstitutional. It violates the fundamental rights to equality, life and liberty and freedom of religion, proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution. It is claimed that the historical sources showed that Prophet Muhammad himself had encouraged women to actively participate in mosque congregations and prayer. The most sacred mosque in the world, Masjid-al-Haram in Mecca, always invites Muslim women from every part of the world to pray in it.  The petitioner also argues that the Quran does not prohibit women entry.

The stance of the respondents, as reflected in the counter affidavit filed by the All India Muslim Personal Law Board, is that the alleged rights cannot be enforced against non-state entities like Mosques. The Friday Namaz in congregation is not obligatory for women. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home. The matters involved are religious practices based upon beliefs of the religion. It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religion protected under Article 26. In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process.  It is further stated that it should be left to be resolved through the processes of social transformation within the religious denomination itself.

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Conclusion

The significance of the Nine-Judge Bench decision in the Sabarimala case may extend beyond choosing between the Shirur Mutt case and the Durgah Committee case. One thing is certain—the approach the Court adopts will be firmly rooted in our constitutional jurisprudence, while also being practical and solution-oriented.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Anurag Krishna Sinha v. State of Bihar [Neutral Citation: 2026 INSC 219]: The SC Struck Down Legislation Relating to a Trust as Violative of Article 14 and 300A

Saji Koduvath, Advocate, Kottayam.

Abstract

The State of Bihar passed an enactment to take over the Trust – Srimati Radhika Sinha Institute and Sachchidanand Sinha Library. The Act was named: ‘Srimati Radhika Sinha Institute and Sachchidanand Sinha Library (Requisition & Management) Act, 2015‘. The professed object of the legislation is: “better management and development” of the Trust. The Act was struck down by the Supreme Court of India.

The Supreme Court found:

  • The Act is manifestly arbitrary. It is violative of Article 14 of the Constitution of India.
  • It deprives property without adherence to fairness and due process. Because Article 300A of the Constitution permits deprivation of property only under the methods permitted by law. Here, no compensation is paid.  It underscores the arbitrary character.
  • The law must be fair, reasonable and non-confiscatory. The impugned Act transgress these constitutional requirements.
  • There was an observation that the trust was a private trust. But that was not determinative as the judgment proceeded ‘assuming arguendo’ (meaning: “assuming for the sake of argument”) that it was a ‘public trust’.

Facts in Brief

The Trust was settled under a trust deed. It was founded according to the wish of Smt. Radhika Sinha to establish an institution for “providing the public of Patna and its neighbourhood with a place for intellectual and social intercourse.” The High Court concluded that the dedication was in favour of the general public. Therefore, the Trust must be treated as a public trust.

Finding of the Supreme Court as regards Public Trust

The Apex Court held – “A public-facing object, standing alone, is not determinative.” The reasons pointed out are the following:

  • 1. “The fact that an institution is intended to serve a public purpose or is open to public use does not, by itself, conclusively determine that the trust is a public trust in law”.
  • 2. The legal character of a trust depends on several factors, including
    • i)   the manner in which the dedication is made,
    • ii)  the structure of the trust,
    • iii) the nature of control and management, and
    • iv) the rights reserved by the Settlor and his successors under the trust deed.
  • 3. “It is also significant that neither party before the High Court pleaded or argued that the Trust was a public trust.”
  • 4. “The case was argued on the common assumption that the Trust was a private trust governed by the Indian Trusts Act. In such circumstances, the High Court could not have proceeded to decide the case on an entirely different basis without affording an opportunity to address that issue.”

The above finding is not decisive: The Supreme Court proceeded “Assuming Arguendo”. It held – even assuming it to be a public trust, state action was unconstitutional. The Court observed as under:

  • “22. In any event, even if it were assumed that the Trust has a public character, that fact alone does not legitimise the State’s action in acquiring the Institute & Library or dissolving the existing trust arrangements. Whether the Trust is public or private, any legislative measure resulting in compulsory acquisition and vesting must satisfy constitutional requirements, particularly those flowing from Article 14. The question of public or  private character, therefore, is not determinative of the validity of the impugned Act.”

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The Legislation is Unconstitutional

The Apex Court tested the validity of the enactment on two principal touchstones –

  • (i) Whether the Act is manifestly arbitrary and violates Article 14 and
  • (ii) whether it offends Article 300A, which declares the ‘constitutional right to property’.

Article 14 of the Constitution: This Article mandates – “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”

The Apex Court found – though mismanagement was the basis for the acquisition, the record did not disclose that any notice was ever issued to the Librarian. He was the appointee of the State, who was charged with the general administration.  No inquiry was ever initiated against him. The State failed to act against its own appointee’s management. Therefore, the State is not in a position to support the action it now seeks to impugn.

It is held further as under:

  • “This guarantee strikes at arbitrariness in State action and ensures that the exercise of legislative power is informed by reason, fairness and non-discrimination. Equality before the law is not a mere formal concept; it embodies the principle that State action, whether legislative or executive, must be based on rational criteria and must not operate in an arbitrary or capricious manner. From an early stage, this Court has interpreted this guarantee not merely as a prohibition against formal discrimination, but as a constitutional injunction against arbitrariness in State action. The evolution of this principle is traceable through a consistent line of authorities.”

The Supreme Court pointed out as under –

  • “38. Section 3 of the impugned Act effects a complete vesting of the Institute & Library, together with all rights, title and interest therein, in the State Government. Section 4(2) simultaneously dissolves the Deed of Trust, the Agreement, the Lease of land, and all committees and sub-committees constituted thereunder. The cumulative effect of these provisions is not regulatory supervision, but total displacement of a legal and institutional framework that has governed the Institute & Library for nearly a century.”
  • 39. Such a drastic assumption of control represents the most intrusive form of State intervention. Yet, the record before this Court discloses no finding of abandonment, failure of purpose, or established mismanagement of the Institute & Library. No inquiry appears to have preceded the enactment. No contemporaneous material has been placed to demonstrate that the objectives of the Trust were being  defeated or that lesser measures were inadequate. In the absence of demonstrated necessity, compulsory acquisition coupled with dissolution of trust arrangements is plainly disproportionate.”

The following decisions were relied on-

  • S.G. Jaisinghani v. Union of India, AIR 1967 SC 1427, 
  •  State of Mysore v. S.R. Jayaram, (1968) 1 SCR 349,
  • E.P. Royappa v. State of Tamil Nadu,  (1974) 4 SCC 3,
  • Maneka Gandhi v. Union of India, (1978) 1 SCC 248, 
  • Ajay Hasia v. Khalid Mujib Sehravardi, (1981)1 SCC 722 ,
  • Indian Express Newspapers (Bombay) Pvt. Ltd. v. Union of India,  (1985) 1 SCC 641,
  • K.R. Lakshmanan v. State of Tamil Nadu,  (1996) 2 SCC 226,
  • A.P. Dairy Development Corpn. Federation v. B. Narasimha Reddy. (2011)9 SCC 286,
  • Shayara Bano v. Union of India. (2017)9 SCC 1 (wherein considered – Mithu v. State of Punjab(1983) 2 SCC 277,   Sunil Batra v. Delhi Administration (1978) 4 SCC 494 and State of Andhra Pradesh v. McDowell & Co. (1996) 3 SCC 709), 
  • Joseph Shine v. Union of India, AIR 2018 SC 4898,    
  • Democratic Reforms v. Union of India, 2024 INSC 11324. 

Article 300A of the Constitution: Our Apex Court pointed out – while this Article permits deprivation of property by authority of law, such law must nevertheless be just, fair and reasonable, and not arbitrary or confiscatory in effect.

The Court then held as under:

  • “A statutory provision that enables acquisition of property while reducing compensation to a token amount lacks the basic attributes of fairness. The confiscatory nature of the vesting contemplated under the impugned Act therefore reinforces the conclusion that the enactment is manifestly arbitrary and fails constitutional scrutiny.”

The Court had gone deep into the legislative history preceding the impugned enactment and found as under:

  • “An earlier attempt by the State to take over the Institute & Library through ordinances in 1983 did not pass muster of judicial scrutiny, and the consequences of those ordinances were set aside by this Court in 1996 upon their lapse, restoring the Trust to its prior legal position. The legislature is, of course, competent to enact a fresh law. However, the impugned Act, enacted more than three decades later, seeks to achieve substantially the same outcome as the failed ordinance of 1983, without any intervening change in circumstances and without any fresh material justifying acquisition being placed on record. The mere passage of time does not supply any justification. When a legislature re-enacts substantially the same measure that has previously failed, without  placing any new or cogent material before the Court to justify the same, the legislative history becomes a relevant consideration. Viewed in light of this, the history of this enactment reinforces the findings of manifest arbitrariness in the impugned Act.”

The Court summed up as under:

  • “Viewed cumulatively, the scheme of the impugned Act reveals a pattern of arbitrariness: complete vesting of property in the State, dissolution of long-standing trust arrangements, absence of any finding of necessity or mismanagement, provision for illusory compensation, and lack of guiding principles or safeguards. Each of these features, taken individually, raise serious constitutional concern; taken together, they render the enactment manifestly arbitrary in its conception and operation.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Harrisons Malayalam Ltd. v. State of Kerala (2026:KER:19290): Transfer of Registry can be Claimed only on Proper Application, with Supporting Documents

 Saji Koduvath, Advocate, Kottayam,

Abstract

The following observations are made in Harrisons Malayalam Ltd. v. State of Kerala and others: 2026: KER: 19290 (Anil K. Narendran & S. Muralee Krishna, JJ.) with respect to ‘Transfer of Registry’:

  • Entry in revenue records does not confer title on a person.
  • Entries in revenue records have only ‘fiscal purpose’, i.e., for payment of land revenue, and no ownership is conferred on the basis of such entries.
  • Mutation of property in revenue records neither creates nor extinguishes the title of the property nor has it any presumptive value on title.
  • The mere fact that any of the disputing parties had paid basic tax for any particular period cannot be taken as a fact conferring a right upon such party for continued payment of basic tax.
  • The petitioner who seeks a writ of mandamus to effect the Transfer of Registry in favour of the petitioner has to produce documents of title to show that he is the ‘registered holder’.

Introduction

The High Court of Kerala, in Harrisons Malayalam Ltd. v. State of Kerala and others (Anil K. Narendran  &  S. Muralee Krishna, JJ.), discussed, inter alia, on 5th March 2026 (2026:KER:19290), the following with respect to the payment of Land Tax by the petitioner, Harrisons Malayalam Ltd.:

  • 1. Whether the petitioner (Harrisons Malayalam Ltd.) has a legal right to seek a writ of mandamus to effect the Transfer of Registry, though it has not chosen to submit a proper application, with supporting documents, before the competent authority.
  • 2. Whether the condition imposed in the Government Order – the land tax received from the petitioner, i.e., Harrisons Malayalam Ltd. and its assignees, shall be subject to the final decision in the civil suit proposed to be filed by the State, is sustainable in law.

Contention of the State

  • Land tax can be accepted only from the registered holder, as provided under the Kerala Land Tax Act, 1961 and Rules made thereunder.
  • The land is the absolute property of the Government.
  • The Government has taken steps to file civil suit against the petitioner.

Contention of Harrisons Malayalam Limited

  • Malayalam Plantations Ltd. has been shown as the holder of the Estate in the revenue records.
  • Unless and until the Government establishes its title in a competent civil court, the Government is not entitled to decline acceptance of land tax from the petitioner.
  • Right to property is a right guaranteed under Article 300A of the Constitution of India.
  • It includes the right to enjoy the property without being subjected to any restrictions other than any restrictions imposed by law.
  • Being the registered holder of the land, the petitioner is entitled to remit land tax
  • Harrisons Malayalam Ltd., is successor in title from Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act.
  • Harrisons Malayalam Ltd., is successor in title from predecessor in title, i.e., Malayalam Plantations Ltd., is the land holder as per the provisions under the Kerala Land Tax Act

Provisions of Law

Section 3(3) of the  Kerala Land Tax Act, 1961, defines ‘landholder’. It reads as under:

  • “3. Definitions  – In this Act, unless the context otherwise requires- (1) ….. (2) …..
  • (3) ‘landholder‘ means,-
    • (a) in relation to any land held by a cultivating tenant as defined in the Kerala Land Reforms Act, 1963 (1 of 1964), such cultivating tenant;
    • (b) in relation to any land in the possession of a kanam tenant as defined in the Kanam Tenancy Act, 1955 (XXIV of 1955), such kanam tenant;
    • (c) in relation to any land which has not been surveyed and it not held by a cultivating tenant referred to in sub-clause (a), the proprietor of such land;
    • (d) in relation to any other land, the registered holder for the time being of such land, and includes his legal representatives and assigned and any person who under any law for the time being in force is liable for the payment of public revenue due in respect of the land held by him.”
  •  Section 5(2) of of the Kerala Land Tax Act directs – basic tax charged on any land shall be paid by the ‘land holder’. It reads as under:
  • “5. Charge of land tax—
    • (1) ….
    • (2) The basic tax charged on any land shall be paid by the land holder of that land before such date as may be prescribed:
      • Provided that where- (i) the landholder in respect of any land is a person referred to in sub-clause (c) or subclause (d) of clause (3) of Section 3;
      • (ii) such land is in the possession of a tenant or other person not being the landholder; and
      • (iii) the income obtained by the land-holder from that land is less than the basic tax payable thereon, the excess of the basic tax over such income shall be paid by the tenant or other persons in possession.

Points of Law Considered

  • 1. Does the petitioner have a legal right to seek a writ of mandamus to effect the Transfer of Registry in favour of the petitioner, for the land tax of lands is being paid in the name of its predecessor, Malayalam Plantations Ltd., despite –
    • its failure to produce documents of title before the High Court to show that it is the ‘registered holder’ and
    • it has not chosen to submit a proper application, with supporting documents, before the competent authority.
  • 2. Can the Government, by a Government Order, impose a condition that the land tax paid by Harrisons Malayalam Ltd. shall be received subject to the final decision in the civil suit proposed to be filed by the State against the petitioner?”

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Findings of the Division Bench as regards Transfer of Registry

  • 1. The petitioner has no legal right to seek a writ of mandamus to effect the Transfer of Registry in favour of the petitioner, since –
    • it failed to produce documents of title before the High Court to show that it is the ‘registered holder’ and
    • it has not chosen to submit a proper application, with supporting documents, before the competent authority
  • In Ponnanthodiyil Sreedevi Amma v. District Collector, Malappuram [2009 (2) KHC 833] enumerated persons who come within the definition of land holder under sub-clauses (a), (b) and (c) of clause (3) of Section 3 of the said Act.
  • In Vijayarajan M.D. v. Tahsildar [2013 (2) KLT SN 119], a learned Single Judge of this Court held that the payment of land tax is to be made by the holder of the land and that is in tune with the relevant provisions of the Kerala Land Tax Act.
  • In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. [(2003) 2 SCC 111], the Apex Court held that when a statutory authority is required to do a thing in a particular manner, the same must be done in that manner or not at all.
  • 2. Of course, the question regarding title, which if ultimately decided by the competent civil court may have a bearing on the question as to who is the registered holder the land. Still, the condition imposed in the Government order, to the extent it stipulates that the land tax received from the petitioner, i.e., Harrisons Malayalam Ltd. and its assignees shall be subject to the final decision in the civil suit proposed to be filed by the State, is not sustainable in law. It is set aside for the following reasons:
    • Entry in revenue records does not confer title on a person.
    • Entries in revenue records have only ‘fiscal purpose’, i.e., for payment of land revenue, and no ownership is conferred on the basis of such entries.
    • Mutation of property in revenue records neither creates nor extinguishes the title of the property nor has it any presumptive value on title.
    • The mere fact that any of the disputing parties had paid basic tax for any particular period cannot be taken as a fact conferring a right upon such party for continued payment of basic tax.
  • However, the State will have the right to seek appropriate interim reliefs in the original suits filed against the petitioner, in respect of the lands in question.

End Notes

1. No findings on the title in the previous decision – [2018 (2) KLT 369]

    The High Court also held in Harrisons Malayalam Ltd. v. State of Kerala and Others (2026:KER:19290) as under:

    • “14. On the aforesaid contention raised by the learned Senior Counsel for the petitioner, we notice the specific contention raised by the learned Advocate General, after referring to paragraphs 27, 98 and 141 of the decision of the Division Bench in Harrisons Malayalam Ltd. [2018 (2) KLT 369], that no such findings on title of the subject properties are there in the said decision. Relevant portion of paragraphs 27, 98 and 141 of the said decision are extracted hereunder;
      • “27. ……….. The essential contention urged is on jurisdiction, or the absolute lack of it under the KLC Act to proceed against the properties which cannot be said to be either “Government land” or “puramboke land” as defined under the KLC Act. HML asserts their title and possession on the various properties as described in the Schedules. The Special Officer appointed under the KLC Act has absolutely no jurisdiction to proceedagainst lands owned by anyone other than the Government. The title is traced without interruption to about 100 years prior and has been obtained by the petitioner, a Company registered under the Companies Act, 1956 (for brevity “Companies Act”), by way of an indenture of 08.03.1923 bearing Deed No.1006 of 1923. The original of the said deed has been deposited before this Court and a copy has been produced as Ext.P22(b). The submissions revolve on this indenture; the efficacy of which is seriously put to test by the State and the party respondents. HML and its assignees having raised the ground of title, as had been accepted by the Government too, evident from the revenue records; the proceedings are ill motivated, for reason of it having originated on mere paper reports. Further the question of valid title having been raised, the Special Officer appointed under the KLC Act is divested of jurisdiction to further proceed.
      • xxx xxx
      • 98. ……….. We, however, make it clear that we are not called upon to examine the title of the lands, as asserted by HML. We would hence not be required to examine all of the title deeds or the purchase certificates, tax receipts, inter-parte decisions, etc. We remind ourselves that we are only looking at the question of jurisdiction under the KLC Act. If, prima facie, a bona fide dispute is discernible on title, then necessarily the parties would have to be relegated to the Civil Court; without ourselves venturing on an enquiry, which we find ourselves incompetent to embark upon, in a proceeding under Article 226.
      • xxx xxx
      • 141. …………Title cannot be adjudicated under the KLC Act intended only at eviction of unauthorized occupation. Title to establish it or to controvert it, has to be adjudicated before a civil court. Title we reiterate, in this contest, we have not found on the petitioners, which we are incompetent to do in the present proceedings. Title has to be found after adducing evidence in a properly initiated civil proceedings, if the State ventures so, to institute. There is no cause of action for the petitioners to approach the civil court to establish title under Section 20 of the KLC Act, the proceedings under the Act having been set aside by us.”
    • 15. A reading of paragraph 141 of the decision would make it explicitly clear that the Division Bench did not decide the question of the title of the petitioner, since the High Court is incompetent to decide such an issue in a proceeding under Article 226 of the Constitution of India. Therefore, we find no force in the argument of the learned Senior Counsel for the petitioner that the facts relating to the ownership and possession of the plantations, including the estates which are subject matter of these writ petitions, were concluded by the Division Bench, in favour of the petitioner, in the decision in Harrisons Malayalam Ltd. [2018 (2) KLT 369] and the 1st respondent State has issued the Government order dated 06.06.2019 to overreach the said decision of the Division Bench.”

