Is it Necessary to Produce Mobile Phone or Computer to Prove Electronic Evidence?
The answer is, “Not Necessary”.
Print-outs; Copies in CDs, Pen drives etc. are admissible.
S. 65B is an Enabling Provision. It Directs to ‘Deem‘ Copy to be “Original“
Sec. 65B, Indian Evidence Act is an express enabling provision to use a copy or print out (termed as ‘computer output’) in evidence as if it is original, inasmuch as Sec. 65B says that computer output (copy) shall be –
“deemed to be also a document“, and
admissible “withoutfurther proof or production of the original” as evidence of
any contents of the original or
any fact stated therein.
Relevant portion of Sec. 65B reads as under:
Sec. 65B. Admissibility of electronic records-
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is PRINTED….. or COPIED….. (hereinafter referred to as the computer output) shall be deemed to be also a document …. and shall be admissible ….. without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein….”
S. 65B, Evi. Act Applies to Copy alone; and Not to Original Electronic Record
From Sec. 65B(1), as stated above, it is clear –
Sec. 65B is invoked only when a ‘computer output’ (copy) is used in evidence; and it will not be applicable to (original) ‘electronic record‘.
The Supreme Court, in Anver PV v. PK Basheer, 2014-10 SCC 473, held as under:
“24. …… If an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65B of the Evidence Act.”
This observation is followed in Arjun Panditrao v. Kailash Kushanrao, (2020) 3 SCC 216).
Copy of E-mail, WhatsApp Chats, Facebook Posts etc.considered by Courts in India
There was no concluded contract. Specific performance cannot be ordered.
The WhatsApp messages which are virtual verbal communications are matters of evidence with regard to their meaning and its contents to be proved during trial by evidence-in-chief and cross examination. The emails and WhatsApp messages will have to be read and understood cumulatively to decipher whether there was a concluded contract or not.
Sailendra Kumar Goswami v. State of Assam, 2022 CrLJ 4694, 2022-237 AIC 506
Though the defamation matter on e-mail (placed in court by a copy), under Sec. 500 IPC, is proved with Sec. 65B-certificate as per Sec. 58, admitted facts need not be proved.
Certificate under sec. 65B is made mandatory, in view of Arjun Panditrao Khotkar, (2020) 3 SCC 216.
Rangaswamy v. State of Karnataka (2022)
The Nodal Officer of Vodafone Company provided, through e-mail, the call details of mobile phones and customer application forms, with certificate under Sec. 65(B).
However, in his cross-examination, he has admitted that he has not mentioned the location of the towers in the said mobile CDRs.
Zutti Engineering Solutions Pvt. Ltd. v. M. Vignesh (2019) High Court of Telangana
Copy of e-mailconversations between plaintiff and defendant was sought to be marked. Trial Court dismissed the prayer to mark the same without giving reasons.
In revision, the High Court allowed to receive the copy in evidence if the petitioner complied with Section 65B of the Evidence Act, subject to proof and relevance.
S @ S v. C P (2018) High Court of Delhi
The respondent filed print-outs from the ‘Facebook‘ page of the petitioner. She has also filed certain recorded telephone conversations in two CDs with transcripts. counsel for the petitioner raised objections as to non compliance of provisions of section.
Printouts from the Facebook – only show that one Deepa is acquainted with the petitioner but there is no indication of any objectionable relationship. Telephonic conversations in the CDs do not refer to any demand of dowry.
Shyam Investments v. Masti Health And Beauty Pvt Ltd. (2020 – High Court of Madras)
The printout of the websitesof the plaintiffs and defendant produced along with the certificate under Section 65B. Also print out of registration certificatesof the marks also filed supported by the affidavit under Section 65B.
Printout of the websites accepted (in the Trade Mark/passing off matter). Held – the plaintiffs were entitled for damages as sought for. Injunction was also granted.
Sanjib Sarkar v. Rajasree Roy, AIR 2022 Cal- 12
Secondary evidence of Facebookmessages is admissible if only there is a certificate under Sec. 65B (4). Oral evidence in support of it by the wife (in the matter of annulment of marriage on the ground of fraud) was not enough.
The wife argued that the secondary evidence was supported by evidence in primary form by her. The finding of the trial court was confirmed, as it was admitted by the appellant that the evidence was sourced from the “the original electronic device owned by” the wife.
Kadar Nazir Inamdar v. State of Maharashtra (2022)
Alleged Facebookconversation (Secondary evidence) is wholly untenable as there is no material to show the retrieval of the data by the Investigating Officer. Nor a certificate under Sec. 65B is produced.
The submissions about the authenticity and genuineness of Facebook chat do not deserve countenance at this stage. The question of admissibility would be a matter of trial.
Rakesh Kumar Singla v. Union Of India, 2021-1 RCR(CRI) 704, 2021-3 Cri CC 452
Screen shots of Whatsappmessages available with the NCB, which would connect the petitioner with the said contraband.
Narcotics Bureau would always be at liberty to rely upon the Whatsapp messages after due compliance of provisions of Section 65-B of the Indian Evidence.
Priyanka Singh v. State of Maharashtra, 2021 All MR(Cri) 1276, 2021-3 Cri CC 110, 2021-4 BCR(Cri) 393
Petitioners prayed for quashing of the FIR, in the matter related to alleged suicide by a late actor. Printouts of Whatsapp chats were produced along with the complaint.
The printouts of Whatsapp chats showed that there was no whatsapp chats at the relevant time within the proximate date and time. FIR qua second petitioner was quashed and set aside.
Abhishek Tripathi v. Smt. Aparna Tripathi (2022), Chhattisgarh High Court
Print-out of Whatsapp chat, between husband and wife, is not admissible in evidence under the provisions of Sec. 65B unless and until it bears certificate.
Court granted bail, acting upon the Whatsapp.
Kumari Chaithra v. State of Karnataka (2022)
Whatsapp chat (Secondary evidence) is not proved by a certificate under Sec. 65B is produced. It is necessarily to file the certificate (while filing the charge-sheet).
While considering the bail petition, Court exercising the discretion, can consider the Whatsapp messages, to find the relation between the parties, in a sexual offence matter. Certificate is required while marking the documents.
Ambika Roy v. Honble Speaker, West Bengal Legislative Assembly (2022)
The Speaker (in the steps for disqualifying a BJP-MLA for joined the TMC) illegally rejected of the following evidence produced with the certificate u/s 65B – Printouts of Tweets,Facebook page of AITC, Video recording of the press conference and screenshots of Twitter handle of AITC.
If the Speaker found a certificate under Sec. 65-B to be defective, then it had to summon the person referred to Sec. 65-B. It was necessary for the Speaker to duly take into account the certificate given by the petitioner before rejecting the electronic evidence as inadmissible.
Presumption as to Electronic Messages – Presumption as to Originator
Sec. 88A of the Evidence Act reads as under:
“88A. Presumption as to electronic messages – The Court may presume that an electronic message, forwarded by the originator through an electronic mail serverto the addressee to whom the message purports to be addressedcorresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
Explanation – For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000 (21 of 2000).”
On analysis following matters emerge from Sec. 88A-
Presumption under Sec. 88A is optional.
It relates to an electronic message, forwarded by the originator.
It must have been forwarded through an electronic mail server to the addressee.
The presumption is (only) that the purported message forwarded by the originatorto the addresseecorresponds with the message that is fed into his computer.
Sec. 88A, by itself, does not give a presumption-
(i) that the purported message fed into his computer had reached the addressee (such a presumption can be drawn from Sec. 114 Evid. Act)
or,
(ii) that the purported message has been seen or read by the addressee.
Note, Sec. 88A itself says “the Court shall not make any presumption as to the person by whom such message was sent“.
Therefore, it is possible to expostulate – without some additional evidence (or some additional presumption) it is not proper to take a presumption that the message sent to the ‘office of the addressee’ is seen by the addressee.
In other words, the degree of presumption as to (reading) a message sent to a personal device (computer or mobile phone) of one person will be higher when compared to a message sent to his ‘office’.
Email sent by the Accused found Proved in 2016 Cri. LJ 1159 (Cal)
Analysing Section 88A of the Evidence Act and the relevant provisions of the Information and Technology Act, it is observed in Abdul Rahaman Kunji vs The State Of West Bengal, 2016 CriLJ 1159 (Cal), that the e-mails were admissible in evidence. The court acted upon the presumption under Sec. 88A. It was found that the e-mails were proved and that the accused/appellant was the originator of the e-mails and that he had participated in the crime of abduction in equal measure as the others. It was observed as under:
“It is apparent that the Court may presume the veracity of the message fed into the computer for transmission by the originator through his mail server to an addressee, that is, the person who is intended by the originator to receive the electronic record and does not include any intermediary. However, this is a rebuttable presumption. Besides, no presumption can be drawn about the person who has sent such a message. Therefore, even if we accept the fact that these e-mails have been downloaded as stated by the Webel expert or sent by using the e-mail address of Akib Ali, it was necessary for the prosecution to prove that Akib Ali was in fact the originator of these e-mails. The disclosure, if any, made by Akib Ali of the e-mail address and password would have to be made under Sec. 27 of the Evidence Act. PWs 118 and 132 (expert and IO) have both stated that Akib Ali has disclosed his e-mail identities and passwords in their presence. They have signed the seizure list under which the e- mails accessed from these accounts and printed have been seized. Therefore, in our opinion, these e-mails are admissible in evidence.”
It was also pointed out by the High Court that besides denying everything in the statement recorded under section 313 CrPC, the accused has not given any specific explanation about his e-mail accounts and passwords or about the contents of the e-mails.
What Type of Copies Can be Used as ‘Computer Outputs’ under Sec. 65B?
As shown above, by virtue of Sec. 65B of the Evidence Act, a computer output (i.e. copy or print-out of an electronic record) is deemed to be also an (original) document. For proving the ‘computer output’ (copy or print-out), Sec. 65B directs that the Certificate, as provided under subsection (4), is essential. The ‘computer output’ (copy) can be-
Print-outs,
CDs, Pen drives etc. and
Screenshots.
The Information Technology Act, 2000 (No. 21 of 2000) defines ‘Electronic Record’ as under:
“ ‘Electronic Record’ means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”
What should be the Contents of the Sec. 65B Certificate
Sub Sections 2 and 4 of Sec. 65B are the crucial provisions. They read as under:
“(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.”
“(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
From Sub Sections (2) and (4) of Sec. 65B, it is clear that the certificate must refer to the following aspects –
the computer was used regularly to store or process information;
the activities were regularly carried on over that period;
they were done by a person having lawful control over the computer;
the information was regularly fed into the computer;
it was in the ordinary course of the said activities;
the computer was operating properly (if not, give details);
the information was fed in the ordinary course of the activities.
the electronic record must be identified
the manner in which it was produced;
particulars of device involved in the production of that electronic record.
Who can Give Certificate under Sec. 65B?
Sec. 65B(4) reads as under:
“(4) In any proceedings where it is desired to give a statement in evidence … … a certificate doing any of the following things, that is to say,—
(a)… (b)…. (c) ….
and purporting to be signed by a person occupying a responsible official position in relation to
the operation of the relevant device or
the management of the relevant activities (whichever is appropriate)
shall be evidence of any matter stated in the certificate; and
for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.”
Basing on Sub-section (4) of Section 65B, it is made clear in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216 –
The 65B(4) certificate can be given by-
(1) anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device,
(2) a person who may otherwise be in the ‘management of relevant activities’, and who can give the certificate to the “best of his knowledge and belief”.
See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.
Time for Producing Sec. 65B(4) Certificate
The Sec. 65B(4) Certificate can be given ‘long after the electronic record has actually been produced by the computer’. In Arjun Panditrao it is also pointed out as under:
“An application can always be made to a Judge for production of such a certificate from the requisite person under Section 65B(4) in cases in which such person refuses to give it.”
See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.
Court-Jurisdiction to Order Production of a Certificate
Our Apex Court referred to in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216, the following provisions of law that enables a court to order (on the request of the parties to the proceedings or on its own) production of Sec. 65B(4) Certificate –
1. The Indian Evidence Act, Section 165. It empowers a Judge to order production of any document or thing in order to discover or obtain proof of relevant facts;
2. The Civil Procedure Code, Order XVI – Rule 6, 7, and 10. (R. 6 pertains to Summons to produce document; R. 7 – Power to require persons present in Court to give evidence or produce document; and R. 10 – Procedure where witness fails to comply with summons).
3. The Code of Criminal Procedure, Sec. 91 and 349. (s. 91 discusses as to Summons to produce document or other thing; s. 349 – Imprisonment or committal of person refusing to answer or produce document).
Should the ‘Correctness’ of Copy or Print-out Must be Proved?
No.
S. 65B(5)(c) lays down a presumption as to correctness (not truth) of the computer out-put; because, S. 65B(5)(c) lays down-
‘a computer out-put shall be taken to have been produced by a computer’.
Sec. 65B(5)(c) reads:
‘a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment’.
(Note: Sec. 65B(5)(c) stands incongruent to to Sec. 65B(2) which reads as under: “(2). The conditions … in respect of a computer output shall be the following, namely:—(a) the computer output containing the information was produced by the computer … (which) was used regularly to store or process information …. over that period by the person having lawful control over the use of the computer …..“
Post Circulated/Forwarded on WhatsApp Platform/Group – Not a ‘Document’
In National Lawyers Campaign for Judicial Transparency and Reforms v. Union of India, 2019 (Delhi High Court) the petition made very serious allegations has been filed merely based on a post allegedly circulated on WhatsApp group. Counsel for the petitioner submitted that in terms of Section 154 of the Code Criminal Procedure, 1973 any information, which was provided to the police, was sufficient to set the criminal process into motion. The High Court responded as under:
“I am unable to accept this contention, in as much as, in the present case, the petitioners, very candidly admit that they are not privy to any information. What they believe to be information is a post circulated on WhatsApp platform or an alleged translation in a website. The alleged information is not claimed to be true to their knowledge. It is not even stated in the petition as to how the petitioners have formed a reasonable belief that the alleged post or the translation could be true or have any basis.”
“Annexure – A (forwarded message) does not even qualify as a document in terms of the Evidence Act, 1872, in as much as, neither the original nor the copy of the original has been produced. It is an admitted position that the petitioners have not seen original and have had no occasion to even compare Annexure – A with the original.”
“What is Evidential Value of WhatsApp Messages these days?“
The chats, that were done prior to a written agreement in a commercial transaction, are extrinsic evidence and hence, ordinarily, they are not relevant. Oral statements as regards the contents in a document are also liable to be eschewed, in law. Further, Sec. 93 and 94 of the Evidence Act speak as to exclusion of evidence (i) intend to ‘explain or amend ambiguous document’ and (ii) ‘against application of the document to existing facts’. It is profitable to refer the Supreme Court decision in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, which reads as under:
“The grounds of exclusion of extrinsic evidence are:
(i) to admit inferior evidence when law requires superior would amount to nullifying the law,
(ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”
It is seen that, in the hearing of A2Z Infraservices Ltd. v. Quippo Infrastructure Ltd., on 14 July 2021, the Apex Court (Chief Justice NV Ramana and Justices AS Bopanna and Hrishikesh Roy) pointed out this legal position as under:
“What is evidential value of WhatsApp messages these days? Anything can be created and deleted on social media these days. We don’t attach any value to the WhatsApp messages,”
Following are the Landmark Cases of the Supreme Court on Sec. 65B
Supreme Court dealt with CCTV footage (copy) in the following cases:
State (NCT of Delhi) v. Navjot Sandhu, 2005-11 SCC 600,
Tomaso Bruno v. State of UP, 2015-7 SCC 178.
CDs/VCDs in respect of video recording by the Election Commission
Arjun Panditrao v. Kailash Kushanrao, 2020-3 SCC 216.
CDs containing election speeches and songs, in:
Anvar PV v. PK Basheer, 2014-10 SCC 473.
Call Detail Records – CDR – of mobile phones,in:
Sonu v. State of Haryana, 2017-8 SCC 570.
Tape recorded conversation on the landline phone, in
Vikram Singh v. State of Punjab, 2017-8 SCC 518.
Propriety of videography of the scene of crime or scene of recovery during investigation, in:
Where truth is in issue mere marking does not absolve duty to Prove Truth
Where truth of a document is in issue, marking without objection does not absolve the duty on the concerned party to prove the truth.
Whether Proof of Admitted Documents Includes ‘Truth’ of its Contents
Sec. 58 of the Evidence Act says that ‘Admitted facts need not be proved’. Order VIII, Rule 5 CPC stipulates that every allegation of fact in the plaint, if not denied specifically or by necessary implication, shall be taken to be admitted except as against a person under disability.
Effect of marking a document without formal proof (on admission or without objection) brings-about divergent views.
First view
Admission of contents; and, it dispenses with proof as to truth. (It is on the proposition that proof includes ‘truth of contents’.)
Second View
Admission of contents; but, it does not dispense with proof (as to both ‘existence’ and ‘truth’).
Third view
If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
Fourth view
Admission of contents of a document may dispense with proof (as to both ‘existence’ and ‘truth’); but its PROBATIVE VALUE will be a matter for the court, and the proof as to truth is left to the discretion of the court. In proper cases court can presume truth.
Fifth view
Court should require the party producing the document to adduce proper evidence, and to cure formal defects.
Objection to be Raised When Document is Admitted; Otherwise, Opportunity Lost
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in RVE Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
Privy Council in Padman v. Hanwanta, AIR 1915 PC 111,held that the objection to marking of documents and its admissibility should have been taken in the trial court. It was observed as under:
“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.”
In P.C. Purushothama Reddiar v. S Perumal, 1972 (2) SCR 646,it was observed as under:
“Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”
Our Apex Court held in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:
“24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”
PROBATIVE VALUE of a Documentis a Matter for the Court
Etymology of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, proof, testing, probation etc. In law, ‘probative value’ imparts –
Sufficiency of evidence to prove something in a trial.
Probability of proof or truth while appreciating a fact.
Value or weight of evidence, considered by the court, in proof of something.
Extent of evidentiary value that can be taken to prove a proffered proposition.
Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine. It is important to note that probative value may ‘include’ truth of contents of documents; but, precisely it is independent from ‘truth’ of contents of documents.
Presumption as to truth
Presumption as to truth of the contents of a (proved) document can be invoked in proper cases. Official record is taken as correct on the presumption that the entries thereof are made only after satisfying its truth.
Admissibility of a Document is One Thing and its Probative (Proof) Value Quite Another
Admittance of documents in evidence, and its proof are two different matters. In Baldeo Sahai v. Ram Chander, AIR 1931 Lahore 546, it is held as under:
“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. The word “proved” has been used by the Division Bench in the sense of ‘proposed to be proved’ as is clear from its having been used along with the word ‘tendered’ or “admitted” in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As stated hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved – are two distinct and different stages, not one. They are respectively the second and third stages. Admission of a document in evidence is not to be confused with proof of a document.”
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758– Victim in a murder case had been admitted in the hospital with burns. The dying declaration was recorded by the Doctor. The original dying declaration had not been filed by the prosecution and the carbon copy was produced. The Doctor deposed that even after conducting an extensive search, the original dying declaration could not have been traced. Pointing out that the secondary evidence can be adduced in any form, provided it is authenticated by foundational evidence that the alleged copy is in fact a true copy of the original, the Apex Court held as under:
“Section 65(c) of the Act 1872 provides that secondary evidence can be adduced relating to a document when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason, not arising from his own default, or neglect, produce it in reasonable time. The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence. (Vide: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492; and Rasiklal Manikchand Dhariwal & Anr. v. M.S.S. Food Products, (2012) 2 SCC 196).
In Rasiklal Manikchand Dhariwal v. M.S.S. Food Products, (2012) 2 SCC 196, it was held as under:
“Proviso appended to sub-rule (1) of Rule 4 of Order XVIII further clarifies that where documents are filed and the parties rely upon the documents, the proof and admissibility of such documents which are filed along with the affidavit shall be subject to the order of the court.”
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.” (Quoted in: H. Siddiqui (dead) by Lrs. v. A. Ramalingam, AIR 2011 SC 1492)
E.g. – A per se ‘objectionable document’ marked without objection; un-cross-examined testimony of a witness; Photocopy of a deed certified copy of which is provided in law.
In Life Insurance Corporation of India v. Rampal Singh Bisen, (2010) 4 SCC 491, it is held as under:
“26. We are of the firm opinion that mere admission of document in evidence does not amount to its proof. In other words, mere marking of exhibit on a document does not dispense with its proof, which is required to be done in accordance with law. As has been mentioned herein above, despite perusal of the record, we have not been able to come to know as to under what circumstances respondent plaintiff had admitted those documents. Even otherwise, his admission of those documents cannot carry the case of the appellants any further and much to the prejudice of the respondent.
