Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule

Jojy George Koduvath

Purpose of Legislation – Curb Public Evil or to Effectuate Public Benefit

Justice G.P. Singh, in ‘Principles of Statutory Interpretation’, said:

“Legislation in modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite ‘referents’ are bound to be, in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction.” Quoted in: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

Interpretation and Construction

Interpretation is to ascertain or clarify the true meaning of the words, and explain the purpose of the legislation from the words of the statute.
Construction is a serious consideration of the statute than a mere interpretation. The purpose is to draw conclusions beyond the language of the statute. It is also used for clarifying inconsistencies or ambiguities in a serious way (beyond the language of the statute) by considering the statute as a whole or by taking note of the purpose of legislation etc.

Cardinal principle of construction of statutes

Ordinarily, the language used by the legislature is indicative of legislative intent. In Kanailal Sur v. Paramnidhi Sadhu Khan, AIR 1957 SC 907, Gajendragadkar, J. opined that “the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself.”
But when the words are capable of bearing two or more constructions, they should be construed in light of the object and purpose of the enactment. The purposive construction of the provision must be “illumined by the goal, though guided by the word.” Kanta Goel v. BP Pathak, 1977 SCR (3) 412; X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917.
The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment.
The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the purpose or object of the enactment, the mischief, and its corresponding remedy that the enactment is designed to actualise. Justice G.P Singh, G.P. Singh: Principles Of Statutory Interpretation, (Lexis Nexis, 2016), at page 12; State of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351; Union of India v. Elphinstone Spinning and Weaving Co. Ltd., (2001) 4 SCC 139; X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917.
See also: Ashoka Marketing Ltd. v. Punjab National Bank, AIR 1991 SC 855, 1990 (3) SCR 649. (New India Assurance Company Ltd. v. Nusli Neville Wadia, 2007 (14) SCALE 556, (2008) 3 SCC 279. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (SB Sinha, J.), (2008) 13 SCC 30).

Duty of Court – See Whether a Particular Case Falls Within the Law Enacted

An Act of Parliament/Legislature cannot foresee all types of situations and all types of consequences. It is for the Court to see whether a particular case falls within the broad principles of law enacted by the Legislature. Here, the principles of interpretation of statutes come in handy. In spite of the fact that experts in the field assist in drafting the Acts and Rules, there are many occasions where the language used and the phrases employed in the statute are not perfect. Therefore, Judges and Courts need to interpret the words. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

Interpretation – General Clauses Act:

If while interpreting a Statutory law, any doubt arises as to the meaning to be assigned to a word or a phrase or a clause used in an enactment and such word, phrase or clause is not specifically defined, it is legitimate and indeed mandatory to fall back on General Clauses Act. Notwithstanding this, we should remember that when there is repugnancy or conflict as to the subject or context between the General Clauses Act and a statutory provision which falls for interpretation, the Court must necessarily refer to the provisions of statute. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

Interpretation – Internal aids and external aids:

The long title, the preamble, the heading, the marginal note, punctuation, illustrations, definitions or dictionary clause, a proviso to a section, explanation, examples, a schedule to the Act etc., are internal aids to construction. The external aids to construction are Parliamentary debates, history leading to the legislation, other statutes which have a bearing, dictionaries, and thesaurus. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

Interpretation – Proviso to a Section in a Statute

The scope of the proviso in a Section in a Statute is to explain, modify or carve out an exception to the ‘main’ provision or section. The Supreme Court observed in Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal ((1991) 3 SCC 442) as under:

“It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field, which is covered by the main provision, it carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.”

Ejusdem Generis and Noscitur a Sociis

Ejusdem Generis is the principle of interpretation of applying meaning to a doubtful word or words taken from the associated words. Usually this principle is applied when doubts are arisen whether the word or words fall within the general words like – other articles, etc., such things, similar acts, etc.

Our Apex Court, in DN Singh v. Commissioner of Income Tax (2023), the question came for consideration was whether ‘bitumen’ (used for tarring roads) would fall under “other valuable article” stated in “any money, bullion, jewellery or other valuable article” in Section 69A of the Income Tax. Section 69A reads as under:

“69A. Unexplained money, etc. – Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and … not recorded in the books of account, … may be deemed to be the income of the assessee for such financial year.”

It was held in DN Singh v. Commissioner of Income Tax (2023) that ‘bitumen is not a valuable article’ when the Principle of Ejusdem Generis is applied.

Noscitur a Sociis is a rule is broader than the maxim ejusdem generis. It contains the basic philosophy that the meaning of a doubtful word is ascertained by reference to the meaning of words associated with it.

Marginal Note – Prima Facie Furnishes Some Clue

It is undoubtedly true that the marginal note to a section cannot be referred to for the purpose of construing the section but it can certainly be relied upon as indicating the drift of the section or to show what the section is dealing with (Collins MR in Bushel v. Hammond Bushel v. Hammond, [1904] 2 KB 563).
It cannot control the interpretation of the words of a section particularly when the language of the section is clear and unambiguous (Bhinka & ors. v. Charan Singh [1959 Supp. (2) SCR 798) but, being part of the statute, it prima facie furnishes some clue as to the meaning and purpose of the section. (Bengal Immunty Company Limited v. State of Bihar, [1955] 2 SCR 603; K.P. Varghese v. Income-tax Officer, Ernakulam [(1981) 4 SCC 173; Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.)

Function of the Courts is only to Expound and Not to Legislate

The function of the Courts is only to expound and not to legislate. District Mining Officer vs. Tata Iron and Steel Co., (2001) 7 SCC 358. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

THREE RULES OF INTERPRETATION

There are three rules of Interpretation of Statutes and Documents.

They are:
LITERAL RULE,
MISCHIEF RULE, and
GOLDEN RULE.

THE LITERAL RULE

According to this rule, the words in the statute or the document are taken in its literal or plain meaning. It is also called the ‘plain meaning rule or Grammatical Rule’. This rule can be applied only when the language in the statute or the document renders only one meaning, and the intention of the legislature or author is unambiguous and completely clear. When a court has to give effect to the statute or document, it has to simply give effect to the language of the statute or document and it need not look into the consequences that may be arisen therefrom.

If the words are plain and clear no need for any interpretation

The need to resort to any interpretative process arises only where the meaning is not manifest on the plain words of the statute. If the words are plain and clear and directly convey the meaning, there is no need for any interpretation. Mangalore Chemicals & Fertilizers Ltd. v. Dy. Commissioner of Commercial Taxes, (1992) Supp. 1 SCC 21; Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

Plain reading of the statute & strict interpretation

To say that strict interpretation involves plain reading of the statute, and to say that one has to utilize strict interpretation in the event of ambiguity is self-contradictory. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

Literal rules of construction

The literal rules of construction require the wording of the Act to be construed according to its literal and grammatical meaning whatever the result may be. Unless otherwise provided, the same word must normally be construed throughout the Act in the same sense, and in the case of old statutes regard must be had to its contemporary meaning if there has been no change with the passage of time. Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court Chandigarh, (1990) 3 SCC 682, (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
Literal interpretation would involve strict rule of interpretation, but strict rule may not necessarily involve the former, especially in the area of taxation. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

Strict interpretation & Literal or Plain Meaning Test

Strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).
‘Strict interpretation’ does not encompass such literalism, which lead to absurdity and go against the legislative intent. As noted above, if literalism is at the far end of the spectrum, wherein it accepts no implications or inferences, then ‘strict interpretation’ can be implied to accept some form of essential inferences which literal rule may not accept. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).
Equity has no place in interpretation of a tax statute. Strictly one has to look to the language used; there is no room for searching intendment nor drawing any presumption. Furthermore, nothing has to be read into nor should anything be implied other than essential inferences while considering a taxation statute. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).
A taxing statute is to be strictly construed. …. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

‘Strict Interpretation’ – Black’s Law Dictionary (10th Edn.)

An interpretation according to the narrowest, most literal meaning of the words without regard for context and other permissible meanings. An interpretation according to what the interpreter narrowly believes to have been the specific intentions or understandings of the text’s authors or ratifiers, and no more. Also termed strict construction, literal interpretation; literal construction; restricted interpretation; interpretatio stricta; interpretatio restricta; interpretatio verbalis. The philosophy underlying strict interpretation of statues. Also termed as close interpretation; interpretatio restrictive. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
Willam M. Lile et al., Brief Making and the Use of Law Books, 343 (Roger W. Cooley & Charles Lesly Ames eds., 3d ed. 1914).
“Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case.’ (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

‘Strict Interpretation’ – Salmond, Jurisprudence (Glanville L. Williams ed., 10th ed. 1947).

“Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meaning may be wider than the other, and the strict (i.e., narrow) sense is not necessarily the strict (i.e., literal) sense.”
When the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences.
‘The plain meaning rule’ suggests that when the language in the statute is plain and unambiguous, the Court has to read and understand the plain language as such, and there is no scope for any interpretation.
In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation. This is especially so in fiscal statutes and penal statutes.

Plain Construction

Nevertheless, if the plain language results in absurdity, the Court is entitled to determine the meaning of the word in the context in which it is used keeping in view the legislative purpose.
Not only that, if the plain construction leads to anomaly and absurdity, the court having regard to the hardship and consequences that flow from such a provision can even explain the true intention of the legislation. Assistant Commissioner v. Mathapathi Basavannewwa, (1995) 6 SCC 355: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

Words capable of one construction only – Not be open to hypothetical construction

It is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30
If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

THE MISCHIEF RULE

Heydon’s case, (1584)
This rule called Heydon’s rule, is originated, by Lord Poke in Heydon’s case, (1584) 3 Co Rep 7a: (1584) 76 ER 637. It is also called purposive construction rule, for the aim of this rule is to cure or prevent the mischief of the language of the statute or document, and give effect to its intention or purpose. As per this rule, the meaning and purport of the statute or document is explored and interpreted in that way. The rule of purposive interpretation was articulated in Heydon’s case in the following terms:
“for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
- 1st. What was the common law before the making of the Act.
- 2nd. What was the mischief and defect for which the common law did not provide.
- 3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth.
- And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917)
Smith v. Huges, 1960 WLR 830:
In 1959, the Street Offences Act was enacted in the UK with a view to prohibit prostitutes from soliciting public passing on the roads. Thereon, the prostitutes started soliciting from balconies and windows of the buildings by the side of the roads. The prostitutes were charged under the Act. The courts applied the mischief rule of interpretation and gave effect to the intention of the Act.
Kanwar Singh v. Delhi Administration, AIR 1965 SC 871:
Issues of the case were as follows- Delhi Corporation Act, 1902 authorised the corporation to round up the abandoned cattle grazing on the government land. The MCD rounded up the cattle belonging to Kanwar Singh. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned. The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned.
In Bengal Immunity Co. v. State of Bihar, (1955) 2 SCR 603 41 (1988) 3 SCC 60 the Constitution Bench applied the mischief rule in Heydon’s case in the construction of Article 286 of the Constitution.

Court gives effect to the intent of the statute

In X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi AIR 2022 SC 4917, it is observed as under: “While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose. Statutes are considered to be “always speaking.” (Dharni Sugars and Chemicals Ltd v. Union of India, (2019) 5 SCC 480)”.
Where the meaning of the Statute is neither clear nor sensible, and where a purposive construction is warranted and it is expedient to give effect to the intent of the statute, the court’s endeavour would be to give a meaning to the provisions and not render it otiose. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30
If they (words) should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
A statute must be construed according to the intention of the Legislature and the Courts should act upon the true intention of the legislation while applying law and while interpreting law. District Mining Officer vs. Tata Iron and Steel Co., (2001) 7 SCC 358
If a statutory provision is open to more than one meaning, the Court has to choose the interpretation which represents the intention of the Legislature. District Mining Officer vs. Tata Iron and Steel Co., (2001) 7 SCC 358, (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

Courts to carry out Purpose of the Act -Look Text as a Whole

In Principles of Statutory Interpretation by Justice G.P. Singh, it is stated that a statute must be read in its context when attempting to interpret its purpose. Justice G.P Singh, G.P. Singh: Principles of Statutory Interpretation, (LexisNexis, 2016), at page 35 (See: X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi AIR 2022 SC 4917)
A court’s power to purposively interpret a statutory text does not imply that a judge can substitute legislative intent with their own individual notions. The alternative construction propounded by the judge must be within the ambit of the statute and should help carry out the purpose and object of the Act in question. (X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi AIR 2022 SC 4917)
Context includes reading the statute as a whole, referring to the previous state of law, the general scope of the statute, surrounding circumstances and the mischief that it was intended to remedy. (Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193, Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424 ; X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi AIR 2022 SC 4917.)

The treatise, Principles of Statutory Interpretation by Justice G.P. Singh, explains –

“For ascertaining the purpose of a statute one is not restricted to the internal aid furnished by the statute itself, although the text of the statute taken as a whole is the most important material for ascertaining both the aspects of ‘intention’. Without intending to lay down a precise and exhaustive list of external aids, Lord Somervell has stated:
“The mischief against which the statute is directed and, perhaps though to an undefined extent the surrounding circumstances can be considered. Other statutes in pari materia and the state of the law at the time are admissible.”
“These external aids are also brought in by widening the concept of ‘context’ “as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which the statute was intended to remedy.” In the words of Chinappa Reddy, J.: “Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.” (X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917.)

In Kehar Singh v. State (Delhi Admn.), a three-judge Bench of our Apex Court held:

“231. During the last several years, the “golden rule” has been given a go-by. We now look for the “intention” of the legislature or the “purpose” of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.…” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi AIR 2022 SC 4917; Indian Handicrafts Emporium v. Union of India, 2003-7 SCC 589, National Insurance Co. Ltd. v. Laxmi Narain Dhut, 2007-3 SCC 700)

Call in external and internal aids

In Kehar Singh v. State (Delhi Admn.), a three-judge Bench of the Apex Court further held:

“233. For this purpose, we call in external and internal aids:
“External aids are: the Statement of Objects and Reasons when the Bill was presented to Parliament, the reports of the Committee, if any, preceding the Bill, legislative history, other statutes in pari materia and legislation in other States which pertain to the same subject matter, persons, things or relations.
Internal aids are: Preamble, scheme, enacting parts of the statutes, rules of languages and other provisions in the statutes.” X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi AIR 2022 SC 4917.

Progressive legislation must be interpreted in favour of the beneficiaries

Progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision.

Kerala Fishermen’s Welfare Fund Board v. Fancy Food, (1995) 4 SCC 341
Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi, (1986) 2 SCC 614
Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61
Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527
X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi , AIR 2022 SC 4917

In KH Nazar v. Mathew K Jacob, (2020) 14 SCC 126, Nageshwar Rao, J. observed as under:

“11. Provisions of a beneficial legislation have to be construed with a purpose-oriented approach. The Act should receive a liberal construction to promote its objects. Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the court’s duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation.” (Quoted in X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi , AIR 2022 SC 4917).

In S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 while interpreting the Dowry Prohibition Act 1961 (a beneficial legislation), this Court interpreted the meaning of “dowry” by adopting the purposive interpretation approach:

“12. It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of “dowry” punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, “demand of dowry” as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr Rao that it is only the “demand” made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow.
Take for example a case where the bridegroom or his parents or other relatives make a “demand” of dowry during marriage negotiations and later on after bringing the bridal party to the bride’s house find that the bride or her parents or relatives have not met the earlier “demand” and call off the marriage and leave the bride’s house, should they escape the punishment under the Act. The answer has to be an emphatic “no”. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes.” (Quoted in X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi , AIR 2022 SC 4917).

Law be Interpreted in terms of Changing Needs

In Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 our Apex Court observed that the law should be interpreted in terms of the changing needs of the times and circumstances. AK Sikri, J. speaking for a two-judge Bench of this Court, said that it is the duty of courts to bridge the gap between law and society by advancing a purposive interpretation of statutes:
“16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law.” (Quoted in X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917).
In X v. Principal Secretary, Health and Family Welfare Department, Govt. of NCT of Delhi , AIR 2022 SC 4917, it is observed as under: “As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice.”

Subordinate legislation must be in consonance with legislative policy and purpose

A subordinate legislation must be reasonable and in consonance with the legislative policy. It should be interpreted in a meaningful manner, so as to give effect to the purpose and object of the enabling Act. The interpretation which is in consonance with the statutory scheme and gives effect to the statute must be adopted. X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917.
The interpretation of a subordinate legislation should be consistent with the enabling Act. Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, AIR 1966 SC 12; Union of India v. Tulsiram Patel, (1986) 3 SCC 398; M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. (1992) 1 SCR 220; St Johns Teachers Training Institute v. Regional Director National Council of Teacher Education, (2003) 3 SCC 321; X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917

Armchair Rule

Interpreting a statute court will put itself in the armchair of the reasonable legislature. Entertainment Network v. Super Cassette Industries, (SB Sinha, J.), 2008-13 SCC 30, AIR 2009 SC 1150.

THE GOLDEN RULE

It is a deviation from the literal rule. It also applies to the interpretation of Statutes and all Instruments.
It applies when literal rule fails for the words used by the author of a document or legislature could not be given their natural meaning, or when it is unclear or renders more than one meaning.
In such cases the apt meaning is given by interpretation, modifying the meaning of the absurd term, or choosing one meaning from more than one meaning.
But, in certain decisions it is observed that the Golden Rule of Interpretation is “the interpretation in conformity with the plain language” of the statute. (See: M/S Patil Automation Private Ltd. v. Rakheja Engineers Private Ltd., AIR 2022 SC 3848, 2022-10 SCC 1).

Grey v. Pearson, 1857

The golden rule of interpretation was propounded for the first time by Lord Wensleydale, in Grey v. Pearson, 1857 (6) HLC 61, in the construction of a Will. (See: Ms. Eera Through Dr. Manjula v. State (Govt. Of NCT of Delhi), , (2017) 15 SCC 133). It requires giving effect to the actual meaning of the words used in statutes and other documents. This rule gives effect to the literal or ordinary meaning of the words used.
In Grey v. Pearson, 1857 (6) HLC 61, Lord Wensleydale declared as under:
“I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in the case of Warburton v. Loveland.”

“Golden Rule” covers Wills, Statutes and all Instruments

After quoting the above passage from Grey v. Pearson, 1857 (6) HLC 61, it is observed in Ms. Eera Through Dr. Manjula v. State (Govt. Of NCT of Delhi), AIR 2017 SC 34577, as under:

“This celebrated passage has since come to represent what has been described as the ‘Golden Rule’ of interpretation of statutes. The construction of a clause in a will was before the House of Lords and not the construction of a statute. Nevertheless, the “Golden Rule” was held to cover the construction of wills, statutes and all other written instruments.”

Lee v. Knapp, (1967) 2 QB 442

In this case, it was required to interpret the world ‘stop’. Under the relevant Act, a driver causing an accident had to ‘stop’ after the accident. But, the driver in this case stopped the vehicle for a moment after causing the accident and then moved away. Applying the golden rule the Court held that requirement of the section had not been followed for the driver did not ‘stop for a reasonable period of time’ and made an attempt to look for the interested persons to make necessary inquiries for him about the accident.

U. P. Bhoodan Yagna Samiti v. Brij Kishore, AIR 1988 SC 2239

In this case Section 14 of the U.P Bhoodan Yagna Act, 1953 had to be interpreted. This Section provided land for “landless person”. It was interpreted as the “landless agricultural labourers” though the Section did not specify that such landless persons should be agricultural labourers or whose source of livelihood should be agriculture; and source of livelihood of those persons should not be trade and business.

Rakesh Kumar Paul v. State of Assam, (2017)

Our Apex Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 held as under:
“67. While interpreting any statutory provision, it has always been accepted as a Golden rule of Interpretation that the words used by the legislature should be given their natural meaning. Normally, the courts should be hesitant to add words or subtract words from the statutory provision. An effort should always be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.” Quoted in: V. Senthil Balaji Vs. The State represented by Deputy Director (2023)

Advantages of Golden rule

This rule simply puts the words in the statute or deed work. It is destined to operate in between ‘literal interpretation’ and ‘mischief-rule interpretation’.
It gives effect to the words used by the legislature or author, in its ordinary meaning; but, picking up the most sensible and apt meaning to the words used the statute or deed – susceptible to more than one meaning.
Applying the Golden Rule, one can deviate from the meaning of words given previously, if it is susceptible to more than one meaning.
Drafting errors in status and documents can be corrected without much effort.

