Author Archives: sajikoduvath

INJUNCTION is a ‘Possessory Remedy’ in Indian Law

Saji Koduvath, Advocate, Kottayam.

Introspection

  • Divergent views exist as to injunction against “true owner”.
    • One view is that no injunction can be passed in a suit filed by the person in unlawful possession (against the true owner).
      • See: Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (Two Judge Bench).
    • The other view is that a trespasser also 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).
  • Legal principles have to be evolved and an authoritative judicial pronouncement has to be penned-down taking note of conflicting views on this subject and laying down cogent and rationale reasoning.

Nutshell of the Contents

  • Possession is a substantive right.
  • It is heritable and transferable.
  • Courts protect settled possession.
  • Injunction is a possessory remedy.
  • It is not necessary for the person claiming injunction, to prove his title.
  • It would suffice if he can prove his lawful possession and that his possession is invaded or threatened to be invaded (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769).
  • Usually, Injunction is not ordered against a true owner.
  • It is not passed to favour a trespasser or a person in unlawful possession.
  • Person in ‘lawful possession’ may get injunction even against true owner – not to disposes, except in due process of law; But, Not After Cancellation (by Court) of the Sale Deed he relied (2022 SCC OnLine SC 258).

Possession is a Substantive Right

  • Possession by itself is a substantive right recognised by law. It is heritable and transferable.
    • 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). 

Injunction is a Possessory Remedy

  • It is trite law that courts protect settled possession. It is trite law that courts protect settled possession. Person claiming injunction, need to prove Lawful Possession only.
    • Poona Ram v. Moti Ram, AIR 2019 SC 813
    • Aarthiv. Aruna Gautham. 2015 -1 RCR (Civil) 160,
    • Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769.
    • Krishna Ram Mahale v. Shobha Venkat Rao, (1989) 4 SCC 131
    • Munshi Ram v. Delhi Administration, (1968) 2 SCR 455,
    • Puran Singh v. The State of Punjab, (1975) 4 SCC 518
    • Ram Rattan v. State of Uttar Pradesh, (1977) 1 SCC 188.
  • But, an injunction cannot be issued against a true owner or title holder, and in favour of a trespasser or a person in unlawful possession.
    • See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.
    • Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 Kar 1710, 1987 (1) KarLJ 402.
    • Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kar 194, ILR 1985 Kar 3700, 1985 (2) KarLJ 533.
    • Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145

Rame Gowda Case – Person claiming injunction, Need to prove Lawful Possession only

The law on these subjects are clearly laid down in Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769. Following were the fact situation of the case:

  • The suit filed by the plaintiff was based on his title.
  • Declaration of title was not sought for though it was in dispute.
  • The defendant contended that (i) the suit being based on title and (ii) the plaintiff failed in proving his title, the suit should be dismissed without regard to (a) the fact that the plaintiff was in possession and (b) ‘whether the defendant had succeeded in proving his title or not’.

Our Apex Court held that there was no merit in the contentions of the defendant and observed that no one would be permitted to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court, as the law respects possession even if there is no title to support it.

Finally it was held that it was not necessary for the person claiming injunction, to prove his title to the suit land, and it would suffice if he proved that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. Our Apex Court held as under:

  • “Salmond states in Jurisprudence (Twelfth Edition),
    • “few relationships are as vital to man as that of possession, and we may expect any system of law, however primitive, to provide rules for its protection. . . . . . . Law must provide for the safeguarding of possession. Human nature being what it is, men are tempted to prefer their own selfish and immediate interests to the wide and long-term interests of society in general. But since an attack on a man’s possession is an attack on something which may be essential to him, it becomes almost tantamount to an assault on the man himself; and the possessor may well be stirred to defend himself with force. The result is violence, chaos and disorder.” (at pp. 265, 266).
    • “In English Law possession is a good title of right against anyone 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.” (Salmond, ibid, pp. 294-295)
    • “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).” (Salmond, ibid, p.295)
  • The law in India, as it has developed, accords with the jurisprudential thought as propounded by Salmond. In Midnapur Zamindary Co. Ltd. Vs. Kumar Naresh Narayan Roy and Ors. 1924 PC 144, Sir John Edge summed up the Indian law by stating that in India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court.
  • The thought has prevailed incessantly, till date, the last and latest one in the chain of decisions being Ramesh Chand Ardawatiya Vs. Anil Panjwani  (2003) 7 SCC 350. In-between, to quote a few out of severals, in Lallu Yeshwant Singh (dead) by his legal representative Vs. Rao Jagdish Singh and others  (1968) 2 SCR 203, this Court has held that a landlord did commit trespass when he forcibly entered his own land in the possession of a tenant whose tenancy has expired. The Court turned down the submission that under the general law applicable to a lessor and a lessee there was no rule or principle which made it obligatory for the lessor to resort to Court and obtain an order for possession before he could eject the lessee. The court quoted with approval the law as stated by a Full Bench of Allahabad High Court in Yar Mohammad Vs. Lakshmi Das (AIR 1959 All. 1,4),
    • “Law respects possession even if there is no title to support it. It will not permit any person to take the law in his own hands and to dispossess a person in actual possession without having recourse to a court. No person can be allowed to become a judge in his own cause.”
  • In the oft- quoted case of Nair Service Society Ltd. Vs. K.C. Alexander and Ors. (1968) 3 SCR 163, this Court held 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 all the world but the rightful owner. When the facts disclose no title in either party, possession alone decides. The court quoted Loft’s maxim  ‘Possessio contra omnes valet praeter eur cui ius sit possessionis (He that hath possession hath right against all but him that hath the very right)’ and said,
    • “A defendant in such a case must show in himself or his predecessor a valid legal title, or probably a possession prior to the plaintiff’s and thus be able to raise a presumption prior in time”. 
  • In M.C. Chockalingam and Ors. Vs. V. Manickavasagam and Ors. (1974) 1 SCC 48, this Court held that the law forbids forcible dispossession, even with the best of title. In Krishna Ram Mahale (dead) by his Lrs. Vs. Mrs. Shobha Venkat Rao (1989) 4 SCC 131, it was held that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. In Nagar Palika, Jind Vs. Jagat Singh, Advocate  (1995) 3 SCC 426, this Court held that disputed questions of title are to be decided by due process of law, but the peaceful possession is to be protected from the trespasser without regard to the question of the origin of the possession. When the defendant fails in proving his title to the suit land the plaintiff can succeed in securing a decree for possession on the basis of his prior possession against the defendant who has dispossessed him. Such a suit will be founded on the averment of previous possession of the plaintiff and dispossession by the defendant.
  • It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from 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 he cases, the possession of the trespasser, just entered into would not be called as one acquiesced to by the true owner.
  • It 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. The concept of settled possession and the right of the possessor to protect his possession against the owner has come to be settled by a catena of decisions.
  • Illustratively, we may refer to Munshi Ram and Ors. Vs. Delhi Administration  (1968) 2 SCR 455, Puran Singh and Ors. Vs. The State of Punjab  (1975) 4 SCC 518 and Ram Rattan and Ors. Vs. State of Uttar Pradesh  (1977) 1 SCC 188. The authorities need not be multiplied.
  • In Munshi Ram & Ors.’s case (supra), it was held that no one, including the true owner, has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in the due course of law, he is entitled to defend his possession even against the rightful owner. But merely stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be settled possession, extending over a sufficiently long period of time and acquiesced to by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than is necessary. Such entry will be viewed only as resistance to an intrusion upon his possession which has never been lost. 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. In Puran Singh and Ors.’s case (supra), the Court clarified that it is difficult to lay down any hard and fast rule as to when the possession of a trespasser can mature into settled possession. 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 strait-jacket. 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. The court laid down the following tests which may be adopted as a working rule for determining the attributes of ‘settled possession’:
    • i) that the trespasser must be in actual physical possession of the property over a sufficiently long period;
    • ii) that the possession must be to the knowledge (either express or implied) of the owner or without any attempt at concealment by the trespasser and which contains an element of animus possidendi. The nature of possession of the trespasser would, however, be a matter to be decided on the facts and circumstances of each case;
    • iii) the process of dispossession of the true owner by the trespasser must be complete and final and must be acquiesced to by the true owner; and
    • iv) that one of the usual tests to determine the quality of settled possession, in the case of culturable land, would be whether or not the trespasser, after having taken possession, had grown any crop. If the crop had been grown by the trespasser, then even the true owner has no right to destroy the crop grown by the trespasser and take forcible possession.
  • In the cases of Munshi Ram and Ors. (supra) and Puran Singh and Ors. (supra), the Court has approved the statement of law made in Horam Vs. Rex  AIR 1949 Allahabad 564, wherein a distinction was drawn between the trespasser in the process of acquiring possession and the trespasser who had already accomplished or completed his possession wherein the true owner may be treated to have acquiesced in; while the former can be obstructed and turned out by the true owner even by using reasonable force, the latter, may be dispossessed by the true owner only by having recourse to the due process of law for re-acquiring possession over his property.
  • In the present case the Court has found the plaintiff as having failed in proving his title. Nevertheless, he has been found to be in settled possession of the property. Even the defendant failed in proving his title over the disputed land so as to substantiate his entitlement to evict the plaintiff. The Trial Court therefore left the question of title open and proceeded to determine the suit on the basis of possession, protecting the established possession and restraining the attempted interference therewith. The Trial Court and the High Court have rightly decided the suit. It is still open to the defendant-appellant to file a suit based on his title against the plaintiff-respondent and evict the latter on the former establishing his better right to possess the property.”

Finally, the Supreme Court held as under:

  • “In Kallappa Rama Londa’s case, the learned Single Judge has upheld the maintainability of a suit merely seeking injunction, without declaration of title, and on dealing with several decided cases the learned Judge has agreed with the proposition that where the suit for declaration of title and injunction is filed and the title is not clear, the question of title will have to be kept open without denying the plaintiff’s claim for injunction in view of the fact that the plaintiff has been in possession and there is nothing to show that the plaintiff has gained possession by any unfair means just prior to the suit. That is the correct position of law. In Fakirbhai Bhagwandas and Anr. Vs. Maganlal Haribhai and Anr. AIR 1951 Bombay 380 a Division Bench spoke through Bhagwati, J. (as his Lordship then was), and held that it is not necessary for the person claiming injunction to prove his title to the suit land. It would suffice if he proves that he was in lawful possession of the same and that his possession was invaded or threatened to be invaded by a person who has no title thereof. We respectfully agree with the view so taken.” 

In Kantappa v. Krishnabai, AIR 1995 Kant 213, a decision of the Division Bench of Karnataka High Court (consisting of M.N. Venkatachaliah and N.R. Kudoor, JJ.), has held as under:

  • “An intending transferee under a contract for sale of immovable property, who is put in possession of the properly in part performance of the contract, can as a plaintiff bring an action for the possessory remedy of an injunction in protection of his possession against the transferor”. (Quoted in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145)

CHANGE IN THE VIEW OF THE APEX COURT

  • A person may get injunction against true owner – not to disposes, except in due process of law, If in ‘lawful possession’;
  • But, Not After Cancellation of the Sale Deed (by Court) he relied on.

Our Apex Court held in Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022-2 RCR (Civil) 395; 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.) as under:

  • “9.3 In the case of A. Subramanian Vs. R. Pannerselvam, (2021) 3 SCC 675, 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.”
    • Note: It is not specifically stated in this decision (Prahladji Chenaji v. Maniben Jagmalbhai) that one can resume possession using force.

Section 6 of the Specific Relief Act

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

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

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

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

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

Now it is settled that if one fails to exercise his option by filing a suit under Section 6 of the Specific Relief Act within six months, he is at liberty to file a suit to recover his possession (with or without declaration) by a regular suit for recovery of possession. It can be based on title or on his possession in assumed or presumed character of ownership (even if title not perfected by doctrine of adverse possession) on the principle that possession is good title against all the world but the rightful owner.

The law on this matter is laid down in detail in Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179. It is observed as under:

  • “6. Possession by itself is a substantive right recognised by law and has legal incidents attached to it apart from ownership. Even before the acquisition of statutory title by adverse possession for the requisite period under the Limitation Act, the possessory owner has well defined rights in property. It is now settled beyond all dispute that this interest is heritable, devisable and transferable. This interest is referred to as possessory title as distinct from proprietary title. A person having such interest must be allowed to enforce those rights against all the world except those who have a better title or better right than himself.
  • Salmond on Jurisprudence, Eleventh edition, observes at page 345 :
    • “In 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.”
  • and at pages 473 and 474 it is observed:
    • “On the other hand, the thing of which possession is taken may already be the property of some one else. In this case the title acquired by possession is good, indeed, against all third persons, but is of no validity at all against the true owner. Possession, even when consciously wrongful, is allowed as a title of right against all persons who cannot show a better, because a prior title in themselves. Save with respect to the rights of the original proprietor, my rights to the watch in my pocket are much the same whether. I bought it honestly, or found it, or abstracted it from the pocket of some one else. If it is stolen from me, the law will help me to the recovery of it. I can effectually sell it, lend it, give it away, or bequeath it, and it will go on my death intestate to my next of kin. Whoever acquires it from me, however, acquires in general nothing save my limited and imperfect title to it, and holds if, as I do, subject to the superior claims of the original owner.
    • XX XX XX
    • If a possessory owner is wrongfully deprived of the thing by a person other than the true owner he can recover it. For the defendant cannot set up as a defence his own possessory title since it is later than and consequently inferior to, the possessory title of the plaintiff. Nor can he set up as a defence the title of the true owner–the jus tertii as it is called; the plaintiff has a better, because an earlier, title than the defendant, and it is irrelevant that the title of some other person, not a party to the suit, is better still. The expediency of this doctrine of possessory ownership is clear. Were it not for such a rule, force and fraud would be left to determine all disputes as to possession, between persons of whom neither could show an unimpeachable title to the thing as the true owner of it.”
  • Pollock & Wright in their book ‘Possession in the Common Law’ expressed themselves thus at page 91:
    • “Existing possession, however acquired, is protected against any interference by a mere wrongdoer; and the wrongdoer cannot defend himself by showing a better title than the plaintiff’s in some third person though or under whom he docs not himself claim or justify. ‘Any possession is a legal possession‘–i.e. lawful and maintainable–against a wrong doer.”
  • and at page 95:
    • “It would be possible at first sight to suppose that, as between a succession of independent occupiers who were all wrongdoers as against the true owner, the law must be indifferent, with the result of conferring an absolute title upon the person who happens to he in possession when the time of limitation expires. Reflection, however, shows this to be contrary to the reason and principles of the law. Possession being once admitted to be a root of title, every possession must create a title which, as against all subsequent intruders, has all the incidents and advantages of a true title. In the language of the modern authorities, ‘Possession is good title‘– nothing less–‘against all but the true owner‘.”
  • 7. The English doctrine of possessory title is expressed in the following terms by Cockburn, C. J., in Asher v. Whitelock, (1865) 35 LJQB 17:
    • “I take it to be established by authority that possession is good against all the world except the person who can show a better title than the one in possession Doe d Hughes v. Dyeball, (1829 Moo & M 346) shews that possession, even for a year, is sufficient against a mere subsequent possession. The whole law of disseisin was founded upon the principle that the desseisin gives title to the disorder against all the world but the disseisee.”
  • 8. Their Lordships of the Judicial Committee of the Privy Council in Perry v. Clissold, 1907 AC 73 at p. 79 decided:
    • “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 process of law within the period prescribed by the provisions of the Statute of Limitations applicable to the case, his right is for ever extinguished, and the possessory owner acquires an absolute title.”
  • 9. The above is certainly the doctrine of English Law. The rule of English Law that possession is good title against all but the true owner has been adopted by the decisions of the Indian High Courts and also by the decisions of the Judicial Committee of the Privy Councilin the Indian cases. In Khajah Enaetoollah Chowdhry v. Kishen Soondur Surma, (1867) 8 Suth WR 386 at pp. 387 and 388, Dwarkanath Mitter, J. posed the question thus:
    • ”Can the Civil Courts give a decree for immovable property on the bare ground of illegal dispossession in a suit brought after six months from the date of such dispossession, it being borne in mind, however, that the defendant has failed to prove his own title to the same?”
  • and answered the same in the following terms:
    • But we do not see any reason why a mere wrongful dispossess or should require proof from his adversary of anything beyond the illegal dispossession complained of. He himself has not got and never had any title to the land. The act of dispossession committed by him has been entirely without any sanction from law. Justice and equity require that he should be compelled to restore the party wronged by him to the same position which the latter enjoyed before the dale of the illegal ejectment. To adopt the contrary view appears to us to be tantamount to holding out a premium in favour of wrong and violence”
  • and in Hari v. Dhondi, (1906) 8 Bom LR 96 Sir Lawrence Jenkins, C. J. said:
    • “Possession is evidence of ownership, and is itself the foundation of a right to possession.”
  • and Subramania Ayyar, J. in Mustapha Saheb v. Santha Pillai, (1900) ILR 23 Mad 179 at p. 182 said:
    • “that the rule of law that a party ousted by a person who has no better right is, with reference to the person so ousting, entitled to recover by virtue of the possession he had held before the ouster even though that “possession was without any title” is so firmly established as to render a lengthened discussion about it quite superfluous.”
  • 10. In Sundar v. Parbati, (1890) ILR 12 All 61 (PC) decided by their Lordships of the Judicial Committee of the Privy Council, the suit was for partition and recovery of possession filed by the junior widow of a deceased Hindu against the senior widow who denied the junior widow’s right to separate possession and contended that she was entitled to manage the whole estate. The Subordinate Judge decreed the plaintiff’s suit. A Bench of the Allahabad High Court reversed the decree of the Subordinate Judge and dismissed the suit. Lord Watson delivering the Judgment of the hoard, observed at page 57:
    • “If it were necessary to determine the point, their Lordships would probably have little difficulty in accepting the opinion of the High Court that a Hindu Brahman cannot lawfully adopt his own sister’s son. But apart from that question, and also from any question touching the legal effect of Baldeo Sahai’s will the fact of joint possession by the two widows of the estates which belonged to the testator, ever since the death of Premsukh in 1879, appears to them to be sufficient for disposing of this suit in favour of the appellant. Their Lordships are at a loss to understand, at all event to appreciate, the grounds upon which the Chief Justice endeavours to differentiate between the authorities which he cites, the import of which he correctly states, and the position of the parties to this action. Their possession was lawfully attained, in this sense, that it was not procured by force or fraud, but peaceably, no one interested opposing. In these circumstances, it does not admit of doubt that they were entitled to maintain their possession against all coiners except the heirs of Premsukh or of Baldco Sahai, one or other of whom (it is unnecessary to say which) is the only person who can plead a preferable title. But neither of these possible claimants is in the field, and the widows have therefore, each of them, an estate or interest in respect of her possession, which cannot be impaired by the circumstance that they may have ascribed their possession to one or more other titles which do not belong to them. It is impossible to hold that a joint estate is not also partible; and their Lordships will therefore humbly advise Her Majesty that the judgment of the High Court ought to be reversed, and that of the Subordinate Judge restored.”
  • The above principle was reiterated by their Lordships of the Judicial Committee in Ismail Ariff v. Mahomed Ghous, (1893) ILR 20 Cal 834 (PC). At page 843 their Lordships observed:
    • “It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 9 of the Specific Relief Act (Act 1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could, by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should be able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession. Die Appellate Court, in accordance with the judgment above quoted, has dismissed the suit. Consequently, the defendant may continue to wilfully, improperly and illegally interferes with the plaintiff’s possession, as the learned Judge say he has done, and the plaintiff has no remedy. Their Lordships are of opinion that the suit should not have been dismissed; and that the plaintiff was entitled in it to a declaration of his title to the land.”
  • The principle underlying the rule that possession is a good title against all the world except the person who can show a better title is staled thus in Narayana Row v. Dharma-char, (1903) ILR 26 Mad 514 at p. 518:
    • “The principle underlying the rule of law in question seems to be that acquisition of title by operation of the law of limitation being a lawful mode of acquiring title, the person in peaceable possession is entitled to maintain such possession against all but the true owner and that therefore a third party who has no better title than the person in possession has no right to invade upon the possession of the latter and interrupt or arrest his lawful acquisition of title by his continuing to remain in possession for the statutory period. It is the true owner alone that is entitled to assert his title as against the person wrongfully in possession, and prevent such wrongful possession ripening into prescriptive title. But a third party who without deriving title under the true owner and without his authority, interrupts such possession before it has ripened into prescriptive title, is a trespasser, not only against the true owner, but also against the party actually in possession; and, subject to the law of limitation, either of them is entitled to maintain a suit in ejectment against such intruder as a trespasser.”
  • 11. We are therefore of the view that a person in juridical possession, if dispossessed by a trespasser without title, can recover possession on the sole ground of his prior possession even beyond six months from the date of dispossession and this is enough to dispose of the second appeal.
  • 12. But the learned advocate for the appellant relying on the decision in Nisa Chand Gaita v. Kanchiram Bagani, (1899) ILR 26 Cal 579 submitted that mere previous possession for any period short of the statutory period of twelve years will not entitle a plaintiff to a decree for recovery of possession in a suit brought more than six months after dispossession, even if the defendant could not establish any title to the disputed land. The point which arose for decision in (1899) ILR 26 Cal 579 was whether the plaintiff is entitled to a decree merely upon proof of previous possession for a period less than twelve years, on the ground that the defendant has established no title, the suit having been brought more than six months after the date of dispossession. (1893) ILR 20 Cal 834 (PC) was distinguished thus:
    • “There (in 1893) ILR 20 Cal 834 (PC) the plaintiff was in possession when he brought his suit, whereas in the present case the plaintiff is out of possession. What the plaintiff asked for in the case of Ismail Ariff v. Mahomed Ghous (1893-20 Cal 834 PC) was a decree declaring his right, and an injunction restraining the defendant from disturbing his possession; what the plaintiff asks for in this case is only recovery of possession; and what was said by their Lordships of the Judicial Committee with reference to the plaintiff’s right to obtain this relief is to be found in the following passage of their judgment:
    • “It appears to their Lordships that there is here a misapprehension of the nature of the plaintiff’s case upon the facts stated in the judgment. The possession of the plaintiff was sufficient evidence of title as owner against the defendant. By Section 9 of the Specific Relief Act (1 of 1877), if the plaintiff had been dispossessed otherwise than in due course of law, he could by a suit instituted within six months from the date of the dispossession, have recovered possession, notwithstanding any other title that might be set up in such suit. If he could thus recover possession from a person who might be able to prove a title, it is certainly right and just that he should he able, against a person who has no title and is a mere wrongdoer, to obtain a declaration of title as owner, and an injunction to restrain the wrong-doer from interfering with his possession.”
    • This shows, as we understand the judgment, that the reason for their Lordships’ decision was this that as the plaintiff, had his position been rendered somewhat worse by his being dispossessed, could, by instituting a suit within six months for recovery of possession under Section 9 of the Specific Relief Act, have recovered possession even as against a person who might establish a better title, it was only right and just that if he brought his suit before he was dispossessed he could be declared entitled to retain possession as against a mere wrong-doer, and should obtain an injunction restraining the wrong-doer from interfering with his possession. But, though that was so in the case of a plaintiff who was in possession, and had, therefore, a possibility open to him of being restored to possession upon mere proof of possession, by instituting a suit under section 9 of the Specific Relief Act upon being dis-possessed, it does not follow that it should be so in the case of a plaintiff who had been in possession, and allowed more than six months to elapse after his dispossession, and therefore, lost the possibility of recovering possession, by a suit under Section 9 of the Specific Relief Act, upon mere proof of previous possession.”
  • 13. Distinguishing (1893) ILR 20 Cal 834 (PC) in the above manner, the Calcutta High Court in (1899) ILR 26 Cal 579 sought support for the dictum in the following observations of the Privy Council in J. P. Wise v. Ameerunnissa Khatoon, (1879-80) 7 Ind App 73 at p. 80 (PC):
    • “It is quite clear that the plaintiffs have failed to make out a title. The Defendants were put into possession by the Government, who were entitled to the lands, and they were ordered by the Magistrate under the Code of Criminal Procedure to be retained in possession. If the Plaintiffs had wished to contend that the Defendants had been wrongfully put into possession and that the Plaintiffs were entitled to recover on the strength of their previous possession without entering into a question of title at all, they ought to have brought their action within six months under Section 15 of Act XIV of 1859; but they did not do so. The High Court, with reference to this point say (and in their Lordships’ opinion, correctly say) : “Further, de facto possession having been given to the Defendants under Section 318 of the Code of Criminal Procedure, in accordance with the Deputy Collector’s award, the plaintiff will not be entitled to a decree until and unless he can show a better title to these lands than the Defendants. The fact that the Plaintiffs’ posses sion as regards B, C, and D was confirmed under Act IV of 1840, and that the defendants Nos. 2 and 3 unsuccessfully endeavoured to dis-turb them by regular suit, does not bar the right of Government. Section 2 of Act IV of 1840 only affects persons concerned in the dispute. If Kalkini-hud belonged to a private individual he might have reduced into his own possession lands which had accreted to the estate and which undoubtedly were his. But lands to which he is unable to make out a title cannot he recovered on the ground of previous possession merely, except in a suit under Section 15 of Act XIV of 1859, which must be brought within six months from the time of that dispossession.”
  • The Calcutta High Court on an interpretation of (1893) ILR 20 Cal 834 (PC) and (1879 80) 7 Ind App 73 (PC) has therefore taken the view that Section 9 of the Act operates as a bar to the institution of suits in which the claim for possession of any immovable property is based on anything but proprietary title.
  • 14. On the other hand, the decision in (1893) ILR 20 Cal 834 (PC) was relied on by the other High Courts for the position that possessory title can be made the foundation for suits in ejectment filed after six months from the date of dispossession against trespassers who have no title.
  • 15. The effective answer to the basis of the decision of the Calcutta High Court in (1899) ILR 26 Cal 579 has been furnished by Subra-mania Ayyar and O’ Farrell JJ. in (1900) ILR 23 Mad 179 at p. 183. Subramania Ayyar, J. at page 183 observed:
    • “And with reference to the grounds on which decision in (1899) ILR 26 Cal 579 seems to rest, it is necessary to make but two observations. The first is that Section 9 of the Specific Relief Act cannot possibly be held to take away any remedy available with reference to the well-recognised doctrine expressed in Pollock and Wright on Possession thus:–Possession in law is a substantive right or interest which exists and has legal incidents and advantages apart from the true owners title, (at page 19). The second observation is that in (1879-80) 7 Ind App 73 (PC) relied on in (1899) ILR 26 Cal 579 the defendant had a better right than the plaintiff, since the possession of the former was authorised by the Government whose properly the land in dispute was and consequently nothing said by their Lordships in a case wherein such were the facts can rightly be con-strued as intended to lay down the law differently from what it bad been all along understood to be.” and O’ Farrell, J. observed:
    • “All the dictum of the Privy Council in (1879-80) 7 Ind App 73 (PC) appears to amount to is this, that where a plaintiff in possession without any title seeks to recover possession of which be has been forcibly deprived by a defendant having a good title, he can only do so under the provisions of Section 9 of the Specific Relief Act and not otherwise.”
  • 16. The Madras High Court again in (1903) ILR 26 Mad 514 relying on (1893 ILR 20 Cal 834 (PC) took the view that Section 9 of the Act is in no way inconsistent with the position that as against a wrong-doer, prior possession of the plaintiff in an action of ejectment is sufficient title, even if a suit is brought more than six months after the date of dispossession and the wrong-doer cannot successfully resist the suit by showing that the title and right to possession are in a third person, and a plea of jus tertii is no defence unless the defendant can show that the act complained of was done by authority of the true owner and it is immaterial however short or recent the plaintiff’s possession was. The only effect of Section 9 of the Act is that if a summary suit be brought within the time prescribed by that Section, the plaintiff therein who was dispossessed otherwise than in due course of law will be entitled to be reinstated even if the defendant who thus dispossessed him be the true owner or a person authorised by or claiming under him, but a decree in such a suit will not have the force of res judicata on the question of title.
  • 17. We are in respectful agreement with the observations in (1900) ILR 23 Mad 179 and hold that the decision in (1899) ILR 26 Cal 579 has proceeded on an incorrect interpretation of the decisions in (1893) ILR 20 Cal 834 (PC) and (1879-80) 7 Ind App 73 (PC):
  • 18. There remains only to consider the decision of Mr. Justice Raman Nayar in Vasudeva Kurup v. Ammini Amma 1964 Ker LT 468 where it was held that a person in possession without title is entitled to remain in possession even as against the lawful owner until evicted in due course of law and is therefore entitled to get an order of injunction restraining the true owner from disturbing his possession. The right of a person in possession without title to get an injunction on the basis of possessory title against the true owner is not a point arising in the second appeal and we are not expressing any opinion on that aspect. The point decided in 1964 Ker L. T. 468 has no direct bearing on the question to be decided in the second appeal except that possessory title is recognised as the foundation of a claim for maintaining one’s possession. This only sup ports the view we are taking in this appeal.”

‘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. In this decision it was also 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 acquires an absolute title.

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’.

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 x
    • In 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.”

Settled Possession and Established Possession

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

In Somnath Barman v. Dr. S. P. Raju, AIR 1970 SC 846, 1969-3 SCC 129 (KS Hegde & JC Shah, JJ.), it was observed as under:

  • “In our opinion the possession of the plaintiff prior to 1945 is a good title against all but the true owner. The defendants who are mere trespassers cannot defeat the plaintiff’s lawful possession by ousting him from the suit property. Possessory title is a good title as against everybody other than the lawful owner. In Ismail’ Ariff v. Mohamed Ghouse(I.L.R.20 1.A.99), the Judicial Committee came to the conclusion that a person having possessory title can get a declaration that he was the owner of the land in suit and an injunction restraining the defendant from interfering with his possession. Therein it was observed that the, possession of the plaintiff was a sufficient evidence of title as owner against the defendant.”

Possession is Good Title

In Somnath Barman v. Dr. S. P. Raju AIR 1970 SC 846, 1969-3 SCC 129 our Apex Court relied on Narayana Row v. Dharmachar, ILR XXVI Mad. 514, where the Madras High Court consisting of Bhashyam Ayyangar and Moore, JJ., held that possession was, under the Indian, as under the English law, good title against all but the true owner. 

A Trespasser Cannot Resist Recovery Showing Title in a Third Person

A trespasser on a property in possession of another cannot successfully resist the suit by showing that the title and right to possession are in a third person. Our Apex Court, in Somnath Barman v. Dr. SP Raju, AIR 1970 SC 846, 1969-3 SCC 129,  approved the above view following the following decisions:

  • Krishnarav Yashvant v. Vasudev Apaji Ghotikat, ILR 8, Bom. 371;
  • Umrao Singh v. Ramji Das, ILR 36 All. 51;
  • Wali Ahmad Khan v. Ahjudhia Khandu, ILR XIII All 537;
  • Subodh Gopal Bose v. Province of Bihar, AIR 1950 Pat. 222;
  • Narayana Row v. Dharmachar, ILR XXVI Mad. 514.

The Apex Court, in Somnath Barman v. Dr. SP Raju, AIR 1970 SC 846, 1969-3 SCC 129, held that the contrary view taken by the Calcutta High Court in the following decisions were incorrect –

  • Debi Churn Boldo v. Issur- Chunder Manjee(ILR IX Cal. 39),
  • Ertaza Hossein and Anr. v. Bany Mistry(ILR IX Cal. 130.) 
  • Puremeshur Chowdhry and Ors. v. Brijo Lall Chowdhry(ILR XVII Cal. 256;
  • Nisa Chana Goita and Ors. v. Kanchiram Bagani, ILR XXVI Cal. 579.

See Blog (Click): When ‘Possession Follows Title’; ‘Title Follows Possession’?

Mandatory Injunction – To Preserve Status Quo of the Last Non-Contested Status

Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867 : (1990) 2 SCC 117, is the laudable decision on interim mandatory injunction. It is laid down in this decision that interlocutory mandatory injunctions are granted to:

  • (i) preserve or restore the status quo ante, of the last non-contested status which preceded the pending controversy, or
  • (ii) to compel the undoing of those acts that have been illegally done, or
  • (iii) the restoration of that which was wrongfully taken from the party complaining.

It is also pointed out that the court would consider the prospect of granting of a mandatory injunction finally, after trial; and delineated that a fresh state of affairs cannot be allowed to be created by the grant of such an injunction.

Read Blog: The Law and Principles of Mandatory Injunction

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other

In Anima Mallick v. Ajoy Kumar Roy, (2000) 4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘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. (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

Person in possession can use Reasonable Force to keep out a Trespasser

In Rame Gowda v. M. Varadappa Naidu, (2004) 1 SCC 769, our Apex Court Court, observed as under:­ 

  • “8. It is thus clear that so far as the Indian law is concerned the person in peaceful possession is entitled to retain his possession and in order to protect such possession he may even use reasonable force to keep out a trespasser. A rightful owner who has been wrongfully dispossessed of land may retake possession if he can do so peacefully and without the use of unreasonable force. If the trespasser is in settled possession of the property belonging to the rightful owner, the rightful owner shall have to take recourse to law; he cannot take the law in his own hands and evict the trespasser or interfere with his possession. The law will come to the aid of a person in peaceful and settled possession by injuncting even a rightful owner from 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.”

See Blog (Click): Civil Rights and Jurisdiction of Civil Courts

Possession Follows Title and Adverse Possession

It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144 that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

  • “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

Adverse Possession Inchoate until title is upheld by a Competent Court

One can acquire right of easement and adverse possession by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until the such title is 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. See also:

  • 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;
  • D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314..
  • See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

Possession is heritable and transferable

Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186]. A settled possession can be protected by court-injunction.

See Blog: Adverse Possession: An Evolving Concept

When Plaintiff Claims Title, He has to Prove Title in Injunction Suit

In Yamuna Nagar Improvement Trust v.  Khariati Lal, AIR 2005 SC 2245; (2005) 10 SCC 30, it is held as under:

  • “In our opinion, when the plaintiff had approached the court for permanent injunction claiming to be owner of the property, it was his duty to prove that he was the owner of the property, the said property remained in his possession and that the defendant had no right title or interest therein. Since the plaintiff failed to prove his case the suit was liable to be dismissed.”