      2. In Writ Petitions, besides the Facts, the Evidence also must be pleaded and annexed

      The High Court further held in Harrisons Malayalam Ltd. v. State of Kerala and others (2026:KER:19290) as under:

      • “18. In Bharat Singh v. State of Haryana [(1988) 4 SCC 534] the Apex Court held that, when a point which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or to the counter affidavit, as the case may be, the Court will not entertain the point. The Apex Court held further that there is a distinction between a pleading under the Code of Civil Procedure Code, 1908, and a writ petition or a counter affidavit. While in a pleading, i.e., a plaint or a written statement, the facts and not evidence are required to be pleaded, in a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it.”

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      Civil Suits: Procedure & Principles

      Book No, 1 – Civil Procedure Code

      Principles and Procedure

      PROPERTY LAW

      Title, ownership and Possession

      Recovery of Possession: 

      Adverse Possession

      Land Laws/ Transfer of Property Act

      Land Reform Laws

      Power of attorney

      Evidence Act – General

      Sec. 65B

      Admission, Relevancy and Proof

      Law on Documents

      Documents – Proof and Presumption

      Interpretation

      Contract Act

      Law on Damages

      Easement

      Stamp Act & Registration

      Divorce/Marriage

      Negotiable Instruments Act

      Criminal

      Arbitration

      Will

      Book No. 2: A Handbook on Constitutional Issues

      Religious issues

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

      Book No. 4: Common Law of TRUSTS in India

      Adverse Possession: A Concise Overview

      Saji Koduvath, Advocate, Kottayam.

      Ingredients of Adverse Possession

      • (a) hostile animus,
      • (b) denial of title of true owner – admitting the title of the true owner,
      • (c) wrongful dispossession of true owner,
      • (d) placing the date of starting of wrongful dispossession,
      • (e) some overt act,
      • (f) hostile (or notorious) acts must be peaceful, open and hostile to the true owner.
        • It is expressed in the classical formulation of adverse possession in the Latin maxim: “nec vi, nec clam, nec precario”
        • That is –
          • not by force: nec vi,
          • not in secrecy: nec clam
          • not by permission: nec precario.

      Note:

      • (i) For perfecting adverse possession, the statutory requirement of ’12 years’ in the Limitation Act, 1963 (particularly Article 65) must also be satisfied.
      • (ii) It starts only – “when the possession of the defendant becomes adverse to the plaintiff” (Art. 65).
      Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779;
      T. Anjanappa v. Somalingappa, (2006) 7 SCC 570;
      PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753

      Drastic Change on Adverse Possession

      Drastic change has been made, on the law on Adverse Possession, by 1963 Limitation Act. It introduced the words – “when the possession of the defendant becomes adverse to the plaintiff“.

      • Under the (previous) Limitation Act, 1908 (Arts. 142 and 144), the true owner had to file the suit within 12 years of losing possession (otherwise, there would have been adverse possession).
      • Under the 1963 Limitation Act, it is no longer necessary for the true owner to prove that he was in possession within 12 years of filing the suit (as required, earlier, by Arts. 142 and 144 of the Limit. Act, 1908).
      • The burden lies solely on the claimant of adverse possession to establish hostile animus, denial of the title of the true owner, wrongful dispossession, and other overt acts constituting adverse possession.
      • Bar of limitation arises, in a title suit (by the true owner), if only the defendants have a sustainable claim of adverse possession, after the 1963 Limitation Act.

      Effects of the Drastic Change

      • The limitation starts ‘when the possession of the defendant becomes adverse to the plaintiff‘ (Art. 65, Limitation Act).
      • Mere possession, however long, will not be adverse.
      • Even if Plaintiff has knowledge of defendants’ possession (however long) – no relevance.
      • Adverse possession and title claim will not go together.
      • The claimant must (first) admit the ownership of the true owner.
      • An issue as to ‘adverse possession’ necessary.
      • Proper animus (pleading and proof) needed.
      • The ‘mindset/attitude’ of the true-owner is immaterial.
      • Defendants must have relinquished the title claim, if raised, to prop up adverse possession.
      Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286,
      Thakur Kishan Singh v. ArvindKumar, 1994-6 SCC 591,
      Ramiah v. M. Narayana Reddy,  AIR 2004 SC 4261,
      T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
      P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59,
      Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316,
      Ram NaginaRai v. DeoKumarRai, 2019-13 SCC 324,
      Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756, 
      Uttam Chand v. Nathu Ram, 2020-11 SCC 263,
      Govt of Kerala v. Joseph, AIR 2023 SC 3988.

      Suit on Title – No Limitation Unless Defendant has Claim of Adverse Possession

      • No question of limitation arises unless the defendant substantiates his plea of adverse possession. This is because, after the significant change brought about by the Limitation Act, 1963, mere possession—however long—does not, by itself, become ‘adverse’.
      Neelam Gupta v. Rajendra Kumar Gupta, AIR 2024 SC 5374
      Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021; 2024 KLT(Online) 3051,
      K.J. Abraham v. Mariamma Itty, ILR 2016-3 Ker 98;
      C. Natrajan v. Ashim Bai, AIR 2008 SC 363; 2007-14 SCC 183
      Indira v. Arumugam, AIR 1999 SC 1549,
      C. Mohammad Yunus v. Syed Unnissa, AIR 1961 SC 808.

      Acquiescence, Inaction, etc.

      • The same is the position even if – acquiescence, inaction, etc. on the part of true owner.
      • Even if the plaintiff admits that the defendant has been a trespasser for a hundred years, there will be no bar of limitation to a recovery suit based on title, if the defendant does not claim adverse possession.

      No Adverse Possession, Unless Claimant ‘Admits Title of the True Owner‘

      • There can be no adverse possession where the claimant does not admit the title of the true owner.
      Shri Uttam Chand v. Nathu Ram, AIR 2020 SC 461; 2020-11 SCC 263,
      M. Siddiq v. Suresh Das, 2020-1 SCC 1       (Ram Janmabhumi Temple case)
      Raghavan, v. Devayani, 2024-2 KHC 417,
      M. Radheyshyamlal v. V Sandhya, 2024 INSC 214,
      Nand Ram v. Jagdish Prasad, AIR 2020 SC 1884; 2020-9 SCC 393,
      Brijesh Kumar v. Shardabai, (2019) 9 SCC 369,
      Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729,
      Dagadabai v. Abbas alias Gulab Rustum Pinjari, (2017) 13 SCC 705,
      T. Anjanappa v. Somalingappa, (2006) 7 SCC 570,
      Karnataka Board of Wakf v. Government of India, (2004) 10 SCC 779,
      Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150.
      • If the defendant (effectively) pleads adverse possession, admitting the plaintiff’s title, the plaintiff need not prove title.
      • Similarly, if the plaintiff (effectively) pleads adverse possession, the defendant, true owner, need not prove title.

      Burden is on the Claimant

      • The burden to prove adverse possession is on the claimant (of adverse possession).
      Mallavva v. Kalsammanavara Kalamma, 2024 INSC 1021; 2024 KLT(Online) 3051,
      Janata Dal Party v. Indian National Congress, 2014-16 SCC 731,
      C. Natrajan v. AshimBai, AIR 2008 SC 363; 2007-14 SCC 183,
      Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517,
      Mohammad Ali v. Jagdish Kalita, 2004-1 SCC 271,
      Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639.

      Adverse Possession – Irrational, Illogical Claim

      In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517, it was pointed out that the claim of adverse possession must be read in the context of human rights. The law which ousts an owner on the basis of inaction within limitation is found in this case to be irrational, illogical and wholly disproportionate.

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      Civil Suits: Procedure & Principles

      Book No, 1 – Civil Procedure Code

      Principles and Procedure

      PROPERTY LAW

      Title, ownership and Possession

      Recovery of Possession: 

      Adverse Possession

      Land Laws/ Transfer of Property Act

      Land Reform Laws

      Power of attorney

      Evidence Act – General

      Sec. 65B

      Admission, Relevancy and Proof

      Law on Documents

      Documents – Proof and Presumption

      Interpretation

      Contract Act

      Law on Damages

      Easement

      Stamp Act & Registration

      Divorce/Marriage

      Negotiable Instruments Act

      Criminal

      Arbitration

      Will

      Book No. 2: A Handbook on Constitutional Issues

      Religious issues

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

      Book No. 4: Common Law of TRUSTS in India

      Ten Square Miles Concession and Kanan Devan Hills Concession – State Grants of Travancore Governments

      Saji Koduvath, Advocate, Kottayam.

      Abstract

      • As regards Kanan Devan Hills Concession, Kannan Devan Hills Produce Co. Ltd. v.  The State of Kerala, AIR 1972 SC 2301, is the direct authority to see that the land therein is Government land.
      • As regards the Ten Square Miles Concession, the Full Bench of the Kerala High Court, in M. A. Majeed v. State of Kerala, 2005-3 KLJ 762; 2006-1 KLT 19, proceeded on the basis that the lands therein were owned by the Government.

      Introduction

      Kanan Devan Hills Concession

      On July 11, 1877, under the first Pooniat Concession, John Danial Munro obtained a large extent of land, on a rental basis, for coffee cultivation,  from Punjar Valiya Raja. Poonjar Raja surrendered the land to the State of Travancore. Now it vests with the State of Kerala.

      It is held in Kannan Devan Hills Produce Co. Ltd. v.  The State of Kerala, AIR 1972 SC 2301 (relying on  the Travancore Land Revenue Manual) as under:

      • “It thus appears that the State grants like
        • Kanan Devan Hills Concession and
        • Ten Square Miles Concession, and
        • Munro Lands,
      • were treated under the heading Pandaravaka Lands; i.e. lands belonging to the sircar.”

      Ten Square Miles Concession

      In 1834, a tract of ten square miles was taken up and cultivated by one William Huxam under permission granted by the Sirkar in Pathanapuram and Shencotta. An agreement was entered into between the Dewan of Travancore and Huxam in 1849.

      In 1852 Huxam transferred the land to the firm of Binny and Co., Madras. In the same year, an agreement was entered into between the Travancore Sirkar and Binny & Co., with respect to the land whereby the Sirkar granted the Company a lease for 30 years with a condition to renew it. The Travancore Government, subsequently, by Order dated 28th March 1906, stated that it was prepared to convert the leasehold into freehold on conditions.

      Kanan Devan Hills Concession

      Poonjar Raja was Original Janmi Poonjar Raja was a Janmi (landlord or proprietary interest holder) of the lands involved in Kanan Devan Hills Concession.  John Danial Munro obtained large extent of land, on rental basis, for coffee cultivation,  from Punjar Valiya Raja, on July 11, 1877, under the first Pooniat Concession. It was stipulated in the Concession that –

      • “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees” (Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218).

      The Maharaja of Travancore executed a deed of ratification, dated November 28, 1878, by which the he ratified the First Pooniat Concession dated July 11, 1877. The lands of Poonjar Raja over which he exercised the right as a Janmi had been transferred to the Government of Travancore.  

      On 2.8.1886, the agreement called the Second Pooniat Concession was entered into modifying the previous deed. By this time a company called the North Travancore Land Planting and Agricultural Society Ltd. had acquired the rights in the said land.

      Surrender of Rights to Travancore Sircar 

      Poonjar Chief or Raja had subjugated himself to Travancore Sircar or Maharaja, and an agreement dated 18.09.1899 was entered into between Rohini Thirunal Kerala Varma Raja (the then Chief of Poonjar Koyikkal) and the Travancore Government, under which the ownership of the lands, including that described in the Poonjat Concessions, had been transferred to the Government of Travancore. (See: Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015).

      It was declared that the tract known as Anjanad and Kannan Devan Hills was an integral portion of our territory of the Travancore and the inhabitants were not to make any payment to the Poonjar Chief.

      Royal Proclamation of 1899

      On 24.9.1899, a Royal Proclamation (of 1899) was made. It reads as under:

      • “Whereas we deem it expedient to clearly declare the position of this State in respect of the tract known as Anjanad and Kannan Devan Hills, we are pleased to declare as follows; (1) The tract known as Anjanad and Kannan Devan Hills is an integral portion of our territory and all rights over it belong to and vest in us.
      • (2) The inhabitants of the said tract and all others whom it may concern are hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief or his representatives or to any person other than an officer of our Government authorised in this behalf, in respect of anything in, upon or connected with the said tract, with the exception, however, of a payment of rupee three thousand per annum from the successors in interests of the late Mr. J.D. Munro of London and Peermade now being paid to the said Chief in virtue of a Lease deed executed by the said Chief in favour of the said late Mr.J.D. Munro on the 11th July, 1877, and which we are pleased to permit the said Chief to continue to receive.
      • (3) The lands within the said tract will be dealt with by our Government in the same manner as lands in other parts of our  territory with such modifications as the circumstances and conditions of the said tract may require and all taxes, rents and dues hitherto paid, and that may hereafter be imposed by our Government shall, with the exception of the sum of rupees three thousand aforesaid, be paid by the, occupants of lands within the said tract whose occupation has been or may be recognized or confirmed by our Government, and of such portions of the said tract as may from time to time hereafter, with the permission of our Government, be occupied, to the officers of our Government who may be authorised in this behalf.” (Quoted in: Kannan Devan Hills Produce Company Ltd. v. State of Kerala, AIR 1972 SC 2301, 1972-2 SCC 218; Kottayam District Koottu Krishi Karshakasangam v. Stateof Kerala, 2015)

      Ten Square Miles Concession

      The Travancore States Manuel, Volume IV, Page 487-490, reads as under:

      • “PATHANAPURAM CONCESSION.
      • A tract of land in Pathanapuram and Shencotta comprising an area of ten square miles was originally taken up and cultivated by one Mr. Huxam under permission granted by the Sirkar in 1834 (1009 ME) [Vide Land Revenue Manual — Vol. Ill- Revised Edition Part I, pp. 9-11: It refers to the proceedings of the Chief Secretary – G. 0. No. 5020 R. 1994, dated 28th March 1906]
      • An agreement was entered into between the Dewan of Travancore and Mr. William Huxam on 9th July 1849 (27th Mithunam 1024).
      • In 1852 Mr. Huxam transferred the land to the firm of Messrs. Binny and Co., Madras, with the sanction of the Sirkar.
      • An agreement was entered into between the Sirkar and Messrs. Binny & Co., in 1852 (1027 M.E.) whereby the Sirkar granted the Company a lease of the land for 30 years with a condition that the lease shall be renewable at the option of the then holder for the period of 30 years on the same terms and conditions, and again for a further period of 30 years at the option of the holders, thus extending the term to 90 years. A condition was also inserted in the agreement that, if the lease were not renewed at the expiration of either the first or the second term, the whole of the land with all the trees and plants thereon shall revert to the possession of the Sircar. Messers Binni and Co. transferred the land to Mr GM McLauchlan in 1876 with the permission of the Sirkar. Subsequently, Mr McLauchlan, with two partners (Mr P. W. Keir and Mr George Anderson), formed the ‘Travancore Plantation Company’, applied for and obtained a renewal of the lease Company. This agreement was executed on 17th April 1877 (6th Madam 1052). This deed granted a lease of the land to the Company for 35 years from 13th January 1877, with a condition that the lease shall be renewable for a further period of 30 years upon the same terms and conditions, viz., an annual rent of Rs. 100 for every English square mile of land cultivated, exemption from payment of rent for 3 years from the date of clearing and obligation to obtain the sanction of the Government for any alienation of the land or the rights thereof. It was also stipulated that, at the expiration of the period of sixty-five years provided for in the agreement, or if the lease were not renewed at the expiration of the first term, the whole of the land with all the trees and plants thereon shall revert to the possession of the Sirkar, In 1905, Messrs. Keir and McLauchlan requested the Government either to give them the assurance that the lease would be renewed on the expiry of the existing term or convert the lease-hold into free-hold at the expiry of the lease, for which they were prepared to pay 3 annas instead of 2 1/2 annas per acre for the land brought under cultivation. They made these proposals as they wanted to open the lands remaining uncultivated for rubber. The matter was discussed between the Dewan and the applicants and others who had acquired portions of the land from the lessees, and as the result of these discussions, the Government issued G. 0. No. 5020 R. 1994, dated 28th March 1906, in which it was stated that Government were prepared to convert the leasehold into freehold on the following conditions:
        • .(i) Payment of acreage value of Re. 1 per acre on the 10 sq. miles.
        • (ii) Assessment for lands under coffee, tea and other products, at the rates which may prevail at the time.
        • (iii) Assessment for lands which may not have been cleared and which may remain as jungle at 8 as. per acre.
        • (iv) Assessment for lands brought under rubber cultivation at Rs. 2 per acre.
      • It was also laid down in the G.O. that all transfers should be reported to the Government and that the other terms of the grant shall be the same as those that apply to waste lands granted under the coffee land rules, dated 7th July 1898. When the tax on lands granted for coffee and tea cultivation was raised from 12 annas to one British rupee per acre, with effect from 17th August 1910, by Royal Proclamation dated 12-8-09, that fact was communicated to the holders of this grant, with the intimation that when the lease-hold was converted into freehold under the above G.O the grantees and their alienees should pay assessment at the increased rate of Bh, Re. 1 per acre on the whole area cultivated, from 12th January 1912.
      • The area covered by this special grant consists of the following 10 estates situated in the taluks of Paithanapuram and Shenkotta:
        • Name: ………… ….. …………. Area: …………….Taluk
        • Venture …. …….. ……. ……. 407.25 acres: Shencotta
        • A and (B) Block:…. …….. 711.01 acres: Shencotta
        • Ridgeband: …… …….. ……. 127.80 acres: Shencotta
        • New Swarnagiri:…. . …… 208.87 acres: Shencotta
        • Upper Florence II Bit: … 39.29 acres: Shencotta
        • Koravanthavalam: …… 1230.20 acres: Pathanapuram
        • Midlothian: …… ……… …. 437.24 acres: Pathanapuram
        • Nagamala: ……. ….. …….. 1376.53: acres: Pathanapuram
        • Isfield: …… ….. ………………. 567.78 acres: Pathanapuram
        • New Arundal: … …… ….. 1310.13 acres: Pathanapuram”

      Subsequent Grant Deeds

      The land history of Ten Square Miles shows the following:

      • 1. After the G. 0. No. 5020 R. 1994, dated 28th March 1906, when the holders of the land sought the Travancore Government to issue ‘title or grant deeds‘, it was specified in the deeds (executed in 1913 and 1916) –
        • that those deeds were ‘grant deeds’ subject to the terms, covenants, conditions and provisions.
        • Note: 1. The words used in the GO are – “…. prepared to convert the leasehold into freehold on the following conditions“.
        • 2. The 1906 GO further reads – “when the lease-hold was converted into freehold under the above G.O the grantees and their alienees should pay assessment at the increased rate of Bh, Re. 1 per acre“. That is, no (binding) ‘declaration’ as to conversion to ‘freehold’ was made.
        • 3. GO does not have the same force as a statute (Act) or a statutory rule, unless it is issued under a specific statutory power.
        • 4. The grant deeds executed in 1913 and 1916, as stated above, show that the government had also “agreed to” issue ‘title or grant deeds‘; and the Company sought to issue ‘title or grant deeds‘ (and the Government executed only “grant deeds”).
        • 5. When Grant deeds were executed (in pursuance of the GO) what is to be taken into consideration is the Grant Deed, and not GO..
      • 2. The terms, covenants, conditions and provisions in those deeds were substantially similar to the ‘grant deeds’ prevailing at the relevant time, which came to be considered by the Supreme Court in Kannan Devan Hills Produce Co. Ltd. v. State of Kerala, AIR 1972 SC 2301, and State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272 (mentioned below).