27. It was the duty of the appellants to have proved documents Exh. A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would not partake the character of admissible evidence in a court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
“31. Under the Law of Evidence also, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most, admission of documents may amount to admission of contents but not its truth. Documents having not been produced and marked as required under the Evidence Act cannot be relied upon by the Court. Contents of the document cannot be proved by merely filing in a court.”
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Section 165 of the Evidence Act states as follows:
“Section 165. Judge’s power to put questions or order production.- The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question.
Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.
Order XVI rule 6 of the Civil Procedure Code, 1908
“6. Summons to produce document.—Any person may be summoned to produce a document, without being summoned to give evidence; and any person summoned merely to produce a document shall be deemed to have complied with the summons if he causes such document to be produced instead of attending personally to produce the same.
Order XVI rule 7 of the Civil Procedure Code, 1908
7. Power to require persons present in Court to give evidence or produce document.—Any person present in Court may be required by the Court to give evidence or to produce any document then and there in his possession or power.
Order XVI rule 10 of the Civil Procedure Code, 1908
10. Procedure where witness fails to comply with summons.—(1) Where a person has been issued summons either to attend to give evidence or to produce a document, fails to attend or to produce the document in compliance with such summons, the Court— (a) shall, if the certificate of the serving officer has not been verified by the affidavit, or if service of the summons has affected by a party or his agent, or (b) may, if the certificate of the serving officer has been so verified, examine on oath the serving officer or the party or his agent, as the case may be, who has effected service, or cause him to be so examined by any Court, touching the service or non- service of the summons.
(2) Where the Court sees reason to believe that such evidence or production is material, and that such person has, without lawful excuse, failed to attend or to produce the document in compliance with such summons or has intentionally avoided service, it may issue a proclamation requiring him to attend to give evidence or to produce the document at a time and place to be named therein; and a copy of such proclamation shall be affixed on the outer door or other conspicuous part of the house in which he ordinarily resides.
(3) In lieu of or at the time of issuing such proclamation, or at any time afterwards, the Court may, in its discretion, issue a warrant, either with or without bail, for the arrest of such person, and may make an order for the attachment of his property to such amount as it thinks fit, not exceeding the amount of the costs of attachment and of any fine which may be imposed under rule 12:
Provided that no Court of Small Causes shall make an order for the attachment of immovable property.”
Sec. 91 of the Code of Criminal Procedure, 1973
“91. Summons to produce document or other thing.— (1) Whenever any Court or any officer in charge of a police station considers that the production of any document or other thing is necessary or desirable for the purposes of any investigation, inquiry, trial or other proceeding under this Code by or before such Court or officer, such Court may issue a summons, or such officer a written order, to the person in whose possession or power such document or thing is believed to be, requiring him to attend and produce it, or to produce it, at the time and place stated in the summons or order.
(2) Any person required under this section merely to produce a document or other thing shall be deemed to have complied with the requisition if he causes such document or thing to be produced instead of attending personally to produce the same.
(3) Nothing in this section shall be deemed— (a) to affect sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), or the Bankers’ Books Evidence Act, 1891 (13 of 1891), or (b) to apply to a letter, postcard, telegram or other document or any parcel or thing in the custody of the postal or telegraph authority.”
Sec. 349 of the Code of Criminal Procedure, 1973
“349. Imprisonment or committal of person refusing to answer or produce document.—If any witness or person called to produce a document or thing before a Criminal Court refuses to answer such questions as are put to him or to produce any document or thing in his possession or power which the Court requires him to produce, and does not, after a reasonable opportunity has been given to him so to do, offer any reasonable excuse for such refusal, such Court may, for reasons to be recorded in writing, sentence him to simple imprisonment, or by warrant under the hand of the Presiding Magistrate or Judge commit him to the custody of an officer of the Court for any term not exceeding seven days, unless in the meantime, such person consents to be examined and to answer, or to produce the document or thing and in the event of his persisting in his refusal, he may be dealt with according to the provisions of section 345 or section 346.”
The High Court of Rajasthan in Paras Jain v. State of Rajasthan, 2015 SCC OnLine Raj 8331, 2016 (2) RLW 945 (Raj), referring to Anvar PV, it is held as under:
“Relevant portion of sub-sec. (1) of Sec. 91 Cr.P.C. provides that whenever any Court considers that the production of any document is necessary or desirable for the purposes of any trial under the Code by or before such Court, such Court may issue a summons to the person in whose possession or power such document is believed to be, requiring him to attend and produce it or to produce it, at the time and place stated in the summons. Thus, a wide discretion has been conferred on the Court enabling it during the course of trial to issue summons to a person in whose possession or power a document is believed to be requiring him to produce before it, if the Court considers that the production of such document is necessary or desirable for the purposes of such trial. Such power can be exercised by the Court at any stage of the proceedings before judgment is delivered and the Court must exercise the power if the production of such document is necessary or desirable for the proper decision in the case. It cannot be disputed that such summons can also be issued to the complainant/ informer/ victim of the case on whose instance the FIR was registered. In my considered view when under this provision Court has been empowered to issue summons for the producment of document, there can be no bar for the Court to permit a document to be taken on record if it is already before it and the Court finds that it is necessary for the proper disposal of the case irrespective of the fact that it was not filed along with the charge-sheet. I am of the further view that it is the duty of the Court to take all steps necessary for the production of such a document before it.”(quoted in Arjun Panditrao.)
Is Notary Attested POA Sufficient for Registration? Yes.
Saji Koduvath, Advocate, Kottayam.
Introspection.
Sec. 33 of the Registration Act states that the ‘power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar’ is necessary for presenting the document for registration ‘if the principal at the time of executing the power-of-attorney resides in any part of India’.
Sec. 33 of the Registration Act will NOT be attracted if the the power of attorney himself executes the document; and Sec. 33 will be attracted only when the document is “executed” by one (including a power of attorney) and “presented” through another holding “power of attorney”.
Document can be “Presented” by Purchaseror Donee also
It is noteworthy that the document can be presented by the purchaser/vendee or donee also, as Sec. 32 directs that the document can be presented by “some person executing or claiming under the same“.
S. 33 Rgn. Act will NOT attract if PoA himself Executes the Document
It is so laid down by our Apex Court in Amar Nath v. Gian Chand, 2022-2 Mad LJ 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96, in the following words-
“24. The words “executed and authenticatedin manner hereinafter mentioned” in Section 32(c) would mean the procedure specified in Section 33. This is clear from the opening words of Section 33 which reads “for the purposes of Section 32, the following power of attorney shall alone be recognised”. Section 32 refers to documentspresented for registration by a holder of “power of attorney” in clause (c) and it therefore follows that the procedure specified under Section 33 would be attracted where a document is presented by a person holding “powers of attorney” of the persons mentioned in clause (a) of Section 32.
25. The aforesaid position makes it explicitly clear that Section 32 of the Act requires the documents sought to be registered, to be presented, inter alia by the person executing it. In other words, the said expression requires presence of the actual person executing the document. The basic principle underlying this provision of the Act is to get before the Sub-Registrar the actual executant who, in fact, executes the document in question. In fact, the ratio of the decision in Ram Gopal [AIR 1960 Punj 226] has laid down a similar proposition on the conjoint reading of Section 32 and Section 33 of the Act and after referring to all the judgments noted hereinbefore. Same view has been expressed earlier by the Bombay High Court in Ratilal Nathubhai v. Rasiklal Maganlal [AIR 1950 Bom 326].
26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32(a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person holds a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32(a) to present it for registration and get it registered.”
Note: In the split verdict in Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J., referred the earlier decision Amar Nath v. Gian Chand, Mad LJ 2022-2 69, 2022-2 SCALE 521, 2022-2 RCR(Civil) 96, analysing the same as under:
“This Court … held that a power of attorney holder, while executing a sale deed, need not produce the original document conferring power of attorney. That a sale would not be liable to be disturbed solely on the ground that the power of attorney forming the basis of such sale was not produced before the Sub-Registrar at the time of registration.”
Production of PoA Not Essential for Proving Sale Deed Executed through PoA
In Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney. The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:
“18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”
Presumption on Power of Attorney Authenticated by a Notary Public, or any Court, etc.
Section 85 of the Indian Evidence Act, 1872 gives ‘presumption’ on a power of attorney as given under:
“85. Presumption as to powers-of-attorney.—The Court shall presume that every document purporting to be a power-of-attorney, and to have been executed before, and authenticated by, a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government, was so executed and authenticated.”
Power of Attorney is to be construed strictly by Court
In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held that ordinarily, a Power of Attorney is to be construed strictly by Court.
Presumption of Correctness Attached to a Registered Deed
In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:
“18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”
BV Nagaratna, J. referred the following decisions-
Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
Chottey Lal v. The Collector of Moradabad, AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).
An irrevocable power of attorney can be revoked in the following circumstances –
When violates the express or implied directions.
Does detrimental acts that injure principal
Goes beyond the power that amounts violation of the express or implied directions
If the power of attorney is a registered one, it is necessary to register the cancellation document (apart from informing the cancellation to the agent).
Rajni Tandon v. Dulal Ranjan Ghosh Dastidar
The Supreme Court has already elucidated the matter in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, as under:
“26. It is important to bear in mind that one of the categories of persons who are eligible to present documents before the registration office in terms of Section 32 of the Act is the “person executing” the document. The expression “person executing” used in Section 32 of the Act, can only refer to the person who actually signs or marks the document in token of execution, whether for himself or on behalf of some other person. Thus, “person executing” as used in Section 32 (a) of the Act signifies the person actually executing the document and includes a principal who executes by means of an agent. Where a person hold a power of attorney which authorises him to execute a document as agent for someone else, and he executes a document under the terms of the power of attorney, he is, so far as the registration office is concerned, the actual executant of the document and is entitled under Section 32 (a) to present it for registration and get it registered.
33. Where a deed is executed by an agent for a principal and the same agent signs, appears and presents the deed or admits execution before the Registering Officer, that is not a case of presentation under Section 32 (c) of the Act. As mentioned earlier the provisions of Section 33 will come into play only in cases where presentation is in terms of Section 32 (c) of the Act. In other words, only in cases where the person(s) signing the document cannot present the document before the registering officer and gives a power of attorney to another to present the document that the provisions of Section 33 get attracted. It is only in such a case, that the said power of attorney has to be necessarily executed and authenticated in the manner provided under Section 33 (1) (a) of the Act.”
The Apex Court upheld the view in the following decisions, placed by the appellants:
Motilal v. Ganga Bai [AIR 1915 Nag 18],
Gopeswar Pyne v. Hem Chandra Bose [AIR 1920 Cal 316],
Mt. Aisha Bibi v. Chhajju Mal & Ors. [AIR 1924 All 148],
Sultan Ahmad Khan v. Sirajul Haque [AIR 1938 All 170],
Ram Gopal v. L. Mohan Lal [AIR 1960 Punj 226]
Sami (Goswami) Malti Vahuji Maharaj v. Purushottam Lal Poddar [AIR 1984 Cal 297].
The Apex Court observed that the interpretation of Section 32 and 33 in the following decisions was not the correct legal position.
D. Sardar Singh v. Seth Pissumal Harbhagwandas Bankers [AIR 1958 AP 107]
Abdus Samad vs. Majitan Bibi [AIR 1961 Cal 540].
The Supreme Court decision in Rajni Tandon v. Dulal Ranjan Ghosh Dastidar, (2009) 14 SCC 782, is followed in the cases below:
Beladevi Vs. Ramjanak, 2019-4 CGLJ 105;
C. P. Ashok Kumar Vs. Sub Registrar Thrithala, 2018-4 KerLT 1186;
Matadin Surajmal Rajoria Vs. Ramdwar Mahavir Pande, 2018-5 AIRBomR 739;
Dr. Ashok Mishra Vs. Ram Niwas, 2018-10 ADJ 297, 2019-142 RD 394;
Asset. Reconstruction Company (India) Limited Vs. The Inspector General Of Registration, AIR 2016 Mad 123;
In State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, our Apex Court made clear the Concepts on a Power of Attorney. They are the following –
It is governed by Chapter X of the Contract Act. It is also governed by the the Powers-of-Attorney Act.
A power of attorney is, as is well known, a document of convenience.
By a power of attorney, an agent is formally appointed to act for the principal.
It is an authority upon another person; but, subject to the limitations contained in the said deed.
The agent derives a right to use the principal’s name. The donee (agent) only acts in place of the donor .
All acts, deeds and things done by done by the agent shall be read as if done by the donor.
Except in cases where power of attorney is coupled with interest, it is revocable.
The agent cannot use the power of attorney for his own benefit.
He acts in a fiduciary capacity.
Any act of infidelity or breach of trust is a matter between the donor and the donee.
State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, laid down as under”
“A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”
Should a Power of Attorney be Compulsorily Registered
Those Power of Attorneys that fall under clause (b) of Sec. 17(1) Registration Act alone requires registration. Sec. 17(1)(b) reads as under:
“(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property”
Power of Attorney “coupled with interest”
A Power of Attorney that is “coupled with interest” requires registration.
E.g., if the power of attorney is issued by the owner after obtaining entire sale consideration from the holder of power of attorney, and if (in fact) it set-forth a “sale of property”, it falls under the category ‘power of attorney coupled with interest’. (See as to ‘General-Power-of-Attorney-sale’: Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656).
Kerala Amendment to Sec. 17(1)(g)
Registration Act, Kerala Amendment, Sec. 17(1)(g), requires registration for development, transfer etc. relating to immovable property, except for exempted categories. (It is introduced because it is not a general rule that all power of attorneys for ‘transfer‘ must have been registered.) Sec. 17(1)(g) reads as under:
(g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.
See: Cherryl Ann Joy v. Sub Registrar, Udumbanchola, Idukki District, ILR 2018-3 Ker 540.
But, in Lachchhiram v. Imrati, 2017-2 RN 117, it is held that for registration of a deed, registered power of attorney is needed (relying on – obiter – Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa, (2003)10 SCC 390).
Foot Notes
Sec. 32 and 33 of the Registration Act
“32. Persons to present documents for registration—
Except in the cases mentioned in [Sections 31, 88 and 89], every document to be registered under this Act, whether such registration be compulsory or optional, shall be presented at the proper registration office,—
(a) by some person executing or claiming under the same, or in the case of a copy of a decree or order, claiming under the decree or order, or
(b) by the representative or assign of such person, or
(c) by the agent of such person, representative or assign, duly authorized by power-of-attorney executed and authenticated in manner hereinafter mentioned.
33. Power-of-attorney recognizable for purposes of Section 32 —
(1) For the purposes of Section 32, the following powers-of- attorney shall alone be recognized, namely—
(a) if the principal at the time of executing the power-of-attorney resides in any part of India in which this Act is for the time being in force, a power-of-attorney executed before and authenticated by the Registrar or Sub-Registrar within whose district or sub-district the principal resides;
(b) if the principal at the time aforesaid resides in any part of India in which this Act is not in force, a power-of-attorney executed before and authenticated by any Magistrate;
(c) if the principal at the time aforesaid does not reside in [India], a power-of attorney executed before and authenticated by a Notary Public, or any Court, Judge, Magistrate, Indian Consul or Vice-Consul, or representative of the Central Government:
Provided that the following persons shall not be required to attend at any registration-office or Court for the purpose of executing any such power-of-attorney as is mentioned in clauses (a) and (b) of this Section, namely—
(i) persons who by reason of bodily infirmity are unable without risk or serious inconvenience so to attend:
(ii) persons who are in jail under civil or criminal process; and
(iii) persons exempt by law from personal appearance in the Court.
[Explanation.—In this sub-section, “India” means India, as defined in clause (28) of Section 3 of the General Clauses Act, 1897 (10 of 1897)].
(2) In the case of every such person the Registrar or Sub-Registrar or Magistrate, as the case may be, if satisfied that the power-of- attorney has been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his personal attendance at the office or Court aforesaid.
(3) To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar or Magistrate may either himself go to the house of the person purporting to be the principal, or to the jail in which he is confined, and examine him, or issue a commission for his examination.
(4) Any power-of-attorney mentioned in this section may be proved by the production of it without further proof when it purports on the face of it to have been executed before and authenticated by the person or Court hereinbefore mentioned in that behalf.”
Sec. 13 of the Civil Procedure Code lays down the provision as to the applicability of the foreign judgment. From Sec. 13 of the CPC it is clear –
For the foreign judgment to be ‘conclusive’, it must have been
passed by a court having competent jurisdiction,
given the verdict on merits and
observing natural justice.
Sec. 13 reads as under:
“13. When foreign judgmentnot conclusive—A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the fact of the proceedings to be founded on an incorrect view of international law or a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.”
Competent Court– Decree ‘in accordance with the matrimonial law’
For accepting a foreign judgment as valid, it should have been passed by a ‘competent court’ according to S. 13(a). What is court of competent jurisdiction is not explained in the CPC. Our Apex Court held in Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, that the general rule is that the decree passed must have been ‘in accordance with the matrimonial law under which the parties are married’.
Court of Competent Jurisdiction– Three Exceptions
In Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, the Supreme Court laid down following three exceptions to the general rule that ‘decree passed must have been in accordance with the matrimonial law under which the parties are married’. They are –
(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above andcontests the claim which is based on a ground available under the matrimonial law under which the parties are married;
(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
In the light of S. 13 of the CPC, read with the observations of Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, even when a foreign divorce decree is granted by a forum, jurisdiction of which is not inaccordance with the provisions of the matrimonial law, it is accepted as valid in India, if the decree is passed on any one of the circumstances that invite the exemption (ii) or (iii).
Consented Decree – Non-compliance of Provisions of Matrimonial Law, Immaterial
In Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415, it is held by the Kerala High Court that when the parties to a marriage have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them, the divorce certification granted by the UAE Personal Status Court has to be recognised by the courts in India. (It is followed by the Kerala High Court in Rince Marin Ninan v. Registrar, Kerala Registration Of Marriage, 2022)
Consented Decree – Non-compliance of provisions of Matrimonial Law immaterial
In Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415, it is held by the Kerala High Court that when the parties to a marriage have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although thejurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them, the divorce certification granted by the UAE Personal Status Court has to be recognised by the courts in India. (It is followed by the Kerala High Court in Rince Marin Ninan v. Registrar, Kerala Registration Of Marriage, 2022)
PART – II
JURISDICTION OF FORUM IN ACCORDANCE WITH PROVISIONS OF MATRIMONIAL LAW
To determine whether the Foreign Court was a forum having jurisdiction ‘in accordance with the matrimonial law’ we have to look into the the ‘Marriage Laws’ applicable in India and the ‘Grounds’ stated therein for judicial actions.
Marriage Acts Applies to Christians
Following are the Marriage Acts that applies to Christians in India-
Indian Christian Marriage Act, 1872
Cochin Christian Civil Marriage Act, 1920
Special Marriage Act, 1954
The Foreign Marriage Act, 1969
Indian Christian Marriage Act, 1872
The Indian Christian Marriage Act, 1872 applies to ‘Indian Christians’. According to the definition of the Act ‘Indian Christians’ ‘includes the Christian descendants of natives of India converted to Christianity, as well as such converts’.
Law Applicable to Christians in Manipur and Erstwhile Travancore- Area of Kerala
The Indian Christian Marriage Act, 1872 is not applicable to Christians in erstwhile Travancore- area of Kerala, and Manipur, even now. The marriage law applicable to Cochin area of Kerala State was the Cochin Christian Civil Marriage Act, 1920.
In these parts customary rules and personal laws (e.g. Canon for Catholics) hold the field. The area of erstwhile Travancore, now stands included in Tamil Nadu is governed by the Indian Christian Marriage Act because of the enactment of the Indian Christian Marriage (Extension to Transferred Territory) Act, 1995.
Special Marriage Act, 1954
The Special Marriage Act, 1954 enables the citizens of India, irrespective of religion, to have their marriage registered for civil recognition. Marriages solemnized under this Act are not governed by their personal laws. The act lays down the qualifications for the parties to the marriage and it also deals with restitution of conjugal rights, Judicial separation, divorce, custody of children, etc.
It specifies that Indian Succession Act governs succession of the parties to the Special Marriage. But, Hindu Succession Act applies to Hindu, Buddhist, Sikh or Jain as regards the succession.