Disadvantage of Golden Rule

There is no definite frame-work or guidelines.
It is susceptible for change according to the interpreter or court, if it is accommodative of more than one meaning.

Ambiguous Statute, the court can at best iron out the creases

If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
If the words used are ambiguous and reasonable open to two interpretations benefit of interpretation is given to the subject [Express Mill v. Municipal Committee, Wardha, AIR 1958 SC 341]. Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

JUDICIAL REVIEW OF LEGISLATION

Judiciary Protector of Constitution as ultimate arbiter in interpretation of the Constitution

The right and authority to do the Judicial Review of enactments promulgated by Legislatures are vested with the High Courts and the Supreme Court. By Judicial Review, the Courts test the validity of enactments under the provisions of the Constitution.

In Binoy Viswam v. Union of India, (2017) 7 SCC 59, our Apex Court held as follows:

“88. Undoubtedly, we are in the era of liberalised democracy. In a democratic society governed by the Constitution, there is a strong trend towards the constitutionalisation of democratic politics, where the actions of democratically elected Government are judged in the light of the Constitution. In this context, judiciary assumes the role of protector of the Constitution and democracy, being the ultimate arbiter in all matters involving the interpretation of the Constitution.
89. Having said so, when it comes to exercising the power of judicial review of legislation, the scope of such a power has to be kept in mind and the power is to be exercised within the limited sphere assigned to the judiciary to undertake the judicial review. This has already been mentioned above. Therefore, unless the petitioner demonstrates that Parliament, in enacting the impugned provision, has exceeded its power prescribed in the Constitution or this provision violates any of the provision, the argument predicated on “limited governance” will not succeed. One of the aforesaid ingredients needs to be established by the petitioners in order to succeed.” (Quoted in Dr. Jaya Thakur v. Union of India, 2023)

Judicial Review

The Apex Court held in this case (Dr. Jaya Thakur Vs. Union of India) as under –

“It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and the Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.”

The scope of the judicial review in examining the legislative functions of the Legislature with regard to validity of the Amendments were considered in the following decisions-

Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles [356 US 86]
Binoy Viswam v. Union of India and others2222 (2017) 7 SCC 59

The Apex Court (Dr. Jaya Thakur v. Union of India) elaborately quoted Binoy Viswam v. Union of India, (2017) 7 SCC 59, to pointed out the following –

a. Judicial Review – Grounds available (on the validity of a piece of legislation): The grounds of judicial review that are available to adjudge the validity of a piece of legislationare two and “there is no third ground.” (State of A.P. v. McDowell & Co., 1996-3 SCC 709, State of M.P. v. Rakesh Kohli, 2012- 6 SCC; State of M.P. v. Rakesh Kohli, 2012-6 SCC 312). The grounds are:

First, Legislation, not within the competence of the legislature, and
Second, Legislation, in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/provision of the Constitution.

b. Arbitrariness and Unreasonableness By Itself Do Not Constitute A Ground For striking down a statute (though they are Grounds for Administrative Action): Pointing out that there are only two grounds, (1) lack of legislative competence and (2) violation of any of the fundamental rights, and no third ground to invalidate any piece of legislation, it was observed in State of A.P. v. McDowell & Co. 1996-3 SCC 709, as under:

“No enactment can be struck down by just saying that it is arbitrary _{[An expression used widely and rather indiscriminately – an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943): “The phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas”, said the learned Judge.]} or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them.
The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz.
- unreasonableness, which can more appropriately be called irrationality,
- illegality, and
- procedural impropriety
_{(see: Council of Civil Service Unions v. Minister for the Civil Service, 1984-3 All ER 935 (HL) which decision has been accepted by this Court as well).}
The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue.
_{(See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 All ER 720 (HL).}
It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled.” (Quoted in State of M.P. v. Rakesh Kohli, 2012-6 SCC 312)
A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592] said : (SCC p. 660, para 149)”
Also referred: State of WB v. EITA India Ltd., (2003) 5 SCC 239, Rajbala v. State of Haryana, (2016) 2 SCC 445 : AS Krishna v. State of Madras, AIR 1957 SC 297.
A fortiori, a law cannot be invalidated on the ground that the legislature did not apply its mind or it was prompted by some improper motive.
In K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, it was observed as under:
“205. Plea of
- unreasonableness,
- arbitrariness,
- proportionality, etc.
always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy.”

c. Judicial Review – First Ground – Ultra Vires The Constitution: In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, following pertinent observations were made –

“219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review.

d. 2^nd Ground – Violation of Fund. Rigt. – Presumption In Favour of Constitutionality

In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed as under:
’15. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest …” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it. It stated as under:
’15. … and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, reiterated the principle that presumption was always in favour of constitutionality of an enactment and observed as under:
‘8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.’ (referred Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942, Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661, Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41, and State of Bombay v. F.N. Balsara, 1951 SCC 860 : AIR 1951 SC 318.)

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Interpretation of Penal and Taxation Statutes

In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation.

A taxing legislation should be interpreted wholly by the language of the notification. Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat and Ors., AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocent might become victims of discretionary decision making. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
Insofar as taxation statutes are concerned, Article 265 of the Constitution prohibits the State from extracting tax from the citizens without authority of law. (Art. 265 – Taxes not to be imposed save by authority of law: No tax shall be levied or collected except by authority of law) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
In the matter of interpretation of charging section of a taxation statute, strict rule of interpretation is mandatory. Collector of Central Excise v. Parle Exports (P) Ltd., (1989) 1 SCC 345 Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
When two views are possible, in the matter of interpretation of a charging/taxation section, one favourable to the assessee has to be preferred, is unexceptionable. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

Exemption clauses or exemption notifications

A person who claims an exemption has to establish his case. Mangalore Chemicals & Fertilizers Ltd. vs. Dy. Commissioner of Commercial Taxes, (1992) Supp. 1 SCC 21
The law is well settled that a person who claims exemption or concession has to establish that he is entitled to that exemption or concession. A provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236.
If exemption is available on complying with certain conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be obeyed or fulfilled exactly, thought at times, some latitude can be shown, if there is failure to comply with some requirements which are directory in nature, the non¬compliance of which would not affect the essence or substance of the notification granting exemption. Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236.
This, however, did not in any manner tinker with the view that an ambiguous exemption clause should be interpreted favouring the revenue. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1. But, exemption notification should be interpreted strictly.
The burden of proving applicability of Exemption clause or notification would be on the assesse. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
In a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words. The entire matter is governed wholly by the language of the notification. If the tax¬payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority. If such intention can be gathered from the construction of the words of the notification or by necessary implication therefrom, the matter is different, but that is not the case here. Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
Lord Watson in Salomon vs. Salomon & Co., (1897) AC 22) observed: ‘Intention of the Legislature is a common but very slippery phrase, which, popularly understood may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it. In a Court of Law or Equity, what the Legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either in express words or by reasonable and necessary implication.’ (See: Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
The Privy Council in Crawford v. Spooner observed: ‘… we cannot aid the Legislature’s defective phrasing of the Act, we cannot add, and mend, and, by construction, make up deficiencies which are left there.’ (See: Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)
The operation of the Tax-notifications has to be judged not by the object which the rule making authority had in mind but by the words which it has employed to effectuate the legislative intent. (See: Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench)

Exemption notification – directory or mandatory

Some of the provisions of an exemption notification may be directory in nature and some are mandatory in nature. A distinction between the provisions of a statute which are of substantive character and were built in with certain specific objectives of policy, on the one hand, and those which are merely procedural and technical in there nature, on the other, must be kept clearly distinguished. Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236.
The exemption being the creation of the statute itself, it should have to be construed strictly and the interpretation cannot be extended to sales to other departments. (The majority in Union of India v. The Commercial Tax Officer, West Bengal, AIR 1956 SC 202).
A manufacturer qualified to seek exemption was required to comply with the preconditions for claiming exemption and therefore is not exempt or absolved from following the statutory requirements as contained in the Rules. Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236.

Doctrine of substantial compliance

The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party does all that can reasonably be expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be described as the “essence” or the “substance” of the requirements. . Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
Like the concept of “reasonableness”, the acceptance or otherwise of a plea of “substantial compliance” depends upon the facts and circumstances of each case and the purpose and object to be achieved and the context of the prerequisites which are essential to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleased if a clear statutory prerequisite which effectuates the object and the purpose of the statute has not been met. Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
Substantial compliance means “actual compliance in respect to the substance essential to every reasonable objective of the statute” and the Court should determine whether the statute has been followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. . Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
A fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive noncompliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
But, in a situation where the tax exemption has to be interpreted, the benefit of doubt should go in favour of the revenue. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
An exemption from taxation is to be allowed based wholly by the language of the notification and exemption cannot be gathered by necessary implication or by construction of words; in other words, one has to look to the language alone and the object and purpose for granting exemption is irrelevant and immaterial. Hansraj Gordhandas v. H.H. Dave, Asst. Collector of Central Excise & Customs, Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.

Ambiguity in Tax Exemption Clauses and Notifications

Every taxing statue including, charging, computation and exemption clause (at the threshold stage) should be interpreted strictly.
Further, in case of ambiguity in charging provisions, the benefit must necessarily go in favour of subject/assesse.
Vagueness in the exemption clauses must go to the benefit of the revenue. See: Commissioner of Inland Revenue vs. James Forrest, (1890) 15 AC 334 (HL), State of West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC 201.
A person claiming exemption, therefore, has to establish that his case squarely falls within the exemption notification, and while doing so, a notification should be construed against the subject in case of ambiguity. Mangalore Chemicals & Fertilizers Ltd. vs. Dy. Commissioner of Commercial Taxes, (1992) Supp. 1 SCC 21
But for an exemption notification wherein the benefit of ambiguity must be strictly interpreted in favour of the Revenue/State; the burden of proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).
When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject, but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction. Union of India v. Wood Papers Limited, (1990) 4 SCC 256.
Even with regard to exemption clauses or exemption notifications issued under a taxing statute, the ambiguity in an exemption notification should be construed in favour of the subject. In subsequent cases, this Court diluted the principle saying that mandatory requirements of exemption clause should be interpreted strictly and the directory conditions of such exemption notification can be condoned if there is sufficient compliance with the main requirements. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
It is the law that any ambiguity in a taxing statute should enure to the benefit of the subject/assessee, but any ambiguity in the exemption clause of exemption notification must be conferred in favour of revenue – and such exemption should be allowed to be availed only to those subjects/assesses who demonstrate that a case for exemption squarely falls within the parameters enumerated in the notification and that the claimants satisfy all the conditions precedent for availing exemption. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
Presumably for this reason the Bench which decided Surendra Cotton Oil Mills Case (supra) observed that there exists unsatisfactory state of law and the Bench which referred the matter initially, seriously doubted the conclusion in Sun Export Case (supra) that the ambiguity in an exemption notification should be interpreted in favour of the assessee. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
If there is any ambiguity in understanding any of the components, no tax can be levied till the ambiguity or defect is removed by the legislature. See Mathuram Agrawal v. Sate of Madhya Pradesh, (1999) 8 SCC 667; Indian Banks’ Association vs. Devkala Consultancy Service, (2004) 4 JT 587; AIR 2004 SC 2615; and Consumer Online Foundation vs. Union of India, (2011) 5 SCC 360. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
Any ambiguity in a taxation provision, therefore, is interpreted in favour of the subject/assessee. The statement of law that ambiguity in a taxation statute should be interpreted strictly and in the event of ambiguity the benefit should go to the subject/ assessee may warrant visualizing different situations. For instance, if there is ambiguity in the subject of tax, that is to say, who are the persons or things liable to pay tax, and whether the revenue has established conditions before raising and justifying a demand. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
Similar is the case in roping all persons within the tax net, in which event the State is to prove the liability of the persons, as may arise within the strict language of the law. There cannot be any implied concept either in identifying the subject of the tax or person liable to pay tax. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
It is only the letter of the law and not the spirit of the law to guide the interpreter to decide the liability to tax ignoring any amount of hardship and eschewing equity in taxation.
Thus, we may emphatically reiterate that if in the event of ambiguity in a taxation liability statute, the benefit should go to the subject/assessee. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
A fiscal statute generally seeks to preserve the need to comply strictly with regulatory requirements that are important, especially when a party seeks the benefits of an exemption clause that are important. The doctrine of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive noncompliance for either unimportant and tangential requirements or requirements that are so confusingly or incorrectly written that an earnest effort at compliance should be accepted. Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal, Constitution Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
The question whether a subject falls in the notification or in the exemption clause, has to be strictly construed. When once the ambiguity or doubt is resolved by interpreting the applicability of exemption clause strictly, the Court may construe the notification by giving full play bestowing wider and liberal construction. The ratio of Parle Exports Case (supra) deduced as follows: “Do not extend or widen the ambit at stage of applicability. But once that hurdle is crossed, construe it liberally”. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.
In case of ambiguity, a taxing statute should be construed in favour of the assessee – assuming that the said principle is good and sound – does not apply to the construction of an exception or an exempting provision, they have to be construed strictly. In case of doubt or ambiguity, benefit of it must go to the State. Mangalore Chemicals & Fertilizers Ltd. vs. Dy. Commissioner of Commercial Taxes, (1992) Supp. 1 SCC 21; Novopan India Ltd. v. Collector of Central Excise and Customs, 1994 Supp (3) SCC 606; Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).
The principle that in the event a provision of fiscal statute is obscure such construction which favours the assessee may be adopted, would have no application to construction of an exemption notification, as in such a case it is for the assessee to show that he comes within the purview of exemption (See Novopan India Ltd v. CCE and Customs). Tata Iron & Steel Co. Ltd. v. State of Jharkhand, (2005) 4 SCC 272. Tata Iron & Steel Co. Ltd. v. State of Jharkhand, (2005) 4 SCC 272.

Obscure And Ambiguity

Where there is ambiguity in an exemption notification or exemption clause, in which event the benefit of such ambiguity cannot be extended to the subject/assessee (by applying the principle that an obscure and/or ambiguity or doubtful fiscal statute must receive a construction favouring the assesse).
Both the situations (obscure and ambiguity) are different and while considering an exemption notification, the distinction cannot be ignored.

Taxing statute, equitable considerations are out of place

But equitable considerations are not relevant in construing a taxing statute, [CIT, W.B. v. Central India Industries, AIR 1972 SC 397], and similarly logic or reason cannot be of much avail in interpreting a taxing statute [Azam Jha v. Expenditure Tax Officer, Hyderabad, AIR 1972 SC 2319].
It is well settled that in the field of taxation, hardship or equity has no role to play in determining eligibility to tax and it is for 37 the Legislature to determine the same [Kapil Mohan v. Commr. of Income Tax, Delhi, AIR 1999 SC 573].
Similarly, hardship or equity is not relevant in interpreting provisions imposing stamp duty, which is a tax, and the court should not concern itself with the intention of the Legislature when the language expressing such intention is plain and unambiguous [State of Madhya Pradesh v. Rakesh Kohli, (2012) 6 SCC 312].
But just as reliance upon equity does not avail an assesse, so it does not avail the Revenue. Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879). Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench). Commissioner of Income Tax vs. Kasturi Sons Ltd., (1999) 3 SCC 346 and State of West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC 201.
In interpreting a taxing statute, equitable considerations are entirely out of place. A taxing statute cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency. State of West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC 201, Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.

If taxpayer escapes or words of Statute are ambiguous, benefit given to the subject

If the Legislature fails to express itself clearly and the taxpayer escapes by not being brought within the letter of the law, no question of unjustness as such arises [CIT v. Jalgaon Electric Supply Co., AIR 1960 SC 1182]. Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).
Before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and if the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of Legislature’s failure to express itself clearly. State of West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC 201, Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1.

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Interpretation of Wills

Saji Koduvath, Advocate, Kottayam.

Relevant Provisions as to Interpretation of a Will

1. Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
2. Sec. 100 of the Evidence Act deals with interpretation of Will. It reads as under:
- 100. Saving of provisions of Indian Succession Act relating to wills -Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills
3. Section 74 of the Indian Succession Act, 1925, contains the armchair rule. It reads- ·
- 74. Wording of will— It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.

Sec. 74 of the Indian Succession Act conveys – intention of the testator is important. Court ascertains it putting itself into the testator’s armchair.

Cardinal principles as to interpretation of a Will

Cardinal principles as to interpretation of a Will are laid down in the following decisions:

Ram Gopal v. Nand Lal (AIR 1951 SC 139),
Gnambal Ammal v. Raju Ayyar (AIR 1951 SC 103),
Raj Bajrang Bhadaur Singh v. Thakurain Bakhtraj Kher (AIR 1953 SC 7),
Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703),
Ramchandra v. Hilda Brite, (AIR 1964 SC 1323,
Navneet Lal v. Gokul (AIR 1976 SC 794),
Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321

The Principles recognised in these decisions are the following:

(1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Also: Narendra Gopal Vidyarthi vs Rajat Vidyarthi: (2009) 3 SCC 287)
(2) In construing the language of the Will the Court is entitled to put itself into the testator’s armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document. (Also: Venkata Narasimha v. Parthasarthy, (1913) 41 IA 51: 15 Bom LR 1010; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287; Veerattalingam v. Rameth AIR 1990 SC 2201)
(3) The true intention of the testator has to be gathered not by attaching importance in isolated expressions, but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.(Also: Bajrang Factory Ltd. v. University of Calucutta (2007) 7 SCC 183)
(4) The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will, such as the state of his property of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.
(5) To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will.

Read Blog:

Construction of Wills – True shade of meaning

The meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning. (Sasiman Chowdhurain v. Shib Narayan Chowdhury,49 IA 25, 35 : 66 IC 193 : 24 Bom LR 576; Musammat Surajmani v. Rahi Nath Ojha, 35 IA 17 : ILR 30 All 84 : 10 Bom LR 59; Navneet Lal v. Gokul, AIR 1976 SC 794)

In Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103, BK Mukherjea, J., held as under:

“The cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. (See also: Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321).
In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy, (1913) 42 I.A. 51 at p.70.
- ‘The courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, ‘his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ‘The court is entitled to put itself into the testator’s armchair’ …… But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So, soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions…… In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.’ (See also: Navneet Lal v. Gokul, (1976) 1 SCC 630; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287)
A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; But it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer observed in Re Edwards; Jones v. Jones, [1906]1 Ch. 570 at p. 574:
- ‘It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning’.”

It is pointed out in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon 2018-1 Ker HC 412, 2018-2 Ker LT 553, A. Hariprasad, J., as under:

“The ‘Arm Chair Rule’ was originally propounded in Boyes v. Cook ((1880) 14 Ch.D 53). The Rules reads thus:
“Armchair Rule.-Although, a will always speaks from the date of the death of the testator, in construing the will, the court of construction should determine the facts and circumstances respecting the testator’s property and his family and other persons and things as at the date of the will, in order to give effect to the words used in the will when the meaning and applications of his words cannot be ascertained without taking evidence of such facts and circumstances. For this purpose, evidence is received to enable the court to ascertain all the persons and facts known to the testator when he made the will. The court, it has been said, puts itself into the testator’s armchair.”

In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy (1913) 41 Ind App 51, held as under:

“The courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ’ The court is entitled to put itself into the testator’s armchair …… But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions…… In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.” (Quoted in Gnanambal Ammal v. T. Raju Ayyar, AIR 1951 SC 103, B.K. Mukherjea, Fazal Ali, N. Chandrasekhara Aiyar, JJ.) (Referred to in: Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115, S.B. Sinha; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287; Navneet Lal alias Rangi v. Gokul (1976) 1 SCC 630.

Lakshmana Nadar v. R. Ramier, AIR 1953 SC 304, M C Mahajan, SR Das, JJ.

The Court’s primary duty when it considers a will is to ascertain from the language employed by the testator “what were his intentions” keeping in view the surrounding circumstance, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair.

In Ramachandra Shenoy v. Mrs. Hilda Brite (1964) 2 SCR 722, our Apex Court held as under:

“It was common ground that under clause 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains of A’s death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it.” (Quoted in: Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115).
See also: Bhura v. Kashi Ram, AIR 1994 SC 1202: (1994) 2 SCC 111, Arunkumar v. Shriniwas, (2003) 6 SCC 98)

The said principle was reiterated in Navneet Lal alias Rangi v. Gokul (1976-1 SCC 630) as under:

“8. From the earlier decisions of this Court the following principles, inter alia, are well established: (1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal, AIR 1951 SC 139).” See also: Shyamal Kanti Guha (D) Through LRs. & Ors. v. Meena Bose [2008 (9) SCALE 363],

Golden rule of interpretation

It is interesting to note that the golden rule of interpretation was propounded for the first time by Lord Wensleydale, in Grey Vs. Pearson, 1857 (6) HLC 61, in the matter of construction of a Will. (See: Ms. Eera Through Dr. Manjula v. State (Govt. of NCT of Delhi), (2017) 15 SCC 133). It requires giving effect to the actual meaning of the words used in statutes and other documents. This rule gives effect to the literal or ordinary meaning of the words used.

