The Bharatiya Sakshya Adhiniyam, 2023, removes the anomaly that existed under the Indian Evidence Act, 1872. By expressly recognising “written admissions” as a distinct category of secondary evidence in Section 58, it makes the written admission referred to in Section 60(b) itself (e.g., “copy enclosed”) admissible as secondary evidence. Accordingly, where Section 60(b) applies, there is no necessity to produce an independent copy falling under any other category of secondary evidence specified in Section 58.
S. 60 BSA Enumerates: “Cases in Which Secondary Evidence … May be Given“
Section 60 of the BSA [Section 65 of the Evidence Act] enumerates the “Cases in which secondary evidence relating to a document may be given”. Relevant part of Section 60 reads as under:
“60. 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, namely: — (a) ……. “
S. 60(b): If Opposite Party Admits Document in Writing
Section 60(b) BSA is attracted where the opposite party has admitted in writing the existence, condition or contents of the original document. Section 60(b) reads as under:
“(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.”
In Explanation (ii) of Section 60, it is stated as under — “For the purposes of- ……. clause (b), the written admission is admissible”
Defective Legislative Drafting in Old Evidence Act (Corrected in BSA)
Section 65(b) of the Indian Evidence Act, 1872, was susceptible to divergent judicial views. It was owing to
(i) the absence of any corresponding recognition of any such copy (like an un-compared 3rd generation copy) as a form ofsecondary evidence under Section 63, Evidence Act, and
(ii) Section 65 was relating to the “Cases in which secondary evidence relating to documents may be given“.
The ambiguity was as to –
(a) whether any copy of a document admitted in writing could be received — even if it is an un-compared 3rd generation copy, or
(b) whether it was confined to the ‘quoted‘ admission portion in the ‘admitted writing’ alone.
It can be demonstrated (referring to the provisions of the Evidence Act) as under:
First: Section 58 of the Indian Evidence Act embodied the general principle that facts admitted by the parties need not be proved. Section 65(b), however, operated in a narrower field, namely, where the existence, condition or contents of the original document had been admitted in writing. Nevertheless, because of the manner in which Section 65 was drafted, even where a legible copy of a document was admitted in writing, that very copy was not necessarily receivable in evidence unless it answered the description of one of the recognised forms of secondary evidence under Section 63. This difficulty arose because Section 65 opened with the controlling words, “Cases in which secondary evidence relating to documents may be given”, thereby making the forms of secondary evidence recognised by Section 63 applicable to every clause of Section 65.
Second: Although the Explanation to Section 65 also declared that, “for the purposes of clause (b), the written admission is admissible”, Section 63 did not recognise a written admission as a form of secondary evidence. The result was an apparent inconsistency, leaving room for divergent judicial approaches. Section 58 BSA removes that inconsistency by expressly recognising written admissions as a distinct form of secondary evidence.
Third: Consequently, where a copy that did not qualify as secondary evidence under Section 63—for example, an uncompared third or fourth generation copy—is expressly admitted in writing by a party as “a correct copy”, the admission does not, by itself, render that copy admissible. The statutory requirement under Section 63, requires production of the recognised classes of copies.
Fourth: Section 58 declared that admitted facts need not be proved. It may therefore be legitimately contended that, once the written admission (e.g., “copy enclosed”) falls within Section 65(b), formal proof of the existence, condition or contents of the original document stands dispensed with. If that construction is accepted, however, the opening words of Section 65— “Secondary evidence relating to documents may be given in the following cases”—are deprived of their full effect. The ambiguity thus arises from the difficulty in reconciling the general rule dispensing with proof of admitted facts and the statutory insistence that only recognised ‘secondary evidence’.
Important Legislative Change in BSA, from the Evidence Act
As shown above, Section 60(b) of the Bharatiya Sakshya Adhiniyam, 2023 [Section 65(b) of the Indian Evidence Act, 1872 also], applies where the opposite party has admitted in writing the existence, condition, or contents of the original document. However, Section 60 of the BSA [Section 65 of the Evidence Act] merely specifies the circumstances in which secondary evidence may be given. Hence, it can be argued that, notwithstanding the written admission in Section 60, the party relying on the document must still produce and prove an admissible copy answering the description of secondary evidence. The relevant provision in this regard is Section 58 of the BSA [Section 63 of the Evidence Act].
The Bharatiya Sakshya Adhiniyam, 2023 being include “written admissions” as an item in the list when enumerated legally acceptable copies or secondary evidence in Section 58, the “admission in writing” in Section 60(b) will enable the court to receive such (accepted/enclosed) copies in evidence.
As the (old) Evidence Act (Section 63) did not recognise “written admissions” as an item in the list enumerated as a legally acceptable copy or secondary evidence, it was necessary to produce a legally acceptable copy enumerated in the old Section 63 of the Evidence Act.
S. 58 BSA Says: What Constitutes Secondary Evidence
Section 60(b) does not, by itself, prescribe what constitutes secondary evidence. It is dealt with under Section 58 BSA [S. 63 of the Evidence Act]. The changed Section 58 BSA reads as under:
“58: Secondary evidence
Secondary evidence includes—
(i) certified copies given under the provisions hereinafter contained;
(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(iii) copies made from or compared with the original;
(iv) counterparts of documents as against the parties who did not execute them;
(v) oral accounts of the contents of a document given by some person who has himself seen it;
(vi) oral admissions;
(vii) written admissions;
(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.”
Conclusion
Under the Indian Evidence Act, 1872, Section 63 did not recognise ‘written admissions‘ as a distinct category of secondary evidence. Consequently, even where the existence, condition or contents of the original document had been ‘admitted in writing’ under Section 65(b), a legally recognised copy falling within one of the classes enumerated in Section 63 (in the old Act) should have been produced.
The Bharatiya Sakshya Adhiniyam, 2023 has substantially removed this drafting anomaly. By expressly recognising ‘written admissions‘ as a species of secondary evidence under Section 58, the new Act (BSA) harmonises Sections 58 and 60(b). Accordingly, where the case falls within Section 60(b), the written admission itself makes the accepted/enclosed copy admissible as secondary evidence.
Can Transfer of Registry or Mutation (and Payment of Tax) be Denied, pointing out Revenue Recovery, Attachment or Bank Loan? No, is the answer.
Reasons
#Mutation is only for fiscal (tax) purposes alone. # It is done not after a title enquiry. # Only a summary enquiry is made. # It is the duty of the Tahsildar to determine the person who has to pay tax. # It is the duty of the Revenue Department to keep the accounts up to date. #No case shall be rejected solely for the default of appearance of the parties. # The decision does not affect the legal rights of any person. # The question of legal rights is always subject to adjudication by civil courts.
Transfer of Registry Rules, 1966
In Kerala State, Rule 15 and 16 of the Transfer of Registry Rules determines Mutationor transfer of Registry. They read as under:
Rule 15 :
“With the help of the details furnished in the statement in Form ‘A’ prepared by the Village Officers and such further information as the Tahsildar may receive from parties and village officials at the time of enquiry regarding the fact of possession and enjoyment, payment of tax and other particulars, the Tahsildar shall determine the person in whose name the transfer of registry shall be made. No case shall be rejected solely for the default of appearance of the parties as it is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) upto date and bring into it the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.”
Rule 16 :
“The summary enquiry and the decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The question of legal rights is always subject to adjudication by civil courts and pattas will be revised from time to time in accordance with judicial decisions.”
Following propositions can be culled out from the very rules of The Transfer of Registry Rules made applicable in the State of Kerala (Rule 15 and 16):
It is the duty of the Tahsildar to determine the person in whose name the transfer of registry shall be made.
It is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) up to date.
It is the immediate concern of the Land Revenue Department bring into the thandaper accounts (Chitta) the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.
No case shall be rejected solely for the default of appearance of the parties.
Only a summary enquiry is to be made by the Revenue authorities.
The summary enquiry and the decision thereon is only an arrangement for fiscal purposes.
The summary enquiry and the decision thereon do not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases.
The question of legal rights is always subject to adjudication by civil courts.
And, pattas will be revised from time to time in accordance with judicial decisions.
‘Mutation’ Only (Mainly) for Fiscal Purposes; Legal Rights subject to civil court decision
In Sawarni v. Inder Kaur and Ors., (1996) 6 SCC 223, it was held that mutation in revenue records neither creates norextinguishes title, nor does it have any presumptive value on title. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)
In Balwant Singh v. Daulat Singh, (1997) 7 SCC 137 it was held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)
In Jitendra Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 802, it was held as under:
“6. … mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.” (Quoted in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)
In Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49, it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)
Relevant Court Decisions
“Mutation of property and acceptance of land tax will not, by itself, either create or extinguish title”.
Sawarni v. Inderkaur, 1996 (6) SCC 223 (Quoted in: S. Rajkumar v. Tahsildar, Devikulam, ILR 2020-2 Ker 883; 2020-3 KHC 270; 2020-3 KLT 403)
John v. Village officer, Koottickal Village, 2026-3 KerLT 532.
Pendency of civil suits cannot be a ground for refusing land tax –
Rimmy v. State of Kerala, reported in 2012(4)KLT SN118; Sudan v. State of Kerala, 2013 (4) KLT 563; Vijayarajan v. Tahsildar, 2013 (2) KLT SN 93; (2013) KHC 2764, Nevin Raju v. S. Basheer, 2015-3 KLJ 197; 2015-3 KLT(SN); George Pothen v. State of Kerala, 2018-4 KHC 795; 2019-2 KLT(SN) 14; .
Pendency of civil suits cannot be a ground for refusing mutation –
Tulasibhai v. State of Kerala, 2010(4) KLT 215, Sudan v. State of Kerala, 2013 (4) KLT 563, Nevin Raju v. S. Basheer, 2015-3 KLJ 197; 2015-3 KLT(SN); Babu R v. State of Kerala, 2024-7 KHC (SN) 9; 2024-6 KLT 486; 2013 (4) KHC 201; Lodge & Hotel Mazdoor Sangh v. K. K. Sidharthan, 2017-1 LLJ 320.
There was a Bank Loan when the property was transferred. The bank had initiated revenue recovery proceedings. The revenue officials refused to effect mutation. The Court directed Mutation.
Tulasibhai v. State of Kerala: 2010 (4) KLT 215
(Referred to in Nevin Raju v. S. Basheer, 2015-3 KLJ 197; 2015-3 KLT(SN);
Laila v. Village Officer, Thrikkovilvattom Village, 2019-4 ILR(Ker) 51; 2019-4 KHC 799; 2019-3 KLT 1012.
“Irrespective of disputes pending, a landholder is liable to pay tax and the same is bound to be accepted by the officers.”
S. Rajkumar v. Tahsildar, Devikulam, ILR 2020-2 Ker 883; 2020-3 KHC 270; 2020-3 KLT 403
“This Court expresses its anguish in the revenue officials refusing to abide by the legal position laid down by this Court and the mechanical manner in which land tax is refused to be accepted.”
S. Rajkumar v. Tahsildar, Devikulam, ILR 2020-2 Ker 883; 2020-3 KHC 270; 2020-3 KLT 403
General Legal Principles on Revenue Records
Relevant Provisions in the Bharatiya Sakshya Adhiniyam, 2023
S. 29, BSA: Entry in public record or an electronic record made in performance of duty are relevant.
S. 82, BSA – Court shall presume maps or plans made by the Central Government or State Government are accurate.
Survey Would Not Confer Title; Survey Authorities Not to Decide Title
The properties are identified by title deeds. The survey or resurvey would not confer title. Survey or resurvey records are not documents of proof of title.
State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Survey authorities not to decide title: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
Entry in resurvey and revenue records (on subjective satisfaction) will not lose title
Cochin Devaswom Board v. Union of India, 2023-6 KHC 328.
The title and possession are matters to be decided by a Civil Court. Resurvey under S. 13 has to yield to the adjudication by the Civil Court based on title: Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.)
Title would prevail over Revenue/Survey records
In title declaration suits, survey plan & revenue records are less significant; in suits involving title dispute, title would prevail over revenue records: Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Title to property has to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
Reliefs are not denied merely on entries in revenue records/resurvey records – Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey Conclusive Proof on Boundaries
Survey authorities determine the boundaries of the land: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
Survey conclusive proof, boundaries determined & recorded correctly; it will not affect the right and title: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
Title to be Established by Title Deeds; Not with reference to the Survey demarcation
A party to the suit has to establish the title to a property by producing its title deed. In Title declaration suits, survey plan & revenue records are less significant.
Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418; Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey and Revenue Records can be Relied on to show Boundary and Possession
Survey Records shall be conclusive proof of boundaries and presume correctness. Therefore, one can rely on the presumption that the survey records establish possession and boundary.
Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418 (Vide: Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KHC 699, Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)], Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and Achama Alexander v. Assistant Director, Survey and Land Records (2022 (2) KHC 131); Thomas v. Philip,2022(4) KerHC 451;.
This view is fortified by the decisions of the Kerala High Court in:
Kannan v. Kannan (1964 KLT 228), The Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KerHC 699), Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717); Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.); Ibrahim v. Saythumuhammed, (2013 (4) KLT 435); Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198); Thomas v. Philip (2022(4) KerHC 451); Elambilan Nani Amma v. Mulavana Antony (2023-7 KHC 418).
Survey Raises Presumption of Possession
When a person is holding a survey division, there is presumption of possession: Achuthan Unni v. Vally, 1962 KLT 1010. Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, (Quoted in: Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)
Survey authorities determine boundaries – Based on Possession, predominantly based on possession: Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) It is.
Survey authority is empowered to determine the disputes regarding the fixation of boundary; not empowered the survey authority to change the ownership: Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198
Entries in Revenue Records or Jamabandi serve only a “fiscal purpose”
Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation is for revenue or fiscal purposes
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation not create or extinguish title; No presumptive value of Title
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Balwant Singh v. Daulat Singh (D) By Lrs., (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191.
Title is Not Proved by Revenue Entries
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802.
Jubin v. Village Officer, Koottickal Village – 2026(3) KLT 532 [Relied on: Santhosh Jacob v. Tahasildar, Muvattupuzha Taluk, 2024(2) KHC 665;Marunnoli Vijayalakshmi v. Tahasildar, Koyilandi, 2019(2) KLT 373, 2019(1) KHC 142]
Revenue Records can raise a presumption regarding possession.
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319.
Fabricated records in collusion – not defeat rights of Govt.
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Baleshwar Tewari v. Sheo Jatan Tiwary, (1997) 5 SCC 112 ; State of Punjab v. Sadhu Ram, (1997) 9 SCC 544; R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203.
A Trust cannot be registered as a Society; why? Both are different legal conceptions. A trust is an obligation, in law. A society is a collection of members. The fundamental principles upon which a trust is founded cannot be varied.
A Society cannot be converted into a Trust; why? Because, the fundamental rules of a society or a club cannot be altered even by a unanimous vote of the members. There is no provision in the SR Act to change the character of the society to a trust. The only provision is for the amalgamation of societies.
A Trust and a Society Carry Distinct Legal Characters
A society is a compendium of persons. Concept of association of persons is not attached to a trust.
A trust is a legal concept alone. A society is a reality as it is a collection of its members.
Administration of a property is the sole aim of a trust. Existence of property is not a necessary component of society.
Trustees are determined or appointed as intended by the founder of the trust. The society itself determines its office bearers.
A trust is always for the administration of properties. A property need not be for a society.
A trust is administered by the trustees appointed by the person who founded the trust. A society functions according to the byelaws adopted (written or otherwise) by the founding members.
A trust is made for the benefit of one or more persons viewed by the founder. The aim and object of a society is determined by the byelaws adopted by the founding members.
Trust property automatically vest in the trustees. No such vesting in society.
Different enacted laws govern the trust and society.
Different procedure governs the administration and winding up of a trust and a society.
Difference Between a Trust and a Society
An association of persons, or a society, is formed with specific aims and objectives, by the joint effort of its founding members. It is governed under its byelaws. A trust is an obligation created by the author or founder of the trust, upon the trustee in whom burden is cast upon to administer the property for the benefit of the beneficiaries.
A society functions under its bye laws formulated by the founding members. The administration of a trust is carried on under the directions of the author (in the deed of foundation, or otherwise).
The byelaws of a society can be amended as provided under the bye laws and/or under the provisions of the Act under which it is registered. The edicts of the founderin the founding deed of a trust cannot be varied.
A society can be wound up following the procedures specified in the law. In trust, the principle is ‘once a trust always a trust’.
The property of a society vests with its members subject to its basic principles or trustupon which it is founded and to the Act, if any, under which it is registered. A trustee is the legal-owner of the trust property and the property vets in him as such.
A society functions under its bye laws which partake the character of a contract. The State and the Court protect the trust as ‘parens patreae’.
The administrators of a society can resign their office. But the trustees cannot renounce.
In terms of Section 5 of the Societies Registration Act, the property of a society could vest in the trustees; and only in the absence of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society. (Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: (2013) 15 SCC 394.)
What is Trust?
‘Trust’ is defined in Sec. 3 of the Indian Trusts Act, 1882 as under:
“A ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner,”
Therefore, in law:
Trust is ‘an obligation’.
It arises when a property is endowed by its owner for the benefit of another.
Trust is created when a trustee is appointed.
The trustee administers the property as required by the author.
It has to be done by the trustee as if he is the owner of the property.
This obligation upon the trustee to administer the endowed property, as if he is its owner and as directed by the author, for the benefit of another, is ‘trust’ in law.
Essential elements for formation of a trust are the following:
(a) Intention to create a trust on the property, for the specified purpose, by the author,
(b) Reposing-in/declaring confidence in trustee by the author,
(c) Acceptance of the confidence (reposed in or declared by the author) by the trustee,
(d) Transfer of trust-property to the trustee,
(e) Obligation upon the trustee to administer the trust property, (i) as its ‘legal owner’, (ii) for the benefit of the beneficiaries.
Trust being an ‘obligation’* annexed to or enjoined upon the dedicated property, ‘trust’ cannot be an association of persons or a juristic person. In law, ‘trust’ is neither a tangible-endowment nor a corporal-institution.** Grammatically, it is an ‘abstract countable noun’, similar to ‘a business’, ‘an idea’ or ‘a duty’.
*Note: Specific Relief Act, 1963 [Sec. 2(a)] defines: “‘obligation’ includes every duty enforce by law’. **Duli Chand Vs. Mahabir Pershad Trilok Chand Charitable Trust: AIR 1984 Del 144; Ramdass Trust Vs. Damodardas 1967 Raj LW 273; It is referred to in Sagar Sharma Vs. Additional Commissioner of Incometax: 2011-239 CTR 169: 2011-336 ITR 611. See also: Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483: [1963] 50 ITR 798 (Mad); Kishorelal Asera Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC 367. [It is quoted in Thanthi Trust Vs. Wealth Tax Officer: (1989) 78 CTR 54: (1989) 45 TAXMAN 121: (1989) 178 ITR 28; Sambandam Died Vs. Nataraja Chettiar: 2012-1 Mad LW 530].
‘Trust’ is Personified, Even In Legal Parlance
Sec. 6 of the Indian Trusts Act, 1882, reads as under:
“Creation of trust: Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.”
Because, ‘a’ trust is ‘an’ obligation annexed to the trust property and has no existence without its trust property, generally, the endowment/institution, upon which the obligation of ‘trust’ is pervaded, is personified as ‘trust’, even in legal parlance. In any case, it has no corporate personality; and it is not a legal person.[Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483].
In Illustration (b) of Sec. 15 of the Trusts Act, the expression ‘trust’ is used an entity. The Illustration (b) of Sec. 15 reads: “(b) A, trustee of lease-hold property, directs the tenant to pay the rents on account of the trust to a banker, B, ….”
The term ‘trust’ is also used as a compendious expression taking in the trustees, the beneficiaries and the subject matter of the trust.[Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483. It is quoted in Thanthi Trust Vs. Wealth Tax Officer: (1989)78 CTR 54: (1989) 178 ITR 28. See also: Kishorelal Asera Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC 367.]
Similarly, when ‘a trust’ is created under the auspices of an association, the terms ‘trust’ and ‘association’ are generally used as synonyms, in view of the underlying significant nexus between the members of the association and the ‘trust’. An association can be formed for the administration of a ‘trust’;[Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre: AIR 2010 SC 2943] and an artificial (or legal) person can be a trustee.[Yogendra Nath NaskarVs. Commissioner of Income Tax, Calcutta: AIR 1969 SC 1089]
No beneficial-Interest or Enjoyment over Property of Society – Interest Created is that of Bare Trustees
The vesting of legal ownership of the property of a society in the governing body is merely a ‘method or mechanism permitted by the law’. [Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458] During the subsistence of a registered society, or on dissolution, the members do not have any proprietary-interest or right of beneficial-enjoyment[That is, ‘proprietary interest’ or interest pertaining to owner] in the property of the society. [Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458; Dharam Dutt Vs. Union of India: AIR 2004 SC 1295.]
In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh,[AIR 1958 A P 773: See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515.] it was observed – what was vested in the College Committee or its governing body was a ‘right of management’ simpliciter, and there was no question of the members of the society or the members of the governing body being ‘beneficially interested’ in its property. Then, it was held as under:
“The Societies Registration Act, therefore, does not create in the members of the registered society any interest other than that of bare trustees.”
Underhill, in his treatise, ‘Law of Trusts and Trustees’, explained:
“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the Association for the time being. The members for the time being cannot under the Association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the Association for the time being.” [Quoted in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001- Para 69.]
“A trust is primarily a legal concept”
‘Trust’ is essentially a legal concept attached to the endowed property. It arises by the appointment of a trustee. For creation of a trust, the trust-property must have been transferred to the trustee. (Maulavi Kamiruddin Khan Vs. BadrunNisa Bibi: AIR 1940 Pat 90; Chief Controlling Revenue Authority Vs. Banarsi Dass: AIR 1972 Del 128; Pankumari Kochar SmtVs. Controller of Estate Duty: 1969-73 ITR 373.) The Delhi High Court held in Birdhi Chand Jain Charitable Trust Vs. Kanhaiya Lal Sham Lal, ILR 1973-1 Del 144, as under:
“A trust is primarily a legal concept, a mode of transfer of property and of holding property. On the other hand, an institution is primarily a social concept. It is not a legal concept at all. For, there is established legal method by which an institution may come into being. It may be established by way of an organisation which may assume any or no legal form. It may be a trust or a company or a statutory corporation or a mere unincorporated association or a society registered or otherwise. It is its work and place in the society that is the hall-mark of an institution. As observed by Lord Macnaghten in Mayor, etc. of Manchester V. Mcadam,3 Tax Cases 491 at 497, ‘it is the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle.’ In the present case, the founders of the trust may have transferred their property to a charitable purpose and thus created a public trust. But the body to translate the trust into a living and active principle has not yet come into existence. It is that body which will be entitled to be called an institution. It is not a mere legal arrangement like a trust but an active working body with a social impact which can be called an institution.”
Incidents of ‘Trust’ in Property of Clubs and Societies
Four views are possible.
(i) Positive view: The Common Law on Trust in India gives progressive and ‘wider’ or ‘general’ connotation to ‘trust’. Thereby, pointing-out that the governing body of a society or a club acquires and holds property for and on behalf of the members of the society or club, it is said that incidents of trust are impressed upon the property of the Society or Club.
Salmond on Jurisprudence [12th Edition, Page 326] reads:
‘The Club property is the joint property of the members, though in fact, it is often held by trustees on behalf of the members.’
Halsbury’s Law of England reads:[IV Edition, Vol. 6, Para 205]
“Unincorporated Members’ Clubs. – An unincorporated members’ club is a society of persons each of whom contributes to the funds out of which the expenses of conducting the society are paid. ……. Subject to any rule to the contrary, the property and funds of the club belong to the members of the time being jointly in equal shares. “
The property of a registered Society cannot absolutely vest in its members. By registration of a society, its property ‘shall continue to exist in perpetuity’ [Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760. Followed in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: (2013) 15 SCC 394] or something in the nature of perpetual succession is conceded. The property shall pass to succeeding trustees or governing body without assignment or transfer. [Board of Trustees, Ayur. & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458; Pamula Pati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of A P: AIR 1958 A P 773]
If Valid Dedication, No Change of Character, On Regn. as Socieety
“Any addition to those properties must also have the same character.”
Sec. 5 of the Societies Registration Act reads:
“Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”
Section 5 of the Societies Registration Act speaks as to vesting of property ‘belonging to a society’ [Board of Trustees, Ayur & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458] in the trustees; and only in the absence of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society. [Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394.] Therefore, it can be legitimately concluded from Section 5 that general characteristics of ‘trust’ are impressed upon the property of a society and that the members of a registered Society are trustees for* the future members who have to continue the aim and objects of the Society as envisaged by the founders or as manifested in the Rules or Bylaws.
*[Pamula Pati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of A P: AIR 1958 A P 773. See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515.]
If there was a charitable trust created by the public, the fact of its subsequent transformation, or its registration, as a society could not change the already invested trust-character [Sukumaran Vs. Akamala Sree Dharma Sastha Idol: AIR 1992 Ker 406] and any addition to those properties must also have the same character. [Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86] In such a case, suit can be filed, as if it is a trust itself, under Sec. 92 of the CPC. [Amrithakumari Vs. VP Ramanathan 1999 (1) CCC 238 (Ker). Followed in ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233]
Property of a Society being maintained for the benefit of its future members also, and therefore encumbered with obligations attached to ‘trust’, it cannot be dealt with by the members or its administrators disregarding the objectives of foundation of the societies. When the property is in the hands of an agent for the principal, the agent stands in the fiduciary capacity as a trustee. He has a duty and responsibility to properly account for the profits or benefits he derived while acting as the agent. [Balram Chunnilal Vs. Durgalal Shivnarain : AIR1968 MP 81. RV Sankara Kurup Vs. Leelavathy Nambiar (AIR 1994 SC 2694]
(ii) Negative view: (a) A society or club is formed by a group of people joined together on the basis of bye laws. It has the characteristics of a contract. Therefore, principles of fiduciary obligations as arises in trust do not apply to the acts and deeds of the administrators or members of a society or a club; but they are guided only by contractual obligations, either express or implied.
(b) A trust is formed only when a property is dedicated by its owner for a specified religious or charitable purpose. For a valid dedication there should be proof for divesting of the title of the founder/author* or of the person who dedicated the property. Since the property of a society or club belongs to the members of the club or society (or it vests in the society or club) there will be no ‘trust’ at all.
*M R Goda Rao Sahib Vs. State of Madras: A. I. R. 1966 S. C. 653; Ram Charan Das Vs. Mst. Girjanandani Devi AIR 1959 All. 473. Shri Ram Kishan Mission Vs. Dogar Singh AIR 1984 All 72; See also: S. Shanmugam Pillai Vs. K. Shanmugam Pillai AIR 1972 SC 2069; Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.
(c) Even if characteristics of a trust are adumbrated upon the property of a society, as stated above, it must be noticed that once the bylaws, the Societies Registration Act or the Common Law as to societies/clubs provide a particular procedure for a particular affair (such as management or dissolution), the same has to be carried on as per that procedure. [It is trite law that if a thing is prescribed to be done in a particular way, it can be done in that way alone, and by no other way.
See: Nazir Ahmed case: AIR 1936 PC 253; Indian National Congress (I) Vs. Institute of Social Welfare AIR 2002 SC 1258; Supreme Court Bar Association Vs. The Registrar of Societies ILR 2012-22-Dlh-1031; Patna Improvement Trust Vs. Smt. Lakshmi Devi: 1963 SCR Supp. 812; State of Bihar Vs. J.A.C. Saldanha (1980) 1 SCC 554: AIR 1980 SC 326; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782; (2013) 15 SCC 394.
It will not be guided by general principles applicable to a trust. Thus, the intent of the Societies Registration Act is not to invest properties of the society with the character of trust property. [Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86. Followed G. Chikka Venkatappa Vs. D. Hanumandappa (1970(1) My. LJ]
If the property destined for religious or charitable purposes is acquired with money collected by way of contribution by the members of a society, and the society itself manages the same without dedication in favour of the public, there will be no divesting of ownership of property in favour of the trust or institution. [See: Comner. of HRE Board Vs. Vinayakar AT Sabha: AIR 1953 Mad 407.] In such a case, it may be possible to affirm – no trust is predicated. [G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196; Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86] The effect of the Societies Registration Act was not to invest the property ‘belonging to a society’* with the character of Trust property. [G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196] Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will ‘belong’ to the society and there is no trust and no trust can be predicated. [Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86. Followed G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196]
*Sec. 5 reads: “Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”
(iii) Contract with express or implied fiduciary liabilities as are applicable to trusts: The members of a club or society, both registered and unregistered, are bound by the memorandum of association and its rules and regulations. The bye laws bind its members as a contract.