Plaintiff has to plead – Who the owner is, if he claims possession

In Maria Margadia Sequeria v. Erasmo Jack De Sequeria, AIR 2012 SC 1727, it is held as under:

  • “63. Possession is important when there are no title documents and other relevant records before the Court, but, once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in vacuum. (Quoted in: Ibrahim v. Saythumuhammed, 2013 (4) KLT 435.)
  • “70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
    • .(a)    who is or are the owner or owners of the property;
    • (b)    title of the property;
    • (c)    who is in possession of the title documents
    •  (d)    identity   of   the   claimant   or   claimants   to possession;
    • (e)    the date of entry into possession;
    • (f)    how   he   came   into   possession   –   whether   he purchased the property or inherited or got the same in gift or by any other method;
    • (g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
    • (h) If taken on rent, license fee or lease – then insist on rent deed, license deed or lease deed;
    • who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
    • (j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
    • (k) basis of his claim that not to deliver possession but continue in possession.”

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Civil Procedure Code

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Knanaya Endogamy & Constitution of India

Saji Koduvath, Advocate, Kottayam.

Abstract of this Article

An Association of Knanites, consisting of persons who married non-Knanites, filed civil suits questioning the practice of endogamy and ‘expulsion’ of a member from the Knanaya Diocese. It was argued that this practice is unconstitutional. They claimed right to continue in their parent churches despite their marriage with a non-Knanite Christian.

  • The Association claimed that they had the Fundamental Right under Art. 25 of the Constitution of India to continue, despite their marriage. Art. 25 of the Constitution says –
    • “all persons are equally entitled to freedom of conscience and the right to freely profess, PRACTICE and propagate religion.”
  • The Association pointed out that the Apex Court held that the rights protected under Art. 25 and 26 of the Constitution of India were LIMITED to ESSENTIAL and INTEGRAL part of religion and no other (Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402).
  • The Association argued that the practice of endogamy or ‘expulsion’ of a member on marriage with a non-Knanite would not come within ESSENTIAL religious practices of religious denomination or right to manage its own affairs in matters of religion.

Knanaya/Catholic Church, resisting the suit of the Knanaya Association, founded their argument upon the verdict in The Commissioner, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.

  • Knanaya/Catholic Church claimed that it was a religious DENOMINATION or any SECTION THEREOF entitled to MANAGE its own affairs in matters of religion under Article 26.
    • Therefore, their practice of endogamy and ‘expulsion’ come within rights of DENOMINATION to MANAGE its own affairs in matters of religion.
  • Knanaya/Catholic Church pointed out that the Apex Court held that the protection of Articles 25 and 26 is not limited to matters of doctrine or belief; but, they extend also to ACTS done in pursuance of religion.
    • (Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388;
    • Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853).
  • Knanaya/Catholic Church further brought up that the Apex Court had denoted – what constituted an ‘essential part of a religion‘ or ‘religious practice’ had to be decided with reference to the doctrines of the particular religion and the practices which were REGARDED by the COMMUNITY as a part of its religion.
    • (Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255;
    • Sardar Syedna Taher Saifuddin Saheb v. The State of Bombay,  AIR 1962 SC 853;
    • Shri Govindlalji Maharaj v. St. of Rajasthan, AIR 1963 SC 1638).

Genuine Legal questions

  • 1. Whether Knanites/Diocese constitute a COMMUNITY or religious DENOMINATION so as to claim rights under Art. 26 to manage its own affairs in matters of religion (as claimed by the Catholic Church)?
  • 2. Whether Endogamy is REGARDED by the COMMUNITY an ESSENTIAL or INTEGRAL part of Religion, so as to get protection under Art. 25 and 26 (as claimed by the Catholic Church)?
  • 3. Rights guaranteed under Article 26 is ‘subject to public order, morality and health’. Does it include the whole ‘Constitutional morality’ in the teeth of Article 14, 15, 17, 21 etc. (as claimed by the Knanaya Association)?

PART I

Knanaya Community in Kerala

Knanites constitute a well-known Christian community in Kerala.  The members of this fraternity believe that they are the endogamous-descendants of Syrian-Jewish group who sailed from Syria and landed Kerala in the 4th or 8th century under the leadership of a merchant, Knayi Thoma.  In any case, it is a fact that this sect follows certain cultural and religious practices of their own, for the past several centuries. It is also a fact that this community steadfastly stick on to endogamy; and marriage of a Knanaya person with a non-Knanaya is not conducted in known Knanaya churches. 

Majority of Knanites are Roman Catholic. A portion is with the Syrian Orthodox Church. Distinctiveness of this group is recognised by the Roman Pontiff in 1911 by giving a separate Vicariate (Bishop from their own community, with an independent Diocese), taking note of the century old feud between the Knanites and non-Knanites.

A large number of Knanites in Kerala are migrated to west, especially, USA. A group of these migrants and some progressive youth in Kerala today argue that endogamy is archaic and that it is opposed to Divine law and Cannons of the Church.

Also Read

Suits in Courts.

Several Knanites filed civil suits claiming rights in their parent churches despite their marriage with a non-Knanite Christian (in a non-Knanite church). Now, an Association of Knanites won the comprehensive suit filed in Subordinate Court, Kottayam wherein they claimed that the practice of expulsion of Knanites from the Knananya churches for marrying non-knanite is against the Divine law, Canon and various Fundamental Rights guaranteed in Article 25 of the Constitution of India.  The appeal therefrom is dismissed by the District Court, Kottayam (on 2. 9. 2022), affirming the decision of the Subordinate Court.

PART II

Article 25 and 26 of the Constitution of India

The association filed the suit on the claim that endogamy is outmoded and irrational. They based their claims on Article 25(1) of the Constitution of India. Article 25(1) reads as under:

  • “25(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 to freely profess, practise and propagate religion.”

The Knanaya Church that opposed the suit relied on Article 26(b). It 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) … …. ;
  • (b) to manage its own affairs in matters of religion;
  • (c) … …. ; and
  • (d) to administer such property in accordance with law.”     

Nexus between Art. 25 and 26.

Article 25(1) secures fundamental right to ‘persons’. Article 26 protects right of the ‘denomination or any section thereof’. Clause (b) of Article 26 provides right ‘to manage its own affairs in matters of religion’.

Read Blog: Secularism and Art. 25 & 26 of the Indian Constitution

PART III

CONTENTIONS OF THE ASSOCIATION That Stands For Declaring Endogamy, Illegal

  1. Endogamy is not an ESSENTIAL or INTEGRAL part of Religion.
  2. The teachings of Christ, Divine Law etc. stand against endogamy
  3. Even if Knanaya community can maintain ‘endogamy’, that cannot be made use by the Diocese.
  4. Canon and common law do not allow expulsion of the members in a Diocese for marrying a catholic from another Diocese.
  5. Endogamy is an unpleasant practice, and it is opposes to Constitutional Morality and Individual Rights affirmed in the Constitution of India.

1. Endogamy is not an ESSENTIAL or INTEGRAL part of Religion  

It is held in The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282, as under:

  • “Under article 26(b), therefore, a religious DENOMINATION or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are ESSENTIAL according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” 

The rights protected under Art. 25 and 26 of the Constitution of India are LIMITED to ESSENTIAL and INTEGRAL part of religion and no other, as held in Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402. It is held in this decision as under:

  • “Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and Observe 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 and 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. 26. Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. 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 integral partof it and no other.”

2. The teachings of Christ, Divine Law etc.

The teachings of Christ, Divine Law (The Bible), provisions of Canon etc. unequivocally stand against the practice of endogamy.  Bible (Galatians – 3: 28) proclaims that ‘there is neither Jew nor Greek, slave nor free, male nor female, for you are all one in Christ Jesus‘. Devine law is fundamental; no one can disdain Divine law.

When a new vicariat (diocese) was formed in 1911 for Southists (Knanaya), no whisper at all was made in the Bull of Pope to the effect that the people of new vicariat can ignore any basic principle that made fundamentals of Catholic Church.

Canon says that the membership of a Catholic is in his ‘sui juris’ church – that is, in the Rite which he joins or is included. The Knanites in Kerala are under the Syro Malabar Rite. No independent claim can be raised by Knanites as to the very fundamental matters including the membership in the Church.

3. Even if there is ‘Knanaya Community’, the members cannot be estranged from ‘Diocese’

Even if it is assumed that there is ‘Knanaya Community’ with their own characteristic practices, no one can be expelled from the ecclesiastical ‘Diocese’ under which Knanites are are grouped-in (for he/she had married a non-Knanite); because, it is not supported by any of the provision of Canon and other laws applicable to the Church.

4. Constitutional Morality and Individual Rights

Rights guaranteed under Article 26 is ‘subject to public order, morality and health’. Therefore, the ‘Constitutional morality’, and individual rights that gain primacy, enshrined and projected in Article 14, 15, 17, 21 etc. are to be aptly regarded while considering the rights of ‘religious denomination or any section thereof’ in Article 26. They make it clear that endogamy is opposed to Constitutional morality. In any event, it is illegal, in the teeth of Article 14, 15, 17, 21 etc, to estrange a catholic from a Knanaya church for he married a non-knanaya.

PART IV

CONTENTIONS OF THE KNANAYA DIOCESE That Stands For Endogamy

  1. Article 25(1) is subject to Article 26.
  2. For a denomination no ‘distinctive’ faith is needed.
  3. Denomination Enjoys Complete Autonomy.
  4. Religious Practices are as important as Faith.
  5. Excommunication on Religious Grounds – part of Management by the Community.
  6. Durgah Committee verdict is an Odd Decision.

1. Article 25(1) is ‘subject to’ Article 26

Article 25(1) speaks about fundamental right secured to ‘persons’.  Article 25(1) begins with the words – ‘subject to other provisions of this part’.  It includes Article 26(b).  Therefore, the right of denomination or section thereof prevails over the personal right under Article 25(1).

From the above, it is clear that the argument on ‘Constitutional morality’, with reference to other Articles in the Constitution, has to be looked into in the light of of the clause in Art. 25 that it is ‘subject to’ Art. 26.

2. For a denomination no ‘distinctive’ faith is needed

Knanites constitute a denomination. They can claim rights under Art. 26. It is admitted by the parties to the suit that the Knanites have common spiritual organization and distinctive name. It is noteworthy (from Shirur Mutt case) that to acquire the denominational-status, ‘distinctive faith’ is not needed.

In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) it is observed –

  • (1) Article 26 contemplates not merely a religious denomination, but also a section thereof.
  • (2) Denomination contemplates the Mutt or the spiritual fraternity, Organization, sect or sub-sect.
  • (3) Definition of denomination in Oxford Dictionary is referred to in this decision.   It defines denomination as – collection of individuals having a
    • distinctive name,
    • common faith and
    • common spiritual organization.

In Acharya Jagdishwaranand Avadhuta v. Commr. of Police, AIR 1984 SC 51, referring earlier decisions, including Shirur Mutt, it is held as under:

  • “Ananda Marga appears to satisfy all the three conditions, viz., it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious DENOMINATION, within the Hindu religion.” 

In S.P. Mittal v. Union of India, AIR 1883 SC 1, Chinnappa Reddy, J. (Minority) observed: 

  • “Any Freedom or Right involving the conscience must naturally receive a wide interpretation and the expression ‘religion’ and ‘religious DENOMINATION‘ must therefore, be interpreted in no narrow, stifling sense but is a liberal, expansive way”. (Indhu Malhotra, J. quoted this portion in Sabarimala case, Indian Young Lawyers Assn. Vs. State of Kerala: 2019-1 SCC 1, observing that the judgment of Chinnappa Reddy, J. was a ‘concurring’ one.)

The majority judgment in S.P. Mittal referred to the argument of Soli Sorabji, Senior Advocate, as to show how the ‘common faith’ doctrine was placed – the argument was that the followers of Aurobindo ‘shared’ common faith (within their denomination).

In other words, to acquire the denominational status, the ‘faith’ of ‘denomination’ need not be distinctive from the faith of others in the same religion.

3. Denomination Enjoys Complete Autonomy

It is held in The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) as under:

  • “Under article 26(b), therefore, a religious DENOMINATION or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” 

In the Review Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, the Apex Court analysed Shirur Mutt case and said as under:

  • “7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION ITSELF ….”

4. ‘Religious Practices’ are as Important as ‘Faith‘

In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282) it is held as under:

  • “A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual wellbeing, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and dress.”

In Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388, it is observed as under:

  • “Religious practices or performances of ACTS, in pursuance of religious belief are AS MUCH A PART of religion as faith or belief in particular doctrines.”

In Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255, it is held as under:

  • “It being thus settled that matters of religion in Art. 26 (b) include even practices which are regarded by the COMMUNITY as part of its religion ….”

5. Excommunication on Religious Grounds – part of Management by the COMMUNITY

In Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, it is held as under:

  • “What appears however to be clear is that where an excommunication is itself based on religious grounds such as lapse from the orthodox religious creed or doctrine (similar to what is considered heresy, apostasy or schism under the Canon Law) or breach of some practice considered as an essential part of the religion by the Dawoodi Bohras in general, excommunication cannot but be held to be for the purpose of maintaining the strength of the religion. It necessarily follows that the exercise of this power of excommunication on religious grounds forms part of the management by the COMMUNITY, through its religious head, “of its own affairs in matters of religion.” The impugned Act makes even such excommunications invalid and takes away the power of the Dai as the head of the community to excommunicate even on religious grounds. It therefore, clearly interferes with the right of the Dawoodi Bohra community under cl. (b) of Art. 26 of the Constitution.”
  • That excommunication of a member of a COMMUNITY will affect many of his civil rights is undoubtedly true. This particular religious DENOMINATION is possessed of properties and the necessary consequence of excommunication will be that the excommunicated member will lose his rights of enjoyment of such property. It might be thought undesirable that the head of a religious community would have the power to take away in this manner the civil rights of any person. The right given under Art. 26 (b) has not however been made subject to preservation of civil rights. The express limitation in Art. 26 itself is that this right under the several clauses of the article will exist subject to public order, morality and health. It has been held by this Court in Sri Venkataramana Devaru v. The State of Mysore (1) that the right under Art. 26(b) is subject further to cl. 2 of Art. 25 of the Constitution.”
  • “We shall presently consider whether these limitations on the rights of a religious community to manage its own affairs in matters of religion can come to the help of the impugned Act. It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion. The fact that civil rights of a person are affected by the exercise of this fundamental right under Art. 26(b) is therefore of no consequence. Nor is it possible to say that excommunication is prejudicial to public order, morality and health.”

6. Durgah Committee verdict is an Odd Decision; All five judges in Durgah Committee changed their Views

In Durgah Committee, Ajmer v. Syed Hussain Ali, AIR 1961 SC 1402, it was held 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.

All five judges in Durgah Committee (PB Gajendragadkar, AK Sarkar, KN Wanchoo, K.C. Das Gupta, N. Rajagopala Aiyankar JJ.) changed their views by two subsequent decisions, as to (i) the ‘essential practices’ of RELIGION and (ii) the ‘role of COURT‘ in determining the essential religious practice. It was observed in the subsequent decisions that ‘what was regarded by the COMMUNITY‘ on essential religious practice was important.

Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, as to the enquiry on integral part of religion, in a subsequent Five Judge Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (BP Sinha, CJ, P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta, J.C Shah JJ.), AIR 1963 SC 1638. (The bench consisted also of two Judges – K.N. Wanchoo, K.C. Das Gupta JJ. – in Dargah Committee Case, other than Gajendragadkar, J.). It is held in Tilkayat Case 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.”

In Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, (BP Sinha, CJ, A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, Mudholkar, JJ.) 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.) as under:

  • “The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in the Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das v. The State of Orissa; Sri Venkatamana Devaru v. The State of Mysore; Durgah Committee, Ajmer v. Syed Hussain Ali and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to ACTS done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are REGARDED by the COMMUNITY as a part of its religion.

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.

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 & Ors. 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.

It is further contended that the circumstances that led to issuance of the 1911 Bull is clear from the words of the Bull as well as the documents referred to therein – that is, the letters of the Bishops in Kerala and the representative of Pope. These documents refer to the need of special consideration of Knanites. The subsequent conduct of the Church also is important. It is a fact that Bishops from their own community is ordained for Knanites. Knanaya Diocese has no territorial limit in jurisdiction whereas all other Catholic Dioceses (within Kerala) has territorial limit.

Also Read:

Judicial & Legislative Activism in India: Principles and Instances
Can Legislature Overpower Court Decisions by an Enactment?
Separation of Powers: Who Wins the Race – Legislature or Judiciary?
Kesavananda Bharati Case: Never Ending Controversy
Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
Article 370: Is There Little Chance for Supreme Court Interference
Maratha Backward Community Reservation: SC Fixed Limit at 50%.
Polygraphy, Narco Analysis and Brain Mapping Tests
CAA Challenge: Divergent Views
FERA, 1973 And Transfer of Immovable Property by a Foreigner
Doctrine of ‘Right to be Forgotten’ in Indian Law
Religious issues

Common Law of TRUSTS in India

Is Excommunication of Parsi Women for Marrying Non-Parsi, Unconstitutional?

Saji Koduvath, Advocate, Kottayam.

Introduction

A Parsi woman will lose her religious identity if she marries a Non-Parsi.  She will not be allowed to enter the holy fire place of an Agyari. Unlike a woman, a Parsi man will not face such a predicament.

Can this anomaly be saved as an ‘essential religious practice’?  Is it an ‘integral practice’ touching upon the right to profess, practice and propagate one’s own religion?