Construction of Will – Not by attaching importance to isolated expressions

The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, 1953 SCR 232, 240 : AIR 1953 SC 7; Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287; Navneet Lal v. Gokul [(1976) 1 SCC 630; Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183); Anil Kak v. Kumari Sharda Raje & Ors. [2008 (6) SCALE 597.

In Halsbury’s Laws of England, Fourth edition, Volume 50, page 332-33, it is stated :

‘462. Leading principle of construction: The leading principle of construction which is applicable to all wills without qualification and overrides every other rule of construction is that the testator’s intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention’.”(Quoted in: Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287)

The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das, 1963 Supp. 2 SCR 834, 839, 842; Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115; Navneet Lal v. Gokul [(1976) 1 SCC 630; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

Two repugnant provisions

If there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. Ramachandra Shenoy v. Mrs. Hilda Brite [(1964) 2 SCR 722, 735; Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

To ascertain terms of the Will and attendant circumstances may also consider

In Bajrang Factory Ltd. v. University of Calcutta, (SB Sinha, J.), 2007-7 SCC 183, it is held as under:

“43. With a view to ascertain the intention of the maker of the Will, not only the terms thereof are required to be taken into consideration but all also circumstances attending thereto. The Will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the Will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to invalidate the same.” (Quoted in: Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

The word ‘devise’ was read as ‘desire’

In Shyamal Kanti Guha v. Meena Bose, (SB Sinha, J.), AIR 2009 SC 1194, 2008-8 SCC 115, referred to Bajrang Factory Ltd. v. University of Calcutta, 2007-7 SCC 183, (SB Sinha, J.), and pointed out as under:

“Therein the word ‘devise’ was read as ‘desire’. If this Court is to put itself into the testator’s armchair to ascertain his intention from the words used in the Will; it must take into consideration the surrounding circumstances, the position of the testator, his family relationships, and attach importance to isolated expressions so as to give effect to all the clauses in the Will rather than making some of it inoperative.”

Entire document need not be invalidated

The Supreme Court in Anil Kak v. Kumari Sharda Raje reported in 2008 (6) SCALE 597 held sa under:

“The testator’s intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.” (Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287; Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183.)

Also Read:

Last Part of a Will prevails under Sec. 88

Sec. 88 of the Succession Act says that the last of two inconsistent clauses prevails.

Sec. 88 reads as under:

“88. The last of two inconsistent clauses prevails. – Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
Illustrations
(i) the testator by the first clause of his Will leaves his estate of Ramnagar to “A”, and by the last clause of his Will leaves it to “B” and not to A”. B will have it.
(ii) if a man, at the commencement of his Will gives his house to A and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.

Sec. 88 (latter disposition will prevail) is applied in the following premises:

This rule of interpretation can be invoked only if different clauses cannot be reconciled. (See Rameshwar v. Balraj, AIR 1935 PC 187; Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321).
If the apparently appearing inconsistency can be reconciled, the court will take that recourse. (Shyamal Kanti Guha v. Meena Bose, AIR 2009 SC 1194, 2008-8 SCC 115; Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321.)
In the event of irreconcilable inconsistency between two parts in the Will, the last shall prevail over the earlier clause. (Kalvelikkal Ambunhi v. H. Ganesh Bhandary, AIR 1995 SC 2491; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321.)

But, in case of documents like sale deeds, gift deeds, mortgage deeds, if the apparently appearing inconsistency can be reconciled, the court will take that recourse. But, if the inconsistency is irreconcilable, the earlier or the subsequent part or specific clauses, the earlier part will prevail over the latter. (Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321.)

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Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Contract Act

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

22nd Law Commission Report on ‘Law on Adverse Possession’

Saji Koduvath, Advocate, Kottayam & Jojy George Koduvath

Contents in Nutshell

The 22^nd Law Commission, headed by former Chief Justice of Karnataka High Court, Ritu Raj Awasthi (Chairperson), and comprising of Justice (retired) K.T. Sankaran (Kerala High Court), Prof. (Dr.) Anand Paliwal, and Prof. D.P. Verma (Full-Time Members), observed in its 280^th Report that the law relating to adverse possession should be continued in its present form and that there was no justification for making any change thereto. This Report, on the subject “The Law on Adverse Possession”, was placed on 24^th May, 2023.

Background

The report of the Law Commission was called-for in the light of the Judgment of the Apex Court in Hemaji Waghaji v. Bhikhabhai Khengarbhai, (2009) 16 SCC 517.

Hemaji Waghaji v. Bhikhabhai Khengarbhai: It was held in this decision that the law of adverse possession was “irrational, illogical, and wholly disproportionate”. It was observed that the law should not place “a premium on dishonesty” and support the illegal action of a “rank trespasser” who had wrongfully taken possession of the true owner’s property and that there was a need to have a fresh look at the law of adverse possession, and required the Union of India to seriously consider the issue and make suitable changes, wherever necessary. The Supreme Court held as under:

“34. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who has illegally taken possession of the property of the true owner. The law ought not to benefit or give seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
35. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation.
36. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law. “

Pursuant to this, a reference was made to the Law Commission by the Ministry of Law & Justice requesting the Commission to undertake a study in the matter and furnish a report on the same.

Read Blog: How to Plead Adverse Possession? Adverse Possession: An Evolving Concept.

Main Grounds of Recommendations of the Law Commission

The 22^nd Law Commission did not pursue the observations in Hemaji Waghaji; on the contrary, upholding the law on adverse possession, it emphasised that the present law ensures that ‘there is always an owner or claimant to the contentious land, and that it is precisely the reason why the law validates the claim of adverse possession made by the squatter’.

The assertions and remarks of the Law Commission (no change is required to be brought in the existing law on adverse possession) came, inter alia, in the following premises:

1. The concept of adverse possession is very old.
2. It is rooted in the idea that land must not be left vacant and there should always someone in charge of that property in the eyes of the law.
3. Burden of proof as to adverse possession is shifted (by the Limitation Act of 1963) on the person who claims it. The law on adverse possession underwent a significant change post the enactment of the Limitation Act of 1963. By virtue of the said change, the position of the true owner was fortified as he had to merely prove his title, while the burden of proof of adverse possession is shifted on the person claiming so.

Notable Observations of the Law Commission on Adverse Possession

The Law Commission made the following important and notable observations on adverse possession –

“6.12. The Limitation Act applies to courts and not to quasi-judicial bodies or Tribunals. (See L.S. Synthetics Ltd. v. Fairgrowlh Financial Semices Ltd., AIR 2005 SC 1209) (2004) 11 SCC 456; M.P. Steel Corporation v. Commission of Central Excise (2015) 7 SCC 582. Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.
6.13. Though the period of limitation prescribed in the Limitation Act precludes a plaintiff from bringing a suit which is barred by Limitation, there is no such limitation so far as any defence is concerned. The rationale behind the law of limitation is that it is founded on public policy. The concept of adverse possession is based on the legal maxim ‘Vigilantibus non dormientibus subvenit lex‘ which means that the law favours only the vigilant and not the sleepy – only the active citizen and not those who are dormant or in other words those who are not concerned about their rights.”
7.1. The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
7.2. Possession and adverse possession are not the same thing. The classical requirement of Adverse Possession is that the possession must be nec vi nec clam nec precario, i.e to say, the possession required must be adequate in continuity, in publicity and in extent. However, it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running out, if he exercises due vigilance, can be aware of what is happening. (See: Lakshmi Reddy v. Lakshmi Reddy AIR 1957 SC 314; Secretary of State for India v. Debandra Lal Khan AIR 1934 PC 23, Karnataka Board of Wakf v. Government of India and ors. (2004) l0 SCC 779; Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729; S.M. Karim v. Bibi Sakina (1964) 6 SCR 780: AIR 1964 SC 1254; Balkrishan v. Satyaprakash (2001) 2 SCC 498).
7.3. A person pleading adverse possession has no equities in his favour. “Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. “(See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).^#
- ^{#See: Notes under Caption: “Should the person who claims adverse possession necessarily know the true owner?}“
7 .ll. Mere continuance of unauthorised possession, for a period of more than twelve years is not enough.
- “…. that mere termination of a licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than I2 years is not enough.” (Gaya Prasad Dikshit v. Dr. Nirmal Chander AIR 1984 SC 930: (1984)2 SCC 286)
- “It is well recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action. “(See T. Anjanappa v. Somalingappa, (2006) 7 SCC 570.)”
7.12. As against co-owners, the co-owner who claims adverse possession has to plead and prove ouster also. The co-heir/co-owner in possession cannot render his possession adverse to the other co-heir/ co-owner not in possession merely by any secret hostile animus. It is well settled that in order to establish adverse possession of one co-owner as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. [See Coriea v. Appuhamy l9l2 AC 230; Lakshmi Reddy v. Lakshmi Reddy AIR 1957 SC 3 14; Maharajadhiraj of Burdwan Udaychand Mahatab Chand v. Subodh Gopal Bose and Others AIR 197l SC 376: (1970) 3 SCC 681; Shambhu Prasad Singh v. Phool Kumari and Others AIR l97l SC 1337: (1971) 2 SCC 28); Syed Shah Gulam Ghouse Mohiuddin and Others v. Syed Shah Ahmed Mohiuddin Qadri AlR 197l SC 2184:(1971) 1 SCC597; Bhubneshwar Prasad Narain Singh and Others v. Sidheshwar Mukherjee and Others AIR 1971 SC 2251: ( l97l ) I SCC 556; Mohd. Zainul Abudeen v. Syed Ahmed Mohideen and Others AIR 1990 SC 507: (1990) 1 SCC 345; Karbalai Begum v. Mohd Sayeed and Another AIR l98l SC 77: (1980) 4 SCC 396]
7.13. Permissive possession does not constitute adverse possession. A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. See State Bank of Travancore v. Arvindan Kunju Panicker and Others AIR 197l SC 996: (1972) 4 SCC 274.
7.14. Possession referable to a contract or to an agreement or to a mortgage cannot be adverse. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. If a person has come into possession under colour of title, he can plead adverse possession only on disclaiming his title and pleading hostile claim to the knowledge of the title holder. See Padma Vithoba Chakkayya v. Mohd. Multani and Another AIR 1963 SC 70; Achal Reddy v. Ramakrtshna Reddiar and Others AIR 1990 SC 553: (1990) 4 SCC 706; Mool Chand Bakhru and Another v. Rohan and Others AIR 2002 SC 812: (2002) 2 SCC 612; Mohan Lal Kachru and Others v. Mirza Abdul Gaffar and Another AIR 1996 SC 910: (1996) I SCC 639; R. Chandevarappav. State of Karnataka (1995) 6 SCC 309
7.15. A question arose whether a person who has perfected title by adverse possession can file a suit for declaration of title. The Supreme Court in Gurudwara Sahib v. Gram Panchayat Village Sirthala (2014)1 SCC 669, State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579 and Dharampal v. Punjab Wakf Board (2018) 11 SCC 449, held that adverse possession cannot be used as a sword but it can be used as a defence, i.e., as a shield. A three judge bench of the Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur overruled these decisions and held that adverse possession can be used as a sword and a suit for declaration can be filed by a person who perfected the title by adverse possession. The Supreme Court held:
- “The plea of acquisition of title by adverse possession can be taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff.”
7.16. Once title is acquired by prescription under Article 65 read with Section 27 of the Limitation Act, 1963, the person who has perfected title by adverse possession would get all the rights which the title holder of a land has.
7.17. The expression “title” would include the title acquired by the plaintiff by way of adverse possession. It was held in Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 thus:
- “58. ….Section 27 of the Limitation Act 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that…. “
- “Adverse possession is heritable and there can be tacking of adverse possession by two or more person as the right is transmissible. “In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfilment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period. “
7. 18. Once a suit for recovery of possession is instituted against the defendant in adverse possession, his adverse possession does not continue thereafter. In other words, the running of time for acquiring title by adverse possession gets arrested. (See Babu Khan and others v. Nazim Khan (dead) by LRs. and others (2001) 5 SCC 375: AIR 2001 SC 1740.)
8.7. The reasons for the change brought about by Articles 64 and 65 are seen in the 3rd Report of the Law Commission of India. The recommendation of the Law Commission was as follows:
- “If the defendant want to defeat the right of the plaintiff he must establish the adverse possession for over twelve years which has the effect of extinguishing the title of the owner by operation of Section 28 of the Limitation Act (Section 27 of the 1963 Act), read with Art. 144. (Article 65 of the 1963 Act). If he fails to do so, there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within twelve years….. In our opinion, Art. 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seek protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff’s prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner’s entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by adverse possession, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under article 142 is that the true owner must prove that he has a subsisting title on the date of the suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession. Article 142, may, therefore, be amended as follows:
- “For possession of immovable property based on possessory title when the plaintiff while in possession of the property has been dispossessed – l2 years from the date of dispossession. “ “
8.8. Pursuant to the opinion expressed by the Law Commission, the Parliament appropriately enacted Articles 64 and 65 in the 1963 Act.”

Crux of the Law Commission Report

The crux of the Report of the Law Commission is the answer to the following question:

Why the law validates the claim of adverse possession made by a squatter?

It is answered by the Law Commission as under:

“If no one has effective authority over a property, there arises a vacancy in the position of owner of that property. Such a vacancy results in destabilizing the other peoples’ relations with respect to that property. In such a circumstance, the law of adverse possession ensures that there is always someone in charge of that property in the eyes of the law, and hence no unsettling vacancies. This is precisely the reason why the law validates the claim of adverse possession made by the squatter only when the owner can be shown to have lost effective authority. This is also the rationale behind the owner being able to defeat the adverse possessor’s claims by showing that he continues to be in charge of the property. Ultimately, the concept of adverse possession addresses the law’s most pressing concern which is not who is owner but rather that the office of owner is filled instead of lying vacant.”

Questions posed by the 19^th Law Commission in the Consultation Paper

The 19^th Law Commission prepared a ‘Consultation Paper-cum-Questionnaire’ and after receiving the responses to the same, the Commission opined that the ‘present provisions afforded sufficient protection to the true owner of land and there was no need to make any amendments in the law’. 22^nd Law Commission pointed out that a final report on the subject could not be submitted the 19^th Law Commission. Bearing in mind “the relevance and importance of the subject and the fact that this reference had been pending since 2008”, the 22^nd Law Commission considered it expedient to deliberate afresh over the subject, under the Caption – “Regarding the Questions posed by the Law Commission in the Consultation Paper”. It reads as under:

“10.10. There cannot be any justification for taking the view that adverse possession should not be made available to those who dishonestly enter the land with full consciousness that they were trespassing into another’s land. It is also not just and proper to deny the plea of adverse possession to a naked trespasser entering the land without good faith. Articles 64 and 65 of the Limitation Act do not make a distinction between a trespasser and a person who got possession on the discontinuance of possession by the owner. Under Article 65 of the Limitation Act of 1963, the date of dispossession of the owner is not relevant. The date of dispossession is relevant only under Article 64 of the 1963 Act. Under Article 65 of the 1963 Act, the owner who was dispossessed need prove his title only and he need not prove dispossession or discontinuance of possession since the thrust is on the proof of adverse possession. This itself is a sufficient protection for the owner (when compared with the 1908 Act) when he sues on title. There cannot also be any distinction between a trespasser and bonafide purchaser from such trespasser. If the nature of dispossession is made a subject of enquiry in a case, the owner of the land would be put to much prejudice and the required object of protecting the owner of the land would not be achieved. Such an enquiry would be a boon to the persons claiming adverse possession. Even if the entry into the land by the person claiming adverse possession was bonafide, so long as the owner sues for possession under Article 65, the owner would not be deprived of his right and he would not be put to plead or defend any fact other than title; and the person claiming adverse possession would not get any benefit based on any bonafides.
10.11. The Limitation Act, l963 does not contemplate any compensation being paid to a trespasser making improvements in the property. Making such a provision in the law would be detrimental to the interests of the owner. If a trespasser is to be paid compensation for the improvements made by him, that will result in depriving the legitimate rights of the true owner since he would be made liable to pay huge compensation for extensive improvements made by a powerful trespasser. That would result in defeating the legitimate rights of the owner to recover possession of his land.
10.12. There cannot also be any distinction between an owner who did not evince interest in the land or the other way about, since an owner who did not take care of his land at one point of time may do otherwise at a later point of time. The owner can sell the land to a person interested in the land for a good price. Sometimes, the legal representatives of the owner may be inclined to properly take care of the land and improve it.
10.13. It is also not advisable to make any provision for compensating the owner by the adverse possessor. After coming into wrongful possession, the adverse possessor may be interested to retain the land even after paying compensation to the owner. The process of fixing compensation may provide an opportunity to him to question the quantum of compensation and to protract the litigation to the prejudice of the owner who lost possession and who wants to recover possession of his land.
10.14. There is also no justification to enlarge the period of 12 years under Articles 64, 65, 111 or 112. Under the 1908 Act also, the period of limitation was l2 years for a suit under Article 142 (Article 64 of the 1963 Act) and Article 144 (Article 65 of the 1963 Act). The period of limitation under the 1908 Act was 60 years under Article 146A. (Article 111 of the 1963 Act) and Article 149 (Article 112 of the 1963 Act) and it was reduced to 30 years, consequent on the policy decision to reduce the maximum period of 60 years for several articles to 30 years for all of them. Under the 1963 Act, the maximum period for any suit is not more than 30 years. 10.15′ The well settled principle over decades is that there can be adverse possession even in respect of the property belonging to the Government. When a private individual gets a period of 12 years under Articles 64 or 65 to file a suit for possession, the Government would get 30 years, in view of Article 112. The Government, with its machinery, would be able to protect their property in a better manner than the private individual. The Government cannot be extended with any premium for their laxity, if any, in bringing a suit for possession even within the larger period of 30 years. There is also no justification for abolition of adverse possession in relation to Govemment property. There cannot be any greater leniency in favour of the Government than that is provided under Article 112 of the Limitation Act, 1963.
10.15 …….
10.16. In respect of Non-Resident Indians, no special safeguard is required in the matter of adverse possession, for filing a suit under Article 64 or Article 65. There are ways and means for Non-Resident Indians to protect their property. The technological development, to a great extent, would be a beneficial factor in favour of them too.
10.17. Section I of the Limitation Act provides for the short title, extent and commencement. Sub section (2) of Section I of the Limitation Act was as follows: “It extends to the whole of India except, the State of Jammu and Kashmir.” The words “except the State of Jammu and Kashmir” were omitted by the Jammu and Kashmir Reorganisation Act, 2019 (34 of2019). Therefore, it is expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article 112.“

Recommendations of the Law Commission

Finally, the Law Commission recommended as under:

“RECOMMENDATIONS
11.1. The Law Commission is of the considered view that there is no reason or justification to enlarge the period of limitation provided under Articles 64, 65, 111 or I12.
11.2. However, it is expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article I12, in view of the omission of the words “except the State of Jammu and Kashmir” from sub-section (2) of section I of the Limitation Act, 1963 by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019).
The commission recommends accordingly.”

Dissent Note

Ex-officio Members of the Commission, Dr. Reeta Vasishta (Legislative Secretary) and Dr. Nitan Chandra (Law Secretary), placed a Dissent Note.

Consultation with other Ministries and Departments: The Ex-officio Members pointed out that the Commission has not consulted the relevant Ministries of the Government of India and States from where useful inputs could have been received; and they observed that it curtailed the benefit of broad-based deliberation.

Ground of Morality: The Ex-officio Members said that the report on adverse possession ‘formulated by Mr. Justice K.T. Sankaran of the Law Commission sought to justify adverse possession as a welfare law and on grounds of morality’. According to them, the morality ground propounded in the matter of adverse possession was not only contrary but ridiculous. The abolition of the law on adverse possession will neither hinder anybody’s right nor cause ‘negligence of land resources’. All the States have laws for providing land to the landless; and under these laws the poor could obtain proprietary rights in a manner authorised by law.