[Board of Trustees, Ayur. & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458; Siddheshwar Sahkari Sakhar Karkhana Vs. Commr. of IT, Kolhapur: AIR 2004 SC 4716; Hyderabad Karnataka Education Society Vs. Registrar of Societies: AIR 2000 SC 301; Co- op. Central Bank Vs. Addl. Industrial Tribunal, Andhra Pradesh: AIR 1969 SC 245; Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn Ltd. : AIR 1971 SC 422; Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973.]
Even the formation of a society itself is based on a contract. [Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar: AIR 2005 SC 2306; State Bank of India Staff Association Vs. Mohindra Bhattacharyya: AIR 1991 Cal 378] Salmond [12th Edition, Page 326] reads:
“The rules of the club or society constitute the basic contract to which all the members are parties.”
Since the administrators of a club or a society manage its property for and on behalf of its members, there are fiduciary liabilities akin to ‘trust’ upon such administrators. When the property is in the hands of an agent for the principal, the agent stands in the fiduciary capacity as a trustee. He has a duty and responsibility to properly account for the profits or benefits he derived while acting as an agent or a trustee to the principal. [Balram Chunnilal Vs. Durgalal Shivnarain: AIR 1968 MP 81. RV Sankara Kurup Vs. Leelavathy Nambiar (AIR 1994 SC 2694]
(iv) It remains as academic alone – to explore, whether trust or contract: In case of a breach of fiduciary duty or mismanagement on the part of the administrators of the society, it gives rise to a cause for civil action under the principles of contract, or under the doctrines such as membership rights, ultra virus the bye laws, rule of majority, oppression of minority, etc.
Our law being dealt with these matters under a developed branch of law (club/society-law), one can justifiably argue that it remains as academic alone, or lingers as superfluous, to explore whether these doctrines are sprouted from express or implied trust. It is more so in view of Sec. 88 and 95 of the Indian Trusts Act.
No Trust upon the “Property Belonging to a Society”: Exceptions
A trust cannot be created upon the “property belonging to a society”. But this proposition is subject to certain qualifications.
That is, certain properties held by a Society may be that vest with the Society only for administration –
E.g., (i) a Society is formed by the beneficiaries or administrators for proper administration of a charitable institution (already) established by a valid ‘dedication‘ of property.;
(ii) a society formed with the object of dedicating property for a public charitable purpose.
In these cases, the beneficial ownership does not vest in the society; the society functions merely as the manager or trustee of the trust property. Or, the society itself acts only as the administrative vehicle through which the trust is administered.
The courts in India have developed a substantial body of case law distinguishing property owned by a society from property held by a society in trust.
1. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
2. Church of North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760
3. Raje Anandrao v. Shamrao, AIR 1961 SC 1206
4. Deoki Nandan v. Murlidhar, AIR 1957 SC 133
5. Shiromani Gurdwara Prabandhak Committee v. Som Nath Dass, (2000) 4 SCC 146
6. The Nair Service Society v. Jnana Ashram, 1992 (Kerala High Court)
7. Suburban Education Society v. Charity Commissioner, 2004 (2) Mh LJ 792
8. Kallal School case (Madras High Court, 1974)
9. M.M. Sundarar v. Mudaliar Educational Trust (Madras High Court)
10. A.R. Khan Construwell & Co. v. Youth Education and Welfare Society, 2006 (1) Bom CR 170
Fundamental Rules Cannot Not Be Altered
The trustees or the governing body administer the ‘property of the society’ as per its bye laws so as to fulfill or attain the ‘aim and objects’ the founders viewed.
The expressions in the Societies Registration Act, ‘property belonging to a society’ (Sec. 5) and ‘property of the society’ (Sec. 8 and 10), do not give the society a corporate status; it ‘merely describes the property which vests in trustees or Governing Body.’ [Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458: Para 11]
They acquire and hold the property for and on behalf of [See: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212] the members of the society subject to the obligations imposed by law, the bye laws and the fundamental principles [Prasanna Venkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12: Milligan Vs. Mitchel: 40 ER 852; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See also: Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547)] or trust* upon which it is founded. These propositions upheld by our courts also lead to the unerring conclusion that our law brings in principles of trust in the affairs of societies and clubs.
*See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544; Vinodkumar M. Malavia Vs. Maganlal Mangaldas: 2013 AIR (SCW) 5782; (2013) 15 SCC 394. See also: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212.
In Noel Frederick Barwell Vs. John Jackson AIR 1948 All 146 it was held as under:
“51. It has been argued by Mr. Pathak on the basis of this decision and the decision of the House of Lords in Hole v. Garnsey (1930) 1930 A.C. 472, already referred to, that the rules of every association may be divided into two classes – the rules relating to fundamentals and the ordinary rules. Learned Counsel went on to urge that the fundamental rules could not be altered even by a unanimous vote of the members, though, if the rules provided for amendments, the other rules could be ant ended. It is not necessary for me to go into this question as the point does not arise in this case, but if I may say so without meaning any disrespect, the cases cited above have entirely been misunderstood. All that their Lordships intended to say was that the rules of any club being framed for the purpose of carrying on the objects of the club, ordinarily any power to amend such rules must be limited to the contemplated scope of the original rules and that under the general powers of amendment the alteration should not affect the foundation of the club or should not be incompatible with its fundamental objects.
52. Dealing with this question Lord Han – worth, Master of the Bolls, in Doyle v. White City Stadium Ltd (1935) 1 K.B. 110 said:
‘When these rules as altered are still for the purpose of carrying out the original purpose of the society or body of persons, the altered rules are made binding on the plaintiff. If there was an attempt fundamentally to alter the purpose for which the rules had been originally drawn up, the prospective agreement to adhere to-fresh rules, or any alteration in the rules, would not apply. It is quite plain from the decision in Thelluson v. Viscount Valentia (1907) 2 Ch. 1 that if and so long as the rules are akin to the purpose for which a society exists, there is no inherent, objection to an alteration of those rules or to further rules being made for the same purpose’.”
Power to Amend the Rules of a Society or Club
The power to amend the rules of a society or club is not a power to destroy its identity. An amendment, even if passed by the requisite majority, cannot alter the fundamental objects, foundation, or basic character of the association. The amendment power is confined to changes that remain within the contemplated scope of the original constitution and are consistent with its essential purposes.
If Principles of Trust in a Club, It is in a Very Limited Sense
In Noel Frederick Barwell Vs. John Jackson (supra) it was held (majority) further as under:
“58. The next argument of learned Counsel is based on the law of trust. He has urged that the property of the club vests in the committee of management and the ordinary and temporary members are all beneficiaries and that under the law of trust all beneficiaries must join in the extinction of the trust. In a sense, “the office bearers of any public body or institution including a club, are trustees, but I am afraid this cannot be of much assistance to learned counsel. There is no question in this case of the right of the officers of the club to put an end to it and I have already said that if there is a trust it is in a very limited sense. This is a case where the members of the club have passed a resolution by a majority, that the club should be dissolved, and the decision must, therefore, to my mind, rest on the decision of two simple questions, firstly whether the rules of the club have made any provision with regard to its dissolution and, if so, whether the rules have been complied with, and secondly, if there is no such rule, whether the resolution is valid and should be given effect to.”
In this decision the minority judge pointed out, as to trust, as under:
“Finally it is said that the committee of the club are trustees of the club property and that the trust could only be extinguished with the consent of all the beneficiaries. But if a trust exists, it is created by the rules of the club and the trustees held the trust property subject to those rules; and if the rules permit of a dissolution at the will of the majority of the members then with the winding up of the club there is an extinguishments of the trust.”
Societies Registration Act Brings-forth ‘Fixity’ or Permanency.
A society or a club is a compendium of its members. Its property is the ‘joint property’ held by the members as ‘non-partiable’ or as ‘joint tenants’ (as differentiated to ‘tenants in common’) till a decision is taken for dissolution. If such property is maintained for the benefit of its future members also (and therefore encumbered with obligations as in a ‘trust’), it cannot be dealt with by the members disregarding this objectives of its foundation.
Registration of a society under the Societies Registration Act makes a sea-change with respect to the disposal of the property on dissolution; and a perpetual succession is conceded thereto. even if the property could have been distributed among its members on its dissolution, by virtue of registration, the dealings as to the property on its dissolution, is governed under the provisions of the Societies Registration Act alone. [ Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State: AIR 1962 SC 458. Dennis Lloyd, ‘Law relating to Unincorporated Associations’ (1938 Edn) quoted.]
The members of a registered Society are trustees for the future members of the Society. Registration of a Society brings-in permanency. The left-behind-property of a Society, on dissolution, goes to another Society as determined by the members of the Society or by the court (Sec. 14 of the So. Regn. Act ). Either during the subsistence of a Society or at the time of its dissolution, the members of a Society do not have any kind of beneficial-enjoyment over its property. [Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458– Para 23]. As shown above, in Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh, [AIR 1958 A P 773: See: also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515] it was observed that the Societies Registration Act did not create in the members of the registered society any interest other than that of ‘bare trustees‘.
Sec. 14 of the So. Regn. Act reads as under:
14. Upon a dissolution no member to receive profit: If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or in default thereof, by such court as aforesaid:
Sec. 14 of the So. Regn. Act is enacted footing on the following general principles of law:
once a trust, always a trust;[See Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma: AIR 1994 Ker. 107]
cypres doctrine; ie. the court will execute or accomplish the intention of the founder of a trust ‘as nearly as possible’ when it becomes impossible to carry out his intentions; and
the court is the protector of all charities. [C Chikka Venkatappa Vs. D Hanumanthappa: 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14: Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915]
Fiduciary Position of Governing Body Members
The term ‘fiduciary’ as an adjective means ‘in the nature of a trust, having the characteristics of a trust, analogues to a trust; relating to or founded upon a trust or confidence’. ‘Fiduciary relationship’ invariably involves dominion over property which is wholly lacking in the case of a contract of suretyship or guarantee, that the surety has not received anything nor has he been given dominion with money or property and that he has no liability to account. There is no fiduciary capacity involving liability to account in relation to another. Mere confidence also cannot result in a fiduciary relationship.
Black’s Law Dictionary defines ‘fiduciary relationship’ as under:
“A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships, such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client, require the highest duty of care. Fiduciary relationships usually arise in one of four situations : (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.”
Directors of a company stand in a fiduciary[Biji Pothen Vs. Thankamma John: 2012(3) Ker LT 658] position and they are legally bound to exercise their powers for the company’s benefit. They have to protect the interest of the company and its shareholders. They cannot take part in any resolution under which they gain any benefit. If interested directors take part in such transactions there would be an irregularity and it renders the resolutions voidable at the instance of the company. [See: Narayandas Shreeram Somani Vs. Sangli Bank Ltd. AIR 1966 SC 170; See also: Seth Mohan Lal Vs. Grain Chambers Ltd., Muzaffarnagar: AIR 1968 SC 772; Shackleton on the Law and Practice of meetings, 7th edition (1983), Page 230]
The general principles as to the rights and responsibilities of the directors of a company apply to the governing body members of a society also.
Fiduciary Relationship Will Not be Allowed to be Varied
It is held by our Apex Court in Marcel Martins Vs. M Printer [AIR 2012 SC 1987. Relied on Central Board of Secondary Education Vs. Adiya Bandopadhyay: (2011) 8 SCC 497] as under:
“It is manifest that while the expression “fiduciary capacity” may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.”
Principles in Sec. 46 and 47 of the Indian Trusts Act (a trustee cannot renounce or delegate duties) are applied to various affairs of fiduciary relationship,[Bonnerji Vs. Sitanath: 49 IA 46: Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11.]by our Courts, as they contain the common law principles of the universal rules of equity, justice and good conscience upheld by the English judges.
S. 46 and 47 of the Indian Trusts Act reads:
46. A trustee who has accepted the trust cannot afterwards renounce it except (a).. (b)..(c)..
47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) … (b) … (c) … (d) ….
In State of Uttar Pradesh Vs. Bansi Dhar[49] it is held by VR Krishna Iyer J. –
“But while these provisions (of Indian Trusts Act) proprio vigore do not apply, certainly there is a common area of legal principles which covers all trusts, private and public, and merely because they find a place in the Trusts Act, they cannot become ‘untouchable’ where Public Trusts are involved. Case must certainly be exercised not to import by analogy what is not germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the universal rules of equity and good conscience upheld by the English Judges, though also sanctified by the statute relating to private trusts. The Courts below have drawn inspiration from Section 83 of the Trusts Act and we are not inclined to find fault with them on that score because the provision merely reflects a rule of good conscience and of general application.”
Sec. 46 and 47 of the Indian Trusts Act make it clear: a fiduciary relationship and duties attached thereto should not be unilaterally allowed to be terminated or varied [Bonnerji Vs. Sitanath: 49 IA 46: Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11] as it would be against the interests of society in general. These principles would apply with equal force to servants and, in fact, to anybody who has entered on another’s property in a fiduciary capacity. [Balram Chunnilal Vs. Durgalal Shivnarain: AIR1968 MP 81]
‘If Not Vested in Trustees’: Property Management & Vesting may be Separate
Though the administrative affairs of the societies are carried on by its governing body, the properties of the same may be vested with (separate) trustees (like ecclesiastical authorities, in case of certain religious societies). It is obvious that this system of vesting-of-property in trustees and administration-of-affairs by governing body, is primarily viewed in the So. Regn. Act of 1860 when it refers – ‘if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body’. It is obvious that our law accepts the ‘wider’ or ‘general’ expression as to ‘trust’ (used by the progressive jurists like Salmond and Halsbury) is adopted in the So. Regn. Act. The progressive jurists preferred investing principles of trust in the matters of various fiduciary relationships under which one holds property on behalf of, or for the benefit of, others.
Halsbury’s Laws of England defines ‘trust’ as a confidence reposed in a person with respect to property of which he has possession or over which he can exercise a power, to the intent, that he may hold the property or exercise the power for the benefit of some other person or object. Salmond brings-in principles of trust in the affairs of associations. Salmond reads [12th Edition, page 257]:
“Thirdly, it is expedient that property in which large numbers of persons are interested in common should be vested in trustees.”
It is held by the Supreme Court in RV Sankara Kurup Vs. Leelavathy Nambiar[AIR 1994 SC 2694] that the property in the hands of the agent was for the principal and the agent stood in the fiduciary capacity for the beneficial interest he had in the property as a trustee. The petitioner had acted as an agent as a cestui que trust was a trustee and he held the property in trust for the respondent in his fiduciary capacity as an agent or trustee and he had a duty and responsibility to make over the unauthorised profits or benefits he derived while acting as an agent or a trustee and properly account for the same to the principal. Therefore, the High Court was right in its holding that the petitioner was an agent and trustee acted in the fiduciary capacity on behalf of the respondent-plaintiff as General power-of-attorney.
If a trust is created for the benefit of a religious society, such trust shall continue to exist and it would not cease to exist by the resolution of the society. Such ‘creation of trust’ is considered by our Apex Court in Vinodkumar M. MalaviaVs. Maganlal Mangaldas Gameti [2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394] and held:
“The High Court has rightly observed that: ‘… the trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”
In Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 760.] it is held that in terms of Section 5 of the Societies Registration Act, the property would vest in the trustees, and that only in the absence of vesting of such properties in the trustees, the same would be deemed to have been vested for the time being in the governing body of such society. [Quoted in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394]
In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh,* holding what was vested in the College Committee or its governing body was a right of management simpliciter and there was no question of the members of the society or the members of the governing body being beneficially interested in its property, it was observed that the Societies Registration Act, therefore, did not create in the members of the registered society any interest other than that of bare trustees.
*AIR 1958 AP 773: See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515; Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392.
‘If not Vested in Trustees’: Principles of Trust , not Alien to Affairs of Societies
Sec. 5 SR Act reads:
“Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”
The principles of trust are not alien to the affairs of societies. Following propositions can be legitimately put forward from Sec. 5, SR Act. That is,
(a) The system of vesting-of-property in trustees is primarily viewed in the So. Regn. Act of 1860.
(b) a society can be formed by the beneficiaries of a trust, or by its administrators;
(c) one can ‘transfer’[Section 6 of the Indian Trust Act requires ‘transfer’ for formation of a trust] property to a society creating a trust; [See Note hereunder: “Can a Society or Corporation be a Trustee?”]
(d) a trust can be created on the property of a society for the benefit of its (present and future) members and/or outsiders; and
(e) a society can be formed simultaneously with creation of a trust over the property dedicated to, or set apart for the benefit of, the members of the society; or for the benefit of such members and outsiders.It is observed in Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 760] that the society and (public) trust can be ‘one entity’.
If a society is formed by the beneficiaries of a public trust the trust nature of the property continues; and the trust property remains vested in (separate) trustees (if the trustees are not the governing body of the society as per the bye laws of the society).
In terms of Section 5 of the Societies Registration Act, property of a society would vest in the trustees; and only in the absence [See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544. Followed in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: (2013) 15 SCC 394] of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society. [See note below: Apparent Incongruity in Sec. 5 and 16 Explained]
Governing body is defined in Sec. 16 as under:
The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.
Such trust can also be a ‘public/religious trust’ like a church that came for consideration of our Apex Court in Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 7604] and Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti. [2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394] In public trust, the beneficiaries will be the general public or a class thereof.
See: Deoki Nandan Vs. Murlidhar: AIR 1957 SC 133; Commissioner of Endowments Vs. Vittal Rao: AIR 2005 SC 454; Bala Shankar Maha Shanker Bhattjee Vs. Charity Comr Gujarat State: AIR 1995 SC 167, Jammi Raja Rao Vs. Anjaneya Swami Temple Valu: AIR 1992 SC 1110, Radhakanta Deb Vs. Comr of Hindu Religious Endowments Orissa: AIR 1981 SC 798, Commissioner For Hindu Religious And Charitable Endowments Mysore Vs. Ratnavarma Hegade: AIR 1977 SC 1848, Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan Vs. Charity Commissioner State of Bombay : AIR 1976 SC 871; Mahant Shri Srinivas Ramanuj Das Vs. Surajnarayan Das: AIR 1967 SC 256
The property of such a public/religious trust shall continue to exist in perpetuity, and it shall not cease to exist by the resolutions of the society. [Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760]
The definition of ‘Member’ (in Sec.15)* in the So. Regn. Act, 1860 is not exhaustive as it is ‘for the purposes of this Act’ alone. It is confined to the activities enjoined to the ‘members’ in the So. Registration Act [ie. to make bye laws (S. 9), to take part in the meeting to amend the ‘purposes’ (S. 12), to take decision to ‘amalgamate’ with another society (S.12), dissolution (S. 13), etc.]. Non-fulfillment of requirements specified in the definition (payment of subscription and signature in the roll/list of members) does not bar a person -especially when it is a religious society – to be its ‘member’, if he is eligible to be a member as per the bye laws of the society. It also does not downbeat the propositions on ultimate ‘vesting of property’ in ‘members’ of a society.
*Sec. 15 reads: “Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations….”
A conjoint reading of Sec. 5 and 16 may raise an inappropriateness as to the position of trustees; that is, whether trustees stand independent of the governing body (Sec. 5) or whether they stand included in the governing body (Sec. 16).
Because,
Sec. 5 lays down that ‘the property, belonging to a society, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body’; and
Sec. 15 lays down that ‘the governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted’.
It can be explained by the following propositions.
Both are used ‘independently’.
The scheme of the Act provides that the ‘property belonging to a society’ can be vested in an ‘independent’ trust (the trustees of which can be persons other than members of the society). [See Notes Hereunder: Church of North India Vs. Lavajibhai Ratanjibhai]
The scheme of the Act provides that trustees of such trust (even though they are not members of the society) can be the governing body, if the bye laws so provide. (It is noteworthy that the So. Regn. Act does not expressly deal with election of Governing Body.)
No provision in the SR Act to change the character of the Society to a Trust
In Chief Controlling Revenue Authority Vs. H Narasimhaiah, AIR 1991 Kar 392 (S. Mohan, Shivaraj V. Patil, JJ.), it is found as under:
“Further, according to section 14 of the Karnataka Societies Registration Act, 1960, the property, movable and immovable, belonging to the society, shall, if not vested in the trustees, shall vest with the governing body. Secondly, there is no provision in the Act to change the character of the society to a trust. The only provision is section 21 which provides for amalgamation of societies. As there is no provision to convert a society into a trust, the transaction in effect amounts to a transfer of the property thereby attracting higher stamp duty as a settlement. The term ‘declaration of trust’ as provided in article 54 of the Act is not defined but recourse can be had to the Indian Trusts Act where the term ‘trust’ has been defined as a confidence reposed in a person regarding a property. As such, a declaration of trust involves vesting of property out of confidence reposed in him. Here, in this case, there is already a society owning properties which transfers the property to a trust or transforms itself into a trust.”
Founding Endowment by Subscriptions or Donations
In ancient times religious institutions were founded and managed by rulers, or wealthy persons or families. But, in modern times the trusts are mostly founded by associations of persons, and are administered by them, as trustees.
Where a person collects subscription from various persons and builds a choultry or a temple he has a right to direct in what manner the institution should be managed and what right the trustees should have in the management of that institution. This is recognised by the Hindu Law.
There is nothing illegal or improper in a person who builds a temple whether out of his own funds or out of the funds collected by subscriptions [Re St. Leonard (1884) 10 A.C. 304] or getting donations from people to create a trust and endow it, directing by the deed of endowment, in what manner and by whom it should be managed. [Settikara Venkatarama Chettiar Vs. Opdamodaram Chettiar: LAWS(PVC) 1925-11-220] If a number of persons provide the original endowment, they may apparently together constitute the founder. [Ananda Chandra Chuckerbutly Vs. Braja Lal Singh (1922) I.L.R. 50 C. 292; Re St. Leonard (1884) 10 A.C. 304; Settikara Venkatarama Chettiar Vs. Opdamodaram Chettiar: LAWS(PVC) 1925-11-220] Every donor contributing at the time of foundation of a trust may not be a founder of the trust. Whether a contributor would become a joint founder of the trust would depend not merely upon the fact of his contribution but also upon the surrounding circumstances and the subsequent conduct of the parties. [Thenappa Chettiar Vs. N S Kr Karuppan Chettiar: AIR 1968 SC 915]
In Attorney-General Vs. Clapham [(1855) 43 E.R. 638] Lord Cranworth, Lord Chancellor observed as under:
“Where a fund is raised for a charitable purpose like that of founding a chapel and the contributors are so numerous as to preclude the possibility of their all concurring in any instrument declaring the trusts, but such a declaration is made by the persons in whom the property is vested, at or about the time when the sums have been raised, that declaration may reasonably be taken prima facie as a true exposition of the minds of the contributors. The presumption is, that the trusts declared were those which the contributors intended. It would be open to them, if the trusts were not so framed as to effect the object they had in view, to take steps for getting any errors corrected. If no such steps are taken, it must be assumed that the instrument declaring the trusts fairly embodies the intentions of the contributors.” [Quoted in: Settikara Venkatarama ChettiarVs. OP Damodaram Chettiar: AIR 1926 Mad 1150: (1926) 51 MLJ 457]
Effect of Subsequent Transformation of a Trust as a Society
Section 2(13) of the Bombay Public Trusts Act reads:
” ‘Public trust’ means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act. 1860.”
The registration of the trust under the Societies Act would not alter the nature and character of its property. [Sukumaran Vs. Akamala Sree Dharma Sastha Idol: AIR 1992 Ker 406]In Amrithakumari Vs. VP Ramanathan, [1999 (1) CCC 238 (Ker.)] it has been held by the Kerala High Court that if there was a charitable trust created by the public, the fact of its subsequent transformation, or its registration, as a Society, could not change the trust-character of its property; and in such a case, suit could be filed under Sec. 92 CPC.
Even after formation of a society by the persons in management of an already existing trust/institution, the trust/ institution continues to hold its ‘trust-identity’. The same is the position even if the beneficiaries of a trust formed a society. In Rajan Devasahayam Vs. Hindustan Bible Institute of India, it was observed that a Trust can be registered under the Societies Registration Act. [1996 (1) L.W. 533. Referred to in Kishorelal Asera Vs. Haji Essa Abba Sait Endowments : 2003-3 Mad LW 372: 2003-3 CCC367]
Minority Status of an Educational Institution will not Lose on Registration
The majority in the seven-judge Constitution Bench in Aligarh Muslim University v. Naresh Agarwal, 2024 SCC Online SC 3213, ruled that AMU’s minority status will be lost on its registration as a Society.
Governing Body Administers Subject To Trust
The trustees or the governing body administer the ‘property of the society’ as per its bye laws so as to fulfill or attain the ‘aim and objects’ the founders viewed. Expressions in the Societies Registration Act, ‘property belonging to a society’ (Sec. 5) and ‘property of the society’ (Sec. 8 and 10), do not give the society a corporate status; it ‘merely describes the property which vests in trustees or Governing Body.’[Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458: Para 11] They acquire and hold the property for and on behalf of [See: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212] the members of the society subject to the obligations imposed by law, the bye laws and the fundamental principles [Prasanna Venkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12: Milligan Vs. Mitchel: 40 ER 852; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See also: Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547)] or trust* upon which it is founded. These propositions upheld by our courts also lead to the unerring conclusion that our law brings-in principles of trust in the affairs of the societies and clubs.
*See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544; Vinodkumar M. Malavia Vs. Maganlal Mangaldas: 2013 AIR (SCW) 5782; (2013) 15 SCC 394. See also: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212.
Effect of Unification of a Trust and a Registered Society
Trusts and societies can be dissolved only by adhering to the special procedures for the same. Unification of a registered society with a trust, under the resolutions, will not dissolve the society, automatically. Similarly, unless the properties vested in a trust are divested in accordance with law, a lawful merger cannot be claimed. Registered societies and trusts have to resort to the lawful modes for amalgamation. [Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SC)(CIV) 2849; 2013 AIR (SCW) 5782; (2013) 15 SCC 394]
No principle of law permits transfer of trust
Trust is a confidential relationship which involves a special duty of loyalty to the purpose or object of the trust. Our Apex Court has held that there is no principle of law or precedent which permits transfer of trust in favour of another body of persons. [Abdul Kayua Vs. Alibhai: AIR 1963 SC 309: Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982-1 Del 11] The Karnataka High Court held that the documents as to conversion of the properties of a society into a trust property fall within the meaning of ‘settlement’ under the Stamp Act.[Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392](It may be noted that, in this case, the court did not consider whether ‘trust’ was an ‘institution’ and whether such a change amounts to dissolution of the society.) In Shri Digambar Jain v. Sub Registrar, Stamps, Indore [AIR 1970 MadhPra 23(FB)] it is held in a similar situation that the documents would be ‘Declaration of Trust’ and not a ‘Conveyance’.
Duty of Courts to Protect Trusts
In AA Gopalakrishnan Vs. Cochin Devaswom Board [AIR 2007 SC 3162] while adverting to the need for protecting the properties of deities, temples and Devaswom Boards, our Apex Court observed that it is also the duty of Courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. [It is referred to in Mandal Revenue Officer Vs. Goundla Venkaiah: AIR 2010 SC 744]
‘Breach of an Obligation’ in Sec. 38 of the Specific Relief Act
Under Sec. 38 of the Specific Relief Act the court is expressly authorised to grant injunctions to prevent breach of an obligation existing in favour of the plaintiff or where the defendant is trustee of the property for the plaintiff. Sec. 38 of the Sec. 38 of the Specific Relief Act reads:
“38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall be guided by the Rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely;
(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.
The word obligation is defined in Sec. 2 of the Specific Relief Act with a wider meaning. It is so wide that it encompass obligations ‘whether expressly or by implication’. It also reads: ” ‘obligation’ includes every duty enforceable by law to include ‘every duty enforceable by law”. The word ‘trust’ is also used in a wider sense [Rotopacking Materials Industry Vs. Ravider Kumar Chopra: 2003(6) BCR 6; Smt. Parul Bala Roy Vs. Srinibash Chowmal: AIR 1952 Cal 364; Referred to in Arun Kumar Mitra Vs. Gorachand Saheb Sekh Abdul: AIR 2005 Cal 178.] in this Act as under: ” ‘trust’ has the same meaning as in Section 3 of the Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act.” It is also noteworthy that ‘trust’ is not alien to the affairs of a society inasmuch as the administrators of societies can be ‘trustees’ as seen from Sec. 5 and 16 of the Societies Registration Act, 1860.