Sec. 15 of the Act allows to register marriages conducted in other forms. It reads as under:
“15. Registration of marriages celebrated in other forms―Any marriage celebrated, whether before or after the commencement of this Act, other than a marriage solemnized under the Special Marriage Act, 1872 (3 of 1872), or under this Act, may be registered under this Chapter by a Marriage Officer in the territories to which this Act extends if the following conditions are fulfilled, namely―
(a) a ceremony of marriage has been performed between the parties and they have .been living together as husband and wife ever since;
(b) neither party has at the time of registration more than one spouse living;
(c) neither party is an idiot or a lunatic at the time of registration;
(d) the parties have completed the age of twenty-one years at the time of registration;
(e) the parties are not within the degrees of prohibited relationship: Provided that in the case of a marriage celebrated before the commencement of this Act, this condition shall be subject to any law, custom or usage having the force of law governing each of them which permits of a marriage between the two; and
(f) the parties have been residing within the district of the Marriage Officer for a period of not less than thirty days immediately preceding the date on which the application is made to him for registration of the marriage.
Indian Divorce Act, 1869
It is noticeable that the matters relating to divorce, nullity of marriage, judicial separation, restitution of conjugal rights, etc. of the Christians, except those who had married under the Special Marriage Act, are governed under the Indian Divorce Act, 1869.
The Foreign Marriage Act, 1969
The Central Government appoints Marriage Officers in foreign countries under the Foreign Marriage Act, 1969. The Act provides for conditions and procedures relating to solemnization and registration of foreign marriages.
By virtue of Sec. 18 of the Foreign Marriage Act, succession to property, restitution of conjugal rights, judicial separation, determination of void and voidable marriages, legitimacy of children, divorce, various judicial proceedings, etc. of the parties married under the Foreign Marriage Act is governed under the respective provisions of the Special Marriage Act, 1954
Grounds for Dissolution under the Spl. Marriage Act(so alsoForeign Marriage Act, 1969)
27. Divorce—(1) Subject to the provisions of this Act and to the rules made thereunder, a petition for divorce may be presented to the district court either by the husband or the wife on the ground that the respondent—
(a) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or
(b) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(c) is undergoing a sentence of imprisonment for seven years or more for an offence as defined in the Indian Penal Code (45 of 1860); [***]
(d) has since the solemnization of the marriage treated the petitioner with cruelty; or
(e) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent.
Explanation.—In this clause,—
(a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia;
(b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the respondent, and whether or not it requires or is susceptible to medical treatment; or
(f) has been suffering from venereal disease in a communicable form]; or
(g) has [***] been suffering from leprosy, the disease not having been contacted from the petitioner; or
(h) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; [***]
Explanation.—In this sub-section,
the expression “desertion” means desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the wilful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly;] [***] [***]
(1A) A wife may also present a petition for divorce to the district court on the ground,—
(i) that her husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality;
(ii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898) (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards.]
(2) Subject to the provisions of this Act and to the rules made thereunder, either party to a marriage, whether solemnized before or after the commencement of the Special Marriage (Amendment) Act, 1970 (29 of 1970), may present a petition for divorce to the district court on the ground—
(i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or
(ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.
Grounds for Dissolution under the Indian Divorce Act
The grounds for dissolution of marriage are given in Section 10 of the Indian Divorce Act, 1869. It reads as under:
“10Grounds for dissolution of marriage.
(1) Any marriage solemnized, whether before or after the commencement* of the Indian Divorce (Amendment) Act, 2001, may, on a petition presented to the District Court either by the husband or the wife, be dissolved on the ground that since the solemnization of the marriage, the respondent
(i) has committed adultery; or
(ii) has ceased to be Christian by conversion to another religion; or
(iii) has been incurably of unsound mind for a continuous period of not less than two years immediately preceding the presentation of the petition; or
(iv) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from a virulent and incurable form of leprosy; or
(v) has, for a period of not less than two years immediately preceding the presentation of the petition, been suffering from venereal disease in a communicable form; or
(vi) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of the respondent if the respondent had been alive; or
(vii) has wilfully refused to consummate the marriage and the marriage has not therefore been consummated; or
(viii) has failed to comply with a decree for restitution of conjugal rights for a period of two years or upwards after the passing of the decree against the respondent; or
(ix) has deserted the petitioner for at least two years immediately preceding the presentation of the petition; or
(x) has treated the petitioner with such cruelty as to cause a reasonable apprehension in the mind of the petitioner that it would be harmful or injurious for the petitioner to live with the respondent.
(2) A wife may also present a petition for the dissolution of her marriage on the ground that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or bestiality.”
S.10A of the Divorce Act speaks as to dissolution of marriage by mutual consent. It reads as under:
“10A. Dissolution of marriage by mutual consent.
(1) Subject to the provisions of this Act and the rules made thereunder, a petition for dissolution of marriage may be presented to the District Court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Indian Divorce (Amendment) Act, 2001, on the ground that they have been living separately for a period of two years or more, that they have not been able to live together and they have mutually agreed that the marriage should be dissolved.
(2) On the motion of both the parties made not earlier than six months after the date of presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn by both the parties in the meantime, the Court shall, on being satisfied, after hearing the parties and making such inquiry, as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree declaring the marriage to be dissolved with effect from the date of decree.”
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Though ‘irretrievable brake-down of marriage’ is a ground for divorce in various other jurisdictions, it is not a ground in Hindu/Indian law. When a foreign courtgranted a decree of divorce on the ground of ‘irretrievable brake-down of marriage’, will it be accepted in India as a valid verdict?
The answer is No.
But, it is noteworthy that our Apex Court, in ABC v. XYZ (Neutral Citation: 2024 INSC 1033) Justice Vikram Nath and Justice Prasanna B. Varale, Dec. 19, 2024, held as under:
“Although irretrievable breakdown of marriage is not a statutory ground for divorce under the Hindu Marriage Act, this Court has, in appropriate cases, invoked its powers under Article 142 of the Constitution of India to grant relief where the marriage is beyond repair. In Naveen Kohli (Supra), this Court observed that when a marriage has irretrievably broken down, forcing the parties to remain together serves no purpose and only prolongs their misery.”
Section 13 of the CPC as interpreted by the Supreme Court
Section 13 of the CPC, an enabling provision that allows to accept a foreign decree passed by a ‘court of competent jurisdiction’, as interpreted by the Supreme Court in Y. Narasimharao v. Y. Venkata Lakshmi, 1991- 3 SCC 451, is to be looked into to see the law on this matter.
The general law is that the matrimonial reliefs are granted on a ground available under the matrimonial law under which the marriage of the parties was conducted. Section 13 of the CPC permits to accept a ‘foreign decree’ as valid, if –
(a) it has been pronounced by a court of competent jurisdiction;
(b) it has been given on the merits of the case;
(c) it is founded on correct view of law;
(d) the proceedings are not opposed to natural justice;
(e) it is not obtained by fraud; and
(f) it sustains a claim founded not on a breach of any law in force in India.
What is ‘court of competent jurisdiction’ stated in Sec. 13 is not made clear in the CPC. The Supreme Court, in Y. Narasimharao v. Y. Venkata Lakshmi, 1991- 3 SCC 451, “interpreted” ‘court of competent jurisdiction’, and carved out, for the first time, three exceptions to the strict general law that the matrimonial reliefs are granted only on grounds available under the matrimonial law under which the marriage of the parties was taken place. The three exceptions given in Y. Narasimharao v. Y. Venkata Lakshmi can be stated as under-
A foreign decree is valid, and a foreign court will be taken as a ‘court of competent jurisdiction’, if-
(i) the matrimonial (a) action is filed in the forum where the respondent resides and (b) relief is granted on a ground available in the matrimonial law under which the parties are married; or
(ii) both parties (a) voluntarily and unconditionally subjected themselves to the jurisdiction of that court and (b) contests the claim which is based on a ground available under the matrimonial law; or
(iii) the respondent consents to the grant of the relief.
Therefore, unless the respondent consents to divorce by a foreign court, (for a valid decree) it should necessarily be based on a ground available under the matrimonial law under which the marriage of the parties was taken place.
In other words, if the foreign decree on a matrimonial relief has been passed on consent of the respondent, it will be taken as valid (even if it is not based on a ground available under the matrimonial law under which the marriage of the parties was taken place).
Irretrievable Brake-Down of MarriageNOT a Ground in Hindu/Indian law
As shown above, irretrievable brake-down of marriage is not a ground in Hindu/Indian law. In several cases (in which foreign matrimonial decrees were considered) it was enquired-
(i) whether the relief was granted by the foreign court on a ‘ground available in the matrimonial law under which the parties are married’ as held in Y. Narasimharao v. Y. Venkata Lakshmi, 1991-3 SCC 451 and
(ii) whether irretrievable brake-down of marriage (a ground in various other jurisdictions), by itself, was a ground in our law.
The following are some of those cases-
Arunima Naveen Takiar v. Naveen Takiar, RCR(Civil) 2019-1 907, 2019-2 AIR BomR 271, 2019-1 DMC 660,
Dinesh Singh Thakur v. Sonal Thakur, AIR 2018 SC 2094;
Shilpa Sachdev v. Anand Sachdev, 2017-5 AIR BomR 607,
Dorothy Thomas v. Rex Arul, 2011-6 Mad LJ 475, 2012-1 RCR(Civil) 451.
In G. N. Subramanya Upadhyaya v. Soumya M. Hegde, 2017-4 SCALE 519, it is pointed out that merely because of the irretrievable brake-down of marriage, divorce cannot be granted. In K. Srinivas Rao v. D. A. Deepa, AIR 2013 SC 2176, it is observed as under:
Irretrievable brake-down of marriage is not a ground for divorce under the Hindu Marriage Act, 1955. But, where marriage is beyond repair on account of bitterness created by the acts of the husband or the wife or of both, the courts have always taken irretrievable brake-down of marriage as a very weighty circumstance amongst others necessitating severance of marital tie. A marriage which is dead for all purposes cannot be revived by the court’s verdict, if the parties are not willing. This is because marriage involves human sentiments and emotions and if they are dried-up there is hardly any chance of their springing back to life on account of artificial reunion created by the court’s decree.
In Poonam v. Surender Kumar, 2021-4 RCR (Civil) 528: 2021-4 Civ CC 427, a decree of divorce dissolving the marriage between the parties was passed by the Apex Court, on the ground of irretrievable brake-down of marriage, in exercise of powers under Sec. 142 of the Constitution of India, in the following set of facts:
“On the plea of the learned counsel for the appellant, on instructions, the limited question is whether this is a fit case for grant of divorce on account of irretrievable brake-down of marriage, since even the mutual consent divorce is not acceptable to the respondent. If we look to the facts of the case as set out aforesaid, there is little doubt, and even for that matter the respondent who appeared before us could not dispute, that the marriage did not take off from the very beginning. The marriage took place on 9/6/2002 and on 29/6/2002, the case was registered under Sec. 498-A read with Sec. 406, IPC alleging that the appellant was not being permitted to enter the house on account of her inability to satisfy the dowry demands. The divorce petition was filed on 9/9/2003. If The parties have not been able to subserve the very objective of marriage of companionship for each other from the very inception and have been living apart for more than 19 years, we are of the view that if this is not an irretrievable brake-down of marriage then what would be the situation of that kind!”
1. Indian Law will accept a ‘foreign decree’ as valid, if only-
(a) it has been pronounced by a court of competent jurisdiction;
(b) it has been given on themerits of the case;
(c) it is founded oncorrect view of law;
(d) the proceedings are not opposed to natural justice;
(e) it is not obtained by fraud; and
(f) it sustains a claim founded not on abreach of any law in force in India.
2. A foreign decree is valid and a foreign court is competent if-
(i) the matrimonial
(a)action is filed in the forum where therespondent residesand
(b)the relief is granted on a ground available in the matrimonial lawunder which the parties are married;
or
(ii) both parties
(a) voluntarily and unconditionally subjected themselves to the jurisdiction of that court and
(b)contests the claim which is based on a ground available under the matrimonial lawunder which the parties are married;
or
(iii)the respondent consentsto the grant of the relief.
3. A valid foreign decree need not be re-validated or revived in India.
4. If Consented Foreign Decree – Non-compliance of provisions of matrimonial law, immaterial.
Introduction
Validity of a Foreign Divorce Decree depends upon the following eventualities:
Whether the Divorce Decree is passed on a-
Consented (Mutual or otherwise) proceedings,
Contested proceedings or
Ex-parte proceedings.
The validity of a Foreign Divorce Decree may also depend upon the following status of the parties:
Indian Citizens
Foreign Citizens who were formerly Indian citizens.
Persons who have Dual Citizenship.
The validity may still further depend upon-
the matrimonial law under which the parties were married and
the place where the marriage took place; that is, whether in India (according to the law in force in India).
Section 13 of the Civil Procedure Code
Section 13 of the CPC enumerates the conditions – ‘when foreign judgment not conclusive’. Section 13 reads as under:
“13. When foreign judgmentnot conclusive—A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except—
(a) where it has not been pronounced by a court of competent jurisdiction;
(b) where it has not been given on the merits of the case;
(c) where it appears on the fact of the proceedings to be founded on an incorrect view of international lawor a refusal to recognise the law of India in cases in which such law is applicable;
(d) where the proceedings in which the judgment was obtained are opposed to natural justice;
(e) where it has been obtained by fraud;
(f) where it sustains a claim founded on a breach of any law in force in India.”
Section 14 of the Civil Procedure Code
Section 14 states that when the Indian Courts would consider the Foreign Judgment to be conclusive. Section 14 reads as under:
14. Presumption as to foreign judgments.– The Court shall presume, upon the production of any document purporting to be a certified copy of a foreign judgment, that such judgment was pronounced by a Court to competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.
Execution of a Foreign Decree
Section 44-A provides for execution of a foreign divorce decree. It reads as under:
44A. Execution of Decrees Passed by Courts in Reciprocating Territory–
(1) Where a certified copy of a decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.
(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.
(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.
Explanation 1- “Reciprocating territory” means any country or territory outside India which the Central Government may, by notification in the Official Gazette, declare to be a reciprocating territory for the purposes of this section; and superior Courts, with reference to any such territory, means such Courts as may be specified in the said notification.
Explanation 2- “Decree” with reference to a superior Court means any decree or judgment of such Court under which a sum of money is payable, not being a sum payable in respect of taxes or other charges of a like nature or in respect of a fine or other penalty, but shall in no case include an arbitration award, even if such an award is enforceable as a decree or judgment.
Section 41 and 44 of the Indian Evidence Act
Section 41 of the Indian Evidence Act provides that a final judgment of a competent court in the exercise of matrimonial jurisdiction is conclusive proof. But the judgment has to be of a ‘competent Court’, that is, a court having jurisdiction over the parties and the subject matter. Section 44 of the Evidence Act allows to show that the judgment which is relevant under section 41 “was delivered by a court not competent to deliver it, or was obtained by fraud or collusion“.
In Satyav.Teja Singh, AIR1975 SC 105, (1975) 1 SCC 120, after referring the above provisions, it was observed that it was wrong to think that judgments in rem are inviolable; and that fraud, in any case bearing on jurisdictional facts, vitiates all judicial acts whether in rem or in personam. In Satyav.Teja Singh, the foreign decree was declared invalid by the Supreme Court of India, for the husband-respondent had instituted the proceeding on a false representation that he was a bona fide resident of that State.
‘Competent Jurisdiction’ in Sec. 13 CPC Contemplates that in ‘international sense‘
In R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Majid (AIR 1963 SC 1) our Apex Court held as under:
“A judgment of a foreign court to be conclusive between the parties must be a judgment pronounced by a court of competent jurisdiction and competence contemplated by section 13 of the Code of Civil Procedure is in an international sense and not merely by the law of foreign State in which the Court delivering judgment functions”.
Basic Rule – Divorce Must be as per Law under which One Married – Three Exceptions
The basic rule as to acceptance of foreign matrimonial-judgment is that the relief must have been granted in accordance with the matrimonial law under which the parties are married. Sec. 13 CPC stipulates that acceptance of a foreign judgment is depended upon the eventuality – whether it is pronounced by a court of competent jurisdiction. What is ‘court of competent jurisdiction‘ is not made clear in the CPC.
The Supreme Court, in Y. Narasimharao v. Y. Venkata Lakshmi, 1991- 3 SCC 451, “interpreted” ‘court of competent jurisdiction‘, and carved out, for the first time, three exceptions to the strict general law that the matrimonial reliefs are granted only on a ground available under the matrimonial law under which the parties married.
In Y. Narasimharao v. Y. Venkata Lakshmi, the husband filed a petition for dissolution of marriage in the Circuit of Missouri, USA. The wife sent her reply from India under protest. The Circuit Court passed a decree for dissolution of marriage in the absence of the wife. Our Apex Court found the foreign judgment unacceptable for the following reasons:
The foreign decree was without jurisdiction according to the (Hindu Marriage) Act as neither the marriage was celebrated nor the parties last resided together nor the respondent resided within the jurisdiction of that Court.
The decree was passed on a ground which was not available under the Act.
The falsely stated that he was the resident of the Missouri State, and was not domiciled in that State.
He had made a false averment that the wife had refused to continue to stay with him in the State of Missouri where she had never been.
It is further held in Y. Narasimharao v. Y. Venkata Lakshmi as under:
“Clause (a) of Section 13 states that a foreign judgment shall not be recognised if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognises as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court.”
” … From the aforesaid discussion the following rule can be deduced for recognising foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married. The exceptions to this rule may be as follows:
(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married;
(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above andcontests the claim which is based on a ground available under the matrimonial law under which the parties are married;
(iii) where the respondent consentsto the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties.
In the light of S. 13 of the CPC, read with the observations of Y. Narasimharao v. Y. Venkatalexmi, 1991-3 SCC 451, even when a foreign divorce decree is granted by a forum, jurisdiction of which is not inaccordance with the provisions of the matrimonial law, it is accepted as valid in India, if the decree is passed on any one of the circumstances that invite the exemption (ii) or (iii).
Consented Decree – Non-compliance of Provisions of Matrimonial Law, Immaterial
In Augustine Kalathil Mathew v. The Marriage Officer, 2016-4 Ker LT 415, it is held by the Kerala High Court that when the parties to a marriage have voluntarily and effectively submitted to the jurisdiction of the UAE Personal Status Court and consented to grant divorce to each other, although the jurisdiction of the said forum is not in accordance with the provisions of the matrimonial law applicable to them, the divorce certification granted by the UAE Personal Status Court has to be recognised by the courts in India. (It is followed by the Kerala High Court in Rince Marin Ninan v. Registrar, Kerala Registration Of Marriage, 2022)
Section 1 of the Hindu Marriage Act, 1955 reads as under:
“1. Short title and extent—(1) This Act may be called the Hindu Marriage Act, 1955.
(2) It extends to the whole of India except the State of Jammu and Kashmir, and applies also to Hindus domiciled in the territories to which this Act extendswho are outside the said territories.”
From the above, it is clear that for the Hindus residing or settled abroad are continued to be governed by the Hindu Marriage Act, 1955. Therefore, the divorce granted by a foreign Court will not be binding on them so far as their rights and liabilities in India are concerned. In that strict view, if only the divorce is granted to a Hindu by a foreign court applying the Hindu law as the matrimonial law (under which the parties are married), the divorce of that court will be accepted in India.
Bombay HC heldDubai Court not Competent, for wife was not resident of Dubai
In Shilpa Sachdev v. Shri. Anand Sachdev, 2017-5 AIR Bom R 607, RCR (Civil) 2017-4 258, Hindu LR 2017-3 178, All MR 2018-5 628, the Bombay High Court, applying the principles laid down in Y. Narasimha Rao v. Y. Venkata Lakshmi, 1991- 3 SCC 451, held that the Dubai Court was not a competent foreign Court-
pleadings do not indicate that the respondent-husband had invoked the jurisdiction of Dubai Court claiming that the petitioner wife is a resident of or domicile of Dubai.
pleadings do not state that the petitioner-wife had abandoned her domicile of birth by making Dubai her permanent abode.
no averments that the petitioner-wife being a permanent resident of Dubai, the Dubai Court was competent to entertain the petition for divorce.
the judgment of Dubai Court also does not state that the wife was domicile of Dubai or that she had an intention to continue her stay in Dubai.
on the contrary, the records reveal that the wife had returned to India on 21st June, 2008 and since then she is permanently domiciled in India.
there are no averments in the Law Suit filed before the Dubai Court that the respondent-husband had made Dubai as his permanent abode.
both the spouses are Indian citizens and in the absence of the averments as well as material to endorse the claim of being domicile of Dubai, the presumption under section14 of the Code of Civil Procedure stands dislodged.
It was further held that the Dubai court had not considered the real controversy between the parties and hence the said Dubai court judgment cannot be said to be a judgment on merits of the case. The court pointed out the following:
Hindu Marriage Act does not recognise a ground of irretrievable breakdown of marriage.
Dubai Court indicates that the divorce was granted on the ground of desertion.