Goolrokh Gupta v. Burjor Pardiwala

Contentions of the Petitioners: Goolrokh Gupta filed a Writ Petition before the Gujarat High Court praying to allow her to perform funeral ceremonies of her parents in the event of their death. The petitioner contended that no tenet of Zorastrianism denied a born Parsi woman, rights to her religious identity on marriage to a non-Parsi. But, the Parsi Trust takes such a discriminatory stance. The said custom did not apply to Parsi males. It is violative of the right to equality under Articles 14 of the Constitution of India. It was pointed out that this excommunication was a matter of social and constitutional concern.

Arguments of the respondents: The Parsi Trust opposed the petition and contended that denial of entry to non-Parsis to Parsi institutions was an essential practice of the religion and that under Article 26, the Parsi Trust was entitled to regulate entry.  The Respondents heavily relied upon an interpretation of Zorastrianism which directed renunciation of Parsi religion if a Parsi woman undergoes the inter-faith marriage. The respondents relied on Sardar Saifuddin v. State of Bombay (AIR 1962 SC 853),  wherein the Bombay Prevention of Excommunication Act, 1949 was struck down as unconstitutional by a Constitutional bench of the Supreme Court.

The Parsy Trust (respondents in the Parsi case, Goolrokh Gupta) raised contentions on “essential religious practice”. It was pointed out that such a contention was raised in the Sardar Saifuddin Case and it was fully accepted by the Apex Court; and also that the contentions of the respondents in Sardar Saifuddin (similar to that of the petitioners in the Parsy case, Goolrokh Gupta) were rejected by the Apex Court. The following were the contentions of the respondents in Sardar Saifuddin:

  • The excommunication could be equated to the practice of untouchability, as the effect of both was the deprivation of human dignity and civil rights.
  • The matter involved issues of the right to individual’s right to faith and practice religion under Article 25.
  • Though there should be a need to balance the rights of individuals as well that of the denomination under Article 26 to manage internal affairs, due importance should be given to the rights of individuals, for the fundamental rights are primarily concerned with rights of individuals and protect individuality and choices.

Rejecting the aforestated arguments of the respondents, the Apex Court held in Sardar Saifuddin as under:

  • “The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in The Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt; Mahant Jagannath Ramanuj Das Vs. The State of Orissa; Sri Venkatamana Devaru Vs. The State of Mysore; Durgah Committee, Ajmer Vs. Syed Hussain Ali and several other cases and the main principles underlying these provisions have by these decisions been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the COMMUNITY as a part of its religion.”

Majority dismissed the petition Upholding the Excommunication

Though the Gujarat High Court did not address the fundamental question placed by the respondents (Parsi institutions), as to whether the practice under consideration (of losing religious identity by laddies, if they marry Non-Parsies) was saved by ‘essential religious practice‘, the High Court dismissed the writ petition (Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266) of Ms. Gupta by 2:1 majority on the main ground that a Parsi woman, ceases to be a Parsi upon marriage with a non-Parsi under the Special Marriage Act. .

The majority pointed out that the English common law doctrine is that, in the absence of a specific statutory protection, the personality, known by religion, of a woman would merge into that of her husband.   Although such a principle of merger was not recognised by any of the religions in India, it had found that a married woman is identified by her husband’s family name superseding that of her father’s. The Court observed that it is of ‘general acceptance throughout the world’. The majority was of the opinion that the merger was essential to determine the religion of children born out of the marriage. To obtain reliefs from courts, countering this presumption, the bench observed that there should be a judicial declaration pursuant to a fact-finding inquiry. Since no such inquiry was conducted in the present case, the petitioner was deemed to have acquired the religious status of her Hindu husband. 

Minority Decision

J. Akil Kureshi, minority, found that there was no automatic conversion on marriage. Special Marriage Act, 1954 speaks of a special form of marriage in which both parties can retain their birth-religion insofar as the other conditions under Section 4 of the Act of 1954 were satisfied. Kureshi, J. noted that it highlights legislative commitment toward a secular state. He ruled that the petitioner retained her Parsi identity by solemnisation of her marriage under the Special Marriage Act.

Special Leave Petition before the Supreme Court

Ms. Gupta filed a Special Leave Petition before the Supreme Court. 

It is pointed out that Goolrokh Gupta had not converted to the Hindu religion and the marriage was not taken place under the Hindu Marriage Act. The Special Marriage Act under which the marriage was solemnised, on the other hand, allowed the retention of religious identity. It was also pointed out that the matter was not one of acceptance by the religious or social community.  Therefore, it was contended that the presumption was that Ms Gupta continued as a Parsi.

The respondents, at the time of arguments before the Supreme Court, pointed out that the edicts of Zoroastrianism were very complex. Zoroastrianism is patrilineal, and all the texts/edicts dictate that one was to marry within the fold of the religion itself. If one chose to marry outside the religion, they would not suffer excommunication but would end up in losing the privileges conferred on them by the religion. The Parsi Trust and other Respondents claimed that denial of entry to non-Parsis into the Parsi institutions was an essential practice of the religion and that it was protected under Article 26, and that the Trust was entitled to regulate such entry.

Sabarimala Review-Reference and Parsi Women’s Rights

In the hearing of the review applications in the Sabarimala case (Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-3 SCC 52) before the Five-Judge Bench, the majority 3:2 found it necessary to resolve the conflict between two earlier Judgments of the Supreme Court.

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

The Five-Judge Bench in Durgah Committee case emphasied that the Court has a role to decide andto exclude what are secular practices or superstitious beliefs while considering the impact of Article 25 and 26. But, it is found in the locus classicus decision of Seven Judges, in Sri Shirur Mutt case—a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold; and no outside authority has any jurisdiction to interfere with their decision in such matters. It was also observed in this decision that the right to manage its own affairs in matters of religion is a fundamental right which no legislature can take away. It is further held – what are essential religious practices of a particular religious denomination is to be ascertained with reference to the doctrines of that religion, and they should be left to be determined by the denomination itself.

Because of the apparent conflict between the two earlier decisions, the majority found it necessary to place the matter before a larger Bench. Thus these applications are now placed (Kantaru Rajeevaru v. Indian Young Lawyers Association) before a Nine-Judge Bench of the Apex Court. 

The Supreme Court has placed the hearing of the case as to the right of Parsi women married to non-Parsis (Goolrokh Gupta v. Burjor Pardiwala) along with the hearing of the review applications in the Sabarimala case before the Nine-Judge Bench.

Other Matters Considered in the Review

The following two other matters have also been referred for the consideration of the Nine-Judge Bench:

  • .(i) the right of entry of Muslim women into dargahs/mosques;
  • (ii) the challenge to the practice of female genital mutilation in the Dawoodi Bohra community.”

Conclusion

The core issue involved in this case is the civil rights of an individual, protected under Article 25 of the Constitution of India, on one hand, and that of the religious denomination under Article 26, on the other. It can be definitely stated that the attempt of the Supreme Court will be to strike a balance, maintaining the Constitutional mandates.

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Are RTI Documents Admissible in Evidence as ‘Public Documents’?

Saji Koduvath, Advocate, Kottayam.

Abstract

  1. RTI replies or information (other than certified copies) are not substantive evidence in law. Therefore, they are not admissible in evidence as public documents, or as secondary evidence.
  2. Where copy of a Public Document is issued under the RTI Act, recording it to be a certified copy [under Section 2 (j)(ii)], it is admissible in evidence (to prove the contents of the public documents) under Sec. 77of the Evidence Act.
  3. Where the copy of a document, which is not a Public Document, is issued under the RTI Act, recording it to be a certified copy [under Section 2 (j)(ii)], it is admissible in evidence, only with further evidence as to the non-production of the original (as required under Sec. 65, Evidence Act).
  4. Notwithstanding anything stated above, in a proper case, the court can invoke presumptions as regards official acts, under Sec. 114, Evd. Act (The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
    • Illustration (e) of Sec. 114, Evd. Act specifically states that ‘regularity’ can be presumed on Judicial and official acts. Presumptions may include genuineness or truth also.

Law on this Point

Evidence Act 

Section 65 of Evidence Act reads as under:

  • ““65. Cases in which secondary evidence relating to documents may be given – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases –
  • (a) … (e) …
  • (f). when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence**;
  • (g) …
  • …. …
  • In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
    • **“to be given in evidence ” denotes – giving copy in evidence without reference to “original”.

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

  • (1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65,and
  • (2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence” – referred to in clauses (f) of Sec. 65.

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

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

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

It is definite – the words, “shall be admissible for the purpose of proving the contents of the original” cannot be read as (or equated to): “certified copy … permitted by this Act, or by any other law in force in India to be given in evidence” (Because, the words in Sec. 57 do not authorise to give (certified) copy in evidence without reference to “original”).

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

Following decisions considered both Sec. 57 of the Registration Act and Sec. 65 (e) & (f) Evidence Act and found that in the absence of a registered sale deed, a certified copy could be filed as secondary evidence; but, they did not ponder on the point whether “a certified copy alone can be filed”.

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

Sec. 74. reads as under:

  • 74. ‘Public documents‘: The following documents are public documents :-
  • (1) documents forming the acts, or records of the acts
    • (i) of the sovereign authority,
    • (ii) of official bodies and tribunals, and
    • (iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country;
  • (2) Public records kept in any State of private documents.

Read Blog: Secondary Evidence of Documents & Objections to Admissibility – How & When?

Section 77 of Evidence Act reads as under:

  • 77. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.

RTI – Act

  • Section 2 (j) of the Right to Information Act, 2005 defines “Right to Information” as under:
  • “(j). “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to –
  • (i) …. ……
  • (ii) taking notes, extracts, or certified copies of documents or records.

Import of “To be Given in Evidence” in Sec. 65(f)

Sec. 65 Evidence Act deals with “Cases in which secondary evidence relating to documents may be given”. Sec. 65 (f) lays down two conditions:

  1. When the original is a document of which a certified copy is permitted, by the Evidence Act, to be given in evidence.
  2. If certified copy is permitted, by any other law in force in India, to be given in evidence.

RTI-Certified-Copy, other than Public Document, Can be received in evidence only on showing reason for non production of Original

The RTI Act, though allows certified copy, it does not permit the same “to be given in evidence“. Therefore, the ‘certified copy’ obtained under the RTI Act can be received in evidence either (i) it is a public document (of which a certified copy is permitted by the Evidence Act) or (ii) it is permitted to be produced on showing reason for non production of original etc. (under Sec. 65 Evidence Act).

In Narayan Singh v. Kallaram, AIR 2015 MP 186, it was observed that RTI documents can be admitted as secondary evidence. The MP High Court held as under:

  • “Clause (f) of Section 65 of Evidence Act makes it crystal clear that a certified copy permitted under the Evidence Act or by any other law in force can be treated as secondary evidence. Right to Information Act, in my view, falls within the ambit of “by any other law in force in India”. The definition of “right to information” makes it clear that certified copies of documents are given to the citizens under their right to obtain information. In my view, the court below has rightly opined that the documents can be admitted as secondary evidence. I do not see any merit in the contention that the documents obtained under the Act of 2005 are either true copies or attested copies. The definition aforesaid shows that the same are certified copies.”

It appears that the High Court did not give effect to the words “permitted … to be given in evidence”.

PRESUMPTION under Sec. 114, Evid. Act read with Sec. 35.

Sec. 35 Evd. Act lays down that ‘an entry in any public or other official book, register or record or an electronic record‘ will be a relevant fact.

Sec. 35 of the Evidence Act reads as under:

  • “35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
    • Note: Relevancy engrafted to Sec. 35 Evd. Act is “entry in” any public or official book, register etc.; it is not attached to the certificates or information given under the RTI Act.

Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, can be used to prove the existence and genuineness/truth of a document.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases.  ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

  • “The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

  • “Where Sec. 35  properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

Read Blog: Presumptions on Documents and Truth of its Contents

RTI Replies are not a Substantive Evidence

As shown above, relevancy attached to Sec. 35 Evidence Act is “entry in” any public or official book made by a public servant in the discharge of his official duty; it is not engrafted to the certificates or information given under the RTI Act.

The usual method to prove documents (both, existence and truth of contents) is giving oral evidence or furnishing affidavit. A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), especially in the light of ‘best evidence rule’, no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)

Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.

Our Apex Court observed in State of Himachal Pradesh v. Jai Lal, (1999) 7 SCC 280, as regards expert opinion that falls under Sec. 45 Evidence Act, as under as under:

  • “An expert is a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.”

The information collected from the records of an office by an RTI Officer, or that furnished in RTI Reply, cannot be placed in a higher pedestal than the ‘opinion’ of an expert under Sec. 45 of the Evidence Act. In short, the RTI Reply, by itself, will not be a substantive evidence.

Note:

Following Decisions State the Views of our Courts

  • Kumarpal N. Shah v. Universal Mechanical Works, AIR 2019 Bom 290.
  • Under RTI, usually the applicant gets Photostat copies of the documents which are certified as true copies. They cannot be equated with certified copies mentioned in the Evidence Act. In other words, if the official under RTI certifies and supplies a private document, it still remains a private document. Thus, the RTI Act does not affect the nature of a document (Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112 referred to).
  • Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112.
  • The Xerox copy certified by the designated Public Information Officer under Right to Information Act of the private documents are not certified copies within the meaning of the provisions of Section 65 of the Evidence Act. They are merely true copies of the private documents available in the records of the particular Department. The production and marking of such copies is permissible only after laying a foundation for acceptance of secondary evidence under clauses (a) (b) or (c) of Section 65 of the Act. The condition prescribed under the above cases (a), (b) or (c) of Section 65 of the Act have to be fulfilled before marking the true copies obtained under the Right to Information Act. However, the true copies of public documents certified by the designated Information Officer can be taken as certified copies of the public documents.

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Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case

Saji Koduvath, Advocate, Kottayam.

Contents in a Nutshell

  1. Following are the two important decisions of the Constitution Bench 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.
  2. In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, it was held as under:
    • Protection under Article 25(1) of the Constitution extends to (all) religious ‘acts’.
    • ‘Organizations‘, ‘Sects, Sub-sects‘, etc. have the “right to manage its own affairs ” under Article 25(2).
    • “What constitutes the essential part of a religion is primarily to be ascertained WITH REFERENCE TO the doctrines of that religion itself.“
  3. In Durgah Committee, Ajmer v. Syed Hussain Ali, it was held 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 .
      • Note: All five judges in Durgah Committee changed their views, in two subsequent decisions, as to the ‘ROLE FOR THE COURT‘ in determining the essential religious practice; and observed that what was regarded by the COMMUNITY on essential religious practice was important.)
  4. Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, as to the enquiry on integral part of religion, in a subsequent Five Judge Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638 (consisted also of two Judges in Dargah Committee Case, other than Gajendragadkar, J.), that
    • 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.
  5. In Sardar Syedna Taher Saifuddin Saheb Vs. 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)
    • 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 courts with reference to the doctrine of a particular religion and include practices which are REGARDED by the COMMUNITY as a part of its religion.
  6. 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.
    • 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 & Ors. 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.

Introduction

  • Sabarimala Case (pertaining to right of entry of women in Sabarimala Temple) is placed before a nine-judge-bench of the Supreme Court of India for considering the Review-Reference. Following matters are also pending before the nine-judge-bench:
    • (i) Right of entry of Muslim women in durgahs/mosques,
    • (ii) Right of entry of Parsi women, married to non-Parsis, into the holy fire place of Agyari and 
    • (iii) The challenge to the practice of female genital mutilation in Dawoodi Bohra Community.

Cardinal Questions before the Nine-Judge-Sabarimala-Review-Reference Bench

  • Important Constitutional issues in this matter placed before the nine judge bench are, substantially, the following:
    1. Article 25 (1) allows – Subject to public order, morality and health, all persons are entitled to the right freely to profess, practise and propagate religion.
      • Whether ‘Organizations’, ‘Sects, Sub-sects’, Community, Group followers of Ayyappa, Dawoodi Bohra Community etc.have the “right to manage its own affairs “. Or, whether confined to ‘essential practices’ of RELIGION alone?
    2. Article 25 (2) allows the State to make any law regulating or restricting any “other secular activity” which may be associated with (essential)religious practices. Should such essential religious practices (subject to public order, health and morality) be
      • left to be determined by the denomination or any section thereof itself?
      • Or, whether the determination of ‘essential religious practices’ remains in the field of COURTS?
    3. Do the words in Article 26, “every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion” give
      • a fundamental right to the denomination or any section thereof to (i) ‘manage its own affairs’ which no legislature can take away and (ii) enjoy complete autonomy so that no outside authority has any jurisdiction.
      • Or, whether all the afore-stated rights and protections are confined to such practices as are an essential and an integral part of RELIGION and NO OTHER ?

See Similar Blogs:

Art. 25 & 26 of the Constitution is the heart and soul of Religious Freedom

The framers of the Constitution placed the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India. They are the Fundamental Rights relating to the Freedom of Religion.

Article 25 and 26 read 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.
  • 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.

Read Blog: Secularism and Art. 25 & 26 of the Indian Constitution

Following important findings are rendered in the first decision, Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt:

  • (i)  Right to manage the affairs of religion is a fundamental right which cannot be taken away by legislature.
  • (ii) The right and guarantee given to administer property being ‘in accordance with law’, the law, ‘must leave the right of administration to the religious denomination itself’ subject to such restrictions and regulations imposed by laws by legislature.