Court is the Ultimate Protector of All Charities
As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities. [Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; P. Mdhadevayya v. G. Mallikarjuniah: 53 Mys. HCR 167; Referred to in C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296]Court is the guardian of the public charitable trust/institution.[ChHoshiar Singh Mann Vs. Charan Singh 2009-162 DLT 208 : ILR 2009-19 Dlh 265]; See also: I Nel Son Vs. Kallayam Pastorate AIR 2007 SC 1337]
The court has jurisdiction to enforce trusts.[See: CK Rajan Vs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179 – Appeal Judgment: AIR 2004 SC 561: (2003) 7 SCC 546; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915 ; Ch Hoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265; I Nel Son Vs. Kallayam Pastorate: AIR 2007 SC 1337; Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309; Subramonia Pillai Chellam Pillai Vs. Subramonia Pillai Chathan Pillai: AIR 1953 TC 198; M.G. Narayanaswami Naidu Vs. M. Balasundaram Naidu: AIR 1953 Mad 750.]
Gift on Trust to a Society
If property is gifted to a registered society on condition tht the property should be used for public purposes and cast duties on the society to act as trustee a trust is brought home. [Swami Shivshankargiri Chella Swami Vs. SatyaGyan Nikethan: AIR 2017 SC 1221]
Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 760]
Brief facts: The Church, FCDB, was a registered religious society. This Church and the other 6 Churches resolved to dissolve and consolidate into a single entity, The Church of Northern India (CNI). The ‘CNI Trust Association’ was subsequently formed under the Companies Act and was appointed as the trustee of the CNI. Defendants 1 to 4 (though given consent to unification proceedings earlier) obstructed the functioning of the CNI and asserted their independent right to hold all the movable and immovable properties of their congregation (Valsad Brethren Church) and took the stand that there was no resolution for ‘dissolution’ as set out in the So. Regn. Act.
During the pendency of the suit, unification was ‘given effect to’ by the Charity Commr. under the BPT Act. The plaintiffs filed the suit to declare ‘that the former FDCB has ceased to exist’ and ‘that the CNI is the legal continuation and successor of the FDCB …’ etc. The Civil Court may have jurisdiction over a matter which is outside the purview of the Act, or over a question that arises in relation to a matter unconnected with the administration or possession of the trust property.
The effect of ‘dissolving’ a registered society (FDCB) by taking a resolution for unification with other associations (Churches) to form a single entity (CNI) was placed for consideration of our Apex Court several times. Besides, this decision (Lavajibhai Ratanjibhai), Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti [(2013) 15 SCC 394; 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849] is important among them. The dismissal of the suit was upheld by our Apex Court, holding that the civil court has no jurisdiction where a bar is imposed in relation to a matter over which the statutory authorities (under BPT Act) have the requisite jurisdiction and that a society created under a statute must conform to its provisions, and the courts would interfere in case of its violation.[See also: The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282; Ratilal Panachand Gandhi Vs. State of Bombay AIR 1954 SC 388.]
It was observed, inter alia, in this land-mark decision (Church of North India Vs. Lavajibhai Ratanjibhai),rendered by SB Sinha, J:
“In terms of Section 5 of the Societies Registration Act, all properties would vest in the trustees and only in case in the absence of vesting of such properties in the trustees would the same be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society.” (Para 60)
“Unless a suit is filed in terms of Section 13 of the Act, the society is not dissolved.” (Para 64)
“Concededly, the properties of the trust being properties of the religious trust had vested in such trust.” (Para 64)
“If the properties of the churches did not belong to the society, the appellant herein cannot claim the same as their successor.” (Para 64)
“Even if it is contended that the administration of the property would mean the properties of the Brethren church both as a trust and as a society, still then having regard to the legal position, as discussed supra, the property belonging exclusively to the trust, the suit will not be maintainable (by virtue of the provisions of the BPTA).” (Para 64)
It was observed in Vinodkumar M. MalaviaVs. Maganlal Mangaldas Gameti,[(2013) 15 SCC 394; 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849] inter alia:
“The argument that as per Article 254 of the Constitution, the Societies Registration Act overrides the BPTA or that the Societies Registration Act and BPTA are in conflict, does not stand either, since both the statutes are not in conflict with each other. On the contrary, they are in consonance with each other regarding the administration and regulation of public and religious trusts.”
“The High Court has rightly observed that: ‘… The trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”
Effect of Dedication of Property (for Public) by Society
Can a Society or Corporation be a Trustee?
A corporation can be a trustee. Earlier notion that a corporation could not be a trustee, as the property held by the Company or Corporation as its ‘beneficial owner’ could not be subjected to a trust for the benefit of third parties is not accepted by modern jurists.
N. SuryanarayanaIyer, in the Indian Trusts Act, observed as under:
“Formerly the notion was that the relationship of a trustee being one of confidence involving a personal element, a corporation could not be a trustee as there could not be a question of confidence being reposed in a corporation and therefore that it could not be a trustee. This notion, however, has long ago been given up. Corporate bodies have been held to be amenable to the jurisdiction in Chancery and compellable to carry out the intentions of the settlor of property which has been vested in them…. Under the Indian law also a corporation, whether aggregate or sole, can be a trustee and there is ample jurisdiction in the court to enforce the performance of its duty by such trustee.” [Quoted in: B. Ramachandra Adityan Vs. Educational Trustee Co. (P.) Ltd.: 2003-113 Comp Cases 334.]
As shown above, generally, a Society acquires property to use the same for its objectives or purposes and for its own benefit; or in other words, ultimately for the benefit of the ascertainable members of the society. And, there will be neither public trust nor dedication of property, divesting the rights of the society, for any ‘public purpose of a charitable or religious nature’.
But, if a contra indication is manifested from the basic documents and assertions of a society (or a Non-Trading-Company) or from the very nature of an institution — that is, where the property is raised solely for the purpose of dedicating the same for establishing and maintaining a public trust/institution for the benefit of the general public or of an unascertainable section thereof as in the case of a church or temple(or, where the society and trust ‘is only one entity’ as the one considered in Church of North India Vs. Lavajibhai Ratanjibhai) [AIR 2005 SC 2544: 2005 (10) SCC 760] — no doubt, it cannot be treated as the property ‘exclusively’ belonging-to-the-society and not bound by Sec. 92 CPC. In other words, if a society is formed with the object of dedicating property for a public or charitable (including religious) purpose and the property procured by the society is validly dedicated, a trust will be predicated.
A Society May Be Subjectd To The Jurisdiction of Section 92 CPC
In Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India[101] the Delhi High Court considered whether the term “express or constructive trust” in Section 92 CPC was attracted when a society (National Council YMCAs of India) held ‘in trust’ property belonging to different organisations, and observed as under:
“In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but anybody or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”
The court found that the National Council YMCAs was in both ‘express’ and ‘constructive’ trust of the properties belonging to its member YMCAs. The mere fact that the defendant is a registered society did not take away its true character. The defendant is an organisation which worked for a public purpose and is subject to the jurisdiction of Section 92 of the CPC.
The defendant (National Council YMCAs of India) contended that it was not a trust but a society registered under the Societies Registration Act. There was a clear distinction between the nature of a trust and a society. If only it could be proved that the society could in fact be termed as a trust created for public purposes of a charitable or a religious character, leave under Section 92 of the CPC could be granted. The settled position on this issue was that if a society that was functioning in a fully democratic fashion, and there was no settler who had vested property in the society, leave could not be granted under Sec. 92. The defendant relied upon the following judgments:
K. Rajamanickam Vs. Periyar Self Respect Propaganda Institution, Tiruchirapalli: AIR 2007 Mad 25
S. Guhans Vs. Rukmani Devi Arundale: 1987-100 LW 182
Advocate General Vs. Bhartiya Adam Jati Sewak Sangh: 2001-3 ShimLC 319
Abhaya A Society Registered under the Travancore-Cochin Literary Vs. J.A. Raheem: AIR 2005 Ker 233
Kesava Panicker Vs. Damodara Panicker, AIR 1976 Ker 86
Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan: 2017-4 SCC 771
The High Court distinguished Abhaya A Society, Rukmini Devi Arundale and Bhartiya Adam Jati Sewak Sangh pointing out that these cases did not show that they held ‘in trust’ any property belonging to a different organisation. The property was owned by the Society concerned and it belonged to it. In other cases also, no express or implied trust emerged.
If Valid Dedication, No Change of Character, On Regn. as Socieety
As stated above, normally, the property acquired by a society does not part-take the character of ‘public purpose’ stated in Sec. 92 CPC.[102] But, if a charitable or religious institution of a public nature[103] is expressly or constructively founded by an ascertainable number of persons or an association, by valid dedication of properties acquired by the members or society, it will accomplish the character of ‘public purpose’ stated in Sec. 92 CPC.
Subsequent registration of an association involved in a trust, under the Societies Registration Act, will not make any change to the trust character of the properties dedicated. Kesava Panicker Vs. Damodara Panicker[104] was a case where the entire community in a particular area took an active interest and contributed funds for the purpose of creating ‘a trust fund’ for establishing a school. A committee was formed for collecting funds. Utilising that fund the school building was constructed. Subsequently a society was formed and registered under the Societies Registration Act for the purpose of management of the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench of the Kerala High Court held as under:
“If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character.”
A Society May Be Subjectd To The Jurisdiction of Section 92 CPC
In Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India[101] the Delhi High Court considered whether the term “express or constructive trust” in Section 92 CPC was attracted when a society (National Council YMCAs of India) held ‘in trust’ property belonging to different organisations, and observed as under:
“In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but anybody or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”
The court found that the National Council YMCAs was in both ‘express’ and ‘constructive’ trust of the properties belonging to its member YMCAs. The mere fact that the defendant is a registered society did not take away its true character. The defendant is an organisation which worked for a public purpose and is subject to the jurisdiction of Section 92 of the CPC.
The defendant (National Council YMCAs of India) contended that it was not a trust but a society registered under the Societies Registration Act. There was a clear distinction between the nature of a trust and a society. If only it could be proved that the society could in fact be termed as a trust created for public purposes of a charitable or a religious character, leave under Section 92 of the CPC could be granted. The settled position on this issue was that if a society that was functioning in a fully democratic fashion, and there was no settler who had vested property in the society, leave could not be granted under Sec. 92. The defendant relied upon the following judgments:
K. Rajamanickam Vs. Periyar Self Respect Propaganda Institution, Tiruchirapalli: AIR 2007 Mad 25
S. Guhans Vs. Rukmani Devi Arundale: 1987-100 LW 182
Advocate General Vs. Bhartiya Adam Jati Sewak Sangh: 2001-3 ShimLC 319
Abhaya A Society Registered under the Travancore-Cochin Literary Vs. J.A. Raheem: AIR 2005 Ker 233
Kesava Panicker Vs. Damodara Panicker, AIR 1976 Ker 86
Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan: 2017-4 SCC 771
The High Court distinguished Abhaya A Society, Rukmini Devi Arundale and Bhartiya Adam Jati Sewak Sangh pointing out that these cases did not show that they held ‘in trust’ any property belonging to a different organisation. The property was owned by the Society concerned and it belonged to it. In other cases also, no express or implied trust emerged.
If Valid Dedication, No Change of Character, On Regn. as Socieety
As stated above, normally, the property acquired by a society does not part-take the character of ‘public purpose’ stated in Sec. 92 CPC [Keshava Panicker Vs. Damodara Panicker AIR 1976 Ker 86; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296]. But, if a charitable or religious institution of a public nature [Eg. A temple or a math or Guru Granth Sahib, revered in a Gurudwara] is expressly or constructively founded by an ascertainable number of persons or an association, by valid dedication of properties acquired by the members or society, it will accomplish the character of ‘public purpose’ stated in Sec. 92 CPC.
Subsequent registration of an association involved in a trust, under the Societies Registration Act, will not make any change to the trust character of the properties dedicated. Kesava Panicker Vs. Damodara Panicker [AIR 1976 Ker 86] was a case where the entire community in a particular area took an active interest and contributed funds for the purpose of creating ‘a trust fund’ for establishing a school. A committee was formed to collect funds. Utilising that fund, the school building was constructed. Subsequently, a society was formed and registered under the Societies Registration Act for the purpose of managing the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench of the Kerala High Court held as under:
“If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character.”
Strict English Principles as to Trust, Not Accepted by Indian Law
According to strict English principles, there should be dual ownership upon a trust property; i.e., the legal ownership which is vested with the trustees; and the equitable or beneficial ownership, vested with the beneficiaries [Salmond on Jurisprudence: Eleventh Edition, page 307]. But, the Law on Trust in India, as expounded by judicial decisions, does not recognise legal and equitable ownership, in both public and private trusts. The courts in India confer beneficial interest [Note: Not the ‘proprietary interest’ or interest pertaining to owner; it is the interest pertaining to beneficiaries] alone upon the beneficiaries. [See: Chhatra Kumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887; Commissioner of Wealth Tax Vs. Kripashankar: AIR 1971 SC 2463, Bai Dosabai Vs. Mathuradas: AIR 1980 SC 1334; Bomi Munchershaw Mistry Vs. Kesharwani Co Op Housing Society: 1993-2-BCR-301; Hem Chandra Vs. SuradhamDebya: AIR 1940 PC 134].
Under the orthodox English view of trust, the trust property should be one which is capable of being transferred in favour of the beneficiaries. Since the property of a society does not go at par with the aforesaid English proposition, it can be demonstrated that properties of both registered and unregistered societies are not impressed with characteristics of ‘trust’ in its strict sense.
In Incorporated Body or Club, Trustees Act as Agents
The Supreme Court in Young Men’s India Association case [Harbour Division II, Madras Vs. Young Men’s Indian Association, Madras: AIR 1970 SC 1212] it was observed:
“… The difficulty felt in the legal property ordinarily vesting in the trustees of the members’ club or in the incorporated body was surmounted by invoking the theory of agency, i.e., the club or the trustees acting as agents of the members. ….. What was essential was that the holding of the property by the agent or trustee must be a holding for and on behalf of and not a holding antagonistic to the members of the club. …. The final conclusion of the High Court in the judgment under appeal was that the case of each club was analogous to that of an agent or mandatory investing his own moneys for preparing things for consumption of the principal, and later recouping himself for the expenses incurred. As no transaction of sale was involved there could be no levy of tax under the provisions of the Act on the supply of refreshments and preparations by each one of the clubs to its members.”
Directors of a Company, to Some Extent Trustees
In Piercy Vs. S. Mills and Co. Ltd. [(1920) 1 Ch. 77.] their Lordships observed:
“I cannot look upon the Directors otherwise than as trustees for a public Company, and I must judge of the propriety of their conduct in this matter on the ordinary principle applicable to cases of trustee and cestuique trust. If shares are issued with indecent haste and scramble ………for a different purpose, I have no doubt that the Court will interfere to prevent so gross a breach of trust. If they were issued with the immediate object of controlling the holders of greater number of shares in the Company and of obtaining the necessary statutory majority for passing a special resolution, then it will not be valid or bona fide exercise of power.” (Quoted in Kalinga Tubes Ltd Vs. Shanti Prasad Jain: AIR 1963 Ori 189).
In V S RamaswamyIyer Vs. Brahmayya and Company Official Liquidators Hanuman Bank Limited [ 1966-36 Comp. Cases 270: 1966-1 Mad LJ 234] the Madras High Court referred to various English authorities and pointed out that the directors of a company are not, properly speaking, trustees; yet they have always been considered and treated as trustees of money which comes to their hands. The High Court observed that the law in India regarding the nature of the liability of directors has not been different.
The Court referred to:
Palmer’s Company Law: “Directors are not only agents, but they are in some sense and to some extent trustees or in the position of trustees, but their position differs considerably from that of ordinary trustees, and the strict rules applicable to such trustees do not apply in all respects to directors. “
Charitable Corporation Vs. Sutton:[ 1742-2 Atk. 400] “The directors are persons selected to manage the affairs of the company for the benefit of the shareholders it is an office of trust, which, if they undertake, it is their duty to perform fully and entirely. A resolution by shareholders therefore, that shares or any other species of property shall be at the disposal of directors, is a resolution that it shall be at the disposal of trustees in other words, that the persons entrusted with that property shall dispose of it, within the scope of the functions delegated to them, in the manner best suited to benefit their cestuique trust. “
York and North Midland Ry. Vs. Hudson [1853 16 Beav. 485]
G.E. Ry. Vs. Turner:[ 1872 L.R. 8 Ch. 149] “The directors are the mere trustees or the agents of the company: trustees of the company’s money and property agents in the transaction which they enter into on behalf of the company.”
In Re Forest of Dean Co.: “…….directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control…… For most purposes it is sufficient to say that directors occupy a fiduciary position and all the powers entrusted to them are only exercisable in this fiduciary capacity. ” [1878 (10) Ch(D) 450]
Buckley on the Companies Acts: “The directors of a company fill a double character. They are (i) agents of the company, and (ii) trustees for the shareholders of the powers committed to them. …. . The assets of the company are entrusted to the directors to be applied for certain defined objects, and they are responsible as for a breach of trust if they apply them to other objects.”
Halsbury’s Laws of England: “A director who has misapplied or retained or become liable or accountable for any money or property of the company, or who has been guilty of nay breach of trust in relation to the company must make restitution or compensate the company for the loss. Where the money of the company has been applied for purposes which the company cannot sanction, the directors must replace it, however honestly they may have acted. The estate of a deceased director has always been liable for his breaches of trust. “
Gore-Browne, Handbook of Joint Stock Companies: “In the case of the death of a director his estate remains liable for any breach of trust he may have committed (including any wrongful dealing with the company’s property, such as a payment of dividend out of capital or sale of its assets at an undervalue)…. ….. In regard to actions for deceit and other wrongs, the principle actiopersonalismoritur cum persona may be mentioned. Under this principle, with regard to actions for wrongs, independent of contract, done either to or by a deceased person in his lifetime, his legal personal representative could neither sue nor be sued. This is still so in some cases, e.g., defamation. Even at common law this principle is subject to the modification that where loss results to the estate of the extent of the loss or profit. “
Flitcroft’s case:[1882 (21) Ch(D) 519] “They are trustees for the company, nor for the individual shareholders. The liquidator represents the company, and is bound to discharge towards the creditors all the duties which the company owes them. It is therefore his duty when such a breach of trust as this is discovered to get a return of the assets improperly expended that they may be applied in payments of debts. The act of the directors is impeached as a breach of trust, not on the ground of tort or misfeasance. There are persons who may be made liable under section 165, without having been guilty of a breach of trust but where the person charged under that section is a trustee, the act which brings him within the section is a breach of trust”
In Re Faure Electric Accumulator Company:[1889 L.R. 40 Ch(D) 141]“ With respect to the capital of the company which is under their management, it has been said that they are `quasi-trustees’ for the company: Flitcroft’s case 1882 L.R. 21 Ch(D) 519. In that and other respects they are, `to a certain extent, trustees’ (Lindley on Partnership). In the language of Lord Romilly, in York and North Midland Ry. Co. Vs. Hudson 1845 16 Beav.485, `The directors are persons selected to manage the affairs of the company, for the benefit of the shareholders it is an office of trust, which, if they undertake, it is their duty to perform fully and entirely.’ They certainly are not trustees in the sense of those words as used with reference to an instrument of trust, such as a marriage settlement or a will. One obvious distinction is that the property of the company is not legally vested in them. Another and perhaps still broader difference is that they are the managing agents of a trading association, and such control as they have over its property, and such powers as by the constitution of the company are vested in them, are confided to them for purposes widely different from those which exist in the case of such ordinary trusts as I have referred to, and which required that a larger discretion should be given to them. Perhaps the nearest analogy to their position would be that of the managing agent of a mercantile house to whom the control of its property and very large powers for the management of its business are confided but there is no analogy which is absolutely perfect. Their position is peculiar because of the very great extent of their powers and the absence of control, except the action of the shareholders of the company.”
Concha Vs. Murrieta:[1889 L.R. 40 Ch(D) 543] “It is true that no action for a tort can be revived or commenced against the representatives of the person who committed it but the case is quite different where the act is not a mere tort, but is a breach of a quasi-contract, where the claim is founded on breach of a fiduciary relation, or on failure to perform a duty. Here the father, though I do not call him a trustee, was in a position in which he owed duties of a fiduciary character to his daughter. In the very careful judgment of Lord Justice Bowen in Philips Vs. Homfray 1883 L.R. 24 Ch(D) 439, cases depending on breach of contract, express or implied, are excepted from the judgment. Here there is what we call a quasi-contract, the law implying a contract that a man will faithfully perform the duties which he has undertaken. Juan Jose Concha undertook a duty in consequence of his position, and losses arising from his breach of it can be followed up against his estate. “
In Re Lands Allotment Company:[1894 L.R. 1 Ch(D) 616] “Then, if it was an improper transaction, all those directors who were parties to this improper investment, for in this point of view it was improper, would naturally and obviously be liable to make good the money……We are asked to say that the directors are liable for these moneys upon the footing that they committed a breach of trust, but that they are not entitled to the benefit of the Statute of Limitations which was passed for the benefit of trustees. I cannot be a party to any decision so supremely absurd. Although directors are not properly speaking trustees, yet they have always been considered and treated as trustees of money which comes to their hands or which is actually under their control and ever since joint stock companies were invented directors have been held liable to make good moneys which they have misapplied upon the same footing as if they were trustees, and it has always been held that they are not entitled to the benefit of the old Statute of Limitations because they have committed breaches of trust and are in respect of such moneys to be treated as trustees.. …….. Now, case after case has decided that directors of trading companies are not for all purposes trustees or in the position of trustees, or quasi-trustees, or to be treated as trustees in every sense but if they deal with the funds of a company, although those funds are not absolutely vested in them but funds which are under their control, and deal with those funds in a manner which is beyond their powers, then as to that dealing they are treated as having committed a breach of trust. I do not believe that there has ever been any deviation from the language of the late Sir George Jessel in the case of In re Forest of Dean Coal Mining Company 1878 L.R. 10 Ch(D) 450. Sir George Jessel said this `Directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control, but they are not trustees of a debt due to the company.’ So that, when they get assets of the company under their control, or into their hands, and deal with them in a way which is beyond the powers of the company, they are liable as for a breach of trust. “
Implied Trust in Sec. 82 & 94 Applied in a Proposed Society
In Ramchandra Krishna Yadav Vs. Sakharam Gangaram Mali [1996-1 All MR 338], it is observed that an elected Chairman of a proposed society, who admits that he was a leader of the villagers, collected various amounts from the proposed members and purchased the land out of that amount, was in the position as trustee qua the proposed members of the society and must hold the property for their benefit.
Applying Sec. 82 and 94 of the Indian Trusts Act, it was observed that implied trust is created though there was no express trust and no trust deed as such. Section 82 of the Act says that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee he must hold the property for the benefit of the person paying or providing the consideration. What are called ‘express trusts’ in English Courts are called merely ‘trusts’ in the Indian Trusts Act and are dealt with therein under Sections 4 to 79; while what are called ‘constructive or implied trusts’ in English Law are called “obligations in the nature of trust” and are dealt with in Chapter IX containing Sections 80 to 96 of the Indian Trusts Act.
Church: Voluntary Association & Religious Trusts
The word ‘church’ is used to denote, generally, two ideas: voluntary association of Christians and place where persons regularly assemble for worship. Halbury’s Laws of England [4th Edition] gives the meaning of ‘Church’ as under:
“Church, when used in relation to a religious body, has two distinct meaning; it may mean either the aggregate of the individual members of thechurch or it may mean the quasi-corporate institution which carries on the religious work of the denomination whose name it bears.”
Blacks Law Dictionary defines church as under:
“Church. In its most general sense, the religious society founded and established by Jesus Christ, to receive, preserve, and propagate His doctrines and ordinances. It may also mean a body of communicants gathered into church order; body or community of Christians, united under one form of government by the profession of the same faith and the observance of the same ritual and ceremonies; place where persons regularly assemble for worship; congregation; organization for religious purposes; religious society or body; the clergy or officialdom of a religious body.”
It is observed in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma [AIR 1995 SC 2001] as under:
“A church is formed by the voluntary association of individuals. And the churches in the commonwealth are voluntary body organised on a consensual basis their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognized. ……”
Two (Kinds of) “Trusts” over the Parish or Branch Property
One Property, Several Trusts Possible
Trust is a general term used in wider sense in law. Therefore –
If a property is acquired by a branch of a larger body, or a parish of a Church, the entire members of the larger body, from time to time, will be presumed to be the owners, subject to (i) the byelaws of the (entire) association or trust and (ii) the purposes or objectives ‘aimed to achieve’ by that particular property.
If the bylaws (expressly or by necessary implication) provides for special beneficial enjoyment by the members of the branch or parish, over the branch/parish properties, definitely there will be two (kinds of) “trusts” over the same property – one, trust for the beneficial enjoyment of whole body; and the other, for the members of the branch/parish.
Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?
Can entre members put an end to the society?
The ownership of the property of a registered society vests in its members subject to the fundamental principles upon which it is founded [See Chapter: ‘Vesting of Property’] and the provisions of the Act under which it is registered.
It is not open for the majority of the members of a society to alter the fundamental principles upon which it is founded unless such a power is specifically reserved under the bye laws. [PrasannaVenkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12 ; Milligan Vs. Mitchel: 40 ER 852 ; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See: also: Profulla Chorone RequitteVs. Satya Chorone Requitte: AIR 1979 SC 1682. Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547)] If a public or permanent trust is predicated by the founders or by the bye laws, the entire members of an unregistered society of a particular time cannot put an end to the society and appropriate its property.
Intention of Founders & Basic Principles, Paramount
Underhill, in his treatise, ‘Law of Trusts and Trustees’, explained it thus:
“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the Association for the time being. The members for the time being cannot under the Association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the Association for the time being”.[Quoted in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001- Para 69]
Sec. 92 CPC is Not Attracted to Matters of a Society
Because, there will be no ‘dedication’ of “property belonging to a society”
Sec. 92 CPC envisages ‘express or constructive trust created for public purposes of a charitable or religious nature’. This requirement is brought home only when there is dedication of property. That is, unless there is an ‘express or constructive’ public trust founded by explicit ‘express or constructive’ dedication of the property divesting the rights of former owner over the same, ‘for public purposes of a charitable or religious nature’, Sec. 92 CPC is not attracted.
The characteristic distinguishing factor between a “Private Trust” and “Public Trust” is that in the former, beneficiaries are defined and ascertained individuals; but, in the latter, the beneficial interest must be vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it, answering particular description. Normally, there will be no explicit ‘express or constructive’ dedication of the ‘property belonging to a society’, divesting the rights of the society, ‘for public purposes of a charitable or religious nature’ (even if the society itself is formed for charitable and religious purposes); and therefore, Sec. 92 CPC will not be attracted to the ‘property belonging’ to the societies. A society has to use its property for its own purposes[‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233] and it will only be the property of the Society alone;[[128] Keshava Panicker Vs. Damodara Panicker:AIR 1976 Ker 86. See: also: C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233] and it will not be a property in respect of which it is possible to predicate a public trust[See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762] as envisaged in Sec. 92 CPC.
[Section 6 of the Indian Trusts Act, 1882 reads as under: “6. Creation of trust. – Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust -property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust – property to the trustee.”]
The same will be the position of Non-Trading-Companies also. [See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762]
In ‘Abhaya’ a Society Vs. Raheem,[AIR 2005 Ker 233] while dealing whether Sec. 92 CPC is attracted to the affairs of a registered society, it is pointed out that to constitute a trust there must be author, trustees, beneficiary, trust property and beneficial interest.
It is also clear from the wording of Sec. 92 CPC that express or constructive trust in its ‘strict sense’ is envisaged in Sec. 92; and not trust in its ‘wider or general sense’ so as to include all ‘fiduciary relationships’. [The ‘wider’ or ‘general’ expression as to ‘trust’, used by the progressive jurists, is adopted in the Societies Registration Act]
Section 92 CPC is held out on the principles of ‘parens patriae’, once a trust, always a trust [See Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma: AIR 1994 Ker. 107] and the court is the protector of all charities.[C Chikka Venkatappa Vs. D Hanumanthappa: 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14: Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915]
In Pragdasji Vs. Ishwarlalbhai [AIR 1952 SC 143. Also See: HarendraNathVs. Kali Ram Das: AIR 1972 SC 246], our Apex Court pointed out that a suit under Sec. 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character, and that it must pray for one or other of the reliefs that are specifically mentioned in the Section. It is only when these conditions are fulfilled that a suit could be brought under Sec. 92.
Section 92 CPC does not specifically make any provision to remove the persons in management of the society and to appoint new managing body.