Under Section 13(1)(ib) of the Hindu marriage Act, marriage can be dissolved by a decree of divorce on the ground that the spouse has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition.
Under the Hindu Marriage Act, factum of separation and animus to desert or intention to bring cohabitation to end are essential requisites of desertion. It is evident that the Dubai Court has not considered the aspect of animus deserendi and has granted divorce solely on the ground that the parties were living separately for a period of more than two years.
In International Woolen Mills v. Standard Wool, AIR 2001 SC 2134; (2001) 5 SCC 265, our Apex Court has held that the decision of a Court given ex-parte on the basis of the plaintiff’s plea and the documents, without going into the controversy between the parties, would not be a judgment on the merits of the case.
The Apex Court, in Surinder Kaur Sandhu v. Harbax Singh Sandhu, 1984-3 SCC 698, stressed the need to protect the wife against the burden of litigating in inconvenient forum. Hence, it was necessary to ensure that the petitioner was in a position to remain present before the court at Dubai and contest the proceedings effectively. The judgment of the Dubai Court did not indicate that the respondent herein had ensured effective contest by making all necessary provisions for the petitioner to defend the petition, including the cost of travel, residence, and litigation.
In Sondur Gopal v. Sondur Rajini, AIR 2013 SC 2678: 2013-7 SCC 426, referring Section 1(2) Hindu Marriage Act it has been laid down-
“14. Bearing in mind the principle aforesaid, when we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India.
19. Section 2(1) provides for the application of the Act. The same reads as follows :-
2. Application of Act.- (1) This Act applies –
to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
to any person who is a Buddhist, Jaina or Sikh by religion, and
to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.”
20. This section contemplates application of the Act to Hindu by religion in any of its forms or Hindu within the extended meaning i.e. Buddhist, Jaina or Sikh and, in fact, applies to all such persons domiciled in the country who are not Muslims, Christians, Parsi or Jew, unless it is proved that such persons are not governed by the Act under any custom or usage. Therefore, we are of the opinion that Section 2 will apply to Hindus when the Act extends to that area in terms of Section 1 of the Act. Therefore, in our considered opinion, the Act will apply to Hindu outside the territory of India only if such a Hindu is domiciled in the territory of India.”
28. … For all these reasons, we are of the opinion that both the husband and wife are domicile of India and, hence, shall be covered by the provisions of the Hindu Marriage Act, 1955. As on fact, we have found that both the husband and wife are domicile of India, and the Act will apply to them, other contentions raised on behalf of the parties, are rendered academic and we refrain ourselves to answer those.
29. In the result, we do not find any merit in the appeal and it is dismissed accordingly but without any order as to costs.
30. In view of our decision in Civil Appeal No. 4629 of 2005 (Sondur Gopal v. Sondur Rajini) holding that the petition filed by the appellant for judicial separation and custody of the children is maintainable, we are of the opinion that the writ petition filed by the respondent for somewhat similar relief is rendered infructuous. On this ground alone, we allow this appeal and dismiss the writ petition filed by the respondent.”
It is the unique characteristic of Indian Constitution that the Government in India protects all religions and the religious practices. Unlike other secular countries like United States, which follow the principle of ‘non-interference in the matters of religion’, the secular Government in India is destined to deal with all religions equally and in a neutral manner. Yet, the Government in India will never be openly or virtually religious.
The framers of the Constitution of India positioned the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India.
Shirur Mutt and Durgah Committee – Two important Decisions on Art. 25 and 26
Several enactments passed in India, pertaining to the administration of property owned by predominant religious bodies, were challenged in courts alleging that they violated the fundamental rights guaranteed in Article 25 and 26 of the Constitution.
Following are the two important decisions of our Apex Court that articulated and verbalized the law on Article 25 and 26 of the Constitution of India:
(i) The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) – Seven Judge Bench – MC Mahajan, CJ, BK Mukherjea, , SR Das, Vivian Bose, Ghulam Hasan, NH Bhagwati, TL Venkatarama Aiyyar.
(ii) Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402). Five Judge Bench – Gajendragadkar, CJ., Sarkar, Das Gupta, Rajagopala Ayyangar, KN Wanchoo.
Article 25 reads as under:
“25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
Article 26 reads as under:
“26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
Art. 25 and 26 Allows Enactment of Laws Relating to ‘Secular’ Matters
Article 25 speaks about making law on ‘secular activity which may be associated with religious practice‘. Article 26 says as to ‘administer such property in accordance with law‘.
Article 26 proclaims, inter alia, about freedom to manage religious affairs. The principles underlying these provisions come for consideration when legislature makes law as regards the property that has been acquired, possessed or owned by religious bodies.
Doctrine of Essential Religious Practice
It is clear from the words in clause (d) of Article 26 (‘administer such property in accordance with law’) that the legislature is empowered to enact laws relating to ‘secular’ matters related to the administration of property owned by religious denominations. Laws made as above had been questioned in Shirur Mutt case and Durgah Committee case as detailed below. The doctrine of Essential Religious Practice is emerged from the analysis and synthesis of the Articles 26 and 26.
Shirur Mutt Case
In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) the Constitutional validity of the Madras Hindu Religious and Charitable Endowments Act, 1951 passed by the Madras Legislature was challenged. It was alleged that the Act interfered with the management of the Math and its affairs by the Mathadhipati, and it conflicted with the provisions fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations. It was held by our Apex Court, inter alia, as under-
(1) Protection under Article 25(1) of the Constitution extends to (all) religious ‘acts’.
(2) ‘Organizations’, ‘Sects, Sub-sects‘, etc. have the “right to manage its own affairs ” under Article 25(2).
(3)(a) “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” (Therefore the provisions of the concerned legislation was held to be bad.)
(3)(b) It is also held: Under Article 26(b), “a religious DENOMINATION or organization enjoys complete autonomyin the matter of deciding as to what RITES and CEREMONIESare essential according to the tenets of the religionthey hold and no outside authority has any jurisdiction to interfere with their decision in such matters”. (Therefore the provisions of the concerned legislation was held to be bad.)
Edict of the Shirur Mutt Case
Thus, Shirur Mutt brings-to-bear that when it is necessary to make a pronouncement as to what constitutes the ESSENTIAL PART OF A RELIGION or what RITES and CEREMONIES are essential according to the tenets of the religion, the same has to be ascertained–
(i) with reference to the Doctrines of that religion itself
AND
(ii) what the DENOMINATION HELD as essential, as regards the RITES and CEREMONIES, according to the Tenets of their religion.
Shirur Mutt – Not a Case from Dispute Within the Community
It is noteworthy that in this case it was not required to record a finding – what would be the stand of the court when a dispute came within the community or denomination as to the rites and ceremonies.
Durgah Committee Case
The tomb Khwaja Moinuddin Chisti at Ajmeer, known as Durgah Khwaja Saheb, gained high reputation. In 1955 the Parliament of India enacted the Durgah Khwaja Saheb Act, 1955, with regard to the administration of the tomb. Alleging violation of the fundamental rights, a Writ Petition under Art. 226 of the Constitution was filed. In Durgah Committee, Ajmer v. Syed Hussain Ali (1961) it was held by the Apex Court, inter alia, as under
The ‘essential practices‘ of RELIGION alone is considered.
The religious practices ‘that may have sprung from merely superstitious beliefs’ and ‘unessential accretions to religion’ may have to be carefully scrutinised by the COURT.
Edict of the Durgah Committee Decision
Durgah Committee brought forward application of consciousness of the Court in ‘essential religious practice’ of the RELIGION (without regard to what had been HELD by the DENOMINATION).
Durgah Committee paved a broad way, that gave wide discretion to court, when it propounded-
the court has to ‘scrutinise‘ whether religious practices are ‘sprung from merely superstitious beliefs’ or it is an ‘unessential accretions to religion’.
As indicated in Sabarimala case, the result of Durgah Committee decision is that the courts determine what are the secular practices or superstitious beliefs.
SeervaiTells –Observation in Dargah Committee Case, only an Obiter
From Dargah Committee decision, it may appear that the matters discussed in the decision – such as, what were the secular practices or what were superstitious beliefs – dwell within the domain of Courts. (That is, the yardstick would be the consciousness of Court.)
The observation in Dargah Committee case as to “…practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself” is criticised by Seervai in his treatise ‘Constitutional Law of India’ and observed that it was only an obiter as it was “wholly unnecessary to do so”. Seervai also pointed out that ‘the above obiter runs directly counter to the judgment of Mukherjea, J. in the Shirur Mutt Case and substitutes the view of the court for the view of the denomination on what is essentially a matter of religion’.
Seervai continued as under:
“The reference to superstitious practises is singularly unfortunate, for what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another. Thus, for nearly 300 years bequests for masses for the soul of a testator were held void as being for superstitious uses, till that view was overruled by the House of Lords in Bourne v. Keane. It is submitted that in dealing with the practise of religion protected by provisions like those contained in s. 116, Commonwealth of Australia Act or in Article 26(b) of our Constitution, it is necessary to bear in mind the observations of Latham C.J. quoted earlier, namely, that those provisions must be regarded as operating in relation to all aspects of religion, irrespective of varying opinions in the community as to the truth of a particular religious doctrine or the goodness of conduct prescribed by a particular religion or as to the propriety of any particular religious observance. The obiter of Gajendragadkar J. in the Durgah Committee case is also inconsistent with the observations of Mukherjea J. in Ratilal Gandhi Case,** that the decision in Jamshedji v. Soonabai afforded an indication of the measure of protection given by Article 26(b).” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)
**Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388.
It is noteworthy that in this case also, as in Shirur Mutt case, disputes that arose for consideration were not that arose within the community or denomination as regards the ‘rites and ceremonies’. It was a case that challenged an enactment passed by the Parliament of India.
All five Judges in Durgah Committee Changed their Views
All the five Judges in Durgah Committee (1961) changed their views, by two subsequent decisions, as to the ‘role of the court‘ in determining the essential religious practice; and observed that what was REGARDED by the COMMUNITY on essential religious practice was important.
In Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay, AIR 1962 SC 853, it was held by a Constitution Bench (Sinha, C. J. dissenting) of five Judges (consisted of three Judges in Dargah Committee Case – A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, JJ.)
that the protection is extend to acts done in pursuance of religion and it contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion; and
that what constitutes an essential part of a religion or religious practice has to be decided by the courtswith reference to the doctrine of a particular religion and include practices which are REGARDED by the COMMUNITYas a part of its religion.
In the Constitution Bench decision in Tilkayat Shri Govindlalji Maharaj v. St. of Rajasthan, 1963 AIR SC 1638, Justice Gajendragadkar himself (who authored Dargah Committee Case) and two other Judges in Dargah Committee Case, K.N. Wanchoo and K.C. Das Gupta, JJ. explained, as to the enquiry on integral part of religion held as under:
In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is REGARDED as such by the COMMUNITY following the religion or not.
This question (as to essential religious practice) will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the CONSCIENCE of the COMMUNITY and the tenets of its religion.
Gajendragadkar J. Explained Essential Religious Practices in Tilkayat
Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, in a subsequent decision, as to enquiry on integral part of religion in the Constitution Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (1963 AIR SC 1638) as under:
“In Shri Venkataramana Devara v. The State of Mysore, Venkatarama Aiyar, J., observed ‘that the matter of religion in Art. 26 (b) include even practices which are regarded by the community as parts of its religion’. It would thus be clear that religious practice to which Art. 25 (1) refers and affairs in matters of religion to which Art. 26 (b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by Art. 25(1) and Art. 26(b) extends to such practices. In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it isregarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of the Durgah Committee, Ajmer v. Syed Hussain Ali, and observed that in order that the practices in question should be treated as a part of religion they ‘must be -regarded by the said religion as its essential and integral part ; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 25 (1).”
The Tilkayat contended in this case that the idol of Shri Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties; and as such, the State Legislature was not competent to pass the Act.
Seervai criticised Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan also as under:
“In Tilkayat Shri Govindlalji v. Rajasthan Gajendragadkar J. again adverted to the rights under Arts. 25(1) and 26(b) and stated that if a matter was obviously secular and not religious, a Court would be justified in rejecting its claim to be a religious practise, as based on irrational considerations. It is submitted that the real question is whether the religious denomination looks upon it as an essential part of its religion, and however irrational it may appear to persons who do not share that religious belief, the view of the denomination must prevail, for, it is not open to a court to describe as irrational that which is a part of a denomination’s religion. The actual decision in the case, that the right to manage the property was a secular matter, is correct, but that is because, as pointed out by Mukherjea J., Art. 26(b) when contrasted with Art. 26(c) and (d) shows that matters of religious belief and practises are distinct and separate from the management of property of a religious denomination. The distinction between religious belief and practises which cannot be controlled, and the management of the property of a religious denomination which can be controlled to a limited extent, is recognised by the Article itself and must be enforced. Butthis distinction is not relevant to the question whether a religious practise is itself irrational or secular.” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)
View of Setalvad, the Attorney General who Argued the Case
MC Setalvad the all time powerful and brave Attorney-General, who led the argument for the Government in Shirur Mutt case laid stress upon clause (2)(a) of the Article 25 and contented that all secular activities, which may be associated with religion but did not really constitute an essential part of it, were amenable to State regulation. This argument was not accepted by the Apex Court, as shown above. But, in his auto-biography, ‘My Life, Law and Other Things’, Setalvad said about the Judgments in Shirur Mut case and Ratilal Panchand Gandhi Vs. State of Bombay, AIR 1954 SC 388, as under:
“The Judgments delivered by Justice Mukherjea, in these two cases were the first enunciation of the true scope of the provisions safeguarding religious liberty in the Indian Constitution. The exposition of the fundamental rights was comprehensive and precise, and completely in harmony with Indian practice and sentiment.
A later decision (Durgah Committee, Ajmer Vs. Syed Hussain Ali) has however sought to modify these principles . It has been said that “In order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; …… practices though religions may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. …… the protection under Art. 26 may have to be carefully scrutinised, in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other.“
Setalvad expressed his displeasure to the Durgah decision emphatically by raising the following question:
“Is the court study the religion and in its reforming zeal to weed out the superstitions from the essential practices, which are an integral part of Religion?
The distaste to Durgah decision is further demonstrated by Setalvad by giving the following answer to the above question, formulated by him, referring Mukherjea, as under:
“That would be contrary to what Justice Muhkerjea laid down: No outside authority had any right to say that those religious practices and performances were not an essential part of religion.”
Reflections of Justice Gajendragadkar in his Autobiography
It is interesting to note what was the reflection of Justice Gajendragadkar in his Autobiography, “To the Best of My Memory” as to the ‘role of the court‘ in determining the essential religious practice.
Justice Gajendragadkar pointed out that the finding was needed when disputes came as to religious practices and other matters, and said that ‘the finding of the court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion’.
Justice Gajendragadkar speaks as under:
“Similarly under Article 26, one of the questions which agitated public opinion was in respect of the meaning of the expression “matters of religion” under Article 26 (b) and “religious practices” under Article 25(2)(a). The earlier trend of the Supreme Court judgments was that religious practices and matters of religion have to be decided in the light of the opinion of the community and not by the court. This view meant that, in case a controversy arose between the parties in regard to the meaning of these two expressions, in deciding “whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not”. This view however was dissented from by the court in two decisions***in both of which I spoke for the unanimous court. We held that where a dispute arises as to what is the religious practice or what are matters of religion, the question will always have to be decided by the court. In doing so, the court may have to enquire whether the practice in question is religious in character and, if it is, can it be regarded as an integral and essential part of the religion? The finding of the court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.”
(ii) Tilkayat Shri Govindlalji Maharaj v, The State of Rajasthan, (1964) SCR 561,620,623.
Sabarimala Case Pointed out – Apparent Conflict is on Role of the Court
In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is pointed out that there is apparent conflict between the Shirur Mutt Case and Durgah Committee Case, on the ‘Role of the Court’.
It is observed –
Seven Judges bench of the Apex Court, in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt), held that what were essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
The subsequent Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali carved out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.
Both these decisions ‘seem to be in apparent conflict‘.
It requires consideration by a larger Bench.
End Notes
The law handed down by the Supreme Court in these two rulings are divergent, mainly, in three material parts. They are:
1. Whether protection is limited to practices that are ESSENTIAL and INTEGRAL part of religion (as held in Durgah)?
Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice of religion’ protect (all) ‘Acts Done in pursuance of a religion (as held in Shirur Mutt)?
2. When it is necessary to make a pronouncement as to what constitutes the essential part of a RELIGION, can it be scrutinised by the COURT so as to eschew what are sprung from merely superstitious beliefs’ or ‘unessential accretions to religion’ (as held in Durgah)?
Is it to be ascertained with reference to the doctrines of that religion itself. If it is necessary to to make a pronouncement as to what RITES and CEREMONIES are essential to a DENOMINATION, is it to be left to be determined with reference to the decisions (and practices) of that denomination itself (as held in Shirur Mutt)?
3. Whether the Protection is limited to ESSENTIAL and INTEGRAL part of ‘RELIGION’ in a strict sense (as held in Durgah)?
Whether it Extends to Religious practices of Denomination/Section, ‘Organization’, ‘Sect, Sub-sect‘, etc. (as held in Shirur Mutt)? Whether freedom of religion is guaranteed to all practices, except that which run counter to public order, health and morality? A Religion or any section thereof hold the fundamental right to‘manage its own affairs’ (which no legislature can take away) and enjoy complete autonomy (so that no outside authority has any jurisdiction).
The findings of the Apex Court, in Shirur Mutt and Durgah Committee cases, on Article 25 and 26, are as follows:
Durgah Committee (1961) Five Judge Bench. (Author: Gajendragadkar, J.)
Shirur Mutt (1954) Seven Judge Bench. (Author: BK Mukherjea, J.)
1. The rights protected are limited to practices of ‘RELIGION’ in a strict sense. “Unless such practices arefound to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“ “If these practises were found to be purely secular practices or mere practices sprung from‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“
Extends to religious DENOMINATION or a SECTION THEREOF, and includes ‘Organization‘, ‘Sects,Sub-sects‘, etc. “After Sankara, … religious teachers … founded the different sects and sub-sects …. Each one of such sects or sub-sects can certainly be called a religious denomination …” “The word ‘’denomination’ … mean … a religious sect or body ….” “If the tenets of any religious sect of the Hindus prescribe that offerings of food … be regarded as parts of religion. “A religious denomination or organization enjoys complete autonomy …” “There could be other affairs of .. denomination or a section thereof .. not matters of religion … guarantee given ….” [In Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay, AIR 1962 SC 853, “Community” is considered.]
2. COURTdetermines “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (That is, court determines and ‘carefully scrutinises’. That is, there is scope for the court to apply its own conscience.) Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638, authored by Gajendragadkar, J himself; (ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, Authored by BP Sinha.
It is found in this decision: “What are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself” (So observed in Sabarimala Reference decision). What rites and ceremonies are essential –No outside authority has any jurisdiction. “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” “A religious denomination or organization enjoys COMPLETE AUTONOMYin the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” “The ‘right to manage its own affairs in matters’ of religion “is a fundamental right which no legislature can take away“.
3. The rights protected are limited to such RELIGIOUS PRACTICES as are ESSENTIAL and INTEGRAL part of religion and no other. “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963 AIR SC 1638 [Held: The Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion];
(ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853 [Held: Include practices which are regarded by the COMMUNITY as a part of its religion].
The rights protected are extended to (ALL) ACTS DONE IN PURSUANCE OF A RELIGION. “Our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ‘practice of religion‘. “The contention in broad terms that all secular activities (which may be associated with religion) which do not really constitute an essential part of it, are amenable to State regulation cannot be supported.” “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).”
4. Not refer to public order, health and morality “Unless such practices are foundto constitute an ESSENTIAL and INTEGRAL part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised.”
(That is, emphasis is given to (i) ESSENTIAL and integral part of a RELIGION and (ii) assigns serious ROLE FOR THE COURT.)
Extends to (ALL) PRACTICES except when they do not run counter to public order, health and morality “What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” “There could be other affairs ofa religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”
••➧ Divergent opinion – Whether injunction can be issued against a true owner restraining him from evicting a ‘trespasser in settled possession’. ••➧ It is a sound principle – even the owner of the property can get back his possession only by resorting to due process of law. ••➧ In Kesar Bai v. Genda Lal, 2022-10 SCC 217, there was a (previous) Court Finding – the possession of the plaintiff (in the previous suit) was notlawful. Therefore, it was held – he is not entitled (in a subsequent suit) for injunction against the true owner. ••➧ It may likely to interpret this decision – the consequent natural outcome of this decision is that the defendant (rightful owner) need not go for a further suit, for recovery (under ‘due process’ doctrine). ••➧ There remains something unexplained.