      High Court Rejected the Contention – Ten Sq. Mile Land, a ‘Freehold Property‘

      The contention of the petitioner in M.A. Majeed v. State of Kerala, 2005-3 KLJ 762; 2006-1 KLT 19, was that the Ambanad Estate (a part of New Arundal Estate etc. in Ten Sq. Miles Concession) land was a freehold property. The contention was not accepted by the Full Bench, on the appraisal that the Government was the owner of the property. It is held as under:

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

      Key Decisions on Grant

      In the following cases the effect of “grant” by the Erstwhile Governments was considered.

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

      The Supreme Court, in Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301 (Sikri (CJ), Shelat, A.N. Ray, I.D. Dua, H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. The State of Kerala made an Act – the Kannan Devan Hills (Resumption of Lands) Act, 1971, to “vest” the possession of the land that remained in the possession of the Kannan Devan Hills Produce Co. Ltd.

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

      According to the State, this land is dealt with under this heading – Pandaravaka Lands, i.e. lands belonging to the Sircar. and that it was only “granted” to the company for ‘coffee cultivation’. The State asserted in this case –

      • that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja declaring that Kannan Devan Hills was ‘an integral part’ of the ‘territory’.
      • that the petitioner’s predecessor-in-title was John Danial Munro, who obtained the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an application was made for the grant of the above property to the Raja for coffee cultivation.
      • It was further stipulated in the Concession that
        •  “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
      • H.H. the Maharaja executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
      • This deed of ratification laid down that  the Government permitted the grantee to hold the land. (It was similar to the ‘Grant/Title’ deeds executed by the State in all other ‘Grants’ – under the ‘Grant Rules’).
      • Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
        • “The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved namely, Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood; should he carry any timber without the limits of the grant it will be subject to the payment of Kooteekanom, or Customs Duty……….
      • The eleventh clause reads –
        • “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.”
      • The twelfth clause stipulates –
        • “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.”
      • The sixteenth clause provides –
        • “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
      • A Royal Proclamation was made on September 24, 1899 provided that ‘Anjanad and Kannan Devan Hills is an integral portion of our territory and that the inhabitants of the said tract are ‘hereby informed and warned that they are not to pay any taxes, rents or dues, or make any other payment to the Poonjar Chief.

      Points came for consideration in this decision

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

      The Apex Court found the following:

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

      The Apex Court observed as under:

      • “… On the material placed before us it is difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right”.
      • If, as stated in Travancore Land Revenue Manual Volume IV, there are no lands that do not belong to a Janmi and the Sircar becomes a janmi by gift, escheat, confiscation or otherwise, the effect of the Royal Proclamation of 1899 must be that the Sircar became the Janmi.”

      The Apex Court further found –

      • The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands.
      • Regarding Pandaravaka lands it is stated : “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
      • Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands.
      • “It thus appears that the State grants like
        • Kanan Devan Hills Concession and
        • Ten Square Miles Concession, and
        • Munro Lands.
      • were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar” (that is, such Grant-lands were not ‘owned’ by the holders thereof).

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

      Read Connected Blog:

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

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

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

      It is observed:

      • “An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie v. State of Kerala, 1969 K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under:
        • “ We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”
      • “We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”

      It is observed further:

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

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

      3. George A. Leslie v. State of Kerala – AIR 1970 Ker 21, (K. K. Mathew, J.)

      Travancore Regulation II of 1040 (1865) and Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865 considered.

      It is observed:

      • “Ext. P-l is a grant made under the Travancore Regulation II of 1040 and the Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865. It conferred a heritable and transferable interest in the grantees of the land comprised in it. Clause 5 in Ext. P-l, which is identical with Section 5 in Form A of the Rules for the sale of Waste Land on the Travancore Hills, is the relevant provision for deciding this question. It provides:
        • “Grantees can appropriate to their own use within the limits of the grant all timber except the following and such as may hereinafter be reserved, namely, Teak, Gole Teak, Blackwood, Ebony, Karcomthaly, Sandalwood; should they carry any timber without the limits of the grant, it will be subject to the payment of kuttikanom or customs duty or both, as the case may be, in the same way as timber ordinarily felled”.
      • 10. We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”

      It was pointed out –

      • Travancore Pattom Proclamation of 1040 (1865), which conferred full rights on tenants of pandarapattom land. They have no application to the land or trees comprised in grants for cultivation of coffee or tea (under Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865).

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      Civil Suits: Procedure & Principles

      Book No, 1 – Civil Procedure Code

      Principles and Procedure

      PROPERTY LAW

      Title, ownership and Possession

      Recovery of Possession: 

      Adverse Possession

      Land Laws/ Transfer of Property Act

      Land Reform Laws

      Power of attorney

      Evidence Act – General

      Sec. 65B

      Admission, Relevancy and Proof

      Law on Documents

      Documents – Proof and Presumption

      Interpretation

      Contract Act

      Law on Damages

      Easement

      Stamp Act & Registration

      Divorce/Marriage

      Negotiable Instruments Act

      Criminal

      Arbitration

      Will

      Book No. 2: A Handbook on Constitutional Issues

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

      Book No. 4: Common Law of TRUSTS in India

      Doctrines of ‘Legislation by Reference’ and ‘Legislation by Incorporation’

      Saji Koduvath, Advocate, Kottayam.

      Introduction

      The ‘Doctrine of incorporation’ and the ‘Doctrine of reference’ arise when a provision in a statute is referred to in another statute. The extent to which the earlier provision applies to the later statute is determined by these doctrines. They can be summarised as under:

      • 1. 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.
      • 2. 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.

      The effect of ‘repealing and re-enactment’ of an Act is set out in Section 8(1) of the General Clauses Act, 1897. That is: the re-enacted provision governs the field, and it is to be looked into.  Section 8(1) reads as under:

      • “8. Construction of references to repealed enactments: (1) Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears: be construed as references to the provision so re-enacted.”

      The Decisive Factor is whether the Reference is ‘Specific or General‘

      In Insolvency and Bankruptcy Board of India v. Satyanarayan Bankatlal Malu, BR Gavai, Sandeep Mehta, JJ., AIR 2024 SC 2835; 2024-4 SCC 508, held that 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”.

      In this case (Insolvency and Bankruptcy Board of India), the reference considered was Section 236(1) of the Insolvency and Bankruptcy Code, 2016, which reads as under:

      • “Offences under this Code shall be tried by the Special Court established under Chapter XXVIII of the Companies Act, 2013”.

      At the time the Code was enacted, the Special Court referred to in Section 236 of the Companies Act consisted of a person who was qualified to be a Sessions Judge or an Additional Sessions Judge. Subsequent amendments to Section 236 of the Companies Act, however, made it possible to contend that offences under the Code could be tried only by a Metropolitan Magistrate or a Judicial Magistrate of the First Class.

      The Apex Court found that the reference was ‘not general but specific’.  Therefore, it is held that the case is a case of ‘legislation by incorporation’ (i.e., subsequent change does not affect), and not a case of ‘legislation by reference’.

      The Court also pointed out that the Code has also suffered two subsequent amendments, in 2015 and 2018; and if the legislative intent was to give effect to the subsequent amendments in the Companies Act to Section 236(1) of the Code, nothing prevented the legislature from amending Section 236(1) of the Code. The legislature having not done so, the provision regarding the reference in Section 236(1) of the Code to the Special Court, as mentioned in Section 435 of the Companies Act, 2013, stood frozen as on the date of enactment of the Code.

      The Apex Court referred following decisions:

      • Bharti Airtel Ltd. v. Vijaykumar V. Iyer, 2024 SCC Online SC 4,
      • Ebix Singapore Private Limited v. Committee of Creditors, (2022) 2 SCC 401,
      • Embassy Property Developments P Ltd v. State of Karnataka, (2020) 13 SCC 308,
      • Girnar Traders v. State of Maharashtra, (2011) 3 SCC 1,
      • Ujagar Prints v. Union of India, (1989) 3 SCC 488 ,
      • Mahindra and Mahindra Ltd. v. Union of India, (1979) 2 SCC 529,
      • Bolani Ores Ltd. v. State of Orissa, (1974) 2 SCC 777,
      • New Central Jute Mills Co. v. Asst Collector, (1970) 2 SCC 820,
      • Collector of Customs, Madras v. Nathella Sampathu Chetty, AIR 1962 SC 316 : (1962) 3 SCR 786,

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      Civil Suits: Procedure & Principles

      Book No, 1 – Civil Procedure Code

      Principles and Procedure

      PROPERTY LAW

      Title, ownership and Possession

      Recovery of Possession: 

      Adverse Possession

      Land Laws/ Transfer of Property Act

      Land Reform Laws

      Power of attorney

      Evidence Act – General

      Sec. 65B

      Admission, Relevancy and Proof

      Law on Documents

      Documents – Proof and Presumption

      Interpretation

      Contract Act

      Law on Damages

      Easement

      Stamp Act & Registration

      Divorce/Marriage

      Negotiable Instruments Act

      Criminal

      Arbitration

      Will

      Book No. 2: A Handbook on Constitutional Issues

      Religious issues

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

      Book No. 4: Common Law of TRUSTS in India

      Mistake in Boundary or Survey Number will not Invalidate a Document; Insignificant Errors in Plaint will not Disentitle a Decree

      Saji Koduvath, Advocate, Kottayam

      Abstract

      1. If the property is clearly identifiable, insignificant errors in its description in pleadings are not fatal. The court can act upon such correct identification without requiring a formal amendment to the pleadings or the decree.

      • Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185 (the plaintiffs may not be non-suited, for no explanation as to a larger extent).
      • Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd. , AIR 2008 SC 225; 2007-13 SCC 421 (in the Schedule of the Property, certain blank spaces have been left for the insertion of the plot numbers maintained in the Village records).
      • Mohammed Munvar v. N.C. Nesan, 21 Mar 2024, 2024 Supreme(Mad) 613 (east and west boundaries interchanged).
      • Guda Sanjeeva Reddy v. Kodathala Sujatamma, 2006-4 ALT 636; 2006-4 CivCC 452; 2007-5 RCR(Civ) 271 (name of the Village was wrongly described in the plaint).

      2. An insignificant error in the plaint, even repeated in the decree, can be corrected by the court, invoking section 152 CPC.

      • Rahulghani v. Uma Shenkar, A.I.R. 1944 Oudh 5, (clerical error: ‘west’ for ‘east’)
      • Satyanarayana v. Purnayya, 1931 Mad 260 (wrong survey number)
      • J. Sarojini Alias Nesamma v. Narayani Sarojini, 2008-1 ILR(Ker) 153; 2008-1 KHC 897; 2008-1 KLT 516 (mistake in survey number).
      • Deo Kumar Sah v. Mahesh Pd. Rai, 2004-3 BBCJ 175; 2004-3 PLJR 354 (mistake in plot number and area).
      • Mohinder Singh v. Teja Singh, AIR 1979 P & H 47, (incorrect plot number and area)
      • Pratibha Singh v. Shanti Devi Prasad, (2003)2 SCC 330 (mistake in survey number)
      • Easwari Amma Prsannakumari v. Radhakrishna Pillai, 2015 (5) KerHC 922 (a survey number was omitted, and the length of the way was incorrect).

      3. A mere mistake occurred in the compromise petition Can Be Corrected In Decree

      • M. K. Soumini v. M. K. Sreedharen, 10 Jan 2017, 2017 Supreme(Ker) 173,

      4. Mistakes in decree arose from the erroneous plaint Can also Be Corrected In Decree

      • J. Sarojini Alias Nesamma v. Narayani Sarojini, 2008-1 ILR(Ker) 153; 2008-1 KHC 897; 2008-1 KLT 516 (mistake in survey number),
      • Subramanian Iyer v. Joseph George, 1959 K.L.T. 165 (boundaries of the schedule wrongly described; decree corrected).

      5. Even Incidental Errors Anterior To Decree (Original Document), Can Be Corrected In Decree

      • Abdhu v. Assainar (1993 [2] KLT 711)
      • Raman Nadar Velayudhan Nadar v. Janaki Karthi (2011 [2] KLT 149)

      6. Court Orders – Technical Defects will not defeat Substantive Rights

      • Kailash v. Nanhku, (2005) 4 SCC 480.
      • Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46).
      • State of Punjab v. Shamlal Murari, (1976) 1 SCC 719.
      • Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774,
      • Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425,

      7. Non-mentioning of survey number is not a ground to reject the application of Petrol Pump.

      • Rajesh Parmar v. Under Secretary, Petroleum Corporation, MANU/MP/0121/2019)
      • Indian Oil Corporation Limited v.  Gosala Raju, AIR 2022 AP (NOC) 260.

      8. “Falsa Demonstratio Non Nocet”  (Adequate and sufficient description with convenient certainty of what was meant to pass): an erroneous addition to the description will not vitiate it.

      • Umrao Bapu v. Ramakrishna Bapu, AIR1938 Nag. 93,
      • Durga Prased Singh v. Rajendra Narain Bagchi (1910) 37 Cal. 293,
      • Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184

      9. General principle – boundary descriptions shall prevail

      • Subhaga v. Shoba, 2006-5 SCC 466
      • T. Venkata Vijaya Lakshmi v. Kodali Rayana Rao, 2023-4 ALT 272; 2023-3 CivCC 746
      • Vishnu Anant Dessai v. Govind Vithal Sawant, 2020-5 All MR 496 (Bom);
      • Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959

      10.Boundary descriptions – Vague and Uncertain Description Rejected & Definite and Certain Preferred.

      • Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185
      • Sivaraman Nair v. Shamsuddin, 1990 (1) KerLT 187: 1990 KHC 295
      • Savithri Ammal v. Padmavathy, 1990 KHC 295,

      11. No Stamp Duty for Rectification Deed

      • P. Sasikumar v. State Of Kerala, 2024-4 KLT 864,
      • Jihas P.A. v. District Registrar, 2012 (3) KHC 146)
      • Rajesh Kumar K.T. v. State of Kerala, 2024 (3) KHC 425

      12. Error will not necessarily invalidate a document – Not Applied

      • Kamalamma v. Shibu, 2024-3 KerHC 547.
      • Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184,

      13. Execution of ‘Rectification Deed’

      • Rajesh Kumar KT  v. State of Kerala, 2024-3 KHC 425,
      • Vannathi Valatpil Mahmood v. State of Kerala, 2019 (2) KHC 736 (change in the description of the property)
      • Jihas v. District Registrar, 2012 (3) KLT 194 (mistake in mentioning flat number in the sale deed).

      14. Wrong description in Will. Legal heirs can execute a rectification

      • Baburaj P.K v. State of Kerala, 2019 (2) KHC 628.

      15. Clerical or Arithmetical Errors in the plaint and Final Decrees can be Rectified

      • Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR 1974 AP 201,

      16, When instrument may be rectified

      • Section 26 of Sp. Relief Act

      17. Suit for Rectification of Deed – When Needed?

      • Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-2 KLT 656.

      18. Intention of the Parties to prevail when conflict between area and boundaries

      • Krishnamoorthi Iyer v. Janaki Amma, 1957 KHC 202 : 1957 KLT 886,
      • Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)
      • The Church of South India Trust Association v. Raja Ambrose, 1978- 2 MLJ 620.

      19. No “suppression”, if the facts are (i) Not Material and  (ii) “Known” to the opposite side.

      • Avtar Singh v. Union of India, 2016-8 SCC 471, (in a case of information given to the employer by a candidate).

      Part I: Insignificant Mistakes in Proceedings in Suits

      Order VII Rule 3 of C.P.C, hereunder:

      • “3. Where the subject-matter of the suit is immovable property—Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.”

      Insignificant mistakes in pleadings (plaint or written statement) do not necessarily require formal amendment before judgment or decree, especially when they do not prejudice the other side. That is, the amendment may not be insisted upon by the court before Judgment or Decree.

      If Property Identifiable, Plaintiff Not to be Non-suited on Disparity in Extent

      In Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185, it is held as under:

      • “17. …. The description of boundaries are certain, identifiable and capable of fixing the boundary without any dispute. In such circumstances, the extent as such may not be so important. That there is difference in the extent as shown in the title deed and as found in the resurvey is not very material in fixing the boundary between the property of the plaintiffs and the property of the defendant.
      • 18. …. The southern boundary could be easily identified and it was so done by the Commissioner. Simply because the plaintiffs did not explain as to how they came into possession of a larger extent than that shown in the title deed, I do not think they must be non suited.”

      If parties went to trial, identifying property – Mistake can be Ignored

      In Guda Sanjeeva Reddy v. Kodathala Sujatamma, 2006-4 ALT 636; 2006-4 CivCC 452; 2007-5 RCR(Civ) 271, it is held as under:

      • “5. As stated above, since the parties went to trial knowing that the property is situated at Buchireddypalem Village and Mandai and since the suit is decreed, respondent is entitled to recover the plaint schedule property. So merely on the ground that the name of the Village was wrongly described in the plaint in the initial stage, revision petitioner cannot be heard to say that the decree is un-executable.”

      If Property Identifiable, Small Mistake will not Disentitle Decree

      In Beohar Rajendra Sinha v. State of M.P., AIR 1969 SC 1256, 1969(3) SCR 955, our Supreme Court held as under:

      • “Any unimportant error or defect (two persons had given notice under Section 80 of the Code of Civil Procedure, only one person filed the suit) cannot be permitted to be treated as an excuse for defeating a just claim. 

      Read: Similar Articles

      Ss. 99, 152 and 153 CPC: Unimportant Error – Not be Stretched Too Far

      The Civil Procedure Code makes it clear that an error or irregularity that does not affect the merits of the case or the jurisdiction of the court is not material so as to warrant dismissal. It embodies the settled policy of our law that mistakes in any proceedings in the suit, which cause no prejudice, should not defeat substantive justice.

      • “99. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction. No decree shall be reversed or substantially varied, nor shall any case be remanded in appeal on account of any misjoinder or non-joinder of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court.
        • Provided that nothing in this section shall apply to non-joinder of a necessary party.”
      • “152. Amendment of judgments, decrees or orders.: Clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.”
      • “153. General power to amend. The Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
      • Order VI Rule 17, CPC
      • “Amendment of pleadings.—The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties:
        Provided that no application for amendment shall be allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

      Mistake in deed carried forward in plaint, repeated in decree: Can be Cured u/S. 152

      In Subramania Iyer v. Joseph George, 1959 KLT 165, it was held (following Abdhu v. Assainar, 1993 -2 KLT 711) that a decree could be corrected, by exercise of jurisdiction under Section 152 of the CPC, even in a case where the error or mistake occurred even anterior to the suit, namely in the instrument or the document based on which the suit has been filed, and which has been carried forward into the plaint and repeated in the decree. In the said decision the Court has taken note of the views expressed in

      • Satyanarayana v. Purnayya (1931 Mad 260,
      • Ramakrishnan v. Radhakrishnan (AIR 1948 Madras 13),
      • Katamaraju v. Paripurnannadam (AIR 1949 Mad. 282) and
      • Krishna Poduval v. Lekshmi Nathiar (AIR 1950 Madras 751).