Majority of an Association Cannot Alter Fundamental Principles
The fundamental principles upon which a trust is founded cannot be varied. Therefore, the courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created. The trust properties will not be allowed to be sold even to the members of their community for whose benefit the trust was created, and the properties were acquired.[Pragji Savji VajaVs. Chhotalal Narsidas Parmar: AIR 2014-3 Bom R 211: 2013-6 BCR 72. See also: AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC 3162; Mandal Revenue Officer Vs. GoundlaVenkaiah: AIR 2010 SC 744; Doongarsee Shyamji Vs.Tribhuvan Das: AIR 1947 All 375; Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296: Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; CK Rajan Vs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179 [Appeal Judgment: AIR 2004 SC 561: (2003) 7 SCC 546]
This principle in Milligan Vs. Mitchel [40 ER 852] Attorney General Vs. Anderson [(1888) 57 LJ Ch 543] and Free Church of England Vs. Overtoun [(1904) AC 515] is referred to in Prasanna Venkitesa Rao Vs. Srinivasa Rao.[AIR 1931 Mad. 12]
In Free Church of England Vs. Overtoun the House of Lords (by a majority of 5-2) found that the minority was entitled to the assets of the Free Church. It was observed that when men subscribe money for a particular object, and leave it behind them for the promotion of that object, their successors have no right to change the object endowed. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.
S. 88 & 95 of Trusts Act Encompass Govg. Bodies of Societies
Section 88 of the Indian Trusts Act expressly refers to director of a company. Though they are not express trustees, with respect to their duties, the Indian Trusts Act, 1882 takes the position of ‘executor, partner, agent, director of a company, legal adviser, or other personbound in a fiduciary character to protect the interests of another person’ to that of trustees, in Chapter IX (Section 80 onwards) of the Indian Trusts Act. Their office is fiduciary in character.[V S Ramaswamy Iyer Vs. Brahmayya: 1966-36 Comp Cases 270, 1966-1 Mad LJ 234.] They are bound by the directives in Sec. 88.
Sec. 88 of the Indian Trusts Act, 1882 reads as under:
88. Advantage gained by fiduciary: Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person, and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.
It is legitimate to comprehend that the words ‘or other person’ in Sec. 88 of the Indian Trusts Act encompass the governing bodies of societies and clubs also. By virtue of Sec. 95 of the Indian Trusts Act it is further clear that the principles and incidents of ‘trust’ are impressed upon the property held by societies and clubs also.
Sec. 95 of the Indian Trusts Act reads as under:
95. Obligator’s duties, liabilities and disabilities: The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it ….. “
Order 7 Rule 14 CPC Deals with the production of documents
Order 7 Rule 14 CPC reads as under:
“Production of document on which plaintiff sues or relies.-
.(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”
Documents Produced With the Plaint are Treated As ‘Part of The Plaint’
When deciding an application under Order VII, Rule 11 (i.e., for rejection of the plaint) the Supreme Court observed in Dahiben v. Arvindbhai Kalyanji Bhanusali, AIR 2020 SC 3310; (2020) 7 SCC 366, as under:
“23.8. Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.”(Followed in: Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 INSC 1025; 2024 KLT Online 3058).
Site-Plan Produced with the Petition was Considered
The site-plan attached to the petition was considered when an ambiguity arose as to pleadings in Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067. Our Apex Court explained the position as under:
“17. A comprehensive look at the pleadings taken by the appellant along with the site-plan attached to the petition makes it evident that the appellant gave out a detailed description of the extent of accommodation available in the suit property as also the accommodation presently in her occupation and the nature and extent of her requirement. In the pleadings, it was indeed specified that the appellant was residing on the property bearing No. “C-586/587”. The pleadings taken by the appellant in paragraph 18(a)(ii) of her petition, of course, begin with the expression “as stated above” and there had not been any earlier mention of property bearing No. “C-586/587” but, there had been detailed description in the preceding paragraphs and the site plan was also attached to the petition. The appellant further made the position clear in her cross-examination that the building in question was constructed on Plot Nos.586 and 587 jointly and she and her sister-in-law were residing in the same building as one family.
18. Taking the pleadings as a whole and reading the same with the evidence, it is clear that there had not been any such mis-description of the property which would amount to a material flaw in the case of the appellant or which could have caused prejudice to the respondents-tenants.”
In Makardhwaj Ram v. Jagdish Rai, 2026 INSC 636, Supreme Court of India (Sanjay Karol, N. Kotiswar Singh, JJ.) rendered a valuable decision on Constructive Res judicata.
Crux of the Decision
1. The application of constructive res judicata depends on the facts of each case.
2. The principle of constructive res judicatawill not be applied in cases where the plaintiff had no occasion to plead the grounds and seek relief thereon in the earlier litigation.
3. The twin requirement of “might” and “ought” in constructive res judicataoperates cumulatively.
Facts in a Nutshell
In 1960, Mahabir Rai, the father of the present plaintiff, transferred a portion of his property to his mother and the plaintiff.
In 1962, Mahabir Rai, along with his mother and wife, executed a General Power of Attorney in favour of Rambhajan.
In 1969, Rambhajan first sold 21.43 acres; and then sold 33.76 acres, using the GPA.
In 1969 itself, after the sales, the said GPA was cancelled by the grantors.
The father of the plaintiff filed a suit for cancellation of the first sale of 21.43 acres.
The suit was dismissed. (The reason was that the present plaintiff could not establish that he was the successor of his father.)
The second transfer of 33.76 acres was challenged by the mother of the plaintiff, as legal guardian of her minor children.
It was also dismissed.
In 1985, Rambhajan, the GPA holder, applied for mutation.
It was allowed in (revenue) appeal.
This mutation pushed the plaintiff to file the present civil suit.
This suit is for a declaration of title and possession, against Rambhajan.
In 1993, the suit was partly decreed. As against the claim of 95.8 acres, the plaintiff was held to be entitled to 43.69 acres (the remaining extent after the said two sales).
Successor- in-interest of Rambhajan appealed to the Additional District Judge.
In 1996, it was dismissed.
LRs (of the successor- in-interest of Rambhajan) took the matter to the High Court
In 2009, by the impugned judgment, the High Court allowed the appeal and dismissed the suit on the ground that the suit was barred by constructive res judicata.
Grounds in Appeal before the Supreme Court
The earlier suits were filed to recover certain lands lost in two sales.
The present appeal is in respect of the land that remained after the (two) alienations.
There is a difference between the two rounds of litigation. Because the subject matter of the present suit is separate and distinct from the earlier suits.
There was no occasion for the plaintiff to seek the present relief in the earlier proceedings. Hence, constructive res judicata is not attracted.
Res Judicata under Section 11 CPC
Section 11 of the Code of Civil Procedure, 1908, deals with res judicata.
It reads as under:
“11. Res judicata.—No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
“Explanation IV.—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.”
1. NagabhushanAmmal v. C. ChandikeswaraLingam, (2016) 4 SCC 434
For res judicata to apply, it has to be shown that not only the cause of action was the same, but also that the plaintiff had the occasion to seek the same relief in the earlier proceedings.
2. Morris LJ in Kameswar Pershad v. Rajkumari Ruttun Koer, 1892 SCC OnLine PC 16
It is held in this decision as under:
…That it “might” have been, made a ground of attack is clear. That it “ought” to have been, appears to their Lordships to depend upon the particular fact of each case. Where matters are so dissimilar that their union might lead to confusion, the construction of the word “ought” would become important…
3. Daryao v. State of U.P., 1961 SCC OnLine SC 21, it was held as under:
“9. But, is the rule of res judicata merely a technical rule or is it based on high public policy? If the rule of res judicata itself embodies a principle of public policy which in turn is an essential part of the rule of law then the objection that the rule cannot be invoked where fundamental rights are in question may lose much of its validity. Now, the rule of res judicata as indicated in Section 11 of the Code of Civil Procedure has no doubt some technical aspects, for instance the rule of constructive res judicatamay be said to be technical; but the basis on which the said rule rests is founded on considerations of public policy. It is in the interest of the public at large that a finality should attach to the binding decisions pronounced by Courts of competent jurisdiction, and it is also in the public interest that individuals should not be vexed twice over with the same kind of litigation. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 32.”
4. State of Karnataka v. All India Manufacturers Organisation, (2006) 4 SCC 683, B.N. Srikrishna J., held as under:
“38. The spirit behind Explanation IV is brought out in the pithy words of Wigram, V.C. in Henderson v. Henderson [(1843-60) All ER Rep 378 : (1843) 3 Hare 100 : 67 ER 313] as follows: (All ER pp. 381 I-382 A)
“The plea of res judicata applies, except in special case (sic), not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation and which the parties, exercising reasonable diligence, might have brought forward at the time.” [Ibid., at pp. 381-82]
In Greenhalgh v. Mallard [(1947) 2 All ER 255 (CA)] (hereinafter “Greenhalgh [(1947) 2 All ER 255 (CA)] ”), Somervell, L.J. observed thus:
“I think that on the authorities to which I will refer it would be accurate to say that res judicata for this purpose is not confined to the issues which the court is actually asked to decide, but that it covers issues or facts which are so clearly part of the subject matter of the litigation and so clearly could have been raised that it would be an abuse of the process of the court to allow a new proceeding to be started in respect of them.” [Ibid., at p. 257 H (emphasis supplied)]
The judgment in Greenhalgh [(1947) 2 All ER 255 (CA)] was approvingly referred to by this Court in State of U.P. v. Nawab Hussain [(1977) 2 SCC 806 at p. 809, para 4 : 1977 SCC (L&S) 362] . Combining all these principles, a Constitution Bench of this Court in Direct Recruit Class II Engg. Officers’ Assn. v. State of Maharashtra [(1990) 2 SCC 715 : 1990 SCC (L&S) 339 : (1990) 13 ATC 348] expounded on the principle laid down in Forward Construction Co. [(1986) 1 SCC 100] by holding that:
“[A]n adjudication is conclusive and final not only as to the actual matter determined but as to every other matter which the parties might and ought to have litigated and have had (sic) decided as incidental to or essentially connected with (sic) subject-matter of the litigation and every matter coming into the legitimate purview of the original action both in respect of the matters of claim and defence. Thus, the principle of constructive res judicata underlying Explanation IV of Section 11 of the Code of Civil Procedure was applied to writ case. We accordingly hold that the writ case is fit to be dismissed on the ground of res judicata.” [Ibid., at p. 741, para 35, per L.M. Sharma, J.]”
5. Samir Kumar Majumder v. Union of India, (2024) 16 SCC 738, K.V. Viswanathan J., considered the law on constructive res judicata while dealing with an employment dispute as follows:
“Law on constructive res judicata
33. Almost two centuries ago, in Henderson v. Henderson [Henderson v. Henderson, (1843) 3 Hare 100 : 67 ER 313] , the Vice-Chancellor Sir James Wigram felicitously puts the principle thus: (ER p. 319)
“In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.”
Law Laid Down by the Apex Courton Constructive Res Judicata
After considering the above judgments, the following aspect of constructive res judicatais highlighted by the Apex Court –
“8.1 Constructive res judicata mandates that all grounds that might and ought to have been employed in the proceedings should be employed to avoid multiplicity of proceedings.
8.2 It is a deeming fiction of law, but its application is not uniform and instead is dependent on the facts and circumstances of a particular case with ‘due regard to ambit of the earlier proceedings’ and ‘the nexus which the matter bears to the nature of the controversy’.
8.3 This principle is founded on public policy. It is a generally acceptable rule that one person should not be “vexed twice over” for the same kind of litigation. As such, it also applies to the proceedings under Article 226/32 of the Constitution of India.
8.4 In respect of ‘ought’ referred above, the said word implies the threshold to be above mere possibility.
8.5 The parties while conducting litigation are expected to apply ‘reasonable diligence’, ‘legitimate purview’. It is from this lens that it shall be adjudicated whether all issues that were properly arising to the litigation; which ought to have been raised; were raised or not?
8.6 The principle applies with equal force in cases where the ground that might and ought to have been raised was not done, on account of negligence, inadvertence or accident. In other words, might and ought to apply cumulatively with full force, without exception. The party therefore commits these errors at their own peril.”
Question to be considered in the matter of Constructive Res Judicata
The Apex Court laid down the point of law as under:
“The question is whether the earlier proceedings provided opportunity enoughfor the plaintiff by being substantially similar, to raise the point of his ownership of the suit properties by virtue of the 1960 sale deed, when the main ground urged otherwise was cancellation of sale deed.”
The above questions were answered in favour of the plaintiff by the Apex Court. It can be summarised as under:
By virtue of the 1960 sale deed, the appellant-plaintiff was the owner of a large extent of land.
The case of the plaintiff was that Rambhajan had wrongfully sold portions through two separate sales. (The subject matter of the present suit is separate and distinctfrom the earlier suits.)
In those proceedings, the plaintiff had no occasion to seek a declaration of title over the larger property, as his ownership under the 1960 sale deed was not in dispute.
The focus of the earlier proceedings was only on the validity of the impugned sale transactions.
The need to assert title over the entire property arose only when Rambhajan applied for mutation of his name in respect of the entire land extending beyond the property covered by the sale transactions.
It was this claim over the larger extent of land that gave rise to a fresh apprehension regarding the plaintiff’s rights.
Consequently, the plaintiff instituted the present suit, asserting his title to the property, which, according to him, had remained unquestioned until then.
SC set aside the Judgment of HC on Constructive Res judicata
On the above reasoning, the Apex Court held that the impugned judgment of the High Court, founded on an erroneous application of the principles of constructive res judicata, was liable to be set aside.
No. In view of the AUTOMATIC vesting of private forests in the Government, the enquiry before the Forest Tribunal is confined to determining whether the land is a private forest or cultivated land. The The Kerala Private Forest (Vesting and Assignment) Act, 1971, does not contemplate a substantive adjudication of title. Any observation or finding on the TITLE is therefore merely incidental or collateralto the Tribunal’s principal enquiry (FOREST or CULTIVATED land), and cannot be treated as a matter directly and substantially in issue or as ‘necessaryor essential‘ for the determination of the matters under the Act.
Saji Koduvath, Advocate, Kottayam.
Part I
Introduction
The authoritative modern decisions reflect a ‘strict and technical’ interpretation of res judicata, in contrast to earlier broader views that required only a ‘decision on the same matter‘, or a ‘similar issue‘ in both suits.
The modern trend, in substance, requires the following:
The ‘same issue‘ must have been adjudicated in the former suit.
Finding on the issue in the earlier suit must have been ‘necessaryor essential‘.
That is, the issue must have been heard and decidedconsciously.
The parties should have had an opportunity to meet the contentions on the matter.
Sec. 11 of the Code of Civil Procedure deals with Res Judicata. It reads as under:
“Res Judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.”
Res Judicata: The Issue Should Have Been ‘Necessary to be Decided’
In PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001, it is held as under:
“57. It is fairly settled that the finding on an issue in the earlier suit to operate as res judicate should not have been only directly and substantially in issue but it should have been necessary to be decided as well.”
Should the Matter be in “Actual Issue”, Or Need be in “Substance” alone
Sec. 11 CPC says as to “suit or issue in which the matter directly and substantially in issue“.
Modern Trend (Stricter Approach): Same Issue Must Have Been Adjudicated in the Former Suit giving due emphasis to ‘directly and substantially in issue‘
In M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, paras 439 and 446 are noteworthy. They read as under:
439. The applicability of Section 11 is premised on certain governing principles. These are:
.(i) The matter directly and substantially in issue in the suit should have been directly and substantially in issue in a former suit;
(ii) The former suit should be either between the same parties as in the latter suit or between parties under whom they or any of them claim litigating under the same title;
(iii) The court which decided the former suit should have been competent to try the subsequent suit or the suit in which the issue has been subsequently raised; and
(iv) The Issue should have been heard and finally decided by the court in the former suit.
446. There is absolutely no merit in the contention that the principles of constructive res judicata will bar the subsequent suits. The parties were distinct. The claim in the earlier suit was distinct. The basis of the claim was indeed not that which forms the subject matter of the subsequent suits.”
Part II
If Forest Tribunal to Render Finding on Title – Established Principles
To answer the question whether the Forest Tribunal can render a finding on title, the following well-established principles of law are germane.
1. A finding will not be res judicata if :
observation or finding touching upon the title is incidental and collateral to the principal issue falling within the Tribunal’s jurisdiction [Jamia Masjid v. K. V. Rudrappa 2021 AIR SC 4523; 2022-9 SCC 225; Sri Gangai Vinayagar Temple v. Meenakshi Ammal, 2015 3 SCC 624; Asrar Ahmed v. Durgah Committee, AIR 1947 PC 1].
the finding is limited to the special jurisdiction of the Tribunal, and it is not a direct and substantive adjudication upon title. [Sajjadanishin Sayed v. Musa: (2000)3 SC 350]
2. A finding of a Quasi-Judicial Tribunal also may operate as res judicata in certain circumstances [Anil Paul v. South Indian Bank, 2022-2 KHC 332; 2022-2 KLT 169, Joseph v. State of Kerala: 1987(1) KLT 651; Satish Babu v. State of Kerala: 2000(3) KLT 55; Govindan Gopalan v. Raman Gopalan: 1978 KLT 315 (FB) ].
Dhulabhai v. State of Madhya Pradesh, AIR 1969 SC 78, remains the locus classicus on the law relating to the exclusion of jurisdiction and the adjudicatory competence of special tribunals.
3. Civil Court jurisdiction will be barred (Dhulabhai v. State of MP, AIR 1969 SC 78)only if –
the Statute gives a finality to the orders of the special tribunals,
there is adequate remedy by the special tribunal to do what the Civil Courts would normally do in a suit,
there is an express bar of the jurisdiction of the Court,
the remedies (such as appeal) normally associated with actions in Civil Courts are prescribed by the particular Statute under which the Tribunal is constituted.
Kerala Private Forest Act, 1971 –
Section 3 of the Forest Tribunal, constituted under the Kerala Private Forest (Vesting and Assignment) Act, 1971, declares – Private forests vest in Government, automatically (State of Kerala v. Popular Estates, AIR 2021 SC 5593; 2021-6 KLT 208).
Section 3 reads as under:
“3. Private forests to vest in Government– (I) Notwithstanding anything contained in any other law for the time being in force, or in any contract or other document, but subject to the provisions of sub-sections (2) and (3), with effect on and from the appointed day, the ownership and possession of all private forests in the state of Kerala shall by virtue of this Act, stand transferred to and vested in the Government free from all encumbrances, and the right, title and interest of the owner or any other person in any private forest shall stand extinguished.
(2) Nothing contained in sub-sections (1) shall apply in respect of so much extent of land comprised in private forests held by an owner under his personal cultivation as is within the ceiling limit applicable to him under the Kerala Land Reforms Act, 1963 (1 of 1964) or any building or structure standing thereon or appurtenant thereto.
Explanation. – For the purposes of this sub-section, “cultivation” includes cultivation of trees or plants of any species.
(3) …. (4) … “
Section 8 of the Kerala Private Forest Act, 1971
Section 8 states that the disputes as to whether a land is a private forest or not, or has not (automatically) vested in the Government, are determined by the Tribunal. From the wording of Section 8, it is noteworthy that what is determined is not the title, but whether it is a private forest or not.
Section 8 reads as under:
“8. Settlement of disputes – (1) where any dispute arises as to whether- (a) any land is a private forest or not; or (b) any private forest or portion thereof has vested in the Government or not, the person who claims that the land is not a private forest or that the private forest has not vested in the Government, may, within such period as may be prescribed, apply to the Tribunal for decision of the dispute.
(2) ….. (3) …”
Title Enquiry Not Contemplated u/S. 8; If Finding, Incidental or Collateral
It is also important to note – an independent title enquiry is not contemplated under Section 8; for, ‘all private forests’ “stand transferred to and vested in the Government ” under Section 3; therefore –
because of the statutory and automatic vesting of all private forests under Section 3, the principal enquiry is whether the land is a private FOREST or whether it is cultivated land. The Explanation to Section 3, which provides that “cultivation” includes cultivation of trees or plants of any species, makes it clear that the enquiry is directed to the character and use of the land and not to the ownership thereof.
Ownership, as such, is not the matter directly put in issue.
The finding on title/ownership, if any, will be surplusage; in any case, such a finding would remain as ‘incidental or collateral’.
Grant denotes a right or privilege. Salmond includes it under ‘Classes of Agreements’. In Govt. Grants, the Land Continues to be Govt. Lands. Grant is subject to conditions and restrictions. Travancore-Grants are made under (various) Rules. It does not signify absolute ownership. Travancore Grant Deeds bear the caption “Title Deeds”. Courts found – no proprietary rights in grant deeds. Guidance may be drawn from S. 15, Easements Act. It refers to – “claiming title – as an easement”. .. Court Decisions A Planter under a Grant from Govt. is not a Jenmi – Padmanabharu Govindaru v. State of Kerala, AIR 1963 Ker 86, Kannan Devan Hills v. State of Kerala, AIR 1972 SC 2301 State of Kerala v. Kanan Devan Hills Co., (1991) 2 SCC 272 State of Kerala v. The Kannan Devan, AIR 1998 Ker 267 .. Govt. cannot assign land on their whims and fancies. Public trust doctrine imposes limits to Government. (Mahindra Holidays v. State of Kerala, 2019-2 KLT 978) .. Patta may be for Personal Cultivation. In such a case, the assignee cannot get a better title. (Mahindra Holidays v. State of Kerala, 2019-2 KLT 978) .. The land is given for personal cultivation. It cannot be used for another purpose. Assignees of Pattadar cannot Claim More Rights. Authorities could not recommend construction. The local authority could not have issued permits. The holders are aware of the conditions. Such permits cannot confer rights on the holders. Revenue authorities may collude with assignees. It causes damage to the ecology and environment. (R. Haridas v. State of Kerala, 2016-4 KLT 707) .. Rights forfeited, on Claim of Ownership By ‘Grantee’. (Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730).
What is ‘Grant’?
‘Grant’ is a generic term to indicate ‘transfer’ of property (e.g., sale, lease, gift, etc.).
But, in property law, ‘grant’ does not convey the idea of an ‘absolute transfer’, especially when it is used in place of sale, gift, etc., and it manifests a concession, permission, or settlement (with conditions).
The word ‘grant’ is also used to convey the idea of a donation, aid, easement, or dedication to a trust, among other things.
‘Grant’ is also a technical term to denote conditional transfer of lands by a sovereign; and it is more than a licence (which is personal and does not create an interest in land) and less than an outright and unconditional ‘transfer’ of property.
Thus, when a ‘grant’ is made, some interest is retained by the grantor; and it arises from a contract, express or implied, with conditions.
It is used to differentiate from a ‘sale’ – sale being ‘an absolute transfer of all rights in the property sold; and no rights are left in transferor’ (Bai Kanku v. Victorbhai Kanjibhai Khristi, AIR 1969 Guj 239; Basanti Mohanty v. Brahmanand Das, AIR 1996 Ori 86; Bhaskaran v. Raghavan, 2021-3 Ker LJ 498).
Is Nomenclature of ‘Grant Deeds’ as ‘Title Deeds’ – a Misnomer?
Travancore Grant Deeds bear the caption “Title Deeds”. Does this nomenclature constitute a misnomer?
No.
The word title does not invariably denote absolute ownership. Guidance may be drawn from Section 15 of the Easements Act, 1882, which says that an easement may be acquired by prescription through open and uninterrupted enjoyment by a person claiming title thereto—that is, claiming a right to the easement and not ownership of the servient land.
Other familiar examples:
Possessory title, Mortgagee’s title, Tenant’s title, Title to possession, Title to fish.
‘Grant’ – Salmond on Jurisprudence
What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’, as under:
• “…. A contract is an agreement which creates an obligation or a right in Personam between the parties to it. A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth. An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)
Kerala Grants and Leases (Modification of Rights) Act, 1980
Kerala Grants and Leases (Modification of Rights) Act, 1980 was enacted with a view to modify the rights under grants and leases, for cultivation, made by the former States of Travancore and Cochin. The Act was made for the reason that such grants and leases brought about heavy loss to the Government, and they resulted in huge unearned profits to the grantees and lessees; and it was found necessary in the public interest that such undue profits to a few person were to be utilised for the common benefit of the general public.
Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:
“4. Grantees and lessees to pay current seigniorage rates – Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease.”
The Act required the Grantees and lessees also to pay rent to the Government. The Collector was authorised to revise the assessment and rent. The Constitutional validity of this Act was upheld in Majeed v. State of Kerala, 2006(1) KerLT 19.
Travancore Govt. Grants – No Proprietary Rights Conferred
The following decisions held – a Planter under a Grant from the Government is not a Jenmi (beneficial owner).
Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86,
Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
State of Kerala v. The Kannan Devan Hills Produce Co., AIR 1998 Ker 267
During second half of the 19th century in erstwhile Kingdoms in South India gave very large extent of Government lands, on “grant” to various persons (mostly foreigners) or institutions for putting up plantation.
The lands granted by the Erstwhile (Travancore or Cochin) Sircar continued to be lands belonging to the Sircar, and the grantees did not acquire absolute proprietary rights. It is made clear in the following decisions.-
ClausesinGrant Deeds Construed by Courts to say – No Proprietary rights
The following clauses in the Travancore Grant-Deeds were considered by the Courts to determine whether the Grantees in those deeds obtained proprietary rights over the properties in the Grant Deeds:
“The grantee can appropriate to his own use within the limits of the grant all timber except the following and such as may hereafter be reserved, viz., Teak, Coal-teak, Black-wood, Aboney, Karinthali Sandalwood. Should he carry any timber without the limits of the grant it will be subject to the payment of Kuttikanam or customs duty or both as the case may be in the same way as timber ordinarily felled. In the case of the excepted timber the grantee is required to pay seigniorage according to the undermentioned scale……. .. “The land granted shall be held in perpetuity as heritable or transferable property, but every case of transfer of the grant by the grantee shall be immediately made known to the Sircar, who shall have the right of apportioning the tax, if a portion of the holding is transferred.” .. “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, and the grantee shall in respect to such mines and treasures, abide by the decision of the Sircar.” .. “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams running through the tract to the extent of fifty yards in breadth on each side of the stream, the Underwood only being permitted to be cleared and coffee planted instead. Similarly he shall also be bound to preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
Acceptance of Rent- Not recognition of Title; Right Not Stand Confirmed by Govt.
In Murlidhar Jalan v. State of Meghalaya, AIR 1997 SC 2690, the Supreme Court held further as under:
“It is true that a lower level officer accepted the rent; and recognition was obviously made on a mistaken impression that the land was required for a public purpose; but on the basis thereof, it cannot be construed that the title of the appellant was confirmed by the conduct of the Government. Accordingly, the declaration of title as land-holder cannot be granted. The High Court, therefore, was right in refusing to grant the relief. It is not a case of taking possession without due process of law. The possession only continues to a facet of the facts. Apart from that there is no other documentary evidence on the basis of which it could be concluded that the title of the Government is defeated by acceptance of the rent or by requisition of the property by mistaken act on the part of the Government.”
See also: R. Hanumaiah v. Secretary to Govt. of Karnataka, 2010 -5 SCC 203.
Rules under which Travancore Govt. issued Grants
The Rules included –
i. Rules for the sale of Waste Land on the Travancore Hills (for Coffee cultivation), 1865.
ii. Rules for the grant of grass lands to Coffee estates, 1877.
iii . Rules for the sale of Waste Lands for Coffee or Tea cultivation, 1913.
iv. Rules for the sale of Government lands on the Travancore Hills for Coffee or Tea cultivation, 1923.
Grant of Reserved Forest Land
Sec. 23 of the Indian Forest Act, 1927, reads as under:
23. No right acquired over reserved forest, except as here provided – No right of any description shall be acquired in or over a reserved forest except by succession or under a grant or contract in writing made by or on behalf of the Government or some person in whom such right was vested when the notification under section 20 was issued.
Corresponding provision in the Kerala Forest Act, 1961 is Section 22. It reads as follows –
“22. No right acquired over Reserved Forests except as herein provided –
No right of any description shall be acquired in or over a Reserved Forest except under a grant or contract in writing made by or on behalf of the Government or by or on behalf of some person in whom such right or the power to create such right was vested when the notification under Section 19 was published or succession from such person:
Provided that no patta shall, without the previous sanction of the Government be granted for any land included within a Reserved Forest and every patta granted without such sanction shall be null and void.”
Referring Sec. 22 of the Kerala Forest Act, 1961, it is held in Joonktolle Tea And Industries Ltd. v. State of Kerala, Feb. 28, 2020, it is held by the Kerala High Court as under:
“11. … Though the learned Senior Counsel attempts to show a distinction between sale in the said case and an amalgamation in the case on hand, since Section 22 specifically prohibits the ‘acquisition of rights of any nature’ without a grant or contract on writing by the Government, I am of the opinion that the mode of acquisition of the rights would be irrelevant. The prayers sought for in the writ petition, therefore, cannot be granted.”
Important Decisions on Grant
Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301
Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
Company did not acquire absolute proprietary rights over the Concession Area (under the grant deeds)
Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 –
A coffee planterwho holds lands under a grant is not a Jenmi.
Majeed v. State of Kerala,(2006) 1 KerLT 19
Petitionercontended – ‘grant’ was free hold property. The court did not accept.
Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578
Arguement that deed of ‘grant’ ‘for coffee or tea cultivation’ was not a grant, but a title deedwas not accepted
Our Apex Court considered the effect of “grant” by the Erstwhile Governments, in the following decisions. The importance of conditional transfer that restrict interest in the property (contra-distinct to absolute transfer) is emphasised in these rulings.
1. Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
3.Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578
4. Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86
5. Majeed v. State of Kerala, (2006) 1 KerLT 19
1. Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
The Supreme Court, in Kannan Devan Hills Produce v. The State Of Kerala, AIR 1972 SC 2301 (Sikri (Cj), Shelat, A.N. Ray, I.D. Dua, , H.R. Khanna, JJ.) held that Kenan Devan Hills Concession (on grant deeds) fall within the expression “Janmam right” vested with Sircar. This land is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
Points came for consideration were the following:
1. Whether the Kannan Devan Hills (Resumption of Lands) Act, 1971 was protected from challenge under Art. 31A of the Constitution. That is, whether these lands fall within expression ‘Janmam right’ or “estate” in art. 31A of the Constitution.
2. If the lands acquired were an “estate”, or with ‘Janmam right’ owned by the Company, the land reform enactment did not have stood valid. (Note: Kesavananda Bharathi Case came in 1973.)
According to the petitioner Company, ‘it has at all times been holding, cultivating, enjoying and dealing with the Concession Land as the absolute, owner thereof’.
The position taken by the State was –
that the petitioner Company was not an absolute owner, but only a lessee under the Government, especially since the 1899 Proclamation issued by H.H. the Maharaja.
that the petitioner’s predecessor-in-title was John Danial Munro, who obtained, the first Pooniat Concession from Punjar Valiya Raja, on July 11, 1877. This Concession recited that an, application was made for the grant of the above property to the Raja for coffee cultivation.
It was further stipulated in the Concession that
“you shall clear and remove the jungles, and reclaim the waste lands within the said boundaries, and cultivate them with coffee up to the year 1058 and from the year 1059, pay our rent collector a yearly rent at the rate of 3,000 British Rupees.”
H.H. the Maharaja (Travancore) executed a deed of ratification, dated November 28, 1878, by which the Government ratified the First Pooniat Concession dated July 11, 1877.
This deed of ratification laid down – the Government permitted the grantee to hold the land. It contained the following clauses:
Clause 5 of the Deed of Ratification, is important. It provides, inter alia, that “the grantee can appropriate to his own use within the limits of the grant all timber except … Teak, Cole Teak, Blackwood, Ebony, Karoonthaly, Sandalwood………. .. The eleventh clause reads – “The land granted shall be held in perpetuity as heritableor transferable property, but every case of transfer … be immediately made known to the Sircar….” .. The twelfth clause stipulates – “The discovery of useful mines and treasures within the limits of the grant shall be communicated to the Sircar, ….” .. The sixteenth clause provides – “The grantee shall be bound to preserve the forest trees growing on the banks of the principal streams …. fifty yards …. Similarly … preserve the, trees about the crest of the hill to the extent of a quarter of a mile on each side.”
The Apex Court found the following:
The janmam rights (even if remained with the Poonjar Chief), H.H. the Maharaja became the janmi by the Royal proclamation of 1899.
The nature of ‘janmam right’ has been examined by this Court previously in Kavalappara Kottarathil Kochuni v. State of Madras [1960] 3 S.C.R. 887 Subba Rao, J., observed that janmam right in Kerala is an “estate and it is the freehold interest.
The Sircar itself is one of these Janmis and it was the largest Janmi. It came to possess janmam lands by gift, purchase, escheat, confiscation and other ways.
If any person wants land in Travancore, he must obtain it from, some one of the body of Janmis, i.e. from the Sircar, which is the Chief Janmi, or from some other Janmi.
The Apex Court held that it was difficult to resist the conclusion that the lands in dispute fall within the expression “Janmam right” vested with Sircar.
The Apex Court further found –
The Registered Lands included inter alia, (a) Pandaravaka lands and (b) Janmam lands. “Pandaravaka or Sircar lands are, lands of which the State is the landlord or the Jenmi and whatever rights which vest in the ryots are derived from the Sircar.”
Kenan Devan Hills Concession is dealt with under this heading, i.e. Pandaravaka Lands, i.e. lands belonging to the Sircar.
It thus appears that the State grants like
Kanan Devan Hills Concession and
Ten Square Miles Concession, and
Munro Lands,
were treated under the heading ‘Pandaravaka Lands, i.e. lands belonging to the Sircar.
On these findings The Apex Court upheld the Kannan Devan Hills (Resumption of Lands) Act, 1971 and dismissed the challenge of the Company.
2. State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
With respect to the same property it was held in State of Kerala v. Kannan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272, as under:
“The Trial Court in a detailed and well-reasoned judgment dismissed the suit of the company. The Trial Court on the interpretation of First Concession (Exhibit P- 1), Second Concession (Exhibit P-2), deed of ratification (Exhibit P-62) and the Government agreement with the Society dated August 2, 1866 (Exhibit P-64) came to the conclusion that the company did notacquireabsolute proprietary rightsover the Concession Area or the trees and timber in the said area. It was held that the Poonjar Chief had only conveyed heritable and transferable possessory rights over the Concession area to the grantee. It was also held that absolute rights over the trees and timber in the Concession Area did not pass to the grantee and it had only the right to use and remove timber subject to the restrictions imposed in the deeds of conveyance/ratification.”
It is observed:
“An identical clause in another grant entered into by the Travancore Government came for consideration before a Full Bench of the Kerala High Court in George A Leslie v. State of Kerala, [1969] K. L.T. 378, K. K. Mathew, J. (as the learned Judge then was) interpreted the clause as under:
“We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in statingthat the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”
“We agree with the interpretation given to the clause by Mathew, J. and hold that the respondent- company did not acquire absolute proprietary rights over the Concession Area or the trees and the timber therein.”
It is observed further:
“It was further held by Mathew, J. (in George A. Leslie v. State of Kerala, 1969 KLT 378) that kuttikanam being the governments share of the value of the trees owned by the government it has the power to fix the value of the trees. We agree with the reasoning and conclusions reached by Mathew, J.”
The Apex Court upheld and approved “the judgment and findings” of the Trial Court.
3. George A. Leslie vs State Of Kerala –AIR 1970 Ker 21
In this case, the grant made under the Travancore Regulation II of 1040 and Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865 is considered.
It is observed:
“Ext. P-l is a grant made under the Travancore Regulation II of 1040 and the Rules for the sale of Waste Land on the Travancore Hills dated 24th April 1865. It conferred a heritable and transferable interest in the grantees of the land comprised in it. Clause 5 in Ext. P-l, which is identical with Section 5 in Form A of the Rules for the sale of Waste Land on the Travancore Hills, is the relevant provision for deciding this question. It provides:
“Grantees can appropriate to their own use within the limits of the grant all timber except the following and such as may hereinafter be reserved, namely, Teak, Gole Teak, Blackwood, Ebony, Karcomthaly, Sandalwood; should they carry any timber without the limits of the grant, it will be subject to the pay ment of kuttikanom or customs duty or both, as the case may be, in the same way as timber ordinarily felled”.
10. We think that if title to the reserved trees passed to the grantees, a provision of this nature would have been quite unnecessary. There was no purpose in stating that the grantees will be free to appropriate the reserved trees for consumption within the limits of the grant, if title to the trees passed to the grantees; the provision is a clear indication that the grantees were allowed to cut and appropriate the reserved trees for consumption within the limits of the grant as a matter of concession.”
4. Thomas Philip v. Forest Range Officer – 1923 ‘Grant’ of Travancore Government
Grant made by the Travancore Government, in 1923 was considered in Thomas Philip v. Forest Range Officer, 2021-2 KerLT 578. The Chief Secretary to the Government of Travancore ‘granted’ land ‘for coffee or tea cultivation’. The fifth condition read as under:
“The full right to Royal trees within the grant is reserved and continues to vest in the Government. The Grantee shall be bound to take care of the Royal trees particularised in column 5 of the schedule hereunder written until they are removed or otherwise disposed of by the Government. The Grantee shall also be bound to deliver to the Government all ivory found and other Royalties produced in the land, and all captured elephants, and will be paid the regulated price for the articles of produce, and the regulated reward for the elephant, at the discretion of the Government.
It was contended that the ‘ownership’ of the land was purchased by the petitioner’s father in 1941. He planted trees. The petitioner made an application in 2006 to the Forest Range Officer seeking NOC for felling rosewood trees and teak wood trees. It was denied in view of the fifth condition of title deed to the effect that the full right over all the trees in the properties were fully vested with the Government. The petitioner argued that the 1923 deed is not a grant, but a title deed. The Government Pleader argued that the property held by the petitioner is a grant which would come under the purview of the Kerala Grants and Leases (Modification of Rights) Act, 1980. In view of the said Act, 1980, the appropriation of teak, Blackwood, etc. were subject to payment of seigniorage at the rates specified. Section 4(1) of the Kerala Grants and Leases (Modification of Rights) Act, 1980, reads as under:
“4. Grantees and lessees to pay current seigniorage rates- (1) Notwithstanding anything contained in any law for the time being in force, or in any grant, lease deed, contract or agreement, or in any judgment, decree or order of any court, with effect on and from the commencement of this Act, every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the time being for the timber cut and removed from any land held by him under the grant or lease.”
On the basis of Jose v. State of Kerala, 2020 (2) KLT 560 and Manoj A.N. v. State of Kerala 2013 (3) KLT 649, it was argued for the State that the trees came into existence subsequent to the assignment was also covered by the Act.
Relying on Gopi v. Tahsildar, 2002 (3) KLT 526, and Majeed v. State of Kerala, 2006 (1) KLT 19, it was contended that that the rights obtained in terms of 1923 grant was not absolute. (The Government Pleader also relied on two unreported judgments – in W.P.(C) No. 804/2006 and Crl. M.C. No. 7347/2017).
The petitioner argued that the restriction was only in respect of the trees made mention in 1923 title deed and the trees sought to be cut and removed by the petitioner are those planted by the father of the petitioner. The Court held as under:
“But, the fifth condition quoted above would show that the grantee is bound to deliver to the Government other royalties produced in the land also and Government is expected to pay regulated price for the articles of produce. The term ‘other royalties produced’ would indeed include subsequently planted royal trees also….. .. In view of sub-section (1) of Section 4 and the non-obstante clause therein, the petitioner is liable to pay seigniorage for the trees proposed to be cut and removed by him. The fifth condition in Ext.P1 (1923) will stand modified to the extent provided under Section 4(1) of the Act, 1980.”
The High Court concluded analysing the Ext. P1 (1923) Title Deed, Kerala Grants and Leases (Modification of Rights) Act, 1980, Kerala Preservation of Trees Act, 1986 and Kerala Promotion of Tree Growth on Non-Forest Areas Act, 2005 as under:
.(1) The fifth condition in Ext. P1 Title Deed will stand modified by the Kerala Grants and Leases (Modification of Rights) Act, 1980, as per which every grantee and every lessee shall be bound to pay to the Government the seigniorage rates in force for the timber cut and removed from any land held under the grant or lease.
(2) For cutting, uprooting or burning any tree falling within the definition of tree as contained in Section 2(e) of the Kerala Preservation of Trees Act, 1986, it is necessary to obtain previous permission of the Authorised Officer.
(3) Notwithstanding anything contained in any other law, except in respect of trees:
.(i) reserved by the Government at the time of assignment of such land, or
(ii) trees standing on any land notified under Section 5 of the Kerala Preservation of Trees Act, 1986 every owner of non-forest land shall have the right to cut and transport any tree, other than sandalwood tree standing on his land.”
Note: Note: In this case, the expression “title deed” does not denote a document conferring full ownership. This can be clarified by the use of the phrase “title thereto” in the definition of ‘Prescriptive Easement’ under the Easement Act.
5. Padmanabharu Govindaru v. The State of Kerala– Coffee Planter under a Grant is not a Jenmi
Following passage from Sri T. Madhava Row’s Memorandum (Travancore Land Revenue Manual) regarding the origin and nature of Jenmom rights is quoted in the Judgment (Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86). Sri T. Madhava Row stated as under:
“A Jenmi is often termed a landlord. But, it must be clearly understood and also always remembered that a Jenmi though certainly a landlord, is a peculiar Kind or landlord. Any person, who holds a pattah from a Collector in a British District and under it holds from the British Government subject to Government tax more or less, is called a landlord in ordinary language.
Even in Travancore, any coffee planter or indeed any ryot, who holds lands under a grant from the Sirkar, etc. , is or may be called a landlord. But, be it remembered, such landlords are not Jenmies.
A Jenmi differs from such landlords in that he does not derive his title to lands from the Sirdar etc. His title to the Jenmom lands is inherent. He is, so far as his Jenmom lands are concerned, a little territorial sovereign in a limited sense. He is landlord of his Jenmom domain exactly in the sense in which this Sirkar is landlord of all the land it grants to planters and indeed to all ryots in general; in the sense in which the British government is landlord of all the Ryotwari lands of the East Coast Zillahs of the Madras Presidency.
It is necessary, in view to avoid errors and misconceptions, to familiarize the mind to this definition of t Jenmi. The origin of Jenmom property may be briefly explained here with a view to make the rights of jenmis clear. Kerala Desom (in which Travancore is included) was originally conquered by Parasurama, and this great warrior parcelled out the conquered lands among a limited number of brahmins. The Brahmins then became territorial lords, each independent of the rest. From that early age, the lands have descended with the tenure almost unimpared. The lands so belonging to each Brahmin are said to constitute his Jenmom, and the Brahmin himself is called a jenmi. These lands, so long as they continue in possession of the Jenmi, are free of all taxation. To this day this exemption continues in full force.
Jenmom lands are precisely what are in Europe called allodial properties as contradistinguished from feudal. It must be clear from what has been stated that all the lands in Travancore belong to a body of jenmis. There are no lands that do not belong to some Jenmi or other. Be it remembered that the Sirkar itself is one of these Jenmis, it having come to possess Jenmom lands by gift, purchase, eacheat, confiscation and other ways. It is only a great Jenmi, great in the sense that its jenmom property is extensive. If any person wants land in Travancore, he must obtain it from, and hold it of, some one of the body of Jenmis, i. e. , from the Sirhar, which is the chief Jenmi, or from some other Jenmi”. (pp. 2 and 3 of Travancore land Revenue Manual, Vol. IV)
Note: Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86 gives us “illuminative information as to the concept of ‘jenmom’” as pointed out in Harrisons Malayalam Limited v. State of Kerala, 2018 2 KerHC 719; 2018 2 KerLT 369 – though this decision was overruled by the larger Bench in Rev. Fr. Victor Fernandez Vs. Albert Fernandez, AIR 1971 Ker 168 :1971 KerLT 216).
It was held in Rev. Fr. Victor Fernandez v. Albert Fernandez that Pandarapattom land in the Travancore area of the State was ‘estate’ within the meaning of Article 31-A(2)(a).
6. Majeed v. State of KeralaGrant and the Right of Ownership
In Majeed v. State of Kerala,(2006) 1 KerLT 19 (K.A. Abdul Gafoor, K. Thankappan, K. Hema, JJ.), the State demanded seigniorage under Kerala Grants and Leases Modification of Rights Act, 1980. Petitioner was a person who purchased trees from Travancore Rubber and Tea Company Ltd. Disputes, and questions arose in the light of the Kerala Grants & Leases (Modification of Rights) Act, 1980. Admittedly, there was originally a grant. The scope of the ‘grant’ was disputed.
The question that came before the Full Bench was –
whether, in the light of Section 4 of the Kerala Grants & Leases (Modification of Rights) Act, 1980, ‘seigniorage (or kuttikanam) is liable to be paid for removal of the timber of the trees stated to be planted by the grantee from a property assigned by way of grant by the Government’.
The legal background for reference to Full Bench was the following:
In State of Kerala v. Kannan Devan Hills Produce Co. Ltd., 1991] 2 SCC 272, our Apex Court has held that “the State Government could refuse to permit transportation of timber from the Concession Area” and the “Government being the owner had a right to impose kuttikanam on the removal of the trees out of the Concession Area.
The Division Bench that referred the matter to the (present) Full Bench noted that a similar matter was considered by a Division Bench, and opined that the contention that Kuttikanam (or seigniorage) could not be charged in respect of “such timber which was planted by the grantee in the Concession Area” was negatived by the Apex Court.
The said decision of the Apex Court has been distinguished by yet another Division Bench of the High Court in State of Kerala v. Kannan Devan Hills Produce Co. Ltd.,1998 (1) KLT 28: AIR 1998 Ker 267 (K.K. Usha, N. Dhinakar, JJ.), holding that “if the Government and intended to claim ownership on the trees which are to be cultivated by the grantee, specific reference would have been made to such trees also in the documents”. The Bench, therefore, concluded that if the trees are planted by the grantee, “the grantee is not liable to pay any seigniorage or kuttikanam in respect of timber of those shade trees”.
The Full Bench, in reference, held as under:
“14. Apart from this, the Special Government Pleader has pointed out to us the departmental rules regarding the sale of waste land, subject to which grant has been made as per Ext. R2(a), which categorically makes it clear that: “The other terms of the grant shall be the same as those that apply to waste lands granted under the coffee land dated 7th July 1898.” (The Government Pleader also relied on two unreported judgments – in W.P.(C) No. 804/2006 and Crl. M.C. No. 7347/2017)
The rules for the sale of wasteland on the Travancore Hills for coffee or tea cultivation provide for reservation of trees to attract Clause (c) of Section 3 of the Act. She further submits that, the grant in terms of Ext. R2(a) is not absolute. Notwithstanding the terms of the lease, the government can, as per Section 4, demand seigniorage from the grantee.”
The contention of the petitioner was that it was the free hold property.
The Full Bench rejected the contention on ‘free hold’..
The rejected contention was stated by the Court as under:
“The petitioner contends that the respondents have no authority to demand seigniorage in respect of the timber of the trees planted by the company, as the property in question granted in favour of the company is not a leasehold property, but a free hold property, as is revealed by the order of grant Exts. R2(i).”
The High Court rejected the Writ Petition recording as under:
“Except the liability to pay seigniorage, nothing remains to be resolved in this Writ Petition. Necessarily, the aforesaid finding shall result in dismissal of the Writ Petition.”
No Rule Against Perpetuity in Public Law;
The Government cannot assign land on their whims and fancies
Section 11 of the TP Act says –
where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
But, in Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978 (A. Muhamed Mustaque, J.), it is held as under:
“6. In private law, any restriction repugnant to the interest created is void except to the extent of securing the beneficial enjoyment of another piece of property belonged to the transferor. (See Section 11 of Transfer of Property Act, 1882). The transferee, therefore, in such cases is free to enjoy property absolutely as if there were no stipulations.
7. In public law, the transfer of an interest or assignment of Government land stands on a different footing. The Government is only a public trustee of the land belonging to the State. The Government cannot assign land on their whims and fancies. The land is a natural resource of utmost importance. Therefore, the Government can distribute the natural resources only adhering to the principles of public trust. No land can be assigned ignoring the public interest and detrimental to the public interest.
8. The subsequent incorporation of Rule 8(3) of the Rules for cancellation of patta cannot be relied upon in this matter as the assignment was prior to the amendment. In the absence of any specific condition for cancellation of assignment in the patta or in the statutory provisions at the relevant time, this Court needs to examine the decision taken to cancel the assignment in the light of the public trust doctrine.
9. In Illinois Cent Co. v. State of Illinois City of Chicago [146 US 387 (1892)], principles relating topublic trust doctrine were expounded. It is appropriate to refer the opinion in that judgment which reads as follows:
‘The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein’.
10. In M.C.Mehta v. Kamal Nath and others [(1997) 1 SCC 388], the Apex Court observed that the State is the natural trustees of all resources, which are by nature meant for public use and enjoyment, and the State is a trustee under a legal duty to protect the natural resources.
11. In Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571], the Apex Court held as follows:
“53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations….”
12. Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1] at para.114 it was observed as follows:
“114. It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.”
13. In the Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1] at para.75, it was held as follows:
“75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.””
Note: Appeal to Division Bench (from Mahindra Holidays & Resorts India Limited v. State of Kerala) is dismissed in Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679.
Original Patta for Personal Cultivation; Assignee cannot have a Better Title
In Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978, it is held further as under:
“17. Admittedly, the present use of land is for commercial purposes. It is for personal gain and to subserve the private interest. Commercial purpose is not one on which the land can be assigned. The Government being a trustee is answerable to the public. The public can question if the Government had failed in its duties when it is found that the land is used for other purposes other than for it was assigned. The beneficiary of cultivation is public. That interest of the public is superadded in such assignment. Thus, even in the absence of statutory provisions or conditions in the patta, anyone can question such use of land for commercial purposes.
18. This Court, in fact, had considered use of land for commercial purposes by the assignee of a patta holder, who was assigned land for personal cultivation in Haridas v. State of Kerala [2016 (4) KLT 707] and held that the assignee of original pattadhar cannot have any better claim conferred on him other than the one conveyed to the pattadhar by the assignment. The use of land for commercial purposes is a fraud on the State. The pattadhar or his assignee has a legal obligation to use the land for cultivation.
19. The learned Senior Counsel argued that the Government authorities have issued certificates to run the resort and, therefore, they are estopped from urging that the petitioner had violated the patta conditions. It was also argued that the Government have waived their right to proceed against the petitioner by acknowledging the acceptance of basic tax and conferring certificates relating to tourism.
20. The equitable principles relating to estoppel and waiver cannot have a bearing when the Government is acting as a trustee. This action to protect the interest of the State. No wrong can give rise to a right. The land belongs to the State. If the Government had failed in its duty to check illegal use of land that will not give rise to an equitable right to a wrongdoer. The principles of estoppel cannot be advanced to promote one’s own wrong. This is not a case between the Government and the holder of the land. It is a matter between public interest and breach of trust by a person, who was in relation with the Government to promote the public interest. The principles of estoppel and waiver cannot be pressed against an action of the Government based on public policy. No action of the Government would bind them if it was against the public policy of the State.”
If Land Assigned for Specific Purposes, it Cannot be used for Other Purposes
Kerala High Court, in Haridas v. State of Kerala, 2016 (5) KHC 615 (K. Vinodchandran, J.), had taken a view that when land is assigned for specific purposes, it cannot be said that if there is no prohibition in using it for any other purpose then, an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. Among others, it was further observed therein that the essence is in the assignmentmade, for a specific purpose, which survives time and tide. (Referred to in: Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679).
Subsequent Assignees of Pattaadar Cannot Claim More Rights
In R. Haridas v. State of Kerala, 2016-5 KHC 615; 2016-4 KLT 707, held further as under:
“8. … The title acquired of the property, which, admittedly, were Government lands assigned under a statute. The petitioners are assignees of the original pattaadar and cannot have any rights over and above that possessed by the original assignee.
9. The Assignment Rules, by Rule 4, as has been pointed out by the learned Additional Advocate General, has three specific purposes; for which alone land may be assigned. These are – personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. …. The original assignment made, as evidenced by Exhibit P2 in both the writ petitions, admittedly, is not for house-site or for beneficial enjoyment. Such an extent could have been assigned only under Rule 5 for the purpose of personal cultivation. The assignment having been specifically made under a statute and the Rules framed thereunder, none can have a legitimate expectation of enjoyment of the property over and above the purpose for which the same has been assigned.
10. The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation. …. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment ….. . These conditions are also incorporated as ‘Conditions’ in the Patta and the respective Pattas produced are incomplete copies as will be presently noticed.
13. … It is a matter of concern and quiet a surprise that the revenue authorities in the district have been issuing recommendations like Exhibit P6; for carrying out construction activitieswithout noticing the embargo created insofar as the constructions intended at promoting commercial activity.
14. … The prescription for a permit to be obtained from the local authority is only so far as complying with any master plan for development applicable to the area and compliance of the building rules applicable to the panchayats and municipalities, as brought out under the respective statutes. This cannot create a carte blanche in favour of a permit holder to make a construction in an assigned land which would go specifically against the prescriptions laid down in the statute for such assignment. ….
16. …. Hence any time it is found that the purpose for assignment is diverted from, the State could definitely take proceedings for cancellation of the assignment and either vest the lands back with the Government or assign it to others for the purpose of cultivation.
17. … The assignee would have a right to hold the land and enjoy it under the terms of assignment and any violation thereat would be a reason for cancellation of the assignment made. …
20. … The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to theecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. ….
21. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula. …”
Forfeiture on Claim of Ownership By ‘Grantee’
There is no specific provision for forfeiture of grant for claiming ‘title as owner’, by grantee (similar to the forfeiture of tenancy for claiming ‘ownership’ by a tenant under Sec. 111(g) of the TP Act).
Will claim of ownership (over the granted-property) by grantee amount to forfeiture?
The answer is – Yes. Following are the reasons:
1. Applying the Principles of ‘Forfeiture of Tenancy’ it being on principles on justice, equity and good conscience. The right of forfeiture (for claiming title as owner, by tenant, under Sec. 111(g), TP Act) is a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Rattan Lal v. Vardesh Chander AIR 1976 SC 588).
2. Analogy to Holding-over in Agricultural lease. The right of ‘holding over’ on termination of lease (if lessor accept rent even after termination of the lease period) is provided under Sec. 116 of the TP Act. Though Sec. 117 of the TP Act exempts ‘leases for agricultural purposes’ (from the whole Chapter), it is pointed out in a good number of decisions that the principles thereof (holding over) would apply to agricultural leases also, if no express prohibition, for it contains the principles of justice, equity and good conscience. (See: Amrit Lal v. Mamleshwar, AIR 1973 Del. 75.)
3. Analogy to Forfeiture (itself) in Agricultural lease. Agricultural leases, being specifically exempted in Sec. 117 (it may be argued), the principles on justice, equity and good conscience may not apply to them as regards forfeiture (under Sec. 111). But, the principles thereon definitely apply to grants, for it is not governed by the TP Act (See: Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)
By the advent of this Act, (i) no statutory notice – under Sec. 106 TP Act – was necessary for evicting tenants from Govt. lands; (ii) no bar to apply the provisions in Sec. 111 (g) of the TP Act to invoke forfeiture provision (for claiming title or violating any provision in the agreement) with respect to agricultural tenancy lands owned by Govt.
Right of Forfeiture is a right arose in Common Law
Section 111, Transfer of Property Act, 1882 says as to forfeiture as to lease. It being based on the common law principles as to justice, equity and good conscience, the principles can be applied to ‘grants’ also; for, (i) the provisions of the Transfer of Property Act are not applicable to ‘grants’ and (ii) no provision of law (as regards grant) stands contrary these principles (Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730).
Section 111, Transfer of Property Act reads as under:
111. Determination of lease– A lease of immoveable property determines—
(a) … to … (f)
(g) by forfeiture; that is to say,
(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or
(2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or
(3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event;
and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) …
Sec.117 of the Transfer of Proper Act provides as follows:
“117. Exemption of leases for agricultural purposes – None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication.”
The right of forfeiture (for claiming title as owner, by tenant) being a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Ratan Lal v. Vardesh Chander AIR 1976 SC 588), it can be applied in “agricultural leases” also, if no express prohibition.
KM Joseph, J. held in Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730 (when he dealt with Sec. 116) as under:
“Whether the principle of Sec. 116 of the Transfer of Property Act will apply in regard to agricultural lease in view of Sec.117 Act ? …
… But there we may notice that the principle of Sec. 116 would apply even to agricultural leases on the basis of it embodying principles of equity, justice and good conscience. In this connection we may refer to a Bench decision of the Delhi High Court in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75).”
The relevant passage in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75) reads as under:
“16. Shri Bindra placed reliance on Section 117 of the Transfer of Property Act which exempts leases for agricultural purposes from the provisions of Chapter V of the Transfer of Property Act. In Anantmal v. Lala, AIR 1964 Raj 88, it was held that the principle underlying Section 116 of the Transfer of Property Act is based upon considerations of equity, justice and good conscience and in the absence of anything to the contrary the provisions are applicable to cases not governed by the Transfer of Property Act. The principles of Section 116 are applicable to leases of agriculture lands. Similarly in Alphanso Pinto v. Thukru Hengsu, AIR 1955 Mad 206, it was held if there is no agreement fixing the terms of a new lease, the terms of the old lease must be deemed to be applicable. Where the tenant holds over after the expiration of the term, he holds subject to all the covenants in the lease which are applicable to the new situation. Therefore, clause 9 must be held to be one of the terms of the tenancy by holding over. The tenancy must be held to be one subject to the covenants in respect of Sardarkhti rights contained in the original lease deed. The rule that principles of equity, justice and good conscience apply to agricultural leases and that the principle contained in Section 116 of the Transfer of Property Act is a principle of equity, justice and good conscience has been enunciated in a number of rulings, for example in
Mt. Kesarbai v. Rajabhau Sadasheo Rao, AIR 1944 Nag 94,
Nanjappa Goundan v. Rangaswami Gounda, AIR 1940 Mad 410,
Moore v. Makhan Singh, Air 1919 Pat 254,
Eayo George v. Kacki Muthaliyar, AIR 1953 Trav-Co 299,
Bainani Properties Private Ltd. v. M. Gulamali Abdul Hossain and Co., and
Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)”
Should Notice Similar to S. 111(g) Necessarily be Issued to Grantees
“Notice in writing to the lessee of his intention to determine the lease” is essential under Sec. 111(g) (on their claiming title). Whether it is required to be issued to (i) agricultural tenants and (ii) grantees on forfeiture of tenancy/grant (on their claiming title)?