Introduction.
Divergent views exist as to passing injunction in a case filed by a trespasser, against the ‘true owner’ of a property.
One view is that a trespasser in settled possession is entitled for injunction (even against the true owner), for, he cannot be evicted otherwise than on “due process of law” (by the true owner).
See: Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769 (Three Judge Bench decision).
The other view is that no injunction can be passed (against the true owner) in a suit filed by the person in unlawful possession (even if it is a settled possession).
See: Kesar Bai v. Genda Lal, 2022-10 SCC 217; Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (Two Judge Bench decisions).
Settled Possession Vs. Rights of True Owner
When the relief of injunction or possession sought for in a suit is negated, and the title of the defendant as the owner is upheld, can the defendant recover the property without instituting a (second) suit, i.e., otherwise than on “due process of law“?
Earlier consistent view (See: Aarti v. Aruna Gautham, 2015-1 RCR Civil – 160 (SC): Ranjan Gogoi and Rohinton Fali Nariman, JJ.) was that the true owner was not legally entitled to eject the trespasser by force (otherwise than on due process of law), especially when the trespasser is in settled possession.
Present view: In Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (Followed in:Kesar Bai v. Genda Lal, 2022-10 SCC 217) it is held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon (in the first round), and therefore the possession of the plaintiff is notlawful.
It is held in Prahladji Chenaji as under:
“Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession.“
Note: Kesar Bai v. Genda Lal, 2022-10 SCC 217 (M.R. Shah, Sudhanshu Dhulia, JJ.) calls for reading along with Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.).
View Prevailed in India – 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.
Even Rightful Ownerto 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 aidof 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 possessioncould 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.”
Injunction is Absolutely a Discretionary and Equitable Relief.
The Supreme Court in Premji Ratansey Shah v. Union of India, 1994-5 SCC 547, has held as under:
“Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.
5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner.”
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;
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).
If Title not Perfected by Adver. Posn, Can one eject a Trespasser After 6 Months
High Court 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.
RECENT VIEW OF THE APEX COURT
Plaintiff who Failed to get Declaration on Title is Not in “Lawful Possession”; he is not entitled for injunction against the true owner.
Once the defendant is found to be the Rightful Owner, the argument that he Can Resume Possession only by Adhering “Due Process of Law” is to be “Rejected Outright“.
In Prahladji Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258, our Apex Court made clear the scope of the issues arose for consideration as under:
“7. Therefore, the short question, which is posed for the consideration of this Court is, whether, in a case where the plaintiff has lost so far as the title is concerned and the defendant against whom the permanent injunction is sought is the true owner of the land, whether the plaintiff is entitled to a relief of permanent injunction against the true owner, more particularly, when the plaintiff has lost so far as the title is concerned and can thereafter the plaintiff be permitted to contend that despite the fact that the plaintiff has lost so far as the title is concerned, her possession be protected by way of injunction and that the true owner has to file a substantive suit claiming the possession.”
In this case the Court observed to the following effect:(See ‘End Notes’ below):
The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession (Anathula Sudhakar v. Buchi Reddy, (2008) 4 SCC 594. AIR 2008 SC 2033, relied on).
The plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be ‘to file a substantive suit to get back the possession is noticed only to be rejected outright‘.
In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
‘In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.’
Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
Kesar Bai v. Genda Lal – HC and SC Approached in Different Perspectives
Kesar Bai v. Genda Lal, 2022-10 SCC 217, arose from a suit seeking declaration of ownership and permanent injunction. The findings of the High Court were the following:
the plea of ownership claimed by the plaintiff based on a sale deed and the plea of adverse possession were contrary to each other;
the plaintiffs could not have been permitted to take both the pleas at the same time;
but, in view of the fact that the plaintiff was in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.
Setting aside the High Court judgment the Apex Court held as under:
“The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.
Logical Consequence of Prahladji Chenaji and Kesar Bai is Displeasing
In both Prahladji Chenaji v. Maniben Jagmalbhai, 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258, and Kesar Bai v. Genda Lal, 2022-10 SCC 217, it is not specifically stated that-
(i) the true owner can resume possession using force, and
(ii) the suit for recovery by the true owner is barred.
In both these decisions, it was not required to pronounce – how the true owner could repossess his land from a trespasser in (settled) possession, if the true owner could not peacefully re-take it. It appears that he has to seek legal remedies by filing a civil suit itself, for, there is no summary-remedy known to law for recovery of possession (such as ‘revival of decree’ by a summary procedure and executing such a decree by the defendant).
Still, it may likely to interpret these decisions in away that their consequent natural outcome is the following:
The defendant (rightful owner) need not go for a further suit, for recovery, under ‘due process’ doctrine.
Relevant Considerations as to Granting Injunction Against the True Owner
In Shiv Kumar Chadha v. Municipal Corporation of Delhi, (1993) 3 SCC 161, with regard to ordering temporary injunction, a Three Judge Bench of our Apex Court, held as under:
“A party is not entitled to an order of injunction as a matter of course. Grant of injunction is within the discretion of the court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo.”
Observing that it is a settled law that injunction would not be issued against the true owner, it is held in Premji Ratansey Shah v. Union of India, 1994 (5) SCC 547, as under:
“The said sale is a void sale and the petitioners, therefore, cannot derive any interest under the agreement of sale to resist the possession of the lawful owner nor could the declaration sought for be given. The question, therefore, is whether an injunction can be issued against the true owner. Issuance of an order of injunction is absolutely a discretionary and equitable relief. In a given set of facts, injunction may be given to protect the possession of the owner or person in lawful possession. It is not mandatory that for mere asking such relief should be given. Injunction is a personal right under Section 41(j) of the Specific Relief Act, 1963; the plaintiff must have personal interest in the matter. The interest of right not shown to be in existence, cannot be protected by injunction.”
Relevant considerations as to granting an injunction in favour a trespasser, against the true owner, are the following (as adumbrated in Sopan Sukhdeo Sable v. Assistant Charity Commissioner, AIR 2004 SC 1801):
(i) General principles applicable to the lawof injunctions,
(ii) Discretion exercised by the court while granting injunction,
(iii) Principles analogous to Sec. 6 of the Sp. Relief Act which expressly lays-down that a trespasser, ousted otherwise than on due process of law, can seek (even) restoration of possession, even against true owner.
(iv) The doctrine that ‘possession is good against all but the true owner‘.
The difference between the recovery of possession of a rank trespasser and that of a lawful occupant that turns unlawful on effluxion of time, merits consideration. Similarly, the recovery of possession from an illegal occupant of a ‘public land’ vested with the Government also requires a special consideration.
Nature of Property and Claim of Occupant Whether Bona Fide were Determinative Factors
In Government of A.P. v. Thummala Krishna Rao, (1982) 2 SCC 134, the question considered was whether summary remedy for evicting a person provided for by section 6 of the Andhra Pradesh Land Encroachment Act, 1905, could be resorted to. It was pointed out
the duration of encroachment, short or long, was not the determinative matter
what was relevant for the decision was more the nature of the property and
whether the claim of the occupant was bona fide.
It was also found that if there was bona fide dispute, on title between the Government and the occupant, it must be adjudicated upon by the Ordinary courts of law. The Government cannot decide such questions unilaterally in its own favour and evict any person summarily. Duration of occupation would be relevant requiring an impartial adjudication according to the established procedure of law, if the person –
occupied openly for an appreciable length of time and
could be taken, prima facie, to have a bonafide claim to the property.
Conclusion
It is beyond doubt –
A person in settled possession (even if he is a trespasser) cannot be ejected by force, otherwise than on due process of law, by the rightful owner.
After a (previous) Court Finding that the possession of the plaintiff is notlawful, it is not proper to grant an injunction in his favour disregarding the ‘finding’.
There remains something unexplained in between the two propositions. That is, when no injunction can be granted in favour of a person in settled possession (on the finding that he is trespasser), the resultant situation would indirectly permit the true owner to take the law in his hands and to use force to eject the trespasser.
It goes without saying that the law cannot endorse the view that the rightful owner is legally entitled to eject the trespasser, otherwise than on due process of law, when the trespasser is in settled possession.
Therefore, cogent legal principles have to be evolved and an authoritative pronouncement has to be penned-down, taking note of conflicting views on this subject, and reconciling the apparent divergent views.
End Notes:
Our Apex Court held in Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) as under:
“9. ….. However, once the dispute with respect to title is settledand it is held against the plaintiff, in that case, the suit by the plaintiff for permanent injunction shall not be maintainable against the true owner. In such a situation, it will not be open for the plaintiff to contend that though he/she has lost the case so far as the title dispute is concerned, the defendant – the true owner still be restrained from disturbing his/her possession and his/her possession be protected. ….. An injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession.
9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021) 3 SCC 675 [AIR 2021 SC 821], it is observed by this Court 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. Therefore, the plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief and the dispute with respect to the title comes to an end.
10. Now, so far as the reliance placed upon the decision of this Court in the case of Anathula Sudhakar (supra) by the learned Advocate appearing on behalf of the original plaintiff in support of his submission that in a suit for permanent injunction to restrain the defendant to interfere with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession is concerned, what is observed by this Court in paragraph 15 is the “lawful possession” of the plaintiff. In the present case the plaintiff, who has failed to get any declaratory relief and the defendant No.1 is held to be a true and absolute owner on the basis of the registered sale deed on payment of full sale consideration thereafter the plaintiff’s possession cannot be said to be “lawful possession”. Therefore, the plaintiff is not entitled to any permanent injunction against the true owner in the instant case.
“11.1 … Where once a suit is held not maintainable, no relief of injunction can be granted. Injunction may be granted even against the true owner of the property, only when the person seeking the relief is in lawful possession and enjoyment of the property and also legally entitled to be in possession, not to disposes him, except in due process of law.
12. Now, so far as the submission on behalf of the plaintiff that even if the plaintiff failed to get the declaratory relief and relief for cancellation of registered sale deed and her suit for the said reliefs came to be dismissed and the plaintiff is found to be in possession and therefore, the only remedy available to the defendant No. 1 would be to file a substantive suit to get back the possession is noticed only to be rejected outright. It is the contention on behalf of the plaintiff that once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the defendant No.1 though may be the true owner has to file a substantive suit for recovery of possession. While considering the aforesaid submission, the decision of this Court in the case of Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370 is required to be referred to. What is meant by due process of law has been explained by this court in paragraph 79, which reads as under:-
“79. Due process of law means that nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity to the defendant to file pleadings including written statement and documents before the court of law.
It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated upon by a competent court.”
In the said decision, this Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:-
“28. The expressions ‘due process of law’, ‘due course of law’ and ‘recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly’ by the true owner taking law in his own hands. All these expressions, however, mean the same thing—ejectment from settled possession can only be had by recourse to a court of law.
Clearly, ‘due process of law’ or ‘due course of law’, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
Now, this ‘due process’ or ‘due course’ condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence. What is important is that in either event it is an action before the court and the court adjudicates upon it. If that is done then, the ‘bare minimum’ requirement of ‘due process’ or ‘due course’ of law would stand satisfied as recourse to law would have been taken. In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not. In any event, the ‘recourse to law’ stipulation stands satisfied when a judicial determination is made with regard to the first party’s protective action. Thus, in the present case, the plaintiff’s failure to make out a case for an injunction does not mean that its consequent cessation of user of the said two rooms would have been brought about without recourse to law.”
12.1 Applying the law laid down by this Court in the aforesaid decision to the facts of the case on hand and once the rights of the parties are adjudicated and the defendant No.1 is held to be the true owner on the basis of the registered sale deed and on payment of full sale consideration, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.
13. In view of the above discussion and for the reasons stated above, all the Courts below have erred in granting permanent injunction in favour of the plaintiff and against the defendant No. 1, who is the true owner. After having held that the plaintiff had no title and after dismissing the suit qua the cancellation of the registered sale deed and the declaration, the plaintiff is not entitled to relief of permanent injunction against defendant No.1 – the true owner.”
Notes:
In the decision, Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, what was considered was the principles of law as regards the ‘possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant’; and not ‘substantive possession’.
The principles that emerge in this case are “crystallized” in para 101 of the decision as under:
“1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession.”
In A. Subramanian v. R. Pannerselvam, 2021-3 SCC 675, the Apex Court held as under:
“25. …. But coming to the facts in the present case the present suit giving rise to this appeal, was not a suit for declaration of title and possession rather the suit was filed for injunction. As noted above, the High Court has given cogent reasons for holding that the suit filed by the plaintiff for injunction was maintainable without entering into the title of the plaintiff in facts of the present case specially in view of the previous litigation which was initiated at the instance of defendant No. 1where he lost the suit for declaration and recovery of possession of the same property.
26. We do not find any error in the view of the High Court that it was not necessary to enter into the validity of Exhibits A-1 and A-2 and the suit for injunction filed by the plaintiff deserved to be decreed on the basis of admitted and established possession of the plaintiff. We, thus, do not find any error in the judgment of the High Court allowing the second appeal filed by the plaintiff by setting aside the judgment of the First Appellate Court and restoring that of trial court.”
objections thereto can be raised ‘at a later stage’;
Admitted documents –
need not be proved.
The objection to mode of proof, and proof as to truth of its contents,
can be waived.
The objection to mode of proof, and proof as to truth, have to be raised
at the ‘earliest opportunity’.
Where ‘truth’ of a document is in issue, marking without objection
does not absolve the duty on the concerned party to prove the truth.
Court can Reject Irrelevant or Inadmissible Document at any stage.
Probative value of a document
Mere marking a document as an exhibit
does not dispense with its proof.
Probative value of a document ‘marked without objection’ is
low or nil, for want of proper proof.
Even when a document is admitted, the probative value thereof will be
a matter for the court to determine.
Presumption as to truth of its contents can be invoked in proper cases.
Official record is taken as correct for the presumption that the entries thereof are made only after satisfying its truth.
PART I
Modes of Proof of Documents
Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:
Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India v. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty v. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed v. State of Bombay, AIR 1957 SC 857)
Certain Facts Need Not Be Proved
CHAPTER III of the Indian Evidence Act (Section 56 to 58) lays down ‘Facts Which Need Not Be Proved’. They are the following:
“56. Fact judicially noticeable need not be proved. –– No fact of which the Court will take judicial notice need be proved.
57. Facts of which Court must take judicial notice. –– The Court shall take judicial notice of the following facts: ––
(1) All laws in force in the territory of India;
(2) All public Acts passed or hereafter to be passed by Parliament of the United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;
(3) Articles of War for the Indian Army, Navy or Air Force;
(4) The course of proceeding of Parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the legislatures established under any laws for the time being in force in a Province or in the States;
(5) The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;
(6) All seals of which English Courts take judicial notice: the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown Representative]; the seals of Courts of Admiralty and Maritime Jurisdiction and of Notaries Public, and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;
(7) The accession to office, names, titles, functions, and signatures of the persons filling for the time being any public office in any State, if the fact of their appointment to such office is notified in any Official Gazette;
(8) The existence, title and national flag of every State or Sovereign recognized by the Government of India;
(9) The divisions of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the Official Gazette;
(10) The territories under the dominion of the Government of India;
(11) The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;
(12) The names of the members and officers of the Court, and of their deputies and subordinate offices and assistants, and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;
(13) The rule of the road on land or at sea.In all these cases, and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.
Truth of Contents of Document Invoking ADMISSION
Truth of the contents of a document, can be established
(i) by oral evidence of one who can vouchsafe the same,
(ii) by invoking circumstantial evidence or ‘presumption’ or
(iii) by express admission by the other side.
Admission – Sections 17 to 21 of the Evidence Act
Admission is discussed, in Sections 17 to 21 of the Evidence Act. The general and important propositions on admission are the following:
An unambiguous and straightforward admission is the best evidence in a case.
An admission is not conclusive.
It can be explained as provided under Sec. 31 of the Evidence Act.
In many cases it may be conclusive; in some cases, it may shift the burden of proof.
Sec. 31 of the Evidence Act – Admissions are not conclusive proof, but may estop
Sec. 31 of the Evidence Act lays down that admissions are not conclusive proof, but may estop. It reads as under:
“31. Admissions not conclusive proof, but may estop – Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.”
Facts Admitted need not be Proved
Order VIII Rule 5 of the CPC lays down that a fact not specifically denied in written statement shall be taken to be admitted.
Admission isSubstantive Evidence
In Thiru John v. Returning Officer, AIR 1977 SC 1724, the Supreme Court held that it is well settled that a party’s admission is substantive evidence – proprio vigore.
But at the same time the Court, in its discretion, may require such fact to be proved and established.
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.”
Judicial Admissions,Stand on a Higher Footing
Admissions in pleadings are judicial admissions. They stand on a higher footing than evidentiary admissions.
They may give rise to ‘Foundation of Rights’.
They are fully binding on the party that makes them and constitute a waiver of proofs.
Evidentiary admissions are not conclusive by themselves and they can be shown to be wrong.
In Nagindas Ramdas v. Dalpatram Icharam, AIR 1974 SC 471, held that admissions in pleadings are judicial admissions under Section 58 of the Evidence Act. They are made by parties or their agents at or before the hearing of a case and stand on a higher footing than evidentiary admissions. Former class of admissions are fully binding on the party that makes them and constitute a waiver of proofs. They by themselves can be made the foundation of the rights of parties. On the other hand evidentiary admissions which are receivable at the trial as evidence are by themselves not conclusive and they can be shown to be wrong.
Document Exhibited in the Writ Petition as a ‘True Copy’ – Whether Admission
Can a document exhibited in the writ petition as a ‘true copy’ be marked in a civil court as an ‘admission’ – producing the certified copy of the writ petition; for example:
(i) a letter written by the Petitioner in the Writ Petition
(ii) a letter or a private document obtained to him (apparently original of the same is with the Petitioner)
(iii) copy of a Public Document.
The Answer is:
Yes, it can be ‘marked’ on ‘admission’.
The existence of the contents of the first and third documents (letter written by the Petitioner and copy of a Public Document) can be ‘presumed’ by the court, in the civil suit between the same parties, under Sec. 114, Evidence Act (which lays down a rebuttable presumption).
Note:
1. Sec. 58, Evidence Act says – Admitted facts need not be proved.
2. Certified copy of a public document need not be proved by a witness – Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633.
Though the existence of the second class of documents (original of which are apparently with the Writ-Petitioner) can be presumed, if truth of contents of those documents is in question or denied the adverse party, it has to be proved independently .
Note: Proviso to Sec. 58 Evidence Act reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Also Note: Normally the documents relied of in the Writ petition will not be denied by the petitioner therein.
Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’
Usually, a document is proved through its author, or through a witness or a person acquainted with handwriting. Concession or admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act). ‘Truth of the contents’ of documents can also be established by concession or admission from the other side (“at the hearing”). Sec. 58, Evidence Act reads as under:
“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Sec. 58 says that no fact need be proved in any proceeding in three circumstances:
the parties or their agents agree to admit at the hearing
before the hearing, they agree to admit by any writing under their hands
by any rule of pleading they are deemed to have admitted by their pleadings.
Admissions are Substantive Evidence by themselves
In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: [1966] 1 SCR 606, it was observed as under:
“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”
Bharat Singh v. Bhagirathi is Quoted/referred to in:
Dipakbhai Jagdishchandra Patel v. State Of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union Of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.
Judgment on Admissions: Order XII Rule 6
Order XII Rule 6 of the Code of Civil Procedure 1908 reads as under:
“6. Judgment on admissions – (1) Where admissions of fact have been made either in the pleading or otherwise; whether orally or in writing, the Court may at any stage of the suit, either on the application of any party or of its own motion and without waiting for the determination of any other question-between the parties, make such order or give such judgment as it may think fit, having regard to such admissions.
(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.”
In Karam Kapahi v. Lal Chand Public Charitable Trust, (2010) 4 SCC 753, after considering Uttam Singh Duggal & Co. Ltd. v. United Bank of India, (2000) 7 SCC 120, the Supreme Court pointed out that Order 12 Rule 6 of CPC is not limited to admissions contained in pleadings. The Supreme Court held in Karam Kapahi as follows:
“40. If the provision of Order 12 Rule 1 is compared with Order 12 Rule 6, it becomes clear that the provision of Order 12 Rule 6 is wider inasmuch as the provision of Order 12 Rule 1 is limited to admission by “pleading or otherwise in writing” but in Order 12 Rule 6 the expression “or otherwise” is much wider in view of the words used therein, namely: “admission of fact … either in the pleading or otherwise, whether orally or in writing”.