Adverse possession is Self-contradictory – For, it is to be ‘Peaceful & Hostile‘: It was pointed out that the law on adverse possession was riddled with self-contradictions – on requirements of the nature of possession, ‘to be peaceful as well as hostile and notorious‘. It is successful only where it is peaceful, open and notorious. However, none of these characteristics is shared by coup d’etat because coup d’etat has to be necessarily violent and turbulent. The Supreme Court has underscored the contradictory nature of the law in certain cases and considered it irrational, illogical and disproportionate. The Ex-officio Members referred to the four judgements of Supreme Court that throw light on the tenuous, insidious and contradictory character of the claim of adverse possession:

1. Hemaji Waghaji v. Bhikhabhai Khengarbhai, 2009-16 SCC 1073;
2. Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC
3. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC729;
4. State of Haryana v. Mukesh Kumar, (2011l)10 SCC 404.

The Ex-officio Members further denoted –

Because of the mere existence of such a law the true owners have been subjected to avoidable and expensive litigation running over generations by unscrupulous persons who are not averse to fraud and forgery.
This has saddled the already over-burdened machinery of the courts with avoidable work to the misery of the litigants.
If the law of adverse possession is struck off from the Limitation Act it will not hinder anybody’s right nor will it cause any neglect of land resources as has been argued in the Report.
In an over-populous country like India where land is scarce, the law of adverse possession only promotes false claims under the colour of adverse possession which ultimately does not stand judicial scrutiny.
To argue that adverse possession helps the poor and protects their rights in a welfare State and therefore such law of adverse possession cannot be abolished, holds no water since every State has a law for the settlement of government land with the poor which is the proper welfare legislation for the poor.
To claim that adverse possession protects the rights of the poor ignores the abuse of the law by land mafias, builders and powerful interest groups who are not disqualified to claim adverse possession under the present law.
It can be concluded that law of adverse possession serves no useful purpose considering the enactment of land laws in all the States for the welfare of the poor and the possibility of fraudulent claim of adverse possession as is established by large number of cases where courts have declined the claim of adverse possession.
The sentiment of the Court needs to be appreciated when it took the unusual step of urging the Ministry of Law & Justice to review the Law of Adverse Possession considering its inherent contradictions and recognizing that the law places a premium on dishonesty.
In several other countries, this law has been modified or abrogated.
It therefore, needs to be appreciated that it is an appropriate moment to strike off this provision of adverse possession from the Law of Limitation.

‘Supplementary Note’ placed in response to the ‘Dissent-Note’

The Law Commission (Chairperson, the three Fulltime Members and the Member Secretary) affirmed its view in its ‘Report’ presented on 24^th May, 2023, in the ‘Supplementary Note’ placed in response to the ‘Dissent-Note’ filed by the Ex-officio Members. The Supplementary Note, inter alia, contained the following:

The judgments of the Supreme Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517, and State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404, were ‘based on an understanding of the concept of adverse possession that largely stems from the decision of the European Court of Human Rights (ECHR) in JA Pye (Oxford) Ltd. v. United Kingdom, (2005) 49 ERG 90’. However, in appeal, the Grand chamber of ECHR overruled this judgment.
Articles 111 and 112 of the Schedule to the Limitation Act, 1963 provide for a maximum period of limitation of 30 years in case of claims of adverse possession against Government land. The constitutional validity of providing a longer period of limitation in favour of the Government had been upheld by the Constitution Bench of the Supreme Court in Nav Rattanmal v. State of Rajasthan, AIR 1961 SC 1704.
The Supreme Court, in Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324, has taken into consideration the earlier judgments in the cases of Hemaji Waghaji and Mukesh Kumar, but has not taken the view that the law of adverse possession requires review or re-examination.
The judgment in Ram Nagina Rai was delivered in 2O18 while Mukesh Kumar was delivered in 2011. “Hence, it is impossibility that the former judgment could be considered in the latter”.^#
- ^# ^{It was observed in the “dissent note” as under: “The significance of this observation was also underscored by the Court in a subsequent judgment, State of Haryana v. Mukesh Kumar. ”}

In Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729, a three-Judges Bench of the Supreme Court reaffirmed the long-standing right of adverse possession, meaning thereby that even a suit can be filed to claim title on the basis of adverse possession. Some decisions of the Supreme Court to the contrary were overruled by this judgment.
In the Report of the Commission, ‘Adverse Possession vis-a-vis Morality’ was included, for the Supreme Court, in Hemaji Waghaji, called the concept of adverse possession to be ‘immoral’. The Report sought to analyse and explain as to how, despite popular perception to the contrary, it can still be understood to be ‘moral’. Thus, the concept of adverse possession was not justified (independently) on the ground of morality.
The concept of adverse possession is very much prevalent in almost all foreign jurisdictions, with the exception of the Canadian province of Alberta, where the social and geographical conditions are altogether different from India.

Should the person who claims adverse possession necessarily know the true owner?

There is difference of opinion.

It can be said – “The person who claims adverse possession must necessarily know the true owner, (for) then only it becomes ‘adverse’ as stated in Art. 65 of the Limitation Act.”

In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895 (two-Judge Bench) our Apex Court held as under:

“A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case.”

Report of the 22^nd Law Commission

But, in the Report of the 22^nd Law Commission it is stated as under:

“7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).”

The Consultation Paper-cum-Questionnaire prepared by the 19^th Law Commission is attached to the Report of the 22^nd Law Commission, as “Annexure – 1”. Para 2.6 of the same reads as under:

“2.6 It was clarified by a three-Judge Bench of the Supreme Court in Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707,
- “All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not the case here. “
“It was also clarified in a series of decisions that while possession shall be open and exclusive and in assertion of one’s own right, the fact that the possessor did not know who the real owner was, will not make his possession any the less adverse. There are certain passing observations in some judgments of the Supreme Court rendered by two learned Judges that the plea of adverse possession is not available if the adverse possessor does not know who the true owner is; but, the law declared by the larger Bench decisions of the Supreme Court obviously prevails.“

Law Commission inappropriately relied on Kshithish Chandra Bose

It appears that the Law Commission inappropriately relied on the Three Judge Bench decision. On a careful reading of this decision, Kshithish Chandra Bose, it can be seen that this decision arose from a matter that emerged prior to 1963 Limitation Act, and when the 1908 Limitation Act reigned the field.

Under the 1908 Act, the true owner was bound to file suit for recovery within 12 years of losing possession; and it was immaterial – whether the trespasser ‘acquired’ right of ‘adverse‘ possession against the true owner, knowing him and bringing his attention to the ‘trespass’.

While narrating the facts, it is observed in Kshithish Chandra Bose, as under:

“In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. I of Ranchi Municipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912 which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even if the land belonged to the defendant municipality, he had acquired title by prescription by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.”

Lmitn. Act, 1963 Brought-in Major Changes in Adv. Possession on ‘onus of proof’

Old Act of 1908 – Backdrop

Under the old Act of 1908, the true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).
In other words, under the old Act, the true owner would lose his right to recover the property if he failed to file a suit within the period of 12 years.
Under the 1908 Act, it was immaterial – whether the trespasser ‘acquired’ right of adverse possession against the true owner; knowing him and bringing his attention to the ‘trespass’, or not (as required in 1963 Act).

New 1963 Act – Backdrop

Under the new Limitation Act, 1963, the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years (Article 65). Therefore the true owner has no burden to show possession within 12 years (as required under the old Act).
Under the 1963 Act, adverse possession arises, only ‘by the positive and hostile acts’ of the trespasser; and, mere possession is not sufficient (but, it must be ‘adverse’ to the true owner).
The new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’).
If no adverse possession, mere possession of trespasser, however long, will not lose the right of the true owner (on the ground of limitation) to recover property, on the basis of his title [See: Government of Kerala v. Joseph, 2023 KHC OnLine 6764; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr., (1984) 2 SCC 286, Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591; Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756].

From the above, it comes out that the person who claims adverse possession must necessarily know the true owner; and that the three-Judge Bench decision, Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, cannot be used to support the plea that adverse possession is available even if the adverse possessor does not know who the true owner is.

Note: This article being an evaluation of the Law Commission Report, Dissent Note and Supplementary Note, the readers are requested to refer the original text of the Report, Dissent Note and Supplementary Note.

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General

“Implied Grant” in Law of Easements

Saji Koduvath, Advocate, Kottayam.

‘Implied Grant’ Recognised in Three Distinct Legal Connotations

1. Theoretical Basis of Easement of Necessity. Implied from the necessity of enjoying the dominant tenement; arises by operation of law in the absence of any other access.
2. Theoretical Basis of every Right of Easement The origin of all easements is a grant by the servient owner; it may be expressed, as is mentioned in Sections 8 to 12, or implied from the circumstances as in Section 13, or presumed from long and continued user as in Section 15 of the Act.
3. Judicially Acknowledged Sources of Easement. Common Law of India recognises following two modes of ‘easements’ –
- (i) Village Pathways (falls under Sec. 18 Easements Act – Customary Easements): Easement inferred from a long and continued practice of user by a certain class of the public in certain locality. E.g.: a village pathway (See: Lachhi v. Ghansara Singh, AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325; Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571).
- (ii) Implied Grant of Pathways: A species of easement by grant, inferred from the conduct of parties or surrounding circumstances; a recognised source of easement based on presumed intention. (See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622; L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307).

“Implied Grant”: Inferred or Presumed from the Circumstances

The origin of all easements is, in theory, a grant by the servient owner. ‘Easement by grant’ is a well-recognised category of easement, which may be either express or implied. An implied grant may be inferred from the surrounding circumstances or the conduct of the parties.

Note: Traditionally, the term ‘implied easement’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.

The right to an easement by way of implied grant was upheld by the Supreme Court in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622. In this decision, the Court observed that an ‘easement of grant is a matter of contract between the parties (and it may have its own consideration)‘; and that ‘the grant may be either express or even by necessary implication‘.

It is seen that the Supreme Court has only reaffirmed the legal position previously upheld by several High Courts.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307, the existence of a right of way was inferred from the words of the relevant documents. It was observed as under:

8. From all these documents Thiru D. Ramaswami Iyengar stated, it is clear that there is an implied grant of easement over the 30-ft. road. He cited Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209, wherein a Bench of this Court has laid down the principles on which an implied grant can be inferred. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least the contention that the absence of an express grant would negative an implied grant is quite untenable. It is from attendant circumstances and other documentary evidence that an implied grant has to be inferred. It is pity that the lower appellate Court has not bestowed its attention before it disposed of the appeal, on the aspect of spelling out an implied grant, which is recognised by law.
9. Annapurna v. Santosh Kumar, AIR 1937 Cal 661 also makes it clear that in law implied grant has to be inferred and lays down that grant can be presumed from the description of boundaries in the conveyance which mentions the same to be a common passage.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307, the High Court also referred Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834, where ‘a grant of an easement of way’ had been inferred from the words of the lease deed.

It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the plaintiff could found his case on an implied grant of easement even if there was no express grant; and that the argument that the absence of an express grant would negative an implied grant was quite untenable.

Also read: Implied Grant: A Valid Mode of Creation of Easement under Indian Law

Can an ‘Implied Grant‘ exist Independent of Sec. 13 Easement Act?

R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, addressed the issue with clarity, holding as under:

Merely because the juristic basis of the easement of necessity (Section 13) is said to be an implied grant, the converse will not follow.
In other words, where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity.

K.S. Venkataraman, J., said it in the following words:

“43. In some of the decisions and text books it is observed that in the case of an easement of necessity, which is dealt within Section 13 of the Easements Act, the juristic basis is that the law implies a grant. I have already quoted from Peacock on Easements who calls this a presumed grant as distinguished from acquisition of grant by implication on a true construction of the deed. The further point to be noted is that, merely because the juristic basis of the easement of necessity, which is dealt with in Section 13, is said to be an implied grant, the converse will not follow. In other words where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity under Section 13 of the Act for the purpose of being liable to be extinguished under Section 41. Indeed, on principle it is clear that, if a person acquires a grant expressly or by necessary implication, it will usually be on payment and there is no reason why such an easement, which has been paid for, should be extinguished. In the case of an easement of necessity arising under Section 13, because the law raises it, it is understandable why it will come to an end when the necessity ceases, as enacted in Section 41. That reason cannot apply to an acquisition by grant.”

Following is the relevant portion of this Judgment where Peacock on Easements is referred:

“In Peacock on Easements (Third Edition), Chapter VI deals with acquisition of easements. Part II thereof deals with acquisition by express grant. Part III deals with acquisition by implied grant, and it is distinguished from acquisition by presumed grant or operation of law, which is dealt with in Part IV. Briefly speaking, it is pointed out that it would be acquisition by implied grant on the language of the document correctly construed, whereas acquisition by presumed grant or operation of law would arise under the provisions of law such as those contained in Section 13 of the Easements Act. Thus at page 326 it is observed as follows:
- “An implied, grant, in the sense here used, is a grant which arises by implication from the language of the particular instrument construable according to the ordinary rules of construction, one of which is that the circumstances existing at the date of the grant may be looked at in order to ascertain the intention of the parties.”
This is repeated at page 336 as follows:
- “Thus the question whether or not a way has passed under a grant or devise by the use of general words, still remains one of construction to be determined according to the intention of the parties as expressed in the instrument and ascertainable from the state of circumstances existing at the date of its execution.”

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:

easements by grant: express grant by the owner of the servient heritage
easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
easements by prescription: that it is presumed to be acquired by peaceable and open enjoyment, without interruption for twenty years and
customary easements: it is inferred to be acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“13. On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff’s claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B’ schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway. The plaintiff had been residing in the house on `A’ schedule property even prior to the deed of settlement. Therefore, the Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B’ schedule pathway.
An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”

The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swyam Prakash Ashramam v. N. Gopala Pillai on 9 May, 2006. It was affirmed by the Supreme Court. The Kerala High Court held as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Upholding the view of the Kerala High Court the Apex Court held as under:

“In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

No Explicit ‘Consideration’ Required for Easement by Grant

Neither the provisions of the enacted law (Easements Act, 1882) nor judicial decisions specifically address the requirement of ‘consideration’ in the creation of easements by grant. This omission is understandable, as Indian law clearly permits the acquisition of easements by grant – both express and implied. Since an easement may arise by implication, and the intention to grant can be inferred from the terms of the grant or the surrounding circumstances, the fundamental principle of easement law – that every easement is, in theory, rooted in a grant – supports the conclusion that no express consideration is required for the creation of an easement by grant.

Sec. 8 of the Indian Easements Act reads:

“An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or, on his behalf, by any person in possession of the same.”

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without a requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user.”

Basis of every Right of Easement is Theoretically a Grant

In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:

“The basis of every right of easement by whatsoever method it may have been acquired, is theoretically a grant from the servient-owner.
- It may be expressed, as is mentioned in Sections 8 to 12 of the Act, or
- it may be implied from the circumstances as in Section 13 of the Act or
- it may be presumed from long and continued user for a certain period as in Section 15 of the Act, or
- it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.”

Alternative Way – Not Defeat – Implied Grant (Grant by Implication)

The existence of alternative way will defeat easement of necessity and quasi easement. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held – ‘alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant‘. It includes the claim of implied grant also. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

Easement by (Implied) grant and Quasi Easement can be pleaded alternatively

Easement by (implied) grant and quasi easement can be pleaded alternatively for, they are not mutually destructive, and it is permissible to raise inconsistent pleas (but to confine either of the two at the time of evidence).

Easement of Necessity and Easement by Prescription are Antithetical (Easement of Necessity and of Implied-Grant are Analogous)

Easement by prescription is acquired by hostile and notorious acts; but user of it should be peaceable and open enjoyment, without interruption for twenty years. Therefore grant is presumed in easement by prescription.

Easement of Necessity and Implied grant

Both Easement of Necessity and of Implied grant (i.e. ‘Easement by grant’ on implication) are sprouted on Analogous principles; for the reason that, both are based on some sort of ‘consent or permission’.

Implied Grant and Easement by Prescription

Implied Grants [both as (i) theoretical basis of Easement of Necessity and (ii) ‘Easement by grant’ on implication] are Antithetical to Easement by Prescription, because implied grants are based on some sort of ‘consent, approval or permission’ and Easement by Prescription is arisen from prescriptive or hostile acts and it is to be ‘acquired’.

Quasi Easement and Implied grant

Quasi Easements arise usually on partition or bequeath (under a Will). It pertains to Apparent and Continuous rights. Sec. 5 of the Easements Act defines apparent and continuous easements. An apparent easement is defined as one, the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.
Quasi Easement (apparent and continuous easement) permits enjoyment of an easement as it was enjoyed when the transfer or bequest took effect.
But in case of Easement of Necessity the extent of easement will be restricted to absolute necessity, or that is ‘essentially necessary’ for the effective user of a property, in the ordinary course for its designed purpose.

Read Blog: Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant

Origin of Easements of necessity and Easement by prescription are different (Easements of necessity is based on implied grants. It is based on some sort of ‘consent, approval or permission’; but, Easement by Prescription is arisen from prescriptive or hostile acts). Hence, both these rights are antithetical to each other. In Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is observed as under:

“Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise.” (Quoted in: Kalyan Spinning Mills v. M. Chellappan, AIR 2023 Mad 8, P. Sadayan v. Arumugam, 2020-1 Mad LW 535)
See also: Joy Joseph v. Jose Jacob, 2010 (4) KHC 167; Kochu Nadar v. Kunjan Nadar Gabriel,2011 SCC OnLine Ker 2674; Kallen Devi v. Kizhakkekoroth Raghavan, 2012 (3) KLT 142; Kamala Devi Amma v. Rajan, 2017 (4) KLJ 700; Lilly v. Wilson, 2018 (1) KLT 772.

Easement is Acquired; Not Arise out of ‘Express Permission’

Sec. 12, Easements Act states that an easement is acquired by the owner of an immovable property. It is observed by the Apex Court in Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103, that the claimant of easement (prescription) should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement.

Note: A license is personal to an individual, whereas a ‘grant’ in an easement pertains to a right attached to the land.

Easement and Licence – Distinction

Division Bench of the Delhi High Court, in Chandu Lal v. Municipal Corporation of Delhi, AIR 1978 Del 174, distinguished easement and licence as under:

“26… A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain the right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser……..”

End Notes:

Easement-by-Prescription – “Grant” or Acquisition by “Hostile or Notorious Act”? Is there incongruity?

The basis of every right of easement is theoretically a grant from the servient-owner. Grant is presumed in easement by prescription, for long and continued user. Is there incongruity (in case of easement by prescription) in saying that it is ‘grant’ (on one part) and ‘acquisition by prescription’ which suggests ‘adverse’ and ‘hostile or notorious’ user (on the other part)?

The answer is that the ‘grant’ herein is only a “presumption in law”; and virtually, easement by prescription has to be acquired by hostile and/or notorious acts.
It is clear from Sec. 12 and 15 of the Easement Act.

Tanba Nusaji Mahajan v. Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109 lays down the legal position accepted by Indian law, clearly, as under:

“The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Easement by Prescription is ‘Acquired’ by ‘Prescriptive’ user.

Chapsibhai Dhanjibhai Danad vs Purushotram, 1971 AIR 1878, it was pointed out as under:

“In Ravachand v. Maniklal (ILR 1946 Bom. 184), it was held that an easement by prescription under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man’s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the fight.”

In Raychand Vanmalidas vs Maneklal Mansukhbhai, (1946) 48 BomLR 25 it was held as under:

“In any case it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else’s property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man’s property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else. It must, therefore, follow, in my opinion, that a person who asserts such a hostile claim must prove that he had the consciousness of exercising that hostile claim on a property which is not his own, and where no such consciousness is proved, he cannot prove the prescriptive acquisition of the right”.

Easement by prescription is ‘acquired’ by ‘prescriptive’ user. It should not have been by permission or agreement. In case of easement, law requires pleading and proof – that the right claimed was enjoyed independent of any express permission (Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103).

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 62 that the acquisition of easement by prescription may be classified under the head of implied grant; for, all prescription presupposes a grant.

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to a (same) way, or
Does a way that started with minimum width (say a foot-path) under the claim ‘easement of necessity’, and continued, in the course of time, with a higher width (so that cars can be taken) for more than 20 years, yield or bring-in ‘easement by prescription’?

We find answer in negative form in Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109. It is held as under:

“10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Can Easement of Necessity and (Implied) Grant be Claimed Alternatively?

Yes.