      “Any error, defect or irregularity” in Sec. 99 CPC

      In Kailash Singh v. Hiralal Dey, AIR 1994 Gau. 12, it was held that the expression “any error, defect or irregularity in any proceeding in the suit” in Sec. 99 includes the signing and verification of the plaint. (also: Ramesh B. Nyamagowdar v. Hosamani Major, AIR 2021 Kar 47; P.J. Joseph v. Suhara Beevi Hussain AIR 2000 Ker 60; Vippanapally Radha v. Brindavan Educational Society, 2012 2 AndhLD 487; K. Santhanam v. S. Kavitha, 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34).

      In Gold Medal v. Ameena Begum, 2004 (5) AndLT 542, it is held that the defect of the institution of the suit through a power of attorney is only a curable irregularity in view of Section 99 of the Code of Civil Procedure and definitely does not touch the jurisdiction of the Court.

      It is held by the Himachal Pradesh High Court (AIR 1957 HP 16) that irregularity in signing Vakalathnama is only a formal defect. (See also AIR 1924 Patna 114)

      The omission to explain the non-production of a document before tendering secondary evidence is only a mere irregularity. (59 IC 461).

      Section 151, CPC can also be Invoked for correcting a Decree

      In Raman Nadar Velayudhan Nadar v. Janaki Karthi, 2011-2 KLT 149, it was held that a decree could be corrected not only under Section 152 of the Code of Civil Procedure, but even the inherent powers under Section 151 of the CPC could be invoked in an appropriate case.

      In Niyamat Ali Molla v. Sonargon Housing Co-operative Society Ltd., AIR 2008 SC 225; 2007-13 SCC 421, an application under Section 151 of CPC was filed to insert certain plot numbers in the plaint and the extent of property.  Following Pratibha Singh v. Shanti Devi Prasad, AIR 2003 SC 643: (2003)2 SCC 330, it is held as under:

      • “It is not a case where the defendants could be said to have been misled. It is now well settled that the pleadings of the parties are to be read in their entirety. They are to be construed liberally and not in a pedantic manner. …. The statements contained in the body of the plaint have sufficiently described the suit lands. Only because some blanks in the schedule of the property have been left, the same, by itself, may not be a ground to deprive the respondents from the fruit of the decree. …. We, therefore, are of the opinion that only because the JL numbers (‘jurisdiction list’ numbers in the Village) in the schedule was missing, the same by itself would not be a ground to interfere with the impugned order.”

      Procedural defects and irregularities – Curable

      Our Apex Court held in Uday Shanker Triyar Vs. Ram Kalewar Prasad Singh, 2006-1 SCC 75, that filing an appeal without a vakalatnama or other authority was a curable defect. It is observed in Para 16 and 17 as under:

      •  “16. An analogous provision is to be found in Order VI, Rule 14, CPC, which requires that every pleading shall be signed by the party and his pleader, if any. Here again, it has always been recognised that if a plaint is not signed by the plaintiff or his duly authorised agent due to any bona fide error, the defect can be permitted to be rectified either by the Trial Court at any time before judgment, or even by the Appellate Court by permitting appropriate amendment, when such defect comes to its notice during hearing.      
        17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well recognised exceptions to this principle are:
               (i) where the statute prescribing the procedure, also prescribes specifically the consequence of noncompliance;
               (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it;
               (iii) where the non-compliance or violation is proved to be deliberate or mischievous;
               (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the Court;
               (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant.”

      Quoting the afore-stated passage from Uday Shanker Triyar v. Ram Kalewar Prasad Singh, the Madras High Court observed in K.  Santhanam v. S. Kavitha: 2011-1 CTC 286; 2011-1 LW 66; 2011-3 MLJ 34, that non-compliance with the Civil Rules of Practice (Rule 22 and 23) is a curable defect and an error of procedure is merely an irregularity; that it cannot result in rejection of the suit; and that even without a power of attorney, a party to the suit is entitled to have the pleading signed through another if that another person had been duly authorised. This view is taken in the following decisions also:

      • Bilasraika Sponge Iron Pvt. v.  Devi Trading Company: 2011-5 ALD 327; 2011-4 ALT 297  – (Agent under Special power of Attorney did not seek leave of the Court under the Civil Rules of Practice)
      • Nethra Chits (P) Ltd., v. B. Ramachandra Reddy, 2006 (4) ALT 190, (Foreman of the Company did not obtain permission of the Court.)
      • M/s. Gold Medal v. Smt. Ameena Begum 2004-5 ALT 542 (Suit instituted on a defective power of attorney; and corrected subsequently)
      • Kamal Silk Mills v. Kuncham Mohana Rao: 2002 (1) ALD 722 (DB), (Contentions under Rule 32 cannot be raised at the stage of execution)
      • Abu Taher v. Abdul Majeed: 1995 (1) ALT 57 (Did not obtain prior permission of the Court under the Civil Rules of Practice for filing the petition as the GPA holder.)

      Signing of Plaint is only a Procedural Matter

      In P.J. Joseph v. Suhara Beevi Hussain: AIR 2000 Ker 60, there was a power of attorney in favour of the husband of the plaintiff.  Husband filed suit on that basis. The defendant contended that the husband was not specifically authorized by the power of attorney to institute the suit. The plaintiff applied to the trial Court for permission to sign the plaint.  The High Court observed that even if there was any defect, the plaintiff could sign the plaint, as signing of the plaint was only a procedural matter. (Sections 99 and 99A of the CPC referred to)

      Non-mentioning of Survey Number

      Madhya Pradesh High Court  in Rajesh Parmar v. Under Secretary, Petroleum Corporation, MANU/MP/0121/2019, found that non-mentioning of survey number is not a ground to reject the application of Petrol Pump. It is stated as under:

      • “… However, inadvertence or clerical error occurred in the description of land in the application could not have been stretched too far to conclude that the land offered is at variance with the survey number mentioned in the application to declare the applicant not eligible for allotment of petrol pump. ….”

      Mistake arose from Plaint – Court can Correct Decree under S. 152

      In Easwari Amma Prsannakumari v. Radhakrishna Pillai, 2015 (5) KerHC 922, it was found that even where the mistakes in the decree occurred on account of the mistaken description of the suit property in the plaint (a survey number was omitted and length og the way was mistaken), the power under Section 152 of the Code would be available to the court to correct the decree. It is held as under:

      • “Since what was intended by the Court by virtue of its decision in the suit could not be achieved on account of the mistake in the description of the suit property in the schedule to the decree, although the said mistake had occurred on account of the mistake in the description of the suit property in the schedule to the plaint, as held above, the said mistake is one liable to be corrected invoking the power of the Court under Section 152 of the Code, as otherwise, the decision of the Trial Court as confirmed by the Appellate Court and this Court would become meaningless.”

      Mistake arose from Plaint – Court can Correct Decree under S. 152

      Relying on Rajesh Parmar v. Under Secretary (supra)  it is held in Indian Oil Corporation Limited v.  Gosala Raju, AIR 2022 AP (NOC) 260, as under:

      • “10. In any view of the matter, as per the settled law, when there is a mistake in survey number, extent and boundaries will prevail.”

      In Vishnu Anant Dessai v. Govind Vithal Sawant, 2020-5 All MR 496 (Bom), it is found as under:

      • “… On this score, the common law principles compel us to conclude that the boundaries prevail over extent  and even survey numbers.”

      The same principle can be seen in Ramaiya Asari v. Ramakrishna Naicker, 2000 (3) MLJ 327.   

      In Kannu Reddiar v. T. Palanirajan, 1995 (2) LW 769, it is emphasised as under:

      • “It is well established general principles of law that the boundary descriptions shall prevail over survey number, extent, etc., where there is conflict.”

      In PKAB Coop. Society v. Govt. of Palestine, AIR 1948 PC 207,laid down as under:

      • “In construing a grant of land a description by fixed boundaries is to be preferred to a conflicting description by area. The statement as to area is to be rejected as falsa demonstratio.” (Quoted in: K. P. Parameswaran Pillai v. Parvathy Amma Gourikutty Amma, 1985  KerLJ 54).

      In Ibrahim Koyakutty v. Varghese, 1951 KLT 117, it is observed as under:

      • “3. … .. But in the absence of circumstances indicating that application of the boundaries in determining the extent of the land that passed under the conveyance will lead to an error, usually in cases conflict between the area, survey number and the boundaries mentioned in the document the boundaries predominate and the rest is considered only as false or erroneous description. In this case there are no such circumstances and therefore we are clearly of the view that the disputed property is included in the documents mentioned above. … ……..” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959.)

      Section 152 can be invoked to cure the defect because of the incorrect plaint

      In Subramania Iyer v. Joseph George, AIR 1959 Ker 386, the particular question considered was whether Section 152 can be invoked to cure the defect in the decree which was prepared based on the incorrect plaint. The court said as under:

      • “Thus when there is an error in the description of mortgaged property owing to the accidental use of the word ‘west’ for ‘east’ (Rahulghani v. Uma Shenkar, AIR 1944 Oudh 5) or the insertion of wrong survey number (Satyanarayana v. Purnayya, AIR 1931 Mad. 260) and the error is repeated in the plaint and the decree, the court has been held to have ample powers to rectify the error. As Pandalai, J. observed in the Madras case just cited:
      • “There is nothing which limits the power of the court under S.152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the plaint. A suit for rectification of the instrument and decree is not the only remedy; an application for review may be appropriate, but that is no obstacle under S. 152 to an application.”
      • It is no doubt true that this case came in for dissent in the later case of Ramakrishnan v. Radhakrishnan, AIR 1948 Mad. 13, but the application there was made to correct the mortgage deed along with the judgment, preliminary decree and final decree passed upon it. And Gentle, C. J. delivering the judgment of the Court said:
        • “I am unable to see how S. 152 gives to a court jurisdiction and authority to modify documents, particularly documents upon which a suit is instituted. There is a remedy by way of suit and I find nothing in the provision of S. 152 which confers upon it similar powers as are conferred by S. 31, Specific Relief Act. In my view, S. 152 is for the purpose of correcting errors directly involved in the proceedings themselves and not for correcting errors which are anterior to the proceedings, particularly in documents upon which proceedings are brought.”
      • And the learned judges preferred to follow Mand Khan v. Govind Behari AIR 1934 All. 100.
      • In the later case before the Madras High Court Krishna Poduval v. Lekshmi Nathiar, AIR 1950 Mad. 751, the prayer was for amendment of the survey number of an item of property in the plaint schedule and the decree schedule when there was no dispute as regards the identity of the property or boundaries to it and the amendment was allowed under S.152. Discussing the matter the learned judge held:
        • “I do not think therefore that the amendment asked for goes to the root of the claim or an amendment is sought for in respect of any matter which has been a subject of controversy between the parties to the suit. It is only an amendment for correction of certain errors that have crept into the decree and in the plaint schedule which errors happen to be also in Ext. B-1 (Original document). The fact that Ext. B-1 also has the same errors as in the plaint schedule and in the schedule to the decree cannot disentitle the plaintiff’s to have the errors set right if they arc entitled to it under the provisions of the Code.” (Paragraph 5, page 752)
      • The learned judge distinguished AIR 1948 Madras 13 above referred to on the ground that the application there sought to amend the schedule to the document and following Katamaraju v. Paripurnanadam, AIR 1949 Mad. 282 which had favoured amendment in like circumstances.
      • I therefore hold that the court under S. 152 has undoubted jurisdiction to entertain the application filed by the plaintiff assuming of course he can sustain it on the facts.”

      In Vallabhaneni Vimalamba v. Ghanta Ratnamma, AIR 1966 AP 26; 1965-1 AndhWR 266, also the the question considered was whether Section 152 can be invoked to cure the defect in the decree which was prepared based on the incorrect plaint. The court said as under:

      • “It is now well settled that the power under Section 152 C. P. C. is not confined only to correct the mistakes in the drafting of the decree. It has been held to apply even to correct the mistakes or errors committed in the plaint, and even in a document on the foot of which the suit was filed. If authority is needed, reference may be made to T. V. Ranga Rao Naidu v. Balaksonlal Janaki Prasad, AIR 1941 Mad 940 and Satyanarayana Rao v. Purnayya, AIR 1931 Mad 260. The view held by the Allahabad and other High Courts that Section 152 does not deal with mistake of parties has not been subscribed for by the Madras High Court and this Court.
      • In Venkayya v. Satyanarayana, AIR 1959 Andh Pra 360 at p. 364 a Bench of this Court had ruled that a mistake committed by the plaintiffs in entering the acreage or the survey numbers due to inadvertence could be corrected under Section 152. The learned Judges held that as a mistake in that behalf crept into the plaint schedule, the same mistake necessarily entered into the judgment and decree, and that it is an accidental slip and a clerical mistake capable of being rectified under Section 152, and there is nothing which limits the power of the Court under Section 152 to correct such errors and mistakes which arise in the suit.”

      Section 152 CPC: Court has Wider Powers

      The Madras High Court, in C.K. Philips v. T.A. Shanmugam, (2003)2 MLJ 722, allowing a petition under Section 152 CPC held as under:

      • “The finding of the Court below that Section 152 C.P.C. cannot be invoked to correct the survey number of the property and that Section 152 can be invoked only to correct clerical errors or arithmetical errors in the judgments and decrees, in my opinion, is erroneous. Likewise the other reasoning given by the Court below that any kind of correction can be carried out only before the decree is passed is also not correct”.

      Clerical or Arithmetical Errors in the plaint and Final Decrees can be Rectified

      In Kalkonda Pandu Rangaiah v. Kalkonda Krishnaiah, AIR 1974 AP 201, it is laid down as under:

      • “Where clerical or arithmetical mistakes occur in copying the plaint schedules from the documents anterior to the suit the proceedings in the suit can always be corrected under Section 152, CPC. In such cases even the documents on the basis of which the suit was filed may be amended either in a suit under Section 31 of the Specific Relief Act or in a proper case even by an application under Section 152 CPC provided it in a case of misdescription and not one of disputed identity. In such cases if Section 152 is invoked it would obviate a suit which have ultimately bring the same result. In all cases where clerical or arithmetical errors creep-in in the plaint and as a consequence in the decrees as well, they can be rectified at any time even after a final decree. A case of such an amendment petition under Section 152 CPC filed in a pending suit even after a preliminary decree is passed therein is an a fortiori case.”

      Execution Court can Proceed Without Correcting (the Accidental Slip in) the Decree

      The Apex court in Pratibha Singh v. Shanti Devi Prasad, AIR 2003 SC 643: (2003)2 SCC 330, observed as under:

      • “When the suit as to immovable property has been decreed and the property is not definitely identified the defect in the Court record caused by overlooking of provisions contained in O.7, R.3 and O.20, R.3 of the C.P.C. is capable of being cured. After all a successful plaintiff should not be deprived of the fruits of decree. Resort can be had to S.152 or S.47 of the C.P.C. depending on the facts and circumstances of each case which of the two provisions would be more appropriate, just and convenient to invoke. Being an inadvertent error, not affecting the merits of the case, it may be corrected under S.152 of the C.P.C. by the Court which passed the decree by supplying the omission. Alternatively, the exact description of decretal property may be ascertained by the Executing Court as a question relating to execution, discharge or satisfaction of decree within the meaning of S.47, C.P.C. A decree of a competent Court should not, as far as practicable, be allowed to be defeated on account of an accidental slip or omission.”

      Following Pratibha Singh v. Shanti Devi Prasad (supra) it is held in Hindustan Petroleum Corporation Ltd.  v. Ajay Bhatia, AIR 2022 SC 4739, as under:  

      • “50.… The Court which passed the decree could supply the omission. Alternatively, exact description of the decretal property might be ascertained by the Executing Court, as a question relating to execution, discharge or satisfaction of decree within the meaning of Section 47.
      • 51. There could be no doubt that a decree should not to the extent practicable be allowed to be defeated. At the same time, a decree can only be executed in respect of the suit property if the suit property is easily identifiable. The extent of the suit property would have to be determined by the Executing Court, as a question relating to execution, discharge or satisfaction of the decree.”

      In Themma v. Infant Jesus Church, 2016-5 KHC 407; 2016-4 KLT 388, following Pratibha Singh v. Shanti Devi Prasad (supra), it is held as under:

      • “14. All the parties agree that the western boundary of the property covered by the agreement for sale belongs to the defendant and is not a road as described in the plaint schedule. This mistake can be corrected during the finalisation of the draft sale deed by the court below after considering the objections to the report of the Advocate Commissioner. The power is abundant in the court below to execute a ‘proper conveyance’ as is discernible from Section 28(3) of the Act where under minor discrepancies if any can be very well be corrected.”

      When an instrument may be Rectified

      Section 26 of Sp. Relief Act reads as follows:

      • “26. When instrument may be rectified –
      • (1) When, through fraud or a mutual mistake of the parties a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956) applies) does not express their real intention, then-
      • either party or his representative-in- interest may institute a suit to have the instrument rectified; or
      • the plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or
      • a defendant in any such suit, as is referred to in Cl.(b), may, in addition to any other defence open to him, ask for rectification of the instrument.
      • (2) If, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the Court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the Court may in its discretion direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.
      • (3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the Court thinks fit, may be specifically enforced.
      • (4) No relief for the rectification of an instrument shall be granted to any party under this section, unless it has been specifically claimed:
      • Provided that, where a party has not claimed any such relief in his pleading, the Court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.”

      Suit for Rectification of Deed – When Needed?

      In Aliyar v. Raju V. Vayalat, 2016-1 KHC 763; 2016-2 KLT 656, it is found as under:

      • “Admittedly, in Ext. A1 there are mistakes in the extent, survey number, boundaries and the details of the anterior title deeds. In these situations, it is clear that institution of a suit merely for the injunction reliefs will not serve the purpose of the respondent/plaintiff. Likewise, a suit for declaration that the plaint schedule property is the property that is included in Ext. A1 will also not help the respondent to get an effective and executable decree. It is, therefore, very clear that the patent mistakes in Ext. A1 will have to be rectified, otherwise the actual features available on the ground will be totally different from the descriptions shown in the respondent’s title deed. That apart, a declaratory relief can only be claimed in respect of a specific immovable property capable of being identified correctly. Indisputably, the descriptions in the schedule to Ext.A1 and the recital in the document do not reflect the actual state of affairs. Therefore, the declaratory relief can be effectively granted only after rectifying the mistakes in Ext. A1. Viewing from this angle, we are of the view that the most important and primary relief claimable under such a situation is the rectification of Ext. A1.”