41. Keeping the width of this provision (i.e. Order 12 Rule 6) in mind this Court held that under this Rule admissions can be inferred from the facts and circumstances of the case (see Charanjit Lal Mehra v. Kamal Saroj Mahajan [(2005) 11 SCC 279] , SCC at p. 285, para 8). Admissions in answer to interrogatories are also covered under this Rule (see Mullas’s Commentary on the Code, 16th Edn., Vol. II, p. 2177).
xxx xxx xxx
47. Therefore, in the instant case even though statement made by the Club in its petition under Section 114 of the Transfer of Property Act does not come within the definition of the word “pleading” under Order 6 Rule 1 of the Code, but in Order 12 Rule 6 of the Code, the word “pleading” has been suffixed by the expression “or otherwise”. Therefore, a wider interpretation of the word “pleading” is warranted in understanding the implication of this Rule. Thus the stand of the Emphasis supplied.
Club in its petition under Section 114 of the Transfer of Property Act can be considered by the Court in pronouncing the judgment on admission under Order 12 Rule 6 in view of clear words “pleading or otherwise” used therein especially when that petition was in the suit filed by the Trust.” (Quoted in: Rattan India Power Ltd. vs Bharat Heavy Electricals Ltd. (Delhi) 6 March, 2025).
“Hearing” Partakes ‘recording evidence’
Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’. Rule 2 (1) reads as under:
“2. Statement and production of evidence – (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.”
Judicial Admissions and Admissions in Pleadings
In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:
“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)
See also:
Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117,
Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006 (12) SCC 233,
Union of India v. Pramod Gupta, (2005) 12 SCC 1.
Admission of Contents of Documents
Admission may dispense with proof; but probative value may be less or nil.
Admissibility & probative value – two matters.
In State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed by our Apex Court as under:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Secondary Evidence – Marked without Objection – Court Examines Probative Value
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196].
See Notes below under the heading –
“Court examines probative value of secondary evidence”
Court Has Obligation to Decide Admissibility of Secondary Evidence
As shown above, it is held in Kaliya v. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196) that the court is obliged to decide the question of admissibility of a document in secondary evidence.
In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 it is held as under:
“12. The provisions of Section 65 of the 1872 Act provide for permitting the parties to adduce secondary evidence. However, such a course is subject to a large number of limitations. In a case where the original documents are not produced at any time, nor has any factual foundation been laid for giving secondary evidence, it is not permissible for the court to allow a party to adduce secondary evidence. Thus, secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for, so as to bring it within one or other of the cases provided for in the section. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law. The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. (Vide Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457] , State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] , LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491 : (2010) 1 SCC (L&S) 1072 : (2010) 2 SCC (Civ) 191] and M. Chandra v. M. Thangamuthu [(2010) 9 SCC 712 : (2010) 3 SCC (Civ) 907])”.
H. Siddiqui v. A. Ramalingam is followed in U. Sree v. U. Srinivas: AIR 2013 SC 415
Documents Marked by Consent – Does Oral Evidence Need to Prove Contents
There are three different views on this matter. They are-
1. There must be oral evidence. Even if consent is given for marking the documents, it will only absolve the parties from formally proving the documents and nothing beyond that. That is, though documents are marked by consent, they could not be relied on unless there is no oral evidence to prove their contents.
2. Document stands proved. When documents are marked by consent, there is no further need for a formal proof of the documents, it would amount to proof of whatever the documents contained.
3. If truth is in question it should be specifically proved by proper evidence. In most of the cases, the truth may not remain in question if the contents thereof are proved. But, in rare occasions, even if contents of documents are proved, truth thereof may remain (expressly or implicitly) in question or unrevealed.
If No Objection, Can a Photocopy of Document be Marked?
Yes.
It would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof, including production of a photocopy), in the scheme of our Procedure Codes and Evidence Act.
In Kalita Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, our Apex Court considered admission of a photocopy of an official document, in the following factual matrix:
The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters.
The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable.
The photocopies were marked as exhibits without objection.
The respondents never questioned the genuineness of the same.
Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for nonproduction of the originals, they were rejected (by the High Court) without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers.
In this premises the Supreme Court held as under:
“This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”
Delhi High Court held in Sumita @ Lamta v. Devki, (Valmiki J.Mehta, J.), 25 Sep 2017 (Indiakanoon), as under:
“…. it is conceded by the counsel for the appellants/defendants that before commencement of cross-examination of PW-1 and PW-2 there was no objection raised that the Will cannot be proved inasmuch as the Will only is a photocopy.Once no objection is raised to the mode of proof on account of lack of original, then now the objection cannot be raised to the mode of proof as the objection to the mode of proof stands waived in view of the ratio as laid down in the judgment of the Supreme Court in the case of R.V.E. Venkatachala Gounder Vs. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752.”
Can the Court Refrain from Marking Documents for no Formal Proof?
No.
Relevant and Admissible Documents have be received in evidence ‘Subject to Proof’ or ‘Subject to Objection’?
In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:
“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr K V Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. During the course of the trial, the plaintiffs of Suit 5 claimed that the above inscription was recovered on 6/7 December 1992 from the debris of the disputed structure which was demolished. The inscription is in stone with a dimension of 115cm X 55cm. Under the orders of the Court, an e-stampage (paper no. 203 C- 1/1) was prepared and was deciphered by Dr K V Ramesh (OPW-10) who is an epigraphist. The translation of the text was marked as Exhibit 2 in Suit 5. The case of the plaintiffs is that there was a Vishnu Hari temple at the site in dispute and it was on the demolition of the temple that a mosque was constructed in its place. In this segment, the inscription forms the fulcrum of the submission.”
In Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018 0 AIR(SC) 4796; 2018-10 SCC 484,it is obserd as under:
“As regards this plea, we find that the High Court has made it amply clear that the fact that the applications are allowed per se is not to give any direction to straightaway exhibit the additional documents, but that it could be exhibited subject to proof. The High Court has unambiguously observed that the documents will have to be proved in accordance with law. We make it amply clear that by allowing the three applications filed by the respondent/defendant under Order XLI Rule 27 of CPC, it would not follow that the additional documents/additional evidence can be straightaway exhibited rather, the respondent would have to not only prove the existence, authenticity and genuineness of the said documents but also the contents thereof, as may be required by law.”
In Jarnail Singh v. State of Punjab, AIR 2022 SC 3350: 2022-10 SCC 451, acquitting the accused it is held as under:
“13. From the above statements of the Inspecting Team, they failed to firstly prove the recovery of the tickets to have been validly made. Secondly, they also failed to prove the enquiry report as only a photocopy was filed and objections to the same was recorded in the statement itself, that the same would be exhibited subject to proof of the existence of the documents in original and loss thereof. The prosecution did not make that effort to prove the existence of the original and loss thereof in order to take an order for leading secondary evidence.”
The practice of exhibiting documents ‘subject to proof and relevancy’ is referred to in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639, and State of Bihar v. P. P. Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222.
In Rajathi v. Arukkani Ammal, 2001-3 CTC 34; 2001-2 MLJ 364 it is held by F.M. Ibrahim Kalifulla, J., as under:
“Therefore, there should not be any impediment for the court below to receive the document in question subject to the proof of the said document, so as to rely upon the same at later point of time, I am of the view that to reject the receipt of the very document at the threshold, under the facts and circumstances of the case is totally unjustified and not in accordance with law. In fact as contended by the learned counsel for the petitioner, the court below unfortunately concentrated it’s whole attention towards the validity of the said document, instead of finding out as to whether it could be received as secondary evidence under Section 65(a) of the Indian Evidence Act. The mere receipt of the said document subject to the proof as rightly contended by the learned counsel for the petitioner would not, in any way, cause prejudice to the respondent.
4. In the result, this revision petition is allowed. The order impugned in this petition is set aside. The court below is directed to receive of it the document, subject to proof by the petitioner in the manner known to law.”
Court’s Jurisdiction to Require to Prove an Admitted Document
The principles in the proviso to Sec. 58 Evidence Act (that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions) apply to category of documents that require specific evidence as to proof of its contents (other than the mere statements in the document).
See: Kaliya v. State of MP: 2013 10 SCC 758; Rakesh Mohindra v. Anita Beri: 2015 AIR SCW 6271.
In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can see it in Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC .
Section 294 of Code of Criminal Procedure reads as follows:
“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”
Document Marked for Mere Identification
In most cases when a document is admitted in evidence and marked as an Exhibit, proof of its contents stand admitted; so also its truth. But, if it is evident that it is admitted for mere identification (e.g. when there is already an issue or pleading as to genuineness of a document) it cannot be taken as proved, even if no objection is raised as to marking by the opposite side.
This principle applies to category of documents that require specific evidence as to proof of its contents, apart from the mere statements in the document itself.
Relevancy Stand on Another Footing
In Pandappa Mahalingappa v. Shivalingappa Murteppa, AIR 1946 Bombay 193, it is observed as under:
“As held in 10 L.A. 79 and 5 Bom. L.R. 708 the discretion exercised by the trial Court in admitting secondary evidence on the ground that the original is lost should not be interfered with in appeal. But it is urged that the certified copy should not have been exhibited without proof of the execution. From the application (Ex.66) and the roznama it appears that the trial Court exhibited it under S. 90, Evidence Act, on the ground that it was more than 30′ years old. In the lower appellate court the admissibility of the document does not appear to have been challenged. It is urged that as held in 44 Bom. 192 the erroneous omission before the lower Courts to object to the admission of evidence does not make that evidence relevant. The principle of that ruling, however, applies only where the document is per se irrelevant or inadmissible and no objection was taken to its admissibility: 8 Pat. 788. Where evidence is admitted in the trial Court without any objection to its reception, and the evidence is admissible and relevant, then no objection will be allowed to be taken to its reception at any stage of the litigation on the ground of improper proof. But if the evidence is irrelevant or inadmissible, as for instance, owing to want of registration, omission to take objection to its reception does not make it admissible, and the objection may be raised even in appeal for the first time; 28 L.A. 106. As observed by Das J. in A.L.R. 1922 Pat. 122 “the question of relevancy is a question of law and can be raised at any stage, but the question of proof is a question of procedure, and is capable of being waived.“
In this case the secondary evidence of the mortgage-deed was held to be admissible as the original was lost. What is now urged is that the execution should have been proved and this objection was not raised either in the trial Court or in the lower appellate Court. It is however true that no evidence was adduced to prove the execution of the original of Ex.68 as the trial Court was prepared to raise the presumption in favour of the genuineness of the document under S. 90, Evidence Act. Whether such a presumption can be raised or not is a question of law, and it can, therefore, be urged at any stage of the litigation. It is now well settled by the ruling of the Privy Council in 37 Bom. L.R. 805 that the statutory presumption under S. 90, Evidence Act, cannot be made in respect of a document merely on production of its copy under S. 65 of the Act. Their Lordships observed (p. 811) “Section 90 clearly requires the production to the Court of the particular document in regard to which the Court may make the statutory presumption. If the document produced is a copy, admitted under S.65 as secondary evidence, and it is produced from proper custody, and is over 30 years old, then the signatures authenticating the copy may be presumed to be genuine.”
Effect of marking a document without formal proof on admission (or without objection) is also a subject of controversy.
Effect of Marking Documents Without Objection
Effect of marking a document without formal proof, or on admission (or without objection), is also a subject of controversy.
First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in [2023] 4 SCC 731: If no objection as to its mode of proof , no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth).
(Note: It may not be legitimate to apply this principle literatim)
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712 (Foundational evidence as to secondary evidence essential); LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); Birad Mal Singhvi v. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
Propositions Analysed
1. Marked Without Objection – Its ‘Contents’ Stand Proved, as Admission
(a) Admission, or exhibiting, of documents in evidence and proving the truth of its contents (veracity of the same) are two different processes. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, or marked without objection, separate proof need not be warranted. Similarly, separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).
When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.
Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi)
The Constitution Bench of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:
Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proofof its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proofof its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.
It is held further as under:
“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:
“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”
Objection as to Truth of Contents, First Time In Appeal – Effect
In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:
“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”
(b) Proof of Execution may not be Enough: Exhibiting of documents in evidence, without objection, and proving the same before the court are two different process.
In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required when presumptions can be invoked (e.g. document in ordinary course of business, a letter obtained in reply).
(c) Factual foundation to give secondary evidence must be established:
Contents of documents are presented in two ways:
documents in original
(by way) of secondary evidence.
The party has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced [Rakesh MohindraVs. Anita Beri: 2015AIR(SCW) 6271].
Secondary-evidence–Marked Without Objection – Objection stands waived. When the party gives in evidence a certified-copy/secondary-evidence without proving the circumstances entitling him to give secondary evidence, the opposite party must raise his objection (if so) at the time of admission of such documents. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage. It stands waived. [Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718;Kaliya v. State of MP: 2013-10 SCC 758]
2. Mere Marking – Not Dispense with Proof (of truth of contents)
Following are the often-cited cases on this subject.
The Proposition -Mere Marking Does Not Prove the Contents – was NOTapplied in the following decisions.
Decision
Did the Documents Mark without Proper Proof was accepted in evidence?
Reason for NOT Appling the Proposition Mere Marking Does Not Prove the Contents
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745
Yes. The rent receipts were received in evidence. (without formal proof)
The rent receipts were ‘not disputed’ by the other side.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758
Yes. The secondary evidence of dying declaration produced in this case was accepted by the Court.
Secondary evidence was adduced with foundational evidence (for producing copy; not original)
The Proposition -Mere Marking Does Not Prove the Contents – was applied in the following decisions; but, not unreservedly.
Decision
Did the proposition – Mere Marking Does Not Prove the Contents – unreservedlyapply?
Reason for NOT applying the Proposition Mere Marking Does Not Prove Contents, unreservedly
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
No. Truth of contents of a letter and two telegrams were not taken. (though marked)
Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712
No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not accepted (though marked)
Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
No. Contents of the Photocopy was not received as proof (though marked)
Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865
No. Accounts of the Plaintiff was not received as proof (though marked)
The accounts of the Plaintiff would not be proved by itself
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. In Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.
In Kaliya v. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:
“Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457; Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder v. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India v. Rampal Singh Bisen,2010-4 SCC 491).”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai v. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298, Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287 etc.] that a close reading of the above judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. How ever, by such admission of document, the truth and correctness of the contents by it self would not be established and there must be some evidence to support the contents of such document.
Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta v. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra v. Anita Beri [2015AIR(SCW) 6271] it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
Court can Reject Irrelevant or Inadmissible Documentat any stage
Order 13 Rule 3 CPC reads as under:
“Rejection of irrelevant or inadmissible documents. ― The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.
Order 13 Rule 3 CPC speaks only as to irrelevant or inadmissible documents alone; and it is not applicable to a document which can be received in evidence on the concession or admission of the opposite side.
Objection to be Raised When document is admitted
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598, overruled (ruled – stood modified) Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158. It is directed as under:
“The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”
It appears that the decision taken by a Magistrate to mark the document – “subject to objection” is improper; nevertheless, marking – “subject to proof” is a permissible action, for it is a “decision” ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598.
Objection About Mode of Proof Can Be Waived
RVE Venkatachala v. Arulmiga Viswesaraswami & V.P. Temple: AIR 2004 SC 4082, is often relied on by the courts to establish the proposition – mode of proof can be waived..
In Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487, it was held as under:
“6. In civil cases mode of proof can be waived by the person against whom it is sought to be used. Admission thereof or failure to raise objection to their tendering in evidence amount to such waiver. No such waiver from the accused was permissible in criminal cases till the enactment of the present Code of Criminal Procedure in 1973…
Section 294(1) of the Code enables the accused also, to waive this mode of proof, by admitting it or raising no dispute as to its genuineness when called upon to do so under sub-section (1). Sub-section (3) enables the Court to read it in evidence without requiring the same to be proved in accordance with the Evidence Act. There is nothing in Section 294 to justify exclusion of it, from the purview of “documents” covered thereby. The mode of proof of it also is liable to be waived as of any other document.”
(Quoted in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570)
It is held in Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C.Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315, as under:
“It is now well settled that objection aboutmode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli AIR 1943 PC 83 at page 87 ).”
3. IF ‘TRUTH’ IS IN ISSUE- Mere Marking Not Amounts to ‘Waiver’
The fundamental principles as to proof of a document is that the proof must be given by a person who can vouchsafe for the Truth of its contents (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745).
It is legitimate to say that this requirement as to proof of ‘truth’ is independent from inviting ‘proof of signature and handwriting’ in Sec. 67 to 71 of the Evidence Act. This proposition is clear from Sec. 67, which lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:
“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Though proof of execution (dealt with in Sec. 67 to 71) is independent from proof as to ‘truth’ of contents of a document, proof as to ‘truth’ can be presumed by the court, in most cases, on ‘proof of execution’. It is more so, when a document is admitted without objection. Proof as to ‘truth’ of contents is essential if ‘truth’ is in issue, or in dispute. It rarely occurs.
If ‘TRUTH’ is in issue, or in dispute,marking a document without objection, or mere proof of handwriting or execution,by itself, need not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala v. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81; Suresh v. Tobin, 2013-1 KerLT 293). Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).
In Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, it us held as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”
Presumption on a registered document and undue influence under S. 16, Contract Act: In Lakshmi v. Muthusamy, 2012(1) CTC 53 it was contended that there was presumption on a registered document that the contents of the said document are true and genuine (Vimalchand Ghevarchand Jain v. Ramakant Eknath Jadoo, 2009-5 SCC 713, relied on). The Madras High Court (S. Nagamuthu, J.) rejected the argument for, there was another question – whether the plaintiff had discharged the burden of proving ‘absence of undue influence’ as contemplated in Section 16 of the Indian Contract Act which provided for the burden of proof of absence of undue influence. It was pointed out that once the initial burden of proving the position of the plaintiff to dominate the will of the defendant was discharged, the burden was shifted on the plaintiff to prove absence of undue influence. The Court found it not safe to rely on the evidence of the plaintiff alone to hold absence undue influence on the part of the plaintiff. The High Court relied on the Supreme Court decision in Krishnamohan Kul v. Pratima Maity, (2004) 9 SCC 468, where it was held as under:
“The onus to prove the validity of the deed of settlement was on Defendant 1. When fraud, mis-representation or undue influence is alleged by a party to the suit, normally, the burden is on him to prove such fraud, undue influence or mis-representation. But when a person is in a fiduciary relationship with another and the latter is in a position of active confidence the burden of proving the absence of fraud, mis-representation or undue influence is upon the person in the dominating position, and he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case, the burden of proving the good faith of the transaction is thrown upon the dominant party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the court watches with jealously all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position. This principle has been ingrained in Section 111 of the Indian Evidence Act.”
If payment disputed, mere marking of a registered sale deed not sufficient. In Suresh CV v. Tobin, ILR 2013(1) Ker. 30: 2013-1 KLT 293, the Kerala High Court held that if payment of price for sale was disputed, such fact would not be proved by mere production and marking of a registered sale deed which stated or narrated the payment, and that it was necessary to adduce oral evidence to prove such fact. The Court relied on Ramji Dayawala Vs. Invest Import (AIR 1981 SC 2085) which held that if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document and that the truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.
4. Admission of Contents– May dispense with proof; but Probative Value may be less or nil
Admissibility & probative value – two matters. State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Court examines probative value of secondary evidence:
It is well settled that if a party wishes to lead secondary evidence, the Court is obliged to examine the probative value of the document produced in the Court or their contents and decide the question of admissibility of a document in secondary evidence, Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271.
Contents of the document cannot be proved by mere filing the document in a court. Under the Law of Evidence, it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. Mere marking a document as an ‘exhibit’ will not absolve the duty of to prove the documents in accordance with the provisions of the Evidence Act. At the most, marking ‘exhibit’may amount to proof of contents, but not its truth.
Documents which are not produced and marked as required under the Evidence Act cannot be relied upon by the Court.
See: LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
M. Chandra v. M. Thangamuthu, AIR 2015 SC 3796.
Nandkishore Lalbhai Mehta Vs.New Era Fabrics: AIR 2015 SC 3796;
Birad Mal SinghviVs. Anand Purohitb: 1988 (Supp) SCC 604 (date of birth)
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case. The probative value of Scene-Mahazar, Postmortem Report, photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
In Kaliya v. State of MP: 2013-10 SCC 758 (relying on H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196) held as under:
“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen, 2010-4 SCC 491, it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa, 2019-2 ACC 36, that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.
In Kalyan Singh, v. Chhoti, AIR 1990 SC 396, it is observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
5.Court should allow concerned party, to adduce proper evidence to prove documents
As stated in detail above, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. (Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC).
Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision. This principle is reiterated in ever so many cases. They include:
F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617 (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Sardar Harcharan Singh Brar v. Sukh Darshan Singh, (2004) 11 SCC 196 (held that defective verification or affidavit is curable);
Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511;
Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740;
KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796
In Shail Kumari v. Saraswati Devi, 96 (2002) DLT 131, it is observed as under:
“14. In case a document is marked exhibit without an objection from the party which is affected by that document ordinarily its admissibility cannot be questioned at a later stage of the proceedings in the suit. But in cases where such document is marked exhibit without due application of mind in violation of provisions of a statute requiring a particular mode of proof etc., the opposite party may still show during the hearing of final arguments that the document is inadmissible in evidence and should be excluded from consideration because of statutory bar or non-compliance of statutory requirement about mode of proof or otherwise. For instance a will is required to be proved by examining at least one of the attesting witnesses in accordance with Section 68 of the Evidence Act. A document which is inadmissible for want of registration or proper stamp is inadmissible in evidence, unless use of it is permissible for collateral purposes or extracts of accounts book without production of books of account and proof that they were kept in ordinary course of business. Mere putting of exhibits number on these documents in the absence of their proof in accordance with law does not make them part of the evidence to be read for deciding the suit.”
No Objection to Marking; If Court sees Deficiency, it should bring notice of it to counsel
In T.C. Lakshamanan v. Vanaja, ILR 2011-3 (Ker) 228; 2011-3 KHC 86; 2011-3 KLT 347, it is pointed out as under:
“There was no case for the respondent that before marking Ext.A1 any objection was raised as to the admissibility of Ext.A1. Since the affidavit was filed in lieu of chief-examination, through which documents were sought to be received in evidence, before starting cross examination the trial court has to record that an affidavit has been filed in lieu of chief examination and that such and such documents have been marked. It is not to be done mechanically. The Court has to apply its mind while marking the documents to ensure that those documents have been properly admitted in evidence. Simply because the counsel appearing for the other side did not raise any objection the Court is not absolved of its duty to see whether the marking of the documents was done correctly and whether any inadmissible documentwas sought to be admittedin evidence. If the Court finds that any inadmissible document, especially a document which cannot be admitted in evidence as it is unstamped or insufficiently stamped, is sought to be admitted, it should be brought to the notice of the counsel appearing for the parties and an order should be passed with regard to the same. It is not a case where the documents were tentatively marked, subject to objection regarding the admissibility and the ruling as to the admissibility of the same happened to be deferred, as it warranted a detailed argument. The Apex Court in the decision in 2000 (1) SC 1158 (Bipin Shantilal Panchal v. State of Gujarat) has held that such a procedure can be resorted to. Therefore, though document can be admitted tentatively reserving ruling on the admissibility to a later stage, in the case on hand no such objection was raised; on the other hand, it is argued by the learned counsel for the respondent that questions were put to PW1 with regard to the relevancy and other aspects of that document treating that document as having been properly admitted.”
When Execution of Will is Admitted, Should it be Proved?
Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove documents required by law to be attested (including Wills). When execution of a Will is ‘Admitted’ by the opposite side, should it be ‘Proved’?
There is difference of opinion.
Following latest decisions assuredly lay down that when execution of the will is ‘admitted’ by the opposite side, it need not be ‘proved’ as required in Sec. 68 (by examining at least one witness).
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886
Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435.
Following decisions laid down that even when execution of a will was ‘admitted’ by the opposite side, it must have been ‘proved’ by examining at least one attesting witness.
S.R. Srinivas v. S. Padmavathamma, (2010) 5 SCC 274 – It is observed – the execution of a Will can be held to have been proved only when the statutory requirements for proving the Will are satisfied. Admission in the pleadings as to the Will can only be about the “making of the Will” and not the “genuineness of the Will”.
Vadakkayil Gopalan v. Vadakkayil Paru, (2013) 3 KerLT 69 –It is observed – proof of the Will by examining at least one witness was necessary (even if the Will has been admitted in the pleadings).
Poulose A. V. v. Indira M.R., 2010 (3) KerLT Suppl. 185 : ILR 2010 Ker.388 – It is observed – No distinction is drawn, by Sec. 68, between an admitted Will and a disputed Will in the mode of proof of execution; and therefore, in all cases in which the Will is set up the procedure prescribed in Sec. 68 will have to be followed.
Ramesh Verma v. Lajesh Saxena (2017) 1 SCC 257 – It is observed – the mandate of Section 68 of the Evidence Act has to be followed even in a case where the opposite party does not specifically deny the execution of the document in the written statement.
Sarada v. Radhamani, 2017 (2) KLT 327. In this decision, rendered in a ‘Refence’ to resolve the dispute in the question we discuss, the Kerala High Court (DB) referred all the above decisions. And, declared the following decisions, as Per Incuriam
Princelal G. v. Prasannakumari, 2009 (3) KerLT Suppl. 1342: ILR 2009 (3) Ker. 221 – It is observed – where the execution of the Will is expressly admitted, neither Section 68 nor its proviso is attracted obliging the propounder of the Will to prove due execution of the Will (for, admitted facts need not be proved: Sec. 58 of the Evidence Act).
Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker.226 – Relying on Order VIII Rule 5 C.P.C. and Sec. 58 of the Indian Evidence Act, it is held that when the execution of the Will is admitted, there will not be any requirement to prove the Will.
P. Malliga v. P. Kumaran, 2022 (2) LW 393, (Followed in Ranga Pillai v. Mannar Pillai, 2022, Mad) – It is held by the Madras High Court that a Will shall not be used as evidence until it is proved in the manner prescribed under Section 68 of the Evidence Act. The judge did not agree the view in P. Radha v. Irudayadoss, 2022 SCCOnline Mad 886. (Note: This decision, P. Malliga v. P. Kumaran, is overruled in Boomathi v. Murugesan, 2023-2 Mad LJ 684, DB)
S. 68 to be Followed, Even When the Opp. party does not Deny Execution
Sec. 68 of the Evidence Act reads as under:
“68. Proof of execution of document required by law to be attested—If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
In Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, our Apex Court held as under:
“13. A will like any other document is to be proved in terms of the provisions of Sec. 68 of the Evidence Act and the Succession Act, 1925. The propounder of the will is called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the disposition and put his signature to the document on his own free will and the document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. This is the mandate of Sec. 68 of the Evidence Act and the position remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement.”
Effect of ‘Admission’ of Execution of Will (by the other side)
It may be pointed out that the Apex Court did not consider in this decision, Ramesh Verma v. Rajesh Saxena – what is the position when the opposite party expressly admit the execution of the document.
Boomathi v. Murugesan, 2023-2 Mad LJ 684 (DB)
It is held in a recent Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684, that the position will be different if the Will is ‘categorically’ and ‘clearly’ admitted. The Madras High Court referred Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) and came to the conclusion , Sec. 68 will not be attracted where the Will is “admitted” by the other side. The Division Bench held as under:
“23. First and foremost, it is to be borne in mind that before the Hon’ble Supreme Court in Jagdish Chand Sharma Vs. Narain Singh Saini [Dead] through Legal Representatives and Others, reported in 2015 [8] SCC 615, the validity of the Will was a core issue and the Hon’ble Supreme Court proceeded to discuss the law with regard to proof of a Will in accordance with the statute. In such context, the Hon’ble Supreme Court has held that the position with regard to proof of a Will remains the same even if the opposite party does not specifically deny execution of the same.
24. The above judgment has been followed by learned Single Judges of this Court in P. Malliga Vs. P. Kumaran reported in 2022 [2] LW 393 and Akkinirajan Vs. Maheswari and Others reported in 2023 [1] LW 72.
25. This Court draws the distinction between ‘specifically denied’, ‘not specifically denied’ and ‘admitted‘. The first two instances, namely, ‘specifically denied’ and ‘not specifically denied’, would fall within one category. Insofar as proof of a Will in both cases in this category, the Will would have to be necessarily proved by the propounder. However, where the opposite party categorically admits to the Will, the position would be certainly different. In India, we follow what is called the system ‘adversarial proceedings’, which is also followed in the British Courts. The foundation of this School is that parties before a Court would have to deal with facts in issue namely facts that are asserted and denied by the parties to the lis and the Court would proceed to adjudicate on such issues. When there is no dispute between the parties on certain matters, the Court would not venture to require proof of such admitted facts.”
“33. This Court has applied its mind to the various principles laid down by the Hon’ble Supreme Court as well as this Court and other High Courts, especially in the context of Sec. 68 of the Indian Evidence Act, proof of a Will where execution is not specifically denied and in cases where the execution is categorically admitted. The ratio laid down by the Hon’ble Supreme Court in Ramesh Verma’s case [cited supra] reported in 2017 [1] SCC 257, cannot be a precedent for the proposition where the opposite party clearly admits to the execution of the subject Will as in the instant case. Therefore, we are not in respectful agreement with the judgments in P. Malliga’s case(P. Malliga v. P. Kumaran, 2022 (2) LW 393) andAkkinirajan’s case (Akkinirajan Vs. Maheswari, 2023 [1] LW 72) following the ratio laid down by the Hon’ble Supreme Court in Jagdish Chand Sharma’s case. On the contrary, we approve the ratio laid down in P. Radha Vs. Irudayadoss and Others reported in 2022 SCC Online Mad 886 and Vanjiammal and Others Vs. Vidya and Others in the order dtd. 21/4/2017 made in CRP.[PD] No.3659/2013.”
The same view is taken in Rajeev Gupta v. Prashant Garg, 2022-1 All LJ 435. The court held as under:
“The admission were in the pleadings of the parties and therefore there was no requirement of proving the will in the present suit. Admittedly, the defendant Nos. 2 to 4/appellants have claimed their title through Ramesh Chand Garg who never disputed the validity of the will rather in the Original Suit No. 458 of 1992, he admitted its validity and therefore, the lower appellate court has rightly decreed the suit and held that the will was neither required to be proved in the present suit nor the filing of original will was necessary.”
Do General Provisions of S. 58 give way to Special Provisions of S. 68
Three views are possible:
First: Requirement of calling at lest one witness to prove those documents that requires attestation, remains the same even in a case where the opposite party expressly admit the execution of the document in the written statement.
Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
Third: If only the Will is expressly admitted, then only there will be alleviation of burden laid down in Sec. 68.
In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.
But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.
Authoritative Judicial Pronouncement is yet to be Arrived
It is also pertinent to note that the Kerala High Court, in Sarada v. Radhamani (supra), pointed out that the general provisions of Sect. 58 of the Evidence Act has ‘to give way to the special provisions’ of Sec. 68 of the Act; and it was remarked that there was no distinction between an ‘admitted Will’ and a ‘disputed Will’ as to the mode of proof.
It appears that the placing the doctrine of ‘specific provisions override general provisions‘ is rational; for, the following words in Sec. 68 places a ‘non-obstante clause’ –
“it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution”.
However, it will also be a forceful argument if one says that a section in the Evidence Act cannot be protected from certain fundamental principles of the Evidence Act which include ‘best evidence rule’, ‘admitted facts need not be proved’ etc., unless strong persuasive indications are laid down in the provision concerned. (It is also noteworthy that Sec. 68 does not proceed with a non-obstante clause.) In any event, the scheme of the Evidence Act shows that Chapter III (the beginning Chapter of Part II) which deals with “Facts Need Not be Proved”, is meant to govern the succeeding chapters including the Chapter V that deals with ‘Documentary Evidence’ wherein Sec. 68 is included.
It is also significant – Sec. 58 says that ‘Admitted facts need not be proved’; and Sec. 68 speaks as to “Proof of execution of document required by law to be attested” and that the attesting witness is called “for the purpose of proving its execution”. That is, the question of ‘proof’ under Sec. 68 does not arise if ‘execution of document’ has already been admitted by the other side.
Note: Proviso to Sec. 58 enables the court to require proof, despite the admission of the other side, if it finds proper. Proviso to Sec. 58 reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Therefore, an authoritative judicial pronouncement is yet to be arrived, taking note of various potential contentions in this regard.
INSUFFICIENTLY STAMPED DOCUMENTS
Instruments not duly stamped, inadmissible
Insufficiency of Stamp: Sec. 35 of the 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; … ….. ….”
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.
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 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 AllLR 34; 2009-1 AWC 929).
The Supreme Court observed in Sri Venkoba Rao Pawar v. Sri S. Chandrashekar, AIR 2008 SCW 4829, that the collateral purpose/transaction must be independent of, or divisible from the transaction which requires registration.
UNREGISTERED DOCUMENTS – Effect of Marking Without Objection
Under section 49 of the Registration Act, if a document required to be registered is not registered, it is not admissible in evidence ; and such unregistered document can only be used as an evidence of collateral purpose.
With respect to Unregistered (Necessarily Registrable) Documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: AIR 2008 SC (Supp) 850, as under:
“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 :
A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
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. ….”
In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.
However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.
The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited are the following: Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23, Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369, Anthony v. K.C. Ittoop: (2000) 6 SCC 394, Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495, Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164, Prasanta Ghosh v. Pushkar Kumar Ash: 2006 (2) CHN 277.
Section 36 of the Stamp Act – Once admitted shall NOTbe called in question
Section 36 of the 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 “.
Objection as tostamp, Not Judicial Order; be raised when Document Tendered
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.”
A document purporting to be an unregistered 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. The 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) as under:
“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
Two forceful propositions stand paradoxical and incongruent
The following two forceful propositions stand paradoxical and incongruent.
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.
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:
“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.
*Corrosponding 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.
**Corrosponding 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.””
Should 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.”
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 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:
“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. ….
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 Sec. 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 overrule the judgment in the matter of Laxminarayan (supra).”
Is ‘Impounding’ totally Independent from ‘Admissibility’
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) 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.
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.”
Upshot
Inasmuch as (a) mere marking of a document on admission will not (invariably), amount to proof, or evidence of the contents of the document or its truth; (b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and (c) there is a formal defect to the document for it is a secondary evidence because it is produced without adducing ‘foundational evidence’, it is legitimate to say that before taking an adverse stance as to proof in this count, the court should give an opportunity to the party who relies on the document to cure the deficiency.
Right, Title and Interest Constitute a Legal Triplet
Right, Title and Interest constitute a legal triplet.* It signifies ownership. It is used in drafting deeds of transfer to denote ‘anything and everything’ in a property.
* Like – ‘signed, sealed and delivered’; ‘rest, residue and remainder’; ‘if, as and when’.
Right, Title and Interest
‘Right’ stands for ‘legal right’ in a property.
‘Title’ bespeaks legal recognition of ‘ownership’ in a property.
‘Interest’ manifests outcome of ownership with ‘right and title’, including enjoyment in all and whatsoever manner.
In short, each of the upshot of the triplet, ‘Right, Title and Interest’, enunciates same thing when used in property dealings, though they are not synonyms in language and in jurisprudence.
Right, Title and Interest Constitute a Legal Triplet
Right, Title and Interest constitute a legal triplet.* It signifies ownership. It is used in drafting deeds of transfer to denote ‘anything and everything’ in a property.
* Like – ‘signed, sealed and delivered’; ‘rest, residue and remainder’; ‘if, as and when’.
Title, Possession and Ownership Constitute a Signified Triangle
Title, Possession and Ownership upon a property constitute a legally signified triangle.
Because,
Title (recognition of ownership) with possession manifest absolute rights over a property.
One can prove his ownership and right to possess, by establishing his title.
‘Possession is Good against all but the True Owner’.
When title on a property is transferred, the ownership and the right to possess also stands transferred.
‘Title’ encompasses capacity of individual to exercise absolute right over property and to exclude others.
Even if a person has no physical possession over a property, he can continue title in various ways.
If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the person in (adverse) possession may acquire an absolute title.
Right, Title and Interest
‘Right’ stands for ‘legal right’ in a property.
‘Title’ bespeaks legal recognition of ‘ownership’ in a property.
‘Interest’ manifests outcome of ownership with ‘right and title’, including enjoyment in all and whatsoever manner.
What is Title?
The word ‘Title’ conveys the idea as to a distinctive name given to a book, artistic work, case-name etc., or status conferred upon a person.
‘Title’ is the legal expression of right to ownership in a property. Hence, in law, “Title is the legal way of saying you own a right to something.”
Therefore, owner of a land holds title to the property (Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432) and also title to the easements.
When title on a property is transferred, the ownership also stands transferred.
‘Title’ encompasses capacity of individual to exercise absolute right over property and to exclude others.
A person who has title over a property, even if, has no physical possession thereof, can continue title in various ways.
What is Title in Property Law?
In property law, “title” is the legal recognition of the right to own, use, and dispose of property. However, it is not foolproof evidence of ownership; it may be a ‘title to hold the property on lease‘ or ‘title to easement‘ also.
A title deed is evidence or a legal expression of ownership. Or, it represents ownership. But it does not represent unfailing ownership by itself.
The ownership is a bundle of rights (possession, control, exclusion, enjoyment, and disposition)
In short, each of the upshot of the triplet, ‘Right, Title and Interest’, enunciates same thing when used in property dealings, though they are not be synonyms in language and in jurisprudence.
It may be full (absolute) or limited (e.g., leasehold or subject to conditions).
Black’s Law Dictionary defines “title” in relation to property as under:
“Title is the means whereby the owner of lands has the just possession of the property.
The union of all the elements which constitute ownership.
Full independent and free ownership.
The right to or ownership in land: also, the evidence of such ownership. Such ownership may be held individually, jointly, in common, or in cooperate or partnership form.
One who holds vested rights in property is said to have title whether he holds them for his own benefits or for the benefit of another.” (Quoted in: Usha Tandon alias Usha Gopalan v. Lilavati H. Hiranandani, 1991 4 BomCR 422)
Why a Title Deed Is NOT Fool-proof
Because there may be-
Forgery or fraud.
Claims of adverse possession.
Lack of perfect title on the transferor.
Prior claims of encumbrances, liens, easements, etc.
Invalidity in law for not fulfilling formalities, such as want of registration, insufficiency of stamp, etc., or mistakes in land description, cloud on title, etc.
Torrens System
The Torrens system was introduced to safeguard property transactions. It was implemented through the Real Property Act, 1858, in South Australia, brought forward by Sir Robert Richard Torrens. This Act established the first formal land registry, marking the birth of the Torrens title as a legal framework.
Subsequently, it was used in –
New Zealand
Canada – In provinces like British Columbia and Ontario
United Kingdom – Land Registration Act 2002 reflects Torrens-like principles
United States – In some states (e.g., Minnesota, Massachusetts)
India – In some states like Maharashtra (digital property cards) Kerala (Directed to attach Survey Plans to registered deeds, for registration in some Sub Registries, on Torrens principles).
Property is the Sum of a Bundle or Aggregate of Rights
In Guru Datta Sharma v. State of Bihar, AIR 1961 SC 1684,
“Property, as a legal concept, is the sum of a bundle of rights and in the case of tangible property would include –
the right of possession,
the right to enjoy,
the right to destroy,
the right to retain,
the right to alienate and so on.”
Also in Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432)
In Jilubhai Nanbhai Khachar v. State of Gujarat, AIR 1995 SC 142, it is held as under:
“Property in the legal sense means an aggregate of rights which are guaranteed and protected by law.”
Title and Ownership – two sides of the same coin
‘Title’ is also said to be the expression or declaration of a legally recognised right to‘Ownership’ of real property. In simple terms, it is said to be the ‘evidence of ownership’ of property.
Conversely, lawful ‘Ownership’ of a real property entitles ‘Title’ to the owner.
Therefore, both Title and Ownership are said to be the two sides of the same coin.
“Title thereto” in Definition of ‘Prescriptive Easement’ in Easement Act
Sec. 15 Easement Act reads as under:
“15. Acquisition by prescription: Where …… a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.”
In Surendrasingh v. Phirosahah, AIR 1953 Nag. 205, a Division Bench (Sinha C.J. and Hidayatullah, J.) held that the pleadings in a case dealing with easement have to be very precise. Following passage was quoted from Peacock – “Law Relating to Easements in British India” Third Edn., at page 608:
“As an easement is not one of the ordinary rights of ownership, it is necessary that either Party claiming or relying on an easement should plead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant“. (quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty, AIR1993 Ker 91, 1992 (1) Ker LT 775, (1993) ILR(Ker) 1 KER 331 (K.S. Paripoornan, J.)
No doubt, the words ‘title thereto‘ refers tile of ‘easement’ claimed; and the word ‘title’ was not used in the general sense now used (that is, absolute ownership) in the Indian Easements Act, 1882.
