Author Archives: sajikoduvath

Jojy George Koduvath.

Introduction

The word “Marumakkathayam” means the system of inheritance through nephews and nieces; or descent-through-sisters’-children.

• It was essentially a way of life perfected into a custom among Hindus of ancient Kerala.
• The individuals, especially men, bound by this system officially accepted their parentage from their maternal uncle. That is, a man who follow Marumakkathayam would identify himself as the nephew of so-and-so, rather than son of so-and-so.

The vast majority of Hindus in Kerala were the followers of customary laws like the Marumakkathayam Law, the Nambudiri Law or the Aliyasanthana law. Among them, Marumakkathayam system was of primary importance (See: Leela Amma v. Aravindaksha Menon, 2012-2 KHC 169).

Marumakkathayam – the Common Ancestor was a Female

Almost all legal systems round the world, throughout history, claimed descent from their male ancestors. The peculiar characteristic of ‘Marumakkathayam’ is that the common ancestors in this system were females.

“Marumakkathayam” – a Body of Custom Received Judicial Recognition

Marumakkathayam, as a system of inheritance, eventually received judicial recognition as a body of custom. In K. K. Kochuni v. States of Madras and Kerala AIR 1960 SC 1080 at p. 1099 Subba Rao, J. observed thus:

• “Marumakkathayam law governs a large section of people inhabiting the West Coast of South India Marumakkathayam literally means descent through sisters’ children. It is a body of custom and usage which have received judicial recognition. Though Sundara Aiyar, J., in Krishnan Nair v. Damodaran Nair. ILR 38 Mad. 48: (AIR 1916 Mad. 751) (FB) suggested that ‘Malabar Law is really only a school of Hindu Law’. It has not been accepted by others.” (Quoted in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82)

Characteristics of a Marumakkathaym Law

Joint Family System was the essential feature of Marumakkathayam, as a way of life. Joint Family was referred to as “Tarwad”. Other characteristics of a Marumakkathaym system were the following-

• The property belonging to the Marumakkathayam tarwad was the property of all the males and females who composed of it.
• Tarwad composed of all children (both male and female) of the common ancestress; and all children of the females in the female line (that is, all children, both male and female, of the daughters of the common ancestress, and all children, both male and female, of the grand-daughters of the common ancestress and so on).
  • Though tarwad consisted of a mother and her male and female children (and the sons and daughters of those female children and so on), the the children of the male members were not considered as members of the the tarwad (at least for claiming shares).
• When a partition is effected in the Tarwad, the number of shares was fixed on the basis of the the number of the daughters in the female line and the sons of each female member alone – who were the members of Tarwad (and not the children of the male members).
• Every member of a tarwad (members in the female line and their children – both male and female; and not the children of the male members) had equal rights in the property (Kavalappara Kottarathil Kochunni @ Mooppil Nayar v. States of Madras and Kerala, AIR 1960 SC 1080).
• The aforesaid right of those members were obtained by reason of his or her birth in the tarwad.
• Partition could have been effected only by the consent or concurrence of all the members of the tarwad. One or more members of a tarwad could not have claimed partition and separate possession of his or their share in the tarwad property. (Legislation made changes to it. See- M. K. Balakrishna Menon v. Assistant Controller of Estate Duty -cum –lTO, AIR 1971 SC 2392).
• The affairs of the family were administered by one of the male members, usually the eldest one, called the “Karanavan”. (See:  Leela Amma v. Aravindaksha Menon, 2012-2 KHC 169)

PR Sundara Aiyar on Malabar & Aliyasanthana Law, is a locus classicus on the subject of Marumakkathayam Law, as pointed out by K.M. Joseph, J., in Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345 (FB) . The learned Author would state as follows:

• “The joint family in a Marumakkathayam Nayar tarwad consists of a mother and her male and female children, and the children of those female children, and so on. The issue of the male children do not belong to their tarwad but to the tarwad of their consorts. The property belonging to the tarwad is the property of all the males and females that compose it. Its affairs are administered by one of those persons, usually the eldest male, called the karnavan. The individual members are not entitled to enforce partition but a partition may be effected by common consent. The rights of the junior members are stated to be
  • (1) if males, to succeed to management in their turn
  • (2) to be maintained at the family house
  • (3) to object to an improper alienation or administration of the family property
  • (4) to see that the property is duly conserved
  • (5) to bar an adoption and
  • (6) to get a share at any partition that may take place.
• These are what may be called effective rights. Otherwise everyone is a proprietor and has equal rights.”

Quantum of Share allotted to each Thavazhi

The quantum of share allotted to each thavazhi depended on thetotal number of members in each thavazhi; and not on the number of ‘daughters’ taken into consideration for fixing number of thavazhies. (Sreedevi Nethiar v. Peruvunni AIR 1935 Madras 71; Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345)

Legislations

As shown earlier, the Marumakkattayam laws were codified in the form of statutes. But, the erudite class considered it as an antiquated and anachronistic practice. This archaic system had paved way to as-of-right-marriages (against the wishes of the parties to the marriage) between the cousins! (It had been developed into a custom!!) It continued in spite of the codification of the Hindu Succession Act, 1956!!!

All those statutes that supported Marumakkathayam were done-away-with-in-one-shot, with effect from 01-12-1976 by the Kerala Joint Hindu Family System (Abolition) Act, 1975. The repealed Acts were the following:

• (1) The Madras Marumakkathayam Act, 1932 (XXII of 1933),
• (2) The Madras Aliyasanthana Act 1949 (IX of 1949),
• (3) The Travancore Nayar Act, II of 1100,
• (4) The Travancore Ezhava Act, III of 1100,
• (5) The Nanjmad Vellala Act of 1101 (VI of 1101),
• (6) The Travancore Kshatrlya Act of 1108 (VII of 1108),
• (7) The Travancore Krlshnanvaka Marumakkathayee Act, VII of 1115,
• (8) The Cochin Thiyya Act, VIII of 1107,
• (9) The Cochin Makkathayam Thlyya Act, XVII of 1115 ,
• (10) The Cochin Nayar Act, XXIX of 1113,
• (11) The Cochin Marumakkathayam Act, XXXIII of 1113,
• (12) The Kerala Nambudiri Act, 1958 (27 of 1958)

One of the important and progressive effects of these legislations was that it conferred on the members the right to demand partition in the tarwad property and to get their separate share allotted to them. After partition, each group of sharers  got joint shares independent of other groups. If it was to an individual sharer, he/she got the share as his or her individual property free of all incidents of tarwad property. It was the converse implication of Sec. 39 Nair Act, which reads-

• “39. Nature of right to tarwad property before partition–Until partition, no member of the tarwad shall be deemed to have a definite share in tarwad property liable to be seized in execution nor shall such member be deemed to have any alienable or heritable interest therein.”

Marumakkathayam System of Inheritance Among Muslims

In Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345 (FB), it is stated as under:

• “The settlers in the Lakshadweep Islands including Kalpeni migrated to the said Islands from the North Malabar area, as also from South Canara. Even though embraced Islam, they continued to follow the Marumakkathayam system of inheritance. Under the same, as we have already noted, the tarawad properties were impartible. The Mappilla Marumakkattayam Act (Act XVII of 1939) was enacted in the year 1939. Now, it applies to all Muslims following the Marumakkattayam Law who are either domiciled in the State of Kerala or have property situated within the State of Kerala. Section 13 provided an individual member of a Tarawad to claim his or her share of the properties of the Tarawad over which the Tarawad had power of disposal and separate from the Tarawad. Section 14 of the said Act reads as follows:
  • ‘Two or more members belonging to the same tavazhi, may claim to take their share of the properties of the tarwad over which the tarwad has power of disposal, separate from the tarwad, and enjoy the same jointly, with all the incidents of the tarwad property’.”

Tarwad and Tavazhi

In Eravipillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai, AIR 1955 TC 55, a Full Bench of the Travancore Cochin High Court held that property obtained by a Nair female towards her share under an outright partition in her tarwad would be her separate property but retained the character of a tarwad property and became the property of her tavazhi on the birth of a child to her. The birth of a child destroys her absolute powers of disposal in respect of such property.

Whether a subsequently born member in a unit acquired right by birth in that unit (and thereby, began a tavazhi) was came for consideration before the Five Judge Bench of the Kerala High Court in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82.

The majority took the same view taken by Eravipillai Parameswaran Pillai v. Mathevan Pillai Ramakrishna Pillai, AIR 1955 TC 55. The substance of the view of the Majority (PT Raman Nayar, TC Raghavan, Gopalan Nambiar,JJ) in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82, was as under-

• So long as the property belongs to a single-member unit, that member has an alienable and heritable interest therein, liable to be seized in execution because he or she constitutes the unit. But, the moment another member is born in that single member unit, the single member ceases to be the sole owner and the single member unit turns into a joint family.

But, the minority (Govindan Nair, J. Krishnamoorthy Iyer, J.), applying the converse implication of Sec. 39 Nair Act, 1100, took the view that if a woman got share on partition in a Marumakkathayam tarwad, her subsequent born child would not get an interest by birth. The findings of the Minority was to the following effect-

• If individual partition and allotment of property separately to each member in a tarwad was possible such partition should bring about a severance of the community of rights among the members of the tarwad with the result that the property allotted to the separate share of each member was neither tarwad property (nor tavazhi property, by the birth of a new member) in the hands of the sharer.
• Such separate property could not again be converted into tavazhi property by the birth of a child to a female member or even by adoption by the male member.
• The intention and purpose of the enactment in conferring that right was to make the share separately allotted to the member heritable and alienable in his hands.
• The decision in 1963 Ker LT 859 (AIR 1963 Ker 358) laid down the correct law – that, the share obtained by a Nair female in an outright partition in her tarwad continued to be her separate property notwithstanding the birth of a child to her after the date of the partition.

The majority view in the Five Judge Bench in Mary Cheriyan v. Bhargavi Pillai Bhasura Devi, AIR 1968 Ker 82, was followed in subsequent decisions including Remadevi v. A S R Gopalakrishnan,2008-2  KLT 757. It is held in Remadevi v. A S R Gopalakrishnan,2008-2  KLT 757 as under:

• “The property obtained by a Marumakkathayee female towards her share under an outright partition in the tharavad or thavazhi will be her absolute property just like that of a male.  So long as she remains single, she can alienate it just like a male member and no one could question it. But the property retains the character of tharavad or thavazhi property and becomes the property of the thavazhi on the birth of a child to her so as to destroy her absolute powers of disposal in respect of it when in the partition property was allotted to the mother and her then existing children, which is a natural tavazhy the allotment could only be taken as to that tavazhy.”