      Small Mistake will not Disentitle Decree

      In Mohammed Munvar v. N. C. Nesan, 21 Mar 2024, 2024: Supreme(Mad) 613, the eastern and western boundaries have been interchanged in the schedule to the plaint. But it did not create any confusion or lead to the wrong identification of the property. After quoting Order VII Rule 3 of C.P.C, observed as under:

      • “38. As such, if the suit is in respect of an immovable property, the plaint shall contain the description, sufficient to identify and if could be identified by boundaries or numbers and in such case, the plaintiff shall specify such boundaries or numbers. ….. The description given in the plaint schedule by the plaintiff, satisfies the provisions of Order VII Rule 3 of C.P.C., as the property is identifiable. Therefore, the arguments of the learned Senior Counsel for the appellant that the decree cannot be granted as proper description of the suit property is not given, cannot be sustained. Even though the eastern and western boundaries have been interchanged in the schedule to the plaint, it does not create any confusion or lead to wrong identification of the property. Further, the Advocate Commissioner’s reports filed and evidence of C.W. 2/Deputy Inspector of Surveyor have fortified the fact that ‘C’ schedule suit property belongs to the plaintiff and the defendant has trespassed and also he is in possession of the ‘C’ schedule suit property.”

      In Satyanarayana v. Purnayya (1931 Mad 260) error in boundaries (‘west’ for ‘east’) occurred while copying an erroneous document to the plaint. It was held that in appropriate cases, such mistakes did not prevent the court from doing justice. It was held as under:

      • “There is nothing which limits the power of the Court under S. 152 to correcting errors, mistakes and omissions, which arise in the suit. Nothing prevents the Court from doing justice in an appropriate case where such mistakes arose by reason of copying an erroneous document into the Plaint. A Suit for rectification of the instrument and decree is not the only remedy; an Application for review may be appropriate, but that is no obstacle under Section 152 to an Application.”

      In Chandran v. Amruthavally, 2016 (5) Ker HC 444, 2017 AIR (CC) 1405; 2016-4 KLT 753, there was a mistake in the survey number of the property recorded in the final decree in the partition suit. It was held that it was open to the court, in exercise of power under Section 152 of the CPC to correct such a mistake. Paragraph 10 of the said judgment reads as under:

      • “8. In Subramania Iyer v. Joseph George (1959 KLT 165) it was held that a decree could be corrected even in a case where the error or mistake occurred even anterior to the suit, namely in the instrument or the document based on which the suit has been filed, which has been carried forward into the plaint and repeated in the decree, by exercise of jurisdiction under Section 152 of the CPC. It was observed therein that, there is no reason to restrict the powers of the court under Section 152 of the CPC to errors made by the Courts alone. In the said decision the Court has taken note of the views expressed in
        • Satyanarayana v. Purnayya (1931 Mad 260,
        • Ramakrishnan v. Radhakrishnan (AIR 1948 Madras 13),
        • Katamaraju v. Paripurnannadam (AIR 1949 Mad. 282) and
        • Krishna Poduval v. Lekshmi Nathiar (AIR 1950 Madras 751).
      • This Court held that even the errors that occurred anterior to the decree and which were in existence even in the original document, which happened to be carried forward to the plaint and decree, could be corrected in the decree, by exercise of the powers under Section 152 of the CPC. The same view has been taken by this Court in
        • Abdhu v. Assainar (1993 [2] KLT 711)
      • wherein also this Court accepted the proposition that even the mistakes that had crept in anterior to the suit can be corrected by the court in the decree. That was a case where a mistake that had crept in the preliminary decree regarding the survey number of the property therein was corrected.
      • In Raman Nadar Velayudhan Nadar v. Janaki Karthi (2011-2 KLT 149)
      • this Court held that a decree can be corrected not only under Section 152 of the Code of Civil Procedure, but even the inherent powers under Section 151 of the CPC could be invoked in an appropriate case.”
      • 10. In the instant case, as pointed out earlier, there is no dispute between parties regarding the identity of the property sought to be partitioned. The respondents have no objection to the correction of the survey number of the property in the manner as sought for by the revision petitioner. If the correction is allowed that will not cause prejudice to any of the parties to the litigation. The only apprehension is whether as per the revenue records the property in the particular survey number sought to be incorporated namely Sy. No. 644/5, is shown to be in the possession of third parties, in which event, the rights of the said third parties would be affected by the inclusion of the said survey number in the present case. I make it clear that the right of third parties, if any, over the property described in the survey number sought to be incorporated, will not be affected by such inclusion. If there is any disputed right, the parties to the present suit will have to approach the appropriate Court or authorities, seeking necessary reliefs.”

      In M. K. Soumini v. M. K. Sreedharen, 10 Jan 2017, 2017 Supreme(Ker) 173, it was found that the mistake occurred in the compromise petition, which led to the final decree could be corrected. It was pointed out that the documents produced before this Court showed that the correction of the mistakes in the final decree would not result in any change in the identity of the property.

      In J. Sarojini Alias Nesamma v. Narayani Sarojini, 2008-1 ILR(Ker) 153; 2008-1 KHC 897; 2008-1 KLT 516, the plaint schedule property was delivered . They have no complaint that the delivered property is a different property. Plaintiffs’ only grievance is that the survey number of the property was mistakenly shown as 237/2 instead of 238/1-A. This mistake had happened in the plaint when it was typed. Mistake was noticed only after the delivery. It was held that nothing prevents the Court from doing justice in an appropriate case where such mistakes arise; and that a suit for rectification of the instrument and decree is not the only remedy, an application for review may also be appropriate, that also is not the only way and will not be an obstacle for exercise of jurisdiction under Section 152 of the C.P.C. The court held as under:

      • “In the facts and circumstances of the case I am of the view that if really there is a grievance that in the plaint a mistake has been crept there should be some remedy for the revision petitioners. One remedy available to the revision petitioners is that they can file a review petition to reopen the execution proceedings, so that the pendency of the suit will continue so long as the execution proceedings are pending. Then the revision petitioners can move the court which passed the decree to make the corretion. Alternatively the revision petitioners can also sue for rectification of he mistakes crept in the survey number of the plaint schedule property. These remedies are open to them and they are at liberty to avail the above said remedies to redress their grievance. In the circumstances no interference is possible in the impugned order.”

      In this decision (J. Sarojini Alias Nesamma v. Narayani Sarojini) the High Court referred to an earlier decision, Subramanian Iyer v. Joseph George( 1959 K.L.T. 165), where the boundaries of the schedule property alone had been wrongly described and the schedule was otherwise correct in so far as it elated to survey number, extent, village etc. The question of correcting the plaint and the decree arose in the case for consideration. It was found that the language of Section 152 of the Code which enables the court to correct the clerical or arithmetical mistakes in judgments, decrees or orders or errors arising therein from any accidental slip or omission may at any time be corrected by the Court either of its own motion or on the application of any of the parties.

      Court Orders – Technical Defects will not defeat Substantive Rights

      The suits will not fail merely because of an incorrect survey number. The principle to be invoked will be –

      • Technical defects or clerical mistakes in the description will not defeat substantive rights.
      • If property identity is clear from the record, relief should not be denied on technical grounds. Minor errors do not invalidate proceedings if identity is clear.
      • Procedural law is meant to facilitate justice. Technicalities should not defeat substantive rights.
      • “Processual law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.” (Krishna Iyer, J.: State of Punjab v. Shamlal Murari, (1976) 1 SCC 719.
      • The Courts should give preference to the cause of substantive justice over the procedural technicalities.
      • Adjective law dealing with procedure alone be interpreted in such a manner as to sub-serve and advance the cause of justice. (Ghanshyam Dass v. Dominion of India, (1984) 3 SCC 46).
      • Krishna Iyer, J. in Sushil Kumar Sen v. State of Bihar (1975) 1 SCC 774, said as under: “The mortality of justice at the hands of law troubles a Judge’s conscience and points an angry interrogation at the law reformer. The processual law so dominates in certain systems as to overpower substantive rights and substantial justice. The humanist rule that procedure should be the handmaid, not the mistress, of legal justice compels consideration of vesting a residuary power in judges to act ex debito justiciae where the tragic sequel otherwise would be wholly inequitable. Justice is the goal of jurisprudence — processual, as much as substantive.”

      See also:

      • Sangram Singh v. Election Tribunal, Kotah, AIR 1955 SC 425,
      • State of Punjab v. Shamlal Murari, (1976) 1 SCC 719,
      • Kailash v. Nanhku, (2005) 4 SCC 480.

      No “Suppression”, if Facts are (i) Not Material and  (ii) “Known”

      It is held in Avtar Singh v. Union of India, (2016) 8 SCC 471, that there will be no “suppression”, if the facts are (i) Not Material and  (ii) “Known” to the opposite side.  This decision is referred to in:

      • Union of India v. Shishu Pal, AIR 2024  SC 3652
      • Ravindra Kumar v. State of U. P., 2024 5 SCC 264
      • State of West Bengal v. Mitul Kumar Jana, 2023-14 SCC 719
      • Ex-Const/Dvr Mukesh Kumar Raigar v. Union Of India, AIR 2023 SC 482
      • Satish Chandra Yadav v. Union Of India, 2023-7 SCC 536
      • Pawan Kumar v. Union of India, 2022 AIR SC 2829; 2023-12 SCC 317
      • State of Madhya Pradesh v. Abhijit Singh Pawar, 2018-18 SCC 733.

      Part II: Interpretation of Deeds

      Vague and Uncertain Description Rejected & Definite and Certain Preferred

      “Falsa Demonstratio Non Nocet”  (Adequate and sufficient description with convenient certainty of what was meant to pass, an erroneous addition to the description will not vitiate it) is referred to and applied in Umrao Bapu v. Ramakrishna Bapu, AIR1938 Nag. 93, and Durga Prased Singh v. Rajendra Narain Bagchi (1910) 37 Cal. 293, Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184

      In Sivaraman Nair v. Shamsuddin, 1990 (1) KerLT 187: 1990 KHC 295, it is found as under:

      • ‘9. In cases where there is a difference in the extent and the boundary covered by a document, one or the other which is clearer and more specific has to be preferred. In some cases it may be the boundary. In some other cases it may be the extent and in yet other cases it may be the side measurements. There is no invariable rule in this regard. None of the decisions on which the appellants rely has held positively that in all cases of such conflict the boundary alone shall prevail. On the other hand, in Krishnamurthy Iyer’s case (1957 KLT 886) Kumara Pillai, J. held that:
        • “The usual rule is that when there is a conflict between the area and the boundaries, the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. This is not an inflexible rule. When from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail.” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)

      Varadaraja Iyengar, J. in Krishnan v. Mathai, 1957 KerLT 42, held as under:

      • “The evidence supplied by boundaries, extent, survey numbers and lekhoms form the determining factors when the identity of the property is put in issue. If all these factors harmonise, there is little difficulty to identify the property in dispute. But when some of them are in conflict with the rest as when the extent and survey numbers do not agree with the boundaries usually the boundaries predominate and the rest is regarded as erroneous or inaccurate descriptions. This is not an inflexible rule and the guiding principle is to apply that test which is most unlikely to be vitiated by error.” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)

      In Velu v. Padmavathy Amma (UL Bhat, J.), ILR 1984-1 Ker 30; 1983 KLN Case Notes p.38 Case No. 39, it is stated as follows:

      • “A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the other decision rested only on the other description or descriptions.
      • When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject matter of the transaction, and the other descriptions must be rejected as erroneous or inaccurate.
      • This is not a rule of law and therefore is not inflexible in character it is a mere rule of construction which appears to be safe and almost an infallible guide.” (Quoted in: K. P. Parameswaran Pillai v. Parvathy Amma Gourikutty Amma, 1985  KerLJ 54; Chandrakumar v. Narayana Bahuleyan, ILR 2011-2 Ker 897; 2011-2 KHC 884; 2011-3 KLT 185)

      The decisions referred to in Velu v. Padmavathy Amma are the following:

      • Zamindar of Pachipenta v. Maharajah of Jeypore, XXIII MLJ 97,
      • Subbayya Chakkiliyan v. Manjan Muthia Goundan, AIR 1924 Mad. 493,
      • Durga Prasad Singh v. Rajendra Narain Bagehi, ILR 37 Cal. 293,
      • Kumaran Krishnan v. Ulahanna Mathai, 1957 KLT 42,
      • Chacko Joseph v. Varghese Markose, 1957 KLT 485,
      • Savarimuthu Nadar v. Kanakku Kali Pillai, 1957 KLT 825 and
      • Krishnamurthi Iyer v. Janaki Amma, 1957 KLT 886.

      In Savithri Ammal v. Padmavathi Amma, 1990-1 KLT 187, Bhat J. reaffirmed the proposition.

      Kerala High Court, in Ouseph Poulose v. Kuttappan Chothi (K. Vinod Chandran, J., on 12 November, 2012) referring Savithri Ammal, observed as under:

      • “11. This Court has time and again considered the procedure by which properties which are covered by documents come up for identification and difficulties are caused due to the change in extent, boundaries, survey numbers and so on and so forth. Reference can be safely made to Krishnan v. Mathai (1957 KLT 42), wherein the dispute on identity of the property relying on a mistake in survey number shown in the decree was negatived and Krishnamurthy Iyer v. Janaki Amma (1957 KLT 886) where it was held that the usual rule of predominance given to boundaries in the effect of conflict between boundaries and area was “not an inflexible rule”.

      See also –

      • Zamindar of Pachipenta v. Maharaja of Jeypore (XXIII MLJ. 97),
      • Subbayya Chakkiliyan v. Manjan Muthia Goundan (AIR 1924 Mad.493),
      • Durga Prasad Singh v. Rajendra Narain Bageni (ILT 37 Cal.293),
      • Savarimuthu Nadar v. Kanakku Kali Pillai (1951 KLT 825),
      • Kumaran Krishnan v. Ulahannan Mathai 1957 KerLT 42, 485,
      • Sheodhyan Singh v. Sanichara Kuer, AIR 1963 SC 1879,
      • KP Parameswaran Pillai v. Parvathy Amma, 1985  KerLJ 54,
      • Savithri Ammal v. Padmavathy, 1990 KHC 295,
      • Kamakshi Ammal v. R. Ranganathan, 82 LW 142.

      Wrong description in Will. Legal heirs can execute a Rectification Deed

      In Baburaj PK v. State of Kerala, 2019 (2) KHC 628, it was held that there was no impediment under the law to execute a rectification deed by the legal heirs, to rectify a wrong description in a registered Will, if there was unanimity among them as to the intention of the testator.

      No  Stamp Duty for Rectification Deed

      In P. Sasikumar v. State of Kerala, 2024-4 KLT 864, it is held that a rectification deed, which merely corrects descriptions without altering rights, does not attract stamp duty as a conveyance under the Kerala Stamp Act. It is pointed out as under:

      • “10. A Single Bench of this Court in Jihas P.A. (Jihas P.A. v. District Registrar and another, 2012 (3) KHC 146) held that when a mistake in a deed is sought to be corrected by executing a rectification deed, stamp duty is not payable. In Rajesh Kumar K.T. (Rajesh Kumar K.T. v. State of Kerala, 2024 (3) KHC 425), another Single Bench of this Court held that the rectification deed executed to correct a mistake in respect of the re-survey number of property, wherein the boundary, extent and old survey number remain unchanged cannot be treated as a fresh sale deed for the purpose of levying registration fee and stamp duty payable. Same view was taken in Vannathi Valappil Mahmood (Vannathi Valappil Mahmood v. State of Kerala and Others, 2019 (2) KHC 736).”

      Error will not necessarily invalidate a document – Not Applied

      The principle that ‘an error will not necessarily invalidate a document’ is found not applicable in the facts of Kamalamma v. Shibu, 2024-3 KerHC 547. The High Court observed as under:

      • “21. It is true that generally when there is a conflict between area and boundary, the boundary will prevail. However, as held in the decision in Savithri Ammal (supra) and Chandrakumar (supra), the above rule is not an inflexible one. In the present case, the properties of the defendants could be clearly identified using the boundaries given in Exts.A2 and A3, while it could not be identified using the area given in the document. In the above circumstances, it is to be held that in the present case, the principle that “when there is conflict between area and boundary, boundary will prevail” squarely applies.
      • 22. Relying upon the decision in Savarimuthu Nadar Chellayan Nadar v. Kanakku Kali Pillai Padmanabha Pillai, 1957 KHC 184, the RSA 710 of 2014, learned counsel for the plaintiffs would argue that the maxim “falsa demonstratio non nocet” is to be applied in this case, in support of his argument that if there be an adequate and sufficient description with convenient certainty of what was meant to pass, an erroneous addition to the description will not vitiate it. It is true that an error will not necessarily invalidate a document if it can be determined from the other facts in it. However, in this case the above maxim does not in any way help the plaintiff as the defects in his case are so fatal that it could not be set right by any other means.”

      Execution of ‘Rectification Deed’

      In Rajesh Kumar KT  v. State of Kerala, 2024-3 KHC 425, it is held that a ‘rectification deed’ is enough if the wrong description is only in ‘Re-Suvey Number’. It reads as under:

      • “On the basis of the same, the petitioner would submit that the boundaries, extent and original survey numbers remain the same but the only anomaly is regarding the resurvey number in the description of the property and that is what is sought to be corrected by way of Ext.P2 rectification deed.”

      The Court relied on the following decisions:

      • Vannathi Valatpil Mahmood v. State of Kerala, 2019 (2) KHC 736 (change in the description of the property)
      • Jihas v. District Registrar, 2012 (3) KLT 194 (mistake in mentioning flat number in the sale deed).

      Intention of the Parties

      In Krishnamoorthi Iyer v. Janaki Amma, 1957 KHC 202 : 1957 KLT 886, it is said as under:

      • “2. ….. .. The usual rule, no doubt, is that when there is a conflict between the area and the boundaries mentioned in a document the description of the boundaries should be accepted in preference to the area mentioned in the document for determining the extent of the land conveyed thereunder. But, this is not an inflexible or infallible rule, and even in the cases in which this rule has been applied, it has been pointed out that when, from the proved circumstances it is clear that the intention of the parties was only to convey the extent mentioned in the document, even though the boundaries would take in a larger area, effect has to be given to their intention and the description of the boundaries cannot be allowed to prevail. .. .. …” (quoted in: Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959)

      In The Church of South India Trust Association v. Raja Ambrose, 1978- 2 MLJ 620, it is observed as under.  

      • “6. The principle of construction grants made under instruments in writing seems to be now well-settled not only in this country, but in many other systems as well. The principle accords with common sense and might be stated, broadly, thus: The subject-matter of the grant would depend on the intention of the parties as expressed in the relative conveyance deed.”