Following important finding is rendered in the second decision, Durgah Committee, Ajmer v. Syed Hussain Ali (Justice Gajendragadkar):

  • “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.”

It is held further in Dargah Committee case as under:

  • “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.“

Observation in Dargah Committee Case only an Obiter according to Seervai

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. From this decision, it may appear that these are matters that dwell within the domain of Courts. (That is, the yardstick would be the consciousness of Court.)

Gajendragadkar J., Subsequently, Affirmed- ‘Enquiry on Tenets of Religion’

But, Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, as to enquiry on integral part of religion, in a subsequent Constitution Bench [BP Sinha, CJ, Gajendragadkar, Wanchoo, Das Gupta, JC Shah JJ.] decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638, as under:

  • “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.”

CONFLICT between SHIRUR MUTT CASE and DURGAH CASE

The law handed down by the Supreme Court in these two rulings are divergent in certain material particulars. They are:

  1. Whether ‘religious Denomination or any section thereof‘ extends to religious ‘Organization’, ‘Sect, Sub-sect’ etc.? (Shirur)
    • Or, whether protections in Article 25 and 26 are limited to practices that are essential and integral part of RELIGION and no other? (Durgah)
  2. Who determines – what constitutes the essential part of a religion? Is it left to be determined by the Denomination or Section; and whether a religion or any section thereof holds the fundamental right to ‘manage its own affairs‘ (which no legislature can take away) and enjoys complete autonomy (so that no outside authority has any jurisdiction); and whether it is primarily to be ascertained with reference to the doctrines of that religion itself? (Shirur)
    • Is it determined by the COURT? (Durgah)
  3. Whether the freedom to ‘practice religion’, protect ‘(all) acts done in pursuance of a religion; and whether freedom of religion is guaranteed to all religious practices, except that which run counter to public order, health and morality. (Shirur)
    • Or, whether protections in Article 25 and 26 are limited to practices that are ESSENTIAL and INTEGRAL part of Religion and no other? (Durgah)

The findings of the Apex Court, in these cases, on Article 25 and 26, can be summarised as under:

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 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 (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. COURT determines
“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 AUTONOMY in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.”
“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 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.”

(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 of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”

Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay

(AIR 1962 SC 853 – BP Sinha, CJ., AK Sarkar, Das Gupta, N. Rajagopala Ayyangar, Mudholkar, J.J.)

  • Note: 1. Sarkar, Das Gupta , Rajagopala Ayyangar were also judges in Durgah Committee, Ajmer Vs. Syed Hussain Ali. [Other Judges in Durgah Committee were – Gajendragadkar, and KN Wanchoo.]
  • Note: 2. This decision is stand referred to a larger bench by Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673.

The Bombay Prevention of Excommunication Act, 1949 was challenged in Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay. This Act made act of “ex-communication” illegal under Sec. 3, which reads as under:

  • “3. Notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect.”

Sec. 4 made excommunication, a punishable offence. The Act was challenged by the head of the Dawoodi Bohras, as:

  • being impinging upon the right of the Dawoodi Bohras to freely practice their religion according to their own faith and practice, a right guaranteed under Articles 25 and 26 of the Constitution.
  • It was contended that the right of the head of the Dawoodi Bohra community to ex-communicate is an essential part of the creed of the Dawoodi Bohra sect as it is a necessary measure of discipline for maintenance of integrity of the community, to hold together the community, so that the community faith, belief and practice can be preserved and hence protected by Article 26(b).

The Supreme Court, by majority (4 : 1), accepted the argument and struck down the Act as violative of Article 26(b) of the Constitution.  It is pointed out in this decision as under:

  • “The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in:
    • The Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt;
    • Mahant Jagannath Ramanuj Das Vs. The State of Orissa;
    • Sri Venkatamana Devaru Vs. The State of Mysore;
    • Durgah Committee, Ajmer Vs. Syed Hussain Ali and several other cases
  • and the main principles underlying these provisions have by these decisions been placed beyond controversy.
    • The first is that the protection of these articles is not limited to matters of doctrine or belief, they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion.
    • The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion and include practices which are regarded by the COMMUNITY as a part of its religion.” (This part is referred to in Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma, AIR 1995 SC 2001)

It is also held as under:

  • “It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion. The fact that civil rights of a person are affected by the exercise of this fundamental right under Art. 26(b) is therefore of no consequence. Nor is it possible to say that excommunication is prejudicial to public order, morality and health.”

In this decision the Constitution Bench of our Apex Court:

  • observed that the exercise of the power of ex-communication by the religious head on religious ground form part of the management of its affairs in matters of religion and
  • held that it was difficult to agree that court was not a forum for vindication of such right.

The Chief Justice , SB Sinha (minority) observed as under:

  • “That conclusion is further strengthened by the consideration that the effect of the excommunication or expulsion from the community is that the expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.”

“Religious Denomination or Any Section Thereof“

In Adi Saiva Sivachariyargal Nala Sangam Vs. Govt. of TN (2016)[113] the Apex Court (Ranjan Gogoi & NV Ramana JJ), 2016- 2 SCC 725 considered the ‘religious practice’ of a GROUP or denomination. In Sri Venkataramana Devaru Vs. The State of Mysore (1958),[114] (Venkatarama Aiyar, J.), AIR 1958 SC 255, observed that it was settled that matters of religion in Art. 26(b) include even practices which are regarded by the COMMUNITY as part of its religion.

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004)

It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaranand Avadhuta v. Commr. of Police, AIR 1984 SC 51), the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case, Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984, the majority rendered its verdict following Durgah Committee, Ajmer v. Syed Hussain Ali, which observed that ‘the protection must be confined to such religious practices as are an essential and integral part of it and no other‘.

The minority view in this decision is rendered by AR Lakshmanan, J. It is laid down as under:

  • “This observation of this Court (in Durgah Committee, Ajmer v. Syed Hussain Ali), in our view, runs counter to the observation of Mukherjee, J. in The Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are –
    • “We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others….
    • ….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 oblations to the sacred fire all these would be regarded as parts of religion…”
  • In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. v. The State of Tamil Nadu [AIR 1972 SC 1586], this Court has held that –
    • ‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
  • The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in [AIR 1987 SC 748] and Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”

The Crux of Sabarimala-Review-Matter

Read Blog: Sabarimala Review Petitions & Reference to 9-Judge Bench

In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is observed that there is conflict between the Shirur Mutt Case and Durgah Committee Case. In the aforesaid review-reference-judgment the Court said as under:

  • “7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION ITSELF and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carving out a ROLE FOR THE COURT in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”

The issues placed before the nine-judge-bench are reframed in Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-3 SCC 52, as under:

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

Inter-play between the Rights under Article 25 and Article 26

  • Art. 25 refers to rights of persons freely to profess, practice and propagate religion. Art, 26 says as to the rights of every religious denomination or any section thereof to manage its own affairs in matters of religion.

From the above, the following questions emerge:

  • Do religious denomination or any section thereof have a right to freely to profess, practice and propagate religion
  • Do persons have a right to manage his own affairs in matters of religion.

Prohibition of Entry of Muslim Women in Mosques in India: Points Placed in Challenge

The petitioners in the Writ Petition, Yasmeen Zuber Ahmad Peerzade v. Union of  India, filed before the Supreme Court under Article 32 of the Constitution of India, sought the declaration that the practices of prohibition of entry of Muslim Women in Mosques in India is illegal and unconstitutional for being violative of the fundamental rights to equality, life and liberty and freedom of religion, proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution. They placed the following points for the consideration of the Apex Court:

  1. The prohibition is void and unconstitutional as such practices are repugnant to the basic dignity of a woman as an individual.
  2. The arbitrary prohibition imposed on women is violate of Article 14 of the Constitution of India – to be treated equally – and Article 15 of the Constitution which clearly prohibits discrimination by the government on the basis of sex.
  3. The prohibition imposed is violative of fundamental rights under Articles 25 and 29 also of the Constitution of India.
  4. Preventing the females from entering mosque is violative of Article 44 of the Constitution of India which directs the State to endeavour to secure uniform civil code.
  5. The exclusion of women is, nonetheless, not supported by reasons of  “public order”, “health”, “morality” (in Article 25), and, in any case, Article 25(1) will not take precedence over other articles.
  6. A woman’s entry to a masjid or eidgah (a place where Muslims congregate for Eid-ul-Fitr and Eid-ul-Azha celebrations) does not create fitna (distress).
  7. In the Hajj pilgrimage and Umrah (a lesser Hajj) thousands of Muslim women gather and perform Hajj rituals such as tawaf (walking around the Ka’ba) and sa’I (running between the hills of Safa and Marwa) and ramye zamrat (stoning of the devil ceremony) along with their male counterparts.
  8. Religious bodies ask for and receive taxpayers’ money from the government are also subject to the conditions imposed by our Constitution.
  9. The historical sources also show that Prophet Muhammad had himself encouraged women to actively participate in mosque congregations and prayer.
  10. The most sacred mosque in the world for Muslims, Masjid-al-Haram in Mecca, embraces both men and women and there is complete unanimity in the Muslim community on the Masjid-al-Haram in Mecca – to all Muslims in the world.
  11. The Apex Court, in Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439, has taken the view that practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion, since a practice does not acquire the sanction of religion merely because it is permitted.
  12. The petitioners also argued that there is nothing in the Quran and the Hadith that ‘requires gender segregation’and that the Legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular.

Stance of the contesting respondents

The contesting  respondents have not filed their response in Court. Their stance, as appears from the counter affidavit filed by the All India Muslim Personal Law Board, would be, mainly, the following:

  1. The issues do not pertain to any statute.
  2. The alleged  rights cannot be enforced against non-state entities like Mosques.
  3. Friday Namaz in congregation is not obligatory for women, though it is so, on Muslim men. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home.
  4. The matters involved are religious practices based upon beliefs of the religion.
  5. They are not matters ‘merely concern’ the management of a religious place.
  6. They are not the activities ‘only concern’ regulating the activities connected with religious practice.
  7. The matters involved are matters concern of Masjids, purely private bodies regulated by Muttawalis.
  8. It is not appropriate for the Court to enter into or interpret the religious principles/beliefs and tenets, invoking Articles 14, 15, 21, 25 and 29 of Constitution of India.
  9. It is not appropriate for the Court to attempt to answer issues that are matters of faith alone, when there is no ‘threat to life and liberty’. 
  10. It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religion protected underArticle 26.
  11. In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process.  It should be left to be resolved through the processes of social transformation within the religious denomination itself.
  12. During the pendency of the present petition, a five Judge Bench judgment in Kantaru Rajeevaru Vs. Indian Young Lawyers Association [Sabarimala-Case-Review from 2019-1 SCC 1]  has referred matters involving Articles 14, 25 and 26 to larger bench. The matters involved in that case are much relevant in this case also.

See Also: ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional

Excommunication of Parsi Women for Marrying a Non-Parsi

A Parsi woman will lose her religious identity if she marries a Non-Parsi.  Unlike a woman, a Parsi man will not face such a predicament. Can this anomaly be saved as an ‘essential religious practice’?  Is it an ‘integral practice’ touching upon the right to profess, practice and propagate one’s own religion? These were the main questions placed before the Gujarat High Court in the writ petition in Ms. Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266. The petitioner contended as under:

  • No tenet of Zorastrianism denied a born Parsi woman, rights to her religious identity on marriage to a non-Parsi.
  • It was violative of the right to equality under Articles 14 of the Constitution of India.
  • It was pointed out that this excommunication is a matter of social and constitutional concern.
  • Excommunication could be equated to the practice of untouchability, as the effect of both was the deprivation of human dignity and civil rights.
  • The matter involved issues of the right to individual’s right to faith and practice religion under Article 25.
  • Though there should be a need to balance the rights of individuals as well that of the denomination under Article 26 to manage internal affairs, it was argued that the fundamental rights being primarily concerned with rights of individuals and protect individuality and choices, due importance should be given to the same.

The Parsi Trust opposed the petition and contended as under:

  • A Parsi woman, upon marriage with a non-Parsi, ceases to be a Parsi. 
  • Denial of entry to non-Parsis to Parsi institutions was an essential practice of the religion.
  • Under Article 26, the Parsi Trust was entitled to regulate entry. 
  • Zorastrianism directed renunciation of Parsi religion if a Parsi woman undergoes the inter-faith marriage.

The petition was dismissed by 2:1 majority. It accepted the argument of the Parsi Trust that a Parsi woman, upon marriage with a non-Parsi under the Special Marriage Act, ceased to be a Parsi. 

Majority Decision

The High Court (majority) did not address the fundamental question as to whether Ms. Gupta could be denied entry into Parsi institutions as an essential religious practice. It pointed out

  • that the English common law doctrine was that, in the absence of a specific statutory protection, the personality, known by religion, of a woman would merge into that of her husband.   
  • that a married woman is identified by her husband’s family name superseding that of her father’s, although such a principle of merger was not recognised by any of the religions in India.
  • that it is of ‘general acceptance throughout the world’.
  • that the merger was essential to determine the religion of children born out of the marriage.
  • that, to obtain reliefs from courts, countering this presumption, there should be a judicial declaration pursuant to a fact-finding inquiry. Since no such inquiry was conducted in the present case, the petitioner was deemed to have acquired the religious status of her Hindu husband. 

Minority Decision

J. Akil Kureshi, minority, ruled:

  • that the petitioner retained her Parsi identity in spite of solemnisation of her marriage under the Special Marriage Act.
  • that there was no automatic conversion on marriage.
  • that Special Marriage Act, 1954 speaks of a special form of marriage in which both parties can retain their birth-religion insofar as the other conditions under Section 4 of the Act of 1954 were satisfied.
  • that there is legislative commitment toward a secular state.

See Also: Excommunication of Parsi Women.

Conclusion

The jurisprudential importance of the ensuing Sabarimala-Nine-Judge-Bench decision is not limited as to whether the decision in Shirur Mutt Case will prevail over the decision in Durgah Committee case; because, the enquiries of the Court will not end there; but, it has to go beyond and record findings on the newly framed issues. The issues are couched in a manner that they definitely embrace, whether the decision in Shirur Mutt requires reconsideration, mainly on two points:

  • First, whether the ‘religious denomination or any section thereof‘ in Article 26 be liberally construed (or, whether ‘such religious practices as are an essential and an integral part’ of RELIGION alone, and no other, is to be considered, as held in Durgah Committee decision)?
  • Second, whether the ‘essential religious practices’ are matters that are left to be determined by the ‘denomination’ (or whether it should remain in the realm of Court, as held in Durgah Committee decision)?

One thing is definite: the march of law in this topic has reached a breaking point, whereby the answers of the Apex Court will be from a practical and solution perspective; rather than that in a pure ‘ideological’ viewpoint.

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Will – Probate and Letters of Administration

  • What is a Probate?
  • What is letters of administration?
  • When a probate is mandatory?
  • Who can apply for a probate?
  • Can Probate be issued to Movable Property?
  • What are the uses of a Succession Certificate?

Saji Koduvath, Advocate, Kottayam.

Abstract

  • Probate is:
    • mandatory, for establishing right in a court, as to properties in wills
      • pertaining to property of Hindu, Buddhist, Sikh or Jaina within Bengal, Bombay and Madras – as stated in Sec. 213 read with Sec. 57 of the Indian Succession Act, 1925.
    • not required to establish right in a court as to wills made by
      • Muhammadans, Parsi, Christians in Kerala and also pertaining to Property of Hindu, Buddhist, Sikh or Jaina beyond the provinces of Bengal, Bombay and Madras – as stated in Sec. 213 read with Sec. 57.
  • Letters of administration is
    • mandatory to establish right in a court pertaining to property of an intestate person (Note: contradistict to – Letters of administration ‘with the will annexed’): as stated in Sec. 212 –
    • It is required for persons other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi (Eg. Anglo-Indians, rationalists or non-religious persons).
  • Letters of administration ‘with the will annexed‘ is
    • mandatory to establish right in a court: as stated in Sec. 213
    • (pertaining to wills as to property of Hindu, Buddhist, Sikh or Jaina within the provinces of Bengal, Bombay and Madras) read with Sec. 234 (where no executor or executor refuses etc).
  • In short, Probate or Letters of Administration is :
    1. Needed pertaining to wills as to property of Hindu, Buddhist, Sikh or Jaina within the provinces of Bengal, Bombay and Madras.
    2. Not needed pertaining to wills as to property of
      • Muhammadans,
      • Parsi,
      • Christians in Kerala
      • Property of Hindu, Buddhist, Sikh or Jaina beyond the provinces of Bengal, Bombay and Madras
  • An executor derives his title from the Will and not from probate.
  • An unprobated Will can be admitted in evidence (in court)
    • for purposes other than establishment of right as executor or legatee.
    • in evidence for collateral purposes.
  • It is clear from Sec. 273 that probate can be issued as to Movable Property also.
  • Succession Certificate –
    • Object is Collection of Particular Debts (Sec. 372);
    • No General Power.

What is Probate according to Indian Succession Act?

  • Where an executor is named in the will (to execute or give effect to the will), under Sec. 222, the court of competent jurisdiction may issue Probate to the executor. It is granted on application by the executor or executors.
  • Probate is, copy of the will certified under the seal of a court “with a” (certificate or order as to) “grant of administration to the estate”.
  • The executor or executors nominated in the will have to file the application for getting the Probate.