Partition by ‘per stirpes’ and ‘per capita’

Marumakathayam system, in its pristine form, stood for partition by per stripes (per group – thavazhi). This was, mainly, because, it was not open to overturn the minors, in the partition. Ormsby who was Chief Justice of Travancore, in his book on Marumakathayam Law, says at p. 2, para 4:

• “Where division takes place it will usually be according to the taivaries, or number of daughters of the original ancestress. Each taivari may similarly be subdivided, should the members consent thereto and so on, until individual proprietorship is arrived at. I am not aware that this rule has ever been questioned.” (Quoted in Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345.)

However, the courts differed, in case to case, as to the principles to be adopted in partition – whether ‘per stripes’ or ‘per capita’ (as pointed out in detail in Kunhipappada Beefathummabi v. Kunhipappada Kunhikoya, AIR 2006 Ker 345).

No Presumption As To Joint Family Property

Following Srinivas Krishnarao Kango v. Narayan Devli Kango, AIR 1954 SC 379, and Surendra Kumar v. Phoolchand,  AIR 1996 SC 1148, 1996 SCC (2) 491, the Supreme Court in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade,  AIR 2007 SC 218, (2007) 1 SCC 521, held that there was no presumption as to joint family property, and who alleges the existence of joint family property must prove it.

If Sufficient Joint Family Nucleus, the Burden Would Shift

Following Mst. Rukhmabai v. Lala Laxminarayan, AIR 1960 SC 335, and Achuthan Nair v. Chinnammu Amma, AIR 1966 SC 411, it was held in held Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade,  AIR 2007 SC 218, that if one  proves that there was sufficient joint family nucleus out of which the property under consideration could have been acquired, the burden would shift to the member of the family setting up the claim that it was his personal property to establish that the said property had been acquired without any assistance from the joint family property.

It is held in Achuthan Nair v. Chinnammu Amma, AIR 1966 SC 411, it is held as under:

• “Under Hindu law, when a property stands in the name of a member of a joint family, it is incumbent upon those asserting that it is a joint family property to establish it. When it is proved or admitted that a family possessed sufficient nucleus with the aid of which the member might have made the acquisition, the law raises a presumption that it is a joint family property and the onus is shifted to the individual member to establish that the property was acquired by him without the aid of the said nucleus. This is a well settled proposition of law.”

Unilateral Act of One Did Not Change the Character of Joint Family Property

Following Bhagwant P. Sulakhe v. Digambar Gopal Sulakhe, AIR 1986 SC 79; 1986-1 SCC 366, it was pointed out in Appasaheb Peerappa Chandgade v. Devendra Peerappa Chandgade,  AIR 2007 SC 218, that the character of the joint family property did not change with the severance of the status of the joint family and a joint family property continued to retain its joint family character so long as the joint family property was in existence and was not partitioned amongst the co-sharers; and that by a unilateral act it was not open to any member of the joint family to convert any joint family property into his personal property.

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Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Sec. 65B
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• 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
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• 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
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

Taken from the Blog: What is Section 27 Evidence Act – Recovery or Discovery?

Jojy George Koduvath.

Section 27 of the Evidence Act

Section 27 of the Evidence Act reads-

• “27. How much of information received from accused may be proved. Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.”

Sec. 27, Evidence Act substantially directs–

• The ‘information‘ (or disclosure) from the accused that led to “discovery” may “be proved“.

How the substantial part be introduced in court is stated in the first portion of Sec. 27. It says-

• What is to be proved by Sec. 27 is the fact deposed by the IO in court; and
• it must be as to the discovery on ‘information‘ (or disclosure) from the accused.

Pulukuri Kotayya v. King ­Emperor, AIR 1947 PC 67, the locus-classicus decision on this subject says what are the facts to be deposed by the IO and what are to be Discovered or Proved under Sec. 27.

• They are-
  • (a) Place (Place of concealment of object – a tangible matter) and
  • (b) Knowledge (knowledge of accused as to concealment– an intangible matter.)

“Discovery” under Sec. 27 is to be Proved (primarily) by the Deposition of IO

• ‘Information‘ (given by the accused) and the ‘fact‘ (of discovery) required under Sec. 27 are to be proved in a court (primarily) by the deposition of the IO, before the court–
  • (a) as to the information given by the accused to him (IO) and
  • (b) as to discovery of the (i) place, (ii) object and (iii) knowledge of the accused,
• supported by-
  • (1) disclosure statement of accused (written by IO) and
  • (2) proof as to two tangible things –
    • (i) place (by mahazar prepared in presence of witnesses) and
    • (ii) object (recovery of original object or other proper evidence).

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Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Sec. 65B
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• 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
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• 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
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

Jojy George Koduvath

Abstract

Suit on title for Recovery Against a Trespasser – # Plaintiff has to succeed on the strength of his title. # Suit on title – if plaintiff shows high degree of probability, onus shifts. # Suit on title – once the onus is on the defendant, it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title. # Suit on title – even if the defendant claims title as owner and fails to prove it, the plaintiff can win only if he establishes his title. # Suit on title – if the defendant establishes his right to continue possession (honouring title of the plaintiff) as lessee, licencee, mortgagee etc., the plaintiff will fail. Suit on possession under Sec. 6 of the Sp. Relf. Act – # If a person is dispossessed ‘otherwise than in due course of law’, he can recover the property under Sec. 6 of the Sp. Relf. Act, on the strength of his earlier possession. # Suit on possession – Though title is not perfected by adverse possession, one (plaintiff) in possession can eject a trespasser under Sec. 6 of the Sp. Relf. Act.

Introduction

• Plaintiff has to win the title-suit (E.g. suit against a trespasser) on the strength of his title; and not on the weakness of the defence.
• Landlord who is also the owner can recover his leased property on the strength of his title (if the tenant ‘forfeits’ the tenancy by claiming ownership in him or in a case where the lease is illegal); and evict the tenant on legal termination of tenancy. 
• Even if the owner/landlord failed to proves lease, he can recover the property on the strength of his title if the tenant ‘forfeits’ the tenancy by claiming ownership in him.
• Landlord who is not the owner can evict the tenant on legal termination of tenancy; and on ‘forfeiture’ of the tenancy by the tenant by claiming ownership in him or in a case where the lease is illegal. In all these cases, the landlord should have proved tenancy.
• The right of the owner/landlord to recover the property on the strength of his title is based on the principle that a tenant cannot deny the title of the landlord/owner (Sec. 116 of the Evidence Act).
• Tenant can resist title-suit of owner or eviction-suit (after issuing Sec. 106 TP Act notice) by landlord, raising plea of ‘adverse possession’.  The tenant cannot plead both title on adverse possession and right as lessee.  It is on the principle – one cannot approbate and reprobate.
• Once the title as owner or right as landlord is proved by the plaintiff, the tenant can succeed only if he wins on “adverse possession”

Plaintiff to Win Title-Suit, on the Strength of his Title

In City Municipal Council Bhalki v. Gurappa, 2016-2  SCC 200, it is held as under:

• “31. It is a settled position of law that in a suit for declaration of title and possession, the onus is upon the plaintiff to prove his title. Further, not only is the onus on the plaintiff, he must prove his title independently, and a decree in his favour cannot be awarded for the only reason that the defendant has not been able to prove his title, as held by this Court in Brahma Nand Puri v. Neki Puri, AIR 1965 SC 1506,  as under: (AIR p. 1508, para 8)
• “8. … The plaintiff’s suit being one for ejectment he has to succeed or fail on the title that he establishes and if he cannot succeed on the strength of his title his suit must fail notwithstanding that the defendant in possession has no title to the property….”

In Vijay Pullarwar v. Shri Hanuman Deostan, (2019) 11 SCC 718, the suit for possession instituted by the plaintiffs trust on the basis of title, was found to be devoid of merits; for, there was no reference in the registration application of the public trust under the BPT Act, 1950 or in schedule I, where to record the properties of the public trust, that the suit property belonged to the trust. Our Apex Court held as under:

• “Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See: Brahma Nand Puri v. Naki Puri, (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, (2004) 5 SCC 272).”

If Admission or Materials – Idle To Contend, No Sufficient Evidence

In National Insurance Co. Ltd. v. Rattani, 2009-2 SCC 75, it has been held:

• “The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought up on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden lies could still be liable to produce sufficient evidence.”

Proof of Title – Preponderance of Probability Sufficient

In Kshetrimayum Ibohal Singh v. Ibemhal Devi, 2012-112 AIC 769; 2011-3 GauLD 803; 2011-6 GauLJ 629; 2012-6 GauLR 680; 2011 5 GauLT 680; 2012-4 NEJ 387, it is held as under: 525;

• “In a civil suit, the plaintiff cannot be expected to prove his title beyond any rea­sonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged.” (relied on: R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752.)

In Kshetrimayum Ibohal Singh, the Gauhati High Court relied on J. Yashoda v. K. Shobha Rani: (2007) 6 SCC 730, which held that the rule which is most universal, namely, that best evidence the nature of the case will admit shall be produced only means that, so long as the higher or su­perior evidence is within the possession of a person or may be reached by a person, that person shall give no inferior proof in relation toil.

R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami: Onus Shifts

In a suit for recovery on title, where both plaintiff and defendant claim title, if plaintiff has been able to create a high degree of probability, he will Win, if the defendant fails to discharge his onus. In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

• “29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136, there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.”