The answer is, No.
The potential argument in favour ‘notice in writing is essential’ is the following –
The notice in writing under Sec. 111(g) of the TP Act embodies a principle of justice, equity and good conscience and therefore there can be no forfeiture unless notice in writing is given to (i) agricultural tenants and (ii) grantees though the statutory provisions of the Transfer of Property Act are not made applicable to such transactions.
But, the following are pointed out (in various decisions) in support of the view that no written notice is needed in cases of (i) agricultural tenants and (ii) grantees –
This provision was introduced by 1929 Amendment only.
This provision was not in force in English law.
Institution of suit itself is a notice to (i) agricultural tenants, (ii) grantees, etc.
It is not equitable to argue that a tenant or grantee, who wilfully forfeited the transaction, is entitled for a notice, on principles of equity.
Plantation activity is not a simple “agriculture” activity
There are ever so many decisions of our courts saying that that plantation activity is a business activity and it is not simple “agriculture” activity (that falls under Sec. 117 TP Act). See:
AIR 2001 SC 2672,
2016(8) JT 287; 2016 (7) SCALE 4,
2018(1) Ker LT 84,
2016(3) Ker LT 592,
1999(3) Ker LT 300.
End Notes
Travancore Grant Deeds Bear the Caption “Title Deeds”
The word title does not invariably denote absolute ownership. A cue may be drawn from Section 15 of the Easements Act, 1882, which says that an easement may be acquired by prescription through open and uninterrupted enjoyment by a person claiming title thereto—that is, claiming a right to the easement and not ownership of the servient land.
Other familiar examples:
Possessory title, Mortgagee’s title, Tenant’s title, Title to possession, Title to fish.
Sec. 15 Easement Act
Sec. 15 Easement Act reads as under:
“15. Acquisition by prescription: Where …… a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.”
What does “claiming title thereto” Mean in this Context?
Answer: Title is not confined to ownership of property; it may also denote a legally recognised right or entitlement, such as an easement.
Peacock in his treatise, “Law Relating to Easements in British India”, Third Edn., at page 608 said as under:
“As an easement is not one of the ordinary rights of ownership, it is necessary that either party claiming or relying on an easement should plead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant“.
Quoting Peacock, in Surendrasingh v. Phirosahah, (Sinha C.J. and Hidayatullah, J.), AIR 1953 Nag. 205, it is held as under:
“No doubt, the words ‘title thereto‘ refers tile of ‘easement’ claimed; and the word ‘title’ was not used in the general sense now used (that is, absolute ownership) in the Indian Easements Act, 1882.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)
Gale on Easements (15th Edn.),Pages 415, reads as under:
“Under the present system of pleading, it is conceived that, whether the section be brought against the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at common law, or under the Prescription Act, and in many cases it is advisable to plead, alternatively, a title by all three methods.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)
Mulla – Code of Civil Procedure (14th Edn.) Volume II, at page 986, states the law thus :
“Easement — A party claiming or relying on an easement should plead the nature of the title thereto, so as to clearly show the origin of the right, whether it arises by statutory prescription or express or implied grant, or the old common law method of a lost grant.”
‘Title Thereto’ refers to Title of an Easement
Though the word ‘title’ is now generally used to denote absolute ownership, in the Indian Easements Act, 1882, the phrase ‘title thereto’ refers specifically to the title of an easement.
Abstract # Copyright is a Statutory Right (Governed under The Copyright Act, 1957). # No Copyright in an Idea or Theme of Work. # Violation of Copyright – Only If: —-It makes an Unmistakable Impression – Later work is a copy of the Original —- There is Fundamental or Substantial Similarity. —- Reproduction in any Material Form (Exact copy, or Substantially a Copy). # A literal imitation of the copyrighted work with some variations here and there would amount to a violation of the copyright. # Copyright is explained in Section 14 (Meaning of copyright) of The Copyright Act, 1957; and Section 51 lays down – ‘When copyright infringed‘.
R.G. Anand v. Delux Films— Foundational Indian Decision
R.G. Anand v. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118 (S. Mutrtaza Fazal Ali, Jaswant Singh, R.S. Pathak, JJ.) is the foundational Indian decision on copyright infringement.
This decision –
.(i) dealt with the dichotomy, ‘Idea v. Expression’ and
(ii) laid down – ‘Test of Substantial Similarity’
Facts in a Nutshell—R.G. Anand v. Delux Films
The appellant had written a play in Hindi.
One film director produced a motion picture a few years after the appellant’s play was published.
The appellant complained that the film was based entirely on his play and sued for damages on account of infringement of copyright.
The action was dismissed, observing that there could be no copyright in the theme of the work.
The decree was affirmed by the High Court.
In such a context, it is held – “In such a case, the courts should determine whether or not thesimilarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work.”
Law Laid Down In R.G. Anand V. M/S. Delux Films
In R.G. Anand v. M/s. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118, held as under:
“46. Thus, on a careful consideration and elucidation of the various authorities and the case law on the subject discussed above, the following propositions emerge:
. 1. There can be no copyright in an idea, subject matter, themes, plots or historical or legendary facts and violation of the copyright in such cases is confined to the form, manner and arrangement and expression of the idea by the author of the copyright work.
2. Where the same idea is being developed in a different manner, it is manifest that the source being common, similarities are bound to occur. In such a case the courts should determine whether or not the similarities are on fundamental or substantial aspects of the mode of expression adopted in the copyrighted work. If the defendants work is nothing but a literal imitation of the copyrighted work with some variations here and there it would amount to violation of the copyright. In other words, in order to be actionable the copy must be a substantial and material one which at once leads to the conclusion that the defendant is guilty of an act of piracy.
3. One of the surest and the safest test to determine whether or not there has been a violation of copyright is to seeing the reader, spectator or the viewer after having read or seen both the works is clearly of the opinion and gets an unmistakable impression that the subsequent work appears to be a copy of the original.
4. Where the theme is the same but is presented and treated differently so that the subsequent work becomes a completely new work, no question of violation of copyright arises.
5. Where however apart from the similarities appearing in the two works there are also material and broad dissimilarities which negative the intention to copy the original and the coincidences appearing in the two works are clearly incidental no infringement of the copyright comes into existence.
6. As a violation of copyright amounts to an act of piracy it must be proved by clear and cogent evidence after applying the various tests laid down by the case law discussed above.
7. Where however the question is of the violation of the copyright of stage play by a film producer or a Director the task of the plaintiff becomes more difficult to prove piracy. It is manifest that unlike a stage play a film has a much broader prospective, a wider field and a bigger background where the defendants can by introducing a variety of incidents give a colour and complexion different from the manner in which the copyrighted work has expressed the idea. Even so, if the viewer after seeing the film gets a totality of impression that the film is by and large a copy of the original play, violation of the copyright may be said to be proved.”
(Quoted in: Academy of General Edu. , Manipal v. B. Malini Mallya, AIR 2009 SC1982; 2009-4 SCC 256)
Coincidences or Similarities
In Corelli v. Gray, (1913) 29 TLR 570, Sargant, J. observed as under:
“The plaintiffs case is entirely founded on coincidences or similarities between the novel and the sketch. Such coincidences or similarities may be due to any one of the four hypotheses – namely (1) to mere chance, or (2) to both sketch and novel being taken from a common source; (3) to the novel being taken from the sketch, or (4) to the sketch being taken from the novel. Any of the first three hypotheses would result in the success of the defendant; it is the fourth hypothesis alone that will entitle the plaintiff to succeed.”
“Looking now at the aggregate of the similarities between the sketch and the novel, and the case is essentially one in which the proof is cumulative, I am irresistibly forced to the conclusion that it is quite impossible they should be due to mere chance coincidence and accordingly that they must be due to a process of copying or appropriation by the defendant from the plaintiffs novel.” (Quoted in: R.G. Anand v. M/s. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118)
Aggregate of the Similarities and Cumulative Effect Matters
In R.G. Anand v. M/s. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118, it is said as under:
“Thus it was pointed out in this case (Corelli v. Gray, (1913) 29 TLR 570) where the aggregate of the similarities between the copyrighted work and the copy lead to the cumulative effect that the defendant had imitated the original and that the similarities between the two works are not coincidental, reasonable inference of colourable imitation or of appropriation of the labour of the owner of the copyright by the defendant is proved. This case was followed by the Master of Rolls in the case of Corelli v. Gray (1914) 30 TLR 116.
22. The case of Hawkes and Son (London) Limited v. Paramount Film Service Limited (1934) 1 Ch D 593 was whether a musical composition made by the owner was sought to be imitated by producing a film containing the said composition. An action for violation of the copy right was filed by the owner. Lord Hansworth, M. R. found that the quantum taken was substantial and a substantial part of the musical copyright could be reproduced apart from the actual film. In this connection, Lord Hansworth observed as follows:-
“Having considered and heard this film. I am quite satisfied that the quantum that is taken is substantial, and although it might be difficult, and although it may be uncertain whether it will be ever used again, we must not neglect the evidence that a substantial part of the musical copyright could be reproduced apart from the actual picture film”.
Similar observations were made by Lord Slesser which may be extracted thus:-
“Anyone hearing it would know that it was the march called “Colonel bogey” and though it may be that it was not very prolonged in its reproduction, it is clearly, in my view, a substantial, a vital and an essential part which is there reproduced. That being so, it is clear to my mind that a fair use has not been made of it; that is to say, there has been appropriated and published in a form which will or may materially injure the copyright that in which the plaintiffs have a proprietary right”.
“27. In the case of Frederick B. Chattertom and Benjamin Webster v. Joseph Arnold Cave (1878) 3 AC 483 Lord Hatherley observed as follows:-
‘And if the quantity taken be neither substantial nor material, if, as it has been expressed by some Judges, ” a fair use” only be made of the publication, no wrong is done and no action can be brought. It is not, perhaps, exactly the same with dramatic performances. They are not intended to be repeated by others or to be used in such a way as a book may be used, but still the principle de minimis non curat lex applies to a supposed wrong in taking a part of dramatic works, as well as in reproducing a part of a book’.
‘”‘I think’ my Lords, regard being had to the whole of this case, to the finding of the Lord Chief Justice that the parts which were so taken were neither substantial nor material parts, and the impossibility of damage being held to have accrued to the plaintiff from such taking, and the concurrence of the other Judges before whom the case was brought, that this appeal should be dismissed, and dismissed with costs’.”
Copyright Subsists in Work, Not in Title
In Krishika Lulla v. Shyam Vithalrao Devkatta, 2016-2 SCC 521, our Apex Court, holding that ‘copyright subsists in work, not in title’, it is held as under:
“A title by itself is in the nature of a name of a work and is not complete by itself, without the work.”
Eastern Book Company v. D.B. Modak
Eastern Book Company v. D.B. Modak, (2008) 1 SCC 1, is another important decision on this subject. It is held in this case as under:
“57. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is thatwhat is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, coordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. On the face of the provisions of the Copyright Act, 1957, we think that the principle laid down by the Canadian Court would be applicable in copyright of the judgments of the Apex Court. We make it clear that the decision of ours would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments. To claim copyright in a compilation, the author must produce the material with exercise of his skill and judgment which may not be creativity in the sense that it is novel or non-obvious, but at the same time it is not a product of merely labour and capital. The derivative work produced by the author must have some distinguishable features and flavour to raw text of the judgments delivered by the court. The trivial variation or inputs put in the judgment would not satisfy the test of copyright of an author.”
(Quoted in: Academy of General Edu. , Manipal v. B. Malini Mallya, AIR 2009 SC1982; 2009-4 SCC 256)
The Dichotomy: ‘Idea v. Expression’ : UK and US Decisions
UK and US courts recognized this dichotomy as fundamental to the doctrine of copyright. In Hollinrake vs. Truswell (1894) 3 Ch.420, Lindley, L.J. expressed it as under:
“Copyright …………. does not extend to ideas, or schemes, or systems, or methods; it is confined to their expression; and if their expression is not copied the copyright is not infringed.” (Quoted in: Shamoil Ahmad Khan v. Falguni Shah, 2020-4 AllMR 555).
This maxim has been often repeated in later copyright cases and finds expression even in the celebrated case of R.G. Anand vs. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118.
The US Supreme Court in Mazer vs. stein (1954) US SC 36 put the matter as under:
“Unlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea – not the idea itself.” (Quoted in: Shamoil Ahmad Khan v. Falguni Shah, 2020-4 AllMR 555).
The US case of Nichols v. Universal Pictures Corp., 45 F.2d 119 (1930), said it in the following words :
“Upon any work, and especially upon a play, a great number of patterns of increasing generality fit equally well, as more and more of the incident is left out. The last may perhaps be no more than the most general statement of what the play is about, and at times might consist of only its title; but there is a point in this series of abstractions where they are no longer protected, since otherwise the playwright could prevent the use of his “ideas,” to which, apart from their expression, his property is never extended.”
Copyright is a Statutory Right
Copyright is a statutory right. It is so held in the following decisions:
Krishika Lulla v. Shyam Vithalrao Devkatta, 2016-2 SCC 521,
R.G. Anand vs. Delux Films, AIR 1978 SC 1613; (1978) 4 SCC 118
E. M. Forster v. A. N. Parasuram, 1964-2 SCJ 186
Macmillan and Company, Limited v. K. and J. Cooper, AIR 1924 PC 75.
Note: Passing off (protection of goodwill and reputation) is traditionally a common-law action and survives independently of statute.
Modern copyright systems throughout the common-law world, including India, follow the statutory model.
The Delhi High Court, in Giant Rocket Media And Entertainment Pvt Ltd v. Priyanka Ghatak, 2020 0 Supreme(Del) 1230 (Rajiv Sahai Endlaw, J) dismissing the petition of the plaintiff, held as under:
.(A) Copyright is a statutory right and no right outside the statute exists. Reference in this regard can be made to
Time Warner Entertainment Company L.P. Vs. RPG Netcom, (2007) 140 DLT 758 ,
Entertainment Network (India) Ltd. Vs. Super Cassette Industries Ltd., (2008) 13 SCC 30 ,
Navigators Logistics Ltd. Vs. Kashif Qureshi, (2018) 254 DLT 307 and
Satish Kumar (supra) Satish Kumar v. Khushboo Singh, MANU/DE/3411/2019.
Thus, unless a case of defendant No.3 having any copyright and the defendants No.1&2 having infringed the same is made out, the plaintiff is not entitled to any interim relief on the said ground.
(B) Per Section 13 of the Copyright Act, copyright subsists in, (a) original literary, dramatic, musical and artistic works; (b) cinematograph films; and (c) sound recording. The copyright claimed by the plaintiff being in a book authored by the defendant No.3, the same will fall under the category of “literary work”. However, for a copyright to subsist in a literary work, it has to be “original“.
(C) In Macmillan & Company Ltd. Vs. K & J Cooper, (1924) AIR PC 75 , it was held that the word “original” does not mean that work must be the expression of original or inventive thought; Copyright Act is not concerned with originality of ideas, but with the expression of thought and in the case of literary work, with the expression of thought in print or writing; the originality which is required, relates to expression of the thought but the Act does not require that the expression must be an original or novel work but that the work must not be copied from another work. Comparatively recently, in Eastern Book Company Vs. D.B. Modak, (2008) AIR SC 809 , it was held that,
(a) the words “literary work” cover work which is expressed in print or writing, irrespective of, whether the quality or style is high;
(b) the commonplace matter put together or arranged without the exercise of more than negligible work, labour and skill in making the selection, will not be entitled to copyright;
(c) the word “original” demands only that the work should not be copied but should originate from the author;
(d) the Court has to see whether the work is a result of skill or expense and if finds it so, it is entitled to be considered original, and to be protected against copying;
(e) copyrighted material is that what is created by the author by his skill, labour and investment of capital, maybe it is derivative work; and,
(f) the courts will have to evaluate whether derivative work is not the end product of skill, labour and capital which is trivial or negligible but substantially the Courts need not go into evaluation of literary merit of derivative work or the creative aspect of the same.
The Division Bench of this Court in Dart Industries Inc. Vs. Techno Plast, (2016) 233 DLT 1, held that the content of what is “original” has undergone considerable change from the previously applicable “sweat of the brow” doctrine to the “modicum of creativity” standard. It was held that while under the “sweat of the brow” doctrine copyright was conferred on works merely because time energy skill and labour was expended, now under the “modicum of creativity” standard not every effort or industry or expending of skill results in copyrightable work but only those which create works that are somewhat different in character, involve some intellectual effort and involve a certain degree of creativity. Reference in this regard may also be made to
The Chancellor Masters and Scholars of the University of Oxford Vs. Narendra Publishing House,MANU/DE/1377/2008,
Mattel Inc. Vs. Jayant Agarwalla, (2008) 153 DLT 548 , Reckeweg and Co. GMBh Vs. Adven Biotech Pvt. Ltd.,MANU/DE/0961/2008,
Syndicate of the Press of the University of Cambridge Vs. B.D. Bhandari, (2011) 185 DLT 346 (DB) ,
Emergent Genetics India Pvt. Ltd. Vs. Shailendra Shivam,MANU/DE/3012/2011,
Tech Plus Media Private Limited Vs. Jyoti Janda,MANU/DE/2438/2014 and
Navigators Logistics Ltd. supra.
(D) Though the entire book authored by the defendant No. 3 has not been placed before this Court, with only a copy of the cover and table of contents thereof together with Chapter 7 thereof filed but a reading of the preface thereof reveals that the defendant No.3, in the book has narrated facts about the incident that created news and the book is described as a tale of investigation and prosecution by the CBI that never saw the light of the day. Chapter 7 of the book is defined in the preface as “a crime of passion” and showing “how blue blood suffers from streaks of jealousy and lust and commits murder most vile”. Chapter 7 also describes Syed Modi Murder case as a fascinating case of political interference, changing the course of law.
(E) In paragraph 6 of the plaint, it is pleaded that the defendant No. 3 from his career in CBI from August, 1963 till his retirement as Joint Director in April, 1996, acquired a deep understanding of the inner workings of the CBI and its interplay with the political system and the book contains a series of highly original narratives of important cases with selection and compilation of facts and materials such as could only have been made by defendant No.3 with his narrative skills and deep understanding of the working of the criminal justice system in matters of the kind handled by the CBI.
(F) Applying the law aforesaid, it cannot be said with certainty at this stage, whether Chapter 7 of the book with which this suit is concerned constitutes an “original literary work” or is merely a reproduction of the case files of the crime and its prosecution. If it turns out that it is merely a reproduction, with no innovative thought and creativity, it would not qualify as a copyrighted work. The plaintiff has not produced before this Court the said case files with which a comparison of Chapter 7 can be made and thus the plaintiff cannot be said to have a prima facie case as the defendant No.3, through whom the plaintiff claims, cannot be said to have a copyright. It is in this context only that I had enquired from the counsel for the plaintiff, whether the Investigating Officer of a crime and prosecution has any copyright in the charge sheet filed and/or investigation done. In my prima facie view, the Investigating Officer has no such copyright and if narrates the same in print or otherwise elsewhere, would not have a copyright therein also.
(G) Per Section 14 of the Copyright Act, copyright means the exclusive right to do or authorize the doing of acts mentioned therein. With respect to the literary works, the exclusive right is to inter alia reproduce the work in any material form and to make any cinematograph film in respect of the work. Thus, even if the defendant No.3, through whom the plaintiff claims were to have any copyright in Chapter 7, it was incumbent upon the plaintiff to, in the plaint, make out a case of the book of the defendant No.1 having reproduced any part of Chapter 7 in any material form and/or of the defendant No.2 in its web series having made a cinematographic film with respect to Chapter 7 of the book of the defendant No.3. The plaint is bereft of any pleas in this regard. In fact, the counsel for the plaintiff or the counsel for the defendant No.3 in their arguments have not even attempted to make any comparison of Chapter 7 of the book of the defendant No.3 with the book of the defendant No.1 or between Chapter 7 and the film script of the web series of the defendant No.2. Rather, the counsel for the plaintiff, on enquiry, whether has watched the web series, has answered in the negative. Without the plaintiff pleading a case of reproduction of Chapter 7 of defendant No.3”s book or summary of the script of the web series with Chapter 7, no cause of action on the ground of infringement of copyright is found pleaded in the plaint. The plaintiff appears to have filed the suit on the assumption that production of the web series by the defendant No.2, after approaching the plaintiff and defendant No.3 to acquire rights in the book of the defendant No.1, to be itself constituting infringement of copyright but which, as aforesaid, is not the position in law. Even if both Chapter 7 of the book of the defendant No.3 and the book of the defendant No.1 along with the web series of the defendant No.2, are premised on the Syed Modi Murder case which was in public domain, no case for infringement of copyright will be made out.
(H) A reading of Chapter 7 and portions of the book of the defendant No.1 also shows the two, though to be concerning the same case, to be as different as chalk and cheese, with Chapter 7 of the book of the defendant No.3 reeking of official language and the book of the defendant No.1 flavored as fiction and covering not merely the crime and its prosecution but other parts of the lives of the dramatis persone of the drama which unfolded with the crime, with wide coverage, not only in Delhi newspapers, but in other periodicals. In fact, even till date whenever photographs of the survivors of the incident appear, even if in some other context, but are always invariably with reference to the crime and its prosecution. The said crime is as iconic in the history of Indian crimes as the Nanavati Murder case of the erstwhile times and the Talwar and Nithari case of comparatively recent origin with, as far as I remember, four films and one web series having been produced inspired by the Nanavati Murder case. Thus, no prima facie case of infringement of copyright even if any is pleaded or an attempt to prove the same is made out.
Perhaps realizing so, the counsel for the plaintiff, early in his arguments, based his arguments primarily on breach of confidentiality. However as aforesaid noticed and also argued by the senior counsel for the defendants No.1&2, the plaint is bereft of any plea of any relationship of confidentiality between the parties or anything in confidentiality having been transacted between the parties. All that the plaintiff has pleaded is the repeated approaches made by the defendant No.2 to the plaintiff and the defendant No.3 to acquire rights in the book of the defendant No.3 and defendant No.3 though initially having shown reluctance thereto having subsequently informed the defendant No.2 of its willingness to negotiate. There is not an iota of plea of any jural relationship having come into existence on the premise of confidentiality.
(J) The only response of the counsel for the plaintiff when quizzed in this respect was that the book of the defendant No.3 was already in public domain. However if that was so, the same negates any ground urged of confidentiality.
(K) As far as the judgments relied upon by the counsel for the plaintiff are concerned, in Zee Telefilms Ltd. supra, the plaintiff was found to have developed a novel concept of Bal Krishna residing with a family whose life is disturbed and solving their troubles and of having developed the said idea into a plot which was submitted to defendant No.1 in trust and it was further found that the defendant No.1, in an attempt to wriggle out of culpability sought to contend that at about the same time, the defendants No.2&3 approached the defendant No.1 with the same plot. The Court found the two works to be having striking similarity and further found it impossible to accept that the similarities in two works were mere coincidence. It was for this reason that injunction was granted. As distinct therefrom, Chapter 7 of the book of the defendant No.3 is not based on any novel concept but on a crime and its prosecution, already in public domain and the possibility of the defendant No.1, much after publication of book by the defendant No.3 having chosen to write a piece of fiction premised on the same crime and its prosecution, is writ large, particularly when the law permits the same and no similarity is found between the two works much less reproduction by the defendant No.1 or the defendant No.2 of the work of the defendant No.3.
(L) Thus, no pleadings or cause of action for grant of any interim relief to the plaintiff on the ground of breach of confidentiality is made out. In view thereof, the need to deal with the existence of the right of confidentiality in the context of Indian Law is not felt.
(M) The plaintiff is giving undue emphasis to the change effected by the defendant no.2 in its web series with respect to the game played by the victim. The same is of no significance to the entitlement of the plaintiff to the relief claimed.
(N) Merely because the defendant no.2 approached the plaintiff and defendant no.3 for acquiring rights in the book of the defendant no.3 would also not entitle the plaintiff to the relief without plaintiff making out a case of having a copyright and infringement thereof or of the defendant no.2 having misappropriated anything handed over to it in trust or confidence. What has to be judged is the conduct of the defendant and if the said conduct is found to be above law even though the defendant no.2 under misconception/ignorance of law or otherwise was earlier of the view that consent of the plaintiff and/or defendant no.3 was required, the same would not estop the defendant no.2 from, on realising the correct position in law, proceeding to make and release the film/web series without any agreement with the plaintiff or defendant no.3.
(O) I am also of the view that the ex-parte relief as granted against the defendants no.1& 2 on 3rd January 2020, even though couched in the language of a prohibitory injunction, owing to undisputed release of the web series by the defendant no.2 on 1st January 2020 was in exparte ad-interim mandatory form. Rather, it was incumbent upon the counsel for the plaintiff to, at the time of hearing on 3rd January 2020, inform the court of the web serial having already been released on 1st January 2020 and to request the court to direct the said web series to be taken down and which the plaintiff failed to do.
(P) Not only is the plaintiff not found to be having a prima facie case but the plaintiff is found to fail on the anvil of irreparable loss and injury and balance of convenience. The defendant no.2 having already made and released the web series, at a huge cost would suffer irreparable loss on being restrained to reap the benefit of not only the monies invested but also the effort of love for filmmaking, including of all artists involved in the making thereof. On the contrary, the plaintiff, even if ultimately succeeds, can always be compensated in monetary terms and post facto recognition conferred on the defendant no 3. The senior counsel for the defendants no.1&2, yesterday on enquiry informed that a sum of Rs.14 crores had been expended on making of the web series. I had yesterday only enquired from the counsel for the plaintiff, whether was willing to furnish security to the defendant in the said sum plus reasonable profits likely to be reaped therefrom. No response was given, neither yesterday nor today.
(Q) I must however observe that even though the plaintiff is not found to have made out a case for interim relief but the defendants No.1&2 are also not found to be playing fair and making a clean breast of the state of affairs. However, such conduct of the defendants No.1&2 would not be a ground for granting interim relief to the plaintiff.
End Notes
Section 14(a) in The Copyright Act, 1957
14. Meaning of copyright.– For the purposes of this Act, copyright means the exclusive right subject to the provisions of this Act, to do or authorise the doing of any of the following acts in respect of a work or any substantial part thereof, namely—
.(a) in the case of a literary, dramatic or musical work, not being a computer programme,—
.(i) to reproduce the work in any material form including the storing of it in any medium by electronic means;
(ii) to issue copies of the work to the public not being copies already in circulation;
(iii) to perform the work in public, or communicate it to the public;
(iv) to make any cinematograph film or sound recording in respect of the work;
(v) to make any translation of the work;
(vi) to make any adaptation of the work;
(vii) to do, in relation to a translation or an adaptation of the work, any of the acts specified in relation to the work in sub-clauses (i) to (vi);
(b) in the case of a computer programme:
.(i) to do any of the acts specified in clause (a);
(ii) to sell or give on commercial rental or offer for sale or for commercial rental any copy of the computer programmer:
Provided that such commercial rental does not apply in respect of computer programmes where the programme itself is not the essential object of the rental.]
(c) in the case of an artistic work,–
to reproduce the work in any material form including–
the storing of it in any medium by electronic or other means; or
depiction in three-dimensions of a two-dimensional work; or
depiction in two-dimensions of a three-dimensional work;]
(d) in the case of a cinematograph film,–
.(i) to make a copy of the film, including–
(A) a photograph of any image forming part thereof; or
(B) storing of it in any medium by electronic or other means;]
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the film.]
(iii) to communicate the film to the public;
(e) in the case of a sound recording,–
.(i) to make any other sound recording embodying it 6[including storing of it in any medium by electronic or other means];
(ii) to sell or give on commercial rental or offer for sale or for such rental, any copy of the sound recording;]
(iii) to communicate the sound recording to the public.
Explanation.–For the purposes of this section, a copy which has been sold once shall be deemed to be a copy already in circulation].