Sec. 2 (f) of the Indian Succession Act, 1925 defines probate as under:

  • ” ‘Probate’ means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.”

What is Letters of Administration

Letters of Administration – Two Kinds:

  1. Referred to in Sec. 212, with respect to ‘Right to intestate’s property’ (no question of Will comes-in).
  2. Referred to in Sec. 213, with respect to ‘Letters of Administration with the Will Annexed‘, read with Sec. 234 (Grant of administration where no executor, nor residuary legatee nor representative of such legatee; or executor refuses etc.).

Letters of Administration with the will annexed

  • Letter of Administration with the will annexed is the ‘copy of the will certified under the seal of a Court with grant of administrative rights to the beneficiaries’ – similar to probate that is given to the executor.
  • The competent court issues Letter of Administration when the will does not mention an executor or when the executor declines, etc. In such cases it is given to the beneficiaries. The beneficiaries of the deceased have to apply for the Letters of Administration.

Letters of Administration (other than the will annexed): To whom granted

Sec. 218 reads as under:

  • 218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.
  • (1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased’s estate.  
  • (2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.
  •  (3) When no such person applies, it may be granted to a creditor of the deceased.

Where deceased is Not a Hindu, Muhammadan, etc.

Section 219 reads:

  • 219. Where deceased is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.
  • If the deceased has died intestate and was  not a person belonging to any of the classes referred to in section 218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely:–
  • (a) If the deceased has left a widow, administration shall   be granted to the widow, unless the Court sees cause to exclude her, either on the ground of some personal disqualification, or because she has no interest in the estate of the deceased.
  •  (b) If the Judge thinks proper, he may associate any person  or persons with the widow in the administration who  would be entitled solely to the administration if there  were no widow.
  • (c) If there is no widow, or if the Court sees cause to  exclude the widow, it shall commit the administration  to the person or persons who would be beneficially  entitled to the estate according to the rules for the  distribution of an intestate’s estate:
    •  Provided that, when the mother of the deceased is one of the class of persons so entitled, she shall be  solely entitled to administration.
  •  (d) Those who stand in equal degree of kindred to the  deceased are equally entitled to administration.
  •  (e) The husband surviving his wife has the same right of  administration of her estate as the widow has in  respect of the estate of her husband.
  •  (f) When there is no person connected with the deceased by  marriage or consanguinity who is entitled to letters of  administration and willing to act, they may be granted  to a creditor.
  •  (g) Where the deceased has left property in [India],  letters of administration shall be granted according to  the foregoing rules, notwithstanding that he had his  domicile in a country in which the law relating to  testate and intestate succession differs from the law  of [India].

Grant of Administration – where no executor, nor residuary legatee etc.

Sec. 234 reads:

  • 234. Grant of administration where no executor, nor residuary legatee nor representative of such legatee.-When there is
    • no executor and no residuary legatee or representative of a residuary legatee,
    • or he declines or is incapable to act,
    • or cannot be found,
    • the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate,
    • or any other legatee having a beneficial interest, or a creditor,
    • may be admitted to prove the will and letters of administration may be granted to him or them accordingly.

Letters of Administration Mandatory to establish ‘right in a court’ as to property of Intestate (other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi)

Sec. 212 of the Indian Succession Act states as under:

  • 212. Right to intestate’s property.-(1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction.
  • (2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi].

Effect of Letters of Administration

Under Sec. 220 of the Indian Succession Act states that the Letters of administration gives the administrator “all rights belonging to the intestate” to effectively administer as if the administration had been granted at the moment after his death.  It reads:

  • “220. Effect of letters of administration. Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.”
  • Note – The clause, “as effectually as if the administration had been granted at the moment after his death” is not stated when the Act deals with ‘Probate’. Because, it is evident that the provisions and directions in the will govern all these matters. It is further clear from the definition of administrator, in Sec. 2(a). It reads:  ” ‘administrator’ means a person appointed by competent authority to administer the estate of a deceased person when there is no executor”.

To whom Letter of Administration can be granted

Sec. 236 lays down that the Letters of administration cannot be granted to:

  • a minor
  • or is of unsound mind,
  • nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette, by the  State Government in this behalf.

Court interfere for protection property at the instance of any person interested

Sec. 269 reads as under:

  • 269. When and how District Judge to interfere for protection of property.-(1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.
  • (2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate.

When probate or administration may be granted

Sec. 270 reads as under:

  • 270. When probate or administration may be granted by District Judge.-Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.

Property vests in the executors by virtue of the Will; and not by virtue of the probate

In Commissioner v. Mohan Krishan Abrol, (2004)7 SCC 505, the Apex Court observed that a bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate.

Sec. 211 reads as under:

  • 211. Character and property of executor or administrator as such. (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
  •  (2) ….

Is ‘Probate’ or ‘Letters of Administration’ mandatory?

Sections 57, 212 and 213 of the Indian Succession Act are the relevant provisions.

Sections 57

Sections 57 says as to application of the PART that deals with WILLS.

The Section reads as under:

  • 57. Application of certain provisions of Part to a class of wills made by Hindus, etc. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply
    • (a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
    • (b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and 
    • (c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
  • Provided that marriage shall not revoke any such will or codicil.

In Clarence Pais v. Union of India, AIR 2001 SC 115 the Supreme Court held that if a Will is executed by a Hindu in respect of properties situate out side the provinces of Bengal, Bombay and Madras  then probate is not necessary in accordance with Section 57. (Mrs. H. N. Judah v. I. S. Bose, AIR 1962 SC 1471 referred)

Section 212

As stated above, this section deals with letters of administration with respect to property of a person died intestate

  • Under Sec. 212, to establish right in a court as to any property of a person (other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi) who has died intestate, letters of administration should be produced.

In Debi Sankar Bhattacharjee v. Irene David, 1968-1 Cal LT 16, the question came for consideration was as to an intestate Anglo-Indian deceased. Court observed as under:

  • “After considering Section 211 and Section 212 and the aforesaid other provisions of the Indian Succession Act, I see no reason why such representation was not necessary to be obtained in this case. The tenancy right is undoubtedly a property within the meaning of the said provisions of the Indian Succession Act. Again, it is clearly provided therein that such property cannot vest on anybody else excepting an administrator in case the deceased Anglo-Indian died intestate as was the case here. The defendant has been sued as a trespasser. The defendant seeks to establish her right that she is an heir of the deceased on whom the tenancy right was vested after the death of the tenant. Under Section 212 of the Indian Succession Act she is debarred from establishing such right in any Court without obtaining a grant of the letter of administration. The tenancy right which is a property left by the deceased could not have vested in her as an heir immediately upon the death of the deceased. She could at best be a person interested to succeed in the tenancy right and in that capacity she could take steps under Section 269 of the Indian Succession Act to protect her tenancy right from anybody who might have interested with it until the grant would be made. By doing so she could get an administrator appointed so that such administrator after administering the estate could have the tenancy right vested in her. The language of Sections 211 and 212, read with Section 269, would clearly indicate the same. The language of sec. 212 makes it imperative to take out representations to the estate of the deceased. It is further clear that the tenancy right is a property and the vesting takes place only when the appointment is made and not earlier. The function of the administrator after he would be so appointed would be to transfer the monthly tenancy right left by the deceased to the proper heir or heirs as on intestacy and such function would be performed by him in course of his administering the estate of the deceased. Until that would be done the landlord would not be in a position to ascertain who would be the proper tenant under the circumstances in a case governed by the Indian Succession Act.”

Section 213 – Requirement of Probate

Section 213 reads as under:

  • 213. Right as executor or legatee when established.-
  • (1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probate of the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
  • (2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply—
    • (i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and
    • (ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, (16 of 1962.) where such wills are made within the local limits of the ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
  • [Kerala Amendment – In sub-section (2), after the word ‘Muhammadans’, the words ‘or Indian Christians‘ is inserted, in 1997.]
  • Sec. 2 (d) defines Indian Christian as under:
    • ” ‘Indian Christian’ means a native of India who is, or in  good faith claims to be, of unmixed Asiatic descent and  who professes any form of the Christian religion”

Section 213 only says – No Right can be ‘Established in Court‘ with Unprobated Will

The section does not prohibit the use of unprobated Will for purposes other than establishment of right as executor or legatee.

The Supreme Court pointed out in Hem Nolini v. Isolyne Sarojbashini, AIR 1962 SC 1471, that the section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration. It is held as under:

  • “The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. of the will under which he claims. What it says is that no right as an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.”

Division Bench of Kerala High Court in Cherichi v. Ittianam, AIR 2001 Ker 184, held as under:

  • “The prohibition under Section 213 of the Act is regarding establishing any right under the Will without getting probate or letters of administration and that section cannot be understood as one by which the vesting of right as per the provisions of the Will is postponed until the obtaining of probate or letters of administration. The Will will take effect on the death of the executant of the Will and what Section 213 of the Act says is that the right as executor or legatee can be established in any Court of justice only if probate or letters of administration is obtained. ….. The necessity to obtain probate or letters of administration as provided in Section 213(1) of the Act arises only when right as executor or legatee is sought to be established in a Court and hence that section does not prohibit the use of Will which is unprobated as evidence for purposes other than establishment of right as executor or legatee. So, the requirement of obtaining probate becomes relevant at the time when the establishment or right as executor or legatee on the strength of a Will is sought to be made in a Court of justice…”

Unprobated Will can be used in Collateral Purpose in Court

In Commissioner v. Mohan Krishan Abrol, (2004)7 SCC 505, it is observed as under:

  • “A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v Karam Chand Soni [AIR 1938 Cal  714] it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty [43 Indian Appeals 113] the Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, Section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings.”

Can Probate or Letters of Administration be issued to Movable Property

It is clear from Sec. 273 that probate can be issued as to Movable Property also. It reads:

  • 273. Conclusiveness of probate or letters of administration. Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted.

Read Blog: Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Succession Certificate – Object is Collection of Particular Debts; No General Power

As can be seen from the Sec. 372, the main object of a Succession Certificate is to facilitate collection of particular debt or debts due to the deceased creditor. This section reads as under:

  • 372. Application for certificate. (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, (5 of 1908.) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:
  •  (a) … to  (e) ….
  • (f) the debts and securities in respect of which the  certificate is applied for.
  •  (2) …. …. …..
  • (3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.

The Supreme Court explained the object in Shri Banarsi Dass v. Mrs. Teeku Dutta, 2005(4) SCC 449, as under:

  • “The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons.
  • Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased.
  • A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged.
  • The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so chooses, can also adduce evidence to oppose grant of succession certificate.”

Probate Operates as a Judgment in Rem

The grant of a Probate by Court of competent jurisdiction is in the nature of a judgment in rem and conclusive and binds not only the parties but also the entire world. The principle is laid down by the Supreme Court in the following cases:

  • Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271,
  • Virendra Kumar Jain v. Asha Goel, 2019-4 All.WC 4033,
  • Ishwardeo Narain Singh v. Smt. Kanta Devi, 1954 AIR SC 280,
  • Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507.

Probate Court is not competent to determine the question of title

The Supreme Court consistently held (Ishwardeo Narain Singh v. Smt Kamta Devi, AIR 1954 SC 280, Chiranjilal Shrilal Goenka , v. Jasjit  Singh, (1993) 2 SCC 507, and  Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon 2008 (1) CTC 80) that the probate Court is not competent to determine the question of title to the suit properties. (See: P.  Dhanakoti v. Devikarani, 2011 4 CTC 593; 2011 3 LW 633)

Also Read Blog: Executors of Will – Duties & their Removal

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FERA, 1973 And Transfer of Immovable Property by a Foreigner

FERA, 1973 directed foreign citizens to obtain prior permission from RBI for transfers of property.

FERA, 1973 has been repealed by FEMA, 1999 and transfers by foreigners are not prohibited under the new Act.

Saji Koduvath, Advocate, Kottayam.

Abstract

  • Section 31 of FERA, 1973 directed foreign citizens to obtain prior permission from RBI to ‘acquire or hold or transfer or dispose of‘ Immovable Property in India.
  • Several High Courts held that Section 31 was only directory.
  • Supreme Court, held that it was mandatory in Asha John v. Vikram Malhotra (2021).
  • FERA, 1973 has been repealed by FEMA, 1999.
  • FEMA does not prohibit such transfers.
  • By virtue of the decision in Asha John v. Vikram Malhotra, the transfers made by foreigners, violating FERA, 1973, till 1999, stands void.
  • In Asha John v. Vikram Malhotra, the Supreme Court held that the competent court decisions that attained finality, on the supposition that Sec. 31 of FERA was only directory, should not be reopened.

Introduction

  • Section 31 of the Foreign Exchange Regulation Act, 1973 (FERA) stipulates that when a foreign citizen ‘acquire or hold or transfer or dispose of‘ Immovable Property in India, he must have obtained the prior permission for the same from the Reserve Bank of India.
  • Very valuable properties are involved, in several cases, including large plantations.
  • Several High Courts held that it was not a mandatory requirement; but, only a mere directory provision.
  • Contra view was also taken by certain High Courts.
  • The matter was finally placed before the Apex Court in Asha John v. Vikram Malhotra (AIR 2021 SC 2932).

The Supreme Court of India (JJ. Khanwilkar, Indu Malhotra and Ajay Rastogi) held in the landmark decision, Asha John v. Vikram Malhotra (AIR 2021 SC 2932), that the requirement in Sec. 31 was mandatory; and, therefore, the transfer of Immovable property made in India, by foreigners, without prior permission of RBI was void.

  • Note:
  • FERA, 1973 has been repealed by Foreign Exchange Management Act, 1999 (FEMA) and such transfers are not prohibited under the new Act.
  • But, it is important for it is held by the Apex Court that such acquisition and transfers are ‘void‘.

Section 31 (1), Foreign Exchange Regulation Act, 1973

Section 31 (1) reads as under:

  • “31. Restriction on acquisition, holding, etc., of immovable property in India.—
  • (1) No person who is not a citizen of India and no company (other than a banking company) which is not incorporated under any law in force in India shall, except with the previous general or special permission of the Reserve Bank, acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India:
  • Provided that …”

Decisions of High Courts – Sec. 31 was not Mandatory

Several High Courts held that Sec. 31 was not mandatory; but, only directory. It includes the following:

  • Piara Singh v. Jagtar Singh (AIR 1987 P&H 93),
  • Ajith Prashad Jain v. N.K. Widhani (AIR 1990 Del. 42),
  • Tufanu vs. Muhammed Abdul Rahman ((1993) 1 Gau LR 306),
  • R. Sambasivam v. Thankavelu (2001-1 LW 161),
  • Geeta Reinboth v. J. Clairs (2005) 1 MP LJ 122,
  • Shivaprakasam v. Elamkovan ((2010) 3 MWN (Civil) 525: 2010 SCC OnLine Mad 4245),
  • Mathu Sree v. Samikkannu ((2013) 1 LW 136: 2012 SCC OnLine Mad 2769),
  • Harrisons Malayalam Ltd. v. State of Kerala, 2018(2) KLT 369.

The Supreme Court Verdict – Asha John v. Vikram Malhotra

Our Apex Court held in Asha John v. Vikram Malhotra (AIR 2021 SC 2932) as under:

  • “The condition predicated in Section 31 of the 1973 Act of obtaining ‘previous’ general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory.”
  • “The decisions of concerned High Courts taking the view that Section 31 of the 1973 (FERA) Act is not mandatory and the transaction in contravention thereof is not void or unenforceable, is not a good law.”

Not to Reopen Cases Became Final by Competent Court Decisions

In this verdict (Asha John v. Vikram Malhotra) it is held that, the ‘transactions which have already become final‘, and the competent court decisions attained finality on the premises that Sec. 31 of FERA was only directory, should not be reopened. It is rendered as under:

  • “However, transactions which have already become final including by virtue of the decision of the court of competent jurisdiction, need not be reopened or disturbed in any manner because of this pronouncement.”

Ambiguity Broods

The words in the decision, ‘transactions which have already become final‘, is ambiguous; and it requires clarification, especially since it is definitely held in this case (Asha John v. Vikram Malhotra) that ‘the transaction (specified in Section 31 of the 1973 Act) entered into in contravention of that provision is void‘. And, also, observed as under:

  • ” ‘A priori, we conclude that the decisions of concerned High Courts taking the view that Section 31 of the 1973 Act is not mandatory and the transaction in contravention thereof is not void or unenforceable, is not a good law“.

Brief History of the case (Asha John v. Vikram Malhotra):

  • A foreigner, Raitte, gifted property to Vikram Malhotra without obtaining permission from RBI under S. 31 of  FERA 1973.
  • Before executing the gift deed she entered into a sale agreement with David, predecessor of Asha John.
  • The foreigner obtained formal permission of RBI under S. 31 on 2-4-1983.
  • The foreigner executed registered sale deed in favour of David on 9-4-1983.
  • David (Plaintiff), predecessor of Asha John, filed suit against Vikram Malhotra (Defendant) to declare the gift deed null and void.
  • Trial Court dismissed the suit.
  • The High Court, in appeal, held that there was no violation of S. 31; and dismissed the appeal, against the plaintiff.