Following decisions refer this proposition –
Ramlal v. Tulsi Ram, 2014-3 CGLJ 369 (Chh),
Deo Kumar v. Kailash Chand, 2007-4 MPHT 151; 2008-1 MPLJ 123,
Patel Karshanbhai Bababhai v. Patel Bhaichandbhai Khushalbhai, 21 Jun 2001 (Guj),
Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker 405,
Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775,
D. Ramanatha Gupta v. S. Razaack, AIR 1982 Kar 314,
Surendrasingh v. Phirosahah, (Sinha C.J. & Hidayatullah, J.), AIR 1953 Nag. 205,
Siti Kantapal v. Radha Gobinda Sen, AIR 1929 Cal. 542,
Sultan Ahamed v. Waliullah, (1912) 17 Indian Cases 22.
Rent Control Acts enacted by various States say – where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court.
It is definite that this provision does not speak about the “ownership”; but only ‘title as the landlord‘.
Original and Derivative Title
Jurisprudentially titles have been recognised in two categories. One, “the original” and another is “the derivative”. The “original title” is that which is created a de novo while the “derivative title” is that which transfer an already existing right to a new owner. Catching of fish is an original title of the right of ownership, whereas purchase of fish results in the purchase a derivative title. (Sukh Lal v. Ashok Kumar Raghuwansi, 2013-3 ALJ 82 ).
What is Ownership?
In Mysore Minerals Ltd. , M. G. Road, Bangalore v. Commissioners of Income-Tax, Karnataka, Bangalore, AIR 1999 SC 3185, our Apex Court went deep to explain what is ownership. It observed, referring various definitions, as under:
“What is ownership? The terms ‘own’, ‘ownership’, ‘owned’ are generic and relative terms. They have a wide and also a narrow connotation. The meaning would depend on the context in which the terms are used.
Black’s Law Dictionary (6th Edition) defines ‘owner’ as under :-
“Owner. The person in whom is vested the ownership, dominion, or title of property; proprietor. He who has dominion of a thing, real or personal, corporeal or incorporeal, which he has a right to enjoy and do with as he pleases, even to spoil or destroy it, as far as the law permits, unless he be prevented by some agreement or covenant which restrains his right.
The term is, however, a nomen generalissimum, and its meaning is to be gathered from the connection in which it is used, and from the subject-matter to which it is applied. The primary meaning of the word as applied to land is one who owns the fee and who has the right to dispose of the property, but the terms also included one having a possessory right to land or the person occupying or cultivating it.
The term “owner” is used to indicate a person in whom one or more interests are vested for his own benefit……..”
In the same Dictionary, the term ‘ownership’ has been defined to mean, inter alia, as –
“Collection of rights to use and enjoy property, including right to transmit it to others……… The right of one or more persons to possess or use a thing to the exclusion of others. The right by which a thing belongs to some one in particular, to the exclusion of all other persons. The exclusive right of possession, enjoyment or disposal; involving as an essential attribute the right to control, handle, and dispose.”
Dias on Jurisprudence (4th Edn., at p. 400) states :
“The position, therefore, seems to be that the idea of ownership of land is essentially one of the `better right’ to be in possession and to obtain it, whereas with chattels the concept is a more absolute one. Actual possession implies a right to retain it until the contrary is proved, and to that extent a possessor is presumed to be owner.”
Stroud’s Judicial Dictionary gives several definitions and illustrations of ownership. One such definition is that the ‘owner’ or ‘proprietor’ of a property is the person in whom (with his or her assent) it is for the time being beneficially vested, and who has the occupation, or control, or usufruct, of it; e.g., a lessee is, during the term, the owner of the property demised.
Yet another definition that has been given by Stroud is:
” “owner” applies to every person in possession or receipt either of the whole, or of any part, of the rents or profits of any land or tenement; or in the occupation of such land or tenement, other than as a tenant from year to year or for any less term or as a tenant at will.”
Salmond
Salmond explained “ownership” as that ‘denotes the relation between a person and an object forming the subject-matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons. Though in certain situations some of these rights may be absent, the normal case of ownership can be expected to exhibit the following incidents’.
Salmond continued as under:
“Ownership, in its most comprehensive signification, denotes the relation between a person and any right that is vested in him. That which a man owns in this sense is in all cases a right.” (J. Deepak vs The Secretary To The Government (2021)
Salmond summed up the concept of ownership as under:
“Summing up the conclusion to which we have attained, we may define the rights of ownership in a material thing as the general, permanent and inheritable right to the uses of that thing.” (Quoted in: Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398)
Austin
Austin in his book Jurisprudence, 3rd Edn., page 817, defines the “right of ownership” as under:
“A right indefinite in point of user, unrestricted in point of disposition, and unlimited in point of duration over a determinate thing.” (Quoted in: Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398)
Incidence of Ownership
In Jilubhai Nanbhai Khachar v. State of Gujarat, 1995 AIR SC 142, it is held as under:
“42. Property in legal sense means an aggregate of rights which are guaranteed and protected by law. It extends to every species of valuable right and interest, more particularly, ownership and exclusive right to a thing, the right to dispose of the thing in every legal way, to possess it, to use it, and to exclude everyone else from interfering with it. The dominion or indefinite right of use or disposition which one may lawfully exercise over particular things or subjects is called property. The exclusive right of possessing, enjoying, and disposing of a thing is property in legal parameters. Therefore, the word ‘property’ connotes everything which is subject of ownership, corporeal or incorporeal, tangible or intangible, visible or invisible, real or personal; everything that has an exchangeable value or which goes to make up wealth or estate or status.” (Quoted in: Laljibhai Kadvabhai Savaliya v. State of Gujarat, AIR 2016 SC 4715)
It is observed, as to the theoretical concept of ‘ownership’, in Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398, as under:
“The theoretical concept of ‘ownership’, therefore, appears to be that a person can be considered to be owner if he has absolute dominion over it in all respects and is capable of transferring such ownership. Heritability and transferability are no doubt some of the many and may be most important ingredients of ownership. But they by themselves cannot be considered as sufficient for clothing a person with absolute ownership. Their absence may establish lack of ownership but their presence by itself is not sufficient to establish it.”
In Butterworth’s Words and Phrases Legally Defined, 2nd Edn., Vol. 4, page 61, ‘ownership’ has been defined as under:
“Ownership consists of innumerable rights over property, for example, the rights of exclusive enjoyment, of destruction, alteration, and alienation, and of maintaining and recovering possession of the property from all other persons. Such rights are conceived not as separately existing, but as merged in one general right of ownership. (Quoted in Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398.)
Pilla Akkayyamma v. Channappa, ILR 2015 Kar 3841; 2016-1 Kar LR 432, it is observed as under:
“Ownership imports three fundamental rights, namely, right to possession, right to enjoy and right to dispose. The owner of the property is not only entitled to possess but also has the right to exclude all others from the possession or enjoyment of it. If the owner is wrongly deprived possession, he has a right to recover possession from any person, who may possess it. But an absolute owner may deprive himself of such right by an assignment, e.g., grant of lease, and may thereby become a limited owner. The right to possession may be limited or restricted in various ways, either by a voluntary act or involuntarily. An owner who has, however, suffered a limitation in respect of his right to possession can hardly be regarded as an absolute owner.”
From the above, it is clear that the following rights are the incidence of ownership:
Possession,
absolute enjoyment,
exclude others, or exclusive enjoyment,
disposition or alienation,
abandon or destruction,
alteration,
maintain or retain possession,
recover possession.
Kinds of Ownership
Corporeal and Incorporeal Ownership
Corporeal ownership is the ownership in tangible material objects (land, building, machinery etc.). Ownership in the incorporeal or intellectual properties which cannot be perceived by senses is called Incorporeal Ownership (such as easement, copyright, trademark etc.).
Trust and Beneficial Ownership; Legal and Equitable Ownership
Under English law, there is ‘duel ownership’ on trust property. First is the ‘legal ownership’ – vested with trustee; and the second, the ‘equitable or beneficial ownership’ – vested with the beneficiary.
Vested and Contingent Ownership
Perfected and absolute title, unbounded by conditions, give rise to vested ownership. When it is subject to conditions and capable of becoming perfect on the fulfilment of conditions is contingent ownership.
Sole Ownership and Co-ownership
Sole ownership is the ownership of a single person. Co-ownership is the joint-ownership of more than one person.
Joint Ownership and Co-ownership
‘Tenants in common’ and ‘joint tenants’ differentiates Co-ownership and Joint Ownership
Absolute and Limited Ownership
Absolute title on property, unbounded by conditions creates absolute ownership. When it is circumscribed by imposition of rights of others or limited in its enjoyment (by restrictions in possession, disposal etc. or burdening by benefits as to trust) it is limited ownership.
Interpretation of Documents: On Issue on Ownership – Question of Law
In Bhikan Sk. Noor Mohd. vs Mehamoodabee Sk. Afzal, AIR 2017 SC 1243, our Apex Court observed that when the issues involved ‘ownership based on interpretation of documents (exhibits), the questions did constitute substantial questions of law’. It was further held as under:
“18. When the Court is called upon to interpret the documents and examine its effect, it involves questions of law, it is, therefore, obligatory upon the High Court to decide such questions on merits. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code. It was, however, not done.
19. The High Court thus, in our view, committed jurisdictional error when it dismissed the second appeal in limine. We cannot countenance the approach of the High Court.”
How One Can Prove Title to an Immovable Property
1. Registered Title Deedor Government Document (Patta): The primary document to prove ownership is the title deed, such as a sale deed, gift deed, partition deed, or Will. It must have been duly stamped and registered under the Registration Act.
2. Established Chain of Title and Possession: Even if the original title deed is lost or unavailable, ownership can be proved by establishing a continuous chain of title through:
Prior registered deeds
Inheritance or partition records
Possession-related documents
Supporting documents include:
Mutation entries
Revenue records (Khasra, Khatauni, etc.)
Municipal and survey records
Tax receipts, utility bills
Encumbrance Certificate (EC)
Building approval documents, residence proof, etc.
These supporting documents do not by themselves create title but serve as relevant evidence of ownership.
3. Adverse Possession (by Court Declaration). If a person has been in open, continuous, and hostile possession of the property for a statutory period (12 years), title can be acquired through adverse possession. Perfection of title by ‘Adverse Possession’ against the true owner must have been declared or accepted by a competent court. Because it remains inchoate (started, but not full-blown) until such title is declared or upheld by a competent court.
Part II
Settled Possession, Established Possession & Possessory Title
In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.
In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:
“13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. 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. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”
Possessory Title
The term ‘Possessory Title’ (in contrast to legally recognised ‘title appertain to ownership’) arises in the following situations-
1.Acquisition of ‘Original Title’: It is acquisition of title contradistinct to ‘derivative’ acquisition of title.
2.Possessory Title: ‘Possessory Title’ against everybody other than the lawful owner (For, possession by itself is a substantive right and good title; and ‘Right to Possession’ is a “Property”, under law).
3.Statutory titleby Adverse Possession: Perfection of title by ‘Adverse Possession’ against the true owner; i.e., (legal) acquisition of title as recognised by Sec. 27 of the Limitation Act. (K V Swamynathan v. E V Padmanabhan, 1991-1 JT 83, 1990-2 Scale 1326)
‘Possessory Title’- On the Premise that ‘Possession’ is aSubstantive Right
One who captures a property belonging to none, or reduces such a property to his possession, gets good title against the whole world – as in the case of birds in the air and fishes in the water. And, if it belongs to another, possession of the holder of such property is good title against all but the true owner (Somnath Barman v. Dr. SP Raju AIR 1970 SC 846, 1969-3 SCC 129); because, possession is the most important objective expression of ownership. According to Salmond, possession is the most basic relationship between men and things, and the possessor should have the ‘animus’ to possess the ‘corpus’.
‘Rival Titles’ in Adverse Possession – Title by ownership & Title by possession
Possessory title by adverse possession is basically a philosophical concept of property law; and it is merely acknowledged in common law and in the Limitation Act. It is explained in the thought provoking article, “Possessory Title: Its True Nexus with the Law of Limitation and the ‘Theory of Relativity’ ” by Anoop Bhaskar, Advocate, Thiruvananthapuram (2022 KLT). It is also pointed out that there are two ‘rival titles’ in a case of adverse possession; i.e., title by ownership (pertain to true owner) & title by possession (pertain to trespasser).
When a plea on adverse possession is propped up, the judicial determination is warranted on rival claims on ‘title on ownership’ and ‘title by adverse possession’; and also, ‘presumptions on title’ and ‘presumptions on possession’. If the trespasser can prove adverse possession against the true owner, as provided under Article 65 of the Limitation Act, the law favours the trespasser endorsing his Possessory Title. The learned author lays down the doctrine of ‘preference’ upon the two ‘rival titles’ as under:
“It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. … In other words, the possessor will have an entitlement to the right to possess the land against others; i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute, i.e., title to ownership & title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor.”
Legal Ownership and Possessory Title
The Bombay High Court, in a tort-action for negligence in respect of loss or damage to goods, it is held in Dreymoor Fertilizers Overseas Pte. Ltd. v. M. V. Theoforos-1, a vessel flying the flag of Panama (Decided on 18 Mar 2014) that – to maintain a claim in negligence, legal ownership of or a possessory title to the property must be proved; and that the ‘contractual rights’ upon the goods alone are not sufficient. It is observed as under:
21.1 The leading authority in regard to a claim in negligence for loss or damage to cargo is the case of Aliakmon (1986) Vol. 2 Lloyds Law Reports Pg.1) in which the House of Lords has on page 4 set out the legal position :
“My Lords, there is a long line of authority for the principle of law that in order to enable a person to claim in negligence for loss caused to him by reason of loss or damage to property, he must have had either the legal ownership or possessory title to the property concerned at the time when the loss or damage occurred and it is not enough for him to have only had contractual right in relation to such property which has been adversely affected by the loss of or damage to it.”
21.2 Thus, for the plaintiff to maintain a claim in negligence, he must show that he either had legal ownership of or a possessory title to the property or goods or cargo, whatsoever one may call, at the time when the loss or damage occurred. During the course of submissions, counsel for the plaintiff accepted that the test set out above in the Aliakmon (supra) is the correct test to be applied in order to determine whether the plaintiff can make a claim in tort. Counsel for the plaintiff further accepted that the plaintiff does not have possessory title to the property but has legal ownership and is entitled to maintain a claim in tort.”
In this decision (Dreymoor Fertilizers Overseas), while holding that the only person who had ownership rights alone is entitled for damages, it is held as under:
“The law was and always had been that an action for negligence in respect of loss or damage to goods could not succeed unless plaintiff was, at the time of tort complained of, owner of goods or person entitled to possession of them. The duty of care is owed only to the owner of the goods or the person entitled to possession [The Wear Breeze] (1967) Vol 2 Lloyds Law Reports Pg 315). As mentioned above, the plaintiff was neither the owner nor entitled to possession. Accordingly defendant owed no duty of care to the plaintiff at the time when goods were damaged.
In paragraph 5-111, Page 236 from the book “Carver on Bills of Lading 1st Ed.” relied upon by the plaintiff, it reads as under:
“….Having no proprietary or possessory rights in the goods, the buyers were simply in the position of persons whose contractual rights to the goods against the seller had been adversely affected by the negligence of the carrier in damaging the goods; and many authorities establish that prejudice of this kind is not sufficient to give rise to a cause of action in negligence.”
“Legal Ownership” to denote the Ultimate Ownership
The term “legal ownership” is also used in our jurisprudence to denote the ultimate ownership. It can be seen in Food Corporation of India v. Brihanmumbai Mahanagar Palika, 2020-3 JT 419: 2020-5 Scale 750: AIRONLINE 2020 SC 391: 2020 SCC Online 1105, our Apex Court, while considering the ownership of land :
“17. Before proceeding further, we may notice the factum of ownership of the property including the godowns thereon. As noticed above, the land was acquired by the State of Bombay for the Central Government and it was the Central Government, which constructed the godowns thereon. The earlier Division Bench judgment of Bombay High Court dated 03.12.1992 in Civil Appeal No. 259 of 1989 has been referred to and relied by the appellant, by which judgment, the Division Bench has set aside the levy of non-agricultural assessments as imposed on the appellant. The Division Bench in the above judgment has also accepted the case of the appellant that legal ownership of the land and the structures vests with the Government.”
Part III
Possession and Adverse Possession
‘Ownership’ bestows social recognition to possess and enjoy a property, absolutely. Therefore, it is the relation between a person and the property.
Possession is a good Title against any one who cannot show a better. If ‘no Title in either party, possession alone decides’.
The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner);
because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).
Continuance of ‘Adverse Possession’ for 12 years confers ‘Title’ under Sec. 27, Limit. Act.
But, rights under ‘adverse’ possession will be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.
Possessory Title & Adverse Possession
If ‘no title in either party, possession alone decides’.
Possession is a good title of right against any one who cannot show a better.
‘Possession is Good Against All But the True Owner’ & Sec. 6 of the Sp. Relief Act
The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73.
The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’. It is held in this decision that if ‘no title in either party, possession alone decides‘.
In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:
“17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), 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.”
Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised.”
In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:
“9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond.
Salmond on Jurisprudence states:
“These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.x x x x xIn English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
11. It was also observed by this Court in Nair Service Society Ltd. (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”
Present Indian Law on Adverse Possession
In Parry v. Clissold, (1907) AC 73 it was pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner would acquire an absolute title.
After the Limitation Act, 1963, the legal position in India, on Adverse Possession, has been changed as under:
If the rightful owner did not come forward and assert his title within the period of limitation, his right may be extinguished and the (adverse) possessory owner may acquire an absolute title.
Because,
Articles 65 of the Limitation Act, 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession.
The 3 important modern propositions brought-in as to adverse possession (in India) are:
Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
Trespasser must know who the true owner is.
Burden to plead and prove adverse possession is upon the defendant.
Adverse possession arises from the provisions in Article 65 of Limitation Act, 1963. ‘Positive and hostile acts’ of the trespasser is the pre-requirement of Adverse Possession; because, mere possession is not sufficient under Article 65, but it requires ‘adverse’ possession.
65. For possession of immovable property or any interest therein based on title.
12 years
When the possession of Defendant becomes adverse to the plaintiff.
In T. Anjanappa v. Somalingappa, (2006) 7 SCC 570, it is observed that the possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.
Following are the other important decisions on adverse possession:
Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096
PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753
Ravinder Kaur Grewal v. Manjit KaurAIR 2019 SC 3827.
Prescriptive Rights – Inchoate until the title is upheld by a competent court
The ‘adverse’ possession of a property by one person (trespasser), for 12 years, bars the right to ‘recovery’ by the person in (earlier) lawful possession (or, the true owner). Because, Article 65 of the Limitation Act lays down 12 years as the period for (recovery of) possession of immovable property (or any interest therein based on title), from a person in ‘adverse’ possession (trespasser).
No doubt, it is true, one can acquire right of easement or adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until such title is declared or upheld by a competent court.
It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court.
Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in:
Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574;
Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97.
See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.
In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:
“It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314.)
In Ramanunni Vaidyar v. Govindankutty Nair, 1998(2) Ker LT 47, it is found that a person who has not acquired or perfected a right cannot maintain an action against the owner of the land over which the right is claimed. It is held as under:
In my view, on the basis of an inchoate right or a right which has not ripened into an easement by prescription, but is merely one of user, no relief can be granted to the user of them as against the owner of that land. In other words, a right, properietory or otherwise, has to be shown for obtaining relief (Krishna Pillai v.Kunju Pillai 1990 (1) KLT 136, referred to).
S. 27, Lim. Act Gives Substantive Right so as to Seek Declaration and Recovery
Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.
Sec. 27 of the Limitation Act speaks that at the determination of the period “hereby limited to any person for instituting a suit for possession of any property”, his right to such property shall be extinguished.
The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
Adverse possession confers title under Sec. 27 (by necessary implication, because extinguished title of real owner comes to vest in wrongdoer – because, rights thereon had already been lost to the true owner, and passed over to the ‘possessory/adverse’ owner).
Therefore it is clear that Sec. 27 is a provision in the Limitation Act that gives a substantial right to a party.
Person Acquiring Title by Adverse Possession can use it as a Sword
In view of Sec. 27 one can seek declaration of title by adverse possession and consequential injunction or recovery. That is why it is held in Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729, that the person acquiring title by adverse possession can use it as a sword.
No Decree for Injunction if Possession found to be Illegal
The findings of the High Court in the decision considered by the Supreme Court, in Kesar Bai v. Genda Lal, 2022-10 SCC 217, were the following:
the plea of ownership based on sale deed and plea of adverse possession were contrary to each other;
the plaintiffs could not have been permitted to take both the pleas at the same time;
however, the plaintiff being in possession of the suit land since the execution of the said sale deed, the plaintiff was entitled for injunction on the basis of his possession.
Setting aside the High Court judgment the Apex Court held as under:
“The possession/alleged possession of the plaintiffs could not have been protected by passing a decree of permanent injunction in favour of the plaintiffs”.
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.”
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