Quoted in:

• Anil. Rishi v. Gurbaksh Singh, (2006) 5 SCC 558;
• Sebastiao Luis Fernandes v K. V. P. Shastri, 2013-15 SCC 161;
• City Municipal. Council, Bhalki v. Gurappa, (2016) 2 SCC 200)

Referred to in:

• Mahakali Sujatha v. Branch Manager, Future Generali India Life Insurance Company Limited, AIR 2024 SC 2019; 22024-8 SCC 712
• Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355
• Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689

In Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355,it is held bu our Apex Court as under:

• “31. The burden of proof
  • [See Paragraph 19 in Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558 where the expression ‘burden of proof’ is used in three ways, namely, (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter-evidence; and (iii) an indiscriminate use in which it may mean either, or both of the others.]
• to establish a title in the present case lies upon the plaintiff as this burden lies on the party who asserts the existence of a particular state of things on the basis of which she claims relief [See Addagada Raghavamma and Another v. Addagada Chenchamma and Another, AIR 1964 SC 136.] This is mandated in terms of Sec. 101
  • [Sec. 101: Burden of Proof.- Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.]
• of the Evidence Act, which states that burden on proving the fact rests with party who substantially asserts in the affirmative and not on the party which is denying it. This rule may not be universal and has exceptions,[See Ss. 103, 104 and 105 of the Evidence Act.] but in the factual background of the present case, the general principle is applicable. In terms of Sec. 102
  • [Sec. 102: On whom the burden of proof lies.- The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.]
• of the Evidence Act, if both parties fail to adduce evidence, the suit must fail.[See Anil Rishi v. Gurbaksh Singh, (2006) 5 SCC 558.] Onus of proof, no doubt shifts and the shifting is a continuous process in the evaluation of evidence, but this happens when in a suit for title and possession, the plaintiff has been able to create a high degree of probability to shift the onus on the defendant. In the absence of such evidence, the burden of proof lies on the plaintiff and can be discharged only when he is able to prove title.[See R.V.E. Venkatachala Gounder  v. Arulmigu Viswesaraswami V.P. Temple and Another, (2003) 8 SCC 752.] The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
• Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

When evidence has been led by both sides, “onus” is out of place

• “Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]”

If Title of Plaintiff is Nullity, Defendant Need Not file a Substantive Suit;

• Plaintiff in ejection suit must succeed or fail on his title
• If Plaintiff Shows Apparent Title, Defendant to Plead Defects Thereon
• Once the plaintiff shows high degree of probability shift the onus

In Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, AIR 2004 SC 2546, the defendants contended that the plaintiff’s title, on the basis of the alleged auction sale ‘was a nullity, as it was ultra vires the legal provisions and on the ground of lack of jurisdiction, non-service of demand notice on all the heirs and co-owners’. It was contended from the part of the (original) plaintiff that the sale proceedings could be challenged only by way of a substantive suit, and that the High Court was right in characterising the challenge to the suit by the defendant as a ‘backdoor method’. The Apex Court held as under:

• “If the title claimed by the plaintiff was a nullity and wholly void, there was no need for any of the defendants including Bajranglal to challenge it by way of a substantive suit. They could always set up nullity of title as a defence in any proceeding taken against them based upon such title. If, in fact, the sale was a nullity, it was non est in the eye of law and all that defendant had to do was point this out. (See in this connection: Ajudh Raz and Ors. v. Moti S/o Mussadi, [1991] 3 SCC 136 and the opinion of the Full Bench of the Bombay High Court in Abdulla Mian v. Government of Bombay, (1942) 44 Bom LR 577.
• In Vidyadhar v. Manikrao and Anr., [1999] 3 SCC 573, the plaintiff had filed a suit on the basis of a sale deed executed by D-2 in his favour and sought the relief of possession of the property from defendant no. 1 who was an absolute stranger to the sale deed. The question which arose was whether defendant No. l, who was in possession, could justify his possession by urging the nullity of sale transaction between the plaintiff and defendant No. 2. In these circumstances, this Court held (vide para 21):
  • ‘The above decisions appear to be based on the principle that a person in his capacity as a defendant can raise any legitimate plea available to him under law to defeat the suit of the plaintiff. This would also include the plea that the sale deed by which the title to the property was intended to be conveyed to the plaintiff was void or fictitious or, for that matter, collusive and not intended to be acted upon. Thus, the whole question would depend upon the pleadings of the parties, the nature of the suit, the nature of the deed, the evidence led by the parties in the suit and other attending circumstances.’
• Here, the plaintiffs suit is for ejection of the defendant and for possession of the suit property. She must succeed or fail on the title that she establishes. If she cannot succeed in proving her title, the suit must fail notwithstanding that the defendant in possession may or may not have title to the property. (See in this connection: Brahma Nand Puri v. Neki Puri, [1965] 2 SCR 233 at p. 237).
• Appellant Bajranglal had sufficiently pleaded in his written statement the defects in the title of the plaintiff and it was, therefore, open for the learned Single Judge to go into this question and decide if the plaintiff had good title or not. …… In our view, the finding of the learned Single Judge that the plaintiff’s title was invalid and non est for contravention of the provisions of Section 206 of the BMC Act and the Regulations made thereunder, is fully justified and brooked no interference in appeal. ……. In our view, the principle in Vidyadhar’s case clearly applies to the case on hand.”

Section 116 of the Evidence Act

Section 116 of the Indian Evidence Act reads as under:

• “Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be heard to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.”

In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335: 1976 4 SCC 838, it is held as under:

• “The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant the question of title to the leased property is irrelevant”.

The principle behind the proposition, which asserts that the owner/landlord has the right to recover the property based on his title if the defendant-tenant raises claim of title, is founded upon the notion that a tenant is precluded from disputing the title of the landlord or owner, as laid down in Section 116 of the Evidence Act.

Bar u/S. 116: Not Extend To Challenge – Landlord Lost Tile After ‘Commencement Of The Tenancy’  

D. Satyanarayana v. P. Jagadish (A.P. Sen, B.C. Ray, JJ.), AIR 1987 SC2192, 1987 (4) SCC 424, is a leading decision on this matter.

• (Note: ‘D. Satyanarayana v. P. Jagadish’ is said to be an exception to the general rule. See: Masonic Club v. Jamna Lodge, 2014-207 DLT 62; 2014-140 DRJ 396; L. Rs.  of Arjun Lal v. L. Rs.  of Kundan Lal, 2013 AIR(CC) 2193; 201260 RCR(Civ) 769 (Raj); M. L.  Dawar v. M. L.  Seth, 2011-125 DRJ 564 (Del); Manoharlal v. Baijnath Jalan, 2005-4 Jhk CR 58; 2005-3 Jhk LJR 474.)

The following are the facts (of D. Satyanarayana v. P. Jagadish) in a nutshell.

The owner had leased the demised premises to a tenant. The (original) tenant sub-leased it to the respondent. The head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee.  The sub-tenant atoned in favour of the original lessor and started paying monthly rent directly to the superior landlord (owner).

In this decision, it is held that the estoppel or bar under Sec. 116 of the Evidence Act operates only –

• (i)  during the continuance of the tenancy,
• (ii) to the challenge of the title of the landlord at the beginning of the tenancy.

In this decision, it is held as under:

• “3. …Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words ‘during the continuance of the tenancy’ have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy…”
• “4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord…”

It was further held that since (or, after) the date of tenancy, the title of landlord came to an end; for, the head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee, and the sub-tenant atoned in favour of the original lessor. It was pointed out –

• A tenant is not estopped from contending that the title of the lessor has “since come to an end” (or the landlord lost title after the commencement of the tenancy),

The Apex Court (in D. Satyanarayana v. P. Jagadish) quoted from Mangat Ram & Anr. v. Sardar Meharban Singh, AIR 1987 SC 1656,  (1987) 4 SCC 319, (A.P. Sen, V. Balakrishnan Eradi, JJ.) saying:

• “Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh, [1987] 1 Scale 964, to which one of us was a party, observed:
• “The estoppel contemplated by s. 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.”

• See also: Fida Hussain v. Fazal Hussain & Ors., AIR (1963) MP 232,
• K.S.M. Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad. 402, 
• S.A.A. Annamalai Chettiar v. Molaiyan & Ors., AIR (1970) Mad. 396 and
• Chidambara Vinayagar Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624.”

D. Satyanarayanana v. P. Jagdish Distinguished

In E. Parashuraman (v.  V. Doraiswamy,  AIR 2006 SC 376; 2006-1 SCC 658, it is stated as under:

• “18. We have carefully examined the decisions of this Court in D. Satyanarayanana vs. P. Jagdish (supra) and A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder : (2002) 5 SCC 337 and we are of the view that the principles laid down therein are not applicable to the facts of this case. The exception to the rule of estoppel embodied under Section 116 of the Evidence Act arises if it is shown that since the date of the tenancy of title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. Such a situation has not arisen in the instant case. In this case there is no finding that the title of the landlord has come to an end. The Corporation has not established its title in any proceeding in accordance with law. In these circumstances the exception to the rule of estoppel embodied in Section 116 of the Evidence Act cannot be pleaded by the appellants.”

Sec. 116 ceases to have applicability once the tenant has been evicted

In Vashu Deo v. Balkishan, 2002-1 SCR 171, it is held that Sec. 116 ceases to have applicability once the tenant has been evicted. (It stands incongruent to the view in D. Satyanarayana v. P. Jagadish where it was held – estoppel operates even after the termination.) It is said as under:

• “6. …Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features :
  • .(i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;
  • (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and
  • (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
• The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case… the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by a paramount titleholder…”

Forfeiture of tenancy under Clause (g) of Section 111 of the TP Act

In Sheela v. Firm Prahlad Rai Prem Prakash (Ruma Pal, R.C. Lahoti, JJ.), AIR 2002 SC 1264; 2002-3 SCC 375 it is held as under:

• “In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
• “Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact – situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself.
• “In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
• 13. The law as to tenancy being determined by forfeiture by denial of the lessor s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with Justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See – Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr. – AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.
• “14. Denial of landlord’s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive Evans & Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or deny the landlord s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord’s title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it, and so any breach of this condition must be clear and unambiguous. Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with “Acts which prejudice lessor s title” state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.”

Recovery on “GENERAL TITLE” and “SUPERIOR TITLE“

The legal proposition on “General Title” is seen adhered to in Mt.  Sewti v.Rattan, AIR 1951  HP 54. It is observed as under:

• “It has therefore been held that where a suit for recovery of possession of property based on a lease fails, a subsequent suit to recover the same property on the strength of general title is not barred by res judicata: Zamorin v. Narayanan, 22 Mad. 323 and Kuttt Ali v. Cindan, 23 Mad. 629.”

The legal proposition on “Superior Title” is seen adhered to in Shankarlal v. Gangabisan, AIR 1972  Bom 326, and it is observed as under:

• “The plaintiff could have sued upon this document and the claim in that case would have been under the contract. But the plaintiff in the subsequent suit did not sue upon the contract but he sued upon his general title as the owner of the property. He alleged that the defendants were trespassers and that the plaintiff was entitled to get possession and further damages on the basis of his title as stated in the passage we have quoted above. Therefore, the plaintiff was claiming in the second suit on the basis not of a title arising under the contract but dehors the contract. In other words, the plaintiff was seeking to enforce in the subsequent suit his general title as owner and not his title to get back the property under the contract of lease. It is clear therefore that this title was superior to the contract between the parties and it was by virtue of this superior title that the plaintiff claimed in the second suit. The respective causes of action in the earlier suit and in the subsequent suit were therefore entirely distinct and separate.”

Landlord can win the TITLE SUIT if he Proves his GENERAL TITLE

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the plaintiff-landlord sued defendant for eviction. The Defendant claimed title over the property. It is held–

• “The landlord in a given case^#* although may not be able to prove the relationship of landlord and tenant, but in the event he proves his GENERAL TITLE, may obtain a decree on the basis thereof.”
  • ^#*Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief in ‘civil suit’.
• This decision is referred to in TribhuvanShankar v. Amrutlal (S.B. Sinha and Deepak Misra, JJ.), 2014-2 SCC 788.

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the question was formulated by the Court as under:

• “Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.”