Section 51 of the Copyright Act, 1957:
“51. When copyright infringed – Copyright in a work shall be deemed to be infringed–
.(a) when any person, without a licence granted by the owner of the copyright or the Registrar of Copyrights under this Act or in contravention of the conditions of a licence so granted or of any condition imposed by a competent authority under this Act–
.(i) does anything, the exclusive right to do which is by this Act conferred upon the owner of the copyright, or
(ii) permits for profit, any place to be used for the communication of the work to the public where such communication constitutes an infringement of the copyright in the work, unless he was not aware and had no reasonable ground for believing that such communication to the public would be an infringement of copyright; or
(b) when any person–
makes for sale or hire, or sells or lets for hire, or by way of trade displays or offers for sale or hire, or
distributes either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, or
by way of trade exhibits in public, or
imports into India,
any infringing copies of the work:
Provided that nothing in sub-clause (iv) shall apply to the import of one copy of any work for the private and domestic use of the importer.
Explanation.-For the purposes of this section, the reproduction of a literary, dramatic, musical or artistic work in the form of a cinematograph film shall be deemed to be an “infringing copy”.
Title to be Established by Title Deeds, and Survey and Revenue Records can be Relied on to show Boundary and Possession
Saji Koduvath, Advocate, Kottayam.
Contents in a Nutshell
Relevant Provisions in the Bharatiya Sakshya Adhiniyam, 2023
S. 29, BSA: Entry in public record or an electronic record made in performance of duty are relevant.
S. 82, BSA – Court shall presume maps or plans made by the Central Government or State Government are accurate.
Survey Would Not Confer Title; Survey Authorities Not to Decide Title
The properties are identified by title deeds. The survey or resurvey would not confer title. Survey or resurvey records are not documents of proof of title.
State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Survey authorities not to decide title: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
Entry in resurvey and revenue records (on subjective satisfaction) would not lose title
Cochin Devaswom Board v. Union of India, 2023-6 KHC 328.
The title and possession are matters to be decided by a Civil Court. Resurvey under S. 13 has to yield to the adjudication by the Civil Court based on title: Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.)
Title would prevail over Revenue/Survey records
In title declaration suits, survey plan & revenue records are less significant; in suits involving title dispute, title would prevail over revenue records: Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Title to property has to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
Reliefs are not denied merely on entries in revenue records/resurvey records – Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey Conclusive Proof on Boundaries
Survey authorities determine the boundaries of the land: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
Survey conclusive proof, boundaries determined & recorded correctly; it will not affect the right and title: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
Title to be Established by Title Deeds; Not with reference to the Survey demarcation
A party to the suit has to establish the title to a property by producing its title deed. In Title declaration suits, survey plan & revenue records are less significant.
Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418; Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey and Revenue Records can be Relied on to show Boundary and Possession
Survey Records shall be conclusive proof of boundaries and presume correctness. Therefore, one can rely on the presumption that the survey records establish possession and boundary.
Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418 (Vide: Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KHC 699, Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)], Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and Achama Alexander v. Assistant Director, Survey and Land Records (2022 (2) KHC 131); Thomas v. Philip,2022(4) KerHC 451;
Thomas v. Philip,2022(4) KerHC 451 – Resurvey records do not lead inference of possession, also.
This view is fortified by the decisions of the Kerala High Court in:
Kannan v. Kannan (1964 KLT 228), The Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KerHC 699), Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717); Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.); Ibrahim v. Saythumuhammed, (2013 (4) KLT 435); Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198); Thomas v. Philip (2022(4) KerHC 451); Elambilan Nani Amma v. Mulavana Antony (2023-7 KHC 418).
Survey Raises Presumption of Possession
When a person is holding a survey division, there is presumption of possession: Achuthan Unni v. Vally, 1962 KLT 1010. Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, (Quoted in: Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)
Survey authorities determine boundaries – Based on Possession, predominantly based on possession: Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) It is.
Survey authority is empowered to determine the disputes regarding the fixation of boundary; not empowered the survey authority to change the ownership: Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198
Entries in Revenue Records or Jamabandi serve only a “fiscal purpose”
Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation is for revenue or fiscal purposes
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation not create or extinguish title; No presumptive value of Title
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Balwant Singh v. Daulat Singh (D) By Lrs., (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191.
Title is Not Proved by Revenue Entries
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802.
Jubin v. Village Officer, Koottickal Village – 2026(3) KLT 532 [Relied on: Santhosh Jacob v. Tahasildar, Muvattupuzha Taluk, 2024(2) KHC 665;Marunnoli Vijayalakshmi v. Tahasildar, Koyilandi, 2019(2) KLT 373, 2019(1) KHC 142]
Revenue Records can raise a presumption regarding possession.
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319.
Fabricated records in collusion – not defeat rights of Govt.
Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Baleshwar Tewari v. Sheo Jatan Tiwary, (1997) 5 SCC 112 ; State of Punjab v. Sadhu Ram, (1997) 9 SCC 544; R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203.
Survey-Plan: Presumption under Section 82 BSA
Section 82 of the Bharatiya Sakshya Adhiniyam, 2023, provides as under:
“82. Presumption as to maps or plans made by authority of Government: The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate; but maps or plans made for the purposes of any cause must be proved to be accurate.”
Properties Identified on Title Deeds
The properties are to be identified based on the title deeds.
The changes in the extent of the property in the resurvey would not confer title.
Survey Authorities Not to Decide Title
It is not for the survey authorities to decide the question of the title (based on resurvey records).
The decision of the survey authorities shall not affect the right and title of the properties acquired by a party as per a valid title deed.
In Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706, it is held as under:
“13. Section 2(vi) of the Kerala Survey and Boundaries Act, 1961 defines “survey.” …. But this definition or any other provision in the Act confers (no) power on the survey authorities to decide a question regarding title to a property.”
“15. Under Section 9 of the Act the Survey Officer has power to determine and record as undisputed any boundary in respect of which no dispute is brought to his notice. As per Section 10 of the Act, where a boundary is disputed, the survey officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision. Those provisions make it clear that the powers invested on the Survey Officers as well as the District Collectors under the Act is only to determine the boundaries of the land and not to decide title to the properties. Its corollary is that the survey authorities or the District Collector shall not decide the question of the title based on resurvey records.”
“16. In Nandakumar v. District Collector, Ernakulam, 2018 (2) KHC 58, a Division Bench of this Court observed that land conservancy proceedings cannot be carried out merely based on re-survey records. Entries in re-survey records are predominantly on the basis of possession as of now. They would be totally worthless, when the question is as to whether lands vested in Deitiesand controlled by the Devaswom Boards or trustees have been encroached upon and reduced to occupation by private persons or other agencies. Obviously, the prior revenue records have to be looked into to ascertain whether there is any parcel which stands vested, in a particular Deity. If that be so, collateral materials will also have to be looked into to ascertain the genesis of the property. Even if there is no revenue record in that regard, the vesting, if any, in any deity has to be ascertained.”
19. As pointed out above the survey or resurvey records are no documents of proof of title to a property. …. The learned Special Government Pleader would submit in this regard that property in question assumed the character of a road having the potential of being a public utility and in the user of the general public. …. It vested in the panchayat under the provisions of Section 169(1) of the Pancayat Raj Act. The learned Special Government Pleader placed reliance on Mariam Beevi vs. Secretary, Athirampuzha Grama Panchayath, Kottayam and Others, 2015 (2) KLT 768 : 2015 (3) KHC 199 to fortify his contention. The said decision rendered by a learned Single Judge was affirmed by a Division Bench of this Court in Mariam Beevi vs. Secretary, Athirampuzha Grama Panchayath, Kottayam and Others, 2017 SCC Online Ker. 7182.
20. …. The local authority would have maintained it out of its social obligation. Albeit such maintenance, the road never was brought to the asset register. It being a property of the Deity, by such an overt act of tarring alone, the title of the Deity will not be divested. There shall be a process known to law, such as acquisition, voluntary transfer, etc. for the Deity to lose its title to a property. In that view of the matter, the law laid down in Mariam Beevi 2015 (3) KHC 199 cannot have application to this case.
21. As observed hereinbefore entry in the resurvey and revenue records that the property is a puramboke, obviously, is on the basis of the subjective satisfaction of the authorities concerned. That would not have the effect of losing title of the Devaswom to the property in question. The 3rd respondent without understanding the law in the proper perspective took the view in Ext.P14 order that the petitioner does not have right in the road in question thereby cancelling the settlement of it in favour of the Devaswom and denied compensation.”
“23. In Manharlal Shivlal Panchal and Others vs. Deputy Collector and Special Land Acquisition Officers and Others, 2022 SCC Online SC 1707 : 2023 (1) CCC 18, the Apex Court considered a question whether on account of the delay, which has sufficient justification, the claim for compensation could be rejected as barred by the law of limitation. Under Section 18(2) of the Land Acquisition Act, a claim has to be made within six months. ….. The facts of this case are different. But, the infraction of law occurred in the process of acquisition, especially that no notice as contemplated in Section 9(3) of the Land Acquisition Act was given to the petitioner, certainly justifies the delay in staking the claim.”
Revenue Records not confer title; It is for ‘fiscal purpose’; Civil Court Decides Title
Suraj Bhan av. Financial Commissioner, 2007(6) SCC 186, held as under:
“9. There is an additional reason as to why we need not interfere with that order under Art.136 of the Constitution. It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only ‘fiscal purpose’ i.e. payment of land revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Others, AIR 1994 SC 1653: 1993 KHC 989: 1993(4) SCC 403)”.
Title and Possession Decided by Civil Court
The title and possession are matters to be decided by a Civil Court.
Merely because a portion of the plaintiff’s property is shown in the resurvey records as with defendant’s survey number, it cannot lead to an inference that possession was with the defendant.
In Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.) held as under:
“The questions of law regarding conclusiveness of the re-survey conducted under the Survey Act is held against the appellants and in favour of the 1st respondent/plaintiff. Necessarily, the resurvey conducted under Section 13 has to yield to the adjudication by the competent Civil Court with respect to the identity based on title.”
In Title Declaration Suits, Survey Plan & Revenue Records are Less Significant
In Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380, it is observed as under:
“16. … When a suit for recovery of possession has been filed on the strength of title or in a suit for title declaration, title would prevail over revenue records and resurvey numbers. To put it differently, tax receipts, survey plan, resurvey plan or revenue records do not confer title to anybody, when there is title deed in relation to the said property in favour of the title holder. Therefore, in suits involving title dispute, title would prevail over revenue records, if it is found on measurement that the property covered by the title deed is identified properly justifying the declaration of title and recovery of possession on the strength of title. The said reliefs never be denied merely on the ground that in the revenue records/resurvey records, the said portion of the property is not shown as the property of the plaintiffs.
Survey Conclusive Proof – Boundaries Determined & Recorded Correctly
In Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418, it is observed as under:
“It is also trite that the decisions of the survey authorities under Chapter II of the Act (Kerala Survey and Boundaries Act) will not affect the right and title of the property acquired by a party as per a valid title deed. The right and title to property have to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed. The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly. (Vide: Cheriyanad Grama Panchayath v. The State of Kerala and Ors. (2019 (5) KHC 699, Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)], Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and Achama Alexander (Died. Lrs impleaded) and Others v. Assistant Director, Survey and Land Records and Others (2022 (2) KHC 131).”
The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly (when survey was made). This view is fortified by the decisions of the Kerala High Court in:
Kannan v. Kannan (1964 KLT 228),
The Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KerHC 699),
Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717);
Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.);
Ibrahim v. Saythumuhammed (2013 (4) KLT 435);
Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198);
Thomas v. Philip,2022(4) KerHC 451;
Elambilan Nani Amma v. Mulavana Antony, 2023-7 KHC 418.
Survey and Demarcation of lands raises Presumption of Possession
In Achuthan Unni v. Vally, 1962 KLT 1010, it is held as under:
“3. The survey and demarcation of lands by the State have a purpose; they are intended to identify the different pieces of land so as to regulate the rights of landholders. Rights in land will normally be presumed to be in terms of the survey divisions. When a person is admitted or found to be in possession of a survey division, the presumption is of such possession being extensive with the survey division concerned; and he is not to be constrained to prove his possession of every inch of it. It is then for the person who asserts the contrary to prove by positive evidence that a defined portion thereof is in his adverse possession and has been lost to the owner thereof. If the court finds the same, the Land Records will be corrected accordingly sub-dividing the original survey division so as to demarcate each holding with separate survey number.”
In Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, it is held as under:
5. Where the disputed land is a narrow strip, (in this case, it is of width ranging from two or three feet) at the verge of the plaintiff’s land adjoining the defendants’ property it would in most cases, be difficult to prove its actual possession as such. If the remaining portion of the plaintiff’s land is admitted or found to be in the plaintiff’s possession, the same must be held to extend to the border, unless there be clear evidence to the contrary. In other words, when a person is admitted or found to be in possession of his land identified by a Survey Number and the dispute by the adjoining landholder concerns only a narrow strip at the mutual boundary, the possession of the former will be presumed to be coextensive with the relative survey division and the burden will be on the party claiming the encroachment to prove his adverse possession thereof for over the statutory period (of 12 years). [See: Achuthan Unni v. Vally, 1962 KLJ 400].” (Quoted in: n Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)
Simply Because Resurvey Plan – No Title Conferred
In Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67 (N.K. Balakrishnan, J.), the argument of the appellant in the Second Appeal was laid down by the court as under:
“5. The learned counsel for the appellant submits that the appellant who was examined as PW1 had a definite case that her property extends up to the ‘chal’ and the ridge on the eastern side of the property and so the findings entered by the appellate court that the boundary of the respondents’ property should be along the ‘EF’ line, cannot be accepted at all. Simply because resurvey was conducted and a plan was drawn by the Survey Authorities, it cannot be said that the appellant’s property does not extend up to the dotted line shown by the Commissioner, which is actually the natural boundary of the property, it is argued.”
Dismissing the second appeal, it is held as under:
“12. If it is a case where large extent of property lying in a different survey number is claimed by the plaintiff based on a survey record alone, when actually it is in the possession of the defendant, the plaintiff has to seek recovery of possession of that large extent of property which is in the possession of the defendant. So far as the case on hand is concerned, it is only a very narrow strip of land lying along the boundary line. Hence, the presumption should be that the person, who has got title to the property and whose boundary extends up to the line stated above is in possessionof that narrow strip of land as well.”
Survey Authorities Determine Boundaries – Based on Possession
Kerala High Court held in Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) to the following effect:
The Survey and Boundaries Act, 1961 empowers the survey authorities to determine the boundaries of different sub-divisions.
It is predominantly based on possession.
As per the Act, the survey officer has the power to determine and record any boundary as undisputed in respect of which no dispute is brought to his notice.
Where a boundary is disputed, the survey officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.
Power of Survey Officer to determine disputed boundary
In Cheriyanad Grama Panchayat v. State of Kerala, 2019 (4) KLT 916, it is laid down as under:
Section 10 of the Act authorizes the survey officer to re-define the boundary lines of a particular survey already settled by old survey records.
Section 6 and 7 of the Act do not empower survey officer to re-define any boundary line of a particular survey which was already settled and finalised in an earlier survey (except for the purpose of Section 5 of the Act which deals with the situation wherein certain area was taken away by sea erosion or action of river.)
Section 4 of the Act also permits a survey of the land, but its purpose should be understood in relation to the necessity to have a re-survey, certainly, not for altering the earlier survey records, but for recording the further divisions of property out of a large extent within a particular survey.
In Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198, it is observed as under:
“24. A reading of Sec. 10 of the Act makes it candidly clear that the survey authority is only empowered to determine the disputes regarding the fixation of boundary between owners of land comprised in a particular survey division. The act of determination envisaged in Sec. 10 of the Act essentially draws a dividing line based on ownership within a particular survey or, in other words, Sec. 10 of the Act does not authorise the Survey Authority to redefine the boundary line of a particular survey already settled by old survey records. Section 10 of the Act does not empower the survey authority to change the ownership of a particular sub-division and make it part of another survey sub-division.”
Sec. 10 of the Kerala Survey and Boundaries Act reads as inder:
“10. Power of Survey Officer to determine and record a disputed boundary with reasons– (1) Where a boundary is disputed, the Survey Officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.
(2) Notice of every decision of the Survey Officer under sub-section (1) shall be given in the prescribed manner to the parties to the dispute and other registered holders of the lands, the boundaries of which may be affected by the decision.
A printed photograph does not fall within the category of a computer output contemplated by Section 63.
Saji Koduvath, Advocate, Kottayam.
Preface
A photograph may be received by the court as primary evidence (see Section 57, Explanation 3 of the Bharatiya Sakshya Adhiniyam, 2023).
Where the photograph itself is the original photographic record, it constitutes primary evidence. In the case of digital photographs, the Bharatiya Sakshya Adhiniyam expressly recognises electronically stored originals as primary evidence under Section 57, Explanation 4.
The evidentiary value and reliability of a photograph depend upon the facts and circumstances of each case. The weight to be attached to it is ultimately a matter for judicial appreciation.
A Section 63(4) Certificate Is Not an Essential Prerequisite for the Admission of a Printed Photograph
A printed photograph, though originating from a digital device, need not invariably be tendered as a “computer output” under Section 63 of the Bharatiya Sakshya Adhiniyam (see: Silent Witness Theory).
Where a photograph is proved under the ordinary law of evidence by a witness competent to identify and authenticate it, a certificate under Section 63(4) is unnecessary. (Proof by a sponsoring witness, see: Pictorial Testimony Theory.)
This conclusion is reinforced by Section 61** of the Bharatiya Sakshya Adhiniyam. Accordingly, where a printed photograph is otherwise admissible and is duly proved under the ordinary rules of evidence, its admissibility does not depend upon compliance with Section 63(4).
**Section 61 BSA expressly says nothing in the Adhiniyam shall deny admissibility of an electronic or digital record merely because it is in electronic form.
Special Nature of Photographs of a Scene or a Place (Not of a Document)
Photographs or videos, by their very nature, speak for themselves.
A contemporary photograph, if objected to by the opposite party, can easily confront it by producing another photograph. It is a peculiarity of photograph-evidence.
Printed Photographs: Section 63(4) Certificate Not Necessary
A printed photograph, though it may have originated from a digital device, is not necessarily tendered as an “electronic record” or “computer output” within the meaning of Section 63 of the Bharatiya Sakshya Adhiniyam, 2023. Where it is proved through a photograph under the ordinary rules of evidence by the photographer or another competent person having personal knowledge of the matters depicted, a certificate under Section 63(4) is not required.
This proposition is supported by the following considerations:
The law of evidence in India, from the inception of the Indian Evidence Act, 1872, recognised photographs as documentary evidence admissible under the ordinary rules relating to proof of documents. Neither the Information Technology Act, 2000, nor the Bharatiya Sakshya Adhiniyam, 2023, contains any express provision abolishing the long-established common law and statutory method of proving photographs through the testimony of a competent witness. Section 61, BSA underlines it (as shown below).
A printed photograph is itself a visible and perceptible piece of evidence. Unlike a film, video recording, or digital image file, it can be examined by the Court without the aid of any electronic device.
When a witness testifies, “This photograph correctly depicts the place as I saw it,” the witness is proving the accuracy of the scene portrayed and not the contents of any computer or digital device.
A printed photograph may be authenticated by any person who is familiar with the matters depicted therein. Its admissibility does not ordinarily depend upon the testimony of the photographer or the operator of the camera, but upon the evidence of a competent witness who can identify the scene or the persons shown.
Consequently, a witness acquainted with the subject matter of the photograph is ordinarily a more appropriate person to prove its authenticity than the operator of the device that captured the image. The former establishes the truthfulness of what is depicted; the latter ordinarily speaks only to the mechanics of its creation.
Section 63 principally regulates the proof of electronic records and computer outputs. Where a printed photograph is tendered and proved under the ordinary law governing photographs through the testimony of a competent witness, the party does not rely upon Section 63 as the source of its admissibility, and a certificate under Section 63(4) is therefore unnecessary.
Nothing in the Bharatiya Sakshya Adhiniyam indicates a legislative intention to abolish or supersede the long-established method of proving photographs through witness testimony. Such an intention cannot readily be inferred in the absence of express statutory language.
The purpose of Section 63(4) is to establish the reliability of a computer output. Where the correctness of a printed photograph is established by a witness with personal knowledge of the scene depicted, the evidentiary inquiry is directed to the truthfulness of the depiction rather than the reliability of the computer process. In such cases, the foundation for admissibility rests upon witness testimony and not upon a certificate under Section 63(4). The two inquiries are conceptually distinct.
A photograph does not fall under Section 63(2) – as shown below.
A photograph is not a “STATEMENT” under Section 63(4) – as shown below.
A printed photograph, as a physical document tendered in evidence, is not itself the kind of electronic record for which a “HASH VALUE” is generated under Section 63(4).
If No Objection, S. 63(4) Certificate Not Essential
Where the authenticity of a photograph is not objected to by the opposite party, or it is accepted by a witness,
(i) the production of a certificate under Section 63(4) of the Bharatiya Sakshya Adhiniyam, 2023, or
(ii) the examination of the photographer,
is NOT an indispensable requirement for proving a photograph.
Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551,
State Represented by the Inspector of Police, Chennai v. V. P. Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129.
A photograph or a video, by its very nature, speaks for itself.
Therefore, the courts in India can commence with a presumption as to the correctness of the photograph or video when its authenticity is prima facie ehed. In such an event, the onus shifts to the opposite party to rebut that presumption by placing material on record sufficient to dislodge the presumption.
Madhavnagar Cooperative Housing Society Limited v. Joint Registrar and Member, Board of Nominees, 2020-2 GLR 1437
Chairman, Tamil Nadu Electricity Board, Chennai v. Kogila, 2021-3 CTC 118; 2021-2 LW 28,
Jetunben v. State of Gujarat, 2017 2 GLR 1640 (video)
State Represented by the Inspector of Police, Chennai v. V. P. Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129.
In Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, the conclusion of the Speaker** on CDs received from TV News channels, that ‘there is no room for doubting the authenticityand accuracy of the electronic evidence produced by the petitioner’, was accepted by the Apex Court.
**Note: Speaker may not be bound by the provisions of the Evidence Act. Still our Apecx Court pointed out the nature of evidence of Video (CDs) received from TV News channels — ‘no room for doubting the authenticityand accuracy‘.
Courts Look into Photographs showing the nature and lie of the property
Courts look into photographs showing the nature and lie of the property.
Sachithanandan S. P. v. Vicar, St. Sebastian Church, 2018-4 KHC 233; 2018-3 KLT 840.
Annamma Mathew v. State of Kerala, 2015 0 Supreme(Ker) 577;
Ali Akbar v. Maranchery Grama Panchayath, 2013-4 KHC 730; 2013-4 KLT 600
“Men may lie but Photographs don’t”
In Anurag Sharma v. Manushi Sharma, 2016-10 AD(Del) 353; 2017 AIR(CC) 332; 2017 1 AIR (Del)(R) 55, it is said as under:
“As the adage goes: men may lie but circumstances don’t; similarly would be the statement: men may lie but photographs don’t. Anurag himself has filed photographs …. and these photographs tell their own story.”
Also see: Vikram Singh v. State of Haryana, 2003-1 RCR(Cri) 733-
Rajesh Khaitan v. State of WB, 1983 CrLJ 877.
Photographs as Evidence and Photo Identification
Photographs are received as evidence in the following cases –
Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic AIR 1999 SC 2562, 2000-1 SCC 138 (photograph used during the investigation for identification of the accused)
Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1 (“The photo identification and TIP are only aids in the investigation and do not form substantive evidence. The substantive evidence is the evidence in the court on oath.)
Rabindra Kumar Pal v. Republic of India, AIR 2011 SC 1436; 2011 2 SCC 490 (Quoted Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1)
Presumption: Section 119 of the BSA (Section 114 of the Evidence Act) allows the Court to ‘presume the existence of any fact ….. regard being had to the common course of natural events‘. Indian courts have consistently held that, in cases attracting a general presumption, a mere ‘bald denial’ of the contents of a document is inadequate to rebut such presumption.
If the photograph does not fall under the head ‘electronic evidence’ and ‘computer output’, Sections 61 to 63 have no relevance.
Section 61 of the Bharatiya Sakshya Adhiniyam
By virtue of Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, a copy of an electronic record (computer output) can be proved by any method permissible under the Act for proving a document. Section 61 reads as under:
“61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
The expression, “nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in evidence on the ground that it is an electronic or digital record,” contained in Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, is evidently intended to override the effect of the decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, which mandated the production of a certificate under Section 65B of the Evidence Act (now Section 63 of the BSA) as a condition precedent for admitting a computer output (copy) in evidence.
Photograph Evidence
Photographs are admissible in evidence as documents.
P. Gopalkrishnan @ Dileep v. State of Kerala, AIR 2020 SC 1; 2020-9 SCC 161
While considering a case on dowry death, the prosecution argued that a photograph was not admissible in evidence as neither the person who took the photograph nor its negative was produced in evidence. But, the court accepted the photograph as ‘no dispute was raised by the prosecution witnesses’.
Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551
A large number of photographs were marked and considered in this case. In para 525, it is stated – the witness “was confronted with photographs of the inscription” There were three sets of albums containing photographs taken by the State Archaeological Department pursuant to an order dated 10 January 1990 (Para 533). In para 538, the Court considered the evidence of a witness as to the “photographs placed within the structure in 1990”.
M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1 (Ayodhya case)
A Witness can be Confronted with a Photograph of the place of occurrence During Cross-Examination Without its Prior Production
Anu C.R. v. State of Kerala, 2025(7) KHC 150; 2025(6) KLT (SN) 2
The factum of photo identification (of an accused) by PW 2, as witnessed by the officer concerned, is a relevant and admissible piece of evidence.
Rabindra Kumar Pal v. Republic of India, 2011-2 SCC 490
Nothing prevented the appellant-State Government from producing the relevant photographs of the purported pucca pond existing at some spots.
State of Rajasthan v. Ultratech Cement Ltd. , 2022-12 Scale 606; 2022-13 SCR 1
A statement about the photograph made by any expert would not be admissible before examining the photographer.
Dr. Pankaj Kumudchandra Phadnis v. Union of India, (2018) 5 SCC 785
Photographs, tape-records of speeches [Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, (1976) 2 SCC 17] are documents.
Shamsher Singh Verma v. State of Haryana, 2016 15 SCC 485; Nilesh Dinkar Paradkar v. State of Maharashtra, 2011-4 SCC 143
Photo identification of an accused during the investigation, who was seen by the witness at the relevant time.
Umar Abdul Sakoor Sorathia v. Intelligence Officer, Narcotic AIR 1999 SC 2562, 2000-1 SCC 138; Rabindra Kumar Pal v. Republic of India, AIR 2011 SC 1436; 2011 2 SCC 490
Inventory, photographs and the list of samples certified by the Magistrate are admissible as primary evidence. It is a substitute for the production of physical evidence of seized contraband samples.
Nisar Ahmed Bhat, v. Union Territory of Jammu and Kashmir 2024 0 Supreme(J&K) 187
The tape record corroborated his testimony, as a photograph taken without the knowledge of the person photographed can become relevant and admissible so does a tape record of a conversation unnoticed by the talkers. A contemporaneous tape record of a relevant conversation is a relevant fact and is admissible under section 8 of the Evidence Act. It is res gestae.
K. K. Velusamy v. N. Palanisamy, 2011-11 SCC 275; R.M Malkani v. State of Maharastra, AIR 1973 SC 157; Yusaf Ali lsmail Nagri v. The State of Maharashtra, 1967- 3 S.C.R. 720
Tukaram S. Dighole v. Manikrao Shivaji Kokate, (2010) 4 SCC 329
Photo or video
Mohammed Rafiq v. Madhan, 2018-1 Mad LJ(CRI) 641; Moti Rabidas v. The State of Bihar, 2015-145 AIC 435; Vaman Narain Ghiya v. State of Rajasthan 2014-1 Raj Cri C 31; State of MP v. Shankarlal, ILR 2010 MP 717; P Rajagopal v. Inspector of police 2009-2 Mad LJ(Cri) 161; Santhosh Baccharam Patil v. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.
CD
Shamsher Singh Verma v. State of Haryana, (2016) 15 SCC 485
Photographs including photographs of tombstones and houses
Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
Video recordings
State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053
Audio and video
State of Maharashtra v. Praful B.Desai, AIR 2003 SC 2053; Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31; Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
Cassettes
Tukaram S.Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
Moving cinematograph
Senior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
Film
Rex v. Daye ((1908)2 K.B. 333, 340)
Floppies, CCTV footages,CDs, DVDs, Chips, Hard discs, Pen drives–
North West Airlines v. Union of India 2007 (214) ELT 178 (Bom.)
Section 63(2) of the BSA
Section 63(2) of the BSA reads as under:
“(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularlyto create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities.”