      Intention of the Court in Court sale

      In Pradeep Kumar v. State Bank of Travancore,1999 1 CivCC 429; 1998 2 KLJ 862; 1998 2 KLT 927, the Kerala High Court held that the Intention of the court is the guiding factor, if a mistake in the description of property in a court sale. It referred to the following decisions:

      • Sobla and Anr. v. Jethmal – AIR 1961 Rajasthan 191. It is observed as under:
      • “It is a mistake made in giving the boundaries in the execution application which was repeated in the warrant of attachment, the sale proclamation and the sale certificate. I see no reason why this mistake cannot be corrected on an application under S.151 C.P.C. It is in the ends of justice that this injury should be remedied and needless expense and inconvenience to parties avoided.”
      • Aziz Ullah Khan v. Court of Wards – AIR 1932 Allahabad 587. The Court observed as follows:
      • “….the power of the Court to make corrections necessary for the ends of justice is not confined only to powers exercisable under S.152. Extensive powers may be exercised also under Ss.151 and 153. We consider that this is eminently a case in which the accidental slip should be corrected as the contention is necessary for the ends of justice”.
      •  Dwaraka Parshad v. Rang Behari Lai – AIR 1934 Lah 29. The Lahore High Court held as follows:
      • “It is clear that the sale certificate must be based on the sale proclamation and this is the basis of discovering what has been sold. Assuming that the identity of the property was not iii doubt the question still remains whether the misdescription of the items of property in the ‘sale proclamation did not materially affect the price realised and whether in the circumstances it is fair to set aside the sale leaving the decree holder to pursue his remedies under the amended decree, or whether the mis description made any material difference and therefore, the sale proclamation should also be amended. As it is a mere case of misdescription I think the sale proclamation can be amended in the sense that it is competent for the Court so to do. But the question whether the misdescription affected the sale price or not is question of fact and there has been no decision on this material point. The onus of the issue will there fore be on the parties and the Court when coming toils decision will bear in mind the above remarks. If the Court comes to the conclusion that the misdescription made no material difference in the sale price, it will amend the sale proclamation and the sale certificate as directed by the decree holder”.

      Boundaries Preferred Over Survey Number, Extent

      Our Apex Court, in Subhaga v. Shoba, 2006-5 SCC 466, observed as under:

      • “That a property can be identified either by boundary or by any other specific description is well established. Here the attempt had been to identify the suit property with reference to the boundaries and the Commissioner has identified that property with reference to such boundaries. Even if there was any discrepancy, normally, the boundaries should prevail.”

      The Church of South India Trust Association v. Raja Ambrose, (1978) 2 MLJ 620, it is further laid down as under:

      • “Where the deed sets out the extent and measurements correctly, there can be no difficulty in determining the subject-matter of the grant. But where no measurements are given or the extent mentioned in the deed is either vague or is only a rough and ready approximation, one has to look to other indications in the deed in order to fix the identity of the property which is the subject of the grant. If the deed in question sets out the boundaries of the property conveyed, then these boundaries will have to be accepted as a clear reflection of the intention of the grantor and they will conclude not only the exact positioning of the property conveyed, but also its true extent. The boundaries given in the deed will also, in such cases, prevail over the measurements given in the deed, if these are given as approximations.”

       In T. Venkata Vijaya Lakshmi v. Kodali Rayana Rao, 2023-4 ALT 272; 2023-3 CivCC 746, it is held as under:

      • “It is settled law that boundaries prevail over extent and survey number as also measurements.”

      Conclusion

      The following can be epitomised from the above discussion:

      • Clerical mistakes in the plaint or written statements will not be fatal, because such mistakes in the decree, arising from the erroneous plaint, can also be corrected invoking Section 152 CPC, in the interest of justice.
      • Mutual mistakes and clerical mistakes in deeds are to be dealt with distinctly from unilateral and wilful mistakes.
      • Patent mistakes in a deed will have to be rectified by a correction deed or by a court decree.
      • Even a wrong description in a registered Will can be remedied by executing a rectification deed by the legal heirs.
      • Dispute on identity of the property, relying on a mistake in survey number, cannot be validly raised.
      • Usually, boundaries would be accepted in preference to other descriptions; but, it is not an inflexible rule.
      • Court will at first try to reconcile the various (divergent) descriptions; if not possible, descriptions that are definite and certain (or clearer and more specific) have to be preferred; and the rest are rejected as erroneous or inaccurate.
      • The intention of the executant (or parties) is paramount.

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      Civil Suits: Procedure & Principles

      Book No, 1 – Civil Procedure Code

      Principles and Procedure

      PROPERTY LAW

      Title, ownership and Possession

      Recovery of Possession: 

      Adverse Possession

      Land Laws/ Transfer of Property Act

      Land Reform Laws

      Power of attorney

      Evidence Act – General

      Sec. 65B

      Admission, Relevancy and Proof

      Law on Documents

      Documents – Proof and Presumption

      Interpretation

      Contract Act

      Law on Damages

      Easement

      Stamp Act & Registration

      Divorce/Marriage

      Negotiable Instruments Act

      Criminal

      Arbitration

      Will

      Book No. 2: A Handbook on Constitutional Issues

      Religious issues

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

      Book No. 4: Common Law of TRUSTS in India

      Survey Plan and Area Calculation: A Cursory Look

      Saji Koduvath, Advocate, Kottayam.

      Introduction

      A survey plan shows the shape and size of a property. It also helps to calculate the area of the land. Section 82 of the Bharatiya Sakshya Adhiniyam, 2023, provides as under:

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

      A proper survey commission report, supported by a correct and reliable survey plan, is indispensable for the effective adjudication of a large number of civil disputes. Courts and advocates should have a general idea and understanding of surveys and survey plans.

      F-lines and G-lines

      In survey plans, two types of lines are commonly seen—continuous lines and broken (or dashed) lines. Alongside the survey plan, we also see the field book (or ladder).

      Continuous lines show the outer Field-lines (F-lines) of the plot.

      Broken lines in a survey plan represent the Guidelines (or Baselines) called G-lines drawn from one bend or a corner of the plot to an opposite bend or corner.

      • The purpose of a G-line is to measure the perpendicular distances (offsets) from the G-line to the boundary bends on either side of the G-line. It is for dividing the land into imaginary right-angle triangles (triangles with one angle of 90 degrees) or trapeziums (four-sided quadrilaterals, two sides of which lie parallel), enabling the area to be calculated in a simple and systematic manner.
      • In surveying practice, these internal G-lines are fixed first, as an axis, and the measurement begins from the starting point of a G-line.

      In the case of a large plot, there may be more than one G-line with a view to making the entire plot into triangles or trapeziums.

      Offsets Fixed with the Cross-Staff

      In surveying, the cross-staff is used to measure the offsets (perpendicular distances from the G-lines to the boundary bends). The cross staff is used to ensure a 90-degree angle for every offset.

      Calculation of Area

      Each triangle and trapezium, stated above, is shaped in the following manner:

      • Triangle: The required portion of the G-line will be its one side; the offset measurement will be the second side; and the outer field boundary (F-line) will be the third side.
      • Trapezium: Apart from the G-line portion and the outer boundary, two (parallel) offsets are taken into consideration for forming the four sides.

      The area of a right-angle triangle is calculated using Heron’s formula. It is:

      • Area = ½ base × altitude.

      The area of certain parts (triangles that are not right-angle triangles) may have to be calculated with the side measurements of the triangles. The formula applied in such a case, with side measurements a, b and c, is the following:

      • A = √[s(s-a)(s-b)(s-c)]
      • ‘s’ is the semi-perimeter of the triangle given by s = ½ of (a + b + c).

      In certain cases, a portion of the area between two G-lines may need to be calculated by drawing (and measuring) a diagonal (check line) to form two triangles.

      Trapeziums are formed between two G-lines or between two offsets. The area of a trapezium is calculated using the following formula:

      • A = ½ of (a + b) × h, where a and b are the lengths of the parallel sides and h is the perpendicular distance between them (required length of the G-line).

      Surveying Steps Taken by the Surveyor

      The surveyor follows these steps:

      • A rough sketch (draft) of the plot is prepared.
      • One or more G-lines are fixed and drawn in the sketch. The beginning and end points of each G-line are shown with letters (A–B; if there are multiple G-lines, they are placed as C–D, E–F, and so on).
      • To fix and measure the offset length — from the G-line to the boundary-bend (which are marked L, M, N, O, P, etc.) — the cross-staff is used. Flags will be placed at the starting and end points of the G-line, and also at the bend. The surveyor aligns the cross-staff along the G-line by sighting (i) the beginning and end points of the G-line through the slit of the cross-staff and (ii) the required outer bend through the opposite cross-slit.
      • After fixing the cross staff as stated above, the distance (i) from the beginning point of the G-line to the position of the cross staff, (ii) the distance from the outer bend to the G-line (position of the cross staff), and (iii) the outer boundary forming the third side of the triangle, or the fourth side of the trapezium are measured, and the measurements are duly entered in the diagram.
      • In this manner, all offsets—namely, the distances measured from the bends to the G-lines —and the lengths of the outer field boundaries, are taken and recorded in the sketch.

      Field Book or Ladder

      The field book is usually recorded in the following pattern:

      D (75.0)
      69.02.0T
      68.027.0S
      43.07.0R
      38.015.0Q
      23.02.0P
      16.07.0O
      10.05.0N
      5.05.0M
      C
      B
      (192.0)
      L11.0190.0
      M14.0188.0
      N15.0157.08.0Z
      O13.0132.028.0Y
      P13.0124.020.0X
      Q10.0115.028.0W
      R12.0100.0 26.0 V
       S1 3.088.032.0U
       T1 3.076.024.0D
      U110.049.0 
      V110.027.0  
        4.06.0C
      2.03.0L
        A  

      It is prepared in the following manner:

      • AB and CD are G-lines.
      • At the bottom, the starting point (alphabet A) of the G-line (AD) is entered.
      • Above it, the distance from the point A to the first offset point on the G-line (2.0 metres) is written.
      • Since the first offset (first bend) is towards the right, the offset distance (3.0 metres) is entered in the right-hand column, and the corresponding boundary bend (L) is stated in the further right column.
      • The second offset (second bend) is also towards the right, the offset distance (6.0 metres) is entered in the right-hand column, and the corresponding boundary bend (C) is stated in the further right column.
      • The third offset being 27 meters away from the point A, and the length of the offset is 10 meters, these matters are also entered.
      • In this manner, entire boundary points (letters L to Z1) and the offset points and measurements are entered.
        • Note: If a and b are the sides of the 90-degree angle of a rectangle triangle, the length of the opposite side (hypotenuse) will be √[a2 + b2]. It is represented by: c2 = a2 + b2.
        • The measurements of all the trapeziums can be checked, applying the formula: c2 = a2 + b2 (after measuring/ drawing the diagonals, or check-lines, in these trapeziums).

      Area Calculation

      • Areas of all the triangles and trapeziums are calculated using the required formula.
      • Finally, the areas (all triangles and trapeziums) are added together to get the total extent of the property.

      Read also:

      End Notes:

      Accuracy Presumed on Govt. Maps and Plans u/s 82 BSA (83, IEA)

      In Dnyaneshwar Balu Patole v State of Maharashtra, 2011 AllMR(Cri) 1889; 2011-4 MhLJ(Cri) 208, it is held as under:

      • “From the language of section 83 (IEA), it is clear that Court shall presume that the maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate but maps or plans made for the purposes of any cause must be proved to be accurate. It shows that when plans of town or area or certain roads, forests, rivers, nalas, etc. are prepared for public record and general information there is presumption of its accuracy. However, when a map is prepared for particular cause or purpose, there is no presumption of accuracy and that map has to be proved by leading necessary evidence. If a map is prepared by the investigating agency to prove scene of offence ,that map is prepared for the particular purpose, i.e., to establish scene of offence and certain facts, which the prosecution wants to establish, there can not be any presumption of accuracy to such map. Such map will have to be proved like any other fact by leading necessary evidence.”

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      Civil Suits: Procedure & Principles

      Book No, 1 – Civil Procedure Code

      Principles and Procedure

      PROPERTY LAW

      Title, ownership and Possession

      Recovery of Possession: 

      Adverse Possession

      Land Laws/ Transfer of Property Act

      Land Reform Laws

      Power of attorney

      Evidence Act – General

      Sec. 65B

      Admission, Relevancy and Proof

      Law on Documents

      Documents – Proof and Presumption

      Interpretation

      Contract Act

      Law on Damages

      Easement

      Stamp Act & Registration

      Divorce/Marriage

      Negotiable Instruments Act

      Criminal

      Arbitration

      Will

      Book No. 2: A Handbook on Constitutional Issues

      Religious issues

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

      Book No. 4: Common Law of TRUSTS in India

      Photographs and Videos: Admissibility, and Proof Invoking Presumptions and ‘Silent Witness’ Theory

      Saji Koduvath, Advocate, Kottayam.

      Abstract

      Once a photograph or a video (or its copy) is duly admitted in evidence and its authenticity and integrity are established, the court may, in its discretion, act upon it as substantive evidence of the facts depicted without requiring independent ocular testimony, if it is satisfied as to its reliability.

      Key Points at a Glance

      • 1. Once a photograph or a copy of a video is duly admitted in evidence—having been produced along with the certificate required under Section 63(4) of the Bharathiya Sakshya Adhiniyam (BSA)—
      • the court can rely upon it as a piece of evidence,
        • (i) based on the ‘general (and reliable) evidence’ (such as the identity of the persons seen in the photograph/video, the place, time, etc.)
        • (ii) as substantive evidence,
        • (iii) invoking the discretionary presumption under Section 119, BSA,
        • (iv) without insisting on any further independent proof (without calling a person who saw the scene).
      • 2. The presumption under Section 119, BSA, is permissive and rebuttable (if the court prima facie finds or thinks from a general appearance that it is not correct, or is tampered with, it need not take the presumption).
      • 3. Sections 61 to 63 deal with admissibility and proof of computer outputs (copies) alone; and, the truth or correctness of the contents is not dealt with. In proper cases the court can presume the truth of its contents.

      Proof of a Computer Output (copy)

      • The only statutorily recognised mode of proof of a Computer Output (copy) is the production of a certificate under Section 63(4) of the BSA .
        • Note: The term “statement” is construed in the light of the Supreme Court decision Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, to embrace all forms of computer output, regardless of their nature—whether a video, a photograph, or any other digital record. However, such an expansive construction does not appear to be supported either by the text of the provision or by its underlying rationale and intended scope.
        • See the article – Admissibility of Electronic Evidence: Does Section 61 of the BSA Permit Oral Proof (Overriding Arjun Panditrao)
      • This certificate is accepted unless its correctness is specifically challenged.
      • A photograph or a copy of video stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory presumptions that the court can invoke.
      • The court is entitled to infer that a photograph or video correctly represents the scene or object as it existed at the time of recording, under the ‘silent witness’ theory – the document “speaks for itself”.
      • A photograph or a video, by its very nature, speaks for itself. Upon its due admission in evidence, the court can rely upon it, on the basis of ‘general (and reliable) evidence’, such as the identity of the persons seen in the photograph/video, the place, the time, or the occasion in which the photo or video was taken, without insisting upon further formal or technical proof.
      • The person who refutes the correctness of the photograph or video has the duty to adduce proper and admissible evidence, to discredit the presumption as to its correctness (This presumption under Section 119, BSA is ‘rebuttable’ for the word “may” in that Section).

      Presumptions on Photographs and Videos: Discretionary and Rebuttable

      Section 119 of the Bharatiya Sakshya Adhiniyam (Section 114 of the Evidence Act) allows the Court to

      • ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.

      A photograph or a video, by its very nature, speaks for itself. They are “silent witnesses”. It may be the most effective evidence in the peculiar nature of a case. (For example, the photograph that represents the scene of an accident.) It is on the supposition – photographs do not lie (Rajesh Khaitan v. State of WB, 1983 CrLJ 877; Anurag Sharma v. Manushi Sharma, 2017 AIR(CC) 332; 2016-234 DLT 530).

      Videos Speak for Themselves – English Decision

      It is laid down by the United Kingdom Court of Appeal in R v. Downey, [1995] 1 Cr.App.R. 547 CA and R v Blenkinsop, [1995] 1 Cr.App.R. 7, CA as regards a video –

      • It “should be shown without comment, since it was for the jury to decide what they revealed.”

      In R v. Downey, [1995] 1 Cr.App.R. 547, the principle accepted was that a video can “speak for itself” if properly proved. In this case, the same type of offence was committed at different places. Both were video recorded. The similarities were well identified. This led to an acceptance of the video by the court. It was found that the perpetrator of one of the crimes was likewise guilty of the other.

      CCTV Footage – The Best Evidence

      In Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that the CCTV footage is the best evidence (R. Banumathi, Kurian Joseph, Anil R. Dave, JJ.). It was a case concerning two Italian nationals. They were accused of the murder of another Italian national. The place of occurrence was a hotel room. All were on their trip to Varanasi. It was a case of circumstantial evidence. Symptoms of strangulation were absent in the medical reports. The defence was that the death occurred during their absence. They relied on the non-production of the digital evidence – CCTV footage and SIM card details. The Supreme Court set aside the conviction, pointing out –

      • “The courts below have ignored the importance of best evidence, i.e. CCTV camera in the instant case.”
      • “Notwithstanding the fact that the burden lies upon the accused to establish the defence plea of alibi in the facts and circumstances of the case, in our view, prosecution in possession of the best evidence– CCTV footage ought to have produced the same. In our considered view, it is a fit case to draw an adverse inference against the prosecution under Section 114 (g) of the Evidence Act that the prosecution withheld the same as it would be unfavourable to them had it been produced.”
      • Note: Tomaso Bruno is overruled in Arjun Panditrao v. Kailash Kushanrao, on the point – whether computer output can be proved otherwise than invoking Section 65(4) of the Evidence Act; that is, under Section 65. In Tomaso Bruno it was held that secondary evidence of the contents of CCTV footage can also be led under Section 65 of the Evidence Act. Hence the CCTV footage was found admissible. In this regard Tomaso Bruno followed Navjot Sandhu. It is held in Arjun Panditrao that in the teeth of Anvar P. V., it could not have been said to be a correct statement of the law.

      Photographs/Videos Speak for Themselves – Indian Decisions

      In Rajendra Sail v. M P High Court Bar Association, AIR 2005 SC 2473; 2005-6 SCC 109; (Y.K. Sabharwal & Tarun Chatterjee, JJ.), it is held that the video exhibited in that case speaks for itself.

      The Madras High Court in Chairman, Tamil Nadu Electricity Board, Chennai v. Kogila,
      2021-3 CTC 118; 2021-2 LW 28, while dealing with a suit for damages, filed by the legal heirs of a person who died due to the fall of an electrical pole on him, held as under:

      • “Ex. A-10 photos and CD clearly show that the pole was heavily damaged. One could also to see the iron rods exposed and rusted. The cement concrete covering peeled off. The broken electrical pole on the ground with live wire seen in the photographs speak for itself.”

      In Pawan Kumar Agarwal v. State of Uttar Pradesh, 2007-6 ADJ 551, Allahabad High Court held as under:.

      • “The photographs of the constructions which were given at that point of time, show that it was semi finished construction, and the photographs appended with this Review Application, show that constructions have been completed and they speak in volumes for itself. Photographs, which have been filed as Annexure-16 to the writ petition, and the photographs, which have been annexed along with this Review Application clearly speak that the applicant had full knowledge of the pendency of the aforementioned writ petition and in spite of the same constructions were carried on and completed.”

      Following decisions also say – the photographs/videos speak for itself.