Following were the facts:

• The defendant-tenant entered the suit shop in 1970.
• Plaintiffs purchased the suit premises in 1980.
• The plaintiffs served a notice on the defendant under Sec. 106, TP Act.
• Plaintiffs filed Suit for eviction claiming to be the owners and landlords.
• Defendant denied that he had ever been a tenant.
• He claimed independent title. He claimed to have an agreement for sale with the owner.

The trial judge dismissed the suit on the following findings, in a nutshell –

• .i. The plaintiffs proved to be the owner.
• ii. The defendant failed to prove his independent title.
• iii. The plaintiffs failed to prove the relationship of landlord and tenant.  
• iv. The plaintiffs having failed to prove the tenancy, not entitled to a decree.

Appellate Court, relying on AIR 1984 ROC 78 (All.), page 35, and AIR 1984 All. 66  allowed the appeal and decreed the suit.

The High Court dismissed the Second Appeal.

The Apex Court in Appeal, on special leave, (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693) proceeded on the proposition on GENERAL TITLE.

The Plaintiffs- respondents contended as under:

• .i. Even in a suit for eviction, the plaintiffs would be entitled to obtain a decree for possession relying on or on the basis of his title.
• ii. In a suit for eviction, it is for the defendant to show that he has a right to remain on the tenanted premises either as a permanent tenant or otherwise.

The right of the plaintiff (landlord) to recover, on the basis of “GENERAL TITLE” is asserted by the Supreme Court (Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693) referring following decisions.

1. Radha Devi v. Ajay Kumar Sinha, 1998 (2) BLJR 1061.

The Patna High Court accepted that a landlord is entitled to obtain a decree of eviction on the basis of his GENERAL TITLE, though he could not prove the relationship of landlord and tenant (when the tenant raised false claim of title).

2. Champa Lal Sharma v. Smt. Sunita Maitra, S.B. Sinha, J., (1990) 1 BLJR 268. It was held:

• “It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore*^* the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his general title. (Quoted in: Radha Devi v. Ajay Kumar Sinha, 1998-2 BLJR 1061; Biswanath Agarwala v. Sabitri Bera 2009-15 SCC 693)
  • *^* Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief.
• “It is also well settled that one such relationship is admitted or established, tenant would be estopped and precluded from challenging the title of the landlord and if he does so, under the general rule, make himself liable for eviction on that ground.
• It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore the plaintiff on payment of ad valorem Court fee may obtain a decree for eviction on the basis of his GENERAL TITLE.”

3. Hajee Golam Hossain Ostagar v. Sheik Abu Bakkar, AIR 1936 Cal. 351.

• It was held – in a suit for ejectment, if the defendant claims the right to remain on a land permanently, he was ‘bound to show‘ the right ‘wherefore the onus would be on him‘.

The Apex Court remanded the case with the following direction:

• “The plaintiffs may file an application for grant of leave to amend his plaint so as to enable him to pray for a decree for eviction of the defendant on the ground that he is a trespasser.”

In Abdul Waheed Khan v. Bhawani, AIR 1966 SC  1718, it was pointed out that unless jurisdiction was excluded the  civil court has jurisdiction entertain a suit based title.

Payment of ad valorem court fee needed to obtain a decree on general title

In Anil Bansal v. Dinesh Kohli, ILR 2017-4  HP 524, it is held as under: 

• “22. It, therefore, logically follows that a finding of existence of relationship of landlord and tenant is a sine qua non for passing a decree for eviction against a tenant except in a case, as mentioned hereinbefore, the plaintiff on payment of ad valorem court fee may obtain a decree for eviction on the basis of his general title.”

Burden of Proof General Principles and Nuances of Sections 101 to 106

Our Apex Court in Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022-11 JT 214; 2022-16 Scale 689, authoritatively lays down the General principles as to Burden of Proof. It reads:

• 12.1. The legal scheme governing various aspects of ‘burden of proof’ in the Indian context, is contained in Sections 101 to 106 of the Indian Evidence Act.
• 12.2. As per Section 101 of the Indian Evidence Act, when a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person. This section is based on the rule, ei incumbit probatio qui dicit, non qui negat, which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not upon the party who denies it, because a negative is usually incapable of proof. The burden of proving a fact always lies upon the person who asserts and until such burden is discharged, the other party is not required to be called upon to prove his case. The court has to examine as to whether the person upon whom the burden lies has been able to discharge his burden. However, the above rule is subject to the general principle that things admitted need not be proved.
• 12.3. The question as to whether burden of proof has been discharged by a party to the lis or not, would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a Court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lies would still be liable to produce direct evidence, vide National Insurance Co. Ltd. vs. Rattani (2009) 2 SCC 75: AIR 2009 SC 1499.
• 12.4. Burden to prove documents lie on plaintiff alone as onus is always on the person asserting a proposition or fact which is not self­evident. This position is summarised in the observation to the effect that, an assertion that a man who is alive was born requires no proof; the onus, is not on the person making the assertion, because it is self­evident that he had been born. But to assert that he had been born on a certain date, if the date is material, requires proof; the onus is on the person making the assertion, vide Robins vs. National Trust & Co. Ltd. 1927 AC 515: 101 IC 903.
• 12.5. It is also to be noted at this juncture that there is an essential distinction between burden of proof and onus of proof. Burden of proof lies upon a person who has to prove the fact and it never shifts, onus of proof on the other hand, shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. For instance, In a suit for possession based on title, once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant, it is for the defendant to discharge his onus and in the absence thereof, the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title, vide RVE Venkatachala Gounder vs. Arulmigu Viswesaraswami and VP Temple AIR 2003 SC 4548: (2003) 8 SCC 752.
• 12.6. In terms of section 102 of the Evidence Act, the initial burden to prove its claim is always on the plaintiff and if he discharges that burden and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff of the same.
• 12.7. Where, however, evidence has been led by the contesting parties, abstract considerations of onus are out of place and truth or otherwise must always be adjudged on the evidence led by the parties [Kalwa Devadattam vs. Union, AIR 1964 SC 880]
• 12.8. As per Section 103, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. This section amplifies the general rule in section 101 that the burden of proof lies on the person who asserts the affirmative of the issue. It lays down that if a person wishes the court to believe in the existence of a particular fact, the onus of proving that fact, is on him, unless the burden of proving it is cast by any law on any particular person.
• 12.9. Section 105 is an application of the rule in section 103. When parties to a dispute adduce evidence to substantiate their claim, onus becomes academic and divided, entailing each party to prove their respective plea.
• 12.10. Section 106 is an exception to the general rule laid down in Section 101, that the burden of proving a fact rest on the party who substantially asserts the affirmative of the issue. Section 106 is not intended to relieve any person of that duty or burden but states that when a fact to be proved is peculiarly within the knowledge of a party, it is for him to prove it. It applies to cases where the fact is especially within a party’s knowledge and to none else. The expression ‘especially’ used in Section 106 means facts that are eminently or exceptionally within one’s knowledge. This means a party having personal knowledge of certain facts has a duty to appear as a witness and if he does not go to the witness box, there is a strong presumption against him. In an Election Petition, the initial burden to prove determination of age of returned candidate lies on the petitioner, however, burden lies on the respondent to prove facts within his special knowledge. (Sushil Kumar vs. Rakesh Kumar [ (2003) 8 SCC 673) ]. 
• 12.11. The provisions of Section 106 are unambiguous and categorical in laying down that when any fact is especially within the knowledge of a person, the burden of proving that fact is upon him. If he does so, he must be held to have discharged his burden but if he fails to offer an explanation on the basis of facts within his special knowledge, he fails to discharge the burden cast upon him by Section 106. [Source: Sarkar on Law of Evidence, 20th Edition, Volume 2.]
• 12.12. In Sushil Kumar vs. Rakesh Kumar (supra), the controversy was with regard to the improper acceptance of the nomination of the sole respondent therein on the premise that he was under qualified to contest the Bihar Legislative Assemble election from 181, Parbatta Constituency. In the said case, inter alia, the horoscope of the respondent therein and admission register of New St. Xaviers School, Boring Road, Patna and transfer certificate issued by Swami Vivekananda Vidyalaya, Mithapur, Patna, were produced as documents to prove that the successful candidate therein was not eligible to contest the said Assembly election. In the said case, Section 35 of the Indian Evidence Act was referred to and it was observed that the register maintained in terms of a statute or by a statutory authority in regular course of business would be a relevant fact and if such vital evidence had been produced, it would clinch the issue. It was observed that there is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person and that the admission register or a transfer certificate issued by a primary school do not satisfy the requirements of Section 35 of the Evidence Act.

The Supreme Court in the case of Gian Chand and Bros v. Rattan Lal, (2013) 2 SCC 606, has held as under:

• 18. It is well-settled principle of law that a person who asserts a particular fact is required to affirmatively establish it. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558] (SCC p. 561, para 9), it has been held that the burden of proving the facts rests on the party who substantially asserts the affirmative issues and not the party who denies it and the said principle may not be universal in its application and there may be an exception thereto. The purpose of referring to the same is that if the plaintiff asserts that the defendant had acknowledged the signature, it is obligatory on his part to substantiate the same. But the question would be what would be the consequence in a situation where the signatures are proven and there is an evasive reply in the written statement and what should be construed as substantiating the assertion made by the plaintiff.
• 19. In Krishna Mohan Kul v. Pratima Maity [(2004) 9 SCC 468] it has been ruled thus: (SCC p. 474, para 12) “12. … When fraud, misrepresentation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation.”
• 20. In Shashi Kumar Banerjee v. Subodh Kumar Banerjee [AIR 1964 SC 529] a Constitution Bench of this Court, while dealing with a mode of proof of a will under the Succession Act, 1925 observed that where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same.
• 21. In A. Raghavamma v. A. Chenchamma [AIR 1964 SC 136], while making a distinction between burden of proof and onus of proof, a three-Judge Bench opined thus: (AIR p. 143, para 12) “12. … There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”

If Sale on which Title rests is Vitiated, Title will be Nullity

It was held by the Bombay High Court in Sarang Avinash Kamtekar v. Alpha Organic (2005) relying on

• (1) Himadri Coke and Petro Ltd. v. Soneko Developers (P) Ltd., (2005) 12 SCC 364;
• (2) Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia, 2004(3) SCR 373; and
• (3) A.V. Papayya Sastry v. Government of A.P., (2007) 4 SCC 221.

that a sale on which title of a party to the suit rests is vitiated, title will be bad in law.

Principle Not Applicable with its Full Vigor in a suit filed by the State

From R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, it is clear that, though in a suit for recovery on title, a plaintiff cannot argue that the defendant failed to prove his title.