The Supreme Court allowed the appeal, finding:

  • Gift to Vikram Malhotra (Defendant) was without permission from RBI under S. 31 of  FERA. Hence it was void, and
  • Sale to David (Plaintiff), predecessor of Asha John, was after permission from RBI; and hence it was valid.

Argument of appellant in the Supreme Court (Accepted by the Supreme Court).

  • Transfer to the defendant was void, for the reasons:
    • Transfer to the defendant was violative of S. 31; as prior permission of RBI was mandatory.
    • Further, S. 47 directed – “no person shall enter into” such contract; and S. 50 made violation punishable.
    • Object of 1973 Act was stopping capital repatriation (removal).
    • A contract is void if prohibited by a statute under a penalty (even if no express declaration in the Act that it is void).

Argument of Respondents:

  • S. 31 is a directory provision.
  • It does not prohibit transfer.
  • No provision say, violation is void.
  • No consequence provided for violation.
  • Provision for penalty does not make the deed invalid.
  • Penalties are provided in Section 50, no action has been taken RBI.
  • At the most, it would be voidable; and subject to discretion of the RBI.
  • RBI is exclusively responsible for determining the permissibility of the transaction.
  • FERA has been repealed and impugned violation is not void under the preset Act (FEMA).
  • Consistent view of High Courts should not be interfered, as held in Waman Rao v. Union of India, (1981) 2 SCC 362.

The Supreme Court upheld the Contentions of the Appellant, relying on the following earlier Decisions

Mannalal Khetan v. Kedar Nath Khetan, AIR 1977 SC 536;  (1977) 2 SCC 424 Prohibition and negative words can rarely be directory. Under Section 31  read with Sections 47, 50 and 63 of the Act, it is in the nature of prohibition. When penalty is imposed by statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty if imposed is not enforceable.
Union of India & Ors. v. A.K. Pandey, (2009) 10 SCC 552Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition.
Union of India v. Colonel L.S.N. Murthy & Anr. (2012) 1 SCC 71  The contract would be lawful, unless the consideration and object thereof is of such a nature that, if permitted, it would defeat the provisions of law. And, in such a case the consideration or object is unlawful and would become void and that unless the effect of an agreement results in performance of an unlawful act, an agreement which is otherwise legal cannot be held to be void. Further, if the effect of an agreement did not result in performance of an unlawful act, as a matter of public policy, the court should refuse to declare the contract void with a view to save the bargain entered into by the parties and the solemn promises made thereunder. The Court adverted to the exposition in the earlier decision in Shri Lachoo Mal v. Shri Radhey Shyam, AIR  1971 SC 221 as to what makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobedience of law.

Re: Argument (Propounded in Waman Rao v. Union of India) – Not to Disturb the Consistent View of various Courts

The Supreme Court held as under:

  • “It is not possible to countenance the argument – not to disturb the consistent view of different High Courts on the principle of stare decisis by invoking the dictum in Waman Rao, in reference to Section 31 of the 1973 Act. For, there is conflict of opinion and is not a case of consistent view of all High Courts, having occasion to deal with interpretation of Section 31 of the 1973 Act.”

Following are the decisions cited by the Apex Court – that are in line with the view of the Apex Court:

  • Joaquim Mascarenhas Fiuza v. Jaime Rebello,  1986 SCC OnLine Bom 234 : 1986 Mah LJ 1031,  Bombay High Court (Goa Bench).
  • Sahruvan Nachair  v. V.S. Mohammed Hussain Maracair,  (2001) 1 Mad LJ 188 : 2000 SCC OnLine Mad 737, Madras High Court.
  • William Babu & Anr. v. Helma Roy Alias Emily Carmel,  (2018) 1 Ker LJ 525 : 2017 SCC OnLine Ker 25269, Kerala High Court.
  • Mrs. Shoba Viswanatha v. D.P. Kingsley, 1996 (I) CTC 620 : 1996 SCC Online Mad 319 Madras High  Court.,

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Doctrine of ‘Right to be Forgotten’ in Indian Law

Saji Koduvath, Advocate, Kottayam.

Abstract of the Contents.

  • Courts in India apply the doctrine of  ‘Right to be Forgotten’:
    • (i) basing on the foundational principles enshrined in Article 21 of the Constitution (right to life) ,
    • (ii) following the land mark decision, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (wherein it is held: “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone“) and
    • (iii) under the provisions of Information Technology Rules, 2021.
  • Personal Data Protection Bill, 2019, that upholds the doctrine of  ‘Right to be Forgotten‘, is not passed, though introduced in Parliament in 2019.
  • Now this doctrine is used for removing private information from internet.

Part I

What is ‘Right to be Forgotten‘

It is human nature to forget things. The right of an individual not to be injured, out of another’s acts of constant recalling-of-past-deeds, is recognized in law – as the doctrine of  “Right to be Forgotten”. 

Now used for removing private information from internet

Now-a-days it is applied to uphold reputation of a person, by removing the private information about him from internet sites and services.

Right to Righteous Life and Reputation

  • Article 21 (right to life) of the Constitution of India reads:

“Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”

  • Right to righteous life is an inalienable human right.

Shakespeare (Othello: Act II, Scene iii) says through IAGO as under:

  • “Good name in man and woman, dear my lord,
  • Is the immediate jewel of their souls:
  • Who steals my purse steals trash; ’tis something, nothing;
  • ‘Twas mine, ’tis his, and has been slave to thousands:
  • But he that filches from me my good name
  • Robs me of that which not enriches him
  • And makes me poor indeed.”

Shakespeare made it clear – a good name, or reputation, is valuable for its owner. Stealing the reputation of one, does not make another rich. But he who loses reputation, suffers damage.

  • First Statute which recognized ‘right to be forgotten‘

The European Union systematized the right to be forgotten in a statute, first time, in the year 2018, by ‘General Data Protection Regulation’.    

  • First case where ‘right to be forgotten’ recognized

Google Spain SL v Agencia Española de Protección de Datos (AEPD), ( [2014] QB 1022, may be the first case wherein the ‘right to be forgotten’ was recognized as a legal right. It is sprouted out from ‘right to privacy’.

Part II

Codification of the Law on Reputation in India.

  • Personal Data Protection Bill, 2019.

Personal Data Protection Bill presented in the Indian Parliament by the Ministry of Law and Justice, based on the recommendations of V.N. Sreekrishna Committee, in 2019, legally accepted the ‘right to be forgotten’ as a recognizable right.  Unfortunately, the bill had not been passed by the Parliament, so far. 

  • Information Technology Rules, 2021.

Rule 3(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 directs as under:

  • “(2) Grievance redressal mechanism of intermediary:
  • (a)The intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –
  • (i) acknowledge the complaint within twenty four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;
  • (ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.
  • (b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which
    • exposes the private area of such individual,
    • shows such individual in full or partial nudity or
    • shows or depicts such individual in any sexual act or conduct, or
    • is in the nature of impersonation in an electronic form,
    • including artificially morphed images of such individual,
  • take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it:
  • (c) The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.”

High Court Decisions in India, on ‘Right to be Forgotten’  

Despite the non-delivery of the proposed Personal Data Protection Bill by the Parliament, various High Courts in India pronounced judgments accepting the doctrine, ‘right to be forgotten’, as an inalienable human right.  It is founded upon Art. 21, ‘Right to Life’, the most valuable fundamental rights in the Constitution of India. 

After the decision on ‘Right to Privacy’ rendered by the Supreme Court of India in J. KS Puttaswami v. Union of India, (2017) 10 SCC 1, various High Courts upheld the rights arising from ‘right to be forgotten’, based on the dogma on ‘Right to Privacy’.

The following are the land-mark decisions on the doctrine of the  ‘right to be forgotten’ (after the verdict in Puttaswami).

  1. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.(Delhi HC, 2019)  2019 SCC OnLine Del. 8494.
  2. Sri Vasunathan v. The Registrar General (Karnataka HC) (2020)
  3.  Subhranshu Rout Gugul  v. State of Odisha, 2020 (Orissa HC), 2020 SCC OnLIne Ori. 878.
  4. X  v. YouTube (2021):
  5. Jorawer Singh Mundy v. Union of India & Ors  [Delhi HC, 2021), 2021 SCC OnLine De. 2306.

Prior to the Supreme Court decision in Puttaswami, the Courts in India did not accept the ‘right to be forgotten’ as a right recognizable in the Jurisprudence available in India.  It was on the premises that no enacted law spoke specifically as to such a right.  The said earlier decisions include the following:

  • Naresh Sridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1;
  • Dharamraj Bhanushankar Dave v. State of Gujarat,  2017 SCC OnLine Guj. 2493.     
  • Anchit Chawla v. Google India, 2018

Even after Puttaswami, finding it ‘more appropriate to await‘ till the Parliament opens its eyes or expounds its wisdom, the TN High Court held in Karthick Theodre v. The Registrar General,  2021 SCC OnLine Mad. 2755, as under:

  • “This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.”

Part III

Decisions Upheld, ‘Right to be Forgotten’

1. X  v. YouTube (Delhi HC, 2021)

The plaintiff in that case was a well-known actor in TV and Film world of India.  She participated in the creation of Video made mention of in the suit (suit video).  The project was later on dropped.  But the plaintiff found that the producer of the suit video uploaded it in YouTube channel and website.  On the request of the plaintiff the producer removed the videos.  Without plaintiff’s consent the defendants in the suit uploaded the suit videos in various websites.

The plaintiff applied for anonymity and filed the suit against the publication, streaming, or other broadcasting, on the ground that the suit videos infringed her privacy, negatively affected her reputation and it prejudiced her career.  

The contesting defendant (Google) argued the following:

  • they were unaware of the agreement as to the videos;
  • the plaintiff being consented  filming the videos  defendants were not under an obligation to prevent the publication of the videos;
  • the plaintiff had no statutory protection to enforce the ‘right to be forgotten’. 
  • the plaintiff had not required the authorized representative who complied to the Intermediary as provided under Rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
  • S. 67 & 67A of the Information Technology Act, 2000 excluded matters published in the interest of Science, Literature, Art, etc.

The defendants (Google) relied, mainly, on:

  • Karthick Theodre v. Registrar General, 2021 SCC OnLine Mad. 2755
  • Dharamraj Bhanushankar Dave v. State of Gujarat, 2017 SCC OnLine Guj. 2493,
  • Anchit Chawla v. Google India , 2018. 

Finding the suit to be maintainable, the Court held that the suit videos were of the kind that comes in Rule 3(2)(b) of the I.T. Rules, 2021.  The Court pointed out:

  • Even if plaintiff allowed to videograph voluntarily, the suit videos were not agreed to be published or transmitted by the defendants. 
  • She did not license for any of the URLS, Websites or Search engines to publish of transmit the same to YouTube. 
  • The defendants published or circulated the videos ‘for obvious monitory and other prurient benefits’. 
  • Even if the producer would have claimed protection on the consent of the plaintiff, the defendant had ‘no such consent’. 
  • ‘Right to be forgotten’ and the ‘right to be left alone’ are ‘inherent aspects’ of the ‘right to privacy’. 

The claim raised by the plaintiff against the circulation of videos against her will was accepted by the court.

2. Jorawer Singh Mundy v. Union of India & Ors  (Delhi HC, 2021)

The Delhi High Court (Prathiba M. Singh, J.) upheld the doctrine of ‘right to be forgotten’ in this decision. 

The petitioner, an American citizen of Indian origin, travelled in India during 2009.  A criminal case under the NDPS Act, 1985 was lodged against him.  He was acquitted from all the charges.  The appeal filed by the Customs was also dismissed.  After his return to US, the petitioner had to face disadvantages due to the availability of his case on a Google search.  Hence employment to his expectations was denied to him.  The petitioner issued notice to Google India Pvt. Ltd., Google LLC, Indian Canon, etc.  Even after notice the respondents in the case did not remove the judgment.  Hence the petitioner filed the petition to recognize his right to privacy under Art. 21 of the Constitution of India.

The High Court referred the following judgments:

  • K.S. Puttaswami (2017) 10 SCC 1,   
  • Zulfiqar Ahman Khan (supra) and
  • Subhranshu Rout Gugul (supra)

The High Court, by an interim order, directed Google India Pvt. Ltd. and Google LLC to remove the judgment from ‘search results’ sought for by the petitioner; and directed Indian Canon to block the said judgment from being accessed by using search engines such as Google/yahoo etc. 

3. Subhranshu Rout Gugul  v.  State of Gujrat, 2017 SCC OnLine Guj. 2493

The petitioner was charged with various offences including rape of his classmate.  While considering the bail application a question arose as to the recognition of the ‘Right to be forgotten’ in Indian Law since the video recording with the accused was alleged to be used to threaten and blackmail the victim.  The court has to consider the impact of the publication of the videos in Facebook, and in this conduct the recognition of the ‘right to be forgotten in India’ came up.  The court pointed out that the Rout removed the Facebook video it would still remain ‘in the public domain’.  The High Court referred to

  • Sri Vasunathan v. The Registrar General (2017 SCC Online Kar. 424)
  • Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd. (2019 SCC OnLine Del. 8494), 2019(175) DRJ 660. 
  • {Name Redacted}  v. The Registrar General (Karnataka High Court)

It was pointed out that in {Name Redacted}  v. The Registrar General (Karnataka High Court) recognized ‘right to be forgotten’ explicitly, though in a limited sense; and that the petitioner’s request (to remove his daughter’s name, from the judgment, involving claims of marriage and forgery) was upheld.  In that decision it was held that recognizing ‘right to be forgotten’ would parallel initiatives by western countries which upheld this right when sensitive cases concerning the modesty or reputation of people, especially women, were involved. 

The High Court also relied on Puttaswami v. Union of India to uphold the rights claimed in the matter.   

4. Sri Vasunathan v. The Registrar General (Karnataka HC)  

In this case it was observed that the ‘right to be forgotten’ is ‘keeping in line with the Trend in western countries where it is followed as a matter of rule’.

5. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 SCC OnLine Del. 8494.

The suit was filed seeking permanent injunction against a digital/electronic platform (www), its editor and an author who had written articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign. The three individuals, who made allegations against the Plaintiff, have remained anonymous and have not revealed their identity in the public domain.

The Defendants, while the matter is being heard submitted the court that they were willing to pull down the said two publications against the plaintiff and that the first article had already been pulled down.

It was pointed out by the Court that if re-publication is permitted to go on continuously, the Plaintiff’s rights would be severely jeopardised. The court observed:

  • “The original publisher having already agreed to pull down the same, this Court having directed that the same ought not to be republished, the Plaintiff, thus, has a right to ensure that the articles are not published on multiple electronic/digital platforms as that would create a permanent atmosphere of suspicion and animosity towards the Plaintiff and also severely prejudice his personal and professional life. The printouts of the articles from certain sites, which have been shown to the Court, leave no doubt in the mind of the Court that these are identical to the articles published on the first defendant’s site, which have already been pulled down.”

Then held as under:

  • “9. Accordingly, recognising the Plaintiff’s Right to privacy, of which
    • the ‘Right to be forgotten’ and
    • the ‘Right to be left alone’ are inherent aspects,
  • it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.
  • 10. The Plaintiff is permitted to communicate this order to any print or electronic platform including various search engines in order to ensure that the articles or any excerpts/search results thereof are not republished in any manner whatsoever. The Plaintiff is permitted to approach the grievance officers of the electronic platforms and portals to ensure immediate compliance of this order.
  • 11. If the said search engines do not take down/remove the objectionable content from their platforms within a period of 36 hours after receiving communication from the Plaintiff with a copy of this order, the Plaintiff is also permitted to communicate with the Defendants so that the Defendants can also cooperate in the said pulling down, if required. If the said platforms do not, after being served by a copy of this order, take down the objectionable content, the Plaintiff is given liberty to approach this court forthwith – apart from approaching the appropriate authorities under the Information Technology Act.”

Part IV

K.S. Puttaswami  v. Union of India and the ‘Right to be Let Alone’

In the celebrated decision on ‘right to privacy’, K.S. Puttaswamy, (2017) 10 SCC 1 , our Supreme Court has held that the ‘right to be let alone‘ is a part of ‘essential nature of privacy‘ of an individual. It is held as under:

  • “Essential nature of privacy
  • 297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
  • 402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)] . The right to be in this condition has been described as “the right to be let alone” [ Samuel D. Warren and Louis D. Brandeis, “The Right To Privacy“, 4 Harv L Rev 193 (1890)] . What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.
  • 479. Both the learned Attorney General and Shri Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mere right to be let alone to recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples–including the right to marry; rights as to procreation, contraception, general family relationships, child- bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.
  • 560. The most popular meaning of “right to privacy” is–“the right to be let alone“. In Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] , K.K. Mathew, J. noticed multiple facets of this right (paras 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis.
  • 636. Thus, the European Union Regulation of 2016 [Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4-2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten“. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”
  • (Quoted in: Subhranshu Rout Gugul  v. State of Odisha, 2020 (Orissa HC), 2020 SCC OnLIne Ori. 878.)

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Can an Unregistered Sale Agreement be Used for Specific Performance

Saji Koduvath, Advocate, Kottayam.

Contents in Nutshell.

  • Can an Unregistered Sale Agreement be Used for Specific Performance?
    • The Answer is, Yes.
  • Because, under proviso to Sec. 49 Registration Act, 1908, as held by our Apex Court, in  S. Kaladevi v. V.R. Somasundaram, (2010) 5 SCC 401, a document required to be registered, if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. (Followed in: Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC  639.)