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, Easement of Implied Grant can be granted in a suit even though “Grant” alone was Claimed (Alternatively to easement of necessity). Facts of the case, in a nutshell, are the following –

Plaintiff, owner of A-schedule property (dominant tenement), claimed “easement of necessity or of grant” in B-schedule property (servient tenement).
“Implied grant” was not specifically pleaded (only ‘grant’ was pleaded).
Dominant tenement had been separated from the servient tenement.
Plaintiff has been using the way in B-schedule property for a long period (about 50 years).
The trial court observed that the plaintiff claiming easement by grant or easement of necessity has only a primary burden to prove the absence of any alternate pathway (these findings were accepted by the Apex Court).
Defendant alleged that two alternate pathways existed. But, No evidence of any other way to A-schedule property (dominant tenement).
The High Court found that there was implied grant of ‘B’ schedule property as pathway.

The Supreme Court upheld the view of the High Court and the Trial Court and held as under:
“… the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that
- (i) no other pathway was provided for access to ‘A’ schedule property of the plaint and
- (ii) there was no objection also to the use of ‘B’ schedule property …”

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“17. The High Court limited itself to the issue whether the decree of the first appellate court granting the original plaintiff (since deceased) right of easement over ‘B’ schedule property by way of grant concurring with the findings of the trial court was sustainable.
18. Before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the original plaintiff (since deceased) against the order of the Appellate Court which disallowed the claim of easement of necessity and, therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the ‘B’ schedule property stood confirmed. Further they contended that the alternative pathway on the western side of the ‘A’ schedule property was rendered inconvenient by the very act of the original plaintiff (since deceased) who sold that portion of the property to a third party who began digging that pathway resulting in the difference in level. The High Court, on consideration of these contentions, held that though the claim of right of easement by way of necessity over ‘B’ Schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over ‘B’ schedule property stood unaffected by the said conduct.
21. The High Court relied on a number of observations in Katiyar’s Law of Easement and Licences (12th Edition) on law with respect to “implication of grant of an easement.” It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.
23. Applying these observations to the facts of the case, the High Court held that though the original grant was by Yogini Amma that grant could not perfect as an easement for the reason that Yogini Amma herself was the owner of both ‘A’ schedule and ‘B’ schedule properties and consequently there was no question of ‘B’ schedule property becoming the servient tenement and ‘A’ schedule property becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples by virtue of the settlement deed. Therefore, the right of the plaintiff to have ‘B’ schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of ‘B’ schedule property as pathway as can be inferred from the circumstances, namely,
- i) no other pathway was provided for access to ‘A’ schedule property in the settlement deed and
- ii) there was no objection to the use of ‘B’ schedule as pathway.
25. We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the ‘B’ Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 1940 in ‘A’ Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to ‘A’ Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of ‘B’ schedule pathway for access to ‘A’ schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of the use of the ‘B’ schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to ‘B’ schedule property of the plaint for its use as pathway to ‘A’ schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the ‘A’ schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the ‘B’ Schedule property of the plaint. It is an admitted position that both ‘A’ schedule and ‘B’ schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away.
In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K. Mukherjee, as His Lordship then was observed:
- “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

In this decision our Apex Court has also quoted the following from Katiyar on Law of Easements and Licences –

“There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement… … It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“.

Implied Grant and Quasi Easement in a ‘Formed’ Way

There could be no implied grant where the easements are not continuous and non-apparent. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court found quasi easement under Section 13(b) of the Indian Easements Act over a way in the following circumstances –

Though there could be no implied grant where the easements are not continuous and non-apparent, if there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
There was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to dominant property and there was no objection also to the use of disputed way by the plaintiff.
An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances.
A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
Only access to the property was through disputed pathway.
It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
The user was not obstructed for very long time.
There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Pleaded ‘Grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘Grant’, and not, Implied Grant, our Apex Court, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, allowed Implied Grant observing as under:

“It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

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Can Easement of Necessity and of Implied Grant be Claimed in a Suit (Alternatively)?

Taken from: Is the Basis of Every Easement, Theoretically, a Grant

Saji Koduvath, Advocate, Kottayam

Can Easement of Necessity and of Implied Grant be Claimed in a Suit (Alternatively)?

Answer – Yes.

‘Implied Grant’ Recognised in Three Distinct Legal Connotations

1. Theoretical Basis of Easement of Necessity. Implied from the necessity of enjoying the dominant tenement; arises by operation of law in the absence of any other access.
2. Theoretical Basis of every Right of Easement The origin of all easements is a grant by the servient owner; it may be expressed, as is mentioned in Sections 8 to 12, or implied from the circumstances as in Section 13, or presumed from long and continued user as in Section 15 of the Act.
3. Judicially Acknowledged Sources of Easement. Common Law of India recognises following two modes of ‘easements’ –
- (i) Village Pathways (falls under Sec. 18 Easements Act – Customary Easements): Easement inferred from a long and continued practice of user by a certain class of the public in certain locality. E.g.: a village pathway (See: Lachhi v. Ghansara Singh, AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325; Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571).
- (ii) Implied Grant of Pathways: A species of easement by grant, inferred from the conduct of parties or surrounding circumstances; a recognised source of easement based on presumed intention. (See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622; L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307).

“Implied Grant” has as much efficacy as an express grant

In Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834, Annapurna v. Santosh Kumar, AIR 1937 Cal 661; Ratanchand Chordia v. Kasim Khaleeli, AIR 1964 Mad 209 and L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307, it was held that the grant of a right of way which had necessarily to be implied on a true construction of the deed, had as much efficacy as an express grant.

It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the implied grant could be raised even if there was no express grant; and that the argument that the absence of an express grant would negative an implied grant was quite untenable. Easement right by way of implied grant stated in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, is this ‘Easement by grant’ that arise by implication.

Easement of Necessity and Implied Grant

Both Easement of Necessity and of Implied Grant (i.e. ‘Easement by grant’ on implication) are sprouted on Analogous principles; for the reason that, both are based on some sort of ‘consent or permission’.

Implied Grant and Easement by Prescription

Implied Grants [both as (i) theoretical basis of Easement of Necessity and (ii) ‘Easement by grant’ on implication] are Antithetical to Easement by Prescription, because implied Grants are based on some sort of ‘consent, approval or permission’ and Easement by Prescription is arisen from prescriptive or hostile acts and it is to be ‘acquired’.

Quasi Easement and Implied Grant

Quasi Easements arise usually on partition or bequeath (under a Will). It pertains to Apparent and Continuous rights. Sec. 5 of the Easements Act defines apparent and continuous easements. An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.
Quasi Easement (apparent and continuous easement) permits enjoyment of an easement as it was enjoyed when the transfer or bequest took effect.
But in case of Easement of Necessity the extent of easement will be restricted to absolute necessity, or that is ‘essentially necessary’ for the effective user of a property, in the ordinary course for its designed purpose.

Hero Vinoth v. Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement of necessity’, for the following –

An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement.
The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land.
It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Sec. 41.
Such an easement will last only as long as the absolute necessity exists.

Hero Vinoth v. Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement by grant’, for the following –

Easement by grant will not amount to an easement of necessity under Sec. 13 of the Act eventhough it may also be an absolute necessity for the person in whose favour the grant is made.
Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone.
If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability.
Such a right does not arise under the legal implication of Sec. 13.
An easement by grant does not get extinguished under Sec. 41 of the Act which relates to an easement of necessity.
Where the parties clearly provided for a right of access to the backyard of the defendant’s house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors, it is a matter of contractual arrangement between them.
In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way.

Hero Vinoth v. Seshammal, 2006-5 SCC 545, is the well accepted authority, to differentiate ‘easement of necessity and grant’. It is laid down–

Easement of necessity is depended upon absolute necessity. Easement by grant does not depend upon absolute necessity of it. (It is the nature of the acquisition that is relevant.)
Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. Still, easement of grant is a matter of contract between the parties, and the parties are governed by the terms of the grant and not anything else; whereas easement of necessity is controlled under the legal implications of Sec. 13 and it is extinguished by the statutory provision under Sec. 41 (which is not applicable to easement by grant).
Easement by grant will not amount to an easement of necessity under Sec. 13 even when grant is an absolute necessity for the person in whose favour it is made.

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Grant may be Express or “Implied“

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user.

Note: Traditionally, the term ‘implied easeemnt’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.

Also read: Implied Grant: A Valid Mode of Creation of Easement under Indian Law

Pleaded ‘Grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘Grant’; and not, Implied Grant, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court, allowed Implied Grant observing as under:

“It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

Facts of the case (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622), in a nutshell, are the following –

Plaintiff, owner of A-schedule property (dominant tenement), claimed “easement of necessity or of grant” in B-schedule property (servient tenement).
“Implied grant” was not specifically pleaded (only ‘grant’ was pleaded).
Dominant tenement had been separated from the servient tenement.
Plaintiff has been using the way in B-schedule property for a long period (about 50 years).
The trial court observed that the plaintiff claiming easement by grant or easement of necessity has only a primary burden to prove the absence of any alternate pathway (these findings were accepted by the Apex Court).
Defendant alleged that two alternate pathways existed. But, (in evidence) No other way to A-schedule property (dominant tenement).
The High Court found that there was implied grant of ‘B’ schedule property as pathway.
The Supreme Court upheld the view of the High Court and the Trial Court and held as under:
- “… the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that
  - (i) no other pathway was provided for access to ‘A’ schedule property of the plaint and
  - (ii) there was no objection also to the use of ‘B’ schedule property …”

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“17. The High Court limited itself to the issue whether the decree of the first appellate court granting the original plaintiff (since deceased) right of easement over ‘B’ schedule property by way of grant concurring with the findings of the trial court was sustainable.
18. Before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the original plaintiff (since deceased) against the order of the Appellate Court which disallowed the claim of easement of necessity and, therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the ‘B’ schedule property stood confirmed. Further they contended that the alternative pathway on the western side of the ‘A’ schedule property was rendered inconvenient by the very act of the original plaintiff (since deceased) who sold that portion of the property to a third party who began digging that pathway resulting in the difference in level. The High Court, on consideration of these contentions, held that though the claim of right of easement by way of necessity over ‘B’ Schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over ‘B’ schedule property stood unaffected by the said conduct.
21. The High Court relied on a number of observations in Katiyar’s Law of Easement and Licences (12th Edition) on law with respect to “implication of grant of an easement.” It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.
23. Applying these observations to the facts of the case, the High Court held that though the original grant was by Yogini Amma that grant could not perfect as an easement for the reason that Yogini Amma herself was the owner of both ‘A’ schedule and ‘B’ schedule properties and consequently there was no question of ‘B’ schedule property becoming the servient tenement and ‘A’ schedule property becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples by virtue of the settlement deed. Therefore, the right of the plaintiff to have ‘B’ schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of ‘B’ schedule property as pathway as can be inferred from the circumstances, namely,
- i) no other pathway was provided for access to ‘A’ schedule property in the settlement deed and
- ii) there was no objection to the use of ‘B’ schedule as pathway.
25. We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the ‘B’ Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 1940 in ‘A’ Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to ‘A’ Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of ‘B’ schedule pathway for access to ‘A’ schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of the use of the ‘B’ schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to ‘B’ schedule property of the plaint for its use as pathway to ‘A’ schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the ‘A’ schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the ‘B’ Schedule property of the plaint. It is an admitted position that both ‘A’ schedule and ‘B’ schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away.
In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K. Mukherjee, as His Lordship then was observed:
- “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Implied Grant and Quasi Easement in a ‘Formed’ Way

Though there could be no implied grant where the easements are not continuous and non-apparent, if there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
There was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to dominant property and there was no objection also to the use of disputed way by the plaintiff.
An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances.
A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
Only access to the property was through disputed pathway.
It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
The user was not obstructed for very long time.
There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Easement is Acquired; not arise out of ‘Express Permission’ (akin to Licence)

Easement-by-Prescription – “Grant” or Acquisition by “Hostile or Notorious Act”? Is there Incongruity?

The basis of every right of easement is theoretically a grant from the servient-owner. Grant is presumed in easement by prescription, for long and continued user. Is there incongruity (in case of easement by prescription) in saying that it is ‘grant’ (on one part) and ‘acquisition by prescription’ which suggests ‘adverse’ and ‘hostile or notorious’ user (on the other part)?

The answer is that the ‘grant’ herein is only a “presumption in law”; and virtually, easement by prescription has to be acquired by hostile and/or notorious acts.
It is clear from Sec. 12 and 15 of the Easement Act.

Tanba Nusaji Mahajan v. Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109 lays down the legal position accepted by Indian law, clearly, as under:

“The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Chapsibhai Dhanjibhai Danad vs Purushotram, 1971 AIR 1878, it was pointed out as under:

“In Ravachand v. Maniklal (ILR 1946 Bom. 184), it was held that an easement by prescription under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man’s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the fight.”

In Raychand Vanmalidas v. Maneklal Mansukhbhai, (1946) 48 BomLR 25, it was held as under:

“In any case it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else’s property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man’s property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else. It must, therefore, follow, in my opinion, that a person who asserts such a hostile claim must prove that he had the consciousness of exercising that hostile claim on a property which is not his own, and where no such consciousness is proved, he cannot prove the prescriptive acquisition of the right”.

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 62 that the acquisition of easement by prescription may be classified under the head of implied grant; for, all prescription presupposes a grant.

Alternative Way Will Not Defeat Claim of Implied Grant (Grant that arise by Implication)

The existence of alternative way will defeat easement of necessity and quasi easement. But, it will not defeat the claim of implied grant. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

Easement by (implied) grant and quasi easement can be pleaded alternatively Easement by (implied) grant and quasi easement can be pleaded alternatively for, it is not mutually destructive, and it is permissible to raise inconsistent pleas (but to confine either of the two at the time of evidence).

Easement of Necessity and Easement by Prescription are Antithetical (Easement of Necessity and of Implied-Grant (Grant that arise by Implication) are Analogous)

“Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise.” (Quoted in: Kalyan Spinning Mills v. M. Chellappan, AIR 2023 Mad 8, P. Sadayan v. Arumugam, 2020-1 Mad LW 535).
See also: Joy Joseph v. Jose Jacob, 2010 (4) KHC 167; Kochu Nadar v. Kunjan Nadar Gabriel,2011 SCC OnLine Ker 2674; Kallen Devi v. Kizhakkekoroth Raghavan, 2012 (3) KLT 142; Kamala Devi Amma v. Rajan, 2017 (4) KLJ 700; Lilly v. Wilson, 2018 (1) KLT 772.

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to a (same) way?
Does a way that started with minimum width (say a foot-path) under the claim ‘easement of necessity’, and continued, in the course of time, with a higher width (so that cars can be taken) for more than 20 years, yield or bring-in ‘easement by prescription’?

We find answer in negative form in Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109. It is held as under:

10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

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Dr. Jaya Thakur v. Union of India – Mandamus (Given in a Case) Cannot be Annulled by Changing the Law

Jojy George Koduvath

Taken from: Doctrines on Ultra Vires and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur Vs. Union of India)

Abstract

It is found in Dr. Jaya Thakur v. Union of India (2023) by the Supreme Court of India that that the direction (mandamus) given in an earlier case (Common Cause case, 2021) that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra, Director, Enforcement Directorate) could not have been nullified by changing the Law (which formed the basis of the earlier decision).

Brief History

Shri. Sanjay Kumar Mishra was appointed as the Director of Enforcement Directorate, on 19th November 2018, for two years, by the President of India (as the head of various investigating agencies). On 13th November 2020, the President of India approved the extension of his tenure, for one year.

Court directed that no further extension: A Writ Petition was filed in 2020 before the Supreme Court of India, as ‘Common Cause (A Registered Society) v. Union of India’, in public interest, under Article 32 of the Constitution of India, praying to quash the extension order. It was contented before the Apex Court that the Government did not have the power to extend the tenure of the Director. The Court, rejected the contention and dismissed the Writ Petition in 2021 (2021 SCC OnLine SC 687). But, the court directed that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra, Director, Enforcement Directorate).

Amendment of Central Vigilance Commission Act (CVC Act): After dismissal of the Writ Petition in 2021, two new provisos were added to Sec. 25(d) of the Central Vigilance Commission Act (CVC Act), by way of Amendment. Parliament also amended the Central Vigilance Commission Act and the Delhi Special Police Establishment Act. By the amendments the very basis on which the judgment was delivered has been taken away. The new provisions permitted an extension at a time for one year with a rider that the cumulative period should not be more than 5 years. Challenging the Amendments Writ Petitions were filed before the Apex Court.

Term of Director Was Further Extended: During the pendency of the said writ petitions, on 17th November 2021, the tenure of the Director was extended for a period of one year, i.e. upto 18th November 2022, or until further orders, whichever was earlier; and thereby another Writ Petition was also was filed.

Contentions: It was contended by the petitioners (in Dr. Jaya Thakur v. Union of India) that that the direction (mandamus) given in an earlier case (Common Cause case, 2021) that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra, Director, Enforcement Directorate) could not have been nullified by changing the Law (which formed the basis of the earlier decision).

The main argument of the Union of India was that – by the amendment the very basis on which the the earlier judgment (Common Cause case, 2021) was delivered has been taken away and that the new provision permited the extension.

It is held in Dr. Jaya Thakur v. Union of India (2023) that the orders giving extension to the tenure of the respondent No. 2- Sanjay Kumar Mishra, for a period of one year are illegal; and that the nullification of a mandamus by a subsequent legislative exercise was impermissible.

Nullification of a Mandamus by a Legislation is Impermissible

The Apex Court relied on, mainly, the following earlier decisions to hold that the nullification of a mandamus by a subsequent legislation was illegal –

Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50,
In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96,
S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16
Madras Bar Association v. Union of India, (2022) 12 SCC 455,
Medical Council of India v. State of Kerala and others, (2019) 13 SCC 185.

(a) Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50: The employees of the LIC were denied the benefits which they were entitled to. They filed writ petitions before the High Court of Calcutta for a writ of mandamus and prohibition directing the LIC to act in accordance with the terms of a Settlement. It was allowed by the Calcutta High Court The LIC preferred Appeal. During the pendency of the appeal the Life Insurance Corporation (Modification of Settlement) Act, 1976 was enacted. The effect of the enactment was to annul the benefits which the employees of the LIC were entitled to in view of the mandamus issued by the Calcutta High Court. The Seven Judge Bench in Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50, considered the constitutional validity of the Life Insurance Corporation (Modification of Settlement) Act, 1976.

Bhagwati, J (speaking for himself, Krishna Iyer and Desai, JJ.) observed thus:

“9. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and Class IV employees.”

Beg. CJ, in his concurring judgment observed thus:

“32. I may, however, observe that even though the real object of the Act may be to set aside the result of the mandamus issued by the Calcutta High Court, yet, the section does not mention this object at all. Probably this was so because the jurisdiction of a High Court and the effectiveness of its orders derived their force from Article 226 of the Constitution itself. These could not be touched by an ordinary act of Parliament.”

Beg. CJ, continued as under:

“Even if Section 3 of the Act seeks to take away the BASIS of the judgment of the Calcutta High Court, without mentioning it, by enacting what may appear to be a law, yet, I think that, where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights. Therefore, according to the interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the basis of a mandamus from the High Court could not be taken away in this indirect fashion.”

(b) In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96: The Constitution Bench of the Apex Court, In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96, observed as under:

“76. The principle which emerges from these authorities is that the legislature can change the BASIS on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.”

“12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the BASIS or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments.
… This is a case where on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative exercise.”

(d) Medical Council of India v. State of Kerala, (2019) 13 SCC 185: A similar view has been taken by the Apex Court in Medical Council of India v. State of Kerala and others2525 (2019) 13 SCC 185 .

(e) Madras Bar Association v. Union of India, (2022) 12 SCC 455: In Madras Bar Association v. Union of India, the Apex Court “on the issue of permissibility of legislative override”, observed as under:

“50. The permissibility of legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under:
50.1. The effect of the judgments of the Court can be nullified by a legislative act removing the BASIS of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. [Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197 : 1985 SCC (Tax) 245]
50.2. The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the BASIS of the judgment pointing out the defect is removed.
50.3. Nullification of mandamus by an enactment would be impermissible legislative exercise (see : S.R. Bhagwat [S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16 : 1995 SCC (L&S) 1334] ). Even interim directions cannot be reversed by a legislative veto (see : Cauvery Water Disputes Tribunal [Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2)] and Medical Council of India v. State of Kerala [Medical Council of India v. State of Kerala, (2019) 13 SCC 185] ).
50.4. Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India.”