But, it may not be applicable with its full vigor in a suit filed by the State, for it is the paramount title holder of the property by virtue of the Constitution.

Read Blog: Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.

Law Recognises Efficacy of Possession in Section 6 of the Specific Relief Act

Section 6 of the Specific Relief Act allows one to file a suit for recovery of property, on the strength of his prior possession, if he had lost his possession within 6 months of the suit. In such a case, he need not prove his title; and he can succeed on establishing that he has been dispossessed otherwise than in accordance with law within six months.

Sec. 6 of the Specific Relief Act, 1963 reads as under:

• 6. Suit by person dispossessed of immovable property. (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
• (2) No suit under this section shall be brought
  • (a) after the expiry of six months from the date of dispossession; or
  • (b) against the Government.
• (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
• (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

If Title not Perfected by Adver. Posn, Can one Eject a Trespasser After 6 Months

High Courts differ, as pointed out in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179.

Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner. See: Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179; Kanti Lal v. Smt. Shanti Devi, AIR 1997 Raj 230.

Read Blog: POSSESSION is a Substantive Right in Indian Law

Courts Protect Settled Possession

• Possession by itself is a substantive right recognised by law.
  • Nair Service Society Ltd. v. K.C Alexander, AIR 1968 SC 1165
  • Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
  • Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
  • Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 
• It is trite law that courts protect settled possession.
  • Poona Ram v. Moti Ram, AIR 2019 SC 813
  • Aarti v. Aruna Gautham. 2015 -1 RCR (Civil) 160,
  • Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
  • Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131
  • Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188.
  • Puran Singh v. The State of Punjab, (1975) 4 SCC 518
  • Munshi Ram v. Delhi Administration, (1968) 2 SCR 455.

Read Blog: Kesar Bai v. Genda Lal – Does Something Remain Untold?

Even Rightful Owner to Take Recourse to law; He cannot take the law in his own hands

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court (R.C. Lahoti, B.N. Srikrishna, G.P. Mathur, JJ.) observed that the law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner. It is held as under:­ 

• “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser.
• A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force.
• If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. 
• The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful ownerfrom using force or taking law in his own hands, and also by restoring him in possession even from the rightful owner (of course subject to the law of limitation), if the latter has dispossessed the prior possessor by use of force.
• In the absence of proof of better title, possession or prior peaceful settled possession is itself evidence of title. Law presumes the possession to go with the title unless rebutted. The owner of any property may prevent even by using reasonable force a trespasser from an attempted trespass, when it is in the process of being committed, or is of a flimsy character, or recurring, intermittent, stray or casual in nature, or has just been committed, while the rightful owner did not have enough time to have recourse to law. In the last of the cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.” (quoted in: Subramanya Swamy Temple, Ratnagiri v. V. Kanna Gounder, 2009-3 SCC 306; Poona Ram v. Moti Ram, AIR 2019 SC 813)

What is the settled possession or effective possession of a person without title which would entitle him to protect his possession even as against the true owner was made clear in Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769. It reads as under:

• “9. …The “settled possession” must be (i) effective, (ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. The phrase “settled possession” does not carry any special charm or magic in it; nor is it a ritualistic formula which can be confined in a straitjacket. An occupation of the property by a person as an agent or a servant acting at the instance of the owner will not amount to actual physical possession.” (quoted in Samarpan Varishtha Jan Parisar vs Rajendra Prasad Agarwal, AIR 2022 SC 2209)

Even the Rightful Owner cannot Eject a Trespasser with Force

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the Kerala High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property.  It was held as under:

• “The ultimate position, therefore, reduces itself to this:
• Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
• Yes. In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in: Aiysumma v. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

No Injunction in Favour of a Trespasser, Against the ‘True Owner’

It is observed by our Apex Court, in Prataprai N. Kothari v. John Braganza, AIR 1999 SC 1666, as under:

• “It is quite obvious that the learned single Judge had not taken note of the principle of possessory title or the principle of law that a person who has been in long continuous possession can protect the same by seeking an injunction against any person in the world other than the true owner. It is also well settled that even the owner of the property can get back his possession only by resorting to due process of law.

Divergent Views are set out in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801 also. They are the following:

• first, a person in settled possession cannot be disposed by the owner except by recourse of law
• second, a trespasser in possession cannotnot seek injunction against the true owner.

In this case, a forceful postulation is posed-

• A trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963, (even) against the true owner. If so, can’t the trespasser seek injunction as to possession, against the true owner?

In Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801, the appellants were the plaintiffs whose suit was rejected in terms of Order VII, Rule 11 of the Code of Civil Procedure. It is held in this decision as under:

• “24. There are two different sets of principles which have to be borne in mind regarding course to be adopted in case of forcible dispossession. Taking up the first aspect, it is true that where a person is in settled possession of property, even on the assumption that he has no right to remain in property, he cannot be disposed by the owner except by recourse of law. This principle is laid down in Section 6 of the Specific Relief Act, 1963. That Section says that if any person is dispossession without his consent from immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit. That a person without title but in “settled” possession – as against mere fugitive possession – can get back possession if forcibly dispossessed or rather, if dispossessed otherwise than by due process of law, has been laid down in several cases. It was so held by this Court in
  • Yashwant Singh v. Jagdish Singh, AIR 1968 SC 620,
  • Krishna Ram Mohate v. Mrs. Shobha Venkata Rao, (1989) 4 SCC 131 at p. 136;
  • Ram Rattan v. State of UP, (1977) 1 SCC 188, and
  • State of UP v. Maharaja Dharmender Prasad Singh, (1989) 2 SCC 505.
• The leading decision quoted in these rulings is the decision of the Bombay High Court in
  • K. K. Verma vs. Union of India, AIR 1954 Bom 358.
• 25. Now the other aspect of the matter needs to be noted. Assuming a trespasser ousted can seek restoration of possession under Section 6 of the Specific Relief Act, 1963 can the trespasser seek injunction against the true owner?
• This question does not entirely depend upon Section 6 of the Specific Relief Act, but mainly depends upon certain general principles applicable to the law of injunctions and as to the scope of the exercise of discretion while granting injunction.
• In Mahadeo Savlaram Sheike vs. Pune Municipal Corporation, (1995) 3 SCC 33, it was held, after referring to Woodrofe on “Law relating to injunction: L. C. Goyal Law of injunctions:
  • David Bean Injunction Jayce on Injunctions and other leading Articles on the subject that the appellant who was a trespasser in possession could not seek injunction against the true owner.
• In that context this Court quoted Shiv Kumar Chadha vs. MCD, (1993) 3 SCC 161, wherein it was observed that injunction is discretionary and that:
  • “Judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court.”
• 26. Reference was also made to Dalpat Kumar vs. Prahlad Singh (1992) 1 SCC 719 in regard to the meaning of the words prima facie case and balance of convenience and observed in Mahadeos case (supra) that:
  • “It is settled law that no injunction could be granted against the owner at the instance of a person in unlawful possession.”
• 27. The question of forcible possession as claimed is also a matter which can be pressed into service by the parties before the trial Court and if raised the Court shall deal with it considering its relevance to the suit and accept it or otherwise reject the plea in accordance with law. We do not think it necessary to express any opinion in that regard.
• 28. …. Looking into the nature of dispute it would be appropriate if the trial Court makes an effort to complete the trial within six months from the date of the judgment. The parties are directed to co-operate for disposal of the suit early within the stipulated time. The appeal is allowed to the extent indicated without any order as to costs.”

Burden on plaintiff to Prove Title; Weakness of defence would not enable a decree

In Ram Chandra Sakharam Mahajan Vs. Damodar Trimbak, AIR 2007 SC 2577, it is observed –

• In a recovery on title suit, the burden is on the plaintiff to establish title.
• Court is also entitled to consider the rival title set up by the defendants.
• Weakness of defence to establish title, would not enable plaintiff to a decree.

The Apex Court held:

• “The suit is for recovery of possession on the strength of title. Obviously, the burden is on the plaintiff to establish that title. No doubt in appreciating the case of title set up by the plaintiff, the Court is also entitled to consider the rival title set up by the defendants. But the weakness of the defence or the failure of the defendants to establish the title set up by them, would not enable the plaintiff to a decree. There cannot be any demur to these propositions.”
• “14. We find that the trial Court and the appellate Court were not justified in refusing the amendment of the plaint sought for by the plaintiff. No doubt there had been delay in seeking amendment but that delay could have been compensated by awarding costs to the contesting defendants 1 to 9. Therefore, we are satisfied that the amendment sought for by the plaintiff ought to have been allowed. We are inclined to allow the amendment sought for, since it would enable the Court to pin-pointedly consider the real dispute between the parties and would enable it to render a decision more satisfactorily to its conscience. We, therefore, allow the amendment as sought for by the plaintiff at a belated stage. The amendment will be carried out by the plaintiff in the trial Court within three months from this date as per the practice followed in the trial Court. Obviously defendants 1 to 9 would have an opportunity to file an additional written statement to the amended plaint. They will be entitled to file an additional written statement within a period of four months from the date of this judgment.”

See also:

• Union of India v. Vasavi Cooperative Housing Society Ltd, (2014) 2 SCC 269,
• Smriti Debbarma v. Prabha Ranjan Debbarma, AIR 2023 SC 379; 2023-1 SCR 355

Possession is Good Against All But the True Owner

The principle that ‘possession is good against all but the true owner’ is stated in Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, referring Judicial Committee decision in Parry v. Clissold, (1907) AC 73, as under:

• “17. In our judgment this involves an incorrect approach to our problem. To express our meaning we may begin by reading 1907 AC 73, to discover if the principle that possession is good against all but the true owner has in any way been departed from. 1907 AC 73 reaffirmed the principle by stating quite clearly:
  • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”

Following decisions also say – no injunction can be passed, in favour of a trespasser, against the ‘true owner’ of a property:

• Lallu Yeshwant Singh v. Rao Jagdish Singh, AIR 1968 SC 620 (possession after the termination of the tenancy);
• M.C. Chockalingam v. Manickavasagam (1974) 1 SCC 48;
• Krishan Ram Mahale v. Mrs. Shoba Venkat Rao, (1989) 4 SCC 131;
• Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547;
• Nagar Palika, Jind v. Jagat Singh, Advocate (1995) 3 SCC 426;
• Tamil Nadu Housing Board v. A. Viswam, 1996 (8) SCC 259;
• Ramesh Chand Ardawariya v. Anil Panjwani AIR 2003 SC 2508;
• Gram Panchayat, Mundliyan, Tehsil Tohana v. Bawria, 1996(3) RCR (Civil) 349;
• Gurcharan Singh v. District-Chief Agricultural Officer, Jalandhar, 1997(1) RCR (Civil) 1;
• Sukhwant Singh vs Divisional Forest Officer; 2009(3) Law Herald (P&H) 2286, 2010-2 RCR(Civil) 394;
• Mohini v. Thimmappa, 2015-4 Ker LT 759;
• Lions Club of Thrikkakara v. Greater Cochin Development Authority, AIR 2017 Ker 77: 2017-2 Ker LT 158 (revocation of a licence).