Relevant Provisions in the Registration Act

Sec. 17(1) (g) and 49 are the relevant provisions. They read as under:

  • “17. Documents of which registration is  compulsory- (1) The following documents shall be registered, …, namely:
  • …
  • …
  • (State Amendment -AP) Agreement of sale of immovable property of the value of one hundred rupee and upwards.
  • (Similar State Amendment in Tamil Nadu and Kerala also)
  • “49. Effect of non-registration of documents required to be  registered.– No document required by section 17 …. to be registered shall-
  • (a) affect any immovable property comprised therein
  • (b) ….
  • (c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
    • Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”

Relevant Supreme  Court Decisions:

  • S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401.
  • Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC  639.

Unregistered Agreemet can be used in Specific performance of Contract

In S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401, Our Apex Court held as under:

  • “11. The main provision in Section 49 provides that any document which is required to be registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however, would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registered may be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be affected by registered instrument. By virtue of the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateral transaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908, Act.”
  • 12. Recently in the case of K.B. Sahaand Sons Private Limited v. Development Consultant Limited ,(2008) 8 SCC 564, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:
    • “……The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner’s Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it……”
  • “This Court then culled out the following principles: (K.B. Saha case, SCC p.577, para 334)
    • “1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
    • 2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
    • 3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
    • 4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
    • 5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
  • To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.”

It is held in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC  639, after quoting Sec. 17 Registration Act, as under:

  • 10. On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act.
  • The issue, in our opinion, is no more res integra. In S. Kaladevi Vs. V.R. Somasundaram and Ors., (2010) 5 SCC 401, this Court has restated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act. 

After quoting Sec. 49 Registration Act it is observed by the Apex Court as under:

  • 11. In the reported decision (i.e. S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401), this Court has adverted to  the principles delineated in K.B. Saha and Sons Private Limited  v. Development Consultant Limited, (2008) 8 SCC 564 and has added one more principle  thereto that a document is required to be registered, but  if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908  Act and shall not have any effect for the purposes of  Section 53A of the 1882 Act. In that, it is received as evidence of a contract in a suit for specific performance and nothing more. The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the 1882 Act or the 1899 Act, as the case may be, will have to be adjudicated at the appropriate stage as noted by the Trial Court after the parties adduce oral and documentary evidence.”

Basis of the Erudite Decision In S Kaladevi (as stated in Para 11 of the decision)

  1. Proviso in Section 49:
    • “The proviso, however, would show that an unregistered document affecting immovable property and a document ‘required to be registered, but  if unregistered’, may, still, be received as an evidence to the contract in a suit for specific performance …. “
  2. Admitted as proof of an oral agreement of sale
    • “Such an unregistered sale deed … can be received in evidence ….. as evidence of an oral agreement of sale.”

Unregistered Agreemet can be used in Specific performance Even After the Amendment on Sec. 17

In C.  Ramya Vs. C.  Ganambal, 2020-5 Mad LJ 416 the Madras Court pointed out that the Madras and Andhra High Courts took the view that even after the amendment on Sec. 17 (Agreement of sale of immovable property is a compulsorily registrable document), non-registration of an agreement of sale does not operate as a total bar to look into the contract, since proviso to Section 49 has carved out two exceptions –

  • (i) a document ‘required to be registered, but  if unregistered,’ may, still, be received as an evidence to the contract in a suit for specific performance, and
  • (ii) it can be used for any ‘collateral purpose‘.

The following are the cases referred to by the Madras High Court:

  • G. Veeramani Vs. N. Soundaramoorthy, 2019(6) CTC 580;
  • D. Devarajan v. Alphonsa Mary, 2019 (2) CTC 290;
  • Minor Ravi Bharathi Vs. P. Balasubramani, 2014(3) MWN (Civil) 578.

See blog: Unstamped & Unregistered Documents and Collateral Purpose

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Modes of Proof of Documents

Saji Koduvath, Advocate, Kottayam.

Abstract.

Proof of documents

  1. Proof of documents includes – 
    • formal proof, and
    • truth of its contents.
  2. Generally, proof must be given through persons –
    • who can vouchsafe for the truth.
  3. Where inherently-inadmissible document is marked,
    • objections thereto can be raised ‘at a later stage’;
  4. Admitted documents –
    • need not be proved.
  5. The objection to mode of proof, and proof as to truth of its contents,
    • can be waived.
  6. The objection to mode of proof, and proof as to truth, have to be raised
    • at the ‘earliest opportunity’.
  7. Where ‘truth’ of a document is in issue, marking without objection
    • does not absolve the duty on the concerned party to prove the truth.

Probative value of a document

  1. Mere marking a document as an exhibit
    • does not dispense with its proof.
  2. Probative value of a document ‘marked without objection’ is 
    • low or nil, for want of proper proof.
  3. Even when a document is admitted, the probative value thereof will be
    • a matter for the court to determine.
  4. 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.

PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS

A document to be used in court has to pass through three steps. They are:

  1. Production of documents in court
  2. Admittance and exhibition
  3. Proof (formal proof and truth of contents).

Production and Admittance of evidence

Order VII rule 14, Order VIII rule 8A , Order XIII rule 1 say as to ‘Production‘ of documents in court. At this stage the opposite party may not have a role to object. But the Court or even the office of the court (registry) can raise and note objection on the ground of insufficiency of stamp by virtue of the provisions of the Stamp Act concerned.

Order XIII rule 4 requires following endorsements on every document which has been admitted in evidence in the Suit:

  • (a) the number and title of the suit,
  • (b) the name of the person producing the document,
  • (c) the date on which it was produced, and
  • (d) a statement of its having been so admitted.

Proof – Two Types:

First, Formal Proof: Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.

Second, Substantive Proof:  Proof as to truth of the contents document. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the same is established. Generally speaking, proof as to truth is to be established-

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

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 Vs. Virendra Bharti: 2011-2 ACC 886, 2010  ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
  • Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

Modes of Proof of Documents ‘Required By Law To Be Attested’

Section 68 of the Evd. Act provides that the documents required by law to be attested shall not be used in evidence until at least one attesting witness has been examined, if there be

  • (i) an attesting witness alive,
  • (ii) he is subject to the process of court and
  • (iii) he is capable of giving evidence.

But, the proviso lays down that if its execution is not specifically denied by the person by whom it purports to have been executed, it shall not be necessary to call an attesting witness in proof of the execution of any document not being a Will if such document is registered in accordance with the provisions of Indian Registration Act, 1908. That is, for the purpose of proving the Will, the examination of the attesting witness is necessary.

Following documents are required by law to be attested by two or more attesting witnesses.

  • 1. Will: section 63 of the Succession Act.
  • 2. Mortgage deed: section 59 of the T P Act.
  • 3. Gift deed: section 123 of the T P Act.
  • 4. Bond:  2(5) of the Indian Stamp Act, 1899.

Presumption and Truth

St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:

  • “Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”

In Dalchand Mulchand v. Hasanbi AIR 1938 Nag 152 (Vivian Bose and Puranik JJ.) held as under:

  • “The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from Sec. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them: that is not the common course of human conduct, nor yet the common course their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him”.

Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED

In Muthialpet Benefit Fund Ltd.  v. V.  Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:

  • “7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation of necessity though in the case of RECENT TRANSACTIONS evidence aliunde** would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”

(**from other sources)

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Probative Value of Documents

Origin of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, trial, proof, testing, probation etc. In law, the meaning of ‘probative value’ is –

  • Sufficiency of evidence which is useful 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.

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.”

E.g. – (i) Photocopy of a deed: Certified copy of which is provided in law, ‘objectionable document’ – But marked without objection; (ii) un-cross-examined testimony of a witness etc.

Date of Birth – School Admission Register has More Probative Value Than Horoscope

If there is a dispute regarding age, the Supreme Court, in State of Punjab v. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, Photocopy of a Registered Deed, etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered by examining proper witness.

In Om Prakash v. State of Punjab, 1993(2) CLR 395, and in Jora Singh v. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probity evidence’because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy v. C. Jayarama Reddy, AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)

Proof must be by persons who can vouchsafe for the truth

Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003-8 SCC 745) held:

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

If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88,  2012(1) CTC 53; 2013-1 KLT 293.)

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:

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

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.

“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, Stand on a Higher Footing

Admissions in pleadings (in the same proceedings) 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  (including that in the previous pleadings in the earlier proceedings) are not conclusive by themselves and they can be shown to be wrong.

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.

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

The law prevails in India is the following –

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

Who Should Object FIRST – Court or Opposite Side?

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

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

Controversy resolved

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

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

In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is held-

  • “failure to raise timely objection” as to the irregularity of mode adopted for proving a document “amounts to waiver“.
  • (Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court).

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

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

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

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

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

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

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

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

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

Effect of Marking Documents without Objection

Following two things are different processes –

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

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

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

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

  • Divergent views are taken by the Courts depending on the facts of each case.
First view
(a) Proof (Contents) 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 Delhi) [2023] 4 SCC 731: If no objection as to mode of proof (secondary evidence) when marked, 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).
In such a case the document will not be taken as proved.

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

1. Marked Without Objection – its ‘contents’ stand proved, as admission

(a) Proof of execution may be enough: Its ‘Contents’ stand proved: Exhibiting of documents in evidence without objection amounts to ‘admission’ of its contents. Admission is taken in law as an important method of proof. In this premises, proof of execution may be enough; and no separate proof be needed. 

Though it is the usual practice followed by all courts, whether the presumption attached to the same bestows ‘truth‘ of the contents of the document is, practically and theoretically, a matter to be deduced after ‘appreciating’ evidence (in each case).

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

See also:

  • Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
  • Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);

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

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

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

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

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

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

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

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

Objection as to Truth of Contents, First Time In Appeal – Effect – Too late in the day

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.”

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

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

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

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

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

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

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

Inferences as to “TRUTH of contents

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

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

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

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

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

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

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

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

This Proposition is Not to be Applied “Literatim”

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

This proposition is not attracted–

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

This proposition is attracted–

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

Each Case under this Head Requires Distinct Consideration

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

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

Following are the often-cited cases on this subject.

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

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

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

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

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

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

Note:

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

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

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

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

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

It is only pointed out in this decision as under:

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

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

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

It is held as under:

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

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

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

In this decision it was held:

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

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

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

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

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

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

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

It is added:

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

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

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

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

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

Other Important Decisions –

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

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

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

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

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

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

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

See also:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Best Evidence Rule and ‘Evidence of High Probative Value‘

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

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

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

Secondary Evidence would be Admissible only in Exceptional Cases

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

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

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

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

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

Inasmuch as –

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

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

Duty of the Court to Aid Fair Trial

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

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

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

This principle is iterated in following cases also:

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

Objection Regarding Admissibility of Documents – 2 counts

Disputes on admissibility of documents arise on 2 domains. (See: Manakishore Lalbhai Vs. New Era Fabrics: AIR 2015 SC 3796)

  1. document which is ab initio (or inherently) ‘inadmissible’
  2. document liable to be objected on ‘mode or manner of proof’.

Even if an inherently-inadmissible document is marked, objections thereto can be raised ‘at a later stage’. Mode of proof (not inherent admissibility) falls within the realm of procedural law. Therefore, objection thereto can be waived.

Inherently-inadmissible documents

‘Inherent-inadmissibility of documents’ arises from the following:

  1. Irrelevancy
  2. Non-registration.

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

  • “5. Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
  • Explanation.—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure
  • Illustration s (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following facts are in issue:— A’s beating B with the club; A’s causing B’s death by such beating; A’s intention to cause B’s death.
  • (b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.”

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

Document liable to be Objected on ‘Mode or Manner of Proof’

Following are improper modes (liable to objection):

  • Seeking exhibition through one who cannot vouchsafe veracity or truth.
  • Objectionable (mode of) secondary evidence. Eg:
    • Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
    • Secondary evidence other than that is recognised under Sec. 63.
  • Unstamped or insufficiently/improperly stamped document.

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.

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.”

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

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.

Certified copy of a public document need not be proved by a witness

In Madamanchi Ramappa v. Muthalur Bojjappa (P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta), AIR 1963 SC 1633, it is held as under:

  • “The document in question being a certified copy of a public document need not have been proved by calling a witness.”

This proposition in Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633, is referred to in the following decisions:

  • Sarojini Amma v. Palace Administration Board, 2024 Ker 75727; 2024 KLT(Online) 2545; 2024-6 KLT(SN) 36,
  • Shail v. Nasib Khan, 2018-3 CGLJ 450 (Chh)
  • State of Gujarat v. Ashokkumar Lavjiram Joshi (J.B. Pardiwala, J), 2018-2 Glh 166 (Guj)
  • Raj Moti Dal Mills v. Sales Tax Officer (B. S. Chauhan and D. P. Gupta, JJ.), 2004-136 STC 576 (All)
  • United India Insurance Co. Ltd. v. Hamu Ram, 2004 5 WLC 513 (Raj).

If Payment of Price is disputed, Some Oral Evidence is needed for ‘proof’.

In Suresh CV v. Tobin, ILR 2013(1) Ker. 30, 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.

Courts to admit documents Without Proof

Section 163 of the Evidence Act, reads as under:

  • 163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.

It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

  • “The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”

It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167, it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.

Court’s Jurisdiction to Require to Prove an Admitted Document

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.”

Admission of Documents in Evidence & Proof

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.”

Mere marking– not dispense with proof (of truth of contents)

No doubt, presumption in Sec. 114 Evidence Act is wide enough, in the circumstance of a proper case, to presume ‘truth’ of contents of a ‘proved’ document.

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 Vs. 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 Vs. 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 Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India  Vs. 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.”]

Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami, AIR 2003  SC  4548, Dayamati Bai Vs. 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 Vs. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR  2015  SC 3796]

In Rakesh Mohindra Vs. 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.”

PROOF INVOKING PRESUMPTION – Sec. 114, Evid. Act read with Sec. 35.

The evidence/proof of contents of document may be given by proving circumstances for the same or by invoking presumption also. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/truth of a document.

Sec. 35 of the Evidence Act reads as under:

  • “35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.

Under S. 114, Illustration (e) for Judicial and official acts there is presumption as to ‘regularity’.  It is not presumption as to correctness or truth. For such presumption, one can resort to main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’ etc. (and not ‘regularity’ in Illus.–e).

Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:

  • “The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”

In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under

  • “Where Sec. 35  properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).

PROOF INVOKING PRESUMPTION – Registered deed

As stated earlier, 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.

Presumptions can be the (specific) presumptions under Sec. 79 to 90A or presumptions (general) under Sec. 114. In presumption, a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position (See: St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988).

In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:

  • “The Privy Council said in Gangamoy Debi v. Troilukhya Nath  (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
  • 15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
  • 19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) : “…  It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
  • We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”

In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:

  • “The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”

The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43, as under:

  • “The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …
  • Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:
  1. the date, hour and place of presentation of the document for registration :
  2. the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
  3. the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
  4. any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
  • Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1939 PC 117].

On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.

In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.

Execution of a Document – Question of Fact; Can be proved by Circumstantial Evidence Also

In Kishan Arjuna Khansole v. Ababuwa Baba Khansole, 2000-4 BomCR 433; 2000-4 MhLJ 854, it is pointed out that the execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence.

Registered deed: Presumption – Validly Executed

It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, as under:

  • “52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”

In Bellachi v. Pakeeran, AIR 2009 SC 3293, also it is a observed that a registered document carries with it a presumption that it was executed in accordance with law. The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72: 2018 KHC 7002 as under: 

  • “A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
    • “27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”

The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:

  • “If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”

Determination of Possession by Court By Photographs, CD or Commission

Can a commission be appointed to find out the physical possession of a property?

  • No.

In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it is pointed out that the factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.

  • See also: Malaya Gounder v. Palanisamy (1995) 1 MLJ 626,
  • Puttappa v. Ramappa, AIR 1996 Kant 257,
  • Rajendran v. Lilly Ammal alias Nelli Ammal, 1998 (II) CTC 163,
  • Benz Automobiles Private Limited v. Mohanasundaram, 2003 (3) MLJ 391,
  • D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, 2005 (4) CTC 676,
  • Devadoss v. A. Duraisingh, 2002 (3) CTC 748,
  • Parepally Satyanarayana v, Vutukuri Meeneder Goad, 2008 (1) ALT 461;
  • KMA Wahab v. Eswaran, 2008 (3) CTC 597,
  • Ramdas Trimbak v. Bajirao Sanap, 2018-1 MHLJ 866, 2018-5 AIR BomR 57,
  • S. Kalam v. V. Valliammai,  2021-7 Mad LJ 137,
  • K. Sellammal v. M. Valarmathy, 2022, Madras High Court.

In Indore Development Authority v. Manoharlal, 2020-8 SCC 129, AIR  2020 SC 1496, it is observed:

  • “270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.
  • 271. In the decision in Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P. (2011) 7 SCC 639, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is  a proof of the fact that possession has been taken.”

Kerala High Court held in Thomas VY@ Sajimon v. Joseph VY, ILR 2020-3 Ker446,  2020-3 Ker LJ  574, 2020-3 KHC 613, as under:

  • “15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, (2005) 4 MLJ 592, held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment . I respectfully agree with the view of the High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.”

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