Read Blog: Can Legislature Overpower Court Decisions by an Enactment?

Rule of Law and of Article 14

Investigating agencies are to be protected from any extraneous influence to enable them to discharge their duties in the manner required for proper implementation of the rule of law. In Vineet Narain v. Union of India, (1998) 1 SCC 226, it was found as under:

“In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution.”

In Madras Bar Association v. Union of India, (2022) 12 SCC 455, it was held as under:

“Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India.”

Judiciary – Protector of Constitution & Democracy as ultimate arbiter on Constitution

The Apex Court (in Dr. Jaya Thakur v. Union of India, 2023) quoted up to the following passage in Binoy Viswam v. Union of India, (2017) 7 SCC 59 –

“88. Undoubtedly, we are in the era of liberalised democracy. In a democratic society governed by the Constitution, there is a strong trend towards the constitutionalisation of democratic politics, where the actions of democratically elected Government are judged in the light of the Constitution. In this context, judiciary assumes the role of protector of the Constitution and democracy, being the ultimate arbiter in all matters involving the interpretation of the Constitution.
89. Having said so, when it comes to exercising the power of judicial review of a legislation, the scope of such a power has to be kept in mind and the power is to be exercised within the limited sphere assigned to the judiciary to undertake the judicial review. This has already been mentioned above. Therefore, unless the petitioner demonstrates that Parliament, in enacting the impugned provision, has exceeded its power prescribed in the Constitution or this provision violates any of the provision, the argument predicated on “limited governance” will not succeed. One of the aforesaid ingredients needs to be established by the petitioners in order to succeed.”

Judicial Review

The Apex Court held in this case (Dr. Jaya Thakur Vs. Union of India) as under –

“It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and the Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.”

The scope of the judicial review in examining the legislative functions of the Legislature with regard to validity of the Amendments were considered in the following decisions-

Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles [356 US 86]
Binoy Viswam v. Union of India and others2222 (2017) 7 SCC 59

The Apex Court (Dr. Jaya Thakur v. Union of India) elaborately quoted Binoy Viswam v. Union of India, (2017) 7 SCC 59, to pointed out the following –

First, Legislation, not within the competence of the legislature, and
Second, Legislation, in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/provision of the Constitution.

“No enactment can be struck down by just saying that it is arbitrary _{[An expression used widely and rather indiscriminately – an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943): “The phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas”, said the learned Judge.]} or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them.
The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz.
- unreasonableness, which can more appropriately be called irrationality,
- illegality, and
- procedural impropriety
_{(see: Council of Civil Service Unions v. Minister for the Civil Service, 1984-3 All ER 935 (HL) which decision has been accepted by this Court as well).}
The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue.
_{(See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 All ER 720 (HL).}
It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled.” (Quoted in State of M.P. v. Rakesh Kohli, 2012-6 SCC 312)
A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592] said : (SCC p. 660, para 149)”
Also referred: State of WB v. EITA India Ltd., (2003) 5 SCC 239, Rajbala v. State of Haryana, (2016) 2 SCC 445 : AS Krishna v. State of Madras, AIR 1957 SC 297.
A fortiori, a law cannot be invalidated on the ground that the legislature did not apply its mind or it was prompted by some improper motive.
In K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, it was observed as under:
“205. Plea of
- unreasonableness,
- arbitrariness,
- proportionality, etc.
always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy.”

c. Judicial Review – First Ground – Ultra Vires The Constitution: In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, following pertinent observations were made –

“219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review.

d. 2^nd Ground – Violation of Fund. Rigt. – Presumption In Favour of Constitutionality

In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed as under:
’15. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest …” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it. It stated as under:
’15. … and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, reiterated the principle that presumption was always in favour of constitutionality of an enactment and observed as under:
‘8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.’ (referred Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942, Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661, Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41, and State of Bombay v. F.N. Balsara, 1951 SCC 860 : AIR 1951 SC 318.)

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Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur Vs. Union of India)

Jojy George Koduvath

Abstract

Is Nullification of a Mandamus (by Changing Law) Permissible? Ans. No.

Dr. Jaya Thakur Vs. Union of India – Facts in a Nutshell

A Writ Petition was filed in 2020 before the Supreme Court of India, as ‘Common Cause (A Registered Society) v. Union of India’ (2021 SCC OnLine SC 687), in public interest, under Article 32 of the Constitution of India, praying to quash the extension order.

Contention – It was contented before the Apex Court, in ‘Common Cause (A Registered Society) v. Union of India’ (2021 SCC OnLine SC 687) that the Government did not have the power to extend the tenure of the Director.

Decision: In ‘Common Cause (A Registered Society) v. Union of India’ (2021 SCC OnLine SC 687) the Court, rejected the contention of the petitioners and dismissed the Writ Petition. But, the Court directed that no further extension shall be granted. The Court observed in paragraph 23, as under:

“23. … Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25(a) of the CVC Act.
Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period. We do not intend to interfere with the extension of tenure of the second Respondent in the instant case for the reason that his tenure is coming to an end in November, 2021. We make it clear that no further extension shall be granted to the second Respondent (Sanjay Kumar Mishra).”

Law Amended & Very BASIS of the Judgment was Changed

After dismissal of the Writ Petition in 2021, two new provisos were added to Sec. 25(d) of the Central Vigilance Commission Act (CVC Act), by way of Amendment. Parliament also amended the Central Vigilance Commission Act, and the Delhi Special Police Establishment Act. By the amendment the very basis on which the judgment was delivered has been taken away. The new provision permits an extension at a time for one year with a rider that the cumulative period should not be more than 5 years.

Challenging the Amendments Writ Petitions were filed before the Apex Court.

Contentions of the Petitioners & Amicus Curiae

The Union of India annulled Court decision. It was not permissible in law. It is to be quashed and set aside.
The nullification of mandamus by an enactment is also an impermissible legislative exercise.
The impugned Amendments does not change the BASIS, though, in view of the judgment of the Apex Court in Madras Bar Association v. Union of India, (2022) 12 SCC 455, the effect of the judgments could be nullified by a legislative act of removing the BASIS of the judgment, and such law could be retrospective. .
It is not permissible to ‘set aside’ an individual Court decision inter partes by amending Law (so as to affect the rights and liabilities of the parties), though it is permissible for the Legislature to change the BASIS on which a decision is given by the Court and, thus, change the law in general, which will affect a class of persons and events at large. Following decisions were relied on-
- Shri Prithvi Cotton Mills Ltd. v. Broach Borough Municipality, (1969) 2 SCC 283,
- Bhaktawar Trust v. M.D. Narayan, (2003) 5 SCC 298,
- Cauvery Water Disputes Tribunal, Re, 1993 Supp (1) SCC 96, and
- Madras Bar Association v. Union of India, 2021 SCC OnLine SC 463
- The amended provisions are manifestly arbitrary.
Amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights, though, the effect of the judgments could be nullified by a legislative act of removing the BASIS of the judgment.
Apex Court has consistently held that the tenure of the high-ranking officials like the Director of Enforcement, the Director of CBI and the Director General of Police should be for a fixed period of two years in order to insulate such an officer from extraneous pressures and enable him to work independently and freely. Follwing decisions were placed –
- Vineet Narain v. Union of India, (1998) 1 SCC 226
- Prakash Singh v. Union of India (Prakash Singh-1), (2006) 8 SCC 1
- Prakash Singh v. Union of India(Prakash Singh-2), (2019) 4 SCC 14 and
- Prakash Singh v. Union of India (Prakash Singh-3), (2019) 4 SCC 1
The very independence of an officer would be taken away by the situation – if an incumbent performs as per the wishes of the authority, he would get an extension.
The Court in Vineet Narain v. Union of India, (1998) 1 SCC 226, has approved the recommendations of the Independent Review Committee. It was tasked, inter alia, to suggest the changes needed to ensure against extraneous pressures, arbitrary withdrawals or transfers of personnel etc.
In Madras Bar Association v. Union of India (2014) 10 SCC 1, the Court had struck down the provision for re-appointment of the Chairperson/ Members for another term of 5 years under the National Tax Tribunals Act, 2005, by holding that such a provision itself has the effect of undermining the independence of the Chairperson/ Members of National Tax Tribunal (NTT).
In Rojer Mathew v. South Indian Bank Limited, (2020) 6 SCC 1, when the provision for reappointment of the Chairperson/Members under the NTT Act, 2005 was sought to be introduced by way of Rules, the same was struck down by this Court as being in disregard of the binding principles enunciated by this Court and being destructive of judicial independence.
The Madras High Court in V. Sasitharan v. The Government of Tamil Nadu, 1995 SCC OnLine Mad 592, pointed out that the extensions granted to the officers beyond the date of retirement, generate disgruntlement and dis-appointment amongst lower down in the ladder whose only aspiration in their official career would be to reach to the top most post in the administrative set up.
The Madras High Court has held that if such extensions are granted as a matter of bounty, then there is every possibility of the officer in service playing to the tunes of those in power totally acting against public interest.
There is chance of misuse of powers by any political party, which may be in power.
The impugned Amendments, if permitted to remain, would lead to a tendency wherein incumbents/officers would succumb to the pressure of the Government in power and act as per their desire so that they get further extensions.
The argument that the present incumbent needs to be continued on account of an ongoing mutual evaluation of India by the Financial Action Task Force (FATF) is also self-contradictory. Even after the Amendment, the incumbent can continue only upto November 2023, whereas the possible plenary discussions are likely to be held in the month of June 2024. The argument is, therefore, without substance.
The institutions like the ED and the CBI are needed to be kept insulated to protect the democracy (relied on: Anoop Baranwal v. Union of India, 2023 SCC OnLine SC 216).

Contentions of the Union of India

The applicants are, in effect, seeking review of the judgment of this court. In Beghar Foundation v. Justice K.S. Puttaswamy (Retired) (2021) 3 SCC 1, it was submitted that the Change in Law cannot be a ground for review.
The Legislature has power even to annul the mandamus issued by the Court. (M/s Kishan Lal Lakhmi Chand v. State of Haryana, 1993 Supp (4) SCC 461, relied on.)
It was submitted that in view of the judgment of this Court in the case of Madras Bar Association v. Union of India, (2022) 12 SCC 455, the effect of the judgments of the Court can be nullified by a legislative act of removing the BASIS of the judgment. Such law can be retrospective.
The contention that the Amendment annulled the mandamus is without substance. The mandamus was contextual on the BASIS of the statutory provision existing then. Since the statutory provision has undergone a complete change taking away the foundation on the BASIS of which the mandamus is issued, the contention in that regard deserves to be rejected.
(a) The Legislature is undoubtedly competent to pass such a legislation.
- (b) The question is – whether this Court would have rendered the same judgment in Common Cause (2021), had it considered the law which has undergone change.
- (c) Following decisions were relied on –
- Indian Aluminium Co. v. State of Kerala (1996) 7 SCC 637,
- Goa Foundation v. State of Goa (2016) 6 SCC 602 and
- K.S. Puttaswamy (Retired) (Aadhar) v. Union of India (2019) 1 SCC 1

Scope of interference by the Court while exercising power of judicial review of the legislative action of the State is very limited. Unless the Court finds that –
- (i) the legislation is not within the competence of the legislature or
- (ii) it has violated the fundamental rights or any of the provisions of the Constitution, it will not be permissible for the Court to interfere with the same. (various judgments were relied on).

The words “rare” and “exceptional” as found in the case of Common cause (2021) have now been taken away by an Amendment. (Welfare Association, A.R.P., Maharashtra v. Ranjit P. Gohil, (2003) 9 SCC 358, relied on).
The present writ petitions are not bona fide public interest litigations, but are filed with an oblique motive. Most of the writ petitioners are members of political parties. Various members of these political parties are under investigation by the ED.
The extension can be granted to the incumbents only if the High- Level Committees recommend the same, and that too, in public interest and for the reasons to be recorded in writing. It is submitted that the provision of granting extension of one year at a time is made so that the incumbent functions effectively.
The argument that incremental extensions would lead to the incumbents working under the pressure of the Government is totally untenable. He submits that the extensions could be granted only in a case when the Committee, as provided in Section 25 of the CVC Act, recommends such an extension. Such Committee consists of the Central Vigilance Commissioner and the Vigilance Commissioners who are totally independent, impeccable and impartial persons. The Director of CBI is concerned, equally, the extension can be granted only in an event when the Committee consisting of (a) the Hon’ble Prime Minister; (b) the Leader of Opposition; and (c) the Chief Justice of India or his nominee would recommend such an extension.
If a long-fixed tenure of 5 years is granted at a time, then there is also a possibility that a person, knowing that he will continue to be in the office for a period of 5 years, may not discharge his duties effectively.
Nobody is indispensable; however, leadership makes a lot of difference.
Present incumbent needs to be continued on account of an ongoing mutual evaluation of India by the Financial Action Task Force (FATF). The evaluation had to be done in the year 2019. However, it could not be done on account of the COVID- 19 pandemic. The evaluation has already begun and is likely to end in June 2024.
The main component of the evaluation is its effectiveness. The present incumbent is at the helm of affairs for the last so many years, it was found necessary that for effective presentation of the efforts made by the country, he should be continued till the process of evaluation is complete.
A mutual evaluation report provides an in-depth description and analysis of a country’s system for preventing criminal abuse of the financial system as well as focused recommendations to the country to further strengthen its system. Therefore, it was found that the present assessment should be done under the leadership of the present incumbent.

Findings of the Court

1. Rule of Law and of Article 14: Investigating agencies are to be protected from any extraneous influence to enable them to discharge their duties in the manner required for proper implementation of the rule of law. In Vineet Narain v. Union of India, (1998) 1 SCC 226, it was found as under:

“In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution.”

In Madras Bar Association v. Union of India, (2022) 12 SCC 455, it was held as under:

“Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India.”

Read Blog: Can Legislature Overpower Court Decisions by an Enactment?

2. Judicial Review: The Apex Court held in this case (Dr. Jaya Thakur Vs. Union of India) as under –

“It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and the Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.”

The scope of the judicial review in examining the legislative functions of the Legislature with regard to validity of the Amendments were considered in the following decisions-

Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364
Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles [356 US 86]
Binoy Viswam v. Union of India and others2222 (2017) 7 SCC 59

The Apex Court (Dr. Jaya Thakur v. Union of India) elaborately quoted Binoy Viswam v. Union of India, (2017) 7 SCC 59, to pointed out the following –

a. Judicial Review – Grounds available (on the validity of a piece of legislation): The grounds of judicial review that are available to adjudge the validity of a piece of legislation are two and “there is no third ground.”_{(State of A.P. v. McDowell & Co., 1996-3 SCC 709, State of M.P. v. Rakesh Kohli, 2012- 6 SCC; State of M.P. v. Rakesh Kohli, 2012-6 SCC 312)}.

The grounds are:

First, Legislation, not within the competence of the legislature, and

Second, Legislation, in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/provision of the Constitution.

“No enactment can be struck down by just saying that it is arbitrary _{[An expression used widely and rather indiscriminately – an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943): “The phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas”, said the learned Judge.]} or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them.
The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz.
- unreasonableness, which can more appropriately be called irrationality,
- illegality, and
- procedural impropriety
_{(see: Council of Civil Service Unions v. Minister for the Civil Service, 1984-3 All ER 935 (HL) which decision has been accepted by this Court as well).}
The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue.
_{(See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 All ER 720 (HL).}
It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled.” (Quoted in State of M.P. v. Rakesh Kohli, 2012-6 SCC 312)
A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592] said : (SCC p. 660, para 149)”
Also referred: State of WB v. EITA India Ltd., (2003) 5 SCC 239, Rajbala v. State of Haryana, (2016) 2 SCC 445 : AS Krishna v. State of Madras, AIR 1957 SC 297.
A fortiori, a law cannot be invalidated on the ground that the legislature did not apply its mind or it was prompted by some improper motive.
In K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, it was observed as under:
“205. Plea of
- unreasonableness,
- arbitrariness,
- proportionality, etc.
always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy.”

c. Judicial Review – First Ground – Ultra Vires The Constitution: In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, following pertinent observations were made –

“219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review.

d. 2^nd Ground – Violation of Fund. Rigt. – Presumption In Favour of Constitutionality

In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed as under:
’15. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest …” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it. It stated as under:
’15. … and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, reiterated the principle that presumption was always in favour of constitutionality of an enactment and observed as under:
‘8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.’ (referred Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942, Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661, Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41, and State of Bombay v. F.N. Balsara, 1951 SCC 860 : AIR 1951 SC 318.)

e. In Taxation, The Legislature Enjoys A Greater Latitude: In the field of taxation, the legislature enjoys a greater latitude for classification, as noted by in a long line of cases. Some of these decisions are –

Steelworth Ltd. v. State of Assam, 1962 Supp (2) SCR 589,
Gopal Narain v. State of U.P., AIR 1964 SC 370 ,
Ganga Sugar Corpn. Ltd. v. State of U.P., (1980) 1 SCC 223 : 1980 SCC (Tax) 90,
R.K. Garg v. Union of India, (1981) 4 SCC 675.

f. Judiciary – Protector of Constitution & Democracy as ultimate arbiter on Constitution: The Apex Court (in Dr. Jaya Thakur v. Union of India) quoted up to the following passage in Binoy Viswam v. Union of India, (2017) 7 SCC 59 –

“88. Undoubtedly, we are in the era of liberalised democracy. In a democratic society governed by the Constitution, there is a strong trend towards the constitutionalisation of democratic politics, where the actions of democratically elected Government are judged in the light of the Constitution. In this context, judiciary assumes the role of protector of the Constitution and democracy, being the ultimate arbiter in all matters involving the interpretation of the Constitution.
89. Having said so, when it comes to exercising the power of judicial review of a legislation, the scope of such a power has to be kept in mind and the power is to be exercised within the limited sphere assigned to the judiciary to undertake the judicial review. This has already been mentioned above. Therefore, unless the petitioner demonstrates that Parliament, in enacting the impugned provision, has exceeded its power prescribed in the Constitution or this provision violates any of the provision, the argument predicated on “limited governance” will not succeed. One of the aforesaid ingredients needs to be established by the petitioners in order to succeed.”

3. Manifest Arbitrariness: Apart from (i) lack of legislative competence and (ii) contravention of any of the fundamental rights, the validity of the legislative act can be challenged on “another ground as could be culled out from the recent judgments of this Court” is “manifest arbitrariness”. However, while doing so, it will have to be remembered that the presumption is in favour of the constitutionality of a legislative enactment.

4. It is nobody’s case that Parliament did not have power to enact: In the present case (Dr. Jaya Thakur v. Union of India), it is nobody’s case that Parliament did not have power to enact on the subject.

5. Impugned Amendments Whether Violate Fundamental Rights? Ans. No.

The arguments of the petitioners, in this regard, were not accepted by the Court .

The Director of Enforcement is concerned, the Central Government can appoint such a Director only on the recommendation of the Committee .Section 4 of the CVC Act deals with appointment of Central Vigilance Commissioner and Vigilance Commissioners. The appointment of Central Vigilance Commissioner and Vigilance Commissioners can be made only after a Committee consisting of

.(a) the Prime Minister (Chairman);
(b) the Minister of Home Affairs (Member); and
(c) the Leader of the Opposition in the House of the People (Member) recommends for the same.

The appointment of the Director of CBI cannot be made unless it is recommended by the High-Level Committee consisting of the

Prime Minister;
The Leader of Opposition; and
The Chief Justice of India or Judge of the Supreme Court nominated by him/her.

The aforesaid provisions have been made in order to give effect to the directions issued by this Court in the case of Vineet Narain (supra). The Apex Court in the case of Vineet Narain (supra) has issued a specific direction that the Director of CBI as well as the Director of Enforcement shall have a minimum tenure of two years.

The impugned Amendments empower the Government to extend the tenure of the incumbent in the said office by a period of one year at a time subject to the maximum period of five years including the period mentioned in the initial appointment.

When a committee can be trusted with regard to recommending their initial appointment, we see no reason as to why such committees cannot be trusted to consider as to whether the extension is required to be given in public interest or not.

We are, therefore, unable to accept the arguments that the impugned Amendments grant arbitrary power to the Government to extend the tenure of the Director of ED/CBI and has the effect of wiping out the insulation of these offices from extraneous pressures.