      • Swami Vivekanandnagar Co-op. Housing So. Ltd. v. Ahmedabad Municipal Corporation, 2022-3 GLH 122; 2022-4 GLR 2732 (Photograph)
      • Madhavnagar Coop. Housing So. Ltd v. Joint Registrar, 2020-2 GLR 1437, J.B. Pardiwala, J. (Photograph)
      • Jetunben v. State of Gujarat, 2017-2 GLR 1640, J.B. Pardiwala, J. (Video)
      • New India Assurance Company v. Mohd. Akram Bhat, 2016-2 JKJ 12 (Photograph)
      • Shakuntala Bhadouria v. M. P. Griha Nirman Mandal, 2014-3 MPHT 62; 2014-1 MPJR 131 (DB) (Photographs)
      • Gujarat State Road Transport Corporation v. Bhagirathi Ganapathy, 2010-2 CCR 1041 (Photograph)
      • Raghuveer Singh v. Shiv Kumar Swami, 2006-3 RDD 1653; 2006-3 RLW(Raj) 2266; 2006-4 WLC 210 (Video)
      • Taran Parkash Mohan Lal v. State, 1962 CrLJ 189 (P&H) (Photograph)

      Seizure Of Heroine Non-Production of CCTV Footage – Not Invite Acquittal

      It is also relevant to note the following decision of the Madras High Court on seizure of the contraband, a commercial quantity of 1 kg. of Heroine, in Intelligence Officer, Narcotic Control Bureau, Chennai v. Rasool Mydeen, 2023-1 MLJ(Cri) 19, which reads as under:

      • “Though the prosecution could have also produced the CCTV footage from the Central Railway Station, the very absence by itself will not entitle the accused for acquittal. The principle that non-production of the best evidence in the case of the prosecution could not be employed, as the CCTV cannot be said to be a best evidence when the seizing officer and the witnesses have deposed and the mahazar is produced and the CCTV footage can at best be termed as a corroborative material. Therefore, the mere non-production thereof will not entitle the appellant for an acquittal.”

      Presumptions under Section 119 of the BSA

      Invoking the legal presumptions under Section 119 of the BSA, a court can begin with an assumption as to the correctness of a photograph or video, casting the onus on the opposite party to rebut that presumption by placing on record material sufficient to dislodge or shift it. The presumption under Section 119 is discretionary and rebuttable. Consequently, the law does not oblige the proponent of the photograph or video to negate every theoretical possibility of manipulation.

      However, it must have been fairly and accurately depicted. Where the rebuttal evidence creates a reasonable doubt regarding the authenticity or integrity of the photograph or video—whether on the ground of tampering, manipulation, fabrication, or otherwise—or where the court considers that further clarification is necessary to assess its probative value, the court may insist on further proof.

      • Note: The court has jurisdiction to require the party concerned to prove even documents admitted (by the opposite side). Besides Section 53, BSA (facts admitted need not be proved: S. 58, IEA) and the powers of the court under Section 168, BSA (S. 165, IEA), the scheme of the Procedural Acts (CPC and BNSS/CrPC) also shows it. See – 
        • Order VIII Rule 5, CPC
        • Order XII, Rule 2A(1) [Proviso], CPC and 
        • S. 330, BNSS (S. 294 of the CrPC).

      A Mere Bald Denial of a Video Insufficient

      Invoking the general presumption (Section 119 of the BSA), as regards the video properly admitted in evidence, the courts in India have consistently held –

      • ‘A mere bald denial of the contents of a video recording is insufficient‘; but, ‘there should be material to show that the video clippings are doctored or morphed’ [State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129.]
        • See also: Jagjit Singh v. State of Haryana, (2006) 11 SCC 1 [The court proceeded, observing – ‘there is no room for doubting the authenticity and accuracy of the electronic evidence‘].

      Photographs – In many cases, a Corroborative Piece; It Can be the Best Evidence also

      A photograph, being a document, ordinarily requires proof through a proper witness to establish its authenticity and relevance. However, it need not invariably be proved by examining the photographer, and may be proved through any competent witness capable of speaking to the facts depicted or the circumstances of its production. Once duly admitted, a photograph may constitute primary or substantive evidence, though in many cases it is used to corroborate other evidence.

      As pointed out above, in Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178, it is held that CCTV footage can be a ‘Best Evidence‘.

      In short, a photograph or copy of a video, once duly admitted in evidence, may constitute substantive and even the best evidence. The court can rely upon it by invoking the statutory presumptions, without insisting on further independent proof. The principle is that a video can “speak for itself” if properly proved.

      International Criminal Proceedings: No strict Requirement – Photographs be Corroborated

      According to Rule 63(4) of the  of the ‘International Criminal Proceedings (ICC) Rules of Procedure and Evidence’, it is pointed out in Prosecutor v Lubanga, ICC-01/04-01/06-2842,14 March 2012, TC I-718, that there is no strict legal requirement that a photograph has to be corroborated by other evidence for the Court to be able to rely on it and establish a specific fact [See: End Notes ].

      The probative value of a document is a matter for the Court

      Though in many cases a photograph or video is relied upon only as a corroborative piece of evidence, it can be substantive and independent evidence. It may also be a ‘best evidence‘, as shown above.

      It is also important – the determination of the probative value of a document is a matter for the court. In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:

      • “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.”

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

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

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

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

      • (a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)]: The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
        • “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
      • (b) Her Majesty v. Jaiyhi He [2017 ONCJ 790]: The Ontario Court of Justice in Canada opined to the following effect:
        • The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility: (i) The video is relevant, showing the crime scene or other evidence linked to the issues at trial; and (ii) the video is authentic — that it accurately represents the events depicted.
      • Her Majesty v. Jaiyhi He [2017 ONCJ 790] referred R. v. Bulldog (2015 ABCA 251, Alberta (Western Canada) Court of Appeal).

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

      The appellants in R. v. Bulldog (2015 ABCA 251, Alberta (Western Canada) Court of Appeal) challenged the authenticity and admissibility of the DVD. They relied on R. v. Nikolovski, [1996] 3 S.C.R. 1197.    The Court considered whether the Crown was bound to prove that the video recording had not been altered or changed. The appellants argued that R. v. Nikolovski mandated a two-fold test (i) requiring proof that the video accurately depicted the facts and (ii) proof that it had not been altered or changed. The Alberta Court of Appeal disagreed. It held (paragraphs 26 to 33):

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

      Bald Denials are Insufficient to Discredit the Authenticity of Video Footage

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

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

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

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

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

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

      Distinct Evidentiary Position of a Section 63(4) Certificate

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

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

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

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

      In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, our Apex Court further affirmed as under:

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

      Definition of Document Includes Photographs and Videos

      Section 2(1)(d) of the Bharat Sakshya Adhiniyam, 2023 (BSA), defines ‘document’ as under:

      • “ (d) ‘document’ means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.”

      By virtue of Section 63 of the BSA, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (computer output) shall be ‘deemed to be also a document’.

      Section 3(18), General Clauses Act, 1897, defines document as under:

      • “Document shall include any matter written, expressed, or described upon any substances by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter.”

      Section 2(8) of the Bharatiya Nyaya Sanhita, 2023, defines ‘document’ as any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, and includes electronic and digital record, intended to be used, or which may be used, as evidence of that matter.

      Going by the definitions, ‘document‘ includes not only all materials or substances upon which thoughts of a man are represented by writing or any other species of conventional mark or symbol, but also records of information of some sort (Santhosh Madhavan @ Swami Amritha Chaithanya v. State, 2014 KerHC 31).

      Electronic Record is Documentary Evidence

      It is well established — under Section 3 of the Evidence Act (Sec. 2(1)(d) of the BSA), the electronic record produced for the inspection of the Court is documentary evidence (Anwar PV v. PK Basheer, 2014-10 SCC 473).

      In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that the following were “documents” under Section 3 of the Evidence Act-

      • (i) tape records of speeches (See also: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 ) and
      • (ii) audio/video cassettes (See: Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1976-2 SCC 17) including compact disc (See also: Singh Verma v. State of Haryana, 2016-15 SCC 485).

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

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

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

      Proof by Certificate under Section 63(4)

      In view of the non-obstante clause (“Notwithstanding anything contained in this Adhiniyam”) in Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, the only Mode of Proof of a computer output (copy) is the evidence through a certificate under Section 63(4).

      • Therefore, even in cases where formal proof of the digital photos or videos is dispensed with (for the opposite party admits it), a certificate under Section 63(4) of the BSA is necessary.

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

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

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

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

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

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

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

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

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

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

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

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

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

      Pictorial Testimony Theory and Silent Witness Theory

      • Pictorial Testimony Theory — Photograph Need Not Be Proved.
      • Silent Witness Theory — Photograph Must Be Proved.

      Pictorial testimony theory

      • It is applied when a photograph is used merely as an aid to a witness in explaining or illustrating his testimony—for example,
        • a doctor explaining injuries with reference to a photographs,
        • witness identifying a scene/person with a photograph,
        • identification of a deceased through a photograph,  
        • accident site photos to explain the incident by a witness.
      • In these cases, the primary evidence is the oral testimony of the witness and not the contents of the photograph itself. The photograph is admitted merely as an aid to enable the witness to explain or illustrate what he personally perceived (and the photograph itself is not relied upon as substantive evidence). Consequently, it is not necessary to examine the photographer, provided the witness could affirm that the photograph fairly and accurately represents what he saw. In such cases, the photograph does not constitute substantive evidence, and therefore, no certificate under Section 63(4) of the BSA (Section 65B of the IEA) is required.

      Silent witness theory or Communication theory

      • It is invoked when the photograph itself constitutes substantive and probative evidence of what it depicts, speaking for itself without supporting oral testimony—for instance,
        • an X-ray film showing a fracture,
        • a photograph depicting the accused in a crowd holding a weapon (though the photographer did not notice him),
        • a photograph of the scene of occurrence of a crime.
        • CCTV footage.
        • speed camera photographs.
      • In these cases, the reliability and authenticity of the photographs or video must be proved, for the court relies upon what is depicted by the camera, CCTV, etc., in the mechanical/ electronic process, and not what the human witness who operated the process perceived.

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

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

      As stated above, in silent witness theory cases, photographs or videos are required to be proved. However, such proof need not necessarily be by way of formal proof through the examination of the photographer or the person who captured the image.

      Court to Draw a Prima Facie Presumption of Correctness

      The law does not proceed on any presumption that electronic or visual evidence is to be viewed with constant suspicion.

      The party producing a photograph or video is required only to establish foundational facts sufficient for its admissibility and relevance. Once this burden is discharged and the document is duly admitted, the Court can draw a prima facie presumption of correctness under Section 119 of the BSA (Section 114 of the IEA).

      If S. 63/65B Requirement is fulfilled, CD is admissible, Like a Bocument

      In Kailas v. The State of Maharashtra: 2025 INSC 1117, our Apex Court held as under:

      • “19. … However, strangely, the High Court opined that the video would become relevant only if it is played during deposition of each witness so that the witness could explain its contents in his own words resulting in a transcript of the video. In our view, this is a strange and unacceptable reasoning for the simple reason that the CD is an electronic record and once the requirement of Section 65B is fulfilled it becomes an admissible piece of evidence, like a document, and the video recorded therein is akin to contents of a document which can be seen and heard to enable the Court to draw appropriate inference(s). No doubt, there may be an occasion where to appreciate contents of a video an explanatory statement may be needed, but that would depend on the facts of a case. However, it is not the requirement of law that the contents of the video would become admissible only if it is reduced to a transcript in the words of a witness who created the video or is noticed in the video. Besides that, in the instant case, the search and seizure operation was sought to be proved by oral evidence of witnesses. The video, therefore, was perhaps to corroborate the oral testimony. …”

      General Evidence on Factual Features through a ‘Proper’ Witness Sufficient

      Besides admission of the other side as regards the authenticity, the photographs or videos may instead be proved through a ‘proper’ witness capable to furnish ‘general (and reliable) evidence’ (to invoke the ‘general presumption‘ under Section 119, BSA) regarding the factual features depicted therein, such as the identity of the persons in the photograph, the place, the time, or the surrounding circumstances.

      The following legal principles are relevant in this matter:

      • 1. The relevance of the photograph or video can be established by ‘general evidence’ regarding the identity of the persons seen in the photograph, the place, etc.
      • 2. The admissibility of a photograph or copy of a video (under the Section 63(4) certificate) and its formal proof are two distinct and independent matters.
      • 2. Even in cases where formal proof of the photographs or copies of videos is dispensed with, the certificate under Section 63(4) of the BSA (Section 65B of the IEA) is necessary — in view of the non-obstante clause in Section 63 of the BSA.
      • 3. A photograph or a copy of video, admitted in evidence on the strength of a certificate under Section 63(4), stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory (general) presumptions that the court can invoke (under Section 119 BSA), it being direct visual depictions of facts.
      • 4. The certificate under Section 63(4) is accepted unless its correctness is specifically challenged. The oral evidence of the person who issued the certificate becomes relevant (for the purpose of admitting the document) only where the certificate itself is specifically and successfully challenged by the party who disputes its authenticity or correctness.
      • 5. Therefore, the court is entitled to infer that a photograph or video, once duly admitted in evidence, correctly represents the scene or object as it existed at the time of recording. It is doctrinally recognised as the ‘silent witness’ theory – the document “speaks for itself”.
      • 6. Once a photograph or a copy of a video is duly admitted in evidence, the court cannot discard it, equating it to hearsay or corroborative evidence. The court cannot, as an invariable rule, insist upon further direct proof of the facts depicted in the photo or video. That is, the court has to accept it as a piece of (substantive) evidence.
      • 7. The presumption attached to a photograph or a video admitted in evidence being one rebuttable, the opposite party can rebut it by placing appropriate evidence to show that the photograph or video does not correctly represent the scene, object, or occurrence as it existed at the relevant point of time, or that the factual position had materially changed.

      Photo Identification falls under the Pictorial Testimony Theory

      Photo identification falls under the Pictorial testimony theory. Because the court has nothing to perceive from the photograph by itself; it only serves as an aid to the witness. The material and substantive evidence is the personal knowledge of the witness, and not what is depicted in the photograph.

      The Kerala High Court (KT Thomas, J.), in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, confirmed the conviction, holding that Chacko was the person who was killed. It was on a photo identification. The Court held as under:

      • “PW I identified the person in M.O. 9 photo as the person who was killed. There is no doubt that M.O. 9 is the photograph of Chacko, the film representative. It was contended that since P. W. 1 himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person, it would be possible to identify him later.”

      Read also:

      Pictorial Testimony Theory: No Enacted Law; Only Judicial Exposition

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

      Section 162 of the BSA reads as under:

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

      R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157

      In R.M. Malkani v. State of Maharashtra, AIR 1973 SC 157, the Apex Court summarised the earlier decision, Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720, (which considered the evidentiary value of tape recording, compared to that of a photograph) as under:

      • “In Nagri’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720) the appellant offered bribe to Sheikh a Municipal Clerk. Sheikh informed the Police. The Police laid a trap. Sheikh called Nagree at the residence. The Police kept a tape recorder concealed in another room. The tape was kept in the custody of the police inspector  Sheikh gave evidence of the talk. The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae. It is also comparable to a photograph of a relevant incident. The tape recorded conversation is therefore a relevant fact and is admissible under section 7 of the Evidence Act.” (Referred to in: K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275)

      After summarising Nagri’s case (Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720), the Supreme Court continued as under:

      • “The Court will take care in two directions in admitting such evidence. First, the Court will find out that it is genuine and free from tampering or mutilation. Secondly, the Court may also secures scrupulous conduct and behaviour on behalf of the Police. The reason is that the Police Officer is more likely to behave properly if improperly obtained evidence is liable to be viewed with care and caution by the Judge. In every case the position of the accused, the nature of the investigation and the gravity of the offence must be judged in the light of the material facts and the surrounding circumstances.”

      Conclusion

      • The only Mode of Proof of a computer output (copy) is the certificate under Section 63(4).
      • Where formal evidence is required to establish the relevance or authenticity of a photograph or video, it is sufficient for the party concerned (under the silent witness theory) to adduce ‘general evidence’ relating to the factual aspects depicted therein—such as the identity of the persons depicted, the place, the time, or the circumstances depicted.
      • As pointed out in State Represented by the Inspector of Police, Chennai v. V. P.  Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, a bald denial of the contents of the videotape is not adequate to doubt its authenticity; there should be material to show that they are doctored or morphed.
      • The photograph or video constitutes substantive evidence. Though in many cases it is relied upon as corroborative evidence, in an appropriate case it may, by itself, establish the fact in issue, independently and without the aid of other evidence. It may also be from the ‘best evidence‘ in certain cases (Tomaso Bruno v. State of Uttar Pradesh, (2015) 7 SCC 178). In any case, the probative value of a document is a matter for the court.
      • The photograph admitted merely as a non-probative aid to enable a witness to explain or illustrate what he personally perceived need not be proved by a ‘proper’ witness; and, no certificate is required for such photographs under Section 63(4) of the BSA.

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      End Notes — 1

      Electronic Evidence — Indian Law in Comparative Perspective to Other Jurisdictions

      Electronic Evidence – Cannot be Ignored on any Technicality

      In Shafhi Mohammad s. State of Himachal Pradesh, AIR 2018 SC 714; 2018-2 SCC 801, , our Supreme Court, stated as under:

      • “21. We have been taken through certain decisions which may be referred to. In Ram Singh vs. Ram Singh [Ram Singh vs. Ram Singh, 1985 Supp SCC 611] , a three-Judge Bench considered the said issue. English judgments in R. v. Maqsud Ali [R. v. Maqsud Ali, (1966) 1 QB 688] and R. v. Robson [R. vs. Robson, (1972) 1 WLR 651] and American Law as noted in American Jurisprudence 2d (Vol. 29) p. 494, were cited with approval to the effect that it will be wrong to deny to the law of evidence advantages to be gained by new techniques and new devices, provided the accuracy of the recording can be proved. Such evidence should always be regarded with some caution and assessed in the light of all the circumstances of each case. Electronic evidence was held to be admissible, subject to safeguards adopted by the Court about the authenticity of the same. In the case of tape-recording, it was observed that voice of the speaker must be duly identified, accuracy of the statement was required to be proved by the maker of the record, possibility of tampering was required to be ruled out. Reliability of the piece of evidence is certainly a matter to be determined in the facts and circumstances of a fact situation. However, threshold admissibility of an electronic evidence cannot be ruled out on any technicality if the same was relevant”. (Quoted in: Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1)

      Proof on Video – UK, US and Canada 

      The following are the well-accepted UK authorities on proof of electronic evidence.

      • (i) R. v. Maqsud Ali [1966] 1 QB 688) – on tape recordings,
      • (ii) R v. Clare and Peach (1995] 2 Cr App R 333) – on photograph,
      • (iii) R v. Atkins [2009] EWCA Crim 1876 – on CCTV.

      The following is the important US authority on proof of videos.

      • State of Nevada v. Archanian, 145 P 3d 1008 (2006) – Supreme Court of Nevada (a U.S. state)

      The following are the well-accepted Canadian authorities on proof of videos.

      • (i)  R. v. Bulldog, 2015 ABCA 251 – Alberta Court of Appeal(Western Canada).( It is followed in  Her Majesty v. Jaiyhi He, 2017 ONCJ 790 –  Ontario Court of Justice in Canada)
      •  (ii) Her Majesty v. Jaiyhi He, 2017 ONCJ 790 –  Ontario Court of Justice in Canada.

      These decisions consistently laid down the following as to the admissibility of a video in evidence:

      • (a) The video must be relevant to the issues at trial.
      • (b) The video must be authentic – that it accurately represents the events depicted.