Photograph, CCTV Footage Etc. do NOT fall under Section 63(2) of the BSA
Requirements under Section 63(2) of the BSA:
1. 63(2)(a) – Device must be used by (any) person.
2. 63(2)(b) – Information must be regularly fed into the device in the ordinary course.
3. 63(2)(d) – Computer output must be derived from such information fed in the ordinary course.
Item
Section
Why not attracted
CCTV Footage
63(2)(a) (The device must have been ‘used regularlyforany activity regularly carried onby the personhaving lawful control‘).
Device was NOT used by (any) person.
Photograph, Trap-Video or CDs of speech Videograph of the scene of the crime,
63(2)(b)
NOT regularly fed into the device in the ordinary course.
63(2)(d)
NOT derived from such information fed in the ordinary course.
Modes of Proof of Photographs
A photograph or video (in proper cases, their secondary evidence) can be proved through the testimony of –
the photographer
admission by the opposite party or witness;
production of the original device containing the image.
They can also be proved through a ‘proper’ witness who is competent to depose by way of general evidence regarding the factual features depicted therein, such as the identity of the persons shown, the place, the time or the surrounding circumstances. They include –
one who actually witnessed the capturing of the photograph,
a person who saw the scene and
one who can identify the place, though not the persons seen in the photo (or the persons and not the place).
Pictorial Testimony Theory and Silent Witness Theory
Pictorial Testimony Theory – Photograph need not be proved (if admitted by the witness).
Silent Witness Theory – Photograph must be proved.
In Santhosh Madhavan @ Swami Amritha Chaithanya v. State (2014 Ker HC 31), these two theories governing the proof and authenticity of photographs were explained.
First, the pictorial testimony theory: It is applied when a photograph is used merely as an aid to a witness in explaining or illustrating his testimony—for example, a doctor explaining injuries with reference to a photograph, or identification of a deceased through a photograph. In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph, and the photographer need not be examined in court, since the photograph is admitted merely to aid a witness in explaining his testimony.
Secondly, under the silent witness theory or communication theory: It is invoked when the photograph itself constitutes substantive and probative evidence of what it depicts, speaking for itself without supporting oral testimony—for instance, an X-ray film showing a fracture, a photograph depicting the accused in a crowd holding a weapon (though the photographer did not notice him), or a photograph of the scene of occurrence of a crime. In such cases, the photographs must be proven.
Presumptions on Photographs and Videos
Section 119 of the Bharatiya Sakshya Adhiniyam (Section 114 of the Evidence Act) allows the Court to ‘presume the existence of any fact ….. regard being had to the common course of natural events‘.
A photograph or a video, by its very nature, speaks for itself. It is observed in Madhavnagar Cooperative Housing Society Limited v. Joint Registrar and Member, Board of Nominees, 2020-2 GLR 1437 (J.B. Pardiwala, J.), as under:
“The photograph of the building speaks for itself.”
In Jetunben v. State of Gujarat, 2017 2 GLR 1640, (J.B. Pardiwala, J.), said as under:
“The video speaks for itself.”
In Chairman, Tamil Nadu Electricity Board, Chennai v. Kogila, 2021-3 CTC 118; 2021-2 LW 28, said as under:
“The broken electrical pole on the ground with live wire seen in the photographs speak for itself.”
Therefore, the courts in India can commence with a presumption as to the correctness of the photograph or video when its authenticity is prima facie established. In such an event, the onus shifts to the opposite party to rebut that presumption by placing material on record sufficient to dislodge the presumption.
Invoking this general presumption, the courts in India have consistently held that ‘a mere bald denial of the contents of a video recording is insufficient‘; but, ‘there should be material to show that the video clippings are doctored or morphed’ (State Represented by the Inspector of Police, Chennai v. V. P. Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129).
Silent Witnesses Theory – Photograph /Video ‘Speaks for Itself‘
In State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court explained the “silent witness” theory, stating as under:
“115. We may also incidentally notice the developments in the law on video and photographic evidence in the West where the “silent witness” theory is deployed to admit video and photographic evidence. The theory proceeds on the footing that photographic and video evidence are “silent witnesses” which speak for themselves. They are substantive evidence of what they portray.”
The following two foreign decisions were specifically dealt with by the High Court:
(a) State of Nevada v. Archanian, [145 P 3d 1008 (2006)]: The Supreme Court of Nevada admitted the video evidence under the silent witness theory and held as under:
“There is no evidence suggesting that the composite videotape was inaccurate, that any relevant or exculpatory information had been deleted from it, or that the modifications made to it adversely affected or obscured the content.”
(b) Her Majesty v. Jaiyhi He, [2017 ONCJ 790,]: The Ontario Court of Justice in Canada opined to the following effect:
The party seeking to tender a video in evidence must show two things to meet the threshold test of admissibility: (i) The video is relevant, showing the crime scene or other evidence linked to the issues at trial; and (ii) the video is authentic — that it accurately represents the events depicted.
Circumstantial evidence be Used – No Particular Evidence or Class of Witness
In State Represented by the Inspector of Police, Chennai v. V. P. Pandi @ Attack Pandi, 2019 -1 LW(Cri) 421; 2019-1 LW(Cri) 481; 2019-2 MLJ(Cri) 129, the Madras High Court said further as under:
“Referring to the Alberta Court of Appeal’s decision in R. v. Bulldog (2015 ABCA 251), the Ontario Court (in Her Majesty v. Jaiyhi He, 2017 ONCJ 790), said: “Circumstantial evidence may be used to authenticate real evidence – Bulldog at para 35. There is no particular evidence or class of witness that must be called to authenticate a video, provided the whole of the evidence establishes that the video in question is substantially accurate and a fair depiction.”
“Can a digital video only be Authenticated by an Eyewitness”?
This was the second question raised in R. v. Bulldog (2015 ABCA 251). The question was whether a digital video can only be authenticated by an eyewitness or whether a member of any class of witnesses can provide evidence of authentication.
The answer of Alberta Court of Appeal (in R. v. Bulldog) was “No.”
It held as under:
“[20] [The appellants argue] that Nikolovski sets two preconditions to the admissibility of video recordings – specifically, proof that the video accurately depicts the facts, and that it has not been altered or changed. The appellants refer to the process of establishing these facts as ‘authentication,’ and we are content to adopt that term, since ‘authentication’ simply refers to the process of convincing the court that certain tangible evidence matches the claims made about it . . .
[21] The second proposition, which relies on R v Doughty, 2009 ABPC 8 (CanLII) at para 37 (citing Elliot Goldstein, Visual Evidence, A Practitioner’s Manual, Vol 1 (Thomson-Carswell, 2007) at 2-19 to 2-20), is that there is an exclusive list of classes of witnesses who can authenticate a video in a manner that meets these two putative Nikolovski preconditions: (1) the camera operator; (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw; (3) a person qualified to state that the representation is accurate; or (4) an expert witness.
[22] Based on these two propositions, the appellants argue that the Crown’s evidence in this case could not authenticate the DVD. They submit (but do not really argue) that the authenticating witness was Reddick, who did not create the DVD tendered, did not know who created it, did not know whether the person who did create it used or might have used options which changed the content of the source video footage, was not an expert in the software and in the format changes entailed in copying the DVD and, accordingly, could not give the expert evidence of the effect of format changes which the appellants say is necessary to authenticate the DVD: R v Penney, 2002 NFCA 15 (CanLII), 2002 NFCA 15 at para 24, 210 Nfld& PEIR 209.
[23] In short, the appellants say that, absent evidence from a particular class of qualified person verifying that the video recording had not been altered or changed in the course of undergoing various format changes, the DVD was inadmissible.
. . . . . .
[34] It will be recalled that the appellants say that, because Reddick does not fit into any of the four categories identified by Goldstein
[at para. 21 of the judgment and consisting of: (1) the camera operator; (2) an eye-witness present when the video is taken who can testify that the video accurately represents what he or she saw; (3) a person qualified to state that the representation is accurate; or (4) an expert witness.]
as persons capable of authenticating video evidence, it follows that the Crown could not authenticate the video recording. We assume that the appellants also maintain that none of the other Crown witnesses would fit into those categories, although we observe that Hodge would have fallen into Goldstein’s second category as an eyewitness, had he viewed the video in court and testified that it accurately depicted what he saw. In any event, these categories are not exhaustive in the sense that, if the Crown does not call one of these four kinds of witnesses, the video recording is inadmissible. Rather, other kinds of evidence or different combinations of witnesses may be employed to satisfy a court of the video recording’s substantial accuracy and fairness.”
Should there be Proof – Video not been Altered or Changed?
The appellants in R. v. Bulldog(Alberta Court of Appeal) challenged the authenticity and admissibility of the DVD. They relied on R. v. Nikolovski, [1996] 3 S.C.R. 1197. The Court considered whether the Crown was bound to prove that the video recording had not been altered or changed. The appellants argued that R. v. Nikolovski mandated a two-fold test (i) requiring proof that the video accurately depicted the facts and (ii) proof that it had not been altered or changed. The Alberta Court of Appeal disagreed. It held (paragraphs 26 to 33):
1. As long as other evidence satisfied the accuracy, no evidence regarding the presence or absence of alteration was necessary.
2. The mere fact of alteration did not automatically render a video recording inadmissible.
3. The Crown’s failure to establish that the DVD was not altered was not fatal as long as the Crown had proven that the DVD was a substantially accurate and fair representation of what it purported to show.
The Alberta Court of Appeal said it as under:
“[26] . . . the appellants say that Nikolovski creates a two-part test which must be met before admitting video evidence, requiring the Crown to show not only that the video recording accurately depicts the facts, but also that it has not been altered or changed. This is incorrect.
[27] It must first be borne in mind that Nikolovski was not a case about the admissibility of a video recording (which had been conceded), but rather about identity (specifically, whether a trier of fact could identify the accused beyond a reasonable doubt as the offender by relying solely upon that video recording). The critical passage from Nikolovski, para 28 upon which the appellants rely, is found under a heading discussing ‘Use That Can Be Made of Photographs or Videotapes,’ which clearly presupposes admissibility.
[28] Further, the passage itself fails to support the appellants’ contention. It reads as follows:
Once it is established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.
This statement does not state a necessary condition for admission, but rather a sufficient condition. It does not, even implicitly, preclude admission of video recordings under other circumstances. Indeed, where an alteration enhances a video recording, its accuracy might well be served by such an alteration: R v Jamieson, [2004] OTC 369 at paras 36-37, [2004] OJ No 1780 (QL) (SCJ).
[29] We do agree with the appellants, however, that in some cases Nikolovski has been taken as requiring the tendering party to show an absence of alteration or change: Penney; R v.MacNeil, 2008 QCCS 915 (CanLII) at para 11, [2008] QJ No 1784 (QL); R v Chevannes, 2011 ONCJ 754 (CanLII) at para 16, [2011] OJ No 5937; R v Ellard, 2004 BCSC 780 (CanLII) at para 11, [2004] BCJ No 2914. In Penney, for example, the Newfoundland and Labrador Court of Appeal (at para 17) cited Nikolovski as authority for the statement that ‘[e]vidence establishing that the video has not been altered or changed is a precondition to its admission as evidence.’ With respect, we do not read Nikolovski as stating so broad a proposition, and we see no principled reason to support it. Indeed, taken to its extreme, it could render almost any DVD left unattended next to a computer inadmissible . . .
[30] Other courts have taken a different view of Nikolovski, to the effect that a video recording may be admitted into evidence, even if it has been altered in some way, so long as it is shown to be a substantially accurate depiction of the event in question. In R v Brown, [1999] OTC 213, [1999] OJ No 4865 (CJ), where the Crown sought to tender at trial a security surveillance videotape and enhanced copies, the court stated (at para 3) that, when a videotape has been altered, the test for admissibility is: one of substantial accuracy . . . [T[he Crown must … prove on a balance of probabilities the substantial accuracy of the original tape and the enhancements of it to obtain the permission of the court to tender them in accordance with [Nikolovski] ….
[31] Similarly, in R v Crawford, 2013 BCSC 2402 (CanLII) at para 48, [2013] BCJ No 2879 (emphasis added), the court said that Nikolovski should be interpreted in a ‘purposive’ manner, such that a video recording’s admissibility is not precluded, even if ‘complete accuracy’ no longer subsists, so long as ‘the alteration of the recorded event is not so substantial as to be misleading’ or ‘if the image is distorted or otherwise changed in a material way.’ What matters, said the court in Crawford, is that the video recording ‘accurately and fairly presents he information that it is to convey.’ Other courts, including this Court, said much the same thing prior to Nikolovski . . .
[32] There is an important distinction between recordings (video or audio) and other forms of real evidence (such as a pistol or an article of clothing found at a crime scene) which supports a test of ‘substantial’ accuracy over the appellants’ preferred test of ‘not altered.’ It will be recalled that ‘authentication’ simply requires that the party tendering evidence establish (to the requisite standard of proof, which we discuss below) the claim(s) made about it. What authentication requires in any given instance therefore depends upon the claim(s) which the tendering party is making about the evidence. In the case of most real evidence, the claim is that the evidence is something – the pistol is a murder weapon, or the article of clothing is the victim’s shirt. Chain of custody, and absence of alteration will be important to establish in such cases. In the case of recordings, however, the claim will typically be not that it is something, but that it accurately represents something (a particular event). What matters with a recording, then, is not whether it was altered, but rather the degree of accuracy of its representation. So long as there is other evidence which satisfies the trier of fact of the requisite degree of accuracy, no evidence regarding the presence or absence of any change or alteration is necessary to sustain a finding of authentication.
[33] Put simply, the mere fact of alteration does not automatically render a video recording inadmissible. It follows that the Crown’s failure to establish that this video recording was not altered should not be fatal, so long as the Crown proves that it is a substantially accurate and fair representation of what it purports to show. All this is, of course, subject to the standard framework for admission, under which a video recording may be excluded on the basis of irrelevance (Penney), where its prejudicial effect exceeds its probative value (R v Veinot, 2011 NSCA 120 (CanLII) at paras 24-27, 311 NSR (2d) 267), or where there is reasonable doubt that the video identifying the accused is a fabrication.”
“Balance of probabilities“
In R v Penney, (2002) 163 CCC (3d) 329, the court considered the ‘falsification of evidence’ and pointed out that the members of a jury ‘can be expected to have, if not experience with, knowledge of the possibilities for manipulating the content of photographs and videotapes’, and concluded that the ‘standard by which the trial judge is to determine the question is on the balance of probabilities’
Bald Denials are Insufficient to Discredit the Authenticity of Video Footage
The Madras High Court, in this decision (State Represented by the Inspector of Police, Chennai v. V. P. Pandi), also observed as under:
“113. It is true that the cameraman can zoom or minimize an image. It is also true that trick photography is possible. In Suo Motu taken up (PIL) WP Chief Secretary to the Government of Tamil Nadu v. The Government of Tamil Nadu and others (WP 3335 etc. of 2009) decided on 29.10.2009, a Division Bench of this Court (F.M. Ibrahim Kalifulla and R. Banumathi, JJ) held that bald denials are insufficient to discredit the authenticity of video footage. In her lead judgment, Banumathi, J (as she then was) has opined as under:
‘349. That a bald denial of the contents of a videotape is not adequate to doubt its authenticity; there should be material to show that the video clippings are doctored or morphed’.
The Division Bench proceeded to look into the video tape as a corroborative piece of evidence and held as under:
‘350. The respondents have not disputed that the video clippings filed by the petitioners relate to the occurrence. Even though video clippings filed by the petitioners do not have the running time, we have watched the videos and looked into the photos as corroborative piece of evidence’.”
As shown above, in Jagjit Singh v. State of Haryana, (2006) 11 SCC 1, the conclusion of the Speaker on CDs received from TV News channels, that ‘there is no room for doubting the authenticityand accuracy of the electronic evidence produced by the petitioner’, was accepted by the Apex Court holding as under:
“The petitioners despite grant of opportunity had declined to watch the recorded interview. It is one thing to watch the interview, point out in what manner the recording was not genuine but instead of availing of that opportunity, the petitioners preferred to adopt the course of vague denial.”
In Umesh v. State of Karnataka, 2023-2 KarLJ 397, while dealing with a ‘trap case’, after laying down the importance of digital evidence, it is cautioned as under:
“Qualified and trained expert should test the samples. The report should contain the procedure adopted for testing the samples. The equipments used should be duly calibrated and updated periodically. The electronic device should be tested for editing and tampering in order to establish its genuineness and authenticity.
Digital evidence form be created for every memory card/chip used in the trap case containing the unique identification features of the memory chip/card used. The defence should be provided with a cloned copy or a mirror image of the electronic device.”
Distinct Evidentiary Position of a Section 63(4) Certificate
Once the computer output (copy) accompanies the Section 63(4) certificate, the computer output becomes admissible in evidence, and it is not mandatoryto examine the CCTV operator or the person who snapped the photograph, for the purpose of its admission.
See: Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473,
The Person Who Signed Section 63/65B Certificate Need Not Be Examined: Having regard to the special features of the photographs and videos (that is, visual depictions of facts), even if the Section 63(4) certificate is not that given either by the plaintiff or by the defendant, but by another, the photograph or video can be marked in evidence through the plaintiff or the defendant.
Unless the authenticity or correctness of the certificate issued under Section 63(4) is specifically disputed, oral evidence has no role to play in proving (for the purpose of marking) that the computer output is the exact copy of the (original) electronic record. Therefore, the photographer who issued the certificate under Section 63(4) need not be examined if the correctness of the certificate is not specifically disputed.
In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC, our Apex Court further affirmed as under:
“50. … However, in cases where either a defective certificate is given, or in cases where such certificate has been demanded and is not given by the concerned person, the Judge conducting the trial must summon the person/persons referred to in Section 65B(4) of the Evidence Act, and require that such certificate be given by such person/persons.”
Presumption on Computer Output (copy) Admitted under Sec. 63
A computer output (copy) of a CCTV footage or video, or of a photograph captured on a mobile phone, can be admitted in evidence in place of the original — if it is produced with a certificate under Section 63(4) of the BSA.
Note: Section 63(1), BSA says about admissibility of copy — “Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”
The opening words in the Section, “Notwithstanding anything contained in this Act,” are directed only to the statutory fiction that a computer output shall be deemed to be an electronic record (i.e., the original document). The non obstante clause is confined to this deeming provision. It should not be construed as overriding every provision of the Act relating to the proof or admissibility of electronic evidence. Its function is to support the legal fiction created by the Section, not to govern the admissibility of electronic evidence generally.
Section 63 does not Constitute an Exhaustive Code. Why?
Where the conditions prescribed in Section 63(1), read with Section 63(2), are not satisfied, or the deeming provisions cannot be invoked, the consequence is only that the benefit of the statutory deeming fiction (admissible without further proof or production of the original) cannot be invoked.
The inability to prove a computer output, invoking the statutory deeming provision, does not render the computer output inadmissible or incapable of proof.
It can still be proved by any other lawful mode of proof recognised by the Bharatiya Sakshya Adhiniyam, 2023, if the facts of the case permit.
Accordingly, Section 63 does not constitute an exhaustive code governing the proof of computer outputs or electronic evidence. It merely provides one statutory method of proof by conferring the benefit of a legal fiction upon a computer output that satisfies the requirements of the section.
Photograph does not fall under “STATEMENT” u/S. 63(4)
Section 63(4) is attracted only when “it is desired to give a STATEMENT“. It reads as under:
“(4) In any proceeding where it is desired to give a STATEMENT*** in evidence by virtue of this section, a CERTIFICATE ….. “
Note:
*** 1. Not – “desired to give” a ‘computer output’
2. “STATEMENT” according to BSA is – expressed in ‘oral evidence’.
Sections: 2(1)(e) – Evidence is statements of witnesses
15 -19 – Admission is statement of witness
26 – Statement of a dead person
28 – Entries in bokks of acctount
30 – Statements in maps, plans,
31 – Statements in Acts Notification
32 – Statements in law books,
33 – If longer statemnts
79 – Statement of accused,
Also See Sections: 89, 94, 95, 125, 147, 148, 158, 160, 161.
The Supreme Court decision in Arjun PanditraoKhotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, established a strict interpretation. It laid down (before promulgation of Adhiniyam, 2023) that the proof by the certificate under Section 65B (Section 63, Adhiniyam) was mandatory for admitting a computer output (copy) in evidence. It held – “The drill of Section 65A and 65B alone be followed when it comes to admissibility of information contained in electronic records.”
Therefore, even in cases where formal proof of the digital photos or videos is dispensed with (for the opposite party admits it), a certificate under Section 65B(4) was necessary.
However, Section 61 of the Adhiniyam made a drastic legislative change to the deliberation presented by Arjun PanditraoKhotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.
Admission and Proof of Computer Output (copy): Independent Matters
Section 63(1), BSA says about admissibility of copy alone — the computer output (copy) “shall be deemed to be also a document“.
(i) Admitting a copy of a computer output (such as a copy of a statement of accounts) in evidence (with a certificate under Section 63), and (ii) the formal proof thereof at the time of trial, are two distinct and independent matters.
On production of such evidence before the court, the court can presume the truth of the contents in certain cases (e.g., a photograph) under Section 119 BSA (Section 114 EA).
The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.
The Burden of Impeaching the Certificate is upon the Party who Disputes it
The presumption arising under Section 63—by which a computer output is deemed to be a document—is rebuttable and does not render the contents of the electronic record conclusive.
If such a challenge on the certificate is overruled by the court, it can draw a presumption as to the genuineness and authenticity of the photographs or videos contained in the computer output (copies).
S. 63 deals with Admissibility of computer output or copy, and not Proof
The questions as to substantive proof — whether the computer output or copy is relevant, and how it should be proved — are not determined by Section 63 of the BSA. They are to be established independently, as in the case of any other class of documents.
However, the court can draw presumptions as to the genuineness and authenticity of such photographs or videos, as stated earlier.
Once Copy Admitted by S. 63 Certificate, Oral Evidence has No Place in Marking
Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, is an authority on the following matters –
(i) The certificate under Section 65B(4) is a condition precedent to admissibility of the computer output (copy);
(ii) The certificate is meant to replace the oral evidence of the device-handler or operator.
(iii) Once the certificate is produced, oral evidence has no place (for the purpose of marking it).
However, the person who issued the certificate (operator) has to be examined if:
the authenticity or correctness of the certificate is specifically disputed;
allegations of fabrication, manipulation, or false certification are raised;
the issuer’s control over the device/system is seriously questioned; or
the court needs clarification to assess probative value, not admissibility.
Photographer Need Not be examined (In pictorial testimony theory)
When a photograph is admitted merely to aid a witness in explaining his testimony, it need not be proved formally.
Photograph Must Have Been Proved(In silent witness theory)
As stated above, in silent witness theorycases, the photographs must be proved. No doubt, in the peculiar nature of a particular case, the examination of the photographer may not be insisted upon, and the photograph could be proved by another ‘proper’ witness. Formal proof of a photograph may not be necessary where the opposite party admits its genuineness or correctness.
Examination of the Photographer may not be insisted (In silent witness theory)
As stated above, in silent witness theory cases, photographs or videos are required to be proved. However, such proof need not necessarily be by way of formal proof through the examination of the photographer or the person who captured the image. Besides admission of the other side as regards the authenticity, the photographs or videos may instead be proved through a ‘proper’ witness who is competent to depose by way of general evidence regarding the factual features depicted therein, such as the identity of the persons shown, the place, the time, or the surrounding circumstances.
Note: 1. Formal proof of a photograph or copy of a video and the requirement of the certificate under Section 63(4) are two distinct and independent matters.
2. A photograph or a copy of video, admitted in evidence on the strength of a certificate under Section 63(4), stands on a distinct footing (in contradistinction to a statement-of-account) by reason of the statutory presumptions that the court can invoke, it being direct visual depictions of facts.
3. The certificate under Section 63(4) is accepted unless its correctness is specifically challenged. The oral evidence of the person who issued the certificate becomes relevant (for the purpose of admitting the document) only where the certificate itself is specifically and successfully challenged by the party who disputes its authenticity or correctness.
4. Therefore, the court is entitled to infer that a photograph or video, once duly admitted in evidence, correctly represents the scene or object as it existed at the time of recording. It is doctrinally recognised as the ‘silent witness’ theory – the document “speaks for itself”.
5. Accordingly, once a photograph or copy of a video is duly admitted in evidence, the court can act upon it (usually as a corroborative piece of evidence), on the basis of general evidence relating to the identity of the persons depicted, the place, the time, and the surrounding circumstances, without insisting upon any further primary or direct proof of the facts.
6. The presumption attached to a photograph or a video admitted in evidence being one rebuttable, the opposite party can rebut it by placing appropriate evidence to show that the photograph or video does not correctly represent the scene, object, or occurrence as it existed at the relevant point of time, or that the factual position had materially changed.
Pictorial Testimony Theory: No Enacted Law; Only Judicial Exposition
The pictorial testimony theory rests on judicial exposition rather than statutory codification. It finds only indirect support, in principle, from Section 162 (Refreshing Memory), BSA. Section 162 is to be understood as one not exhaustive in its operation.
Section 162 of the BSA reads as under:
“Refreshing memory: (1) A witness may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned, or so soon afterwards that the Court considers it likely that the transaction was at that time fresh in his memory:
Provided that the witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if when he read it, he knew it to be correct.
(2) Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the Court, refer to a copy of such document:
Provided that the Court be satisfied that there is sufficient reason for the non-production of the original:
Provided further that an expert may refresh his memory by reference to professional treatises.”
Pictorial Testimony
The Kerala High Court (KT Thomas, J.), in Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification – Pictorial Testimony – so far as the witness was concerned.
The Court held as under:
“PW I identified the person in M.O.9 photo as the person who was killed. There is no doubt that M.O.9 is the photograph of Chacko, the film representative. It was contended that since P. W.I himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it would be possible to identify him later.”
Here, the photo had been proved through competent witnesses – under the Silent Witness Theory – though the photographer was not examined.
A Witness be Confronted with a Photograph Without its Prior Production?
The Kerala High Court held in Anu C.R v. State of Kerala, 2025(7) KHC 150; 2025(6) KLT (SN) 2 (G. Girish, J.), 16 October, 2025, as under:
“i) The learned Additional Sessions Judge is directed to permit the counsel for the accused to confront PW2 by showing the photographof the interior of the building which he had leased out to the accused (Annexure-A3) and to ask whether it is the photograph of the interior portion of the building which he had leased out to the accused.
ii) If the witness gives an affirmative answer to the above question, the defence counsel shall be permitted to ask further questions related to it, with due regard to its relevancy, and to get the said document marked as an exhibit on the part of the accused, subject to production of that document immediately thereafter, following the formalities prescribed in that regard.
iii) If the witness denied the above suggestion, or says that he is not able to say anything on the basis of the above document, the counsel for the accused need not be permitted to proceed with further questions on that document.
iv) The learned Additional Sessions Judge is directed to permit the counsel for the defence to confront PW2 by showing the site plan prepared by the Village Officer and ask whether the aforesaid document was the plan of the building which he had rented out to the accused.
v) If the witness gives an affirmative answer to the above question, then the defence counsel should be permitted to ask further questions on that site plan, with due regard to its relevancy, and also to admit the document as an exhibit of the prosecution, marked at the instance of the accused.
vi) If the witness denies the suggestion, or says that he is not able to state anything about it, then the defence counsel need not be permitted to ask further questions on that document to that witness.”
Objections Raised Against Marking of Photograph and Site Plan
The objections raised against the marking of the photograph and site plan were the following:
“The aforesaid photograph is not pertaining to the witness, or made by the witness, and it is not falling within the purview of Section 145 of the Evidence Act”.
“The site planprepared by the Village Officer, which formed part of the prosecution records, was also refused by the learned Additional Sessions Judge stating the reason that the aforesaid site plan is not prepared by that witness.”
Law Relied on to Take View that the Sessions Judge Went Wrong
The Three Judge Bench of the Supreme Court in Anees v. State Government of NCT (DY Chandrachud, CJI., J.B. Pardiwala, Manoj Misra, JJ.), AIR 2024 SC 2297; 2024-6 SCR 164; 2024 KHC 6256, held as under:
“The object of the cross – examination is to impeach the accuracy, credibility and general value of the evidence given in – chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross – examining party.”
Legal Principles Attracted to the Kerala High Court View
The following legal principle lend support to the view taken by the Kerala High Court:
Section 141 BSA [Section 136 Evidence Act]
Section 141(2) and (3) of the Bharatiya Sakshya Adhiniyam, 2023 [Sec. 136 (2) and (3) Evidence Act] reads as under:
“(2) If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
(3) If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”
If the court permitted the cross examiner to proceed (without raising objection) it can be presumed that the the party has ‘undertaken’ to give proof of such fact, “and the Court is satisfied with such undertaking”.
Saji Koduvath Associates 