6. Whether Permissible To Extend Tenure Beyond Two Years? Ans. Yes.

The arguments of the petitioners, in this regard, were not accepted by the Court .

In Common Cause case (2021) it was urged that it was not permissible for the Government to extend the period of tenure of Director of Enforcement beyond two years; and that if the extension was permitted, it would frustrate the very purpose of insulating the aforesaid high posts from extraneous pressures. The Court rejected the arguments and held as under:

“If the Government has the power to appoint a person as Director of Enforcement for a period of more than two years, Section 25 of the CVC Act cannot be said to be inconsistent with Section 21 of the General Clauses Act. Following the dictum of this Court in State of Punjab v. Harnek Singh (supra) in which it was held that General Clauses Act has to be read into all Central Acts unless specifically excluded, we are of the considered view that the rule of construction embodied in Section 21 of the General Clauses Act has reference to the context and subject matter of Section 25 of the CVC Act. The judgment of the Constitution Bench of this Court in Kamla Prasad Khetan (supra) is applicable to the facts of this case ….”

7. The Court held in 2021- No Further Extension To The Second Respondent: It is violated. The Court specifically observed in the earlier decision, Common Cause (2021), as under:

“23. The justification given by the Union of India for extension of the tenure of second Respondent is that important investigations are at a crucial stage in trans-border crimes. The decision to extend the tenure of the second Respondent is pursuant to the recommendation made by the high powered committee.
Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25(a) of the CVC Act.
Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period. We do not intend to interfere with the extension of tenure of the second Respondent in the instant case for the reason that his tenure is coming to an end in November, 2021. We make it clear that no further extension shall be granted to the second Respondent.”

8. Is Nullification of a Mandamus (by A Changed Law) Permissible? Ans. No.

It is found in Dr. Jaya Thakur v. Union of India that that the above direction in Common Cause (2021) was “a specific mandamus that no further extension shall be granted to the second respondent (Sanjay Kumar Mishra)”. Undisputedly, the Union of India as well as the respondent No. 2- Sanjay Kumar Mishra were parties to the said proceedings.

Therefore it is held in Dr. Jaya Thakur v. Union of India that the orders giving extensions to the tenure of the respondent No. 2- Sanjay Kumar Mishra, for a period of one year each are illegal.

It is held that nullification of a mandamus by a subsequent legislative exercise would be impermissible.

The Apex Court relied on, mainly, the following earlier decisions –

Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50,
In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96,
S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16
Madras Bar Association v. Union of India, (2022) 12 SCC 455,
Medical Council of India v. State of Kerala and others, (2019) 13 SCC 185.

9. (a) Madan Mohan Pathak v. Union of India (1978) 2 SCC 50: The employees of the LIC were denied the benefits which they were entitled to. They filed writ petitions before the High Court of Calcutta for a writ of mandamus and prohibition directing the LIC to act in accordance with the terms of a Settlement. It was allowed by the Calcutta High Court The LIC preferred Appeal. During the pendency of the appeal the Life Insurance Corporation (Modification of Settlement) Act, 1976 was enacted. The effect of the enactment was to annul the benefits which the employees of the LIC were entitled to in view of the mandamus issued by the Calcutta High Court. The Seven Judge Bench in Madan Mohan Pathak v. Union of India, (1978) 2 SCC 50, considered the constitutional validity of the Life Insurance Corporation (Modification of Settlement) Act, 1976.

Bhagwati, J (speaking for himself, Krishna Iyer and Desai, JJ.) observed thus:

“9. We are, therefore, of the view that, in any event, irrespective of whether the impugned Act is constitutionally valid or not, the Life Insurance Corporation is bound to obey the writ of mandamus issued by the Calcutta High Court and to pay annual cash bonus for the year April 1, 1975 to March 31, 1976 to Class III and Class IV employees.”

Beg. CJ, in his concurring judgment observed thus:

“32. I may, however, observe that even though the real object of the Act may be to set aside the result of the mandamus issued by the Calcutta High Court, yet, the section does not mention this object at all. Probably this was so because the jurisdiction of a High Court and the effectiveness of its orders derived their force from Article 226 of the Constitution itself. These could not be touched by an ordinary act of Parliament.”

Doctrine of Change of basis of earlier Judgment

Beg. CJ, continued as under:

“Even if Section 3 of the Act seeks to take away the BASIS of the judgment of the Calcutta High Court, without mentioning it, by enacting what may appear to be a law, yet, I think that, where the rights of the citizen against the State are concerned, we should adopt an interpretation which upholds those rights. Therefore, according to the interpretation I prefer to adopt the rights which had passed into those embodied in a judgment and became the BASIS of a mandamus from the High Court could not be taken away in this indirect fashion.”

(b) In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96

The Constitution Bench of the Apex Court, In Re., Cauvery Water Disputes Tribunal, 1993 Supp (1) SCC 96, observed as under:

“76. The principle which emerges from these authorities is that the legislature can change the BASIS on which a decision is given by the Court and thus change the law in general, which will affect a class of persons and events at large. It cannot, however, set aside an individual decision inter partes and affect their rights and liabilities alone. Such an act on the part of the legislature amounts to exercising the judicial power of the State and to functioning as an appellate court or tribunal.”

“12. It is now well settled by a catena of decisions of this Court that a binding judicial pronouncement between the parties cannot be made ineffective with the aid of any legislative power by enacting a provision which in substance overrules such judgment and is not in the realm of a legislative enactment which displaces the BASIS or foundation of the judgment and uniformly applies to a class of persons concerned with the entire subject sought to be covered by such an enactment having retrospective effect. We may only refer to two of these judgments.
… This is a case where on interpretation of existing law, the High Court had given certain benefits to the petitioners. That order of mandamus was sought to be nullified by the enactment of the impugned provisions in a new statute. This in our view would be clearly impermissible legislative exercise.”

(d) Medical Council of India v. State of Kerala and others2525 (2019) 13 SCC 185: A similar view has been taken by the Apex Court in Medical Council of India v. State of Kerala and others2525 (2019) 13 SCC 185 .

(e) Madras Bar Association v. Union of India, (2022) 12 SCC 455: In Madras Bar Association v. Union of India, the Apex Court “on the issue of permissibility of legislative override”, observed as under:

“50. The permissibility of legislative override in this country should be in accordance with the principles laid down by this Court in the aforementioned as well as other judgments, which have been culled out as under:
50.1. The effect of the judgments of the Court can be nullified by a legislative act removing the BASIS of the judgment. Such law can be retrospective. Retrospective amendment should be reasonable and not arbitrary and must not be violative of the fundamental rights guaranteed under the Constitution. [Lohia Machines Ltd. v. Union of India, (1985) 2 SCC 197 : 1985 SCC (Tax) 245]
50.2. The test for determining the validity of a validating legislation is that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the Court at the time of rendering its judgment. In other words, the defect pointed out should have been cured such that the BASIS of the judgment pointing out the defect is removed.
50.3. Nullification of mandamus by an enactment would be impermissible legislative exercise (see : S.R. Bhagwat [S.R. Bhagwat v. State of Mysore, (1995) 6 SCC 16 : 1995 SCC (L&S) 1334] ). Even interim directions cannot be reversed by a legislative veto (see : Cauvery Water Disputes Tribunal [Cauvery Water Disputes Tribunal, In re, 1993 Supp (1) SCC 96 (2)] and Medical Council of India v. State of Kerala [Medical Council of India v. State of Kerala, (2019) 13 SCC 185] ).
50.4. Transgression of constitutional limitations and intrusion into the judicial power by the legislature is violative of the principle of separation of powers, the rule of law and of Article 14 of the Constitution of India.”

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Contract Act

Easement

Stamp Act & Registration

Will

Arbitration

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Grant in Property Law

Jojy George Koduvath

PART I

Grant – Introduction

What is ‘Grant’?

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

Characteristics of ‘Grant‘

Usually, it expresses a grant by deed.
Generally, it imports a contract with conditions, express or implied.
Ordinarily, it will be without consideration.
Conventionally it is creation of an ‘interest’ in property (in case of easement, no interest is created; but only a right of enjoyment).
Mostly irrevocable, as long as the conditions are fulfilled.
Usually, conditions are specified in the grant to limit the grant period.

‘Grant’ – Collins Dictionary of Law

Inferior interest, out of an interest retained by the grantor, e.g., the grant of a lease of land by the person holding the freehold.

‘Grant’ – Earl Jowtt’s Dictionary of English Law

In the widest sense, ‘grant’ may comprehend everything that is granted or passed from one to another by deed. But commonly the term is applied to rights created or transferred by the Crown; e.g., grants of pensions, patents, charters, franchise (Quoted in Mohsin Ali v. State of MP, 1975-2 SCC 122).

‘Grant’ – Salmond on Jurisprudence

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

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

Black’s Law Dictionary

Black’s Law Dictionary gives the following meaning to “Grant” –

“(i) to bestow; to confer upon someone other than the person of entity which makes the grant;
(ii) to give or present as a right or privilege. (Quoted in: Hajee SVM Mohamed v. The Govt. of TN, 1997-3 SCC 466)

An Easement or Licence is the (express or implied) ‘Grant of a Right’

It is pointed out in Hajee S.V.M. Mohamed v. The Govt. of TN, 1997-3 SCC 466, that the definition of licence in Section 52 of the Indian Easements Act denotes that it is the grant of a right made by the grantor and that Sec. 53 and Sec. 54 of the said Act also refer unequivocally to the grant of licence.

Note: A license is personal to an individual, whereas a ‘grant’ in an easement pertains to a right attached to the land.

Grant may be Express or “Implied“

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long use.

Note: Traditionally, the term ‘implied easement’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“13. On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff’s claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B’ schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway. The plaintiff had been residing in the house on `A’ schedule property even prior to the deed of settlement. Therefore, the Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B’ schedule pathway.
An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Upholding the view of the Kerala High Court, the Apex Court held as under:

“In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Also read: Implied Grant: A Valid Mode of Creation of Easement under Indian Law

No Explicit ‘Consideration’ Required for Easement by Grant

Neither the provisions of the enacted law (Easements Act, 1882) nor judicial decisions specifically address the requirement of ‘consideration’ in the creation of easements by grant. This omission is understandable, as Indian law clearly permits the acquisition of easements by grant, both express and implied. Since an easement may arise by implication, and the intention to grant can be inferred from the terms of the grant or the surrounding circumstances, the fundamental principle of easement law – that every easement is, in theory, rooted in a grant – supports the conclusion that no express consideration is required for the creation of an easement by grant.

Sec. 8 of the Indian Easements Act reads:

“An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or, on his behalf, by any person in possession of the same.”

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without a requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user.”

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PART II

The Government Grants Act, 1895

The Government Grants Act, 1895 (formerly, before 1950, known as ‘Crown Grants Act, 1895’), had been enacted with a view to securing the Govt. lands from potential or protracted legal claims. It is a small Act with 3 sections.

The salient features of the Act are the following-

1. Transfer of Property Act, 1882, does not to apply to Government grants.
2. It applies to “any grant or other transfer of land or of any interest therein“.
3. It applies to grants and other transfers “heretofore made or hereafter to be made by or on behalf of the Government“.

The Government Grants Act, 1895 reads as under:

1. Title and extent.-(1) This Act may be called the Government Grants Act, 1895.
(2) It extends to the whole of India except the territories which, immediately before the 1st November, 1956 , were comprised in Part B States.
2. Transfer of Property Act, 1882, not to apply to Government grants.- Nothing in the Transfer of Property Act, 1882 (4 of 1882 ), contained shall apply or be deemed ever to have applied to any grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever; but every such grant and transfer shall be construed and take effect as if the said Act had not been passed.
3. Government grants to take effect according to their tenor.- All provisions, restrictions, conditions and limitations over contained in any such grant or transfer as aforesaid shall be valid and take effect according to their tenor, any rule of law, statute or enactment of the Legislature to the contrary notwithstanding.

Note:

Grants Act apply to all States except the “Part B States”.
Under States Reorganisation Act, 1956, Part B states are
- Patiala and East Punjab States Union (PEPSU),
- Hyderabad,
- Jammu and Kashmir,
- Travancore-Cochin.
- Madhya Bharat,
- Mysore,
- Rajasthan, and
- Saurashtra.

Grants Act does not apply to Land-Reform enactments made by the States, for the Grants Act is a Central Legislation.

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

Government Lands Grants Act, 1940 (Cochin)

The Government Lands Grants Act, 1940 (enacted with the same words to effect restrictions as that of the Government Grants Act, 1895) made constraints in the ‘grant or other transfer of land or of any interest therein heretofore made or hereafter to be made by or on behalf of the Government to, or in favour of, any person whomsoever’. By virtue of Section 2 of this Act, the Transfer of Property Act and Tenancy Acts do not apply to lands given as grant by the Government.

Efficacy of Grants Act After Independence

Ever so many decisions have come from various courts in India, including the Supreme Court, accepting the efficacy of the Grants Act. In Union of India v. S. Narasimhulu Naidu, 2021-10 SCALE 135, 2021-7 Mad LJ 58, our Apex Court considered the effect of the unregistered transfer of land by the State of Andhra Pradesh to the Union, made in 1956; and held as under:

“Since the land is transferred from the State, document of title is not required to be registered in terms of Section 17 of the Registration Act, 1908 and/or in terms of Government Grants Act, 1895.”

Grants Act (Special Statute) Prevails Over Transfer of Property Act

In Hajee SVM Mohamed Jamaludeen Bros and Co. v. Govt. of TN, AIR 1997 SC 1368, the Supreme Court has held as under:

“9. The combined effect of the above two sections of the Grants Act is that terms of any grant or terms of any transfer of land made by a government would stand insulated from the tentacles of any statutory law. Section 3 places the terms of such grant beyond the reach of any restrictive provision contained in any enacted law or even the equitable principles of justice, equity and good conscience adumbrated by common law if such principles are inconsistent with such terms. The two provisions are so framed as to confer unfettered discretion on the government to enforce any condition or limitation or restriction in all types of grants made by the government to any person. In other words, the rights, privileges and obligations of any grantee of the government would be completely regulated by the terms of the grant, even if such terms are inconsistent with the provisions of any other law.
14. It is true that the word ‘grant’ is not defined in the Grants Act but it is quite evident that the word has been used in the Act is its etimological sense and, therefore, it should get its widest import. In Black’s Law Dictionary, the word “Grant” is shown to have the meanings (i) to bestow; to confer upon someone other than the person or entity which makes the grant; (ii) to give or present as a right or privilege. (Fifth Edn., Page 629).
15. The definition of licence in Section 52 of the Indian Easements Act denotes that it is the grant of a right made by the grantor. Section 53 and Section 54 of the said Act also refer unequivocally to the grant of licence. Thus without a ‘grant’ in the general sense no licence can be created.
16. In Mohsin Ali Vs. State of MP, 1975 2 SCC 122 : AIR 1975 SC 1518, this Court said that ‘in the widest sense grant may comprehend everything that is granted or passed from one to another by deed. But commonly the term is applied to rights created or transferred by the Crown e.g. grants of pensions, patents, charters, franchise (See Earl Jowtt’s Dictionary of English Law).’
17. The word ‘grant’ used in the Grants Act could, therefore envelop within it everything granted by the government to any person. Thus, the licence which appellant obtained by virtue of the agreement would undoubtedly fall within the ambit of ‘grant’ envisaged in the Grants Act. “

In Pradeep Oil Corporation v. Municipal Corporation of Delhi, AIR 2011 SC 1869, the Supreme Court has held as under:

“17. In the present case grant has been made by the President of India in terms of Section 2 of the Government Grants Act, 1895 and the Transfer of Property Act, 1882 may have little bearing in the instant case. The former, i.e. the Government Grants Act, 1895 being a special statute would prevail over the general statute, i.e. the Transfer of Property Act, 1882. Accordingly, the rights and obligations of the parties would be governed by the terms of the provisions of Government Grants Act, 1895 whereunder the Government is entitled to impose limitations and restrictions upon the grants and other transfer made by it or under its authority.”

In State of Madras v.s T.M. Oosman Haji And Co., AIR 1970 Mad 27, it is held as under:

“The Government Grants Act was passed not only to settle the doubts which had arisen as to the effect of the Transfer of Property Act, 1882, but also, to remove any doubts with regard to the cower of the Government to impose limitations and restrictions upon grants and other transfers of lands made by it, or under its authority.
Section 2 of the Government Grants Act deals with exemptions as regards the Crown Grants from, the provisions of the Transfer of Property Act, 1882, and thus it gives effect to the first object mentioned in the preamble.
Section 3 of the Act provides that Crown Grants should take effect according to their tenor, notwithstanding any law to the contrary.”

In State of UP v. Zahoor Ahmad, AIR 1973 SC 2520: 1973-2 SCC 547, the Supreme Court has observed as under:

“16. Section 3 of the Government Grants Act declares the unfettered discretion of the Government to impose such conditions and limitations as it thinks fit, no matter what the general law of the land be. The meaning of sections 2 and 3 of the Government Grants is that the scope of that Act is not limited to affecting the provisions of the Transfer of Property Act only. The Government has unfettered discretion to impose any conditions, limitations, or restrictions in its grants, and the right, privileges and obligations of the grantee would be regulated according to the terms of the grant, notwithstanding any provisions of any statutory or common law.”

In Murlidhar Jalan v. State of Meghalaya, AIR 1997 SC 2690, the Supreme Court has held that when a perpetual lease granted by the Government for 99 years was not renewed after expiry, the relationship as tenant and landlord stood terminated and party concerned is not entitled for declaration that he is land-holder and after termination of lease, his possession is of trespasser. It was observed as under:

“3…….We find no force in the contention. It is an admitted position that renewal was not granted. Thereby, the previous lease stood expired and the relationship as tenant and landlord came to be terminated. He accepted the title of the Government; thus thereafter, he continued to be in possession as a trespasser. It is true that a lower level officer accepted the rent; and recognition was obviously made on a mistaken impression that the land was required for a public purpose; but on the basis thereof, it cannot be construed that the title of the appellant was confirmed by the conduct of the Government. Accordingly, the declaration of title as land-holder cannot be granted. The High Court, therefore, was right in refusing to grant the relief. It is not a case of taking possession without due process of law. The possession only continues to a facet of the facts. Apart from that there is no other documentary evidence on the basis of which it could be concluded that the title of the Government is defeated by acceptance of the rent or by requisition of the property by mistaken act on the part of the Government.

Government has unfettered discretion and under S. 3 Grants Act

Union of India v. Dinshaw Shapoorji Anklesari, 2014-14 SCC 204, said as under:

“42. In Union of India and others v. Kamla Verma, 2010-13 SCC 511, this Court has held that it is always open to the Union of India to resume the land held on old grant terms and that the Union of India cannot be prevented from resuming the said land.
43. Therefore, it is clear that the Government has unfettered discretion and under Section 3 impose any condition, limitation or restriction in its grants and the rights, privileges and obligations of the grantee would be regulated only according to the terms of the grant itself though they may be inconsistent with the provisions of any Statute or Common Law.”

Lease conditioned by Payment of Rent – Cannot be Irrevocable Grant

Our Apex Court observed in State of Madhya Pradesh v. Binod Mills Co Pvt. Ltd., 2019, (Rohinton Fali Nariman, Sanjay Kishan Kaul, JJ.) as under:

“10. Having heard learned counsel on behalf of the parties, we are of the view that neither the judgment of the Single Judge nor the judgment of the Division Bench can be sustained. It is clear on a reading of the 1912 document as well as the Lease-Acceptance deed that only a lease was entered into of the aforesaid land by the erstwhile Gwalior State in favour of the Binod Mills Co. Ltd., which lease was conditioned by payment of rent and by the condition that the Mill must continue and not cease to exist. In this view of the matter, it cannot be said that any irrevocable Grant had been made by the erstwhile Gwalior State in favour of the Binod Mills Co. Ltd. Further Section 182 of the M.P. Land Revenue Code, 1959, states as follows:
“182. Rights and liabilities of a Government lessee.- (1) A Government lessee shall, subject to any express provisions in this Code, hold his land in accordance with the terms and conditions of the grant, which shall be deemed to be a grant within the meaning of the Government Grants Act, 1895 (XV of 1895).
(2) A Government lessee may be ejected from his land by order of a Revenue Officer on one or more of the following grounds, namely: –
.(i) that he has failed to pay the rent for a period of three months from the date on which it became due; or
(ii) that he has used such land for purposes other than for which it was granted; or
(iii) that the term of his lease has expired; or
(iv) that he has contravened any of the terms and conditions of the grant:
Provided that no order for ejectment of a Government lessee under this sub-section shall be passed without giving him an opportunity of being heard in his defence.”
12. This provision again makes it clear that a land held under a Government Grant can be held as a Government lessee only if no ground for ejectment is made out under sub- section (2). Sub-section (2) has grounds for ejectment, apart from user of land for purposes other than for which it was granted. Failure to pay the rent for a period of three months from the date on which it became due, as also that any other terms and conditions of the grant had been contravened are also grounds for ejectment. It is, thus clear that even if the Mill was running, the Binod Mills Co. Ltd. could have been ejected if they failed to pay rent for a period of three months from the date on which such rent became due. This would show that this is a case of a Government lease and not an irrevocable Grant, as has wrongly been held by both the Single Judge and the Division Bench.”