      Madras High Court Relied on the above Canada Decisions

      While considering the developments in the law on video and photographic evidence, the Madras High Court, in State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019-2 CTC 391; 2019-3 CTC 391; 2019-2 MLJ(Cri) 129, relied on the aforesaid decisions –

      • (a) State of Nevada v. Archanian, 145 P 3d 1008 (2006);
      • (b) Her Majesty v. Jaiyhi He, 2017 ONCJ 790.

       The Madras High Court held as under:

      • “115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray. Two examples may be noticed.
        • (a) State of Nevada v. Archanian, 145 P 3d 1008 (2006) was a murder case before the Supreme Court of Nevada, where, a key piece of evidence was the digital video recorded by the store’s surveillance system. The accused attacked the authenticity of the video footage on the ground that the VHS tape given to the police video technician was not the original and that the technician had isolated the relevant camera view and highlighted certain portions of the video. It was this composite videotape that was shown to the jury. In the trial, the prosecution acknowledged that they had no way of knowing whether the images were accurately transferred from the original digital recording to the VHS version but testified that they appeared to be the same. The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
        • “There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
        • (b) More recently, in Her Majesty v. Jaiyhi He, 2017 ONCJ 790 Kenkel, J. of the Ontario Court of Justice in Canada formulated a test, very similar to our own and that has been alluded to by us in para 105 (supra). The Court opined:
        • “The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility:
        • They must prove the video is relevant, showing the crime scene or other evidence linked to the issues at trial.
        • They must prove the video is authentic – that it accurately represents the events depicted.”

      Halsbury’s Laws of England

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

      • “1471. Audio and video recordings. – An audio recording is admissible in evidence provided that the accuracy of the recording can be proved, the recorded voices can be properly identified, and the evidence is relevant and otherwise admissible [R. v. Maqsud Ali, (1965) 2 All ER 464, R v. Ashiq Hussain [1966] 1 QB 688, 49 Cr. App. Rep 230, CCA. For the considerations relevant to the determination of admissibility see R. v. Stevenson, R. v. Hulse, R. v. Whitney [1971] 1 All ER 678, 55 Cr. App. Rep 171; R. v. Robson, R. v. Harris [1972] 2 All ER 699, 56 Cr.App. Rep 450. See also R. v. Senat, R. v. Sin (1968) 52 Cr. App. Rep 282, CA; R. v. Bailey [1993] 3 All ER 513, 97 Cr. App. Rep 365, CA. Where a video recording of an incident becomes available after the witness has made a statement, the witness may view the video and, if necessary, amend his statement so long as the procedure adopted is fair and the witness does not rehearse his evidence: R. v. Roberts (Michael), R. v. Roberts (Jason) [1998] Crim. LR 682, 162 JP 691, CA.]. However, that evidence should always be regarded with caution and assessed in the light of all the circumstances [R. v. Maqsud Ali, (1965) 2 All ER 464, R. v. Ashiq Hussain [1966] 1 QB 688, 49 Cr.App. Rep 230, CCA. As to the use of tape recordings and transcripts see R. v. Rampling [1987] Crim. LR 823, CA; and see also Buteria v. DPP (1986) 76 ALR 45, Aust. HC. As to the tape recording of police interviews see para 971 et seq ante; and as to the exclusion of a tape recording under the Police and Criminal Evidence Act, 1984 s. 78 (as amended) (see para 1365 ante) as unfair evidence see R. v. H [1987] Crim. LR 47, Cf R. v. Jelen, R. v. Karz (1989) 90 Cr. App. Rep 456, CA (tape recording admitted despite element of entrapment).].
      • A video recording of an incident which is in issue is admissible [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC.]. There is no difference in terms of admissibility between a direct view of an incident and a view of it on a visual display unit of a camera or on a recording of what the camera has filmed. A witness who sees an incident on a display or a recording may give evidence of what he saw in the same way as a witness who had a direct view [Taylor v. Chief Constable of Cheshire [1987] 1 All ER 225, 84 Cr.App. Rep 191, DC. As to the admissibility of video recordings as evidence identifying the defendant see also R. v. Fowden and White [1982] Crim. LR 588, CA; R. v. Grimer [1982] Crim. LR 674, CA; R. v. Blenkinsop [1995] 1 Cr.App. Rep 7, CA. A recording showing a road on which an incident had occurred was admitted in R. v. Thomas [1986] Crim. LR 682. As to the identification of the defendant by still photographs taken by an automatic security camera see R. v. Dodson, R. v. Williams [1984] 1 WLR 971, 79 Cr.App. Rep 220, CA; as to identification generally see para 1455 ante; and as to the admissibility of a copy of a video recording of an incident see Kajala v. Noble (1982) 75 Cr.App. Rep 149, CA.].” (Quoted in: P.  Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161)

      R. v. Maqsud Ali

      R v. Maqsud Ali, (Court of Appeal, England and Wales, Criminal Division [1966] 1 QB 688), considered the admissibility of secret tape recordings. It is a foundational case on audio recordings. It was cautioned that such evidence should be relevant and reliable, and also be a legitimate exhibit.

      R v. Clare and Peach

      R v. Clare and Peach (Court of Appeal, England and Wales, Criminal Division [1995] 2 Cr App R 333)  is an authority concerning the admissibility of photographic identification evidence under the Police and Criminal Evidence Act, 1984 (UK). It is held that the production of photographs to witnesses amounts to a “recognition” rather than a “formal identification” procedure.

      R v. Atkins

      R v. Atkins, [2009] EWCA Crim 1876, of the Court of Appeal (Criminal Division) ), England and Wales, is a modern locus classicus on the visual evidence (CCTV) and identification testimony and expert opinion in criminal proceedings. The Court of Appeal held that expert evidence, in cases involving CCTV footage and photographic comparisons, could be admissible when it assisted the jury beyond their ordinary experience. However, the Court emphasized that such evidence must be based on a demonstrably reliable methodology.

      R. v. Bulldog, 2015 ABCA 251

      This decision of the Alberta (Western Canada) Court of Appeal is the leading authority on the following:

      • (i) A video can be proved by any one of the following –
        • (1) the camera operator;
        • (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw;
        • (3) a person qualified to state that the representation is accurate; or
        • (4) an expert witness.
      • (ii) What is required is the proof as to authenticity of the video; and not the evidence that the video is ‘not altered’.

      Two questions came for consideration in this case. They were –

      • .1. “Can a digital video only be authenticated by an eyewitness”?
      • 2. Should there be proof – video was not altered or changed?

      Both questions were answered negatively in R. v. Bulldog.

      “Can a digital video only be authenticated by an eyewitness”?

      One of the main questions in R. v. Bulldog, 2015 ABCA 251, was whether a digital video can only be authenticated by an eyewitness.

      It held as under:

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

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

      Another main question in R. v. Bulldog, 2015 ABCA 251, was whether a digital video can only be authenticated by an eyewitness. The appellants argued that R. v. Nikolovski, [1996] 3 S.C.R. mandated a two-fold test: that is  –

      • .(i) requiring proof that the video accurately depicted the facts and
      • (ii) proof that it had not been altered or changed.

      The Alberta Court of Appeal (R. v. Bulldog, 2015 ABCA 251) disagreed with the appellant finding, in a nutshell, as under:

      • 1. When accuracy of the video is satisfied, evidence regarding the absence of alteration was not necessary.
      • 2. The mere fact of alteration did not automatically render a video recording inadmissible.
      • 3. The Crown’s failure to establish that the DVD was not altered was not fatal if it is proved that the DVD was a substantially accurate and fair representation of what it purported to show.

      The Alberta Court of Appeal (R. v. Bulldog, 2015 ABCA 251) said it as under:         

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

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

      Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog, 2015 ABCA 251, the Ontario Court in Her Majesty v. Jaiyhi He, 2017 ONCJ 790, KENKEL J., said:

      • “Introduction
      • [1] Constable Sebastian found a white Mercedes stopped in the roadway and a man lying unconscious on the grass nearby. Mr. He was subsequently charged with having care or control of a vehicle while his ability to operate that vehicle was impaired by consumption of alcohol. The next day, another officer went to a business near the scene of the incident and saw two surveillance cameras that could have captured the events on video. He spoke with a manager who had access to the surveillance video system, watched the videos from those cameras and found that one captured this incident. The manager copied the video from their system to a DVD the officer had brought for that purpose. At issue is whether the Crown has proved the surveillance video admissible where no person from the business was called to authenticate the copy.
      • Surveillance Video Authentication
      • [2] The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility:
        • They must prove the video is relevant, showing the crime scene or other evidence linked to the issues at trial.
        • They must prove the video is authentic – that it accurately represents the events depicted.
        • The test is satisfied on a balance of probabilities – R v Bulldog 2015 ABCA 251 at paras 39-40.[1]
      • [3] The defence refers to a statement in R v Nikolovski, [1996] SCJ No 122 at para 28 as setting the test for authentication, “Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.” The defence submits that while there is eye witness evidence that can authenticate a portion of this video, there is no witness who can identify the initial events so there’s no evidence that portion of the video is an accurate representation. Second, the Crown has failed to prove that the video has not been altered or changed. The Crown has not called anyone from the company that kept the surveillance system so the video has not been authenticated and should not be admitted.
      • [4] The argument that Nikolovski sets out a two-step test for video authentication was rejected by the Alberta Court of Appeal in R v Bulldog supra. The court noted that Nikolovski was not a case about video admissibility as that had been conceded at trial.[2] They found that the passage cited above does not state a test or necessary condition for authentication, but rather a sufficient condition – Bulldog at para 28. What matters with video evidence is the degree of accuracy of its representation. So long as there is other evidence which shows the video is accurate, no evidence regarding the absence of any change or alteration is necessary – Bulldog at para 32.
      • [5] Constable Lewis went back to the scene during business hours the day after the accused’s arrest. He spoke to the people at the company and was referred to a manager who had access to the surveillance video equipment. Constable Lewis saw the video recording system, he viewed the surveillance video at the relevant time and found that it showed this incident. He watched the manager make a digital copy directly onto a DVD that the officer had brought for that purpose.
      •  [6] Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video provided the whole of the evidence establishes that the video in question is substantially accurate[3] and a fair depiction – Bulldog at para 37.
      • The surveillance system described by the officer operates automatically. The copying of a digital record as described by the officer is a simple and now familiar procedure. A side by side comparison of the two videos is not necessary to prove the reliability of the copy in that context. There’s nothing in the evidence that casts doubt on the integrity of this record. I find the circumstances described by the officer and his direct observations establish the integrity and accuracy of the video on the balance of probabilities. The testimony of a company representative to confirm the officer’s observations about the video system and the fact that a direct digital copy was made would add little to the officer’s evidence. The absence of a company witness does not render the video inadmissible.
      • “7. While the circumstantial evidence is sufficient, in this case, there is further direct evidence that independently shows the video is accurate. The surveillance video is in sync with all of the other evidence at trial. The officers’ testimony as to the scene when they arrived, the times the various officers arrived, their actions, the position of the accused, the departure of other parties, the arrival of the ambulance is all consistent with this video. The two police in-car videos are also consistent with this surveillance video.
      • [8] On this point, the defence submits that the evidence of the officers and the police in-car videos may confirm the accuracy of the surveillance video after they arrived, but it cannot confirm the accuracy of the video prior to that time. I disagree. The fact that every part of the video that could be confirmed by independent evidence is consistent with that evidence is a circumstance which strongly supports the accuracy of the entire video including those minutes before the police arrived. I find the surveillance video is also admissible on that basis.”

      Quoting the para 6 and 7 above, the Madras High Court, in State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019-2 CTC 391; 2019-3 CTC 391; 2019-2 MLJ(Cri) 129), said as under:

      • “We have referred to these decisions in order to reiterate that a pragmatic and purposive interpretation of the law governing the admission of electronic evidence is consistent with the development of the law in international jurisdictions as well.
      • 116. We, therefore, unhesitatingly hold that the photos and videos in M.Os.45,49,50,51,52 and 53 were taken contemporaneously when the attack was taking place and have not been doctored and can be read in evidence.”

       “Balance of Probabilities”

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

      Conclusion

      The following are the distinctive features of Indian law that significantly relax the strict burden of proof governing electronic evidence:

      • (i) Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023 stipulates that a computer output (i.e., a copy of an electronic record) is ordinarily admissible upon the production of the prescribed certificate, thereby facilitating the mode of proof of secondary electronic evidence; and
      • (ii) Section 119 of the Adhiniyam enables the Court to presume the accuracy of electronic records, including photographs and video recordings, with the result that the evidential burden shifts to the opposing party to rebut such presumption by placing cogent material on record.

      In contrast, UK law adopts a more common law–driven and cautionary approach. While electronic and video evidence is readily admissible upon proof of relevance and authenticity, the courts have consistently emphasised the risks inherent in visual identification, particularly from CCTV footage. The leading authority in this regard is R v Atkins. It emphasises careful judicial scrutiny, especially where the quality of the images is poor or where identification rests on inference.

      Thus, Indian law tends to ease the evidentiary burden at the threshold of admissibility. The UK law places comparatively greater emphasis on rigorous scrutiny at the stage of evaluation and weight, particularly in cases involving identification from video recordings

      A similar facilitative approach is discernible in Canadian law. Both the Canada Evidence Act and the Ontario Evidence Act recognise a presumption as to the “integrity of an electronic documents system”, in the absence of evidence to the contrary. In this respect, Indian law aligns more closely with the Canadian model, in that it employs statutory presumptions to ease the evidentiary burden, rather than relying predominantly on case-by-case judicial calibration (as it prevails in the UK).

      End Notes – 2

      International Criminal Proceedings: No strict Requirement – Photographs be Corroborated

      Rules 63 and 64 of the ‘International Criminal Proceedings (ICC) Rules of Procedure and Evidence’ say about the discretion of a Chamber to assess freely all evidence submitted in order to determine its relevance or admissibility. From the above, it is clear that there should be reliable information as to

      • the date,
      • location and
      • events depicted   

      for determining the

      • relevance,
      • probative value and
      • admissibility of the photograph-evidence.

      Rules 63 and 64 of the ‘International Criminal Proceedings (ICC) Rules of Procedure and Evidence’ read as under:

      “Rule 63: General provisions relating to evidence

      • .1. The rules of evidence set forth in this chapter, together with article 69, shall apply in proceedings before all Chambers.
      • 2. A Chamber shall have the authority, in accordance with the discretion described in article 64, paragraph 9, to assess freely all evidence submitted in order to determine its relevance or admissibility in accordance with article 69.
      • 3. A Chamber shall rule on an application of a party or on its own motion, made under article 64, subparagraph 9 (a), concerning admissibility when it is based on the grounds set out in article 69, paragraph 7.
      • 4. Without prejudice to article 66, paragraph 3, a Chamber shall not impose a legal requirement that corroboration is required in order to prove any crime within the jurisdiction of the Court, in particular, crimes of sexual violence.
      • 5. The Chambers shall not apply national laws governing evidence, other than in accordance with article 21.”

      “Rule 64: Procedure relating to the relevance or admissibility of evidence

      • .1. An issue relating to relevance or admissibility must be raised at the time when the evidence is submitted to a Chamber. Exceptionally, when those issues were not known at the time when the evidence was submitted, it may be raised immediately after the issue has become known. The Chamber may request that the issue be raised in writing. The written motion shall be communicated by the Court to all those who participate in the proceedings, unless otherwise decided by the Court.
      • 2. A Chamber shall give reasons for any rulings it makes on evidentiary matters. These reasons shall be placed in the record of the proceedings if they have not already been incorporated into the record during the course of the proceedings in accordance with article 64, paragraph 10, and rule 137, sub-rule 1.
      • 3. Evidence ruled irrelevant or inadmissible shall not be considered by the Chamber.”

      According to Rule 63(4) of the  International Criminal Courts (ICC) Rules of Procedure and Evidence, it is pointed out that there is no strict legal requirement that a photograph has to be corroborated by other evidence for the Court to be able to rely on it and establish a specific fact [Prosecutor v Lubanga, ICC-01/04-01/06-2842,14 March 2012, TC I-718 ].

      In Prosecutor v Lubanga it is observed as under:

      • “644. The prosecution relies on a number of video excerpts to establish that some of the UPC/FPLC recruits were “visibly” under the age of 15. The defence argues that it is impossible to distinguish reliably between a 12 or 13 year-old and a 15- or 16-year-old on the basis of a photograph or video extract alone. The Chamber accepts that for many of the young soldiers shown in the video excerpts, it is often very difficult to determine whether they are above or below the age of 15. Instead, the Chamber has relied on video evidence in this context only to the extent that they depict children who are clearly under the age of 15.”

      (See: Prosecutor v. Ntaganda: Decision on Prosecution’s request for admission of documentary evidence,  ICC-01/04-02/06-1838 (28 March 2017) (TC VI) [68]. Prosecutor v Oussama Achraf Akhlafa, ECLI: EN: RBDHA: 2019: 7430, the Dutch District Court in Hague noted that “determining the date on which a particular image was taken is potentially an interesting element in the context of a criminal investigation”.)

      Specific Presumptions on Elc. Record in S. 81 & 93, BSA

      Specific presumptions relating to electronic records are contained in Sections 81, 85, 86, 87, 90 and 93 of the Bharatiya Sakshya Adhiniyam, 2023. Two of them are very important. They are given below.

      S. 81 of the Bharatiya Sakshya Adhiniyam, 2023 reads as under:

      • 81. Presumption as to Gazettes in electronic or digital record: The Court shall presume the genuineness of every electronic or digital record purporting to be the Official Gazette, or purporting to be electronic or digital record directed by any law to be kept by any person, if such electronic or digital record is kept substantially in the form required by law and is produced from proper custody.
      • Explanation.—For the purposes of this section and section 93 electronic records are said to be in proper custody if they are in the place in which, and looked after by the person with whom such document is required to be kept; but no custody is improper if it is proved to have had a legitimate origin, or the circumstances of the particular case are such as to render that origin probable.

      Section 93 BSA reads as under:

      • “93. Presumption as to electronic records five years old: Where any electronic record, purporting or proved to be five years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the electronic signature which purports to be the electronic signature of any particular person was so affixed by him or any person authorised by him in this behalf.
      • Explanation.—The Explanation to section 81 shall also apply to this section.”

      End Notes — 3

      Photograph-Evidence: In a Nutshell

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

      End Notes — 4

      Decisions on Electronic Records

      • CCTV footage in the following landmark cases:
        • State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600,
        • Tomaso Bruno Vs. State of Uttar Pradesh, (2015-7 SCC 178)
      • CDs/VCDs in respect of video recording by the Election Commission
        • Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216
      • CDs containing election speeches and songs in:
        • Anvar PV v. PK Basheer, (2014-10 SCC 473).
      • Conclusion of the Speaker on CDs received from TV News Channels:
        • Jagjit Singh v. State of Haryana, (2006) 11 SCC 1
      • Call Detail Records – CDR – of mobile phonesin:
        • Sonu v. State of Haryana (2017-8 SCC 570)
      • Tape recorded conversation on the landline phone
        • Vikram Singh v. State of Punjab, (2017) 8 SCC 518
      • Propriety of videography of the scene of crime or scene of recovery during investigation, in:
        • Shafhi Muhammed v. State of HP, (2018-2 SCC 801 )

      End Notes — 5

      Decisions on Photo/Audio/Video

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

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