• Read Blog: Declaration and Injunction

Document ex-facie reveals no title – specific declaration as to invalidity not necessary

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, held as under:

• “18. …. If a document seeking to convey immovable property ex-facie reveals that the conveyer does not have the title over the same, specific declaration that the document is invalid would not be necessary. The Court can examine the title in the event any party to the proceeding sets up this defence. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 (Exhibit A-20).”

By proving a deed, title of the executing person is not automatically confirmed

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:

• “18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. … But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”

End Notes

Superior Title Decided On Preponderance Of Probabilities

• In Sumitra Kunwar v. Uday Nath Choudhry, 13 Jun 2024, 2024 0 Supreme(Jhk) 356 held as under:
• “37. One of the impediment in civil adjudication is the manner in which the false statement on sworn affidavit in pleadings are made with impunity. In order to preserve the sanctity of the pleading, 2002 amendment was introduced requiring the person verifying the pleading to furnish an affidavit in support of his pleading. Despite the fact that a false affidavit can give rise to criminal prosecution, things do not appear to have improved much. Hon’ble Supreme Court in R. Karuppan, Advocate, Suo Motu Proceedings against In re, (2001) 5 SCC 289 stressed upon the requirement of maintaining the sanctity of affidavit filed by the parties and at the same time, filing of irresponsible statement without any regard to accuracy has to be discouraged. It was observed,
• “13. Courts are entrusted with the powers of dispensation and adjudication of justice of the rival claims of the parties besides determining the criminal liability of the offenders for offences committed against the society. The courts are further expected to do justice quickly and impartially not being biased by any extraneous considerations. Justice dispensation system would be wrecked if statutory restrictions are not imposed upon the litigants, who attempt to mislead the court by filing and relying upon false evidence particularly in cases, the adjudication of which is dependent upon the statement of facts. If the result of the proceedings are to be respected, these issues before the courts must be resolved to the extent possible in accordance with the truth. The purity of proceedings of the court cannot be permitted to be sullied by a party on frivolous, vexatious or insufficient grounds or relying upon false evidence inspired by extraneous considerations or revengeful desire to harass or spite his opponent. Sanctity of the affidavits has to be preserved and protected discouraging the filing of irresponsible statements, without any regard to accuracy.”
• 38. The above observation becomes relevant in this case because both the parties stake claim over the suit property on the basis of reclamation and of being in settled possession of the suit. In a civil adjudication superior title is to be decided on the basis of preponderance of probabilities. Burden of proof rests on the plaintiff in terms of Section 101 and 102 of the Evidence Act. However, when the plaintiff has discharged his initial onus to lead evidence to prove a particular fact then, onus shifts on the defendant to rebut the said evidential fact. It has been held in Anil Rishi Vs. Gurbuksh Singh (AIR 2006 SC 1971) that in terms of Section 102 of the Evidence Act initial onus is always with the plaintiffs and if he discharges his onus and makes out a case which entitles him to a relief, onus shifts to the defendant to prove those circumstance which would disentitle the plaintiff to the same. Illustration (b) to Section 101 states:-
• “A desires a court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies, to be true. A must prove the existence of those facts”.”

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Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• Recovery of Possession Based on Title and on Earlier Possession
• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 27, Evd. Act – Fact Discovered Embraces, Place from where the Object Produced and Knowledge of Accused
• Sec. 65B
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• 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
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• 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
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

Not to Admit Unstamped Documents Vs. Once Admitted, Cannot Question

Saji Koduvath, Advocate, Kottayam.

Introspection

The following forceful propositions stand paradoxical and incongruent.

• 1. Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Sec. 35 of the Indian Stamp Act not  to  admit a document that is not duly stamped even if no objection to mark it.
• 2. Under Sec. 36 of the Indian Stamp Ac, the court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection, or marked by mistake (overlooking the insufficiency of stamp).

Instruments Not Duly Stamped, Inadmissible

Sec. 35, Indian Stamp Act reads as under:

• “35. Instruments not duly stamped inadmissible in evidence, etc.–No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:
• Provided that—(a) any such instrument  shall, be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to make up such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;
• (b) where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;
• (c) where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and any one of the letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;
• (d)  nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
• (e) nothing herein contained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of  the Government or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.

Unstamped document cannot be looked at even for any collateral purpose

Privy Council in Ram Rattan v. Parma Nath, AIR 1946 PC 51, held that section 35 of the Stamp Act prohibited the unstamped (or inadequately stamped) document from being looked at even for any collateral purpose, as it enacts that no instrument chargeable with duty shall be admitted in evidence ‘for any purpose’. The unstamped (or inadequately stamped) document becomes admissible on payment of penalty under Stamp Act or on payment of the stamp duty after impounding.

In Omprakash v. Laxminarayan, (2014) 1 SCC 618, the Apex Court observed as under:

• “From a plain reading of the aforesaid provision (S. 35 of the Stamp Act), it is evident that an authority to receive evidence shall not admit any instrument unless it is duly stamped. An instrument not duly stamped shall be admitted in evidence on payment of the duty with which the same is chargeable or in the case of an instrument insufficiently stamped, of the amount required to make up such duty together with penalty. As we have observed earlier, the deed of agreement having been insufficiently stamped, the same was inadmissible in evidence. The court being an authority to receive a document in evidence to give effect thereto, the agreement to sell with possession is an instrument which requires payment of the stamp duty applicable to a deed of conveyance. Duty as required, has not been paid and, hence, the trial court rightly held the same to be inadmissible in evidence.” 

The Apex Court upheld, in Omprakash v. Laxminarayan, the observation of the MP High Court in Writ Petition No. 6464 of 2008, overruling the impugned judgment (Laxminarayan v. Omprakash 2008 (2) MPLJ 416). The MP High Court had observed as under:

• “To put the record straight, the correctness of the impugned judgment (Laxminarayan & Ors. v. Omprakash & Ors., 2008 (2) MPLJ 416) came up for consideration before a Division Bench of the High Court itself in Writ Petition No. 6464 of 2008 (Man Singh (deceased) through Legal Representatives Smt. Sumranbai & Ors. v. Rameshwar) and same has been overruled by judgment dated January 22, 2010. The High Court observed as follows:
  • “8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. In the matter of Laxminarayan (supra), the learned Single Judge with due respect to his authority we don’t think that he did look into the legal position but it appears that he was simply swayed away by the argument that as the defendant was denying the delivery of possession, the endorsement/recital in the document lost all its effect and efficacy.
  • 9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sections 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we over-rule the judgment in the matter of Laxminarayan (supra).”
• We respectfully agree with the conclusion of the High Court (Writ Petition No. 6464 of 2008) in this regard.
• In view of what we have observed above, the order of the High Court (Laxminarayan v. Omprakash 2008 (2) MPLJ 416) is unsustainable and cannot be allowed to stand.”

Decisive point is ‘judicial determination’ and Not Whether Objection is Raised

In G. M.  Shahul Hameed v. Jayanthi R.  Hegde, AIR 2024 SC 3339 (Dipankar Datta, Pankaj Mithal, JJ.), it was emphatically held that the determinative point (as regards the ‘bar to question the marking of the document’) was not “objection” from the ‘opposite party’, but the decisive point is ‘judicial determination’ (alone),  and it is “irrespective of whether objection is raised or not”.

Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It says that ‘evidence may be given of facts in issue and relevant facts‘. The Court can also reject the document as it is inadmissible by exercising power under Order 13 Rule 3 CPC.

In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.

“Admitted in Evidence”- admitted after “Judicial Consideration of Objections” 

In Syed Yousuf Ali v. Mohd. Yousuf, (2016) 3 ALD 235 (M. Satyanarayana Murthy, J.), it is held –

• The words “admitted in evidence” in Section 36 of the Indian Stamp Act mean admitted after “judicial consideration of objections” (applying its mind) relating to its admissibility (following, Athapuram Raghuramaiah v. Dyava Ramaiah, (2012) 6 ALD 505).
• Mere marking for convenience of reference itself would not amount to admitting the document by applying judicial mind and it is not a judicial determination as to the admissibility of document in evidence.
• The provisions of Stamp Act are fiscal in nature and such provisions have to be construed strictly.
• It is the duty of the office to decide or determine judicially about admissibility of the document, irrespective of objection to avoid loss of revenue to the State
• In the absence of any judicial determination about admissibility of the document, the same can be questioned at any stage though stamp is affixed marking the document as exhibit.
• The Court can reject the document if it is irrelevant or inadmissible, at any stage of the suit, by exercising power under Order 13 Rule 3 CPC.
• The objection as to admissibility can be raised by filing a petition to reject the document on the ground that it is inadmissible or by oral objection during pendency of the suit.
• Oral objection (as to the admissibility under Order 13 Rue 3 CPC) can be raised by the counsel
• Note: it appears that the observation of the court – “no judicial order can be passed on the memo”, is not supportable.

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785; (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

• “The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
• This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held in the suit for declaration of title that an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale between the plaintiff and defendant or its terms. It is held as under:

• “In a suit for partition, an unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. Hence, if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and (sic?) get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.” 

Section 49 of the Registration Act expressly states admissibility of unregistered documents  in evidence for collateral purposes. The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna.  Vs Suchi Khanna, 2008-10 ADJ 426; 2009-75 All LR 34; 2009-1 AWC 929).

The Apex Court in K.B. Saha and Sons Private Limitedv. Development Consultant Ltd., (2008) 8 SCC 564: 2008 AIR SCW 4829, has laid down the principle in respect of the collateral purpose.

•        “34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :-

1.        A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
2.       Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act.
3.        A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4.       A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5.      If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.

Unstamped or Insufficiently Stamped Pro-note

Unstamped or insufficiently stamped promissory note cannot be marked in evidence. The weight of authority is on the side that says it is incurable. Hence no secondary evidence can also be lead on the same. It cannot be used for collateral purpose also. But the creditor can prosecute a suit upon ‘original consideration’.

N.N. Global held – If Arb. Agreement Unstamped – No ‘Valid arb. Agreement Exists’

Before the 5-Judge-Bench of the Supreme Court, it was argued –

• by the respondents/defendants, on the basis of the relevant provisions of the Arbitration and Conciliation Act, 1996 (especially Sec. 16), that an arbitration clause would stand as a distinct, separate and independent from the substantive contract and that an arbitration reference can be made by the court even if the arbitration agreement was insufficiently stamped; and
• by the appellant/plaintiff, in view of the provisions in the Indian Stamp Act (especially Sec. 33 and 35), that the arbitration reference could not be made by the court on the basis of an insufficiently stamped agreement. It was pointed out that unstamped or insufficiently stamped documents cannot be used as evidence for any purpose, as provided in the Stamp Act; and that for reference under Sec. 8 of the Arbitration Act the court has to specifically find that prima facie a “valid arbitration agreement exists“.