Grants Act – Not required to Follow any other Procedure or Law

In Azim Ahmad Kazmi v. State of UP, 2012-7 SCC 278, the Supreme Court, relying upon the Grants Act, held that when a special procedure is prescribed for resumption of land under the lease deed, the State was not required to follow any other procedure or law.

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

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

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

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

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

PART III

Grant – Termination

Effect of Grant that Allows Unilateral Termination

The decision in Hajee SVM Mohamed v. The Govt. of TN, 1997(3) SCC 466, concluded as under:

“The result is that appellant cannot bypass clause 7 of the instrument under which he obtained the right to collect “chank shells” . The said clause adequately empowers the government to unilaterally terminate the arrangement or revoke the grant without assigning any reason whatsoever. The said clause is valid and could be enforced by the government at any time and hence the action of the government in rescinding the contract was valid. Appellant is not therefore, entitled to damages.”

99 Years Lease Not Renewed – Possession of Land-Holder is that of a Trespasser

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

“3…. It is an admitted position that renewal was not granted. Thereby, the previous lease stood expired and the relationship as tenant and landlord came to be terminated. He accepted the title of the Government; thus thereafter, he continued to be in possession as a trespasser.”

In Tata Steel Limited v. State of Jharkhand , Chelameswar, J., 2015-10 SCALE 35, the Supreme Court after considering the Grants Act and Hajee SVM Mohamed Jamaludeen v. Government of Tamil Nadu, held as under:

“19….. Section 2 of the Government Grants Act declares that “nothing contained in the Transfer of Property Act, 1882 applies to any grant or other transfer of land or any interest therein” made by or on behalf of the Government either prior to or after the commencement of the said Act. In other words, when Government transfers land or any interest therein to any person, such a transfer is not governed by the Transfer of Property Act, 1882. The rights and obligations flowing from the transfer of either a piece of land or an interest therein by the Government cannot be determined on the basis of the rights and obligations specified under the Transfer of Property Act, 1882. They are to be ascertained only from the tenor of the document made by the Government evidencing such a transfer. .. ..”

PART III

Govt. Grant – Land Continues to be Govt. Lands

A Planter under a Grant from Government is not a Jenmi

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

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

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

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

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

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

Rules under which Travancore Govt. issued Grants

The Rules included –

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

Grant of Reserved Forest Land

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

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

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

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

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

“11. Though the learned counsel for the petitioner contends that there is no transfer of interest in the property and that all that has happened is an amalgamation of the companies, a plain reading of the order of the Calcutta High Court would make it clear that there has been a takeover of the company by the present petitioner with all its assets and liabilities. Such an exercise can only be a transfer of the rights and assets as vested in the transferee company. If that be so, the contention raised by the learned Special Government Pleader that such an exercise is not possible in view of the provisions of Section 2 of the Forest (Conservation) Act and Section 22 of the Kerala Forest Act appears to be well founded. In Sunil Kumar v. Divisional Forest Officer [2000(2) KLT SN 7] this Court held that lease of a portion of reserve forest would be impermissible without the prior permission of the Central Government under the Forest (Conservation) Act, 1980. A Division Bench of this Court in State of Kerala and others v. New World Investment (P) Ltd. and others [2015 KHC 7103], considering a case of reserve forest land leased out by the erstwhile Cochin Government held that any further transfer by way of sale or lease or otherwise by the original lessee would be impermissible in view of the clear provisions of the statutes. Though the learned Senior Counsel attempts to show a distinction between sale in the said case and an amalgamation in the case on hand, since Section 22 specifically prohibits the ‘acquisition of rights of any nature’ without a grant or contract on writing by the Government, I am of the opinion that the mode of acquisition of the rights would be irrelevant. The prayers sought for in the writ petition, therefore, cannot be granted.”

In Secretary, TDB v. Mohanan Nair (T.R. Ramachandran Nair & A.V. Ramakrishna Pillai, JJ.), ILR 2013-2 Ker 883; 2013-3 KLT 132, an important decision on Kerala Land Reforms Act, it is found –

There should be permission for use and occupation of the land by a competent person.
The definition of ‘tenant’ will also show that there should be an agreement to pay rent or other consideration for being allowed to “possess and to enjoy the land”, with a person who is “entitled to lease the land.” Without interest being created in the land, nobody can claim to be a cultivating tenant.
If there is no demise of the land in favour of one, if at all any tenancy right can be created, the same can be done by the Devaswom Board only by appropriate proceedings
If no right to cultivate and raise produce of land given; but, right to take usufructs alone granted; or a mere licence, it will not mature into a tenancy.
Kuthakapattom licence cannot mature into a tenancy.
Use of word “rent” in receipt will not be conclusive to show existence of tenancy agreement,
Purchase Certificate issued by Land Tribunal, for land belonging to Devaswom (exempted category under S.3(1)(x) of the Act), will be in total violation of Rules, and will be a nullity.
Misfeasance or non-feasance of trustee cannot affect trust itself.
Court can interfere even if some years have passed and there was inaction on the part of Devaswom Board for certain period.

What is ‘Patta’?

Patta is a Certificate or Document issued by the Government (i) to tenants/ grantees of Govt. property, for cultivation, residence etc., and (ii) to persons to whom ownership is conferred upon Govt. property.

‘Patta’ was originally a word connected to land-lease. In Revenue documents (‘record of rights’) of various States in India , the lessee is referred to as patta-dhar. Several enactments also refer patta as lease-document.

Read Blog: What is Patta or Pattayam?

Following decisions speak as to patta issued to Tenants –

Nature Lovers Movement Vs. State of Kerala, AIR 2009 SC 1573
Kamala Bakshi Vs. Khairati Lal, AIR 2000 SC 1808
Glanrock Estate (P) Ltd Vs. State of Tamil Nadu, AIR 2010 SC 795 (Ryotwari Patta).
M Chinnathambi Alias Muthiah Vs. Ponnathal, 2010-1 Mad WN 725;
Umapathi, K. Vs. Addl. Collector, Thanjavur, 2000-2 Mad LJ 725
KS Shanthilal Vs. Sarojini Ammal, 1996-1 Mad LJ 562, (Ryotwari Patta)

Important Decisions on Grant

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

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

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

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

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

Points came for consideration were the following:

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

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

The position taken by the State was –

that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
- “you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja (Travancore) executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land.
Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that
- “the grantee can appropriate to his own use within the limits of the grant all timber except … Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood……….
The eleventh clause reads – “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer … be immediately made known to the Sircar….”
The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, ….”
The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams …. fifty yards …. Similarly … preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”

The Apex Court found the following:

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

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

The Apex Court further found –

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

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

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

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

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

It is observed:

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

It is observed further:

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

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

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

Travancore Regulation II of 1040 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 pay ment of kuttikanom or customs duty or both, as the case may be, in the same way as timber ordinarily felled”.
10. We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In Majeed v. State of Kerala,(2006) 1 KerLT 19, the State demanded seigniorage under Kerala Grants and Leases Modification of Rights Act, 1980. Petitioner was a person who purchased trees from Travancore Rubber and Tea Company Ltd. Disputes and questions arose in the light of of the Kerala Grants & Leases (Modification of Rights) Act, 1980. Admittedly there was originally a grant. The scope of ‘grant’ was disputed. The contention of the petitioner was that it was the free hold property.

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

The High Court rejected the Writ Petition recording as under:

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

PART IV

Forfeiture on Claim of Ownership By ‘Grantee’

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

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

The answer is – Yes. Following are the reasons:

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

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

Right of Forfeiture is a right arose in Common Law

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

Section 111, Transfer of Property Act reads as under:

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

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

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

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

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

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

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

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

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

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

The answer is, No.

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

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

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

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

Plantation activity is not a simple “agriculture” activity

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

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

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

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

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

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

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

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

End Notes

Sec. 15 Easement Act

Sec. 15 Easement Act reads as under:

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

What does “claiming title thereto” refer to?

Answer: It is ‘title to the legal right’ to easement.

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

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

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

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

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

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

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

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

Conclusion

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

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How to Write a Will? Requirements of a Valid Will

Saji Koduvath, Advocate, Kottayam.

Is it a Valid Will?

“My house will go to my wife on my death. The plot I have on north of my residential property will go to my daughter.
XYZ (signed)
Witnesses: 1. HIJK (signed) 2. LMNOP“ (signed)

Yes, it is valid; even though it does not contain –

Address of the person (testator) who wrote the Will (but, it must be identifiable).
Addresses of the persons (legatees) to whom the properties are given (but, it must be identifiable).
The details of the properties (but, it must be identifiable).
Address of the witnesses (but, it must be identifiable).

What are the essentials of a Will?

Identity of the person who wrote the Will.
Identity of the person to whom the property is given (bequeathed).
Identity of the properties.
Intention to bequeath (give under the Will).
Signature of the executant (testator).
Attestation by Two Witnesses, in presence of the testator.

A Will need not be –

On stamp-paper.
Registered.
Written in any specified form.
With an executor (one who is named to execute the intentions expressed in a Will).

Who can be a Witness?

Adult.
A beneficiary in the Will should not be an attester (if so, he will lose the benefit under the Will; and that portion will be treated as intestate property – that is, without a Will).

What will invalidate a Will?

Incapacity (minor, lunatic, etc.)
Force, fraud, etc.
Illegibility as to executant, beneficiary, property, etc.
Lack of expression – to be a Will.
Lack of Signature or mark of the executant, completing the Will.
Lack of Attestation by two witnesses (in presence of executant).
Execution of a subsequent Will.
Subsequent marriage. (See Sec. 69 of the Succession Act, 1925 given below.)

What all are Desirable?

Date.
Complete details as to executant, beneficiary, property, etc.
Circumstance of executing the Will.
Reason, if any, for not giving property to all legal heirs (wife/ husband, children, etc.) – if the legatees (to whom property is given under the Will) are some of the legal heirs only.
Reason, if any, for not giving property to the legal heirs – if the legatee is not a legal heir.
Legible Writing (can be printed before putting signature).
Clear and simple language.
Registration (at Sub Registrar’s Office).

How to cancel or revoke a Will?

Adopt any one of the following method.

By some writing, attested by two witnesses (in the manner in which a Will is executed) declaring an intention to revoke the Will (Sec. 70 of the Succession Act, 1925).
By the burning, tearing, or otherwise destroying the same by the testator (Sec. 70 of the Succession Act, 1925).
If the Will is a registered one, it is desirable to cancel it by another registered Statement.
Simply write another Will (Better to state – earlier Will is cancelled).

Will marriage Revoke Will, automatically

Every will shall be revoked by the marriage of the maker. (See Sec. 69 of the Succession Act, 1925 given below.)

Read Blog: How to Prove a Will, in Court?

End Notes:

Will – Attestation under Sec. 63(c) of the Succession Act

Sec. 63(c) of the Succession Act, 1925 says how Wills have to be executed. It is laid down as under.

Sec. 63(c) of the Indian Succession Act –

“63. Execution of unprivileged wills––Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules––
.(a) …..
(b) …..
(c) The will shall be attested by two or more witnesses, each of whom
- has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator,
- or
- has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the presence of the testator,
- but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

It is not Necessary – Witnesses must See Execution of Will

The attestation of a Will, under Sec. 63 of the Succession Act can be made –

either by
the witnesses who have “seen the testator sign or affix his mark”
or by
the witnesses who have “received from the testator a personal acknowledgment of his signature or mark”.

That is, both the attesting witnesses need not be present at the time of execution of the Will. And, one witness need not see the other attests the Will. It is fortified by last limb of Sec. 63 Succ. Act.

“but it shall not be necessary that more than one witness be present at the same time …..”

Section 69 of the Indian Succession Act, 1925

69. Revocation of will by testator’s marriage – Every will shall be revoked by the marriage of the maker, except a will made in exercise of a power of appointment, when the property over which the power of appointment is exercised would not, in default of such appointment, pass to his or her executor or administrator, or to the person entitled in case of intestacy.
Explanation – Where a man is invested with power to determine the disposition of property of which he is not the owner, he is said to have power to appoint such property.

Section 70 of the Indian Succession Act, 1925

70. Revocation of unprivileged Will or codicil — No unprivileged Will or codicil, nor any part thereof, shall be revoked otherwise than by marriage, or by another Will or codicil, or by some writing declaring an intention to revoke the same and executed in the manner in which an unprivileged Will is hereinbefore required to be executed, or by the burning, tearing, or otherwise destroying the same by the testator or by some person in his presence and by his direction with the intention of revoking the same.
Illustrations
(i) A has made an unprivileged Will. Afterwards, A makes another unprivileged Will which purports to revoke the first. This is a revocation.
(ii) A has made an unprivileged Will. Afterwards, A being entitled to make a privileged Will makes a privileged Will, which purports to revoke his unprivileged Will. This is a revocation.

Sec. 71 of the Indian Succession Act, 1925

71. Effect of obliteration, interlineation or alteration in unprivileged Will—No obliteration, interlineation or other alteration made in any unprivileged Will after the execution thereof shall have any effect, except so far as the words or meaning of the Will have been thereby rendered illegible or undiscernible, unless such alteration has been executed in like manner as hereinbefore is required for the execution of the Will: Provided that the Will, as so altered, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses is made in the margin or on some other part of the Will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the Will.

Sec. 74 of the Indian Succession Act, 1925

74. Wording of will — It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.

Sec. 100 of the Evidence Act

100. Saving of provisions of Indian Succession Act relating to wills -Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills

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General

Witnesses to the Will Need Not See the Execution of the Will

It is not necessary – Attesting witnesses should see the execution of the Will.

Taken from – How to Prove a Will, in Court?

Jojy George & Saji Koduvath.

Will – Attestation

The mode of attestation of Wills is given in Sec. 63(c) of the Indian Succession Act, 1925.

Sec. 63(c) reads as under:

“63. Execution of unprivileged wills––Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules––
.(a) …..
(b) …..
(c) The will shall be attested by two or more witnesses, each of whom
- has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator,
- or
- has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person;
and each of the witnesses shall sign the will in the presence of the testator,
- but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”

Attestation – Not necessary, Witnesses must be present at the same time

The attestation can be –

either by
each of the witnesses who has seen the testator sign or affix his mark
or by
the witnesses who “has received from the testator a personal acknowledgment of his signature or mark”.

That is, both the attesting witnesses need not be present at the time of execution of the Will. And, one witness need not see the other attests the Will.

It is fortified by the last limb of Sec. 63(c) which reads as under:

“but it shall not be necessary that more than one witness be present at the same time….”

If the Will, already executed by the testator (author of the will), is produced before one witness and the testator gives “a personal acknowledgment of his signature or mark” (put upon the will) and on that basis the witness attests the Will; and then the testator approaches the second witness and gets the Will attested (by the second witness also) in the same manner, such attestations are also valid and sufficient under Sec. 63(c).

“Personal Acknowledgment of his Signature or Mark”

In Ganesan v. Kalanjiam, (2020)11 SCC 715, the Supreme Court of India (Ashok Bhushan, Naveen Sinha, JJ.) explained as under:

“The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him.
“There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator.”

We can find the same view (that in Ganesan v. Kalanjiam) in the following decisions:

Ganshamdoss Narayandoss v. Saraswathi Bai, AIR 1925 Mad 861,
Ganshamadoss Narayandoss v. Gulab Bi Bai, AIR 1927 Mad 1054 ,
Pachigolla Venkatara v. Palepu Venkateswararao, AIR 1956 AP 1,
Bishan Devi Khanna v. Pirthi Singh Dhillon, AIR 1963 P&H 66,
Chhanga Singh Indar Singh v. Dharam Singh, AIR 1965 Punj 204,
Damodhar Bordoloi v. Mrinalini Devi Trust Board, AIR 1999 Gau 53,
S. Jagadish v. Dr. S. Kumaraswamy, ILR 2008 Kar 87.

A Large Number of Decisions do not lay down Correct Law

It is clear that the view taken in a large number of decisions do not lay down correct law when they state as under (ignoring the words in Sec. 63 Succession Act, “or has received from the testator a personal acknowledgment of his signature or mark”) as held in Benga Behera v. Braja Kishore Nanda, 2007-9 SCC 728) –

“A Will is required to be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will.”

In Vikrant Kapila Vs. Pankaja Panda, 2023-6 ALT 37 (SC), it is observed as under:

“26. …. It is useful to refer to Gopal Swaroop v. Krishna Murari Mangal, (2010) 14 SCC 266, wherein this Court held that as per the provisions of Sec. 63 of the Indian Succession Act, 1925, the due execution of the Will consists of the following:
i. The testator should sign or affix his mark to the Will;
ii. The testator’s signature or the mark of the testator should be so placed that it should appear that it was intended to give effect to the writing as a Will;
iii. Two or more witnesses should attest the Will;
iv. Each of the said witnesses must have seen the testator signing or affixing his mark to the Will, and each of them should sign the Will in the presence of the testator.

In Savithri v. Karthyayani Amma, (2007) 11 SCC 621, Supreme Court has held as under:

“17. … A will like any other document is to be proved in terms of the provisions of the Succession Act and the Evidence Act. The onus of proving the will is on the propounder. The testamentary capacity of the testator must also be established. Execution of the will by the testator has to be proved. At least one attesting witness is required to be examined for the purpose of proving the execution of the will. It is required to be shown that the will has been signed by the testator with his free will and that at the relevant time he was in sound disposing state of mind and understood the nature and effect of the disposition. It is also required to be established that he has signed the will in the presence of two witnesses who attested his signature in his presence or in the presence of each other. Only when there exists suspicious circumstances, the onus would be on the propounder to explain them to the satisfaction of the court before it can be accepted as genuine.”(Quoted in: Vikrant Kapila Vs. Pankaja Panda, 2023-6 ALT 37 (SC).

‘Attestation’ as defined in Sec. 3 of the T.P. Act

The word ‘Attestation’ is defined in Sec. 3 of the Transfer of Property Act. It is in pari materia to Succession Act. Sec. 3, TP Act reads as under:

Section 3 – Interpretation-clause – In this Act, unless there is something repugnant in the subject or context-
“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom
- has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant,
- or
- has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person,
and each of whom has signed the instrument in the presence of the executant;
- but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary.”

Attestation by both witness be proved

In Janaki Narayan Bhoir v. Narayan Namdeo Kadam, AIR 2003 SC 761, it is held as under:

” The one attesting witness examined, in his evidence has to satisfy the attestation of a Will by him and the other attesting witness in order to prove there was due execution of the Will. … Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.

In Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh, (2009) 4 SCC 780, it was held as under:

“The attesting witness should speak not only about the testator’s signature or affixing his mark to the will but also that each of the witnesses had signed the will in the presence of the testator.”
(Followed in: K.S. Dinachandran v. Shyla Joseph on 10 January, 2025, 2025: KER:672)

Attestation by the other witness can be inferred

In Devassykutty v. Visalakshy Amma [2010 KER 23730 : MANU/KE/1244/2010: R.S.A. No.1128/2003 (P. Bhavadasan, J.] held as under:

“It is true that in the case on hand there is no specific statement by P.W.2 that he had seen the other attesting witness sign the Will in the presence of the testator, but he has stated that the other witness had also signed in the document. That statement by implication and inference shows the attestation by the other witness also.”

Onus on propounder discharged when essential facts just indicated

Our Apex Court in H. Venkatachala Iyengar v. B. N. Thimmajamma, AIR 1959 SC 443, emphasided that the onus on the propounder of a Will could be taken to be discharged ‘on proof of the essential facts just indicated’.

See – How to Write a Will? Requirements of a Valid Will

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Read in this Cluster (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Contract Act

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General