It is held, by majority (3:2), in N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd., 2023 SCC OnLine SC 495, that an arbitration reference cannot be made by the court under Sec. 8 of the Arb. Act, on the basis of an unstamped or insufficiently stamped agreement.

The Majority affirmed the findings in this regard, in the two earlier 3-Judge Bench decisions.

• (i) Garware Wall Ropes Ltd. v. Coastal Marine Constructions & Engg. Ltd., (2019) 9 SCC 209 (it was held that an arbitration reference cannot be made on the basis of an unstamped or insufficiently stamped agreement).
• (ii) Vidya Drolia v. Durga Trading Corporation, 2021-2 SCC 1 (it was held that landlord-tenant disputes covered and governed by rent control legislation would not be arbitrable when specific court or forum has been given exclusive jurisdiction to apply and decide special rights and obligations).

Impounding of Instruments

Section 33 of the Indian Stamp Act provides as under:

• 33. Examination and impounding of instruments—(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
• (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in India when such instrument was executed or first executed: Provided that—
• (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
• (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
• (3) For the purposes of this section, in cases of doubt,—
• (a) the State Government may determine what offices shall be deemed to be public offices; and
• (b)  the  State Government may determine who shall be deemed to be persons in charge of public offices.

Section 36 of the Stamp Act – Once Admitted shall NOT be called in Question

Section 36 of the Indian Stamp Act provides as under:

• “36. Admission of instrument where not to be questioned – Where an instrument has been admitted in evidence such admission shall not except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped “.
  • Note: Sec. 61 of the Indian stamp act reads as under:
  • 61. Revision of certain decisions of Courts regarding the sufficiency of stamps— (1) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.
  • (2) …  (3) …. (4) …..

Earlier View

Order Admitting Document, Not liable to be Reviewed or Reversed in Appeal

The Apex Court held in Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, as under:

• “Where a question as to the admissibility of a document is raised on the ground that it has not been stamped, or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. 
• The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit in the case. …
• Once a document has been marked as an exhibit in the case and the trial has proceeded all along on the footing that the document was an exhibit in the case and has been used by the parties in examination and cross-examination of their witnesses, S. 36 of the Stamp Act comes into operation. Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order.
• Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Earlier View: Objection be raised when Document Tendered

Our Apex Court held in Sirikonda Madhava Rao v. N. Hemalatha, 12 April, 2022 (referring Javer Chand v. Pukhraj Surana, (1962-2 SCR 333 and Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331) that after marking a document unopposed, it is not open to the parties, or even the court, to reexamine the order or issue. In this case. a document purporting to be an unregistered and insufficiently-stamped sale deed was marked as an Exhibit. The High Court directed that the aforesaid document should be de-marked and not be treated as an exhibit.It is said by the Supreme Court –

• “Once a document has been admitted in evidence, such admission cannot be called in question at any stage of the suit or proceedings on the ground that the instrument has not been duly stamped. Objection as to admissibility of a document on the ground of sufficiency of stamp, has to raised when the document is tendered in evidence. Thereafter, it is not open to the parties, or even the court, to reexamine the order or issue.”

In Lothamasu Sambasiva Rao v. Thadwarthi Balakotiah, AIR 1973 AP 342, and several other decisions it was held that Section 35 was only a bar to the admissibility of an unstamped or insufficiently stamped document; and that when it had been admitted in evidence it could not have been, afterwards, withdrawn. See also:

• Pankajakshan Nair v. Shylaja: ILR 2017-1 Ker 951;
• Dundappa v. Subhash Bhimagouda Patil: 2017-3 AIR(Kar)(R) 570;
• Savithramma R. C. v. Vijaya Bank; AIR 2015 Kar 175;
• Jayalakshmamma v. Radhika: 2015 4 KarLJ 545;
• K. Amarnath v. Smt. Puttamma: ILR 1999 Kar. 4634
• Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893

Earlier View

Not to Admit Unstamped Documents Vs. Once Admitted, Cannot Question

Paradoxical and Incongruent Propositions

The following forceful propositions stand paradoxical and incongruent to each other-

1. Section 33 of the Stamp Act casts a duty on every authority including the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not. There is a duty upon every Judge under Sec. 35 of the Indian Stamp Act not  to  admit a document that is not duly stamped even if no objection to mark it.
2. The court should not exclude an insufficiently stamped (or unstamped) deed once marked without objection under Sec. 36 of the Indian Stamp Act.

The Karnataka High Court held in Smt. Savithramma R.C v. M/s. Vijaya Bank, AIR 2015 Kar 175, as under:

• “”3. The trial Court is right to the extent that, once the document is marked without objection, no subsequent objection regarding its marking can be gone into and such document will have to be looked into while deciding the case on merits. This, however, does come in the way of the court discharging the statutory duty contemplated under Sec. 33 of the Act. …..
• 6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.
  • *^{Corresponding to Sec. 35, Indian Stamp Act}
• If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35** of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
  • ^{**Corresponding to Sec. 36, Indian Stamp Act}
• It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not.” (quoted in Sri R Suresh v. Smt Chandramma, (Kar.) 7 Dec, 2017)

Should the Court Sit Silent and Question Unstamped Documents Afterwards

Though Smt. Savithramma R.C v. M/s. Vijaya Bank (supra) clarified the position with great clarity. As shown above, it pointed out-

• “6. …. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not”

Therefore, it is not definite-

• whether the court should be unfailingly diligent enough not to mark an unstamped or insufficiently stamped document,or
• whether the court should sit silent and mark the document if it is not opposed, or
• whether the court should raise its eye-brows after marking it unopposed.

It is yet to be solved after considering all relevant aspects.

Referring Sec. 36 of the (Indian) Stamp Act, Karnataka High Court pointed out in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, and Yellapu Uma Maheswari v. Buddha Jagadheeswara Rao, (2015) 16 SCC 787, as under:

• “12. Thus where a question as to the admissibility of a document is raised on the ground that it has not been stamped or has not been properly stamped, it has to be decided then and there when the document is tendered in evidence. Once the Court, rightly or wrongly, decides to admit the document in evidence, so far as the parties are concerned, the matter is closed. Parties to a litigation, where such a controversy is raised, have to be circumspect and the party challenging the admissibility of the document has to be alert to see that the document is not admitted in evidence by the Court. The Court has to judicially determine the matter as soon as the document is tendered in evidence and before it is marked as an exhibit. Once a document has been admitted in evidence, it is not open either to the trial court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction. An unregistered document can be relied upon for collateral purpose i.e. severancy of title, nature of possession of various shares but not for the primary purpose i.e. division of joint properties by metes and bounds. An unstamped instrument is not admissible in evidence even for collateral purpose, until the same is impounded. If the petitioner wants to mark the documents for collateral purpose, it is open to him to pay the stamp duty together with penalty and get the document impounded. Thereafter the trial court shall consider the same for collateral purpose subject to proof and relevance.”

 See Blog: Proof of Documents & Objections To Admissibility – How & When?

Is Impounding “Totally Different“ from Admissibility

Sec. 36 of the stamp Act deals with and bar questioning ‘admission of instrument‘, alone. That interdiction or bar applies to the courts also.

Karnataka High Court (N. Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015), authoritatively held relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage. It further observed (obiter) by the Karnataka High Court that the impounding the document was “totally different” from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

In principle, no doubt, what is said by the Karnataka High Court is fully legally acceptable. But, it can be argued that the above proposition requires evaluation on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, which reads as under:

• “Once a document has been admitted in evidence, as aforesaid, it is not open either to the Trial Court itself or to a Court of Appeal or revision to go behind that order. Such an order is not one of those judicial orders which are liable to be reviewed or revised by the same Court or a Court of superior jurisdiction.”

Should an opportunity be given to Cure Defect, by Paying Deficit Stamp Duty?

In Kalaivani @ Devasena v. J. Ramu, 2010(1) CTC 27,  it was held that an opportunity should be given to the party who produces the document with insufficient stamp, to pay the deficit stamp duty and penalty so that the document could be exhibited; and that if penalty is not paid, the document should be impounded. It is held as under:

• “24. .. It is well settled that even an unregistered document is admissible in evidence for collateral purpose provided it is adequately stamped under the Stamp act. If the document is both unstamped and unregistered, as the document in question here, it is no doubt true that it cannot be looked into for collateral purpose also. But such a document should not be thrown out at the threshold itself and an opportunity must be extended to the party who wants to mark the document on his side by directing him to pay the deficit stamp duty along with the penalty upto date, then the document could be admitted in evidence for collateral purpose. If the person does not pay the Court, then the document is to be impounded and sent to the Collector for taking action under the law.”

Conclusion

It is not at all fair to say that if the court inadvertently marked a document or it failed to object marking, the document will stand good in favour of the party who tendered the document.

Taken From the Blog: Unstamped & Unregistered Documents and Collateral Purpose

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Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• 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
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• 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
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

Answer: Yes; According to the Law Now Outstands.

• In Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83, it is observed that the first commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work.
• It is followed (by other High Courts) in the following decisions –
  • RV Ganesa Naicker v. Painter Selvaraj (Mad), 2018
  • Saudagar Mahto v. Ram Charitra Mahto, 2015-2 Pat LJR 52
  • Chinmayee Saha v. Renuka Halder, AIR 2016 Cal 33
  • KN  Vishwanathan Nair v. K  Rajani, (Kar), 2010
  • M Ramesh Babu v. M Sreedhar, 2009-5 AndLD 187, 2009-4 ALT 780
  • Vemba Gounder v. Pooncholai Gounder, AIR 1996 Mad 347
  • Asifunisa v. AH Imam,  1991 BBCJ 513, 1992-1 BLJ 452, 1992-1 Pat LJR 380 (Divergent views placed).

But, the Apparent Legal Position, on the First-Principles, is the following-

• There is no bar to issue a second commission (without setting aside the earlier report) if it is found –
  • (i) the earlier Report was not satisfactory and
  • (ii) there is need for a further enquiry.
• Because,
  • O26 r 10 (3) expressly allows the Court, to direct such further inquiry as it thinks fit, if it is dissatisfied with the proceedings of the Commissioner, for any reason;
  • Commission report is only a piece of evidence, and the court is not ‘bound by’ it.

Taken from: Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Saji Koduvath, Advocate, Kottayam.

Introduction

• Commission for local investigation is appointed to ‘elucidate‘ matters in dispute.
• A commissioner has the duty to report matters that are relevant in the suit – even if they are not specifically put to him (to ascertain).
• “Opinion” (evidence) of a commissioner (Eg. Whether a building is fit for ‘residence’) may not be relevant.
• A commissioner cannot be asked to find out the physical possession of a property.
• A Commission report will be ‘evidence’ even if it is not marked or exhibited.
• Parties should prove their case by themselves by letting in legally acceptable evidence and the report of the Commissioner can only aid the court in evaluating the evidence.
• It is not a condition precedent to set aside the Commission Report – where the (earlier) report suffered only some “deficiency or omission ”.
• When a commission report is set aside, the court is bound to remit it back to the Commissioner for getting a fresh report.
• If the Ex parte commission did not give notice to the defendant, the report cannot be accepted as ‘substantive’ evidence; it can be used only as a corroborative piece when the commissioner is examined in court.
• There is no ‘provision’ to raise “objection” to a commission report on ‘local inspection’. The dissatisfied party has to challenge the evidence by cross-examination of the commissioner.
• Surveyor-plan Attached to Commission Report will not be ‘ipso facto’ Evidence. If the commissioner could not vouchsafe its veracity, the surveyor should be examined.

Power of Courts to Issue Commissions

• Courts derive power to issue Commissions from Sec. 75 CPC. It reads as under:

Sec. 75. Power of Court to Issue Commissions

• Subject to such conditions and limitations as may be prescribed, the court may issue a commission-
  • (a) to examine any person;
  • (b) to make a local investigation;
  • (c) to examine or adjust accounts; or
  • (d) to make a partition;
  • (e) to hold a scientific, technical, or expert investigation;
  • (f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;
  • (g) to perform any ministerial act.

Commissions to Make Local Investigations

• Order 26 rules 9 and 10 deal with appointment of Commissions to make local investigations. They read as under:

O 26 r 9. Commissions to make local investigations-

• In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:
• Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules.

O 26 r 10. Procedure of Commissioner-

• (1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court.
• (2) Report and deposition to be evidence in suit.
• Commissioner may be examined in person-The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record; but the Court or, with the permission of the Court, any of the parties to suit may examine the Commissioner personally in open Court touching any part of the matters referred to him or mentioned in his report, or as to his report, or as to the manner in which he has made the investigation.
• (3) Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

Should First CR be Set Aside to Issue a Second Commission?

There is difference of opinion.

One view is that the Court Cannot (even) Set Aside a Commission Report, which “shall form part of the record” by virtue of O26 r. 10(2) CPC. There is no provision in the CPC to set aside a Commission Report.

O26 r. 10(3) CPC makes it clear:

• Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further inquiry to be made as it shall think fit.

O26 r. 10(3) does not specifically say –

• (1) the court has the authority to set aside a commission report (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041);
• (2) if the court is dissatisfied with the commission report, it can set aside the commission report; or
• (3) for issuing a second/fresh commission the first commissioner’s report should have been set aside.

Following arguments can also be placed in support of the view that a commission report cannot be set aside:

• Commissioner’s report is only a piece of evidence. (Paul K Lalthakima v. District Collector, Aizawl, 2018-4 GauLT 854; Sarojini v. Karthiyani Amma,  ILR  2010-1Ker 17, 2010-1 KHC 193; Geetarani Panda v. Manmath Patra, 2009-108 Cut LT 355)
• There can be any number of such reports.^#* If two Commission Reports differ on a point, the court can evaluate and assess the same with other evidence and can come to a correct conclusion.
  • ^{#*(No doubt, they cannot be allowed to overfill the court; the restrictive mechanism is provided by the words in O26 r. 10(3) – that is, a second commission can be ordered if only “the court is, for any reason, dissatisfied with the proceedings of the Commissioner” and there is need for a further enquiry.)}
• It is laid down in O 26 r. 10(2) CPC that the commission report shall be evidence in the suit and shall form part of the record (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041). O 26 r. 10(2) reads-
  • “The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record.”
• Further, O26 r. 14(2), which stands for commission-to-make-partition, engrafts – “after hearing any objections which the parties may make to the report or reports, (court) shall confirm, vary or set aside the same“. But, such a power is conspicuously avoided in O26 r. 10 CPC (See: Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041).

Other View – Court has to Set Aside the 1^st Report for Issuing a 2^nd Commission

A bunch of decisions authoritatively lay down that the first commissioner’s report must have been set aside for appointing another commissioner.

The courts brought forth, for that matter-

• Inherent power under Sec. 151 CPC (See: Chinmaya Saha v. Renuka Halder, AIR 2016 Cal 33) and
• Rule of law based on ‘Public Policy‘ (See: Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83).
• It is also pointed out that O26 r. 10(3) CPC is attracted (for directing further inquiry, without setting aside first CR) only when there are some deficiencies or omissions in the Report of the Commissioner.

Analysing O26 r. 10(3) CPC it is observed in Swami Premananda Bharathi v. Swami Yogananda Bharathi, AIR 1985 Ker 83, as under:

• “The first commissioner’s report and proceedings should be set aside for reasons to be recorded and then only the court can proceed to appoint another commissioner to do the work is a wholesome rule of law based on public policy….  the appointment of the second Commissioner and the reports filed by him without setting aside the first Commissioner’s report is wholly illegal and without jurisdiction.”

In Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021- 4 KerLJ 415; 2021-6 KerLT(SN) 42, following Swami Premananda Bharathi v. Swami Yogananda Bharathi (and discarding Francis Assissi v. Sr. Breesiya, 2017-1 Ker LT 1041), it is observed as under:

• “If a court is dissatisfied with the proceedings of the commissioner, the court can direct further inquiry to be made as it shall think fit after setting aside the commission report and plan to get the mistakes or the defects rectified.”

Swami Premananda Bharathi, AIR 1985 Ker 83, is referred to in the following decisions also:

• RV Ganesa Naicker v. Painter Selvaraj (Mad), 2018
• Saudagar Mahto v. Ram Charitra Mahto, 2015-2 Pat LJR 52
• Chinmayee Saha v. Renuka Halder, AIR 2016 Cal 33
• KN  Vishwanathan Nair v. K  Rajani, (Kar), 2010
• M Ramesh Babu v. M Sreedhar, 2009-5 ALD 187, 2009-4 ALT 780
• Vemba Gounder v. Pooncholai Gounder, AIR 1996 Mad 347
• Asifunisa v. AH Imam,  1991 BBCJ 513, 1992-1 BLJ 452, 1992-1 Pat LJR 380 (Divergent views placed).

Apparent Legal Position on the First-Principles

As pointed out in Francis Assissi v. Sr. Breesiya, 2017 (1) KLT 1041, O26 r. 10(3) does not specifically say that the court has the authority to set aside a commission report, which automatically forms part of the record.

A commission report is only a piece of evidence. Therefore, it is definite, on the first-principles, that there is no bar to issue a second commission in a proper case, without setting aside the earlier commission report; but, it can be done only after recording a definite finding that –

• the earlier Commission Report was not satisfactory and
• there is need for a further enquiry

as observed in R. Viswanathan v. P. Shanmugham, 1985-1 MLJ 254. It reads as under:

• “It is well settled proposition that until the Court is dissatisfied with the proceedings and report of the Commissioner earlier appointed, it will not be proper to ignore the same and direct even further enquiry, much less the scrapping of the earlier report as a whole and appoint a fresh Commissioner. The power is circumscribed by the principles under O. 26, R. 10(3). The power can be exercised only after the Court below renders a finding that the proceedings and the report of the earlier Commissioner are not satisfactory and there is need for a further enquiry. In the present case, the order of the Court below does not express any opinion that the proceedings and the report of the earlier Commissioner are not satisfactory. The Court below has opined that the truth or otherwise of the allegations therein against the Commissioner’s report need not be gone into and it is better to change the Commissioner. This is not the proper way of dealing with the matter.”

Effect of Two Commission Reports in File

Assume, rightly or wrongly, two commission reports were brought to file; then, should the first report be discarded totally?

• Since (i) the commission reports are pieces of evidence, (ii) it forms part of evidence and (iii) no express legal provision permits to discard such a report, it may not be proper to totally discard the first report.

Is it mandatory to set aside the Commission Report – where the report suffered only some “deficiency or omission”?

• No.
• It is to be remitted-back to the commissioner to cure the lacuna. Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. Followed Joy Cherian v. George Cherian, 2009-3 KerLT 64.

Can the partiess be pushed to suffer for the Mistake of the Commissioner

• In Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42, it is held as under:
• “21. In a case where the court finds that the commission report is totally unacceptable as it is not in accordance with the true state of affairs, it can always attempt to get at the truth by deputing another commissioner and its power to act under sub rule (3) cannot be minimised or overlooked on the ground that the contesting party has not filed any objection to it. It is always the endeavour of the court to arrive at the correct decision in a given case and whenever it is found that the commission report is unacceptable for any valid reason it can legitimately exercise its power under sub rule (3). It is well within the competence of the appellate court also to exercise in appropriate cases power under Order 26 Rule 10(3) to set aside the commission report and call for fresh report by deputing another commissioner.”

It is beyond doubt that above observation is made on the principle that the parties should not be pushed to suffer for the lapse or mistake of the commissioner. We can take cue from the proposition that ‘a party should not be pushed to suffer a wrong occasioned by the inaction or fault on the part of the Court’. See :

• (i) Jang Sing v. Brij Lal, AIR 1966 SC 1631;
• (ii) A.R. Antulay v. R.S. Naik, 1988-2 SCC 602;
• (iii) Mudit Verma v. Co-operative Tribunal, 2006 (63) ALR 208 (All)(LB)

When a commission report is set aside, is the court bound to remit it back to the Commissioner for getting a fresh report?

• Yes.
• Yudathadevus  v.  Joseph, 2021-5 KerHC 668; 2021-4 KerLJ 415; 2021-6 KerLT(SN) 42. The reason behind it is obvious –
• Court can appoint a commissioner suo motu (Dinesh Chandra Gaur v. Abhay Sood, 2015 (2) ARC 243).
• In Retnamma v. Mehaboob, 2013-3 Civil CC 65 it is held that the court should go through the report and see whether it was in Order, irrespective of whether any objection is filed or not; and that the Order 26 Rule 10(3) C.P.C. laid down that where the Court was dissatisfied with the proceedings of the Commissioner, for any reason, it might direct the commissioner to make such further inquiry as it thought fit.

Read also:

• Survey Plan and Area Calculation: A Cursory Look
• Survey Records under Survey Act – Raises a Presumption of Correctness on Boundary; though Not Confer Title
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?

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Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• 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
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• 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
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions