Author Archives: sajikoduvath

The Law and Principles of Mandatory Injunction

Jojy George Koduvath.

Classification of Injunctions

1. On the basis of the Nature of the Order of the Court.

  • (a) Prohibitory Injunction, and  
  • (b) Mandatory Injunction

2. On the basis of Duration of the Period of the Order.

  • (a) Perpetual Injunction, and
  • (b) Temporary Injunction

Relevant provisions of the Specific Relief Act

 S.2 (a)“Obligation““Obligation” includes every duty enforceable by law
S.4Specific relief Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws: Sp. relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.
S.34 Declaration  Discretion of court as to declaration of status or right. Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:  Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. Explanation.-A trustee of property is a “person interested to deny” a title adverse to the title of someone who is not inexistence, and for whom, if in existence, he would be a trustee.
    S.36 Preventive relief how granted.- Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.
  S.38  Perpetual injunction  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.
S.39Mandatory injunctionsMandatory injunctions: When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.
S.41Injunction when refused  Injunction when refused: An injunction cannot be granted- (a) to restrain any person from prosecuting a judicial proceeding …..; (b) to restrain instituting …  any proceeding in a court not sub-ordinate … (c) to restrain any person from applying to any legislative body (d) to restrain – proceedings in a criminal matter; (e) prevent breach of contract performance of which not be specifically enforced; (f) to prevent – an act of which it is not reasonably clear that it will be a nuisance; (g) to prevent a continuing breach in which the plaintiff has acquiesced; (h) when equally efficacious relief can certainly be obtained …. except in case of breach of trust; [(ha) if it would impede or delay the progress or completion of infrastructure project or interfere with the continued provision of relevant facility …..] (i) when the conduct of the plaintiff or his agents …. disentitle him to be the assistance of the court; (j) when the plaintiff has no personal interest in the matter.

Temporary Injunction Granted when- Prima Facie Case and Balance of Convenience; Also to Preserve Status Quo

In Seema Arshad Zaheer v. Municipal Corporation of Greater Mumbai, 2006 5 SCC 282, it is pointed out by our Apex Court that in cases relating to orders for demolition of buildings, irreparable loss may occur if the structure is demolished even before trial, and an opportunity to establish by evidence that the structure was authorized and not illegal. In such cases, where prima facie case is made out, the balance of convenience automatically tilts in favour of plaintiff and a temporary injunction will be issued to preserve status quo. But where the plaintiffs do not make out a prima facie case for grant of an injunction and the documents produced clearly show that the structures are unauthorized, the court may not grant a temporary injunction merely on the ground of sympathy or hardship. To grant a temporary injunction, where the structure is clearly unauthorized and the final order passed by the Commissioner (of the Corporation) after considering the entire material directing demolition, is not shown to suffer from any infirmity, would be to encourage and perpetuate an illegality.

In Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867 : (1990) 2 SCC 117, our Apex Court also held that he relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining.

Temporary Mandatory Injunction and Ad Interim Mandatory Injunction

Temporary Mandatory Injunction is granted rarely; because, it may tantamount to granting the final relief itself.

Grant of Ad Interim Mandatory Injunction (ex-parte, till the appearance of opposite party) is still restricted, as it is given only in very exceptional cases and on strong circumstance to protect the rights and interest of the parties.

Following are the Two Landmark Decisions on this subject

  • (1) Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867
  • (2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697

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

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

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

(2) Deoraj v. State of Maharashtra, AIR 2004 SC 1975, (2004) 4 SCC 697, is the decision in the matter of elections in a Co-operative Society where the Apex Court moved forward and stated that Interim Mandatory Injunction can be granted if the court is satisfied that refusal of injunction would tantamount to dismissal of the main petition itself and there would be nothing left to be allowed when the final pronouncement  comes.

1. Dorab Cawasji Warden v Coomi Sorab Warden, AIR  1990 SC 867 (Doctrine of higher standard)

In this decision it is held as under:

  • “16. The relief of interlocutory mandatory injunctions are thus granted generally to preserve or restore the status quo of the last non-contested status which preceded the pending controversy until the final hearing when full relief may be granted or to compel the undoing of those acts that have been illegally done or the restoration of that which was wrongfully taken from the party complaining. But since the granting of such an injunction to a party who fails or would fail to establish his right at the trial may cause great injustice or irreparable harm to the party against whom it was granted or alternatively not granting of it to a party who succeeds or would succeed may equally cause great injustice or irreparable harm, courts have evolved certain guidelines. Generally stated these guidelines are:
    • (1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
    • (2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
    • (3) The balance of convenience is in favour of the one seeking such relief.
  • 17. Being essentially an equitable relief the grant or refusal of an interlocutory mandatory injunction shall ultimately rest in the sound judicial discretion of the court to be exercised in the light of the facts and circumstances in each case. Though the above guidelines are neither exhaustive nor complete or absolute rules, and there may be exceptional circumstances needing action, applying them as prerequisite for the grant or refusal of such injunctions would be a sound exercise of a judicial discretion.”

The Apex Court had relied on English decisions as under:

  • ” 12. In Evans Marshall & Co. Ltd. v. Bertola SA (1973) 1 All ER 992 the Court of Appeal held that:
    • “Although the failure of a plaintiff to show that he had a reasonable prospect of obtaining a permanent injunction at the trial was a factor which would normally weigh heavily against the grant of an interlocutory injunction, it was not a factor which, as a matter or law, precluded its grant;”.
  • The case law on the subject was fully considered in the latest judgment in Films Rover International Ltd. v. Cannon Film Sales Ltd. (1986) 3 All ER 772, Hoffmann, J. observed in that case:
    • “But I think it is important in this area to distinguish between fundamental principles and what are sometimes described as guidelines, i.e. useful generalisations about the way to deal with the normal run of cases falling within a particular category. The principal dilemma about the grant of interlocutory injunctions, whether prohibitory or mandatory, is that there is by definition a risk that the court may make the wrong decision, in the sense of granting an injunction to a party who fails to establish his right at the trial (or Would fail if there was a trial) or alternatively, in failing to grant an injunction to a party who succeeds (or would succeed) at trial. A fundamental principle is therefore that the court should take whichever course appears to carry the lower risk of injustice if it should turn out to have been wrong in the sense I have described. The guidelines for the grant of both kinds of interlocutory injunctions are derived from this principle.”
  • Again at page 781 the learned Judge observed :
    • “The question of substance is whether the granting of the injunction would carry that higher risk of injustice which is normally associated with the grant of a mandatory injunction. The second point is that in cases in which there can be no dispute about the use of the term mandatory to describe the injunction, the same question of substance will determine whether the case is normal and therefore within the guideline or exceptional and therefore requiring special treatment. If it appears to the court that, exceptionally, the case is one in which withholding a mandatory interlocutory injunction would be in fact carry a greater risk of injustice than granting it even though the court does not feel a high degree of assurance, about the plaintiffs chances of establishing his right, there cannot be any rational basis for withholding the injunction.”
  • and concluded that :
    • “These considerations lead me to conclude that the Court of Appeal in. Locabail International Finance Ltd. v. Agroexport (1986) 1 All ER 901 at p. 906, (1986) 1 WLR 657 at p. 664 was not intending to fetter the courts discretion by laying down any rules which would have the effect of limiting the flexibility of the remedy, to quote Lord Diplock in the Cyanamid case (1975) 1 All ER 504 at p. 510, (1975) AC 396 at p 407. Just as the Cyanamid guidelines for prohibitory injunctions which require a plaintiff to show no more than an arguable case recognise the existence of exceptions in which more is required (compare Cayne v. Global Natural Resources plc (1884) 1 All ER 225), so the guideline approved for mandatory injunctions in Locabail recognises that there may be cases in which less is sufficient.
  • On the test to be applied in granting mandatory injunctions on interlocutory applications in 24 Halsburys Laws of England (4th Edn.) para 948 it is stated:
    • “A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied , or if the defendant attempts to steal a march on the plaintiff, such as where, on receipt of notice that an injunction is about to be applied for, the defendant hurries on the work in respect of which complaint is made so that when he receives notice of an interim injunction it is completed, a mandatory injunction will be granted on an interlocutory application.”

2. Deoraj v. State of Maharashtra, AIR 2004 SC 1975

Deoraj v. State of Maharashtra, AIR 2004 SC 1975 : (2004) 4 SCC 697, pertained to elections in a Co-operative Society. The Apex Court observed in this case that if interim orders were not granted, by the time the matter came up for final hearing, there might be nothing left to grant a relief.  It is pointed out that grant of interim mandatory relief may be justified where withholding of interim relief may tantamount to dismissal of the main petition itself (in spite of a prima facie case). Therefore, it was observed that if there was a very strong prima facie case, although the interim mandatory order amounted to granting final relief itself, considering the balance of convenience and irreparable injury, the Court could allow the interim relief. At the same time, the Court cautioned that this order should be passed in rare cases in compelling circumstances, alone. The Apex Court held as under:

  • “12. Situations emerge where the granting of an interim relief would tantamount to granting the final relief itself. And then there may be converse cases where withholding of an interim relief would tantamount to dismissal of the main petition itself; for, by the time the main matter comes up for hearing there would be nothing left to be allowed as relief to the petitioner though all the findings may be in his favour. In such cases the availability of a very strong prima facie case of a standard much higher than just prima facie case, the considerations of balance of convenience and irreparable injury forcefully tilting the balance of the case totally in favour of the applicant may persuade the court to grant an interim relief though it amounts to granting the final relief itself. Of course, such would be rare and exceptional cases. The court would grant such an interim relief only if satisfied that withholding of it would prick the conscience of the court and do violence to the sense of justice, resulting in injustice being perpetuated throughout the hearing, and at the end the court would not be able to vindicate the cause of justice. Obviously such would be rare cases accompanied by compelling circumstances, where the injury complained of is immediate and pressing and would cause extreme hardship. The conduct of the parties shall also have to be seen and the court may put the parties on such terms as may be prudent.”

Other Decisions

In State of Kerala v. Union of India, 01 Apr 2024, AIR 2024 SC 2649; 2024-7 SCC 183, it is held as under:

  1. “At this juncture, it is necessary to distinguish the standard of scrutiny in applying these parameters for ‘prohibitory’ and ‘mandatory’ injunctions. Prohibitory injunctions vary from mandatory injunctions in terms of the nature of relief that is sought. While the former seeks to restrain the defendant from doing something, the latter compels the defendant to take a positive step, State of Haryana v. State of Punjab, (2004) 12 SCC 673, para 37-38. For instance, hypothetically, in the context of a construction dispute, if a plaintiff seeks to prevent the defendant from demolishing a structure, it would be deemed a prohibitory injunction. Whereas, if a plaintiff wants to compel the defendant to demolish a structure, then this would amount to mandatory injunction.
  2. In that sense, prohibitory injunctions are forward-looking, such that they seek to restrict a future course of action. Conversely, mandatory injunctions are backward-looking, because they require the defendant to take an active step and undo the past action, Shepherd Homes Ltd. v. Sandham, [1970] 3 WLR 348. Since mandatory injunctions require the defendant to take a positive action instead of merely being restrained from performing an act, they carry a graver risk of prejudice for the defendant if the final outcome subsequently turns out to be in its favour. For instance, in the example above, preventing the demolition of a structure for the time being cannot be perceived to be on the same pedestal as mandating the demolition of a construction. While the former may still be undone, i.e., the defendant may still be compelled to demolish the structure should the plaintiff succeeds in his final claim, undoing the latter, i.e., rebuilding the construction, would cause graver injustice. The Courts are, therefore, relatively more cautious in granting mandatory injunction as compared to prohibitory injunction and thus, require the plaintiff to establish a stronger case, Id., Dorab Cawasji Warden v. Coomi Sorab Warden, (1990) 2 SCC 117, para 16.”

It is pointed out in Samir Narain Bhojwani v. Aurora Properties and Investments, 2018-8 MLJ 227: 2018-10 Scale 33, that the principle expounded in Dorab Cawasji Warden v. Coomi Sorab Warden, AIR  1990 SC 867, has been consistently followed by the Apex Court in decisions including Metro Marins v. Bonus Watch Co. (P) Ltd, (2004) 7 SCC 478, Kishore Kumar Khaitan v.  Praveen Kumar Singh, (2006) 3 SCC 312, and Purshottam Vishandas Raheja v. Shrichand Vishandas Raheja, (2011) 6 SCC 73).

In Dr Syed Afzal v. Rubina Syed Faizuddin, 2020-1 CivCC 412; 2020-1 RCR (Civ) 185, the Supreme Court has observed that though the court has power to grant interim mandatory injunctions,  it did not mean that the same could be granted even without giving opportunity of hearing to the opposite side, especially when the main appeal was pending for the six years. The Supreme Court observed in Hammad Ahmed v. Abdul Majeed, 2019 – 14 SCC 1, that ad interim mandatory injunction is granted only ‘on strong circumstance so that to protect the rights and interest of the parties’.

Injunction is a possessory remedy.

Courts protect settled possession (Rame Gowda v. M. Varadappa Naidu, 2004-1 SCC 769). Injunction is a possessory remedy. (See: Ladies Corner, Bangalore vs State of Karnataka, ILR 1987 KAR 1710, 1987 (1) KarLJ 402. Patil Exhibitors (Pvt.) Ltd. vs The Corporation of The City (M Venikatachaliah, J.) : AIR 1986 Kant 194, ILR 1985 KAR 3700, 1985 (2) KarLJ 533. Referred to in Chetak Constructions Vs. Om Prakash, AIR 2003 MP 145. )

Courts grant injunction without seeking declaration when title is clear, simple and straight-forward; and when no serious denial or cloud on title (not any apparent defect):   Anathula Sudhakar v. Buchi Reddi: AIR 2008 SC 2033.

But, an injunction cannot be issued against a true owner or title holder and in favour of a trespasser or a person in unlawful possession. See: Padhiyar Prahladji Chenaji vs Maniben Jagmalbhai: 2022 SCC OnLine SC 258.

Settled Possession and Established Possession

In A. Subramanian v. R. Pannerselvam, AIR 2021 SC 821, the Supreme Court held that even a trespasser, who is in established possession of the property could obtain injunction. But, it was cautioned that the matter would be different, if the plaintiff himself elaborated in the plaint about title dispute and fails to make a prayer for declaration of title along with injunction relief.

In Poona Ram v. Moti Ram, AIR 2019 SC 813, it was pointed out in a case where there was no document to prove settled possession that ‘merely on doubtful material and cursory evidence, it cannot be held that the plaintiff was ever in possession of the property, and that too in settled possession’. It held further as under:

  • “13. The crux of the matter is that a person who asserts possessory title over a particular property will have to show that he is under settled or established possession of the said property. But merely stray or intermittent acts of trespass do not give such a right against the true owner. Settled possession means such possession over the property which has existed for a sufficiently long period of time, and has been acquiesced to by the true owner. A casual act of possession does not have the effect of interrupting the possession of the rightful owner. A stray act of trespass, or a possession which has not matured into settled possession, can be obstructed or removed by the true owner even by using necessary force. Settled possession must be (i) effective,(ii) undisturbed, and (iii) to the knowledge of the owner or without any attempt at concealment by the trespasser. There cannot be a straitjacket formula to determine settled possession. Occupation of a property by a person as an agent or a servant acting at the instance of the owner will not amount to actual legal possession. The possession should contain an element of animus possidendi. The nature of possession of the trespasser is to be decided based on the facts and circumstances of each case.”

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

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

‘Possession is good against all but the True Owner’

This principle is declared in Parry v. Clissold, (1907) AC 73. Though the Supreme Court accepted this principle in Nair Service Society Ltd. vs. K.C. Alexander and others, AIR 1968 SC 1165, it was with a clarification. It reads as under:

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

When Declaration is Needed for grant of Injunction

See Blog: Declaration and Injunction

  1. As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v.  Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405)
  2. When serious denial or cloud on title (or right): Anathula Sudhakar v. P Buchi Reddy AIR 2008 SC 2033.
  3. Asserted title or civil right is not clear, simple and straight-forward; or, not well-established (lawful possession). (Eg. inchoate rights like title on adverse possession).
  4. Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033; Eg. Legitimacy of a child; Validity of Marriage: AIR 2018 SC 334;2013-3 KLJ 411; 2018-4 KLT 870; 2018-3 KLT 664;
  5. Termination of service on illegality: AIR 1951 Mad 870. Qted. in 1989 ILR (Kar) 3320; 2008 4 All LR 39. See also: AIR 1958 SC 886: Q. in 2016 2 SCC 779.
  6. Complicated questions of title: Mt. Azia v. Sukhai Biswas, AIR 1970 Pat 136; Government of AP v. Thummala Krishna Rao, (1982) 2 SCC 134; State of Rajasthan v. Smt.Padmavati Devi, JT 1995 (5) S.C. 481 .) Eg. Decree, instrument or contract stands as an insurmountable obstacle – though Plaintiff not a party : Md. Noorul Hoda V. Bibi Raifunnisa : (1996) 7 SCC 767
  7. Make clear what is doubtful – as to legal character and title. ILR 1970-2 (Del) 433: Eg. Suit by trespasser claiming adverse possession: Darshan Kumari v. Kaushalya Devi: 1990 JKLR 208; 1991 KashLJ 1 (R.P. Sethi, J) for dispelling cloud: AIR 1953 (Gau) 162.

Mandatory Injunction Sought For Instead One For Possession

If possession is lost, the plaintiff has to seek recovery; and mandatory injunction would not be sufficient. Court fee is also different for recovery. In Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857, our Apex Court observed as under:

  • “7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind at-tempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.”

When Injunction granted without declaration

  • When title or civil right is well established (or clear, simple and straight-forward).
  • When title is clear and simple, the court may venture a decision on the issue of title, even though the suit is for a mere injunction. But where the issue of title involves complicated or complex questions of fact and law, the court should not decide the issue.
  • Persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration. (Anathula: 2008 SC 2033)
            1Title: clear,simple and straight-forward; or settled right (lawful possession)Well established possession No Substantial questions of fact and law exists (2017 -7 MLJ 627; 2005-4 MLJ 258): Unnikrishnan VS Ponnu Ammal: 1999 1 KLT 298: AIR 1999 Ker 405.No serious denial or cloud(not any apparent defect) on title (or right):   Anathula: AIR 2008 SC 2033. (Such as settled or lawful possession: Anathula: AIR 2008 SC 2033; infringement of trade mark or copyright: 2004-3 SCC 90). Void acts:2000 SC 1099; 2009-4 KLT 840; (2002) 9 SCC 28; AIR 1977 SC 1718; 2013 SC 1226. Fraud on character of a document (not contents): Prem singh Vs. Birbal: (2006) 5 SCC 353
2Particular instances specified in Sec. 38 (2) & (3) of the Sp. Rlf. Act
1. Breach of Contractual obligations(including Bylaw provisions).
2. Trustee invades plaintiff’s right.  
3. No standard for ascertaining damages.
4. Compensation in money would not be adequate relief.
5. Necessary to prevent multiplicity of judicial proceedings.
3Fiduciary (attached to trust) obligation: 41(h).
4No lis (no dispute for defendant): 2010-168 DLT 132
5Facts judicially noticeable: Evd. Act, S. 57
6Law confers a right; or, Right arises under an Act. (Eg. with expression “shall be void”):(2015)7 SCC 601; 2003 SC 4102 Sec. 74 Contract Act: while resisting a claim of return of advance or to support forfeiture of earnest money, the defendant can resist it without a counter claim. In Kailash Nath Associates Vs. Delhi Development Authority (2015) 4 SCC 136, it is held: “The Section applies whether a person is a plaintiff or a defendant in a suit.”
7Established custom/customary-rights. Village pathway, Marumakkathayam
8Constitutional right: Art. 19, 21, 300A etc.
9Estoppel against defendant S. 115, 116 (tenant), 117 (licencee) Evd. Act
10Acquiescence against defendant
11Already declared (in earlier civil case).

Cloud – Explained in Anathula – Para 12

A cloud is raised when some apparent defect in his title or some prima facie right of a third party. Not a cloud, if trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff’s title.  (It should be serious cloud:  Kurella Naga Druva Yudaya Bhaskara Rao v. Galla Jani Kamma, (2008) 15 SCC 150: (q. in Muddasani Venkata Narsaiah v. Muddasani Sarojana: AIR 2016 SC 2250)

When declaration refused  (S. 34 Proviso)           

  • 1. Further relief possible and not sought for (S. 34 Proviso). Where relief of partition is to be sought for, it should be prayed.
  • 2. Where declaration is a vehicle to launch the weapon of injunction, or recovery – if injunction or recovery itself cannot be granted (or, if granted ineffective: Brutum-fulmen applies)

When declaration given without further relief:

  1. No further relief possible on legal character/status or title.
  2. Pecuniary rights (S. 34 is limited to legal character and right to property): AIR 1971 MP 65

No decree for recovery unless ‘present right to the possession’

While considering the question whether a worshipper can file a suit for recovery, it is held by our Apex Court, in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) 2020-1 SCC 1, that no decree for recovery of possession can be made in such a suit unless the worshipper has the ‘present right to the possession’. But it is pointed out that in such situations, a worshipper must be permitted to sue as next friend of the deity, sue on behalf of the idol itself – directly exercising the deity’s right to sue.  

Ayodhya Case – Proceeded on the principle: ‘The court is the protector of all charities’.

[See Blog: M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes]

It is held in M Siddiq Vs. Mahanth Suresh Das (Ayodhya Case) as under:

  • When a Shebait is negligent in its duties or takes actions that are hostile to the deity or improperly alienated trust property or refuses to act for the benefit of the idol or where the Shebait’s actions are prejudicial to the interest of the idol, it becomes necessary to confer on a next friend the right to bring an action in law against the Shebait; and a worshipper has an ad hoc power of representation to protect the interest of the idol.
  • The court can craft any number of reliefs, including the framing of a scheme. The question of relief is fundamentally contextual and must be framed by the court in light of the parties before it and the circumstances of each case.

It is clear that the our Apex Court has rendered the above edicts adopting the view that ‘the court is the protector of all charities’.

Declaration on ‘Legal Character’ & Anathula Sudhakar

See Blog: Declaration and Injunction

Sec. 34 refers to declaration of status (legal character) or right.  Anathula Sudhakar refers to denial/cloud in property rights alone; and not status (legal character).  

The same principle can be brought in ‘status’ (legal character)also. It is held in  AIR 1995 Ori 59; Quoted in: 2013 3 ILR(Ker) 259; 2013 3 KLJ 411; 2013-3 KLT(SN) 60.

Declaration is given when cloud hovering the on (or denial of) ‘Legal Character’ also.

  • Eg. Legitimacy of a child; Validity of Marriage: AIR 2018 SC 334;2013-3 KLJ 411; 2018-4 KLT 870; 2018-3 KLT 664;
  • Termination of service on illegality: AIR 1951 Mad 870. Qted. in 1989 ILR (Kar) 3320; 2008 4 All LR 39. See also: AIR 1958 SC 886: Q. in 2016 2 SCC 779.

Declaration sought only as an ancillary relief – limitation

(Declaration under Sec. 34 is not exhaustive.)

A suit for declaration is governed by Article 58 of the Limitation Act and the period of limitation is three years. But it is not applicable for declaration sought only as an ancillary relief.

In S. Krishnamma v. TS Viswajith, 2009 (4) KLT 840, it is observed that when a declaration regarding the void character of a document is sought for, the period of limitation for the suit would not be the period provided for declaration. The consequential relief sought for is to be treated as main relief for governing the period of limitation. (See Mrs. Indira Bhalchandran Gokhale  v. Union of India -AIR 1990 Bom 98). Therefore, declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.

Locus for Plaintiff in Infraction of a Municipal Building Regulation

A neighbour who is affected by an illegal construction, or a construction in infraction of a Municipal regulation, will have the locus and can maintain a suit for perpetual injunction. The Kerala High Court, in Saina v. Konderi, AIR 1984 Ker 170, turned down the argument that the matters concerning violation of the Municipal Rules are entirely the look-out of the local authority. It was observed that unless, by express words or by necessary implication he is debarred (Sec. 9 CPC) from doing so, civil court would have jurisdiction if there was violation of Building Rules. Finally, it is held that the law recognises a citizen’s right to institute a suit with a view to ensure effective implementation of the Municipal regulations, such as the Buildings Rules, even in the absence of a specific personal injury to the person suing. The High Court quoted Lord Wright in (1868) 4 Ex. 43 where it was said: “If you have an infringement of a legal right there is a right of action without actual damage being proved….  Where you have an interference with a legal right, the law presumes damage.”

Relying on the Kerala decision, it is observed in Sindhu Education Society v. Municipal Corporation of City of Ulhasnagar, AIR 2001 Bom 145 and in Fatima w/o Caetano Joao v. Village Panchayat of Merces, AIR 2000 Bom 444, it was observed that the citizens will have the right to enforce Rules through Court if the Municipal Corporation fails to perform its duty and that courts in India has the duty to see that the law is obeyed and not violated.

(See also: Babulal Shivlal Upadhye v. Yadav Atmaram Joshi, 1994-2 Bom CR 583; 1994 2 MahLR 869; 1994 1 MhLJ 256; D.  Thomas v. N.  Thomas1999 2 MLJ 260; Musstt Anjira Khatoon Hazarika v. Tapan Kumar Das: 2015 1 GauLR 133.)

In K. Ramdas Shenoy v. Chief Officer, Town Municipal Council, Udipi, AIR 1974 SC 2177, the Apex Court held as follows:

  • “An illegal construction of a cinema building materially affects the right to of enjoyment of the property by persons residing in the residential area. The Municipal Authorities owe a duty and obligation under the statute to see that the residential areas is not spoilt by unauthorized construction. The scheme is for the benefit of the residents of the locality. The Municipality acts in aid of the scheme. The rights of the residents in the area are invaded by an illegal construction of a cinema building. It has to be remembered that a scheme in residential area means planned orderliness in accordance with the requirements of the residents. If the scheme is nullified by arbitrary acts in excess and derogation of the powers of the Municipality the courts will quash orders passed by Municipalities in such cases.”

Andhra Pradesh High Court in Bhagwan Das v. Harish ChetwalIt held as under, as appears from the reported judgment, Sarada Bai v. Shakuntala Bai AIR 1993 AP 20 t:

  • “The pronouncement of the Supreme Court in K.R. Shenoy v. Udipi Municipality emboldens us to take a view at variance with the one expressed by a Division Bench of this Court in Kamalamma v. Subba Rao and so hold that an individual, be he a neighbour or one of a class of persons where the infraction of a right is involved and complained of, is certainly clothed with a right to invoke the jurisdiction of a Civil Court not only to enforce the obligations and duties was on the concerned authorities, but also subject the individual or class of individuals to conform to the obligations of the statute.
  • If that be so, it presents no difficulty in answering one of the questions raised in this case, viz., whether it would be competent for the neighbour, namely, the petitioners herein to enforce the obligation cast on the Municipal Corporation to remove the structures constructed in contravention of the statutory provisions; and to seek a direction against an individual, plaintiff herein to conform to the obligation laid down in Chapter XII of the Act and to demolish any construction made in contravention thereof, either by way of a civil proceeding or seeking mandamus under Article 226 of the Constitution. The answer is quite apparent and it is in the affirmative.”

.

You find in this cluster

  1. Order II, Rule 2 CPC – Not to Vex Defendants Twice for the Same Cause of Action
  2. Notary Attested Power-of-Attorney is Sufficient for Registration of a Deed
  3. Sec. 91 CPC and Suits Against Wrongful Acts
  4. Vesting of Property in Trusts
  5. Clubs and Societies, Bye Laws Fundamental
  6. The Law and Principles of Mandatory Injunction
  7. Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.
  8. Unstamped & Unregistered Documents and Collateral Purpose
  9. Pleadings Should be Specific; Why?
  10. How to Contradict a Witness under Sec. 145, Evidence Act
  11. Rules on Burden of Proof & Adverse Inference
  12. Presumptions on Documents and Truth of its Contents
  13. Best Evidence Rule in Indian Law
  14. Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
  15. Village Pathways and Right to Bury are not Easements.
  16. Sec. 65B,  Evidence Act: Certificate for Computer Output
  17. Legal Personality of Trustees and Office Bearers of Societies
  18. Interrogatories: When Court Allows, When Rejects?
  19. Can a Party to Suit Examine Opposite Party, as of Right?
  20. ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
  21. Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
  22. Incidents of Trust in Clubs and Societies.
  23. Management of Societies and Clubs, And Powers of General Body and Governing Body
  24. How to Sue Societies, Clubs and Companies
  25. Is Permission of Court Mandatory when a Power of Attorney Holder Files Suit
  26. Notary-Attested Documents: Presumption, Rebuttable
  27. Judicial & Legislative Activism in India: Principles and Instances
  28. Maratha Backward Community Reservation Case: Supreme Court Fixed Upper Limit at 50%.
  29. Separation Of Powers: Who Wins the Race – Legislature, Executive or Judiciary ?
  30. Custom & Customary Easements in Indian Law
  31. What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
  32. Constructive Res Judicata and Ineffectual Res Judicata
  33. Is Decree in a Representative Suit (OI R8 CPC) Enforceable Against Persons Not Eo-Nomine Parties?
  34. Admissibility of Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
  35. Court Interference in Election Process
  36. Significance of Scientific Evidence in Judicial Process
  37. ‘Is Ban on Muslim Women to Enter Mosques, Unconstitutional’ Stands Tagged-on with Sabarimala Revision-Reference Matter
  38. Is Excommunication of Parsi Women for Marrying Outside, Unconstitutional
  39. Article 370: Is There Little Chance for Supreme Court Interference
  40. Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
  41. M. Siddiq Vs. Mahant Suresh Das –Pragmatic Verdict on Ayodhya Disputes
  42. Vesting of Property in Societies and Clubs
  43. Juristic Personality of Societies and Clubs
  44. Societies and Branches
  45. Effect of Registration of Societies and Incorporation of Clubs
  46. Clubs and Societies: General Features
  47. Indian Law of Trusts Does Not Accept Salmond, as to Dual Ownership
  48. Adverse Possession: An Evolving Concept
  49. What is Trust in Indian Law?
  50. Kesavananda Bharati Case: Effect and Outcome – Never Ending Controversy
  51. CAA Challenge: Divergent Views
  52. Secularism & Freedom of Religion in Indian Panorama
  53. Relevancy, Admissibility and Proof of Documents
  54. Forfeiture of Earnest Money and Reasonable Compensation
  55. Declaration and Injunction
  56. Can Legislature Overpower Court Decisions by an Enactment?

Natural Justice – Not an Unruly Horse, Cannot be Placed in a Straight-Jacket & Not a Judicial Cure-all.

Sea Change on Natural Justice– on Application of Doctrine of Prejudice, after Maneka Gandhi Vs. Union of India, AIR 1978 SC 597: Affirmed in State of UP v. Sudhir Kumar Singh, 2020 SCC OnLine SC 847. Now, the law requires – prejudice ‘as a matter of fact‘; i.e. there must be ‘real prejudice‘.

Jojy George Koduvath.

Introduction.

Formerly, only two rules of rules of Natural Justice were recognised:

  1. “Nemo debetesse judex in propria causa sua” which means, no one should be a judge in his own case because it leads to rule of biases.
  2. Audi alteram partem, which means, no one should be condemned unheard. This rule   cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

Subsequently, more subsidiary rules were recognised, such as:

  • In good faith, without bias and not arbitrarily or unreasonably.
  • Right to reasons or ‘speaking order’.

Later on, the following edicts are also pointed out as requirements of complying natural justice:

  • ‘Justice should not only be done but seen to be done’,
  • ‘A charge should be framed against the delinquent to face his case’.

PART – I

Sea Change in Natural Justice – Doctrine of Prejudice & Straight Jacket Formula

In early times, the legal concept uniformly followed was that ‘denial of natural justice itself causes prejudice’. It is pointed out by the Bombay High Court in Gulab Babusaheb Bargiri Vs. Executive Engineer, Maharashtra State Electricity Board (2000)[1]  that, after Maneka Gandhi Vs. Union of India (1978),[2] the principle of natural justice has undergone a sea change. Now, the law requires – prejudice exist as a matter of fact.

In PD Agrawal v. State Bank of India (2006)[3] the Apex Court observed that the principles of natural justice ‘has in recent time‘ undergone a sea change. Relying on State Bank of Patiala Vs. SK Sharma (1996)[4] and Rajendra Singh Vs. State of MP (1996)[5] the Court held that principle of law was that some real prejudice must have been caused to the complainant. 

It is held in PD Agrawal v. State Bank of India as under:

  • “The principles of natural justice cannot be put in a straight jacket formula. It must be seen in circumstantial flexibility. It has separate facets. It has in recent time also undergone a sea change.
  • … In Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia, AIR 2005 SC 4217. a Three Judge Bench of this Court opined:
    • “We are aware of the normal rule that a person must have a fair trial and a fair appeal and he cannot be asked to be satisfied with an unfair trial and a fair appeal. We are also conscious of the general principle that pre-decisional hearing is better and should always be preferred to post-decisional hearing. We are further aware that it has been stated that apart from Laws of Men, Laws of God also observe the rule of audi alteram partem. It has been stated that the first hearing in human history was given in the Garden of Eden. God did not pass sentence upon Adam and Eve before giving an opportunity to show cause as to why they had eaten the forbidden fruit. (See R. v. University of Cambridge) But we are also aware that the principles of natural justice are not rigid or immutable and hence they cannot be imprisoned in a straitjacket. They must yield to and change with exigencies of situations. They must be confined within their limits and cannot be allowed to run wild. It has been stated: ‘To do a great right after all, it is permissible sometimes to do a little wrong.’ [Per Mukharji, C.J. in Charan Lal Sahu v. Union of India (Bhopal Gas Disaster), [(1990) 1 SCC 613: AIR 1990 SC 1480] SCC p. 705, para 124.] While interpreting legal provisions, a court of law cannot be unmindful of the hard realities of life. In our opinion, the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than ‘precedential’.
    • …Decision of this Court in S.L. Kapoor vs. Jagmohan & Ors. [(1980) 4 SCC 379], whereupon Mr. Rao placed strong reliance to contend that non-observance of principle of natural justice itself causes prejudice or the same should not be read “as it causes difficulty of prejudice”, cannot be said to be applicable in the instant case. The principles of natural justice, as noticed hereinbefore, has undergone a sea change.
    • In view of the decision of this Court in State Bank of Patiala & Ors. vs. S.K. Sharma [(1996) 3 SCC 364] and Rajendra Singh vs. State of M.P. [(1996) 5 SCC 460], the principle of law is that some real prejudice must have been caused to the complainant. The Court has shifted from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principal doctrine of audi alterem partem, a clear distinction has been laid down between the cases where there was no hearing at all and the cases where there was mere technical infringement of the principal. The Court applies the principles of natural justice having regard to the fact situation obtaining in each case. It is not applied in a vacuum without reference to the relevant facts and circumstances of the case. It is no unruly horse. It cannot be put in a straight jacket formula. [See Viveka Nand Sethi vs. Chairman, J. & K. Bank Ltd. & Ots. (2005) 5 SCC 337 and State of U.P. vs. Neeraj Awasthi & Ors. JT 2006 (1) SC 19. See also Mohd. Sartaj vs. State of U.P. (2006) 1 SCALE 265.]”

Analysing previous judgments it is observed in State of UP Vs. Sudhir Kumar Singh, 2020 SCC OnLine SC 847, that the following are the tests to determine the non-observance of natural justice:

  1. “Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.
  2. Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.
  3. No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.
  4. In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.
  5. The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice.”(Quoted in Chairman, State Bank of India v. MJ James, (2022) 2 SCC 301).

The Supreme Court, in Uma Nath Pandey Vs. State of UP, (2009) 12 SCC 40, noted as under:

  • “7. The crucial question that remains to be adjudicated is whether principles of natural justice have been violated and if so, to what extent any prejudice has been caused, it may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, ‘useless formality theory’ can be pressed into service.”

EARLIER VIEW: Order in breach of Natural Justice is a Nullity

In AR Antulay Vs. RS Nayak (1988)[6] a seven Judge Bench of our Apex Court has held that when an order has been passed in violation of a fundamental right or in breach of the principles of natural justice, the same would be nullity.[7]

The Supreme Court, in SL Kapur Vs. Jagmohan (1981),[8]  held as under:

  • “In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference if natural justice had been observed. The non-observance of natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary. It ill comes from a person who has denied justice that the person who has been denied justice is not prejudiced.”

The principles of law as to natural justice, to be applied in an action for termination of an employee, are applied in the matter of expulsion of a member of a society also.

Natural Justice: Audi Alteram Partem – Requirements

Following are the three important principles of law as to enquiry:

  • (i)   Charge or show cause notice[9]
  • (ii)  Proper evidence.[10]
  • (iii) Natural justice should be complied with.[11] and
  • (iv) Findings with reasons.

Granting opportunity for cross examination is integral part of natural justice.[12]

Rule that is Contrary to the ‘Rules of Natural Justice’, Void

While considering Section 2 (b) of the Karnataka Societies Registration Act (similar provision to Sec. 15 of the Societies Registration Act), the High Court of Karnataka (RP Sethi, G. Patri Basavana Goud JJ.), in Lingappa Police Patil Vs. Registrar of Societies,[13] it is held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause for not making the payment within a specified period appeared ‘to be very harsh’; and that ‘confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed’ to be incorporated in the bye laws.  The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act. It is on the principle that rules of natural justice require that that no person can be condemned unheard.[14]

PART – II

Domestic Tribunal – Jurisdiction of the Court is of a very limited

In Ujjal Talukdar Vs. Netai Chand Koley[15] following principle has been laid down by the Calcutta High Court:

“A domestic tribunal cannot do anything it likes, throwing everything to the winds. But the jurisdiction of the Court is of a very limited character. Generally speaking, the court can set aside the decision of a domestic tribunal on one of the three basic considerations set out below:

  • A. When the tribunal oversteps the limits of its jurisdiction.
  • B. When it violates the principles of natural justice.
  • C. When it acts dishonestly,[16] actuated by bias, bad faith and the like.”

Natural Justice: Order in violation bad or not depended on facts of each case

Whether an order in violation of natural justice is bad or not is depended on facts and circumstances of each case.[17] Its essence is good consciousness in a given situation; nothing more but nothing less.[18]

In Keshav Mills Co Ltd. Vs. Union of India[19]our Supreme Court held:

  • “We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of Natural Justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of Natural Justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably.”

Court decide whether necessary for a just decision

In Mohinder Singh Gill Vs. Election Commissioner[20] our Apex Court expounded the purport of natural justice following the principles laid down in AK Kraipak Vs. Union of India[21] as under:

  • “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years.  In the past it was thought that it included just two rules namely:  (1) no one shall be a judge in his own case (Nemo Judex In Causa Sua) and (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem). Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice. Till very recently it was the opinion of the courts that unless the authority concerned was required by the law under which it functioned to act judicially there was no room for the application of the rules of natural justice. The validity of that limitation is now questioned. If the purpose of the rules of natural justice is to prevent miscarriage of justice one fails to see why those rules should be made inapplicable to administrative enquiries. Often times it is not easy to draw the line that demarcates administrative enquiries from quasi-judicial enquiries. Enquiries which were considered administrative at one time are now being considered as quasi-judicial in character. Arriving at a just decision is the aim of both quasi-judicial enquiries as well as administrative enquiries. An unjust decision in an administrative enquiry may have more far reaching effect than a decision in a quasi-judicial enquiry. As observed by this Court in Suresh Koshy George Vs. University of Kerala (AIR 1969 SC 198) the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.”

Natural Justice: Common sense justice

The Supreme Court, in Uma Nath PandeyVs. State of UP (2009),[22] further explained the of principles of natural justice as follows:

  • “7. The crucial question that remains to be adjudicated is whether principles of natural justice have been violated and if so, to what extent any prejudice has been caused, it may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, ‘useless formality theory’ can be pressed into service.
  • 8. Natural justice is another name for common sense justice. Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form.
  • 9. The expressions ‘natural justice’ and ‘legal justice do not present a watertight classification, It is the substance of justice which is to be secured by both, and whenever legal justice fails to achieve this solemn purpose, natural justice is called in aid of legal justice. Natural justice relieves legal justice from unnecessary technicality, grammatical pedantry or logical prevarication. It supplies the omissions of a formulated law. As Lord Buckmaster said, no form or procedure should ever be permitted to exclude the presentation of a litigant’s defense.
  • 10. The adherence to principles of natural justice as recognised by all civilised States is of supreme importance when a quasi-judicial body embarks on determining disputes between the parties, or any administrative action involving civil consequences; is in issue. These principles are well settled. The first and foremost principle is what is commonly known as audialterampartem rule. It says that no one should be condemned unheard. Notice is the first limb of this principle. It must be precise and unambiguous. It should apprise the party determinatively of the case he has to meet. Time given for the purpose should be adequate so as to enable him to make his representation. In the absence of a notice of the kind and such reasonable opportunity, the order passed becomes wholly vitiated. Thus, it is but essential that a party should be put on notice of the case before any adverse order is passed against him. This is one of the most important principles of natural justice. It is after all an approved rule of fair play. The concept has gained significance and shades with time. When the historic document was made at Runnymede in 1215, the first statutory recognition of this principle found its way into the ‘Magna Carta’. The classic exposition of Sir Edward Coke of natural justice requires to ‘vocate, interrogate and adjudicate’. In the celebrated case of Cooper Vs. Wandsworth Board of Works the principle was thus stated: ‘(E)ven God himself did not pass sentence upon Adam before he was called upon to make his defense. “Adam” (says God), “Where art thou? Hast thou not eaten of, the tree whereof I commanded thee that thou shouldest not eat?”

Natural justice has been variously defined. It is another name for common sense justice. It is held in Canara Bank v. Debasis Das:[27]

  • “Rules of natural justice are not codified canons. But they are principles ingrained into the conscience of man. Natural justice is the administration of justice in a common sense liberal way. Justice is based substantially on natural ideals and human values. The administration of justice is to be freed from the narrow and restricted considerations which are usually associated with a formulated law involving linguistic technicalities and grammatical niceties. It is the substance of justice which has to determine its form. Principles of natural justice are those rules which have been laid down by the courts as being the minimum protection of the rights of the individual against the arbitrary procedure that may be adopted by a judicial, quasi-judicial and administrative authority while making an order affecting those rights. These rules are intended to prevent such authority from doing injustice.”[28]

In this decision it is also held:

  • “Even an administrative order which involves civil consequences[29] must be consistent with the rules of natural justice. This Court has elaborated the expression `civil consequence’ by observing that it encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations and non-pecuniary damages. This Court has further stated, that, in its wide umbrella comes everything that affects a citizen in civil life.”[30]

Violation of the Principles of Natural Justice

Our Apex Court, in Maharashtra State Board of Secondary and Higher Secondary Education Vs. K S Gandhi[23] observed that the applicability of the principles of natural justice is not a rule of thumb or a straight jacket formula as an abstract proposition of law; and that whether omission to record reasons by a domestic tribunal vitiates the impugned order or is in violation of the principles of natural justice depends on the facts of the case, nature of the inquiry and the effect of the order/decision on the rights of the person and attendant circumstances. In this decision, following the ratio in Ghazanfar Rashid v. Board, H.S. and I. Edn., U.P[24]  Full Bench, it is observed that, though it is open to the High Court to interfere with the order of the quasi judicial authority if it is not supported by any evidence or if the order as passed in contravention of the statutory provisions of the law or in violation of the principles of natural justice, the court has no jurisdiction to quash the order merely on the ground that the evidence available on record is insufficient or inadequate or on the ground that different view could possibly be taken on the evidence available on the record. Court should be slow to interfere with the decisions of domestic tribunal. Authority’s appreciation of the problem must be respected.

In All Saints High School Hyderabad Vs. Government of Andhra Pradesh[25] our Apex Court held pointed out that the decision of a domestic tribunal can be interfered with if there is want of good faith or when there is victimisation or when the management has been guilty of basic error or violation of principles of natural justice or when the material findings are completely baseless or perverse.[26]

Natural Justice: Strict Compliance

Removal of a member or an office bearer of a society on the basis of proved misconduct[31] is a quasi-judicial proceeding in nature. Therefore, the principles of natural justice[32] are required to be given full play and strict compliance should be ensured, even in the absence of any provision providing for the same. Principles of natural justice require a fair opportunity of defense to such member or office bearer.

In Board of High School and Intermediate Education, UP Vs. Ghanshyam Das Gupta[33] the Supreme Court observed as follows:

  • “If a statutory authority has power to do any act which will prejudicially affect the subject then, although there are not two parties apart from the authority and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will yet be a quasi-judicial act provided the authority is required by the Statute to act judicially. The statute is not likely to provide in so many words that the authority passing the order is required to act judicially; that can only be inferred from the express provisions of the statute in the first instance in each case and no one circumstance alone will be determinative of the question whether the authority set up by the statute has the duty to act judicially or not. The inference whether the authority acting under a statute where it is silent has the duty to act judicially will depend on the express provisions of the statute read along with the nature of the rights affected, the manner of the disposal provided the objective criterion if any to be adopted, the effect of the decision on the person affected and other indicia afforded by the statute. A duty to act judicially may arise in widely different circumstances which it will be impossible and indeed inadvisable to attempt to define exhaustively.”[34]

Any breach of a bye-law would not result into automatic cessation of membership but the procedure for removal or expulsion from membership would be required to be followed even in case of breach of bye-laws of a society.[35]

When a committee of an association continues to exercise powers even after cessation of their period of office opportunity of being heard should be given to the members of the committee concerned.[36] It is well settled that principles of natural justice must be read into the byelaws and the statute, unless there is a clear directive to the contrary.[37]

PART – III

Natural Justice: Additional Rules on Bias:

  1. Quasi-judicial actions must be in good faith, without bias
  2. Right to get reasons in administrative actions

Our Apex Court expounds the purport and extent of principles of natural justice in A.K. Kraipak Vs. Union of India[38] as under:

  • “The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but supplement it. The concept of natural justice has undergone a great deal of change in recent years. In the past it was thought that it included just two rules namely:
  • (1) no one shall be a judge in his own case (Nemo debetesse judex propria causa) and
  • (2) no decision shall be given against a party without affording him a reasonable hearing (Audi alteram partem).
  • Very soon thereafter a third rule was envisaged and that is that quasi-judicial enquiries must be held in good faith, without bias and not arbitrarily or unreasonably. But in the course of years many more subsidiary rules came to be added to the rules of natural justice.
  • Right to reasons is an indispensable part of a sound system of judicial review. Under our Constitution an administrative decision is subject to judicial review if it affects the right of a citizen, it is therefore desirable that reasons should be stated.”

The rule against bias contained in three maxims.

  • 1. No man shall be a judge in his own cause
  • 2. Justice should not only be done, but manifestly and undoubtedly be seen to done.
  • 3. Judges like Caesar’s wife should be above suspicion.

Principles of Law as to Enquiry

It is observed in Sur Enamel and Stamping Works Pvt. Ltd. Vs. Their Workmen:[39]

“… An enquiry cannot be said to have been properly held unless,

  • the employee proceeded against has been informed clearly of the charges leveled against him,
  • the witnesses are examined ­ ordinarily in the presence of the employee ­ in respect of the charges, 
  • the employee is given a fair opportunity to cross-examine witnesses,
    • he is given a fair opportunity to examine witnesses including himself in his defense if he so wishes on any relevant matter, and
  • the inquiry officer records his findings with reasons for the same in his report.”

In Chamoli District Co-Operative Bank Ltd. Vs. Raghunath Singh Rana (2016)[40] our Apex Court laid down that the following principles would emerge as to the enquiry against a workman: 

  • “(i) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities.
  • (ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer. 
  •  (iii) In an enquiry, the employer/department should take steps first to lead evidence against the workman/delinquent charged and give an opportunity to him to cross-examine the witnesses of the employer. Only thereafter, the workman/delinquent be asked whether he wants to lead any evidence and asked to give any explanation about the evidence led against him. 
  • (iv) On receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/punishing authority to supply a copy of the enquiry report and all connected materials relied on by the enquiry officer to enable him to offer his views, if any.”

In this case (Chamoli District Co-operative Bank Ltd. Vs. Raghunath Singh Rana) our Apex Court referred to the following decisions:

  • (i)   Sur Enamel and Stamping Works Pvt. Ltd. Vs.Their Workmen.[41]
  • (ii) State Bank of India Vs. R.K. Jain.[42]  It is held: “……As emphasised by this Court in Ananda Bazar PatrikaVs.. Its Workmen, (1964) 3 SCR 601, the termination of an employee’s service must be preceded by a proper domestic inquiry held in accordance with the rules of natural justice. Therefore, it is evident that if the inquiry is vitiated by violation of the principles of natural justice or if no reasonable opportunity was provided to a delinquent to place his defense, it cannot be characterized as a proper domestic inquiry held in accordance with the rules of natural justice ……”
  • (iii) State of Uttranchal Vs. Kharak Singh.[43] It is held: “… … If an officer himself sees the misconduct of a workman, it is desirable that the enquiry should be left to be held by some other person who does not claim to be an eye-witness of the impugned incident. As we have repeatedly emphasised, domestic enquiries must be conducted honestly and bona fide with a view to determine whether the charge framed against a particular employee is proved or not, and so, care must be taken to see that these enquiries do not become empty formalities.  …  ….. It is necessary to emphasise that in domestic enquiries, the employer should take steps first to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said evidence and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him……” Followed Associated Cement Co. Ltd. Vs.The Workmen.[44]
  • (iv) ECIL Vs. B. Karunakar.[45]It is held:  “(1) Where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officer’s report and the delinquent employee’s reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause  against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted.
  • It is the second right exercisable at the second stage which was taken away by the Forty-second Amendment. The second stage consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. ….. 
  • Article 311(2) says that the employee shall be given a “reasonable opportunity of being heard in respect of the charges against him”. ….  Hence, when the enquiry officer is not the disciplinary authority, the delinquent employee has a right to receive a copy of the enquiry officer’s report before the disciplinary authority arrives at its conclusions with regard to the guilt or innocence of the employee with regard to the charges levelled against him. That right is a part of the employee’s right to defend himself against the charges levelled against him. A denial of the enquiry officer’s report before the disciplinary authority takes its decision on the charges, is a denial of reasonable opportunity to the employee to prove his innocence and is a breach of the principles of natural justice.”
  • (v) RadheyShyam Gupta Vs. U.P. State Agro Industries Corporation.[46]It is held in this decision: “34. But in cases where the termination is preceded by an enquiry and evidence is received and findings as to misconduct of a definitive nature are arrived at behind the back of the officer and where on the basis of such a report, the termination order is issued, such an order will be violative of the principles of natural justice inasmuch as the purpose of the enquiry is to find out the truth of the allegations with a view to punish him and not merely to gather evidence for a future regular departmental enquiry. In such cases, the termination is to be treated as based or founded upon misconduct and will be punitive. ….”
  • (vi) Syndicate Bank Vs. Venkatesh Gururao Kurati.[47]It is held: “18. In our view, non-supply of documents on which the enquiry officer does not rely during the course of enquiry does not create any prejudice to the delinquent. It is only those documents, which are relied upon by the enquiry officer to arrive at his conclusion, the non-supply of which would cause prejudice, being violative of principles of natural justice. Even then, the non-supply of those documents prejudice the case of the delinquent officer must be established by the delinquent officer. It is well-settled law that the doctrine of principles of natural justice are not embodied rules. It cannot be put in a strait jacket formula. It depends upon the facts and circumstances of each case. To sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.”

No order can be passed behind the back of a person adversely affecting him; and such an order if passed, is liable to be ignored being not binding on such a party as the same has been passed in violation of the principles of natural justice.[48] Failure to supply the delinquent the documents, on the basis of which charges were framed, along with the charge-sheet, amounts to non observance of natural justice.[49]

PART – IV

Natural Justice: Courts Generally Read-Into the Provisions

Even if the statute does not provide for notice, it is incumbent upon the quasi-judicial authority to issue a notice to the concerned persons disclosing the circumstances under which proceedings are sought to be initiated against them, failing which the conclusion would be that principle of natural justice are violated.[50] Courts generally read into[51] the provisions of the relevant sections a requirement of giving a reasonable opportunity of being heard before an order is made which would have adverse civil consequences for the parties affected.

It is held in C.B. Gautam Vs. Union of India[52]:

  • “The observance of principles of natural justice is the pragmatic requirement of fair play in action. In our view, therefore, the requirement of an opportunity to show cause being given before an order for purchase by the Central Government is made by an appropriate authority under Section 269 -UD must be read into the provisions of Chapter XX -C. There is nothing in the language of Section 269 -UD or any other provision in the said Chapter which would negate such an opportunity being given. Moreover, if such a requirement were not read into the provisions of the said Chapter, they would be seriously open to challenge on the ground of violations of the provisions of Article 14 on the ground of non-compliance with principles of natural justice.”[53]

Natural Justice: Recognized as part of Article 14

In Union of India Vs. Tulsiram Patel[54]the Supreme Court declared that principles of natural justice have now come to be recognised as being a part of the constitutional guarantee contained in Article 14 of the Constitution.[55]

Hearing: Must be a Genuine Hearing

The Supreme Court, in Maneka Gandhi Vs. Union of India,[56] has held that the person affected must have a reasonable opportunity of being heard and the hearing must be a genuine hearing and not an empty public relations exercise.

Authority has to Apply its Mind

In Ravi Yashwant BhoirVs. Chief Minister[57] the Supreme Court observed: 

  • ”34. In a democratic institution like ours, the incumbent is entitled to hold the office for the term for which he has been elected unless his election is set aside by a prescribed procedure known to law or he is removed by the procedure established under law. The proceedings for removal must satisfy the requirement of natural justice and the decision must show that the authority has applied its mind to the allegations made and the explanation furnished by the elected office-bearer sought to be removed.”

Natural Justice: Requirements Depend Upon the Circumstances

Principles of natural justice are neither treated with absolute rigidity nor as imprisoned in a straight-jacket. It   has   many facets. Sometimes, this doctrine is applied in a broad way, sometimes in a limited or narrow manner.[58]

Applicability and requirements of natural justice depend upon the circumstances of the case [59] and it is not possible to lay down rigid rules as to when the principles of natural justice are to apply; nor as to their scope and extent.  Everything depends on the subject-matter.[60]  Whether an order in violation of natural justice is bad or not is depended on facts and circumstances of each case.[61] Its essence is good consciousness in a given situation; nothing more but nothing less.[62]

In Keshav Mills Co Ltd. Vs. Union of India, AIR 1973  SC 389 it is held:

  • “… We do not think it either feasible or even desirable to lay down any fixed or rigorous yard-stick in this manner. The concept of Natural Justice cannot be put into a straight-jacket. It is futile, therefore, to look for definitions or standards of Natural Justice from various decisions and then try to apply them to the facts of any given case. The only essential point that has to be kept in mind in all cases is that the person concerned should have a reasonable opportunity of presenting his case and that the administrative authority concerned should act fairly, impartially and reasonably…”

Natural Justice: Not Unruly Horse & Doctrine of ‘Straight-Jacket’

The Supreme Court in Maharashtra State Financial Corporation v. Suvarna Board Mills (1994)[63], it has been observed that natural justice is not an unruly horse, no lurking landmine, nor a judicial cure-all. It is well settled that natural justice cannot be placed in a straight-jacket; its rules are not embodied and they do vary from case to case and from one fact-situation to another.

It was pointed out by our Apex Court in Suresh Koshy George Vs. University of Kerala[64] that the rules of natural justice are not embodied rules. What particular rule of natural justice should apply to a given case must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the enquiry is held and the constitution of the Tribunal or body of persons appointed for that purpose. Whenever a complaint is made before a court that some principle of natural justice had been contravened the court has to decide whether the observance of that rule was necessary for a just decision on the facts of that case.

In Chairman, Board of Mining Examination Vs. Ramjee,[65] V.R. Krishna Iyer, J. observed as under:

  • “Natural justice is no unruly horse, no lurking land mine, nor a judicial cure-all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being conditioned by the facts and circumstances of each situation, no breach of natural justice can be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case, can be exasperating. We can neither be financial nor fanatical but should be flexible yet firm in this jurisdiction. No man shall be hit below the belt – that is the conscience of the matter.”

In Union of India Vs. P K Roy,[66] V. Ramaswami, J. observed:

  • “But the extent and application of the doctrine of natural justice cannot be imprisoned within the straight jacket of a rigid formula. The application of the doctrine depends upon the nature of the jurisdiction conferred on the administrative authority, upon the character of the rights of the persons affected, the scheme and policy of the statute and other relevant circumstances disclosed in the particular case.”

PART – V

Natural Justice & Principle of ‘No Prejudice’ in Disciplinary Action

As detailed above, denial of natural justice ‘itself causes prejudice’ was the uniformly followed legal concept in early times. The prejudice-doctrine has ‘taken a firm root’.[67] In PD Agrawal Vs. State Bank of India AIR 2006 SC 2064[68]  it was pointed out [relying on Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia,[69] and Charan Lal Sahu v. Union of India (Bhopal Gas Disaster)[70] etc.] that the principles of natural justice cannot be put in a straight jacket formula; it must be seen in circumstantial flexibility; it has separate facets; and it has in recent time also undergone a sea change.

Test of prejudice or the test of fair hearing

In Managing Director ECIL Hyderabad Vs. B Karunakar II[71] it is held:

  • “The next question to be answered is what is the effect on the order of punishment when the report of the enquiry officer is not furnished to the employee and what relief should be granted to him in such cases. The answer to this question has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.”
  • “Hence, in all cases where the enquiry officer’s report is not furnished to the delinquent employee in the disciplinary proceedings, the Courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/ Tribunal and given the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/ Tribunal should not mechanically set aside the order of punishment on the ground that the report was not furnished as it regrettably being done at present. The courts should avoid resorting to short cuts. Since it is the Courts/Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Court/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that it should set aside the order of punishment.”

The Supreme Court has, in Uma NathPandeyVs. State of UP,[72] held as follows:

  • “The crucial question that remains to be adjudicated is whether principles of natural justice have been violated and if so, to what extent any prejudice has been caused, it may be noted at this juncture that in some cases it has been observed that where grant of opportunity in terms of principles of natural justice do not improve the situation, ‘useless formality theory’ can be pressed into service.”

In Dharampal Satyapal Ltd Vs. Deputy Commissioner of Central Excise, Gauhati[73] our Apex Court held:

  • “Even if it is found by the Court that there is a violation of principles of natural justice, the Courts have held that it may not be necessary to strike down the action and refer the matter back to the authorities to take fresh decision after complying with the procedural requirement in those cases where non-grant of hearing has not caused any prejudice to the person against whom the action is taken. Therefore, every violation of a facet of natural justice may not lead to the conclusion that order passed is always null and void. The validity of the order has to be decided on the touchstone of ‘prejudice’. The ultimate test is always the same, viz., the test of prejudice or the test of fair hearing.”

But, in this decision our Apex Court held that the administrative authority cannot jump over the compliance of the principles of natural justice on the ground that even if hearing had been provided it would have served no useful purpose and dispense with the requirement of issuing notice by itself deciding that no prejudice will be caused to the person against whom the action is contemplated.

  • “At the same time”, our Apex Court pointed out “it cannot be denied that as far as Courts are concerned, they are empowered to consider as to whether any purpose would be served in remanding the case keeping in mind whether any prejudice is caused to the person against whom the action is taken.”

In A.S. Motors Pvt. Ltd Vs. Union of India[74] our Apex court observed:

  • “What the Courts in essence look for in every case where violation of the principles of natural justice is alleged is whether the affected party was given reasonable opportunity to present its case and whether the administrative authority had acted fairly, impartially and reasonably. The doctrine of audi alteram partem is thus aimed at striking at arbitrariness and want of fair play. Judicial pronouncements on the subject have, therefore, recognised that the demands of natural justice may be different in different situations depending upon not only the facts and circumstances of each case but also on the powers and composition of the Tribunal and the rules and regulations under which it functions. A Court examining a complaint on violation of rules of natural justice is entitled to see whether the aggrieved party had indeed suffered any prejudice on account of such violation”.

Compliance of Substantive and Procedural Provisions

It is observed in KL Katyal Vs. Central Secretariat Club (RC Lahoti, J.)[75]that the court may not interfere except in a clear case of violation of the provisions of the constitution or of the principles of natural justice.

In State Bank of India at Patialia Vs. SK Sharma[76]  it is held:

  • “(1) An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/ regulations/ statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature or (b) whether it is procedural in character.”

The court held further:

  • “(2) A substantive provision has normally to be complied with as explained herein before and the theory of substantial compliance of the test of prejudice would not be applicable in such a case.
  • (3) In case of violation of a procedural provision, the position is this: procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer/ employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under -“no notice”, “no opportunity” and “no hearing” categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz. whether such violation has prejudiced the delinquent officer employee in defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and/ or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. In this connection, it may be remembered that there may be certain procedural provisions which are of a fundamental character, whose violation is by itself proof of prejudice in such cases. As explained in the body of the judgment, take a case where there is a provision expressly providing that after the evidence of the employer/ government is over, the employee shall be given an opportunity to lead defense in his evidence, in a case, the enquiry officer does not give that opportunity in spite of the delinquent officer/ employee asking for it. The prejudice is self-evident. No proof of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The principle stated under (4) hereinbelow is only another way of looking at the same aspect as is dealt with herein and not a different or distinct principle.
  •  (4)(a) In the case of a procedural provision which is not of a mandatory character, the complaint of violation has to be examined from the standpoint of substantial compliance. Be that as it may, the order passed in violation of such a provision can be set aside only where such violation has occasioned prejudice to the delinquent employee.
  • (b) In the case of violation of a procedural provision, which is of a mandatory character, it has to be ascertained whether the provision is conceived in the interest of the persons proceeded against or in public interest. If it is found to be the former, then it must be seen whether the delinquent officer has waived the said requirement either expressly or by his conduct. If he is found to have waived it, then the order of punishment cannot be set aside on the ground of the said violation. If, on the other hand, it is found that the delinquent officer/ employee has not waived it or that the provision could not be waived by him, then the Court or Tribunal should make appropriate directions (include the setting aside of the order of punishment), keeping in mind the appropriate adopted by the Constitution Bench in B. Karunakar. The ultimate test is always the same, viz., test of prejudice or the test of fair hearing, as it may be called.
  • (5) Where the enquiry is not governed by any rules/ regulations/ statutory provisions and the only obligation is to observe the principles of natural justice or, for that matter, wherever such principles are held to be implied by the very nature and impact of the order/ action – the Court or the Tribunal should make a distinction between a total violation of natural justice (rule of audi alteram partern) and violation of a facet of the said rule, as explained in the body of the judgment. In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/ “no hearing” and “no fair hearing”, (a) In the case of former, the order passed would undoubtedly be invalid (one may call it ‘void’ or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the later cases, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/ employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query. (It is made clear that this principle (No. 5) does not apply in the case of rule against bias, the test in which behalf are laid down elsewhere.)
  • (6) While applying the rule of audi alteram partem (the primary principle of natural justice) the Court/ tribunal/authority must always bear in the ultimate and overriding objective underlying the said rule, viz., to ensure a fair hearing and to ensure that there is no failure of justice. It is this objective which should guide them in applying the rule to varying situations that arise before them.
  • (7) There may be situations where the interests of State or public interest may call for a curtailing of the rule of audi alteram partem. In such situations, the court may have to balance public/ State interest with the requirement of natural justice and arrive at an appropriate decision.”

Non-supply of documents by the enquiry officer

In Syndicate Bank Vs. Venkatesh Gururao Kurati, (2006) 3 SCC 150 it is held that the non-supply of documents on which the enquiry officer did not rely during the course of enquiry did not create any prejudice to the delinquent; and it was pointed out that to sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice.”

Natural Justice:  Laxity in Disciplinary Action

In HiraNath Mishra Vs. The Principal, Rajendra Medical College, Ranchi[77] the Supreme Court examined the application of principles of natural justice in the context of an order that was passed by the Principal of a College expelling certain male students against whom grave misbehaviour towards the girls had been alleged. The Enquiry Committee had not recorded the statements of the girl students in the presence of the male students. After making necessary enquiry, the Committee found that the male students were guilty of misconduct and recommended that they should be expelled. Acting on this report, the Principal passed the order of expulsion. The Supreme Court held that in such circumstances, the requirement of natural justice was fulfilled.

In Avinash Nagra Vs. Novodaya Vidyalaya Samiti[78]  also the Supreme Court upheld dispensing with a regular enquiry in the matter of misbehaviour of a teacher against a girl student and observed that the denial of cross-examination did not vitiate the enquiry on the ground of violation of principles of natural justice.

Natural Justice:  Laxity in Disciplinary Action of a Voluntary Association

The executive committee of a voluntary association cannot be put on par with a Court or a Tribunal when dealing with the disciplinary matters concerning the membership of the Body. They have very wide latitude in deciding as to when disciplinary action is warranted. The procedure to be followed by such an association also cannot be that which is normally expected to be followed in a Court, or a Tribunal. Even principles of natural justice are not required to be applied with the same degree of rigour as they would be in the case of adjudication before a Court or a Tribunal.[79]

In Daman Singh Vs. State of Punjab and Haryana[80] it is observed:

  • “So if the statute which authorises compulsory amalgamation of Co-operative Societies provides for notice to the societies concerned, the requirement of natural justice is fully satisfied. The notice to the society will be deemed as notice to all its members. That is why S. 13(9)(a) provides for the issue of notice to the societies and not to individual members. S.13(9)(b), however, provides the members also with an opportunity to be heard if they desire to be heard. Notice to individual members of a Co-operative society, in our opinion, is opposed to the very status of a Co-operative society as a body corporate and is, therefore, unnecessary. We do not consider it necessary to further elaborate the matter except to point out that a member who objects to the proposed amalgamation within the prescribed time is given, by S. 31(11), the option to walk-out, as it were, by withdrawing his share, deposits or loans as the case may be.”

Natural Justice: Laxity in Deptl. Proceedings & Domestic Tribunal

It is well settled law that strict rules of the Evidence Act, and the standard of proof envisaged therein, do not apply to departmental proceedings or domestic tribunal.[81] A domestic tribunal is free to evolve its own procedure.[82]

But in Bareilly Electricity Supply Co. Ltd. Vs. The Workmen,[83] the Supreme Court observed that the application of the principles of natural justice does not imply that what is not evidence can be acted upon. It was pointed out that the minutes of the meeting could not have been relied upon when neither the original was produced nor was any justification put forth for the absence of the signed copy of the original.

PART VI

Natural Justice: Violation and  Alternate Remedy:

Courts will not delve in the internal disputes of an association unless it is shown[84] that the aggrieved parties have worked out and exhausted[85] their remedies (but, failed to resolve disputes) under the bye laws, before: (a) the machinery or body (domestic tribunals), if any,  provided in its bye laws,[86] or (b) the body or authority which has to take cognisance of the matter, under the scheme of its bye laws, or (c) the authorities under the statute, if any, holds the field.[87] But, the rule of exhaustion of alternate remedy does not apply if there is violation of principle of natural justice,[88] as action in violation of natural justice is void.[89]

In Titaghur Paper Mills Company Ltd. Vs. State of Orissa[90] though the appellant pleaded that there was violation of natural justice and the impugned order was without jurisdiction, the Supreme Court held that the petitioner should avail his alternate remedy of appeal.

In Shaji K. Joseph Vs. V. Viswanath[91] it is held:

  • “In our opinion, the High Court was not right in interfering with the process of election especially when the process of election had started upon publication of the election program on 27th January, 2011 and more particularly when an alternative statutory remedy was available to Respondent No.1 by way of referring the dispute to the Central Government as per the provisions of Section 5 of the Act read with Regulation 20 of the Regulations.”

With respect to election to the office of Chairman of a Panchayat Union under the Tamil Nadu Panchayats Act, 1958 it was held in S.T. Muthusami Vs. K. Natarajan[92]  that election petition is an effective alternative remedy.  Umesh Shivappa AmbiVs. Angadi Shekara Basappa[93] is a case relating to election of the President, Vice – President and Chairman, etc. under the Karnataka Co-operative Societies Act, wherein our Apex Court reversed the judgment with the observation:

  • “Once an election is over, the aggrieved candidate will have to pursue his remedy in accordance with the provisions of law and the High Court will not ordinarily interfere with the elections under Article 226. The High Court will not ordinarily interfere where there is an appropriate or equally efficacious remedy available, particularly in relation to election disputes.”[94]

Natural Justice: Administrative Process & Urgency

The maxim audi alteram partem cannot be invoked if the import of such maxim would have the effect of paralysing the administrative process or where the need for promptitude or the urgency so demands. In Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., Haldia[95] it is held that the approach of the Court in dealing with such cases should be pragmatic rather than pedantic, realistic rather than doctrinaire, functional rather than formal and practical rather than precedential. The concept of natural justice sometimes requires flexibility in the application of the rule.[96]

Natural Justice: Inordinate Delay in Disciplinary Proceedings

Unexplained and unjustifiable long delay in initiating and in conducting departmental disciplinary proceedings will result in causing great prejudice to the person against whom such a proceeding is initiated and it will be a ground for quashing the proceedings.[97]

Right of Appeal: Not an Ingredient of Natural Justice

Right of Appeal is a creation of statute.[98] Right to appeal is neither an absolute right[99] nor an ingredient of natural justice.[100] It must be conferred by statute and can be exercised only as permitted by statute.[101]If the legislature provides for no appeal in a particular case, or provides for an appeal subject to certain conditions, it is a piece of proper legislation. Even if a statute denied right of appeal, the same cannot be said to be a bad legislation.[102]

Charges Should Not be Vague

The charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.[103]In Surath Chandra Chakravarty Vs. The State of West Bengal[104] our Apex Court held that it is not permissible to hold an enquiry on vague charges, as the same do not give a clear picture to the delinquent to make out an effective defense as he will be unaware of the exact nature of the allegations against him, and what kind of defense he should put up or rebuttal thereof.

The Court observed as under: 

  • “The grounds on which it is proposed to take action have to be reduced to the form of a definite charge or charges which have to be communicated to the person charged together with a statement of the allegations on which each charge is based and any other circumstance which it is proposed to be taken into consideration in passing orders has to be stated. This rule embodies a principle which is one of the specific contents of a reasonable or adequate opportunity for defending oneself. If a person is not told clearly and definitely what the allegations are on which the charges preferred against him are founded, he cannot possibly, by projecting his own imagination, discover all the facts and circumstances that may be in the contemplation of the authorities to be established against him.”[105]

In Sawai Singh Vs. State of Rajasthan[106] our Apex Court found that charges were vague and it was difficult to meet the charges. Therefore although the concerned delinquent had participated in the inquiry, the Court opined that participation by itself does not exonerate the department to bring home the charge.

PART VII

Civil Court has Jurisdiction when Expulsion in Violation of Natural Justice

Where a member of an association is expelled without observing the principles of natural justice,[107] or where a club had followed a procedure not warranted by the Rules of the Club,[108] the civil court will have the jurisdiction to interfere.[109]

In State of Kerala Vs. M/s N. RamaswamiIyer and Sons[110] the Supreme Court held:

  • “It is true that even if the jurisdiction of the Civil Court is excluded, where the provisions of the statute have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure, the Civil Courts have jurisdiction to examine those cases.”[111]

Halsbury’s Laws of England[112] reads:

  • “Where the rules providing for expulsion have been strictly observed and the Committee or the members have otherwise acted properly, the court has no jurisdiction to interfere even though it considers that the Committee or the members voting for expulsion have, in fact, come to a wrong conclusion. The burden of proving want of good faith lies on the person who alleges that he has been wrongfully expelled.”

Court’s Jurisdiction in Expulsion of a Member from a Political Party

Whether a Civil Court has a jurisdiction to entertain a suit relating to expulsion from membership of a political party, particularly when an appeal against such order of expulsion was pending before the appellate authority was the question came up for consideration in Arunachal Pradesh Congress Committee Vs. Kalikho Pul.[113]  In this case no notice was ever served upon the member giving him an opportunity to defend himself and explain before expelling him from the party. The party could not say about the procedure to be followed by the appellate authority and/or when such appeal was going to be disposed. The court upheld the contentions of the expelled member observing that that the Civil Court had jurisdiction to examine whether the expulsion was in good faith, in conformity with the Constitution and whether notice as required under the Constitution of the Party was served and the established principles of law of natural justice was followed by giving the member a chance of defense and explanation.[114]

Exclusion of Natural Justice

  1. Emergency or situation that rial or hearings cannot be conveniently held: Eg. large number or of applicants – R v. Aston University Senate: (1969) 2 QB 538; cancellation of entrance tests for defect in procedure: Radhakrishnan v. Osmania University: (2000) (4) ALD 558
  2. Strictly procedural matters, and no civil right is infringed or no prejudice caused: Eg. Procedure empty formality: Punjab National Bank v. Manjeet Singh: (2004) III LLJ 46 (P H).
  3. In Karnataka Public Service Commission v. BM  Vijay Shanker, AIR 1992 SC 952, the Supreme Court had to consider whether the rule of natural justice had no exception. It was found that once direction not to write roll number on answer book was violated the issue of bonafide and honest mistake did not arise.

Domestic Tribunal – Court Does Not Sit in Appeal

It is trite law that the Court does not sit in appeal over the findings of the enquiry officer as observed by our Apex Court, in UP State Road Transport Corpn. Vs. Musai Ram.[115] It is held in Board of Control for Cricket in India Vs. Cricket Association of Bihar:[116]

  • “We are at any rate not sitting in appeal against the findings of a domestic tribunal set up to enquire into the allegations of misconduct leveled against a team official of a participating team. We are not, therefore, reappraising the material that has been assembled by the probe committee and relied upon to support its finding. The finding is by no means without basis or perverse[117] to call for our interference with the same.”

The Supreme Court in TP Daver Vs. Lodge Victoria,[118] held that jurisdiction of courts to interfere in cases involving expulsion of a member from the organization is extremely limited, and the Court’s enquiry is confined to find out whether the decision making is within the four corners of the rules, and the Courts cannot sit in appeal over the decisions of the organization.[119]

In Leo Francis Xaviour Vs. The Principal, Karunya Institute of Technology, Coimbatore[120] it is held as under:

  • “26. As it is found on the facts that there was an enquiry satisfying the requirements of the principles of natural justice, this Court cannot interfere with the finding of the Enquiry Committee and the consequential order of expulsion passed against the petitioner. The plea taken by the first respondent that it is a private college and the jurisdiction of this Court under Article 226 of the Constitution of India cannot be invoked by the petitioner against the said College is well founded. Inasmuch as the principles of natural justice have been complied with, this Court has no jurisdiction to interfere with the order of expulsion passed against the petitioner.”

In Maharashtra State Board of Secondary and Higher Secondary Education Vs. KS Gandhi[121] it is observed that the power of judicial review in case of student indiscipline is very limited and in such cases this Court does not sit in appeal over decisions of the school authorities.[122]

Since General Body of a society or club is supreme,[123] the properly convened General Body has the right to remove any one or all of the elected-office-bearers (subject to the fundamental principles of substantive justice, including observance of natural justice) unless no clause in the bye laws restricts the same.

Removal of Earlier Committee

When a committee of an association continues to exercise powers even after cessation of their period of office, it is within the competence of the General Body of the Association to take up the matter,if provisionsof the byelaws or the enactment concerned do not, expressly or impliedly, mandates otherwise. In proper cases, the members can approach the civil court also.

In any event, opportunity of being heard should be given to the members of the committee concerned.[124] It is well settled that principles of natural justice must be read into the byelaws and the statute, unless there is a clear directive to the contrary.[125]

It is also held that the Rule of the Society which declared a person would cease to be a member merely on his default to make the subscription, without even providing him an opportunity to show cause for not making the payment within a specified period appeared “to be very harsh” and that “confiscatory and deprivatory provisions made, resulting in civil consequences, should not have been allowed” to be incorporated in the bye laws. It is on the principle that rules of natural justice require that that no person can be condemned unheard[126]

The Division Bench struck down the impugned Rule it being contrary to the provisions of the Act.

No expulsion for arrears  if no notice

The rules of natural justice requires notice calling upon a member of a society to pay the arrears, before he be expelled for nonpayment.[127]

[1] 2001-1 Bom CR 390: 2000-3 Bom LR 741: 2001 1 MhLJ 63

[2] AIR 1978 SC 597

[3] AIR 2006 SC 2064

[4] (1996) 3 SCC 364

[5] (1996) 5 SCC 460

[6]  (1988) 2 SCC 602

[7] See also: Board of Control for Cricket Vs. Cricket Association: AIR 2015 SC 3194;  Capt. DK Giri Vs. Secunderabad Club: AIR 2018  AP 48.

[8] AIR 1981 SC 136

[9]      Narinder Mohan Arya Vs. United India Insurance Co. : AIR 2006 SC 1748; Rajasthan STC Vs. BalMukundBairawa: (2009) 4 SCC 299 : (2009)5 SCJ 757; FirstoneTyre and Rubber Company Vs. Employees’ Union: AIR 1981 SC 1626; Union of India Vs. Gyan Chand Chatter: (2009) 12 SCC 78.  Sawai Singh Vs. State of Rajasthan: AIR 1986 SC 995; State of Andhra Pradesh Vs. S. Sree Rama Rao; AIR 1963 SC 1723; U.P.S.R.T.C.   Vs. Ram Chandra Yadav: AIR 2000 SC 3596; Union of India Vs. Gyan Chand Chattar, (2009) 12 SCC 78; Anil Gilurker Vs. Bilaspur Raipur KshetriaGraminBank : (2011) 14 SCC 379.

[10]    Workmen Vs. Hindustan Steel Ltd. : AIR 1985 SC 251; Rajastan STC Vs. BalMukundBairawa: (2009) 4 SCC 299:  (2009)5 SCJ 757; MV Bijlani Vs. Union of India : 2006 SC 3475; Roop Singh Negi Vs. Punjab National Bank – AIR 2008 SC (Sup.) 921; Vijay Singh Vs. State of U.P. – AIR 2012 SC 2840; M.S. Bindra Vs. Union of India – AIR 1998 SC 3058; Registrar Vs. Uday Singh – AIR 1997 SC 2286; Zora Singh Vs. JM Tandon – AIR 1971 SC 1537; State of Uttaranjal Vs. Kharak Singh: 2008 AIR (SCW) 7507;  Union of India Vs. Naman Singh Sekhawat: 2008 AIR (SCW) 2813.                

[11] TP Daver Vs. Lodge Victoria No. 363 SC Belgaum, 1963 AIR SC 1144;         High Court of Judicature at Bombay Vs. Shashikant S. Patil: (2000) 1 SCC 416;         JagmohanDalmia Vs. BCCI: AIR 2008 Cal. 227.

[12]    AyaaubkhanNoorkhanPatan Vs. State of Maharashtra: AIR 2013 SC 58

[13]    ILR 1997 Kar 3127

[14]    Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585.

[15]    AIR 1969 Cal 224; Referred to in  GegongApang Vs. SanjoyTassar: AIR  2001 Gau 1

[16]    Dr. BK Mukherjea, J. On the Hindu Law of Religious and Charitable Trusts, Tagore Law Lectures: Page:411.

[17]    Ex Armymen’s Protection Service Vs. Union of India: AIR 2014 SC 1376;

A.S. Motors Pvt. Ltd Vs. Union Of India:   2013 AIR (SCW) 3830;

MuhammedYunus Khan Vs. State of UP: 2010-10 Scale 2867.      

[18]    U P State Road Transport Corpn. Vs. Musai Ram:1999-3 SCC 372.

[19]    AIR 1973  SC 389

[20]    (1978) 1 SCC 405

[21]    AIR 1970 SC 150

[22]    (2009) 12 SCC 40

[23]    1991 AIR-SCW 879

[24]    AIR 1970 All 209

[25]    AIR  1980 SC 1042

[26]    See as to labour dispute: Management of Travancore Knitting Co Tiruppur Coimbatore Vs. K Muthuswamy: AIR  1962 Mad 398; Regional Manager, U.P.S.R. T.C. Etawah v. HotiLal AIR 2003 SC 1462; DamohPannaSagar Rural Regional Bank Vs. MunnaLal Jain AIR 2005 SC 584;

[27]    AIR 2003 SC 2041: (2003) 4 SCC 557

[28]    Quoted in Poonam Vs. State of U.P. 20016-2 SCC 779.

[29]    See: D.K. Yadav Vs. J.M.A. Industries Ltd. AIR 1992 SC 1795

[30]    AIR 2003 SC 2041.         Referred to in PrakashRatanSinha Vs. State of Bihar: 2009-14 SCC 690.

[31]    Indian National Congress (I) Vs. Institute of Social Welfare: AIR 2002 SC 2158;         Bachhitar Singh V. State of Punjab: AIR 1963 SC 395;         Union of India v. H.C. Goel: AIR 1964 SC 364;         JyotiBasu Vs. Debi Ghosal: AIR 1982 SC 983;         Mohan LalTripathi Vs. District Magistrate, Raebareli: AIR 1993 SC 2042;         Ram BetiVs. District PanchayatRajadhikari: AIR 1998 SC 1222.

[32]    Chamoli District Co-Op. Bank Ltd.. Vs. Raghunath Singh Rana: 2016 AIR (SCW) 2510

[33]    AIR 1962 SC 1110

[34]    Quoted in K Chelliah Vs. Chairman Industrial Finance Corporation:  AIR1973 Mad 122.

[35]    HreeVitthalSahakari Vs. WadikuroliVividhKaryakariSeva Society: 2011-4 BCR 290

[36]   AwariDevannaVs Divisional Co Operative Officer: 1994-1 ALT 363;      K. Srinivas VS Commissioner of Fisheries: 2009 3 ALD 1; 2009 2 ALT 604.

[37]   Institute of Chartered Accountants of India Vs. L.K. Ratna: AIR 1987 SC 71;      C.B. GautamVs. Union of India: (1993) 1 SCC 78.

[38]    AIR 1970 SC 150.         Quoted in: Mohinder Singh Gill Vs. Election Commissioner: (1978) 1SCC 405

[39]    (1964) 3 SCR 616

[40]    2016 AIR (SCW) 2510

[41]    (1964) 3 SCR 616

[42]    (1972) 4 SCC 304.

[43]    (2008) 8 SCC 236.

[44]    [1964] 3 SCR  652

[45]    AIR 1994 SC 1074.             

[46]    (1999) 2 SCC 2.

[47]    (2006) 3 SCC 150.

[48]    J.S. Yadav Vs. State of U.P.: (2011) 6 SCC 570

[49]    Bilaspur Raipur KshetriyaGramin Bank Vs. MadanlalTandon: AIR  2015 SC 2876.

[50]    East India Commercial Company Vs. The Collector of Customs: 1962 AIR SC 1893;        U.O.I. Vs. MadhumilanSyntex 1988-3 SCC 348;        MorarjiGoculdas Vs. U.O.I. 1995 Supp3 SCC 588;        Metal Forgings Vs. U.O.I. 2003 2 SCC 36.[51]    S.P. Malhotra Vs. Punjab National Bank” AIR 2013 SC 3739; Manohar Vs. State of Maharashtra: AIR 2013 SC 681; Punjab National Bank Vs. KunjBehariMisra, AIR 1998 SC 2713; Yoginath D. Bagde Vs. State of Maharashtra : AIR 1999 SC 3734; State Bank of India Vs. K.P. Narayanan Kutty: AIR 2003 SC 1100; J.A. Naiksatam Vs. Prothonotary: AIR 2005 SC 1218; P.D. Agrawal Vs. State Bank of India : AIR 2006 SC 2064; Ranjit Singh Vs. Union of India : AIR 2006 SC 3685; Canara Bank Vs. ShriDebasis Das: AIR 2003 SC 2041; KanwarNutwar Singh Vs. Director of Enforcement:  2010 AIR (SCW) 6427.

[52]    C.B. GautamVs. Union of India (1993) 1 SCC 78.         Referred: Union Union of India Vs. Col. J. N. Sinha (1970) 2 SCC 458;         Olga TellisVs. Bombay Municipal Corporation (1985) 3 SCC 545.

[53]    Quoted in: Arcot Textile Mills Vs. Regional Provident Fund: AIR 2014 SC 295.

[54]    AIR 1985 SC 1416; referred to in Board of Control for Cricket in India Vs. Cricket Association of Bihar: AIR 2015 SC 3194.

[55]    See also: Central Inland Water Trans. Corpn. Vs. BrojoNathGanguly: AIR 1986 SC 1571.

[56]    (1978) 1 SCC 248

[57]    (2012) 4 SCC 438

[58]    Arcot Textile Mills Vs. Regional Provident Fund: AIR  2014 SC 295

[59]    Ajit Kumar Nag v. General Manager, Indian Oil Corpn.: AIR 2005 SC 4217;

[60]    Natwar Singh Vs. Director of Enforcement (2010) 13 SCC 255

[61]    Ex Armymen’s Protection Service Vs. Union of India: AIR 2014 SC 1376;         A.S. Motors Pvt. Ltd Vs. Union Of India: 2013 AIR (SCW) 3830;        MuhammedYunus Khan Vs. State of U.P.: 2010-10 Scale 2867.    

[62]    Mohinder Singh Gill Vs. Election Commissioner: (1978) 1SCC 405;        A.K. KraipakVs. Union of India: AIR 1970 SC 150.            

[63]    Maharashtra State Financial Corpn. Vs. M/s. Suvarna Board Mills: 1994-5 SCC 566.

[64]    AIR 1969 SC 198

[65]    AIR 1977 SC 965

[66]    AIR 1968 SC 850

[67]    Zakraiah T Vs. APSC Cooperative Finance Corporation Ltd. (S.B. Sinha, V.V.S. Rao, JJ.) 2001- 6 ALD 549; 2001-6 ALT 514; 2002-4 LLJ 116.

[68]            See also: A.S. Motors Pvt. Ltd Vs. Union of India: 2013 AIR (SCW)  3830.

[69]    AIR 2005 SC 4217:  (2005) 7 SCC 764.

[70]    (1990) 1 SCC 613: AIR 1990 SC 1480.

[71]    AIR 1994 SC 1074

[72]    (2009) 12 SCC 40

[73]    2015 AIR (SCW) 3884: 2015 (8) SCC 519.        Followed, Managing Director ECIL Hyderabad Vs. B Karunakar II: AIR 1994 SC 1074.

[74]    2013 AIR (SCW) 3830

[75]    1994-30 DRJ 669

[76]    AIR 1996 SC 1669; (1996) 3 SCC 364

[77]    (1973) 1 SCC 805

[78]    (1997) 2 SCC 534

[79]    Chennai KancheepuramTiruvelore District Film Distributors Association Vs. Chinthamani S. Murugesan: 2001 (3) CTC 349: 2001-Supp. Mad LJ 48;        A C MuthiahVs. Board of Control for Cricket in India: (2011) 6 SCC 617: 2010 (2) CTC 429.     

[80]    AIR1985 SC 973

[81]    Maharashtra State Board of Secondary Edn. Vs. K.S. Gandhi: (1991) 2 SCC 716.         See also: Executive Engineer Vs. Sri Seetaram Rice Mill: (2012)2 SCC 108;        Harekrishna K. Vadhwani Vs. VasupujyaSmruti Co -op. Hsg. Soc.: 2004(1) GLH 257;          Banaskantha District Co -op. Union Ltd. Vs. State of Gujarat 2011(2) GLR 1707;        State of U.P. Vs. C.O.D. Chheoki Employees’ Co-op. Society Ltd : AIR 1997  SC  1413;        B.C. ChaturvediVs. Union of India: AIR 1996 SC 484.

[82]    Kurukshetra University Vs. Vinod Kumar: AIR 1977 Pj&Hr 21

[83]    AIR 1972 SC 330

[84]    Especially, in discretionary reliefs: Madras Gymkhana Club Vs. Sukumar 2010-1 CTC 199

[85]    See: A. Venkatasubbiah Naidu Vs. S. Chellappan: 2000 (7) SCC 695: AIR  2000 SC 3032; Superding Engineer Periyar Electricity Vs. Pavathal: 2002-2 CTC 544; 2002-1 Mad LJ 515.

[86]    Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774

[87]    G. BalaSubrahmanyam Vs. Bar Council of AP: 2014 (2) ALD 101; 2014 (1) ALT 264;        AP AryaVysyaMahasabha  Vs. MutyapuSudershan: 2015 (5) ALD 1: 2015 (6) ALT 227

[88]    A.V. Venkateswaran, Collector Vs. RamchandSobhrajWadhwani : AIR 1961 SC 1506;        SatwatiDeswal Vs. State of Haryana: [2010] 1 SCC 126 ;        State of H.P. Vs. Gujarat Ambuja Cement Ltd.: AIR 2005 SC 3936;        Dhulabhai Vs. State of M P : AIR 1969 SC 78;        Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai:  AIR 1999 SC 22.

[89]    Rajasthan STC Vs. BalMukundBairawa: (2009) 4 SCC 299 : (2009)5 SCJ 757;

[90]    AIR 1983 SC 603

[91]    AIR  2016 SC 1094

[92]    AIR 1988 SC 616

[93]    AIR 1999 SC 1566

[94]    Quoted in: Avtar Singh Hit Vs. Delhi Sikh GurdwaraMgent. Comte. (2006) 8 SCC 487.        Similar view in: Harnek Singh Vs. Charanjit Singh: AIR  2006 SC 52.        Also see: Supreme Court Bar Association Vs. BD Kaushik: (2011) 13 SCC 774;        NP PonnuswamiVs. Returning Officer: AIR 1952 SC 64.

[95]    AIR 2005 SC 4217.

[96]    See also: Arcot Textile Mills Vs. Regional Provident Fund: AIR  2014 SC 295.

[97]    State of Madhya Pradesh Vs. Bani Singh : 1990 (Supp) SCC 738, (more than 12 years);        State of Punjab Vs. ChamanLalGoyal: (1995) 2 SCC 570 (5½ years); M. Balakrishnan Vs. The Corporation of Madurai: 1995 (II) CTC 589; The Commr, SankarapuramPanchayat Vs. S.A. Abdul Wahab: 1996 Writ L.R.677, State of Andhra Pradesh Vs. N. Radhakishan: (1998) 4 SCC 154, B. Loganathan Vs. The Union of India: 2000 (III) CTC 351 (SC) (15 years); Union of India Vs. Central Administrative Tribunal: 2005 (2) CTC 169(20 years); .V. Mahadevan Vs. M.D., Tamil Nadu Housing Board: 2005 (4) CTC 403(SC) (20 years);  M.V. Bijlani Vs. Union of India: (2006) 5 SCC 88, (13 years) P. Anand Vs. The Principal Commissioner: 2006 (5) CTC 723;  K. Kumaran Vs. The State of Tamil Nadu:  2007 (3) CTC 763 (18 years); Ranjeet Singh Vs. State of Haryana 2008 (3) CTC 781 (SC) (9 years).

[98]UshaUdyog Vs. Customs, Excise and Gold: 2000-86 DLT 667: 2000-71 ECC 416, Mohan LalSaraf Vs. Chairperson, Debts Recovery: 2013-2 ADJ 497, 2013-3All LJ 99

[99]SatyaNidhanBanerji Vs. Mdhazabbur Ali Khan: AIR  1932 All 47; GadagotluSitaramaiah Vs. Collector Of Central Excise Hyderabad: AIR1960 AP 294; Iddesh Tours And Travels Vs. Comrof Service Tax Mumbai: 2019-367 ELT 235

[100] Vijay Prakash D. Mehta Vs. Collector of Customs:  AIR 1988 SC 2010; Unicipal Committee Hoshiarpur Vs. Punjab State Electricity Board: AIR  2011 SC  209, TecnimontPvt Ltd Vs. State of Punjab: 2019-12 SCALE 562, UshaUdyog Vs. Customs, Excise and Gold: 2000-86 DLT 667: 2000-71 ECC 416; Shyam Kishore Vs. Municipal Corporation of Delhi: AIR  1991 Del  104.

[101]UshaUdyog Vs. Customs, Excise and Gold: 2000-86 DLT 667: 2000-71 ECC 416; Discharged Servicemens Assn. Vs. State of Kerala: 1999-2 KerLJ 1133: 2000-1 KerLT 281.

[102]NathamaniGounder Vs. State of Tamil Nudu: 1986-2 LLJ 423

[103]  State of Andhra Pradesh Vs. S. Sree Rama Rao; AIR 1963 SC 1723;        Sawai Singh Vs. State of Rajasthan: AIR 1986 SC 995;        U.P.S.R.T.C.   Vs. Ram Chandra Yadav: AIR 2000 SC 3596;        Union of India Vs. Gyan Chand Chattar, (2009) 12 SCC 78;        Anil Gilurker Vs.Bilaspur Raipur KshetriaGraminBank : (2011) 14 SCC 379 .

[104]  AIR 1971 SC 752. 

[105]  See also: Narinder Mohan Arya Vs. United India Insurance: AIR 2006 SC 1748; Rajastan STC Vs. BalMukundBairawa:  (2009) 4 SCC 299: (2009)5 SCJ 757; Anil Gilurkarvs.Bilaspur Raipur Kshetria Bank 2011 AIR (SCW)  5327; FirstoneTyre and Rubber Company Vs. Employees’ Union: AIR 1981 SC 1626; Union of India Vs. Gyan Chand Chatter: (2009) 12 SCC 78.

[106]  AIR 1986 SC 995

[107]  Ambalal Sarabhai Vs. Phiros H. Antia: AIR 1939 Bom. 35.         See also:  C.D. Sekkilar Vs. R. Krishnamoorthy: AIR 1952  Mad  151.        HuseinMiyaDosumiya vs. ChandulalJethabhai: AIR 1954 Bom 239;        Rajasthan State Road Trant.Corpn. Vs. BalMukundBairawa: (2009) 4 SCC 299.        Personal hearing necessary: Mumbai Cricket Asson. Vs. Ratnakar: (2014) 2 Mah LJ 726.        Action on report of enquiry officer based on ‘no evidence’: Roop Singh Negi Vs. Punjab National Bank : AIR 2008 SC (Sup.) 921;JagmohanDalmiaVs. BCCI: AIR 2008 Cal. 227.Narinder Mohan Arya Vs. United India Insurance Co. : AIR 2006 SC 1748T.P. Daver Vs. Lodge Victoria AIR 1963  SC  1144; Central Inland Water Transport Corporation Vs. BrojoNathGanguly: AIR 1986 SC 1571; Institute of Chartered Accounts of India Vs. L.K. Ratna, 1986 (4) SCC 537; Delhi Transport Corp. Vs. DTC Mazdoor Congress 1991 (Supp.1) SCC 600; LIC of India Vs. Consumer Education and Research Centre 1995(5) SCC 482; Escorts Farms Vs. Commissioner Kumaon Division (2004) 4 SCC 281; SM KambleVs. Jt. Registrar, Co-Op. Societies: (2008) 1 AIR Bom R 274.

[108]  Kalyan Kumar Dutta Gupta Vs. B.M. Verma: AIR 1995 Cal. 140 (DB).         Also see: Deepak R MehtraVs. National Sports Club of India: ILR 2009-19 Dlh 216.

[109]  T.P. Daver v. Lodge Victoria No. 363 S.C. Belgaum: AIR 1963 SC 1144. 

[110]  AIR 1966 SC 1738.

[111]  See: Firm Seth Radhakishan Vs. Administrator, Muni. Committee:  AIR 1963 SC 1547; Secretary of State Vs. Mask & Co.: AIR 1940 PC 43; Premier Automobiles Ltd. Vs. KamlakarShantnram: AIR 1975 SC 2238: Rajasthan STC Vs. BalMukundBairawa: (2009) 4 SCC 299 : (2009)5 SCJ 757: Referred to: Narinder Mohan Arya Vs. United India Insurance Co. : AIR 2006 SC 1748; Roop Singh Negi Vs. Punjab National Bank : AIR 2008 SC (Sup.) 921; Dhulabhai Vs. State of M P : AIR 1969 SC 78. See also: ShridharMisra Vs. JaichandraVidyalankar:   AIR 1959 All 598; K K Jain Vs. Federation Of Indian Export Organisations: AIR  2002 Del 408; GegongApang Vs. SanjoyTassar: AIR  2001 Gau 1; SardarKanwaldeep Singh Vs. Assistant Registrar Firms: AIR 1994 All 161;  Gaurav A Jain Vs. M P University of Agriculture And Technology, AIR  2004 Raj 247.

[112]  4thEdnVol 6: Para 241: Quoted in K.L. Katyal Vs. Central Secretariat Club (Regd):1994-30 DRJ 669 .

[113]  AIR 2015 Gau 179.

[114]  See also: M. Sekar Vs. The Tamil Nadu State Council of the CPI: 2015-7 MLJ 689

[115]    1999-3 SCC 372.

[116]  AIR  2015 SC 3194

[117]    General Manager (P), Punjab Sind Bank Vs. Daya Singh: (2010) 11 SCC 233

[118]  AIR 1963 SC 1144

[119]  See: All India Hockey Federation Vs. Indian Olympic Association: (1994) 55 DLT 607,        Ashok Kumar Vs. SBI Officers Association: (2013) 201 DLT 433.        See also: Meghal Homes Pvt Ltd Vs. NiwasGirni K KSamiti: AIR   2007 SC 3079;        CaptKailashNath Harsh Vs. D C Patel: AIR 1999 Bom 133.

[120]  AIR 1993 Mad 233

[121]  (1991) 2 SCC 716

[122]  See also: BC ChaturvediVs. Union of India: AIR 1996 SC 484.        Bhagat Ram Vs. State of Himachal Pradesh: AIR 1983 SC 454.

[123]  Supreme Court Bar Association Vs. Registrar of Societies: ILR 2012-22 Del  1031; GirishMulchand Mehta Vs. Mahesh S. Mehta. 2010 (1) Bom. C.R 31

[124]   AwariDevannaVs Divisional Co Operative Officer: 1994-1 ALT 363;

K. Srinivas VS Commissioner of Fisheries: 2009 3 ALD 1; 2009 2 ALT 604.

[125]   Institute of Chartered Accountants of India Vs. L.K. Ratna: AIR 1987 SC 71;

C.B. GautamVs. Union of India: (1993) 1 SCC 78.

[126]  Sarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR 1989-2 Del 585.

[127]  ShriSarbjit Singh Vs. All India Fine Arts and Crafts Society: ILR (1989) II Delhi 585

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Unstamped & Unregistered Documents and Collateral Purpose

Saji Koduvath, Advocate, Kottayam.

Introspection

Does the law allow to use unstamped or insufficiently stamped document in evidence?  NoSec. 35 of the Indian Stamp Act is the relevant provision.
But, it can be used for collateral purposes; or the substantive purpose after payment of penalty (except promissory note).
Does the law allow to use unregistered (compulsory registrable) deed in evidence?  NoSec. 49 of the Registration Act bars.
But, it can be used for collateral purposes.
Should the court exclude an unregistered (compulsory registrable) deed even if marked without objection?Yes (2008) 8 SCC 564
But, it can be used for collateral purposes.
Can the court exclude an insufficiently stamped (or unstamped) document once marked without objection?NoSec. 36 Stamp Act governs.
Sirikonda Madhava Rao v. N. Hemalatha (SC), 12 April, 2022; Relied on: Javer Chand v. Pukhraj Surana, 1962-2 SCR 333; Shyamal Kumar Roy v. Sushil Kumar Agarwal, 2006-11 SCC 331.
Is there a duty upon Judge not  to  admit a document that is not duly stamped even if no objection to mark it?Yes2017-3 AIR(Kar)(R) 570;
AIR 2015 Kar 175
Is there a duty upon Judge to impound every document not duly stamped, irrespective of objection to mark it?Yes2017-3 AIR(Kar)(R) 570;
AIR 2015 Kar 175
When does question of using a document for ‘collateral purpose‘ arise?  ….In case of an unregistered (compulsorily registrable)  document: Sec. 49 of the Registration Act.
Can the court allow to use an unstamped or insufficiently stamped document for ‘collateral purpose‘?  NoIt is the duty of every Judge not  to  admit a document that is not duly stamped, even if no objection to other side. 2017-3 AIR(Kar)(R) 570; AIR 2015 Kar 175.
Can a document, required to be registered, but not registered, be used in a suit for specific performance.YesIt may be used in a suit for specific performance under Proviso to Sec. 49 of the Registration Act. And, it can be received as evidence of an oral agreement of sale.
S. Kaladevi v. V.R. Somasundaram, (2010) 5 SCC 401; Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC  639.

INSUFFICIENTLY STAMPED DOCUMENTS 

Instruments not duly stamped, inadmissible

Sec. 35, Indian Stamp Act reads as under:

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

Unstamped document cannot be looked at even for any collateral purpose

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

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

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

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

  • “8. A document would be admissible on basis of the recitals made in the document and not on basis of the pleadings raised by the parties. ….
  • 9. It would be trite to say that if in a document certain recitals are made then the Court would decide the admissibility of the document on the strength of such recitals and not otherwise. In a given case, if there is an absolute unregistered sale deed and the parties say that the same is not required to be registered then we don’t think that the Court would be entitled to admit the document because simply the parties say so. The jurisdiction of the Court flows from Sec. 33, 35 and 38 of the Indian Stamp Act and the Court has to decide the question of admissibility. With all humility at our command we overrule the judgment in the matter of Laxminarayan (supra).”

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

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

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

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

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

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

Admission of Contents of Document in Pleadings

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

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

Read Blog : Oral Evidence on Contents of Document, Irrelevant

Impounding of Instruments

Section 33 of the Indian Stamp Act provides as under:

  • 33. Examination and impounding of instruments—(1) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.
  • (2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in 62 [India] when such instrument was executed or first executed: Provided that—
  • (a) nothing herein contained shall be deemed to require any Magistrate or Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898);
  • (b) in the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.
  • (3) For the purposes of this section, in cases of doubt,—
  • (a) the State Government may determine what offices shall be deemed to be public offices; and
  • (b)  the  State Government may determine who shall be deemed to be persons in charge of public offices.

Section 36 of the Stamp Act – Once admitted shall NOT be called in question

Section 36 of the Stamp Act provides as under:

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

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

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

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

Objection is to be raised when Document Tendered

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

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

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

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

However, it was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:

  • “When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”

But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7  SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.

Shall not Admit Unless Duly Stamped Vs. Once Admitted Immune from Challenge

The following forceful propositions stand paradoxical and incongruent.

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

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

  •        “6. From the aforesaid statutory provisions and the decisions, it is clear that a duty is cast upon every judge to examine every document, which is produced or comes before him in the performance of his functions. On such examination, if it appears to the Judge that such instrument is not duly stamped, an obligation is cast upon him to impound the same. This duty is to be performed by the Judge irrespective of the fact whether any objection to its marking is raised or not. Hence, there is a need for diligence on the part of the Court having regard to the statutory obligation under Section 33 of the Karnataka Stamp Act. Section 34 of the Karnataka Stamp Act* mandates that an instrument, which is not duly stamped shall not be admitted in evidence. If any objection is taken to the admissibility of the evidence, it shall be decided then and there. If this document is found to be insufficiently stamped, then in terms of the proviso(a) to Section 34, the Court shall call upon the person, who is tendering the said document to pay duty and ten times penalty and thereafter admit the document in evidence. If duty and penalty is not paid, the document shall not be admitted in evidence.
    • *Corresponding to Sec. 35, Indian Stamp Act
  • If such an objection is not taken at the time of admitting the said instrument in evidence, and the insufficiently stamped document is admitted in evidence then Section 35** of the Act provides that such admission shall not be called in question at any stage of the same suit or proceedings on the ground that the instrument has not been duly stamped.
    • **Corresponding to Sec. 36, Indian Stamp Act
  • It has nothing to do with impounding the document. A duty is cast upon every judge to examine every document that is sought to be marked in evidence. The nomenclature of the document is not decisive. The question of admissibility will have to be decided by reading the document and deciding its nature and classification. Even while recording ex parte evidence or while recording evidence in the absence of the Counsel for the other side, the Court should be vigilant and examine and ascertain the nature of the document proposed to be marked and ensure that it is a document which is admissible. The Court should not depend on objections of the other Counsel before considering whether the document is admissible in evidence or not. Section 33 of the Stamp Act casts a duty on the Court to examine the document to find out whether it is duly stamped or not, irrespective of the fact whether an objection to its marking is raised or not”

Should Court Sit Silent and Question Unstamped Documents Afterwards

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

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

Therefore, it is not definite-

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

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

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

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

What is Collateral Purpose?

The word ‘collateral’ signifies something beyond or parallel. According to Law Lexicon it means “that which is by the side, and not the direct line; that which is additional to or beyond a thing” (Amit Khanna.  Vs Suchi Khanna, 2008-10 ADJ 426; 2009-75 AllLR 34; 2009-1 AWC 929).

The Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd., (2008) 8 SCC 564: 2008 AIR SCW 4829, held as under:

  • “A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.”
  • “A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.”

Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, is an authority to see, what is ‘collateral purpose’. It is held that following matters can be proved with an unregistered partition deed, as ‘collateral purpose’-

  • severancy of title,
  • nature of possession of various shares;
    • but not primary purpose, i.e. division of joint properties by metes and bounds.

It is held as under:

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

Proviso to Sec. 49 of the Registration Act reads as under:

  • Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”

Is ‘Impounding’ totally Independent from ‘Admissibility’

Karnataka High Court (N. Kumar, J.), in Rekha S. Chandru v. Chikka Venkatappa (2015), authoritatively held relying on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, that when a document was already marked by the trial Court in evidence, the objection regarding stamp duty cannot be raised at a later stage.

It further observed (obiter) by the Karnataka High Court that the impounding the document was totally different from admissibility; and therefore, an insufficiently stamped document, if admitted by mistake, was liable to be impounded by the Court and the procedure prescribed in the Stamp Act was to be followed in so far as collection of stamp duty and penalty were concerned.

It appears that the above proposition of the Karnataka High Court has to be evaluated on the touchstone of the Apex Court verdict, Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655, which reads as under:

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

Unstamped or Insufficiently Stamped Pro-note

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

See Blog: (CLICK): Adjudication as to Proper Stamp under Stamp Act

Impounding of Documents – When Produced or when Exhibited

In Yogesh Kumar Sikka v. Monika (2019) the P & H High Court held as under:

  • “12. Court cannot say that it would impound the document only when the document is tendered in evidence for marking. There may be instances where duty and penalty payable may be very high and the party may not choose to rely upon such insufficiently stamped document in order to avoid stamp duty and penalty. In such circumstances, it would result in loss of revenue to the exchequer. The power of impounding a document is to collect stamp duty and penalty whenever there is an escape of duty. Therefore, when it is brought to the notice of the Court that a document is insufficiently stamped, the Court exercising its power under S. 33 of the Act has to pass an order at the first instance for impounding the document. Though there is a discretion vested in the Court to exercise powers under S. 33 and 34 of the Act, no Court can hold that it would wait till the document is tendered in evidence. In such circumstances, there may be chances of loss of revenue to the exchequer.”

Copy of a Deed Cannot be Impounded; it cannot be Validated by Impounding

In Hariom Agrawal v. Prakash Chand Malviya , AIR 2008 SC 166, it is held as under:

  • “8. It is clear from the decisions of this Court and a plain reading of Ss. 33, 35 and 2(14) of the Act (Madhya Pradesh Stamp Act) that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Sec. 35 of the Stamp Act. Ss. 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Sec. 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.”

See Blog: No Adjudication Needed If Power of Attorney is Sufficiently Stamped

Can Unregistered Agreement be admitted in a suit for specific performance?

  • It is held in S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.
  • It is followed in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC  639.

Relevant Provisions in the Registration Act:

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

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

Pay Duty With Penalty to Admit Unstamped Deed for Collateral Purpose

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

  • “…. Hence, if the appellant-defendant wants to mark these documents for collateral purpose it is open for them to pay the stamp duty together with penalty and get the document impounded and the trial court is at liberty to mark Exts. B-21 and B-22 for collateral purpose subject to proof and relevance.” 

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

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

K.B. Saha and Sons Private Limited v. Development Consultant Ltd

Section 49 of the Registration Act expressly states admissibility of unregistered documents  in evidence for collateral purposes.

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

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

‘Collateral Purpose‘ under Sec. 49 Registration Act

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

The Supreme  Court observed in Sri Venkoba Rao Pawar v. Sri S. Chandrashekar, that the collateral purpose/transaction must be independent of, or divisible from the transaction which requires registration. In Yellapu Uma Maheswari v. Buddha Jagadheeswararao, (2015) 16 SCC 787, the Apex Court held that in the suit for declaration of title, an unregistered document can be relied upon for collateral purposes i.e. to prove his possession, payment of sale consideration and nature of possession; but not for primary purpose i.e. sale between the plaintiff and defendant or its terms.

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

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

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

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

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

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

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

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

Unregistered Agreement to sell is admissible in evidence

R.  Hemalatha v. Kashthuri, AIR 2023 SC 1895; 2023-10 SCC 725, it was held pointing out the proviso to Section 49 of the Registration Act –

  • that an unregistered Agreement to sell is be admissible in evidence in a suit for specific performance and the proviso is exception to first part of Section 49.

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

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

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

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

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

Unregd. Partition Deed Admissible to see Severance & No Suit for Partition lie

In Chinnapareddigari Pedda Muthyalareddy v. Chinnappareddigari Venkatareddy, AIR 1969 AP 242, unregistered partition lists were drawn up showing the properties allotted to the respective sharers. The lists were construed as partition deeds and were held by the trial Court to be inadmissible in evidence for proving division by metes and bounds. No oral evidence was held to be admissible under section 91 of the Evidence Act to prove the factum of partition or the nature of possession. In appeal the Andhra Pradesh High Court (FB-Jaganmohan Reddy, C.J.) held that the unregistered partition deed was admissible not for proving terms of the partition or as the source of title, but for the purpose of showing that there was a disruption (division/severance) in status and that no suit for partition would lie on the basis that the properties were still joint family properties. This decision is relied on in Booraswami v. Rajakannu, 1978-1 MLJ 248; and held further, relying on K. Kanna Reddy v. K. Venkata Reddy, AIR 1965 AP 274, that for determining status and the nature of the possession oral evidence was also admissible (for proving the factum of partition).

Effect of Marking a Document Without Objection

Unregistered (Compulsorily Registrable) Documents:

With respect to unregistered documents it is held by the Apex Court in K.B. Saha and Sons Private Limited v. Development Consultant Ltd, (2008) 8 SCC 564: 2008 AIR SCW 4829, held as under:

  • “34. From the principles laid down in the various decisions of this Court and the High Courts, as referred to here-in-above, it is evident that :
  • A document required to be registered is not admissible into evidence under section 49 of the Registration Act.
  • Such unregistered document can however be used as an evidence of collateral purpose as provided in the Proviso to section 49 of the Registration Act. ….”

In the light of the Supreme Court decision in K.B. Saha and Sons Private Limited , it appears that the observation of the Karnataka High Court in Nanda Behera v. Akhsaya Kumar Behera, 2017AIR (CC) 1893, that once the Court, rightly or wrongly, decides to admit the documents in evidence, so far as the parties are concerned, the matter is closed, is not applicable to unregistered (compulsorily registrable) documents.

However, the Calcutta High Court in Dipak Kumar Singh v. Park Street Properties (P) Limited, AIR 2014 Cal 167, distinguished K.B. Saha & Sons Private Limited, (2008) 8 SCC 564, and other decisions saying that ‘the question of admissibility of a document, which had been admitted in evidence, was not taken up for consideration’ in those decisions. The High Court relied on Javer Chand v. Pukhraj Surana, AIR 1961 SC 1655 (question as to admissibility on the ground that it has not been stamped), which held that once a document had been marked as an exhibit in a case and the trial had proceeded all along on the footing that the document was an exhibit in the case and had been used by the parties in examination and cross-examination of their witnesses, it was not open either to the trial court itself or to a court of appeal or revision to go behind that order.

The other decisions referred to and distinguished in Dipak Kumar Singh v. Park Street Properties (P) Limited are the following:

  • Ram Kumar Das v. Jagdish Chandra Deo, Dhabal Deb: AIR 1952 SC 23,
  • Satish Chand Makhan v. Govardhan Das Byas: (1984) 1 SCC 369,
  • Anthony v. K.C. Ittoop: (2000) 6 SCC 394,
  • Surya Kumar Manji v. Trilochan Nath: AIR 1955 Cal 495,
  • Kunju Kesavan v. M.M. Philip: AIR 1964 SC 164,
  • Prasanta Ghosh  v. Pushkar Kumar Ash: 2006 (2) CHN 277.

Similar Articles:

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe“

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Pleadings Should be Specific; Why?

Jojy George Koduvath.

Abstract: Why ‘Particulars’ are Insisted in Pleadings

  • 1. To give Notice to the other side.  
  • 2. To narrow down the controversy.
  • 3. To give definiteness to the stance of parties in court.
  • 4. Pleadings must be pregnant enough to produce an issue.
  • 5. It is Court that draws inference as to ‘abstract’ propositions.
  • 6. Pleadings constitute the skeleton that give shape to the case.

Introduction

Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basics of pleading. They read as under:

  • Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
  • Rule 2: Pleading to state material facts and not evidence:
  • (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
  • (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
  • (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Order 6 rule 4 of the Civil Procedure Code stipulates guidelines for precise pleadings. Order 6 Rule 4 CPC reads as under:

  • “Rule 4. Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

Order VIII Rule 3, 4 and 5 CPC reads as under:

  • Rule 3: Denial to be specific: It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
  • Rule 4: Evasive denial: Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
  • Rule 5: Specific denial: (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
  • Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
  • (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
  • (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
  • (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Concise Statement of Material Facts – Explained

Order VI rule 2 reads as under:

  • “2: Pleading to state material facts and not evidence:
  • (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.”

AS Anand, J. in Mohd.  Sadiq v. Rafiq Hussain Khan, 1978 JKLR 580, explained what is concise statement of material facts, as under:

  • “Assuming, that the petitioner could not give all the necessary details, as noticed earlier, nothing could have stopped him from giving at least the total number of votes which were either illegally accepted or illegally rejected or from stating as to why he considered the rejection or acceptance of any particular ballot paper to be illegal. In the absence of such particulars, in the petition, the allegations made in the petition are general and vague. Merely stating “a number of void votes” were counted in favour of the returned candidate or that “a number of valid votes” polled for the petitioner were illegally rejected, does not satisfy the requirements of given a concise statement of material facts in the petition and no order of recount can be made on the basis of such vague pleas.”

Under Order 6 rule 4, CPC, vague or general allegations are insufficient in pleading with respect to the matters laid down in this rule(f.n. 1) and it requires ‘full‘ particulars of such matters in pleadings(f.n. 2).

Plaintiff must plead the correct property number, extent and also boundaries

In Naganna  v. Siddaramegowda (Neutral Citation: 2025 INSC 369, dt. 19.3.2025), it is held as under:

  • “One who comes before the court with a declaration that, he is the absolute owner of the schedule property, he must plead the correct property number, extent and also boundaries before the court with cogent and acceptable evidence. On critical assessment of the material placed on record, the Trial Court arrived at the conclusion that the plaintiffs had failed to prove their ownership over the scheduled property by adducing acceptable oral and documentary evidence.”

Why ‘Particulars’ insisted in Pleadings

A pleadings shall contain only material facts; not law. For that, material ‘Particulars’ insisted. They are –

  • 1. To narrow down the controversy to precise issues:
    • Trojan & Co. v. RM. N.N. Nagappa Chettiar : AIR 1953 SC 235; 
    • Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279;
    • Raruha Singh v. Achal Singh ; Om Prakash Gupta v. Ranbir B. Goyal : AIR 2002 SC 665;
    • Ishwar Dutt v. Land Acquisition Collector: AIR 2005 SC 3165;
    • State of Maharashtra v. Hindustan Construction Company Ltd. : (2010) 4 SCC 518.
    • Kalyan Singh Chouhan v. C.P.Joshi, AIR 2011 SC 1127;
    •  K. Anil Kumar v. Ajith, ILR 2012-4 Ker 632: 2012-4 KLT 545.
  • 2. Notice to other side and ‘protect the party charged with improper conduct from being taken by surprise’:
    • Ladli Prashad Jaiswal. v. Karnal Distillery, Co., AIR 1963 SC 1279;
    • Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242.  
    • Shyam Narayan Prasad v. Krishna Prasad, AIR 2018 SC 3152; 2018-7 SCC 646.
  • 3. Definiteness to the stance in court. Strictness in pleading ‘material facts’ is adopted in the procedural law also with a view to prevent a party from taking a changed position (from what he had taken at the time of making the pleading) to suit the situation that may be emerged subsequently, and thereby prejudice the other party. And to prevent cases being expanded or grounds being shifted during trial.
    • Bachhaj Nahar v. Nilima Mandal: AIR 2009 SC 1103.
  • 4. It is court that draws inference as to ‘abstract’ propositions. Plaint should contain plain facts; not law. Presentation of pleadings in mere ‘abstract’ propositions (like: injury, damages, illegality, trust, bias) is improper. Law requires pleading of “material facts” (rule 2 of Order VI) and “particulars” (rule 4 of Order VI). Facts that lead to such inferences must be pleaded in clear terms; and it is for the court to draw a reasonable inference as to such ‘abstract’ propositions or inferences from the facts pleaded and established.
  • Pleadings as to mere ‘mala fides‘, without details, it is held in Coal India Ltd. v. Ananta Saha, 2011-5 SCC 142, as under:
  • “36. In M. Sankaranarayanan, IAS v. State of Karnataka & Ors., AIR 1993 SC 763, this Court observed that the Court may –
    • “draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of insinuation, surmise or conjecture.”
  • 37. There has to be a very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition, as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide: M/s. Sukhwinder Pal Bipan Kumar & Ors. v. State of Punjab & Ors., AIR 1982 SC 65; Shivajirao Nilangekar Patil v. Dr. Mahesh Madhav Gosavi & Ors., AIR 1987 SC 294; and Samant & Anr. v. Bombay Stock Exchange & Ors., (2001) 5 SCC 323).”
  • Pleadings as to mere ‘consent‘ of a candidate with respect to a corrupt practice, without details –
    • Balan v. Manoharan Master, 1988 (1) KLT 717.
  • 5. Pleadings must be pregnant enough to produce an issue on fact or law, and conduct an investigation (if opposite side varies), inasmuch as a bald and general allegation cannot be sufficient to lead to an issue–
    • K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425).
    • General allegations insufficient to take notice by the court, however strong the allegation is- AIR 1977 SC 615.
  • 6. Pleadings are meant to enable courts to determine what is really at issue between the parties
    • Shyam Narayan Prasad v. Krishna Prasad, AIR 2018 SC 3152; 2018-7 SCC 646.
  • 7. Pleadings constitute the skeleton that give shape to the case. For every motion, including drawing adverse inference for non-production of a document, lack of bonafides etc., the court has to apprise the pleadings–
    • Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).
  • 8. No Relief Can Be Granted On A Case Not Founded In The Pleadings. It is the well-entrenched principle of law that no relief can be granted on a case not founded in the pleadings
    • National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad, (2011) 12 SCC 695;
    • Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025 (Neutral Citation: 2025 INSC 1145)

If no specific pleadings, no evidence can be looked into

In the absence of specific pleadings, no evidence can be looked into in relation thereto.

  • Duggi Veera Venkata Gopala Satyanarayana Vs. Sakala Veera Raghavaiah (1987) 1 SCC 254;
  • Sri Venkataramana Devaru Vs. State of Mysore & Ors. AIR 1958 SC 255;
  • Bhagwati Prasad Vs. Chandramaul, AIR 1966 SC 735
  • Gajanan Krishnaji Bapat Vs. Dattaji Raghobaji Meghe (1995) 5 SCC 347;
  • Ram Sarup Gupta (Dead) By LRs v/s. Bishim Narain Inter College & Ors : (1987) 2 SCC 555.
  • Abubakar Abdul Inamdar Vs. Harun Abdul Inamdar AIR 1996 SC 112,
  • Gulabrao Balawantrao Shinde Vs. Chhabubai Balawantrao (2003) 1 SCC 212
  • Bondar Singh Vs. Nihal Singh (2003) 4 SCC 161
  • M Chandra Vs. M Thangamuthu, AIR 2011 SC 146. 

Plea ‘Arising out of what is alleged‘ or ‘otherwise Apparent’ Sufficient

In Udhav Singh v. Madhav Rao Scindia, (1977) 1 SCC 511, it is observed as under:

  • “25…If the plea or ground of defence ‘raises issues of fact not arising out of the plaint’, such plea or ground is likely to take the plaintiff by surprise, and is therefore required to be pleaded. If the plea or ground of defence raises an issue arising out of what is alleged or admitted in the plaint, or is otherwise apparent from the plaint, itself, no question of prejudice or surprise to the plaintiff arises. Nothing in the rule compels the defendant to plead such a ground, not debars him from setting it up at a later stage of the case, particularly when it does not depend on evidence but raises a pure question of law turning on a construction of the plaint.” (Quoted in: Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144)

Evidence beyond pleadings

Following are the accepted propositions of law.

  • Proof in variance of pleadings cannot be accepted.
  • Statement of witness beyond pleadings will not be read in evidence.
  • Reference to pleadings first and then to evidence is the rule. (Sujan Singh v. Lalsahab, TK Thommen, J., 1993 JLJ 552)
  • Decision of a case cannot be based on grounds outside the pleadings (Trojan and Co. , AIR 1953 SC 235).
  • On the failure of a party to prove his case, the Court cannot make out a new case for him. Sheodhari Rai (AIR 1954 SC 758).
  • Endorsement of the Sub -Registrar on the sale deed that the vendor has admitted receipt of consideration ‘loses sanctity’ if the vendor has not denied that he made that statement to the Sub-Registrar and his case is that the arrangement was to pay within a stipulated period and if there was default the vendee would execute a sale-deed in vendor’s favour. (Sujan Singh v. Lalsahab, TK Thommen, J., 1993 JLJ 552)

No New Case At The Appellate Stage

In Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025 (SC – Neutral Citation: 2025 INSC 1145), it is held by our Apex Court as under:

  • “This Court cannot entertain an entirely new case at the appellate stage at the behest of either party and is strictly confined to adjudicate the issues arising from the suit as framed by the pleadings of the parties.
  • 19. This rule has been consistently affirmed across time and is rooted in the very purpose of pleadings-namely, to define the scope of the dispute and enable the court to adjudicate upon the rights of the parties. Pleadings, together with the issues framed thereon, serve to crystallise the points of conflict, ensure that each side is apprised of the case it has to meet, and afford both parties a fair opportunity to lead evidence and advance submissions (Kalyan Singh Chouhan v. CP Joshi, (2011) 11 SCC 786; Trojan and Co. v. Nagappa Chettiar, AIR 1953 SC 235.)”

Not necessary to Plead ‘Specific Words‘ or Expressions in the Statute

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, 1987- 2 SCC 555, our Apex Court has held that when necessary pleadings were taken, though not in specific words, and parties were aware about the point in dispute and the parties had also led the evidence, merely because the, plea of irrevocability was not taken in so many words, it is not sufficient to reject the case of licensee. The Supreme Court held as follows :

  • “It in well settled that the pleadings need not reproduce the exact words or expressions as contained in the statute, nor the question of law is required to be pleaded. The substance of the respondent’s pleadings clearly informed that their case was that they had made constructions on the land acting upon the licence which substantially met the requirement of law.” (Quoted in: Paryag Mahto v. Ram Janam Mahto, 1991 BBCJ 118 (Pat)

In Nawal Kishore Vr. Kauleshwari Devi, 1986 PLJR. 431, referring Nandlal Sah v. Pawan Devi (1979 BBCJ 599), Ouseph Verghese v. Joseph Aleya (1969) 2 SCC 539) and Preme Raj v. The DLF Housing and Construction Pvt. Ltd. (AIR. 1968 SC 1355) it was held as under :

  • “The ratio of the decision relied upon by both the parties, to my mind, is that there ought to be an averment of the plaintiff’s willingness and readiness to perform his part of the contract. This may not be in the exact words used by the Legislature. The substance of it, however must be there as required under section 16 of the Specific Relief Act. The surrounding circumstances most also indicate that the readiness and willingness continued from the date of the contract till the hearing of the suit. It is true that the plaint cannot be construed in the pedantic manner to non suit the plaintiff.” (Quoted in: Paryag Mahto v. Ram Janam Mahto, 1991 BBCJ 118 (Pat)

Rajiv Sahai Endlaw, J. observed in Sambhav Kapur v.British Indo German Industrial Organics Private Ltd. , 2017-236 DLT 123; 2017-69 PTC 617; 2017-4 RAJ 99, as under:

Pleading to contain “only” a statement in a concise form

  • “7. Burdening the plaint with passages of judgments and citing the said judgments is contrary to the tenet of pleadings and Orders VI and VII of the Code of Civil Procedure, 1908 (CPC) which requires a pleading to contain “only” a statement in a concise form of material facts on which the party relies for his claim or defence laying down negatively that it shall not contain evidence or law. It was also so held in
  • The Mah. State Ele. Board vs. Madhusudan Dass, AIR 1966 Bom 160 (DB),
  • Guruswami Achari vs. Vengiduswami Achari, AIR 1963 Mad 71,
  • Lakshmi Narain vs. Union of India, AIR 1962 Pat. 64 (DB) and
  • Sampuran Singh vs. Aryan Singh, AIR 1961 P&H 414 (DB).”

Pleadings need not reproduce exact words in the statute

  • “Supreme Court also, in Ram Sarup Gupta vs. Bishun Narain Inter College, (1987) 2 SCC 555 held
    • “it is well settled that the pleadings need not reproduce the exact words or expressions as contained in the statute, nor the question of law is required to be pleaded.”
  • The Division Bench of this Court also in Abhay Sapru vs. Chitralekha Bukshi, 2008 (106) DRJ 589 held that though “pleadings must contain only the material facts and not the law, yet copious reference to the law has been made.” Such burdening of the plaint with what is not required to be contained therein has a cascading effect, with the defendant replying thereto, the plaintiff filing replication thereto, issue, though not really required to be framed being framed thereon and often, evidence also being led thereon and is one of the causes of delay in disposal of suits.”

Courts to strike out pleadings under Order 6 Rule 16

  • “Rule 16 Order 6 empowers the Courts to strike out pleadings which are unnecessary or vexatious or which may delay trial. Though power thereunder is found to have been used often in the past, with pleadings not conforming to the requirement of law being labelled as mofussil pleadings and being blamed on weakness, in language and law, of pleaders in mofussil courts but owing to docket explosion is now exercised rarely.”

A time has come for maintaining the discipline of legal proceedings

  • “The Division Bench of this Court in Teva Pharmaceutical Industries Ltd. vs. Natco Pharma Ltd. (2014) 210 DLT 591 also lamented on the malady afflicting courts in cities including on the original side of the High Court. However refrain of the courts in exercising powers to strike off such pleadings is resulting in the principles of drafting of pleadings being thrown to the wind and passages of judgments being quoted in the plaint. A time has perhaps come for the Courts, which are responsible for maintaining the discipline of the legal proceedings before them, to refuse to entertain such pleadings to send a message to the pleaders. The plaint, being not in accordance with law and as provided in CPC, is liable to be rejected on this ground alone.”

No party should be Permitted to Travel Beyond its Pleading

In Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, it was held as under:

  • “6………It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet…. In such a case it is the duty of the court to ascertain the substance of the pleadings to determine the question.”
  • Also See: Syyad Mohammad versus Fateh Bahadur, (1894-95) 22 IA 4 PC; Sidiq Lal Shah v. Saran, 2003(8)SCC 740.

In J.K. Iron & Steel Co. Ltd. Kanpur v. The Iron and Steel Mazdoor Union, Kanpur : AIR 1956 SC 231, our Apex Court held as under:

  • “It is not open to the Tribunals to fly off at a tangent and, disregarding the pleadings, to reach any conclusions that they think are just and proper.”

Pleadings should be Precise in Easement: Why?

Kerala High Court, in Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty, AIR1993 Ker 91, 1992 (1) Ker LT 775, (1993) ILR(Ker) 1 KER 331 (K.S. Paripoornan, J.), it is held as under:

  • “Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings should be precise.”

The court quoted Gale on Easements (15th Edn.) (Pages 415) which 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.”

It was also pointed out that in Surendrasingh v. Phirosahah, AIR 1953 Nagpur 205, a Division Bench of their Lordships Sinha C.J. and Hidayatullah, J. stated, at page 206 (para 9), that the pleadings in a case dealing with easement have to be very precise. Their Lordships quoted the following passage from Peacock – “Law Relating to Easements in British India” Third Edn., at page 608:

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

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.”

Finally K.S. Paripoornan, J. remanded the case holding as under:

  • “Though it is belated, I do not think that the plaintiffs should be put out of court due to a technical error or mistake that has crept in the proceedings. If the plaint is amended, the appellants/defendants should be given an opportunity to file additional written statements.”

Sec. 60 (b) Easement Act: Specific Contention Needed

Pleading and evidence are insisted in cases which claimed ‘irrevocable licence’ under Sec. 60 (b) Easement Act. See:

  • R. Mohan v. Sarat Chandran Nair, 2016-4 KHC 318; 2016-4 KLT 15.
  • Ramesh Raghunath v. Pandurangrao Ambadasrao Ratnalikar, 2006-4 BomCR 910 (Plea and evidence necessary, though right not claimed in “specific words”)
  • Zila Panchayat Etah v. Om Prakash Shah, 01 Sep 2017 2017 0 Supreme(SC) 1418

In Zila Panchayat Etah v. Om Prakash Shah, 01 Sep 2017; 2017 0 Supreme(SC) 1418, it is held as under:

  • “13. Thus, in our view, even as per the pleadings of the plaintiff, the suit could not have been decreed. Apart from that, we find that the findings recorded by the trial court as to the ownership of plaintiffs are wholly perverse and impermissible. The documentary evidence could not have been discarded in the method and manner in which it has been done. There was absolutely nothing to rebut the Nazul Khasra or the records maintained by the municipality and Zila Parishad. The appellant had pleaded Survey numbers in its written statement very clearly and had adduced evidence in this regard. There was absolutely nothing to discard the documentary evidence adduced by the appellant and rely upon oral ipse dixit evidence of the plaintiff-respondent. There is statutory presumption of correctness of revenue entries which has not been rebutted in the instant case. The plaintiff-respondent was claiming his ownership on the property in question, but no documentary evidence had been adduced on his behalf indicating that they were the owners of the property in question. Absence of entry in relevant documents of ownership also negates case of plaintiffs. Thus the property in question was clearly under the ownership of the Government. Even assuming that it belonged to the ancestors of the plaintiff, once the land had been given to run a school, which had been constructed on the land by District Board, obviously licence could not have been revoked. It was admitted by the plaintiff, Om Prakash Shah, that the property in question is plot No.212. The record indicates that it is owned by respondent-plaintiff.
  • 14. Thus we find no legal basis to sustain the judgment and decree passed by the courts below, the same are wholly unsustainable. An attempt has been made by the plaintiff to illegally usurp the valuable property of the school. Suits were frivolously filed without any right, title or interest.”

In Shankar v. Gangabai, AIR 1976 SC 2506, the Supreme Court observed as under:

  • “Paced with this difficulty, learned counsel for the appellant was driven to raise points on which there is no pleading, no issue and naturally no satisfactory evidence. The first of such contentions raised by Mr. Bal is that the appellant must be deemed to be a licensee of the respondent and since he has executed work of a permanent character on the land involving heavy expenses, the licence would be irrevocable under S.60 (b) of the Easements Act, 1882 only one more thing need be stated: even assuming that the appellant has executed work of a permanent character on the land it cannot be said that he has done so acting upon the licence“, as required by S.60 (b) of the Basements Act. If be really improved the land by executing a work of a permanent character, be did so in the belief that being a tenant he will become a statutory purchaser of the land, or that the oral agreement of sale will one fine day be implemented The execution of work would therefore be in his capacity as a tenant or a prospective purchaser and not in his capacity as a licensee”. (Quoted in: Kesavan Nair Vs Narayanan Nair, 27 Oct 1988 1988 2 KLT 1006)

In R. Mohan v. Sarat Chandran Nair, 2016-4 KHC 318; 2016-4 KLT 15, it is held as under:

  •  “It is submitted by the learned counsel for the appellant that the engineering workshop is conducted in a makeshift shed. I have carefully gone through the averments in Ext.B2. It does not spell out any authorisation to the respondent to make a permanent structure. In the absence of such a stipulation in Ext.B2 and in the absence of evidence before the courts below that he had incurred expenses for construction of a shed for running a workshop, the courts below are not justified in holding that the respondent is entitled to get the benefit of Section 60(b) of the Act. Therefore, the contention of appellant that the lower courts erred is sustainable. Hence the substantial question of law is to be answered in favour of the appellant.”

In Gujarat Ginningand Manufacturing Co. Ltd., Ahmedabad v. Moti Lal Hirabhai Spinning and Manufacturing Co. Ltd., Ahmedabad, AIR 1936 PC 77,  protection of S. 60(b) of the Act was invoked by a party who had made constructions on his own land and not on the land of the licenser and in that factual backdrop the Privy Council held that the expression “acting upon the license” must mean “acting upon a right granted to do upon the land of the grantor something which would be unlawful in the absence of such right.” A man does not “acting upon a license” execute works and incur expense upon his own property as that he can do without any ones license. (Referred to in: Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987  SC 1242; 1987-2 SCC 555)

Issues, and not Pleadings as such, guide in adducing evidence

The court decides the matters on the issues framed. Sitaram v. Radhabai, AIR 1968 SC 534,  Gappu Lal v. Thakur Sripada, (1969)1 SCC 92 , Vishwanath Agarwal v. Sibitribera, 2009(15) SCC 593.

The object of framing of issues is to ascertain the points in dispute and pinpoint the matters for determination by the court. It is also not to surprise the parties at the trial. It is the issues, and not pleadings as such, guide in adducing evidence by the parties.

No Adjudication, If No Issue

In Kalyan Singh Chouhan v.  CP  Joshi, AIR 2011 SC 1127, the Apex Court held that no courts decide a suit on a matter/point on which no issue has been framed. It is to ascertain/shorten the area of dispute and pinpoint the points required to be determined by the court, so that no party at the trial is taken by surprise. The court referred following decisions:

  • Sayad Muhammad. v. Fatteh Muhammad20 (1894-95) 22 Ind. App. 4 (PC)
  • Raja Bommadevara Venkata v. Raja Bommadevara Bhashya, (1902) 29 Ind. App. 76 (PC);
  • Siddik Mohd. Shah v. Saran, AIR 1930 PC 57;
  • Sita Ram v. Radha Bai, AIR 1968 SC 535;
  • Gappulal v. Thakurji Shriji Dwarkadheeshji, AIR 1969 SC 1291; and
  • Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693.

With reference to the following decisions, in Kalyan Singh Chouhan v. CP Joshi, AIR 2011 SC 1127,   it was also pointed out that there may be exceptional cases wherein the parties proceeded to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation thereof by the other side; and in such an eventuality, it would not be permissible for a party to submit that the proceedings stood vitiated. The decisions were the following:

  • Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593;
  • Nedunuri Kameswaramma v. Sampati Subba Rao, AIR 1963 SC 884;
  • Kunju Kesavan v. M.M. Philip, AIR 1964 SC 164;
  •  Kali Prasad Agarwalla v. M/s. Bharat Coking Coal Ltd., AIR 1989 SC 1530;
  • Sayed Akhtar v. Abdul Ahad, (2003) (7) SCC 52; and
  • Bhuwan Singh v. Oriental Insurance Co., AIR 2009 SC 2177.

“All other cases in which particulars may be necessary“

Order 6 rule 4 of the CPC enumerates the following:

  • misrepresentation,
  • fraud,
  • breach of trust,
  • willful default,
  • undue influence and
  • “all other cases in which particulars may be necessary”.

Following are the matters that commonly come for consideration of court under the head, “other cases in which particulars may be necessary”:

  • Injury,
  • Damages,
  • Illegality,
  • Collusion,
  • Victimisation,
  • Mala-fides,
  • Bias,
  • Unconstitutionality,
  • trust,
  • consent,
  • Irregularity.

In short, in pleadings, wherever it is required to make clear ‘abstract’ propositions, it must have been done; otherwise it will be termed ‘vague pleading’.

Illegality

While dealing with a matter pertaining to recount of votes, referring Apex Court decisions(f.n.3), it was held in Indira Devi v. State of Bihar, 2019-1 Pat LJR 670, that the vague pleadings that illegality was committed while counting the ballot papers and that there were improper acceptance of invalid votes and improper rejection of valid votes, were not sufficient to invoke the jurisdiction of the court.

Kerala High Court, in St.  Marys Orthodox Church v. Thankamani Rajan, 2016-1 Ker LT(SN) 38, while considering the issue as to grant the licence/permission to construct a cemetery it was observed, referring various Supreme court decisions(f.n.4), as under:

  • “36. Therefore, while challenging the decision making process of a public authority, as in the instant case, as to its legality, propriety or reasonableness, it is not sufficient that the averments should be in generalised terms as if the entire decision making process is vitiated by illegality or impropriety, etc. or that none of the legal formalities or official formalities has been complied with by the decision maker, etc. But the factual foundation for such challenge should be cogently and precisely pleaded in the plaint so as to disclose a specific and concrete case as to how the decision has been vitiated by any illegality or impropriety or unreasonableness, etc. Mere pleading in generalised terms that none of the legal procedural formalities have been complied with or that the provisions of statutory formalities have been blatantly violated, etc. will not do and that the pleadings should be precise and cogent as stated above. The essence of fair play in a civil trial demands this aspect. It is only then that the opposite side can be called upon to prepare the defence properly so that they can have reasonable opportunity to frame a defence and plead the averments in their written statement of objections to the plaint accordingly in such civil proceedings. So also, the defendants could then get a reasonable opportunity to know as to the type of evidence that they are called upon to let in, in order to meet the specific allegations and averment in the plaint. In the instant case, there are no specific and concrete pleadings in the plaint that the Municipality has not referred the matter to the District Collector for his approval before the Municipality had taken the impugned decision. So also, there is no pleading or averment in the plaint, in precise and concrete terms, as to the D.M.O. had not conducted any inspection or committed any procedural lapses before making the recommendation to the Municipality. Therefore, it is totally impermissible in law for the plaintiffs to let in any evidence on that aspect of the matter. Even if any evidence has been let in on those aspects of the matter, it is the duty of the court not to take into consideration any such evidence in view of the conclusive legal position settled as stated above. Therefore, on this ground alone, the trial court and the lower appellate court have committed a grave error in holding that the official defendants (statutory authorities concerned) have violated the statutory provisions and that they have not complied with the legal formalities, etc. on the basis of the evidence so let in the instant trial. Therefore, the said finding of both the courts below is tainted by grave error and illegality and is liable to be reversed by this Court.”

Coercion

When collusion is taken as a ground in a case, full particulars thereof are to be pleaded. In Varanaseya Sanskrit Vishwavidyalaya v. Rajkishore Tripathi, AIR 1977 SC 615, invoking Order VI, Rule 4, CPC and referring Bishundeo v. Seogeni Rai, AIR 1951 SC 280, it was held as under:

  • “General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice, however strong the language in which they are couched may be, and the same applies to undue influence and coercion.”

Fraud and Collusion

While considering Order VI Rule 4 of CPC in K.S. Mariyappa v. K.R. Siddalinga Setty, AIR 1989 Kar 425, it was observed that in the absence of necessary particulars pleaded by the plaintiffs regarding fraud and collusion, it was not possible to hold that the plaint contains necessary averments as to fraud and collusion. The Court held further as under:

  • “Such a bald and general allegation without material particulars in the light of rule 4 of Order 6 of the Code of Civil procedure cannot be held to be sufficient to lead to an issue. Mere general allegation that an act or the deed is vitiated by fraud and collusion is no plea of fraud and collusion. Material particulars such as when and how and who and in what manner and for what purpose the fraud was practised and who colluded with whom and in what manner and with what object or purpose etc., must be averred.” 

Fraud must be pleaded and proved. Without substantiating materials fraud cannot be merely assumed. See: Taluk Vyavasaya Coolie Sangham v. K. Suresh Reddy, (2003) 7 SCC 667; Joint Collector Ranga Reddy District v. D. Narsing Rao, (2015) 3 SCC 695.

Charge of Victimisation

Charge of victimisation must not be vague or indefinite. It is an amalgam of facts as well as inferences and attitudes. It is to be established by safe and sure evidence. Mere allegations, vague suggestions and insinuations are not enough (Bharat Iron Works v. Bhagubhai Balubhai Patel, AIR 1976 SC 98. Referred to in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019 8 SCC 701).

Mala-fides and Bias

In State of Bihar v. P.P. Sharma, JT 1992 (2) SC 147 : 1992 (Suppl. 1) SCC 222 it is held that mere assertion or a vague or bald statement as to mala fides, is not sufficient and that it is well settled that the burden of proving mala fide is on the person making the allegations and the burden is ‘very heavy’ [See also: E.P. Royappa v. State of TN, 1974 (4) SCC 3]. It is also pointed out that there is every presumption in favour of the administration that the power has been exercised bona fide and in good faith; and that the allegations of mala fide are often more easily made than made out and the very seriousness of such allegations demands proof of a high degree of credibility. Further, the Apex Court referred to  Krishna Iyer, J. in Gulam Mustafa v. State of Maharashtra [1976 (1) SCC 800] where it was stated:

  • ‘It (mala fide) is the last refuge of a losing litigant.’ 

In State of M.P. v. Nandlal Jaiswal [JT 1986 (2) SC 701 : 1986 (4) SCC 566], the Supreme Court emphasised the need for furnishing full particulars of allegations suggesting mala fides as under:

  • “In the first place it is difficult to appreciate how any such observation could be made by the learned Judge without any foundation for the same being laid in the pleadings. It is true that in the writ petitions the petitioners used words such as ‘mala fide’, ‘corruption’ and ‘corrupt practice’ but the use of such words is not enough. What is necessary is to give full particulars of such allegations and to set out the material facts specifying the particular person against whom such allegations are made so that he may have an opportunity of controverting such allegations.”

Malafides – Vague general allegations are not sufficient. (2018(2) KLT 236).

Insufficient Pleadings – No Investigation

In Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280: 1951 SCR 548, it was observed as under:

  • “… In cases of fraud, undue influence and coercion, the parties pleading it must set forth full particulars and the case can only be decided on the particulars as laid. There can be no departure from them in evidence. General allegations are insufficient even to amount to an averment of fraud of which any court ought to take notice however strong the language in which they are couched may be and the same applies to undue influence and coercion.” : Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701).

In Smt. Swaran Lata v. Union of India [(1979) 3 SCC 165], the Apex Court held that in the absence of particulars, the Court would be justified in refusing to conduct an investigation into the allegations of malafides. The court said:

  • “In our view, the allegations in the writ petition are not sufficient to constitute an averment of mala fides or bias on the part of either the Chandigarh Administration or, in particular, against Dr. 0. S. Sehgal sufficient to vitiate the appointment of respondent 6. No mala fides as such are imputed against the Union Public Service Commission. The court would be justified in refusing to carry on investigation into allegations of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition. The burden of establishing mala fides lies very heavily on the person who alleges. …. The appellant further averred that she had, in her representation dated 1/05/1975, alleged that after the interview she had overheard Dr. 0. S. Sehgal talking to the third lady member, saying as to ‘how they could take this lady’, meaning the appellant, ‘as the Principal’ and, therefore, she felt that she was a victim of the machination of Dr. Sehgal. There is nothing on record to substantiate such general and vague allegations of the appellant as to mala fides or bias on the part of Dr. Sehgal.”

Referring above decisions, in Mutha Associates v. State of Maharashtra, (2013) 14 SCC 304: 2013-2 Ker LT 1103, the Apex Court observed as under:

  • “39. The law regarding pleading and proof of ‘malice in fact’ or mala-fides as it is in common parlance described is indeed settled by a long line of decisions of this Court. The decisions broadly recognise the requirement of allegations suggesting “malice in fact” to be specific and supported by necessary particulars. Vague and general averments to the effect that the action under review was taken mala-fide would not therefore suffice. Equally well settled is the principle that the burden to establish that the action under challenge was indeed mala-fide rests heavily upon the person making the charge; which is taken as quasi criminal in nature and can lead to adverse consequence for the person who is proved to have acted mala-fide. There is in fact a presumption that the public authority acted bona-fide and in good faith. That presumption can no doubt be rebutted by the person making the charge but only on cogent and satisfactory proof whether direct or circumstantial or on admitted facts that may support an inference that the action lacked bona-fides and was for that reason vitiated. The third principle equally sanctified by judicial pronouncements is that the person against whom the charge is made must be impleaded as a party to the proceedings and given an opportunity to refute the charge against him.”
  • “45. The charge of malafides levelled against the appellant, Mr. Rane, the then Minister was not supported by any particulars. The writ petition filed by APMC did not provide specific particulars or details of how the decision taken by minister was influenced by Mutha Associates or by any other person for that matter. The averments made in the writ petition in that regard appeared to be general and inferential in nature. Such allegations were, in our opinion, insufficient to hold the charge of ‘malice in fact’ levelled against the minister proved.”

In Ratnagiri Gas & Power Pvt.  Ltd.  v. RDS Projects Ltd., AIR 2013  SC  200; 2013-1 SCC 524 the Apex Court, pointing out the requirement of assertions in the writ petition and the presence of the officers concerned, held as under:

  •  “The law casts a heavy burden on the person alleging mala fides to prove the same on the basis of facts that are either admitted or satisfactorily established and/or logical inferences deducible from the same. This is particularly so when the petitioner alleges malice in fact in which event it is obligatory for the person making any such allegation to furnish particulars that would prove mala fides on the part of the decision maker. Vague and general allegations unsupported by the requisite particulars do not provide a sound basis for the court to conduct an inquiry into their veracity.”

In Kamalakanta Mohapatra Vs. Pratap Chandra Mohapatra, AIR 2010 Ori 13, it is held as under:

  • The words “undue influence”, “fraud” and “misrepresentation” are cognate vices and may in part overlap in some cases, they are in law distinct categories and in view of Order 6, Rule 4 read with Order 6, Rule 2 of the Code of Civil Procedure required to be separately pleaded, with specificity, particularity and precision. In other words general allegations made in the plaint does not tantamount to particulars required to be pleaded under the said provision of the Code. The Constitution Bench of the Supreme Court in the case of Ladli Parshad Jaiswal v. The Karnal Distillery Co. Ltd. Karnal, reported in AIR 1963 SC 1279 observed that under Order 6, Rule 4 of the Code of Civil Procedure, in all cases where a party takes a plea of undue influence, particulars thereof should be unambiguously stated in the pleadings so as to enable the adversary to controvert the same. A vague and general plea to that effect would not serve the purpose and the pleading must be always very specific and precise in nature. This rule has been evolved with a view to narrow down the controversy and protect the party charged with improper conduct from being taken by surprise.
  • In the case of Afsar Shaikh v. Soleman Bibi, reported in AIR 1976 SC 163, the Supreme Court has reiterated the same principle and had clearly held that in a case where there are allegations with regard to fraud, undue influence and misrepresentation the said allegation/facts must be specifically indicated in the pleadings. Keeping in mind the provision of Order 6, Rule 4 of the Code of Civil Procedure, if the averments made in the plaint are examined it reveals that the basic requirement of Order 6, Rule 4 of the Code of Civil Procedure was not kept in mind while making the allegations and the same appear to be more on the basis of surmises and conjectures rather than cogent facts.
  • So far as the nature of proof of undue influence, fraud or misrepresentation are concerned in he case of Balabhadra Nisanka v. Suka Dibya, reported in 38 (1972) CLT 325, it was held by this Court that ‘fraud’ in a civil proceeding must be established beyond reasonable doubt as in a criminal proceeding. So far as the evidence to establish fraud is concerned, it is held by this Court in the case of Bira Jena v. Tauli Dei, respondent in 38 (1972) CLT 39 : (AIR 1972 Ori 143) that unless the particulars of fraud are pleaded in the plaint, no evidence should be allowed to be led in the suit and if any such evidence has unwittingly been introduced without any pleading, it must be ruled out of consideration. In other words, the standard of proof to establish fraud should be beyond all reasonable doubt. After discussing the evidence threadbare the appellate Court had clearly come to a conclusion that the same does not satisfy the basic requirement of mandatory requirement of law. Even otherwise in the absence of pleadings, the evidence adduced had to be ignored.”

In Balan v. Manoharan Master, 1988 (1) KLT 717, where a candidate said to have ‘consented’ a ‘corrupt practice’, it is held that without the objectionable part of the speech of the candidate being made available in pleading, proof in that respect was not possible.

Damages: Issue will be framed, without denial

As shown above, Order VIII Rule 3 gives an exemption to strict ‘denial’ with regard to the claim of ‘damages’. Why? J. B. Ross v. C. R. Screven, AIR 1917 Cal 269 explained as under:

  • “(O. 8, R 3, CPC) puts the burden on the plaintiff, whether or not the defendant denies in such a case an issue is necessary.” (Quoted in – Indore Malwa United Mills Ltd.  Vs Ramkaran Ghisslal, AIR 1963 MP197. Also see: W.  Jaya-raghavan v. The Leo Films, 1948 61 LW 173; 1948 1 MLJ 209)

In Fateh Chand Vs. Balkishan, AIR 1963 SC 1405, it was observed that the ‘Legislature has sought to cut across the web of rules and presumptions under the English common law’ with regard to the compensation to be awarded in case of breach of contract. Section 74 speaks as to ‘reasonable’ compensation. It is pointed out that this proposition as to ‘reasonable’ compensation, and thereby the intervention of court to fix the reasonable amount, laid down in Section 74, is a deliberate deviation from the English Common Law which allows forfeiture of genuine pre-estimated damages, by the affected party.

Damages (in general) are of three kinds

  • First, nominal
  • Second, general damages
  • Third, special damages.

Read Blog: Law on Damages in Defamation Cases

General Damages can be Awarded if failed to prove Special Damages

Court may, in proper cases, award ‘general damages’ even if the plaintiff failed to prove Special Damages; because, general damages need not be pleaded specifically, inasmuch as law will presume, without direct proof, the natural or probable consequence of an illegal or improper act. (Minor Veeran Vs. T. V. Krishna-moorthy, AIR 1966 Ker 172. Quoted with approval a passage from Law of Pleadings by Mogha.)

It was held by the Supreme Court of India in Maula Bux Vs. Union of India AIR 1970 SC 1955, that ‘forfeiture of earnest money under a contract for sale of property, if the amount is reasonable, does not fall within Section 74’. That is, when the forfeiture clause in a contract refers to a nominal (thereby reasonable) sum alone, as earnest money, it does not provide for an ‘amount to be paid in case of such breach’, or amount to imposing a penalty.  In such cases of forfeiture of reasonable (nominal) earnest money, it is immaterial ‘whether or not actual damage or loss is proved’.

Proper parties must be before the court

In All India State Bank Officers’ Federation v. Union of India: (1997) 9 SCC 151 it is observed as under:

  • “22. There is yet another reason why this contention of the Petitioners must fail. It is now settled law that the person against whom mala fides are alleged must be made a party to the proceeding. … Neither the Chairman nor the Directors, who were present in the said meeting, have been impleaded as Respondents. This being so the Petitioners cannot be allowed to raise the allegations of mala fides, which allegations, in fact, are without merit.”

Adverse inference for non-production (by the Other Party), only on considering pleadings

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld. But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably. It is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148 (f.n.5), as under:

  • “16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance.”

Parties to plead facts, not law; Court can take ‘Inferences’

Plaint should contain plain facts; not law. In M. Sankaranarayanan, IAS v. State of Karnataka. AIR 1993 SC 763, the Apex Court observed that the Court may ‘draw a reasonable inference of mala fide from the facts pleaded and established’ (It is quoted in Coal India Ltd. v. Ananta Saha, (2011) 5 SCC 142).

In E.P. Royappa v. State of T.N., 1974 (4) SCC 3, the Apex Court held as under:

  • “The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration.”

Kerala High Court, in Balan v. Manoharan Master, 1988 (1) KLT 717, it is observed (in a case where the candidate in an election said to have ‘consented‘ a ‘corrupt practice’) as under:

  • “On a material fact the petitioner cannot request the court to make an inference without supporting pleading. When pleading is absent proof is also not possible. Without the objectionable portions of the speeches being made available proof in that respect is also not possible.”

No Hyper-technical View

No hyper-technical view can be taken in analysing pleadings. See:

  • M. Chinnasamy v. K. C. Palanisamy, AIR 2004 SC 541; 2004-6 SCC 341
  • Ponnala Lakshmaiah v. Kommuri Pratap Reddy, AIR 2012 SC 2638.

In Leela Amma v Aravindaksha Menon, the Kerala High Court, 2012 2 KHC 169, held as under:

  • “The Court below was taking a hyper-technical view regarding the pleadings of the appellants. The object and purpose of pleadings is to enable the adverse party to know the case it has to meet. For a fair trial it is imperative that the party should state the essential material facts so that the other party may not be taken by surprise. At the same time pleadings should receive a liberal construction and no pedantic approach should be adopted so as to defeat justice on hair-splitting technicalities. The Court must find out whether in substance, the parties knew their respective case and the issues upon which they went to trial. Once it is found that in spite of the deficiency in the pleadings, the parties knew the case which arose for resolution and they proceeded to trial on those issues and adduced evidence in support of their respective versions, it would not be open to a party to question the absence of pleadings (Vide –
  • Kedar Lal v. Hari Lal, 1952 KHC 297 : AIR 1952 SC 47 : 1952 SCR 179 : 1952 (1) MLJ 431;
  • Bhagawati Prasad v. Shri. Chandramauli, 1966 KHC 493 : AIR 1966 SC 735 : 1966 (2) SCR 286 : 1966 ALJ 799 : 1967 BLJR 158 : ILR 1966 (1) All 796;
  • Ram Sarup Gupta v. Bishun Narain Inter College, 1987 KHC 965 : AIR 1987 SC 1242 : 1987 (2) SCC 555.;
  • Smt. Rajbir Kaur v. M/s.. S. Chokosiri and Co., 1989 KHC 1032 : AIR 1988 SC 1845 : 1989 (1) SCC 19. and
  • Para 15 of Prasanth v. Kalyani, 2007 (2) KHC 451 : 2007 (2) KLT 992 : ILR 2007 (2) Ker. 164 : 2007 (1) KLJ 910.”

Parties need not plead – Court can take ‘Presumptions’

In PRS Hospital Killipalam, Thiruvananthapuram v.  P.  Anil Kumar, 2021-1 Ker 287, it is held as under:

  • “Order 6 rule 13 of the CPC, which entitles that the parties need not plead any matter of fact which the law presumes in his favour, or as to which the burden of proof lies upon the other side.”

Order VI Rule 4 of CPC requires pleading with specificity, particularity and precision

In Ranganayakamma v. K.S. Prakash: AIR 2005 Kar 426; 2006 (3) Kar. L.J. 177, it is observed (relying on Kanchawwa v. Amagonda, AIR 2003 Kar. 434) that Order VI Rule 4 of Code of Civil Procedure is of a distinct category in law, requiring pleading with specificity, particularity and precision. It is pointed out that general allegations – using the words “fraud” and “misrepresentation” etc. – will not be sufficient; it should be shown – how fraud was played and misrepresentation occasioned. (Referred to in: K. V. Shivakumar v. National Institute of Mental Health And Neuro Sciences, 2016-4 AIR Kar R 754; ILR 2016 Kar 3114)

Undue Influence: Simple Pleading by Plaintiff may cast Burden on Defendant

In Chandrika Babu v. Sudhakaran, 2013 4 KLT(SN) 103 it is pointed out that the Apex Court’s judgment in Joseph John Peter Sandy’s case, AIR 2013  SC 2028; (2013) 3 SCC 801, would show that the required materials should be placed before the court in support of the plea to draw an inference of undue influence.

Even if a person is in a fiduciary relationship with another and his conduct in looking after the other in old age may have influenced the thinking of the other, that per se cannot lead to the only irresistible conclusion that the person was therefore in a position to dominate the will of the deceased. The onus would shift  only after the plaintiff would have established a prima-facie case under Section 16 of the Contract Act read with Section 111 of the Evidence Act (Anil Rishi v. Gurbaksh Singh,  AIR 2006  SC 1971; (2006) 5 SCC 558: referred to in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701).

In Subhas Chandra Das Mushib v. Ganga Prosad Das Mushib, AIR 1967 SC 878; 1967 (1) SCR 331, it was observed that there was no presumption of imposition merely because a donor was old and weak. Mere close relation also was insufficient to presume undue influence.  Influence and undue influence were distinguished in this decision as under:

  • “It must also be noted that merely because the parties were nearly related to each other no presumption of undue influence can arise. As was pointed out by the Judicial Committee of the Privy Council in Poosathurai v. Kappanna Chettiar,  (1919) 47 IA 1, AIR 1920 PC 65.
  • “It is a mistake (of which there are a good many traces in these proceedings) to treat undue influence as having been established by a proof of the relations of the parties having been such that the one naturally relied upon the other for advice and the other was in a position to dominate the will of the first in giving it. Up to that point “influence” alone has been made out. Such influence may be used wisely, judiciously and helpfully. But whether by the law of India or the law of England, more than mere influence must be proved so as to render influence, in the language of the law, undue.”
  • “Before, however, a court is called upon to examine whether undue influence was exercised or not, it must scrutinise the pleadings to find out that such a case has been made out and that full particulars of undue influence have been given as in the case of fraud. See Order 6, Rule 4 of the Code of Civil Procedure. This aspect of the pleading was also given great stress in the case of Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; (1964) 1 SCR 270 above referred to. In that case it was observed (at p. 295):
  • “A vague or general plea can never serve this purpose; the party pleading must therefore be required to plead the precise nature of the influence exercised, the manner of use of the influence and the unfair advantage obtained by the other.”

(Quoted in Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; 2019-8 SCC 701)

In Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity, AIR 2003 SC 4351;  2004 KHC 903 (SC), the Supreme Court held as under:

  • “When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the letter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of the proving the good faith of the transaction is thrown upon the dominant, party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.
  • This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 …. …..”When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will….
  • 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short Contract Act).

In a subsequent decision in Raja Ram v. Jai Prakash Singh,  AIR 2019 SC 4374; 2019-8 SCC 701 the Apex Court distinguished Krishna Mohan (supra) on fact that the executant in that case was indisputably over 100 years of age, witnesses to the document were ‘not in existence’ and the witnesses proved that he was paralytic and virtually bedridden; and none of the witnesses could substantiate that the executant had put his thumb impression.

Pleading in Invalidation of a Statute

In Assam State Electricity Board v. Bharat Hydro Power Corporation Ltd., 1999-1 Gau LJ  142, 1999-1 Gau LR 249, the importance of pleading in invalidation of a statute was considered. It was held that he pleading must be specific and not vague. It is pointed out that if the pleadings were vague, the Court should not consider the alleged allegation regarding violation of the constitutional or other provisions. The following decisions were referred to:

  • 1. Amrit Banaspati Company Limited Vs. UOI, (1995) 3 SCC 335;
  • 2. The III Income Tax Officer, Mangalore  Vs M. Damodar Bhat, AIR 1969 SC 408,
  • 3. The Municipal Board Maunath Bhanjan v.  Swadeshi Cotton Mills,  U.J (SC) 1977 P. 180
  • 4. S.R. Tewari v.  The District Board, Agra, AIR 1964 SC 1680.
  • 5. The Hamdard Dcnvakhana (Wakf) Delhi v. The Union of India, AIR 1965 SC 1167
  • 6. M/s. Motilal Padampat Sugar Mills . v.  The State of UP, AIR 1979 SC 621  
  • 7. Narendra Bahadur Singh v.  State of U.P., AIR 1977 SC 660  
  • 8. Bharat Singh  V.  State of Haryana, AIR 1988 SC 2181  
  • 9. M.K. Balakrishna Menon v.  The Assistant Controller of Estate Duty, AIR 1971 SC 2392
  • 10. Ratanlal Nath and Ors. V.  State of Tripura, 1997 (III) GIT (SC) 8

Substantial justice should be preferred as against technicalities

Our Apex Court, in Sathyanath v. Sarojamani,  (2022) 7 SCC 644, quoted Sugandhi v. P. Rajkumar, (2020) 10 SCC 706, where it is held – ‘if the procedural violation does not seriously cause prejudice to the adversary party, Courts must lean towards doing substantial justice rather than relying upon procedural and technical violations. It is not to be forgotten that litigation is nothing but a journey towards truth which is the foundation of justice and the Court is required to take appropriate steps to thrash out the underlying truth in every dispute’. It was held in Sugandhi v. P. Rajkumar, (2020) 10 SCC 706, as under:

  • “9. It is often said that procedure is the handmaid of justice. Procedural and technical hurdles shall not be allowed to come in the way of the court while doing substantial justice. If the procedural violation does not seriously cause prejudice to the adversary party, courts must lean towards doing substantial justice rather than relying upon procedural and technical violation. We should not forget the fact that litigation is nothing but a journey towards truth which is the foundation of justice and the court is required to take appropriate steps to thrash out the underlying truth in every dispute. Therefore, the court should take a lenient view when an application is made for production of the documents under sub-rule (3).”

In Management, ICICI Bank Limited v. Presiding Officer, Central Government Industrial Tribunal cum Labour Court, 2020-2 LLJ 453, it was observed by the Madras High Court  that the substantial justice should be preferred as against technicalities in law. It was pointed out that the Court, while exercising extraordinary jurisdiction under Article 226 of the Constitution it was not only acting as a Court of law but also as Court of justice. It is further held that when the Court finds that substantial justice is not done to a party in a particular case, it can extend its arms and do slight tinkering of law, of course, without damaging its scope and object, for the purpose of moulding the relief and to meet the ends of justice. The Madras High Court relied on the Apex Court decision in a civil suit relating to adoption in Laxmibai v. Bhagwantbuva, 2013 (4) SCC 97, where it was observed as follows:

  • “When substantial justice and technical considerations are pitted against each other, the cause of substantial justice deserves to be preferred and the courts may in the larger interests of administration of justice may excuse or overlook a mere irregularity or a trivial breach of law for doing real and substantial justice to the parties and pass orders which will serve the interest of justice best.”

(This decision is referred to in MRF Limited v. Ministry of Corporate Affairs, 2018-2 CTC 353 and Arun Mondal v. Director, Directorate of Health Services, AIR 2016 Cal 141.)

Admission in pleading cannot be Dissected

In Sainaba Umma v. Moideenkutty, ILR 1988-1 (Ker) 206; 1987-2 KLT 59 it is observed as under:

  • “The Privy Council in the decision in Motabhoy Mulla Essabhoy v. Mulji Haridas (42nd. App.103) observed:
    • “It is permissible for a tribunal to accept part and reject the rest of any witness’s testimony. But admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all.”
  • The same view is expressed in the decision of the Calcutta High Court in Fateh Chand Murlidhar v. Juggilal Kamlapai (AIR 1955 Cal. 465). Following these decisions a Division Bench of the Calcutta High Court in J. Mc. Gaffin v. LIC of India (AIR 1978 Cal. 125) stated at page 127:
    • “These decisions, in our opinion, indicate that when a statement on admission is made in pleading together with further statement centering round, depending and standing on and conditional upon that admission, all the statements are to be taken and considered together in respect of such pleading.”
  • The Supreme Court in Hanumant v. State of M. P (AIR. 1952 SC. 343) stated at page 350:
    • “An admission must be used either as a whole or not at all.”

Can one Change his Pleading as to Licencee (From Tenancy) in a Subsequent Suit

In Bhagwati Prasad v. Chandramaul, AIR 1966 SC 735; 1966-2 SCR 286, our Apex Court held as under:

  • “14. In support of its conclusion that in a case like the present a decree for ejectment can be passed in favour of the plaintiff, though the specific case of tenancy set up by him is not proved, the High Court has relied upon two of its earlier Full Bench decisions. In Abdul Ghani v. Mt. Babni, (1903) ILR 25 All 256 (FB), the Allahabad High Court took the view that in a case where the plaintiff asks for the ejectment of the defendant on the ground that the defendant is a tenant of the premises, a decree for ejectment can be passed even though tenancy is not proved, provided it is established that the possession of the defendant is that of a licensee. It is true that in that case, before giving effect to the finding that the defendant was a licensee, the High Court remanded the case, because it appeared to the High Court that that part of the case had not been clearly decided. But once the finding was returned that the defendant was in possession as a licensee, the High Court did not feel any difficulty in confirming the decree for ejectment, even though the plaintiff had originally claimed ejectment on the ground of tenancy and not specifically on the ground of licence. To the same effect is the decision of the Allahabad High Court in the case of Balmakund v. Dalu. (1903) ILR 25 All 498 (FB).”

See Blog: PLEADINGS IN ELECTION MATTERS

Foot Notes:

  1. Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280; Ladli Prashad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279; Subhash Chandra Das v. Ganga Parsad Das, AIR 1967 SC 878; Varanasaya Sanskrit Vishwavidalaya v. Dr. Raj Kishore Tripathi, AIR 1977 SC 615; Jai Parkash Power Ventures v. State of HP, ILR 2017-6 HP 210.
  2. Bishundeo Narain v. Seogeni Rai, AIR 1951 SC 280;  Raja Ram v. Jai Prakash Singh, AIR 2019 SC 4374; Ladli Prasad Jaiswal v. Karnal Distillery, Co., AIR 1963 SC 1279.
  3. Ram Sewak Yadav v. Hussain Kamil Kidwai, AIR 1964 SC 1249, Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773, Beliram Bhalaik v. Jai Beharilal Khachi, (1975) 4 SCC 417, Suresh Prasad Yadav v. Jai Prakash Mishra, (1975) 4 SCC 822, Bhabhi v. Sheo Govind, (1976) 1 SCC 687, S. Raghbir Singh Gill v. S. Gurcharan Singh Tohra, (1980) Supp1 SCC 53,  P.K.K. Shamsudeen v. K.A.M. Mappillai Mohindeen, (1989) 1 SCC 526, Vadivelu v. Sundaram, (2000) 8 SCC 355, VS Achuthanandan v. P J  Francis (2001) 3 SCC 81, andM. Chinnasamy v. K. C. Palanisamy, (2003) 10 SCALE 103.
  4. M/s. Trojan & Co. v. RM. N.N. Nagappa Chettiar, AIR 1953 SC 235;  Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242; Om Prakash Gupta v. Ranbir B. Goyal, AIR 2002 SC 665; Ishwar Dutt v. L.A Collector, AIR 2005 SC 3165; State of Maharashtra v. Hindustan Construction Co., AIR 2010 SC 1299; Kalyan Singh Chouhan v. C.P. Joshi, AIR 2011 SC 1127; Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103; Union of India v. Ibrahim Uddin, 2012 (3) KLT SN 73 SC; (2012) 8 SCC 148.
  5. In Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, the Apex Court considered the following decisions: Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96; Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256; Smt. Indira Kaur v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074; Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328; Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681; A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC 355; Pratap Singh v. State of M.P., AIR 2006 SC 514; Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339.

End Notes:

HC Interference in Second Appeal if Vitiated by Perversity, Misreading of Evidence etc.

In Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025 (Neutral Citation: 2025 INSC 1145), our Apex Court examined the jurisdiction of the High Court in a second appeal under Section 100 of the CPC. The Apex Court held as under:

  • “40. At the very outset of our analysis on this issue, it becomes necessary to peruse Section 100 of the CPC, which provides that an appeal would lie before the High Court, from every decree passed in appeal by any court subordinate to the High Court, if it is satisfied that the case involves a ‘substantial question of law’. The provision further elucidates that “nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.”
  • 41. The legislative intent underlying Section 100 of the CPC is therefore unambiguous. It demarcates the jurisdiction of the High Court in second appeal to instances where a substantial question of law is involved, thereby precluding interference with concurrent findings of fact recorded by the courts below. This Court has, through a consistent line of authority, clarified that such a restriction is not absolute. The High Court may justifiably exercise its jurisdiction in a second appeal where the findings of the subordinate courts are vitiated by perversity, misreading of evidence, or a manifest disregard of settled legal principles ( Neelakantan v. Mallika Begum, (2002) 2 SCC 440).”
  • The Supreme Court also referred to: Hero Vinoth v. Seshammal, (2006) 5 SCC 545, and Madhukar Nivrutti Jagtap v. Pramilabai Chandulal Parandekar, (2020) 15 SCC 731.

When the High Court will interfere with the concurrent findings

In Hero Vinoth v. Seshammal, (2006) 5 SCC 545, the Supreme Court has delineated the contours of interference with concurrent findings of fact in the exercise of jurisdiction under Section 100 CPC as under:

  • “19. It is not within the domain of the High Court to investigate the grounds on which the findings were arrived at, by the last court of fact, being the first appellate court. It is true that the lower appellate court should not ordinarily reject witnesses accepted by the trial court in respect of credibility but even where it has rejected the witnesses accepted by the trial court, the same is no ground for interference in second appeal when it is found that the appellate court has given satisfactory reasons for doing so.
  • In a case where from a given set of circumstances two inferences of fact are possible, the one drawn by the lower appellate court will not be interfered by the High Court in second appeal. Adopting any other approach is not permissible. The High Court will, however, interfere where it is found that the conclusions drawn by the lower appellate court were
    • erroneous being contrary to the mandatory provisions of law applicable or
    • its settled position on the basis of pronouncements made by the Apex Court, or
    • was based upon inadmissible evidence or
    • arrived at by ignoring material evidence.
  • 24. The principles relating to Section 100 CPC relevant for this case may be summarised thus:
  • .(i) An inference of fact from the recitals or contents of a document is a question of fact. But the legal effect of the terms of a document is a question of law. Construction of a document involving the application of any principle of law, is also a question of law. Therefore, when there is misconstruction of a document or wrong application of a principle of law in construing a document, it gives rise to a question of law.
  • (ii) The High Court should be satisfied that the case involves a substantial question of law, and not a mere question of law. A question of law having a material bearing on the decision of the case (that is, a question, answer to which affects the rights of parties to the suit) will be a substantial question of law, if it is not covered by any specific provisions of law or settled legal principle emerging from binding precedents, and, involves a debatable legal issue. A substantial question of law will also arise in a contrary situation, where the legal position is clear, either on account of express provisions of law or binding precedents, but the court below has decided the matter, either ignoring or acting contrary to such legal principle. In the second type of cases, the substantial question of law arises not because the law is still debatable, but because the decision rendered on a material question, violates the settled position of law.
  • (iii) The general rule is that High Court will not interfere with the concurrent findings of the courts below. But it is not an absolute rule. Some of the well-recognised exceptions are where the courts below have ignored material evidence or acted on no evidence; the courts have drawn wrong inferences from proved facts by applying the law erroneously; or the courts have wrongly cast the burden of proof. When we refer to “decision based on no evidence“, it not only refers to cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.” (Quoted in: Divyagnakumari Harisinh Parmar v. Union of India, September 24, 2025; Neutral Citation: 2025 INSC 1145)

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

How to Contradict a Witness under Sec. 145, Evidence Act

Saji Koduvath, Advocate, Kottayam.

Introduction

Sec. 155 of the Evidence Act provides for impeaching the credit of a witness by various ways. Clause (3) gives one manner ‘by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted’. Sec. 145 is the provision that lays down the mode to cross examine the witness with reference to his previous writing.

Sec. 145 reads as under:

  • “145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Sec. 145 Enables to Contradict Witnesses with his previous statements:

  1. Without the (previous) writing being shown to him.
  2. Without such writing being proved.
  3. When the writing is used to contradict the witness and his attention is called to those parts of it (that are to be used for contradicting), the writing need not be shown to the counsel of the witness (or other side) for his perusal.
  4. The writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
  5. Material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

  1. The writing must be a ‘previous’ one.
  2. The (previous) writing must be of that witness himself.
  3. It must be relevant to matters in question
  4. If it is intended to contradict the witness by the writing, “his attention must be called” to those parts of it which are to be used for the purpose of contradicting him.
  5. If the witness denies (or says that he does not remember) such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
  6. If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have ‘undertaken’ to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.
  • Section 136 Evidence Act reads as under:
    • Judge to decide as to admissibility of evidence:
    • When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
    • 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.
    • 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.

When document is to be proved, original or other admissible copy must be produced

  1. When a document used to contradict is to be proved (that is, if the witness deny the previous statement), original or other admissible copy must be produced.
  2. Though statement in an inadmissible document can be used for contradiction (without showing him), if the witness is to be cross examined showing him his previous ‘unstamped’ statement (especially when it is with respect to his signature – used by showing the document) it must be an ‘admissible’ one as regards stamp, inasmuch as Sec. 35 of the Indian Stamp Act, 1899 directs that no instrument chargeable with duty shall be ‘admitted’ in evidence ‘for any purpose’ by any person having by law or consent of parties authority to receive evidence (V.  Madhusudhan Rao v. S.  Nirmala Bai, AIR 2019 AP  93; SMS Tea Estates Pvt. Ltd. v. M/s. Chandmari Tea Co. (2011) 14 SCC 66 – followed in Naina Thakkar v. Annapurna Builders, (2013) 14 SCC 354).
    • Note: Now, this matter (qua – arbitration clause in an agreement) is pending consideration before a Constitutional Bench as referred to by N. N.  Global Mercantile Private Limited v. Indo Unique Flame Limited, 2021 SCC Online 13). As of now, unstamped or improperly stamped documents can be used only after paying stamp duty (with or without penalty, as the case may be).
    • Read Blog: Unstamped & Unregistered Documents and Collateral Purpose
  3. But, an unregistered compulsory-registrable-document can be ‘used’ and ‘admitted’ under Sec. 145, as it is a ‘collateral purpose’ [Section 49 of the Registration Act itself allows it – to use such documents for ‘collateral purpose’. See: K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564; S. Kaladevi vs V.R. Somasundaram (2010) 5 SCC 401].
  4. Even if the ‘right to give evidence’ of a party ‘is over’, the courts will allow that party to ‘prove’ the document (under the second limb of Sec. 145), subsequently. For example – If the contradiction arises when the defendants’ witness is cross examined, the plaintiff can adduce evidence without ‘reopening’ his evidence (for, this provision is a statutory one).

Important points to be noted while invoking Sec. 145

  1. If the witness admits the previous statement, no question as to ‘producing’ or ‘proving’ or ‘marking’ the same arises for consideration.
  2. The purposes of invoking sec. 145 are only to test the veracity of the statement made by a witness in his examination-in-chief, and also to impeach his credit (Tahsildar Singh v. The State of UP, AIR 1959 SC 1012) under Sec. 155 (3).
  3. Even if the document or the contradicting part is marked, and it is proved (for the purpose of contradicting him), it cannot be read in evidence; because, such writing will not be a substantive evidence (and the purpose of this provision is only impeaching the credit of the witness).
  4. The court has to allow the cross examiner to produce and prove the previous statement, if the witness denies such previous statement, even if technically his ‘evidence is over’ (it being statutory right).
  5. It is not obligatory to produce advanced copies of documents sought to be introduced for the limited purpose of cross-examination (Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144).
  6. When an ‘omission’ is to be proved, the ‘specific part’ of the previous statement, where the omission ought to have been naturally stated, should be ‘put’ to the witness, for his explanation, if any. (See: Tahsildar Singh v. The State of UP, AIR 1959 SC 1012 – “if made, would have been recorded”). It is for 2 reasons:
    1. The section itself requires “his attention must be called to those parts of it which are to be used for the purpose of contradicting him”. It is to satisfy the principles of ‘natural justice’.
    2. The witness has a right to explain admissions under Sec. 31.
      • Evidence Act Sec. 31 reads: “Admissions not conclusive proof, but may estop.: Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained.”
  7. If the cross examiner does not seek ‘explanation’ while putting the “those parts of (the previous statement) which are to be used for the purpose of contradicting him” the counsel who conducted the chief examination can seek the ‘explanation, if any’, in re-examination, on that contradictory-part (in the light of Sec. 31).
  8. ‘Cross Examination’ in Sec. 145 includes ‘cross examination’ showing the signature of the witness in the ‘previous statement’. (That is, a witness can be compelled to ‘refresh’ the document under Sec. 159.)
  9. Under Sec, 145, there will be no difference between a party to a suit as a witness, and a witness simpliciter(Mohammed Abdul Wahid v. Nilofer, 2024-2 SCC 144).
  10. Admission in a sale deed is ‘Substantive Evidence’; It need not be Confronted: In Murlidhar Bapuji Valve v. Yallappa Lalu Chougule, AIR 1994 Bom 358 (an often quoted decision), it was held that it was well settled law that an “admission” of a party (in a sale deed) was liable to be considered as substantive evidence even if the party made the admission was not confronted with the statement.
  11. Judicial Admissions and Admissions in Pleadings: In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:
  • “26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)

Contradictory Part has to be Marked

In Rajendra Singh v. State of Bihar, 2000-4 SCC 298,AIR 2000 SC 1779, it is pointed out as under:

  • “But if the witness during trial is intended to be contradicted by his former statement then his attention has to be drawn to those parts of the statement which are required to be used for the purpose of contradicting him before the said statement in question can be proved as provided under Section 145 of the Evidence Act. On scrutinising the evidence of DW-1, we find that the Magistrate who is supposed to have exhibited the document in his cross-examination categorically admitted that neither any signature nor seal of either of the Chief Judicial Magistrate or of his office on the statement Exhibit B.”

How to Contradict a witness with a previous document

  • Modal Questions – 1 (Contradiction)
    • (Dispute is with regard to the width of a way; and in Chief Examination before the Civil Court the witness says that the width of the way is 15 feet and the way exists for the last more than 20 years.)
  • Is not the way there had been made only 10 years back and the width of the way was 7 feet alone?
  • (No.)
  • Did you file a complaint before the Executive Magistrate on …….. ……. with respect to the disputed way?
  • (Yes.)
  • I put it to you that you wrote in the complaint (only) that “Myself and my three neighbours use this 7 feet way for the last 10 years and it is the only way to our houses”?
  • (No; I didn’t write.)
    • The cross examiner can produce a certified copy of the complaint (or request the court to issue summons to the Office of the Executive Magistrate to produce the Complaint); and thus it can be proved that the witness is not trustworthy.
    • If required (for disputing the correctness by the other side), the witness can be recalled also, for proving the document after getting the certified copy (or original).
    • By proving the Complaint the following are not proved:
      1. Width of the way is/was 7 feet or it is 10 years old.
      2. The witness admitted the width as 7 feet, or the age as 10 years.
    • The only thing that can be proved is the statement of the witness before the court as to width and age of the way is not creditworthy.
  • Modal Questions – 2 (Omission)
    • (Dispute is with regard to the age of the way to a residential building; and in Chief Examination before the Civil Court the witness says that the building was in existence 25 years back.).
  • Weren’t you a Candidate in the Panchayath Election held 15 years back?
  • (Yes.)
  • Did you file an affidavit before the RO, stating your assets?
  • (Yes.)
  • Did you state in the affidavit that you owned a house?
  • (Yes.)
  • Have you anything to explain if I put it to you that you wrote in the affidavit that “I have 15 cents of property and ‘cultivation’ therein”; and you omitted to state the existence of the ‘house’?
  • (I did not omit; I had stated about the house also.)
  • Can you recognise the affidavit seeing a certified copy from the RO?
  • (Yes.)
  • (Handing over the certified copy, for refreshing memory) Isn’t it the certified copy of the affidavit?
  • (Yes.)
  • Isn’t it correct that you did not state about the house in the affidavit?
  • (Yes.)
    • The cross examiner cannot seek to mark the document (even if it had already been produced and remains in the court file), because it is (i) relevant only under Sec. 145 – to contradict the witness, and (ii) the document is admitted by the witness.
    • Note:
    • 1. Here it is used not as a ‘fact in issue’ or ‘relevant fact’ admissible under Sec. 5 of the Evidence Act.
    • 2. Assume, the cross examiner uses the document directly, otherwise than using it under Sec. 145 (that is, without putting contents first and seeking clarification), it can be used as a substantive document if it had already been produced at relevant time – or with permission of the court, with notice to the other side.

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws/ Transfer of Property Act

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Withholding Evidence & Adverse Inference

Saji Koduvath.

Legal Propositions discussed

  • 1. Burden of proof is always static and does not shift; onus of proof shifts.
    • Burden of proof it is upon whom who suffers, if no evidence on the question in dispute.
    • Burden of proof would be on the party who asserts the affirmative of the issue.
    • Plaintiff has to win on title – A Plaintiff has to win the title-suit on his evidence; not on the weakness of the adversary.
    • But it must be noted that the plaintiff need to show only a high degree of probability and that it shifts the onus on the defendant.
    • Court is Entitled to Consider the Title set up by the Defendants also.
  • 2. Burden of Proof loses significance if both parties adduced evidence.
  • 3. Suit on title & high degree of probability– If plaintiff discharges his burden by showing high degree of probability (that the title vests in him), onus shifts.
    • Onus of proof ‘shifts’ on adducing adequate evidence by the party concerned.
    • If the defendant fails to release the onus shifted, the burden on plaintiff shall stand discharged (and the title with the plaintiff is inferred).
  • 4. Adverse inference is drawn when a party withholds documents, even if he has no burden.
    • If a party does not examine himself: Adverse inference is drawn if a party does not examine himself: But, it is Not an Invariable Rule.
    • Adverse inference is taken after considering (a) pleadings, (b) relevancy of the withheld evidence and (c) burden of proof.
    • Presumption and adverse inference for non-production of evidence are always optional.
  • 5. If the defendant establishes his right as lessee etc. If the defendant establishes his right to continue possession as lessee, licencee, mortgagee etc. (honouring title of the plaintiff) the plaintiff’s suit for possession will fail.

Primary Principles on Burden of Proof

  1. Burden of proof is static
    • The burden of proof is always static and does not shift.
  2. Burden of proof lies on the person, who would fail if no evidence is adduced on either side.
  3. Ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.
  4. Burden of proof loses its importance (and remains academic)
    • (a) if both parties adduced evidence
      • (Mohd.  Abdullah Azam Khan v. Nawab Kazim Ali Khan, 2023 KLT OnLine 1084 (SC),
      • Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94,
      • Arumugham v. Sundarambal, AIR 1999 SC 2216;
      • Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040 (remains academic),
      • Union of India and Others v. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,
      • Cox and Kines (Azents) Ltd. v. Their Workmen and Others, AIR 1977 SC 1666)
    • (b)  when there is sufficient evidence on an issue.
  5. Burden of proof gets significance
    • (a) when no evidence,
    • (b) when no adequate evidence so as to shift onus, or
    • (c) when best evidence withheld.
    • (d) when Court cannot “Make Up its Mind” (Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278).
  6. Onus of proof ‘shifts’
    • Onus of proof ‘shifts’ on adducing adequate evidence by the party upon whom the onus lies, and thus discharging his burden.

Our Apex Court held (per B. V. Nagarathna, J.)  in Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022, Ajay Rastogi, B. V. Nagarathna, JJ., as under:

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

Plaintiff able to create a high degree of ‘probability’, Onus Shifts

In the case of R.V.E. Venkatachala Gounder vs. Arulmigu Viswesaraswami and V.P. Temple reported in AIR 2003 SC 4548, the Hon’ble Apex observed as under:

  •  “There is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which, never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiffs title”. (quoted in: Narendra Singh Panwar v. The State of Madhya Pradesh, 2021  Cr LJ 934)

Our Apex Court in Mohd.  Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2023 KLT OnLine 1084 (SC), authoritatively lays down the General principles as to Burden of Proof. It reads:

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

In Narendra Singh Panwar v. The State of Madhya Pradesh, 2021  Cr LJ 934, it is observed as to Blood Group as under:

  • “27. Thus it is proved that there was one commonality of blood group between the clothes of both the appellants (accused) and the handkerchief found on the spot.
  • 28. Learned counsel submits that the prosecution has not proved that the blood group of the deceased was also of ‘B’ group. This submission is not acceptable. Onus now shifted upon the accused persons to show that their own blood group was not of ‘B’ group. The Supreme Court in the case of A. Raghavamma vs. A. Chenchamma in AIR 1964 S.C. 136 has held as under :-
    • “1 to 12……. There is an essential distinction between burden of proof and onus of proof, burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. …..” 

Unregistered PoA Withheld – Adverse Inference Drawn

In K.J.Abraham v. Mariyamma Itty, 2016-3 KerHC 718, ILR 2016-3 Ker 98, Hariprasad, J. held that withholding an unregistered power of attorney, on the basis of which a sale deed was executed, invited adverse inference. It is pointed out that unregistered PoA ‘would be preserved as a permanent record by any prudent person’.

Suit on Title – Both Parties Claim Title – Plaintiff Shows High Probability, Onus Shifts

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

  • “29. In a suit for recovery of possession based on title it is for the plaintiff to prove his title and satisfy the court that he, in law, is entitled to dispossess the defendant from his possession over the suit property and for the possession to be restored to him. However, as held in A. Raghavamma v. A. Chenchamma there is an essential distinction between burden of proof and onus of proof: burden of proof lies upon a person who has to prove the fact and which never shifts. Onus of proof shifts. Such a shifting of onus is a continuous process in the evaluation of evidence. In our opinion, in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.” (Quoted in: Anil. Rishi vs. Gurbaksh Singh, (2006) 5 SCC 558; City Municipal. Council, Bhalki Vs. Gurappa, (2016) 2 SCC 200)

In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:

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

Burden of proof and Onus of proof

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

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

‘Onus Probandi’ and Sec. 106 of the Evidence Act

The Latin maxim, Onus Probandi, means ‘burden of proof’.  This maxim generally conveys the rule and idea that one who asserts a positive fact has to prove it.

  • Sec. 101 to 103 of the Indian Evidence Act, 1872, deal with the burden of proof in general. Sec. 104 to 106 deal with specific situations.

In an election case, referring Sec. 106 and Sec. 114 of the Evidence Act, the Supreme Court reversed the judgment of the High Court, in Puneet Rai vs. Dinesh Chaudharv. (2003) 8 SCC 204, observing that the onus was on the respondent to prove that he belongs to ‘Passi’ community which falls in the Schedule caste category.

In  Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673, the Supreme Court reversed the decision of the High Court finding that the burden of proving the age of the elected candidate (above 25 years) was upon him. The Apex Court held as under:

  • “28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.
  • 29. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the election petitioner.
  • 30. In terms of Section 103 of the Indian Evidence Act, however, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
  • 31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute.
  • 32. The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic [See Union of India and Others vs. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,(Para 14) and M/s Cox and Kines (Azents) Ltd. vs. Their Workmen and Others, AIR 1977 SC 1666, (Para 36)]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established.”

Prosecution to discharge the onus to Invoke Sec. 106

The Supreme Court held in Shambu Nath Mehra v. State of Ajmer (AIR 1956 SC 404), as under:

  • “This lays down the general rule that in a criminal case the burden of proof is on the prosecution and section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are “especially” within the knowledge of the accused and which he could prove without difficulty or inconvenience.”

The Supreme Court held in Anees v. The State Govt. of NCT, 2024 INSC 368, as under:

  • “Section 106 of the Evidence Act cannot be invoked to make up the inability of the prosecution to produce evidence of circumstances pointing to the guilt of the accused. This section cannot be used to support a conviction unless the prosecution has discharged the onus by proving all the elements necessary to establish the offence. It does not absolve the prosecution from the duty of proving that a crime was committed even though it is a matter specifically within the knowledge of the accused and it does not throw the burden on the accused to show that no crime was committed.”

In Nusrat Parween v. State Of Jharkhand (Neutral Citation: 2024 INSC 955), it is held, following Shambu Nath Mehra v. State of Ajmer and Anees v. The State Govt. of NCT, as under:

  • “There is no credible evidence on record of the case to establish the exclusive presence of the accused-appellants with Hamida Parween (deceased) in the house in question at any time before the incident, justifying the shifting of the burden of proof on to the accused-appellants by invocation of Section 106 of the Evidence Act. Thus, the theory of last seen together attributed by the prosecution could not be proved beyond all manner of doubt.”

‘Onus Probandi’ and Rule of ‘Best Evidence’

Rule of ‘Best Evidence’ requires a party to suit to produce all material evidence with him. If he fails to produce the best evidence, then illustration ‘g’ of Section 114 Evidence Act allows the court to take the presumption that, if that evidence had been produced, it would have been unfavourtable to him. In Dharampal v. State of Haryana (P& H, 2020), it is observed as under:

  • “20. Chapter VII in Part-Ill of the Evidence Act, 1872 examines the burden of proof and onus of proof or “onus probandi”. Section 101 lays down that whosoever, wants the court to give judgment as to any legal right or liability dependent on the existence of fact, which he asserts, must prove that those facts exist. However, Section 106 provides that any fact which is essentially within the knowledge of any person, the burden of proving that fact is upon him. Illustration-b to Section 106 specifically provides that if A is charged with travelling on a railway train without ticket, the burden of proving that he had bought a ticket is on the person who was found travelling. Still further, illustration ‘g’ of Section 114 require production of best evidence before the Court/authority. It lays down that the evidence which could be but is not produced, would be deemed to be unfavourable to the person who holds it from the Court/authority. It means that if a person fails to produce the best evidence which he could produce then the presumption would be that the aforesaid evidence, if had been produced, would be unfavourtable to the person, who withholds it.”

Also Read: Best Evidence Rule in Indian Law

Burden of Proof – Weakness of the Defence cannot be a Justification

This principle applies in both civil and criminal cases. In M. Srinivasulu Reddy v. State Inspector of Police, 1991 (3) ALT 542, 1993 CriLJ 558, it is held as under:

  • “The prosecution cannot take advantage of the weaknesses of the defence or cannot take advantage of the inconsistent stand taken by the accused from time to time. The prosecution must stand on its own legs basing on the evidence that has been let in by it.”

In Smriti Debbarma v. Prabha Ranjan Debbarma, 2023 SCC OnLine SC 9,it is held bu our Apex Court as under:

  • …… The weakness of the defence cannot be a justification to decree the suit. [See Union of India and Others v. Vasavi Cooperative Housing Society Limited and Others, (2014) 2 SCC 269.] The plaintiff could have succeeded in respect of the Schedule ‘A’ property if she had discharged the burden to prove the title to the Schedule ‘A’ property which squarely falls on her. This would be the true effect of Ss. 101 and 102 of the Evidence Act. [See Sebastiao Luis Fernandes (DEAD) Through LRs. And Others v. K.V.P. Shastri (DEAD) Through LRs. And Others, (2013) 15 SCC 161.]
  • Therefore, it follows that the plaintiff should have satisfied and discharged the burden under the provisions of the Evidence Act, failing which the suit would be liable to be dismissed.”

Burden of Proof never shifts, But Onus of Proof shifts

As stated above, onus of proof ‘shifts’ on adducing adequate evidence by the party upon whom the onus lies, and thus discharging his burden.
In Addagada Raghavamma v. Addagada Chenchamma, AIR 1964 SC 136, the Apex Court held as under:

  • “There is an essential distinction between burden of proof and onus of proof; burden of proof lies upon the person who has to prove a fact and it never shifts, but the onus of proof shifts. The burden of proof in the present case undoubtedly lies upon the plaintiff to establish the factum of adoption and that of partition. The said circumstances do not alter the incidence of the burden of proof. Such considerations, having regard to the circumstances of a particular case, may shift the onus of proof. Such a shifting of onus is a continuous process in the evaluation of evidence.”

Read Blog: Burden of Proof – Initial Burden and Shifting Onus of Proof

Is Burden of Proof Not Relevant when Both Sides had Adduced Evidence

In Moran Mar Basselios Catholicos v. Thukalan Paulo Avira, AIR 1959 SC 31, the Constitution bench of the Supreme Court held as under:

  • The question of burden of proof at the end of the case when both the parties have adduced their evidence is not of very great importance and the Court has to come to a decision on a consideration of all the materials.

In Kalwa Devadattam v. Union of India,  (1964) 3 SCR 191, the Supreme Court held as under:

  • “The question of onus probandi is certainly important in the early stages of a case. It may also assume importance where no evidence at all is led on the question in dispute by either side; in such a contingency the party on whom the onus lies to prove a certain fact must fail. Where however evidence has been led by the contesting parties on the question in issue; abstract considerations of onus are out of place; truth or otherwise of the case must always be adjudged on the evidence led by the parties. ” 

In Arumugham v. Sundarambal, AIR 1999 SC 2216, it has been held as under:

  • “On the question of burden of proof we are of the view that even assuming burden of proof is relevant in the context of the amended provision of Sec. 100 C.P.C., the same would not be relevant when both sides had adduced evidence. It would be relevant only if a person on whom the burden of proof lay failed to adduce any evidence altogether.”

The Supreme Court, in Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, referring Sec. 102 of the Evidence Act (The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side), explained ‘burden of proof’ as under:

  • “Pleading is not evidence, far less proof. Issues are raised on the basis of the pleadings. The defendant-appellant having not admitted or acknowledged the fiduciary relationship between the parties, indisputably, the relationship between the parties itself would be an issue. The suit will fail if both the parties do not adduce any evidence, in view of Section 102 of the Evidence Act. Thus, ordinarily, the burden of proof would be on the party who asserts the affirmative of the issue and it rests, after evidence is gone into, upon the party against whom, at the time the question arises, judgment would be given, if no further evidence were to be adduced by either side.”

In Raghunathi v. Raju Ramappa Shetty, AIR 1991 SC 1040, it is observed that it is a settled law that once the parties have been permitted to produce evidence in support of their respective cases and it is not their grievance that any evidence was shut out the question of burden of proof loses significance and remains only academic.

It is held by the Supreme Court in Thiruvengada Pillai v. Navaneethammal, AIR 2008 SC 1541, that when the execution of an unregistered document put forth by the plaintiff was denied by the defendants, it was for the plaintiffs to establish that the document was forged or concocted. It is observed that the party who asserts something has to prove that thing. It is pointed out that when the plaintiff had come to Court alleging that the first defendant had executed an agreement of sale in his favour and when the defendant denied it, the burden was on the plaintiff to prove that the defendant had executed the agreement, and not on the defendant to prove the negative.

In K. Laxmanan v. Thekkayil Padmini, AIR 2009 SC 951, the Apex Court held that when there were suspicious circumstances regarding the execution of a Will, the onus was on the propounder to explain them to the satisfaction of the Court; and only when such responsibility was discharged, the Court would accept the Will as genuine. It was further observed that even where there were no such pleas, but circumstances gave rise to doubt, it was on the propounder to satisfy the conscience of the Court. These decisions are followed in Joseph John Peter Sandy v. Veronica Thomas Rajkumar, AIR 2013 SC 2028. 

The Privy Council in Seturatnam v. Venkatachella, AIR 1920 PC 67, observed that where the parties have led all the evidence and relevant facts were before the court and all that remained for decision was what interference was to be drawn from them, the question of burden of proof was not important. In Chidambara v. Veerama, AIR 1922 PC 292, the Privy Council held that when entire evidence was once before the court, the debate as to onus of proof was purely academic. (See: Legal Heirs of Renushree Lahkar v. Pradip Kumar Lahkar, 2018-4 Gau LT 733)

Will – Burden to Prove Coercion, Undue Influence or Fraud, on him who alleges it

Who has the ‘burden of proof’ when a Will is resisted with the allegation of coercion, undue influence or fraud? How to deal with such a situation? It is considered in V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 Scale 367.

In V. Kalyanaswamy v. L. Bakthavatsalam, the Supreme Court held as under:

  • “83. Lastly, while the burden to prove the will and to satisfy the conscience of the court that there are no suspicious circumstances or if there are any to explain them is on the propounder of the will, the burden to prove that the will is procured by coercion, undue influence or fraud is on the respondents who have alleged the same.”

It is made clear-

  • The burden to prove that the Will is free from suspicious circumstances is on the propounder.
  • If there are suspicious circumstances to explain, the propounder has to explain them.
  • (However), if the respondent alleges that the Will is procured by coercion, undue influence or fraud, the burden to prove such allegations is on the respondent.

In Niranjan Umeshchandra Joshi v. Mrudula Jyoti Rao, 2006 (14) SCALE 186,

  • “The burden of proof that the Will has been validly executed and is a genuine document is on the propounder. The propounder is also required to prove that the testator has signed the Will and that he had put his signature out of his own free will having a sound disposition of mind and understood the nature and effect thereof. If sufficient evidence in this behalf is brought on record, the onus of the propounder may be held to have been discharged. But, the onus would be on the applicant to remove the suspicion by leading sufficient and cogent evidence if there exists any. In the case of proof of Will, a signature of a testator alone would not prove the execution thereof, if his mind may appear to be very feeble and debilitated. However, if a defence of fraud, coercion or undue influence is raised, the burden would be on the caveator. [See: Madhukar D. Shende v. Tarabai Shedage,  2002-2 SCC 85 and Sridevi v. Jayaraja Shetty, 2005-8 SCC 784]. Subject to above, proof of a Will does not ordinarily differ from that of proving any other document.” (Quoted in: Savithri  v. Karthyayani Amma, 2007-11 SCC 621)

Burden of proof loses its importance (and remains academic) if both parties adduced evidence – Does it mean that Sec. 102 to 111 have no Significance?

Answer – Never.

The court when analyses the evidence (at the time of verdict) it should proceed without being considering the “Burden of Proof” if

  • (a) both parties adduced evidence or
  • (b)  there is sufficient evidence on an issue.

But, no doubt, it does not mean that the consequences of

  • ‘no sufficient evidence‘,
  • ‘no evidence adduced as to facts in especial knowledge of a party‘, etc.

shall have no effect; on the contrary, the edicts in the provisions in Sec. 102 to 111 Evid. Act will follow with its full vigor.

  • Our Apex Court in National Insurance Company Limited v. Rattani, 2009-2 SCC 75: AIR 2009 SC 1499, it is observed as under:
  • “14. The question as to whether burden of proof has been discharged by a party to the lis or not would depend upon the facts and circumstances of the case. If the facts are admitted or, if otherwise, sufficient materials have been brought on record so as to enable a court to arrive at a definite conclusion, it is idle to contend that the party on whom the burden of proof lay would still be liable to produce direct evidence to establish that the deceased and the injured passengers were gratuitous passengers.” (See also: Mohd. Abdullah Azam Khan Vs. Nawab Kazim Ali Khan, 2022 (11 ) JT 214: 2022 (16 ) SCALE 689: 2023 KLT OnLine 1084 (SC), National Insurance Company Ltd.  v. Savitri Devi, 2013-11 SCC 554.)

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

Adverse Inference Drawn, if one Withholds Documents (Even if no burden)

The Supreme Court observed in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, as under:

  • “Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara Lord Shaw observed as follows:
    • “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision.. With regard to 44 I. A. 98, at P. 103. third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships’ opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.”

This passage was cited with approval by this Court in a recent decision: Biltu Ram v. Jainandan Prasad . In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desrai Ranjit Singh.

  • But Shah, J., speaking for the Court, stated:
    • “The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration(g) of s. 114 of the Evidence Act, and also an impressive body of authority.”

Mere Non-Production of Documents would NOT result in Adverse Inference

In Mahendra L. Jain v. Indore Development Authority, (2005) 1 SCC 639, the Supreme  Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so.

In Manager, R.B.I., Bangalore v. S. Mani, AIR 2005 SC 2179, the Industrial Tribunal directed the employer to produce the attendance register. The explanation thereto was that the attendance registers being very old, could not be produced. The Tribunal drew an adverse inference. The respondents did not adduce any evidence whatsoever. Apex Court reversed the finding observing as under:

  • “The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle.”

Similar view is stated in the following decisions:

  • Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96;
  • Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256;
  • Smt. Indira Kaur v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074;
  • Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; 
  • Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328;
  • Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681;
  • A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; 
  • R.M. Yellatti v. Assistant Executive Engineer, AIR 2006 SC 355;
  • Pratap Singh v. State of M.P., AIR 2006 SC 514;
  • Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, 
  • Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339,

Referring all the aforesaid decisions it is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, as under:

  • “16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.”

All the Pros and Cons be examined; ‘Other Larger Evidence’ be Looked Into

In Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, our Apex Court held that all the pros and cons must be examined before drawing an adverse inference against a party. In that case the issue had been, as to whether two persons had been travelling together in the vehicle and presumption had been drawn on the basis that the bus tickets of both the persons were not produced. This Court held that presumption could not have been drawn if other larger evidence was shown to the contrary. (See also: Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; and Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328).

In Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96, a view has been expressed that it was open to a litigant to refrain from producing any document that he considered irrelevant; if the other litigant was dissatisfied, it was for him to apply for interrogatories/inspections and production of documents. If he failed to do so, neither he nor the Court at his suggestion, was entitled to draw any inference as to the contents of any such documents. (See also: Union of India v. Ibrahim Uddin, (2012) 8 SCC 148; R. Chinnasamy v. T. Ponnusamy 2018- 5 MLJ 661)

In Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256, our Apex Court held that mere withholding of documentary evidence by a party was not enough to draw adverse inference against him. The other party must ask the party who was in possession of such evidence to produce the same, and in case the party in possession did not produce it, adverse inference could have been drawn. (See also: Union of India v. Ibrahim Uddin, (2012) 8 SCC 148; R. Chinnasamy v. T. Ponnusamy 2018- 5 MLJ 661)

Party Does Not Examine -Adverse Inference if only he is a Material Witness

In Bijoy Kumar Karnani vs Lahori Ram Prasher,  AIR 1973 Cal 465, the High Court considered the argument as to non-examination of the plaintiff as a witness in the light of Section 114, illustration (g) of the Evidence Act which provides that the Court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. The court pointed out that the plaintiff was not a material witness as to the disputed facts, sans admitted facts. Citing Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230, it was observed that the argument of the defendant would be apt if only the plaintiff was a material witness, as stated by the  Privy Council as under:

  • “The true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected to all its particulars to cross-examination.”

Adverse Inference if a Party Not Examine Himself: Not an Invariable Rule

In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 the Supreme Court observed as under:

  • “17…..Having not entered into the witness-­box and having not presented himself for cross-­examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872.” (Quoted in: Iqbal Basith v. N. Subbalakshmi, (2021) 2 SCC 718)

The Supreme Court also observed in Vidhyadhar v. Manikrao, AIR 1999 SC 1441, as under:

  • “Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

But, it is not an invariable principle. Two contra-situations are pointed out by Kerala High Court:

  1. It is applied only against the party on whom the burden of proof lies;
  2. It is not applicable where there is no much scope for any oral evidence.

In Mammu Haji and Company Vs. Vasanthalakshmi, 2014 -3 KHC 213 that this proposition of law laid down by the Apex Court applies only in cases where the party on whom the burden of proof lies withholds himself from adducing evidence. It is held as under:

  • “In short, this decision can be applied against the party on whom the burden of proof lies; but did not adduce evidence. In the instance case, the burden of proof absolutely lies on the defendant who claims protection under S.106 of the Act. Therefore, the non – examination of the plaintiff is not fatal and no adverse inference can be drawn against the plaintiff, where the lease arrangement is admitted as such by the defendant, and the entire burden of proof lies on the defendant.”

In Upendra Rao v. Ammini,  ILR 2017-1 Ker 466, the Kerala High Court pointed out that the principle in Vidhyadhar v. Manikrao  (that when a party to a suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, adverse presumption  can be taken) cannot be applied to the facts of a case where there is not much scope for any oral evidence.

In  P.  Sukumaran v. K. A.  Hamza Haji, ILR 2015-2 Ker 166, the Kerala High Court distinguished Vidhyadhar v. Manikrao observing as under”

  • “13. In Vidhyadhar’s case , the Apex Court was dealing with a case where the first defendant in the suit contended that, the sale deed executed by the second defendant in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- was paid as sale consideration to the second defendant. He further claimed that payment of Rs. 4500/- to the second defendant at his home before the registration of the deed was wholly incorrect. This plea was not supported by the first defendant as he did not enter the witness box. It was in such circumstances, the Apex Court held that, the non-examination of the first defendant, by itself, is enough to reject his claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction.
  • 14. But, in the case on hand, the tenancy in respect of the petition schedule building and the rate of rent are not in dispute. When a plea of discharge of rent is set up by the tenant, the burden is upon him to prove that plea of discharge and no adverse inference or a presumption under Section 114(g) of the Evidence Act, 1872, can be drawn against the landlord on his omission to appear as a witness and to state his own case on oath.”

In Janki Vashdeo Bhojwani v. Indusind Bank Ltd., (2005) 2 SCC 217,  our Apex Court followed Vidhyadhar v. Manikrao, AIR 2005 SC 439, and held as under:

  • “No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”

Presumption – Official Acts, Regularly Performed. Onus on whom Disputes

In Iqbal Basith v. N. Subbalakshmi, (2021) 2 SCC 718, it is observed by our Apex Court as under:

  • “12. Both the courts then proceeded to consider the title of the appellants to decide lawful possession. The respondents had themselves produced a certified copy of Ex. D­1 dated 07.09.1946. The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor O.A. Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non­production of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

No Express Plea – Issue Covered by Implication, Evidence can be Relied on

The Supreme Court, in the matter of Standard Chartered Bank v. Andhra Bank Financial Services Ltd., (2006) 6 SCC 94, held that if parties know that a plea was involved in trial and if such a plea is covered by issue by implication then in such a case mere fact that the plea was not expressly taken in pleading would not necessary disentitle a party from relying upon it if it is satisfactorily proved by evidence.

When Court cannot “Make Up its Mind”

It is only if the Tribunal or the Court feels it cannot “make up its mind” as to which of the version is true, it will be held that the party on whom the burden lies has not discharged the burden (See Kumbhan Lakshmanna v. Tangirala Venkateswarlu, AIR 1949 PC 278.

  • This section (Sec. 102) shows that the initial burden of proving a prima facie case in his favour is cast on the plaintiff; when he gives such evidence as will support a prima facie case, the onus shifts on to the defendant to adduce rebutting evidence to meet the case made out by the plaintiff. As the case continues to develop the onus may shift back again to the plaintiff. It is not easy to decide at what particular stage in the course of the evidence the onus shifts from one side to the other. When, after the entire evidence is adduced, the tribunal feels it cannot make up its mind as to which of the versions is true, it will hold that the party on whom the burden lies has not discharged the burden; but if it has on the evidence no difficulty in arriving at a definite conclusion, then the burden of proof on the pleadings recedes into the background.”  (Quoted in: Dulhin Mahabati Kuer v. Raghunandan Prasad Singh, AIR 1958 Pat 249, Surajbhan Kailash Chand v. Hari Shanker Vashsist, AIR 1976 Delhi 70, Krishne Gowda v. Ningegowda, ILR 1987 Kar 2883, Patel Ramanbhai Mathurbhai v. Govindbhai Chhotabhai Patel, 2020-1 GLH 261, Vinod Agrawal v. Bharat Kumar Lathi,  ILR  2012 MP 84)

Plaintiff Fails to Create ‘Probability‘ and Defendant ‘Withholds Documents‘

From R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is clear –

  • in a suit for possession based on title once the plaintiff has been able to create a high degree of probability so as to shift the onus on the defendant it is for the defendant to discharge his onus and in the absence thereof the burden of proof lying on the plaintiff shall be held to have been discharged so as to amount to proof of the plaintiff’s title.

From Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, it is also clear –

  • Even if a party to the suit has no burden, the Court can draw an adverse inference if he withholds important documents in his possession.

From the above, it is definite that, in a proper case, if the defendant who withholds important document (admittedly) in his possession, the court can take the adverse presumption against the defendant, even if the plaintiff (who has the burden of proof or who is bound to create a high degree of probability) did not adduce any evidence.

Presumptions on Registered Document – VALIDLY EXECUTED

  • Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
  • Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
  • In short, the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
  • Therefore, there is a presumption – registered document is validly executed –
    • Prem Singh v. Birbal, AIR 2006 SC 3608;
    • Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
    • Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
    • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
  • A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
  • The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.

Registered Deeds: Proof of CORRECTNESS drawn, Invoking Presumption

  • Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713; Jamila Begum v. Shami Mohd., AIR 2019 SC 72) .
  • And, there is a presumption of Correctness also (Majumder v. Dipak Kumar Saha, AIR 2023 SC 506, BV Nagaratna, J.). The onus of proof, therefore, would be on the person who questions the same.

Do Presumptions as to VALID EXECUTION & CORRECTNESS Import TRUTH?

Two views emerge on registered documents-

  • First, Presumption as to VALID EXECUTION  & CORRECTNESS lead to further (invariable) Presumption as to ‘truth’.
  • Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. In most cases, the court will infer ‘truth’ if there is presumption as to VALID EXECUTION  & CORRECTNESS. But, in proper cases, the court can desist to deduce ‘truth’ despite presumption as to VALID EXECUTION  & CORRECTNESS.

In short, Presumptions as to VALID EXECUTION & CORRECTNESS may Import TRUTH. It may result:

  • 1. ShiftBurden in Most cases. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.
    • The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
  • It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evid. Act (regard being had to the common course of natural events, human conduct etc.).
  • There being presumption as to ‘VALID EXECUTION  & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents.
  • 2. No Question of Shifting Burden in certain cases. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
    • For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘judicially noticed’.

Sec. 114 Evid. Act

Sec. 114 Evid. Act reads as under:

  • “114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened,  regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”

‘Discovery’ under R. 12 of O. XI is condition precedent for ‘Production’ under R. 14

Analysis of Rule 12 and 14 impeccably establishes complementarity between these provisions, and unerringly settles that ‘Discovery’ of documents under Rule 12 of Order XI is an inevitable condition precedent for ‘Production’ of documents under Rule 14, as shown under:

  1. Rule 12 (for discovery) expressly allows a party to the suit to apply the Court for an order directing any other party to make ‘discovery on oath’.
  2. The party against whom discovery (on oath) is applied for is required, to file affidavit (under Rule 13). Rule 13 further requires him to place his ‘objections to produce’.
  3. Rule 12 directs that the documents sought for must relate to matters in question; that on the hearing of such application the Court may either refuse or adjourn the same; and that if the court is satisfied that such discovery is not necessary, make such order, as the court thinks fit.
    • Though ‘production’ under Rule 14 is the serious matter when compared to ‘discovery’ under Rule 12, there is no provision in Rule 14 (as in Rule 12) for –
      • (i) applying for production;
      • (ii) placing objections or filing affidavit;
      • (iii) directing hearing by court, and passing an order as the court thinks fit.
  4. Failure to produce affidavit under Rule 12 invites stringent actions under Rule 21 (suit dismissed, defence struck out, etc.).
    • (i) Effect of non-production of documents under Rule 14 is not specified in R. 21;
    • (ii) court can, in such an eventuality, take adverse presumption only, (under Sec. 114, Illus.- g of the Evidence Act).

We see significant and severe actions as regards ‘discovery of documents’ under Rule 12 (that is, filing affidavit and objection, hearing, dismissal of suit, striking  out defence, etc.). And, no such significant actions are attached to Rule 14. Why?

  • The only answer is that the legislature took Rule 12 and 14 as concomitant provisions. That is, ‘production’ of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 14.

Legislative Intention – Concordance Between ‘Discovery’ and ‘Production’

The indisputable reciprocity between ‘discovery’ and ‘production’, and the sequence in which the they are arrayed in Rule 12 and 14, ensure that compliance of Rule 12 is a necessary pre-condition for ordering ‘production’ under Rule 14. Therefore, it is definite that discovery under Rule 12 partakes its ‘production’ (as the next step, under Rule 14).

The afore-stated propositions are fortified by the following:

  1. Ordering production, under Rule 14, is purely a discretionary matter with court.
    • Rule 14 reads – “It shall be lawful for the Court … to order the production … of such of the documents in his possession or power … ”.
    • Import of these words are obvious in itself. That is, wide-open discretion is given to the court for ordering production under rule 14.
  2. It is unquestionable that a party to the suit has no vested right to seek ‘production’ of any document under rule 14-
    • even after ‘discovery’ of the same under rule 12.
  3. Similarly, the party to the suit has no vested right to seek production of ‘all documents‘ discovered under Rule 12.

Documents Referred to in “Pleadings or Affidavit”; Can Production be Ordered?

Now, a question may reasonably and logically arise – Assume, certain relevant documents are referred to in “pleadings or affidavit”; can’t the court order production of those documents (directly) under Rule 14, on application of the other party?

  • Strictly speaking, No – because of the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI rule 15.*
    • * Note: The rule is that general provisions should yield to specific provisions (J.K. Cotton Spinning & Weaving Mills Co. Ltd. v. State of U.P., (1961) 3 SCR 185; U.P. SEB v. Hari Shankar Jain, (1978) 4 SCC 16; Commercial Tax Officer, Rajasthan v. M/S Binani Cement Ltd., (2014) 3 SCR 1).
  • It goes without saying that the permission for taking copies is provided for ‘exhibiting’ the same by the party concerned, as part of his evidence.
  • Rule 15 Order XI CPC reads as under:
    • “15. Inspection of Documents Referred to in Pleadings or Affidavits. Every party to a suit shall be entitled at any time to give notice to any other party, in whose pleadings or affidavits reference is made to any document or who has entered any document in any list annexed to his pleadings or produce such document for the inspection of the party giving such notice, or of his pleader, and to permit him or them to take copies thereof; and any party not complying with such notice shall not afterwards be at liberty to put any such document in evidence on his behalf in such suit unless he shall satisfy the Court that such document relates only to his own title, he being a defendant to the suit, or that he had some other cause or excuse with the Court shall deem sufficient for not complying with such notice, in which case the Court may allow the same to be put in evidence on such terms as to costs an otherwise as the Court shall think fit.”
  • See blog: Notice to Produce Documents in Civil Cases
  • Proof of Documents & Objections To Admissibility – How & When?

Admitted in Pleadings or Evidence that Document is in his Possession; Can Production be Ordered under S. 151?

  • Yes; it can be under inherent power. But, it must be remembered that because of the specific provisions of the CPC as to inspection (and to take copies) of documents referred to in pleadings or affidavits in Order XI rule 15, it may not be proper for a party to invoke Sec. 151 – though the power is open to the Court.
  • Note:
    • Order XI rule 12 speaks as to discovery of documents – (and not documents in ‘possession of‘ a party).
    • Order XI rule 15 speaks as to documents – ‘referred to‘ (and not documents in ‘possession of‘ a party).
  • The Court can also invoke Sec. 165 of the Evidence Act.

A party in “possession of a document” can be directed to produce the same

  • A party in “possession of a document” (Distinct from “Documents Referred to in Pleadings or Affidavits” – Order XI rule 15) can be directed to produce the document. The plaintiff could file an application calling for the said document from the defendant.

In Anil Rishi vs Gurbaksh Singh, (S.B. Sinha, P.K. Balasubramanyan) it is held as under:

  • “A party in possession of a document can always be directed to produce the same. The plaintiff could file an application calling for the said document from the defendant and the defendant could have been directed by the learned Trial Judge to produce the same.”

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

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

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

The Apex Court held:

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

Beneficial Provision – View That Favours the Beneficiary be Preferred

The burden to prove that the accidental case falls within the exception of 124 A of the Railways Act rest on the shoulder of railways. When two views are possible, on the application of a beneficial provision of an Act, the principle to be followed is that the view which favours the beneficiary should be adopted.  See:

  • State of West Bengal v. Kesoram Industries Ltd., 2004 (10) SCC 201;
  • Mathuram Agarwal v. State of M.P.,  AIR 2000 SC 109;
  • Mysore Minerals Limited v. CIT Karnataka, 1999 (7) SCC 106.

Plea of Private Defence

When an accused raise the benefit of exceptions, under Sec. 105 Evid. Act, burden lies on him to prove exceptions. It applies to the Plea of self-defence. the accused can establish his case of private defence by showing probability (Samuthram alias Samudra Rajan v. State of Tamil Nadu, 1997-2 Crimes 185 (Mad). The burden would stand discharged if preponderance of probabilities is in favour of that plea on the basis of materials on record (Rizan v. State of Chhattisgarh, AIR 2003 SC 976).

Read Related Blogs

End Notes

Relevant provisions of the Evidence Act:

S. 101. Burden of proof.  Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

S. 102.   On whom burden of proof lies.

The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.

S. 103. Burden of proof as to particular fact

The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.

S.104. The burden of proving the fact to be proved to make evidence admissible

The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.

S.105. The burden of proving that the case of accused comes within exceptions

When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

S.106. The burden of proving fact specially within knowledge.

When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.

S.107. The burden of proving the death of person known to have been alive within thirty years.

When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.

 S.108. The burden of proving that person is alive who has not been heard of for seven years.

Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.

S.109. The burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent

When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.

S.110. The burden of proof as to ownership

 When the question is, whether any person is the owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

S.111. Proof of good faith in transactions where one party is in the relation of active confidence.

Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.

S. 114.   Court may presume existence of certain facts.

The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations

The Court may presume —

  • (a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;
  • (b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;
  • (c) that a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;
  • (d) that a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or states of things usually cease to exist, is still in existence;
  • (e) that judicial and official acts have been regularly performed;
  • (f) that the common course of business has been followed in particular cases;
  • (g) that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;
  • (h) that if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;
  • (i) that when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it: —

  • as to illustration (a) — a shop-keeper has in his bill a marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;
  • as to illustration (b) — A, a person of the highest character is tried for causing a man’s death by an act of negligence in arranging certain machinery. B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;
  • as to illustration (b) — a crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;
  • as to illustration (c) — A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under As influence;
  • as to illustration (d) — it is proved that a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;
  • as to illustration (e) — a judicial act, the regularity of which is in question, was performed under exceptional circumstances;
  • as to illustration (f) — the question is, whether a letter was received. It is shown to have been posted, but the usual course of the post was interrupted by disturbances;
  • as to illustration (g) — a man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;
  • as to illustration (h) — a man refuses to answer a question which he is not compelled by law to answer, but the answer to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;
  • as to illustration (i) — a bond is in possession of the obligor, but the circumstances of the case are such that he may have stolen it.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Presumptions on Documents and Truth of Contents

Read also:

Jojy George Koduvath.

Introspection.

Presumption in Evidence Act

  • 1. Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
  • 2. ‘Presumption’ may guarantee truth of the contents of a document. Whether the presumption bestows truth is a matter to be deduced after ‘appreciating’ facts (in each case).
  • 3. The court should give an opportunity to the party who relies on the document, to cure the deficiency (so finds by the court) for not adducing proper evidence to prove the document.
    • It is clear from Sec. 114. This provision gives a discretion to the court to invoke or not to invoke the presumption. It can never be a ‘classified’ matter.
    • We can take cue from Section 58 of the Evidence Act and Proviso to Order XII, Rule 2A of the CPC and  Sec. 294 of the CrPC.
    • Proviso to Section 58 of the Evidence Act and Proviso to Order XII, Rule 2A of the CPC and  Sec. 294 of the CrPC state that the facts admitted by the opposite side need not (always) be taken as proved, by the court. They manifestly allows the courts to “require” the facts admitted to be proved otherwise than by such admissions.

Presumption and marking of a document

  • Whenever the court considers:
    • (a) mere marking of a document on admission will not amount to its proof; or
    • (b) the probative value of a document ‘marked without objection’ is low or nil, for want of proper proof; or
    • (c) there is a formal defect (for not adducing ‘foundational evidence’) for a document that is a secondary evidence,
  • No court can discard the document from consideration, on this score, without giving an opportunity, to the party who relies on the document, to cure the deficiency.
  • It does not ipso facto arise from relevancy. The ‘truth or otherwise’ attached to the contents of a document is ‘presumed’ only under Sec. 114.

‘Presumption’ in Law – Is it Truth of a Fact Alleged

Presumption, in its word-word meaning, is an inference of a fact. Under Sec. 114 of the Evidence Act, court is expressly authorised to presume the existence of a fact on proof of certain specified conditions.

  • But, the inference of fact under Sec. 114, in most cases, will be the subsistence of a fact, like existence of a document or its authorship; and truth of it can be presumed, without further evidence, only in some cases. In certain cases, it may also be possible to take a further presumption – so that the ‘truth’ may also be deduced (Eg. regularity of official acts, transfer under a registered sale deed).

Thus, it is clear that ‘truth’ of a fact, inferred under presumption, may have to be separately established.

Presumption – Registered Document is Validly Executed & also Genuineness of Transaction

  • The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
  • There is a presumption – registered document is validly executed – Prem Singh v. Birbal, AIR 2006 SC 3608; Jamila Begum v. Shami Mohd., AIR 2019 SC 72; Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
  • A registered document carries with it a presumption that it was validly executed – Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
  • A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
  • The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.
  • A registered deed carries a presumption that the transaction was a genuine one. (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713)

PART I

‘Presumption’ under Sec. 114 of the Evidence Act

A fact, otherwise doubtful, may be substantiated from certain other facts. It is presumption.

Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Sir James Fitzjames Stephen – “No Two pairs of Shoes – Precisely Same Marks”

Sir James Fitzjames Stephen (Q.C.) who drafted the Indian Evidence Act, 1872, said in “The Indian Evidence Act  (I. of 1872), With An Introduction Principles on Judicial Evidence” as under:

  • “The presumption founded upon common experience, though its force may vary indefinitely, is that no two pairs of shoes would make precisely the same marks.”

Meaning of the word “Presume”

Meaning of the word “presume” is explored in State of Maharashtra v. Som Nath Thapa, AIR 1996 SC 1744, and stated as under:

  • “In Black’s Law Dictionary it has been defined to mean “to believe or accept upon probable evidence”.
  • In Shorter Oxford English Dictionary it has been mentioned that in law “presume” means “to take as proved until evidence to the contrary is forthcoming”.
  • Stroud’s Legal Dictionary has quoted in this context a certain judgement according to which “A presumption is a probable consequence drawn from facts (either certain or proved by direct testimony) as to the truth of a fact alleged”.
  • In Law Lexicon by P. Ramanath Aiyer the same quotation finds place at page 1007 of 1987 edition.”
  •  (See also: Ramachandran v. State of Kerala, 2009 Cr.LJ 168.)

Is there presumption as to “Truth”, in ‘Presumption’ under the Indian Evidence Act?

Not always.

  • But, mark – When presumption can be safely invoked without hesitation (on the face of it), the onus would be on a person who challenges such presumption – See: Prem Singh v. Birbal , (2006) 5 SCC 353)

Two views are forthcoming:

  • First, Presumption is an inference of a fact. This, by itself (invariably) embraces ‘truth’.
  • Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. The inference, in most cases, will be the subsistence of a fact, like existence of a document or its authorship (rather than its truth). In proper cases, a further presumption could be added – so that the ‘truth’ may also be deduced (Eg. regularity of official acts, sale under a registered sale deed).

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

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

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

(**from other sources)

Read Blog: Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Presumption of Truth is taken ‘on something Proved’, or presumed

In Izhar Ahmad Khan v. Union of India, AIR 1962 SC 1052, the Supreme Court definitely observed that presumption of truth is taken ‘on something proved or taken for granted’. It reads as under:

  • “The term ‘presumption’ in its largest and most comprehensive signification, may be defined to mean inference, affirmative or dis-affirmative of the truth or falsehood of a doubtful fact or proposition drawn by a process of probable reasoning from something proved or taken for granted.”

Under Sec. 114 of the Evidence Act, court can presume the existence of any fact. The Indian Evidence Act does not specifically correlate “truth” or “correctness” with ‘presumption’. But, ‘any fact’ stated in Sec. 114 of the Evidence Act (Court may presume the existence of any fact) includes ‘truth’.

In law, presumption is a probable consequence drawn from facts proved. By invoking presumption, existence (or non existence) of a fact, otherwise doubtful, is inferred from certain other proved facts. The Court exercises a process of reasoning and reach a logical conclusion as the most probable position. 

In proper cases, the court can infer ‘truth’ (over and above) presumption as to VALID EXECUTION. Presumption as to VALID EXECUTION  & CORRECTNESS to registration, need not always lead to further Presumption as to ‘truth’ of contents.

Presumption is Inference and Logical Conclusion

As shown above, it is clear from the Stroud’s Legal Dictionary that presumption is a probable consequence drawn from facts as to the truth of a fact alleged. It is clear that, in presumption, the existence or truth of a fact, otherwise doubtful, is inferred from certain other proved facts. Here, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position.

Presumption is also an inference as to the existence of one fact from the existence of some other facts. In Izhar Ahmad Khan v. Union of India (supra), the Supreme Court further quoted James Bradley Tayer (American jurist and author of Treatise on Evidence) which reads as under:

  • “Presumptions are aids to reasoning argumentation, which assume the truth of certain matters for the purpose of some given inquiry. …”.

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

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

It is held as under in Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857, as under:

  • “The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship.”

Our courts usually draw presumptions as to truth or correctness in documents covered by Sec. 35 Evd. Act and Registered deeds, as detailed below.

PART II

PRESUMPTION – ONE OF THE ‘MODES OF PROOF‘ OF DOCUMENTS

Besides the direct evidence, modes of proof of (contents of) documents include the following:

  • Invoking (specific) presumptions under Sec. 79 to 90A.
  • Invoking Presumptions (general) on probability or inferences under Sec. 114.
  • Relying on Circumstantial evidence – on probability and inferences (Sec. 114).

Proof Invoking Presumption

Presumption being an inference as to the existence of one fact from the proof of some other proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable consequence (See: St. of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988).

Section 67, Evid. Act requires – facts to be proved; It includes invocation of ‘Presumption‘

Section 35 in the Registration Act, 1908 reads as under:

  • “35. Procedure on admission and denial of execution respectively—(1) (a) If all the persons executing the document appear personally before the registering officer and are personally known to him, or if he be otherwise satisfied that they are the person they represent themselves to be, and if they all admit the execution of the document, or ….”

In Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945) it was observed that Section 67, Evidence Act only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’

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

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

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

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

Read Blog: Proof and Truth of Documents

Proof of Certified Copies Permitted by S. 77; Correctness Presumed by S. 79

Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents.  Sec. 77 reads as under:

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

In Kalyan Singh v. Chhoti, AIR 1990  SC 396, our Apex Court did not act upon the ‘just an ordinary copy‘, for, there was “also no evidence regarding content of the original sale deed”. It reads as under:

  • “Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

Revenue record Proves Possession; Presumption of truth Attached

It is held in Krishnamurthy S.  Setlur v.  O.V.  Narasimha Setty, 2019-9 SCC 488, that revenue record proves possession. it is said as under:

  • “14. In our considered view, the High Court has not given any cogent reasons for coming to the conclusion that KS was not in possession of the property. His name figured in the revenue record from 1963 to 1981 as the owner in possession. Presumption of truth is attached to revenue record which has not been rebutted.”

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

Truth of Public Document

In Madamanchi Raniappa v. Muthaluru Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673, it is held as under:

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

In Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1, it is held that even when the contents of a document is proved, the truth of what the document states must be separately established. It was a case where truth of contents disputed. It is clear from this decision that the proposition as to proving truth is more apposite when a contention was raised regarding the correctness of truth of the documents. It was further held in this case that annual return under the provisions of Section 164 of the Companies Act was prima facie evidence of any matters directed or authorised to be inserted therein by the Companies Act. The said extract prima facie establishes the truth of the contents of its original.

It is made clear in Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085, as under:

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

General and Specific instances of Presumptions in the Evidence Act

Sec. 114 of the Evidence Act allows the Court to presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Sec. 79 to 90A of the Evidence Act speaks as to specific instances of invoking presumptions.

Sec. 114 Evidence Act read with Sec. 35 Evidence Act

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

Sec. 35 of the Evidence Act reads as under:

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

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

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

Presumption of Correctness to Revenue Record Entries

In Vishwa Vijay Bharathi v. Fakhrul Hassan, (1976) 3 SCC 642, it is held as under:

  • “It is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry in to their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry is the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title.”

In Karewwa v. Hussensab Khansab Khansaheb Wajantri, AIR 2002 SC 504 : (2002) 10 SCC 315 , it is held as under:

  • “We do not dispute the legal position as stated by the learned counsel for the appellant, but the presumption of correctness of an entry in revenue record cannot be rebutted by a statement in the written statement. Mere statement of fact in the written statement is not a rebuttal of presumption of correctness of an entry in the revenue record. The respondent was recorded as a tenant in the revenue record in the year 1973 and under law the presumption is that the entry is correct. It was for the appellant to rebut the presumption by leading evidence. The appellant has not led any evidence to show that entry in the revenue record is incorrect. We, therefore, do not find any merit in the contention.”

In Avadh Kishore Das v. Ram Gopal, AIR 1979 SC 861, (1979) 4 SCC 790, it is observed as under:

  • “Wajibularz is village administration paper prepared with due care and after due enquiry by a public servant in the discharge of his official duties. It is a part of the settlement record and a statutory presumption of correctness attaches to it. Properly construed, this Wajibularz shows that the entire revenue estate of village Bahawalpura vests in the Temple or the Math as a juristic person.”

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

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

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

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

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

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

Documents in Official and Judicial Acts

Under S. 114, Illustration (e), there is presumption as to ‘regularity’, for Judicial and official acts. 

See also: Relevancy, Admissibility and Proof of Documents

Presumptions on documents arise in the following cases:

  1. Presumption on documents made in the course of business.
  2. Presumption on Regularity of official and judicial acts.
  3. Presumption on Registered Documents.
  4. Presumption on statements of dead person or who is not found etc.
  5. Presumption on certified copies of foreign judicial records.
  6. Presumption on certain books, maps and charts.
  7. Presumption on telegraphic messages.
  8. Presumption as to electronic messages.
  9. Presumption on 90 years old documents.
  10. Presumption on electronic records five years old
  11. Presumption on undue influence
  12. Presumption on Specific documents:
    • a. Wound Certificates, Post-Mortem Report etc.
    • b. Certificate, prepared on the basis of other documents.
    • c. Commission Report in an earlier case
    • d.  Deposition in an earlier case

Relevancy and Presumptions on Truth

Sec. 16, 34, 35, etc. of the Evidence Act speaks only on ‘relevancy’ of documents. It directs towards the ‘admissibility’. The ‘truth or otherwise’ attached to its contents is ‘presumed’ under Sec. 114.

Documents in the Course of Business.

Section 16 of the Indian Evidence Act: Sec. 16 reads as under:

  • Existence of course of business when relevant: When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact.

Illustrations to Sec. 16 make it clear that (a) when a question arises whether a particular letter was dispatched, the facts that it was the ordinary course of business for all letters put in a certain place to be carried to the post, and that particular letter was put in that place, are relevant; and that (b) when a question arises whether a particular letter reached A, the fact that it was posted in due course, and was not returned through the Dead Letter Office, are relevant.

In Puwada Venkateswara Rao v. Chidamana Venkat Ramanaa, AIR 1976 SC 869, the Apex Court found that a letter sent by registered post, with the endorsement “refused” on the cover, could be presumed to have been duly served upon the addressee without examining the postman who had tried to effect service and it was observed that there was presumption under Sec. 114 of the Evidence Act that, in the ordinary course of business, it was received by the addressee and actually refused by him.

Illustration (f) of Sec. 114 of the Evidence Act speaks that the common course of business has been followed in particular cases. Under this Illustration, it can be presumed the common course of business has been followed in particular cases. A registered postal receipt along with a copy of the letter containing the court notice and bearing correct address raises a presumption that it was duly received by the addressee, in spite of the absence of a return of acknowledgement (Anil Kumar vs. Nanak Chandra: AIR 1990 SC 1215). but, the addressee can rebut it (Radha Kishan vs. State: AIR 1963 SC 822).

Section 34 enjoins that entries in books of account, regularly kept in the course of business, are relevant. But, they by themselves, cannot create any liability. Unbound sheets of paper are not books of account (Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35).

Books of account, by themselves, being cannot create any liability (Ishwar Dass v. Sohan Lal, AIR 2000 SC 426), it can only be a corroborative evidence, and must be supported by other evidence (Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35).

Therefore, it is clear that, Sec. 114 can be resorted to, and presume existence of truth or correctness (a fact) which ‘it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business’.

Section 32: The ‘presumption of truth’ on such documents arises if it falls relevant under Sec. 32. Sec. 32 Evidence Act reads as under:

  • “32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant. –– Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable, are themselves relevant facts in the following cases:  
  • (1) When it relates to cause of death …. …..
  • (2) Or is made in course of business. –– When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods, securities or property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated, written or signed by him
  • (3) …..”

PART III

REGISTERED DEEDS – Presumption of Correctness Attached

As per Section 114 of the Evidence Act the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. According to Section 114 (e) there is a presumption that the judicial acts and official acts have been regularly performed.

Section 32 of the Registration Act states as to who shall present a document for registration. Section 34(3) states that the Registering Officer shall thereupon:

  •  “(a) enquire whether or not such document was executed by the persons by whom it purports to have been executed;
  •  (b) satisfy himself as to the identity of the persons appearing before him and alleging that he has executed the document.”

Section 35 provides that if the person executing the document appears personally before the registering officer and personally known to him, or if he be otherwise satisfied that he is the person, admits the execution of the document the registering officer shall register the document in accordance with sub-rule (2). The Registering officer may, in order to satisfy himself that the person appearing before him is the person he represent himself to be, or for any other purpose contemplated by this Act, “examine the person present before him in his office.” The Act further lays down that if any such person appears to the registering officer to be a minor, an idiot or a lunatic, the registering officer shall refuse to register the document. Section 36 confers the registering officer the power to enforce the appearance of executant and the powers of the civil court in that regard.  The endorsement under Section 58 is made by the Registrar after satisfying with the statutory requirements.

Presumption when a person signs a document

In Grasim Industries Ltd. v. Agarwal Steel, 2010-1 SCC 83, it is held as under:

  • “In our opinion, when a person signs a document, there is a presumption, unless there is proof of force or fraud, that he has read the document properly and understood it and only then he has affixed his signatures thereon, otherwise no signature on a document can ever be accepted. In particular, businessmen, being careful people (since their money is involved) would have ordinarily read and understood a document before signing it. Hence the presumption would be even stronger in their case.”

Registered Documents: Presumption – Genuineness

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

  • “The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”
  • “The deed of sale being a registered one and apparently containing stipulations of transfer of right, title and interest by the vendor in favour of the vendee, the onus of proof was upon the defendant to show that the said deed was, in fact, not executed or otherwise does not reflect the true nature of transaction. Evidently, with a view to avoid confrontation in regard to his signature as an attesting witness as also that of his father as vendor in the said sale deed, he did not examine himself. An adverse inference, thus, should have been drawn against him by the learned Trial Court.[See Kamakshi Builders v. Ambedkar Educational Society & Ors. [AIR 2007 SC 2191]”
  • “A heavy burden of proof lay upon the defendant to show that the transaction was a sham one.”

Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:

  1. the date, hour and place of presentation of the document for registration :
  2. the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
  3. the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
  4. any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.

Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1989 PC 117].

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

In the split-verdict in Manik Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

  • “18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

  • Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
  • Chottey Lal v. The Collector of Moradabad,  AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
  • Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
  • Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
  • Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

See also Blog: Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Registration of a document is Evidence of its Execution by its Executant

In Manik Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, the sale of property under consideration was made on behalf of the seller to the buyer through the power of attorney.  The power of attorney was not produced before the Court. The High Court observed that the sale was not proved as the PoA was not produced. Refuting the observation of the High Court, BV Nagaratna, J., in the split-verdict, held as under:

  • “18. … However, a registered deed has to be proved in accordance with Section 67 of the Evidence Act, 1872. Section 67 states that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting. Section 67 states that proof of signature and the genuineness of document proved by the proof of handwriting is proof of execution. Execution of a document means signing a document by consenting on it by a party. Section 67 does not prescribe any particular mode of proof. Mere registration of a document is not self-sufficient proof of its execution. It is only a prima facie proof of its execution particularly when no other evidence is available. Registration of a document is evidence of its execution by its executor. Certificate by registering officer under Section 60 of the Registration Act, 1908 is relevant for proving its execution. Proof by evidence afforded by the contents of the documents is of considerable value. In the instant case, what is sought to be proved is title by the sale deed and not the power of attorney as it is the sale deed which conveys title and the sale deed has been executed in accordance with the provisions of Registration Act, 1908, and proved in accordance with Section 67 of Evidence Act. It cannot be held that the sale made on behalf of the seller (original owner of the suit land) to the buyer through the power of attorney is vitiated as the power of attorney was not produced before the Court. This is because even in the absence of the production of the power of attorney, the contents of the sale deed and the execution of the power of attorney as well as the sale deed have been established by proving the sale deed in accordance with the law.”

Presumption on a Registered Document – “It is VALIDLY EXECUTED“

  • Section 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
  • Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
  • In short, the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
  • Therefore, there is a presumption – registered document is validly executed –
    • Prem Singh v. Birbal, AIR 2006 SC 3608;
    • Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
    • Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
    • Manik Majumder v. Dipak Kumar Saha, AIR  2023 SC 506.
  • A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.
  • The facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof – Bhagat Ram v. Suresh, AIR 2004 SC 43.

Registered Deeds: Proof of CORRECTNESS, Invoking Presumption

Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713). The onus of proof, thus, would be on a person who questions the same

Do Presumptions as to VALID EXECUTION & CORRECTNESS  Import TRUTH?

Two views emerge on registered documents-

  • First, Presumption as to VALID EXECUTION  & CORRECTNESS lead to further (invariable) Presumption as to ‘truth’.
  • Second (and more cogent), under Sec. 114 of the Evidence Act, court may presume the existence of any fact. In most cases, the court will infer ‘truth’ if there is presumption as to VALID EXECUTION  & CORRECTNESS. But, in proper cases, the court can desist to deduce ‘truth’ despite presumption as to VALID EXECUTION  & CORRECTNESS.

In short, Presumptions as to VALID EXECUTION & CORRECTNESS may Import  TRUTH. Presumptions may give rise to two propositions:

  • 1. Shift Burden (as to truth) in Most cases. The party in whom the ‘burden of proof’ rests can rely on ‘registration certificate’ as proof and truth of the contents of the deed.
    • The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
  • It being presumed to be VALID & CORRECT, it further gives a presumption as to truth of the contents also, under Sec. 114 Evid. Act (regard being had to the common course of natural events, human conduct etc.) .
  • There being presumption as to ‘VALID EXECUTION  & CORRECTNESS’ and thereby presumption as to truth of the contents also, the onus of proof is shifted upon the party who challenges the presumption as to truth of the contents. (Note: it is held in Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713, that there is also a presumption on registered deed that the “transaction is a genuine one”)
  • 2. 2. Ex Facie Requires Truth; No Question of Shifting Burden. But, the above proposition is not an invariable rule. If it comes out from the pleadings, documents or issues that the burden is upon the person who produced the registered document to prove its truth, the presumed presumption will not help him.
    • For example – The executant of the registered deed would not have executed such a deed, in all probabilities (regard being had to the common course of natural events, human conduct etc.) as revealed from the pleadings or documents produced; or, its untrue nature can be (prima facie) ‘judicially noticed’.

Sec. 114 Evid. Act

Sec. 114 Evid. Act reads as under:

  • “114. Court may presume existence of certain facts —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations ……”

Is there Presumption as to Truth on Registered Will

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

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

  • “The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …

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

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

Registered deed: Presumption – Validly Executed

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

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

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

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

Read Blog: Presumptions on Registered Documents & Truth of its Contents

Registration Certificate is a mode of proof under Section 67 Evidence Act

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

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

Non-Examination of Registrar

No doubt, there is a presumption on registration. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterpreses, 2011 3 LW 513, the Madras High Court took it seriously that despite the the party who raised dispute as to the execution of the agreement did not chose to examine the Sub-Registrar for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

PART IV

30 Years Old Documents and Presumption of Truth of Contents

Sec. 90 Evidence Act reads as under:

  • “90. Presumption as to documents thirty years old:
  • Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person’s handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
  • Explanation.—Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable.”
  • This Explanation applies also to section 81. 

Sec. 90 Evidence Act can be analysed as under:

  • Sec. 90 CPC speaks about two things, as regards 30-year-documents:
    • 1. A document purports to be in the handwriting of any particular person is presumed to be in his handwriting.
    • 2. A document purports to be executed or attested is presumed to be duly executed and attested.
  • Under Sec. 90, Not Truth of Contents, but, only presumption of Genuineness of a document (i.e., existence or handwriting), is drawn. Therefore, besides TRUTH, the contents of the documents also have to be proved by cogent evidence.
    • But, if the document is a public document an “added presumption” (as to correctness) under Section 114(e) is available – Iqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718.
  • Under Sec. 114, TRUTH can be presumed, directly, in proper cases, in their peculiar ensuring facts (regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).

In Lakhi Baruah v. Padma Kanta Kalita, (1996) 8 SCC 357, with regard to admissibility in evidence of thirty years old documents produced from proper custody, it was observed as under:

  • “15. Section 90 of the Evidence Act, 1872 is founded on necessity and convenience because it is extremely difficult and sometimes not possible to lead evidence to prove handwriting, signature  or execution of old documents after lapse of thirty years. In order to obviate such difficulties or improbabilities to prove execution of an old document, Section 90 has been incorporated in the Evidence Act, 1872 which does away with the strict rule of proof of private documents. Presumption of genuineness may be raised if the documents in question is produced from proper custody. It is, however, the discretion of the court to accept the presumption flowing from Section 90. There is, however, no manner of doubt that judicial discretion under Section 90 should not be exercised arbitrarily and not being informed by reasons.”

Presumption on Public Documents

As shown above, in Madamanchi Raniappa v. Muthaluru Bojjappa (Gajendragadkar , J.), AIR1963 SC1633; 1964-2 SCR 673It is held as under:

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

Quoting Lakhi Baruah v. Padma Kanta Kalita, it is held in Iqbal Basith and others v. N Subbalakshmi, (2021) 2 SCC 718, as under:

  • “The appellants produced photocopies of all other resolutions, government orders and sale deed in favour of their vendor OA Majid Khan by the Municipality. The failure to produce the originals or certified copies of other documents was properly explained as being untraceable after the death of the brother of P.W.1 who looked after property matters. The attempt to procure certified copies from the municipality was also unsuccessful as they were informed that the original files were not traceable. The photocopies were marked as exhibits without objection. The respondents never questioned the genuineness of the same. Despite the aforesaid, and the fact that these documents were more than 30 years old, were produced from the proper custody of the appellants along with an explanation for non­production of the originals, they were rejected without any valid reason holding that there could be no presumption that documents executed by a public authority had been issued in proper exercise of statutory powers. This finding in our opinion is clearly perverse in view of Section 114(e) of the Indian Evidence Act 1872, which provides that there shall be a presumption that all official acts have been regularly performed. The onus lies on the person who disputes the same to prove otherwise.”

In Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC  3115; 2009-12 SCC 454, it was observed as under:

  • “25. The findings of the learned District Judge holding Ex. P.2 to be a public document and admitting the same without formal proof cannot be questioned by the defendants in the present appeal since no objection was raised by them when such document was tendered and received in evidence. It has been held in Dasondha Singh and Others v. Zalam Singh and Others [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trial before it is received in evidence and marked as an exhibit. Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof.”

It appears that the correct view on Sec. 30 had been expressed in Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, wherein it was observed that this was a matter with the discretion of the court. It also referred to Sec. 114 of the Evidence act. It is held as under:

  • “10. The true scope of Sec. 90 of the Evidence Act is that the section does away with the strict rules of proof which are enforced in the case of private documents, by giving rise to a presumption of genuineness with regard to documents reaching a certain age. If private documents not less than thirty years old are produced from proper custody, and are on their face free from suspicion, the court may presume that they have been signed or written by the person whose signatures they bear or in whose handwriting they purport to be, and that they have been duly attested and executed, if they purport so to be. In other words, documents thirty years old prove themselves–see Sirkar on Evidence 12th Edn. page 727.
  • The section deals with the admissibility of such old documents without proof in the usual manner, but the credit to be given to them depends on the discretion of the court exercised in a judicial manner and the particular circumstances of each case. No doubt, the presumption is permissive and according to the circumstances of each case the court may or may not raise it. It has also been held in certain cases that a sound disposing mind can be presumed under Sec. 90, This is so ‘because of the expression ‘duly executed’ in the section. The word duly has to be taken to mean execution by a person legally competent to execute the document–see (1) Kottayya v. Karancheti– AIR 1930 Mad 744 (2) Munnalal v. Kshibai — AIR 1947 PC 15; (3) Venkatarama v Bhaskar Rao — AIR 1962 Andh Pra 29.
  • This presumption is fortified by Sec. 114 Evidence Act. Again it may be made clear that it is in the discretion of the court to draw the presumption or not.”

Public Document Admissible per se without Formal Proof

Certified copies of the public documents can be proved without formal proof. See:

  • Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425 ,
  • Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC  3115; 2009-12 SCC 454
  • Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361
  • Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633
  • Rajasthan State Road Trans. Corp. v. Nand Kishore, 2002 ACJ 1564 (Raj)
  • Md. Akbar v. State of A.P., 2002 CrLJ 3167 (And)
  • Collector (L. A. ), South Andaman v. Himangshu Mondal, 2015-2 CalLT 1
  • Arti Meena v. Rajasthan High Court, Jodhpur, 2020-1 SCT 1 (Raj).

In Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361, it is held as under:

  • “3.…  We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author ” (Quoted in: Manikanta v. State of Karnataka, 2024 Kar HC 21233)

In Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425, it is held that certified copy of a public document prepared under Section 76 of the Act, in terms of Section 74 of the Indian Evidence Act, 1872 is admissible in evidence under Section 77 of the said Act, without being proved by calling witness. It is said as under:

  • “9. … To put it clear, the compromise had become a part of the decree which was passed by the court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of Section 74 of the Indian Evidence Act, 1872 (in short ‘the Act’) and certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77 of the said Act. A certified copy of a public document is admissible in evidence without being proved by calling witness.

See also the following cases where documents were accepted in evidence and acted upon on the basis of Section 35 Evidence Act:

  • Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 (admission forms as also the School’s register)
  • Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361 (certified copy of the birth register).

PART V

Presumption on undue influence Engrained in:

  • (i) Section 111 of the Indian Evidence Act, 1872 and
  • (ii) Clause (3) of Section 16 of the Indian Contract Act

Referring M. Rangasamy Vs. Rengammal, (2003) 7 SCC 683, it is pointed out in Bellachi v. Pakeeran,  AIR 2009 SC  3293, that though the law does not envisage raising of a presumption in favour of undue influence and that the party alleging the same must prove the same, it is subject of course to just exceptions. Though normally it would be for a person who pleads undue influence to establish the said fact, when the facts of a case establishes fiduciary relationship of the propounder with the executant, then it is for the propounder to prove that the deed was the result of free exercise of independent will by the executant.

In Krishna Mohan Kul @ Nani Charal Kul v. Pratima Maity,  AIR 2003 SC 4351, the Supreme Court held as under:

  • “When fraud, mis-representation or undue influence is alleged by a party in a suit, normally, the burden is on him to prove such fraud, undue influence or misrepresentation. But, when a person is in a fiduciary relationship with another and the letter is in a position of active confidence the burden of proving the absence of fraud, misrepresentation or undue influence is upon the person in the dominating position, he has to prove that there was fair play in the transaction and that the apparent is the real, in other words, that the transaction is genuine and bona fide. In such a case the burden of the proving the good faith of the transaction is thrown upon the dominant, party, that is to say, the party who is in a position of active confidence. A person standing in a fiduciary relation to another has a duty to protect the interest given to his care and the Court watches with jealousy all transactions between such persons so that the protector may not use his influence or the confidence to his advantage. When the party complaining shows such relation, the law presumes everything against the transaction and the onus is cast upon the person holding the position of confidence or trust to show that the transaction is perfectly fair and reasonable, that no advantage has been taken of his position.
  • This principle has been engrained in Section 111 of the Indian Evidence Act, 1872 …. …..”When the relation between the donor and donee at or shortly before the execution of the gift has been such as to raise a presumption that the donee had influence over the donor, the Court sets aside the gift unless the donee can prove that the gift was the result of a free exercise of the donors will….
  • 15. The corollary to that principle is contained in Clause (3) of Section 16 of the Indian Contract Act, 1872 (in short Contract Act).

The Supreme Court in a subsequent decision in Anil Rishi v. Gurbaksh Singh, AIR 2006 SC 1971, distinguished Krishna Mohan Kul v. Pratima Maity stating that the averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn; and that the factum of active confidence should also be established. It was also pointed out in Anil Rishi v. Gurbaksh Singh that Krishna Mohan Kul  was a case proceeded, inter alia, on the following circumstances:

  • (i)   The witnesses were not in existence.
  • (ii)  The executant was more than 100 years of age.
  • (iv) He was paralytic and mental and physical conditions were not in order.
  • (v) He was completely bed-ridden and no witness could substantiate that he had put his thumb impression.

Active Confidence & Sec. 111 Evidence Act

Sec. 111 of the Evidence Act reads as under:

  • “111. Proof of good faith in transactions where one party is in relation of active confidence. Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.
  • Illustrations
  •  (a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of the transaction is on the attorney.
  •  (b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the transaction is on the father.”

Mere relation or old age not enough: Jamila Begum v. Shami Mohd., 2018 KHC 7002 (SC)

  • “26. Insofar as the plea of undue influence, merely because the parties are related to each other or merely because the executant was old or of weak character, no presumption of undue influence can arise. Court must scrutinise the pleadings to find out that such plea has been made out before.”

PART VI

Presumption on Specific documents:

a. Expert Evidence

Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.

In practice, the investigating agencies and courts give very high importance to wound-certificates and post-mortem certificates. They are considered as an indispensable part in most criminal cases. Same is the case of evidence of Ballistic expert. Here also primacy is given to ocular evidence if it is found credible by the court, especially when the ocular evidence is supported by the wound certificate or post-motem report.

In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:

  • “15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 Cr.L.J. 3508 Ori. (DB).

In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa.AIR 1987 SC 1507).

In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.

Decision which changed the concept of law on ‘conclusive presumption’

Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, AIR 2014 SC 932, is a very important decision which changed the concept of law on ‘conclusive presumption’ on Sec. 112.

Sec. 112 reads as under:

  • 112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.

It is held in Nandlal Wasudeo Badwaik case as under:

  • “17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

b. Wound Certificates, Post-Mortem Report etc.

Post-mortem Report or Wound Certificate is not a substantive evidence

  • Mohan Singh v. Emperor, AIR 1925 All. 413 (DB);
  • State v. Rakshpal Singh, AIR 1953 All. 520;
  • Ram Pratap v. State, 1967 All.W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB); Mellor v. Walnesley, 1905, 2Ch. 164 (CA);
  • Hadi Kisani v. State, AIR 1966 Orissa 21; Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal);
  • Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau);
  • Jagdeo Singh v. State, 1979 Cr.L.J.236 (All);  
  • K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].

Unless the medical officer who conducted the post-mortem examination is examined in court, the post-mortem report cannot be used as substantive evidence. In Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 it is observed that a stray statement of the doctor in cross-examination will not be a conclusive opinion; but it is only a possibility.

In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:

  • “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.  

c. Certificate or Report prepared on the basis of other documents.

Unless presumption can be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), no certificate can be taken as proved unless its contents are proved in a formal manner.

A certificate or report, prepared on the basis of other documents, or assumptions or inferences, by itself, is not admissible as it will only be, at the most, a secondary evidence.

d. Commission Report in an earlier case

Assumptions or inferences of a person on any matter, by itself, is not a substantive evidence. It is admissible only if the person concerned is examined in court. This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.

e. Deposition in an earlier case

It is not a substantive evidence unless it falls under Sec, 32 or 33 of the Evidence Act. But, credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing.

f. Date of birth in School register

in Birad Mal Singhvi vs. Anand Purohit,AIR 1988 SC 1796, held as under:

  • “An entry relating to date of birth made in the school register is relevant and admissible under section 35 of the Act, but the entry regarding to the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of material on which the age was recorded .. The entries regarding dates of birth contained in the scholar’s register and the secondary school examination have no probative value, as no person on whose information the dates of birth of the aforesaid candidates was mentioned in the school record, was examined. In the absence of the connecting evidence, the documents produced by the respondent, to prove the age of the aforesaid two candidates have no evidentiary value.”

When Marked Without Objection – its ‘contents’ stand proved, if presumptions can be safely invoked

Admission or exhibiting of documents in evidence, and proving the same before the court, are two different process. In certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, separate proof need not be warranted. Separate proof may not be required, also, when presumptions can be safely invoked (e.g. a reliable document in ordinary course of business, a letter proved to be obtained in reply, a record from a government office).

Presumptions Incorporated in Evidence Act While Introducing Sec. 65 A and 65 B

  • Sec. 81A. Presumption as to Gazettes in electronic forms
  • The Court shall presume the genuineness of every electronic record purporting to be the Official Gazette or purporting to be electronic record directed by any law to be kept by any person, if such electronic record is kept substantially in the form required by law and is produced from proper custody
  • 85A Presumption as to electronic agreements
  • The Court shall presume that every electronic record purporting to be an agreement containing the electronic signature of the parties was so concluded by affixing the electronic signature of the parties.
  • 85B Presumption as to electronic records and electronic signatures
  • (1) In any proceedings involving a secure electronic record, the Court shall presume unless contrary is proved, that the secure electronic record has not been altered since the specific point of time to which the secure status relates.
  • (2) In any proceedings, involving secure electronic signature, the Court shall presume unless the contrary is proved that—
  • (a) the secure electronic signature is affixed by subscriber with the intention of signing or approving the electronic record;
  • (b) except in the case of a secure electronic record or a secure electronic signature, nothing in this section shall create any presumption, relating to authenticity and integrity of the electronic record or any electronic signature.
  • 85C Presumption as to Electronic Signature Certificates
  • The Court shall presume, unless contrary is proved, that the information listed in a 86 Electronic Signature Certificate is correct, except for information specified as subscriber information which has not been verified, if the certificate was accepted by the subscriber.
  • 88A. Presumption as to electronic messages
  • The Court may presume that an electronic message, forwarded by the originator through an electronic mail server to the addressee to whom the message purports to be addressed corresponds with the message as fed into his computer for transmission; but the Court shall not make any presumption as to the person by whom such message was sent.
  • “Explanation: For the purposes of this section, the expressions “addressee” and “originator” shall have the same meanings respectively assigned to them in clauses (b) and (za) of sub-section (1) of section 2 of the Information Technology Act, 2000.

PART VII

Court to invoke Presumptions Judiciously

Discretionary presumptions—those which the court may invoke under provisions like Section 114 of the Evidence Act—should be exercised only after considering the relevant circumstances and providing a reasoned justification. A court cannot—and should not—ignore available presumptions without offering proper judicial rationale.

  • “Reason is the heartbeat of every conclusion, and without the same it becomes lifeless”: (Arijit Pasayat J.) AIR 2008 SC 1589, 2008 (15) SCC 711, and Raj Kishore Jha v. State of Bihar, 2003 (7) Supreme 152.
  • See also: State of U.P. v. Battan,2001 (10) SCC 607;  State of Maharashtra v. Vithal Rao Pritirao Chawan, AIR 1982 SC 1215; Jawahar Lal Singh v. Naresh Singh, 1987 (2) SCC 222.

In Rathish Babu Unnikrishnan v. State (Govt.  of NCT of Delhi), 2023 CrLJ 311; 2022-4 JT 477; 2022-6 Scale 794; 2022-4 SCR 989, it is held as under:

  • “In any case, when there is legal presumption, it would not be judicious for the quashing Court to carry out a detailed enquiry on the facts alleged, without first permitting the trial Court to evaluate the evidence of the parties. The quashing Court should not take upon itself, the burden of separating the wheat from the chaff where facts are contested. To say it differently, the quashing proceedings must not become an expedition into the merits of factual dispute, so as to conclusively vindicate either the complainant or the defence.”

In Nepurjan Bibi Choudhury v. Musabbir Ali Choudhury, AIR 2018 Gau 151, it is emphasised as under:

  •  “Court needs to exercise the discretion judiciously while taking presumption under Section 90 of the Evidence Act, keeping in mind the underlying object of the provision, being the necessity and convenience and also the precondition required for taking a presumption. Section 90 of the Evidence Act provides that before taking a presumption, two basic ingredients should be there, namely the document sought to be proved must be of 30 years old and it must be produced from proper custody.”

Adverse Presumption and Doctrine of Production of Best available evidence

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

The rule that best available evidence must be produced is taken in the following cases:

  • Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; 
  • Hiralal v. Badkulal, AIR 1953 SC 225; 
  • A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; 
  • The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; 
  • Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
  • M/s. Bharat Heavy Electrical Ltd. v. State of U.P.,  AIR 2003 SC 3024;
  • Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

  • “It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

  • “13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient. (See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

  • “22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

  • “28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522, also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1, also.

Mere Non-Production of Documents would Not result in Adverse Inference

In Mahendra L. Jain v. Indore Development Authority, (2005) 1 SCC 639, the Supreme  Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so. In Manager, R.B.I., Bangalore v. S. Mani, AIR 2005 SC 2179, the Industrial Tribunal directed the employer to produce the attendance register. The explanation thereto was that the attendance registers being very old, could not be produced. The Tribunal drew an adverse inference. The respondents did not adduce any evidence whatsoever. Apex Court reversed the finding observing as under:

  • “The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle.”

Similar view is stated in the following decisions:

  • Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96;
  • Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256;
  • Smt. Indira Kaur v. Shri Sheo L Kapoor, AIR 1988 SC 1074;
  • Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342,
  • Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; 
  • Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328;
  • Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681;
  • A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; 
  • R.M. Yellatti v. Assistant Executive Engineer AIR 2006 SC 355;
  • Pratap Singh v. State of M.P., AIR 2006 SC 514;
  • Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, 
  • Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339,

Referring all the aforesaid decisions it is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, that presumption or adverse inference for non-production of evidence is always optional. It is said as under:

  • “16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.”

Conclusion

The answer to the question – does ‘presumption’ in law guarantee truth of the contents of a document; or, whether it is only proof of existence of the document – is that, ‘presumption’ in law, generally speaking, guarantees truth of contents of a document. Court is free to invoke presumption on a particular set of facts. It depends upon the appreciation of evidence (in each case), by the court, on its experiences, which is an art and science. R. Basant, J., in Basheer Vs. Mahasakthi Enterprises – Ker LT 2005-3 163: 2005-1 Mad LJ 965, held as under:

  • “The appreciation of evidence is both an art and a science. All relevant inputs have to be taken into consideration for the Court to answer a disputed question of fact. Each circumstance including the opinion tendered by an expert must be taken into consideration. All the relevant inputs must be placed in the crucible. But the result of such appreciation must stem from prudence, reasonableness and intelligence of the Court. The knowledge of men and matters of the Court would be crucial. The knowledge of the court of common course of events and natural and probable behaviour of human beings will be vital. The yardsticks of a reasonably prudent mind have to be accepted. All relevant circumstances must go into the decision making. When the evidence is sifted, weighed, tested, analysed and evaluated, no one piece of evidence can be said to overrule the others unless such evidence be clinching, convincing and beyond doubt.”

Foot Notes:

Modes of Proof of Documents

  • Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
  • Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
  • An attesting witness (Sec. 59).
  • Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
  • Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
  • Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
  • Invoking ‘ordinary course’, regularity etc. under Sec. 16, 32, 34, 35 read with and presumption under Sec. 114.
  • Invoking (specific) presumptions under Sec. 79 to 90A.
  • Presumptions (general) under Sec. 114.
  • Circumstantial evidence: on probability or inferences (Sec. 114).
  • Court-comparison (Sec. 73).
  • Facts judicially noticeable (Sec. 56 and 57).
  • A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010  ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
  • internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857).

Modes of Proof of Documents Required By Law To Be Attested: Section 68 of the Evd. Act provides that the documents required by law to be attested shall not be used in evidence until at least one attesting witness has been examined, if there be (i) an attesting witness alive, (ii) he is subject to the process of court and (iii) he is capable of giving evidence. But, the proviso lays down that if its execution is not specifically denied by the person by whom it purports to have been executed, it shall not be necessary to call an attesting witness in proof of the execution of any document not being a Will if such document is registered in accordance with the provisions of Indian Registration Act, 1908. That is, for the purpose of proving the Will, the examination of the attesting witness is necessary.Following documents are required by law to be attested by two or more attesting witnesses.

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

Similar Articles:

Read in this Cluster (Click on the Topic):

Book No. 1.   Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Will

Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Best Evidence Rule in Indian Law

Joji George Koduvath, Kottayam.

PART I

Introduction

Sir James Fitzjames Stephen, Q. O. (who drafted the Indian Evidence Act, after accepting the post as Legal Member of the Viceroy’s Executive Council) in his work, ‘An Introduction to the Indian Evidence Act – The Principles of Judicial Evidence’, pointed out in the introductory Chapter, that the following are the 3 foundational principles of English Law:

  • (1) Evidence must be confined to the matters in issue.
  • (2) Hearsay evidence is not to be admitted.
  • (3) In all cases the best evidence must be given.”

The ‘best evidence rule’ is laid down, in-particular, in Sec. 60 and 61 of the Evidence Act (oral evidence must be direct; and contents of documents are to be proved either by primary or by secondary evidence).

Oral Evidence must be Direct

Sec. 60 of the Evidence Act directs that the oral evidence must be direct; that is to say:

  • if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
  • if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
  • if it refers to a fact which could be perceived by any other sense or in any other manner,
  • it must be the evidence of a witness who says he perceived it by that sense or in that manner;
  • if it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds.

Documents must be Proved by Primary Evidence

Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Best evidence rule insists for primary evidence when original documents exists; and Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Sec. 65 clause (a) to (g) delineates the cases in which secondary evidence relating to documents may be given.

Best-Evidence Rule

Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:

No.PropositionsSec. in Evd. Act
1Best available evidence must be produced.
If not, adverse presumption will be taken.		114 (g)
2Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).60
3Documents must be proved by Primary Evidence.
Contents of documents and electronic records are not allowed to be proved by oral evidence; nevertheless, secondary evidence is allowed when it is so permitted.		64 & 65;
22, 22A & 144;
4To prove the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, document itself, or secondary evidence, must be produced.91
5No evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.92
6Sec. 93 and 94 speaks as to exclusion of evidence.93 & 94
7Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.94 to 99
8Circumstantial and Presumptive evidence can be resorted to in proper cases.114
9Substantive evidence that requires corroboration must be corroborated.157
10When secondary evidence is permitted (under Sec. 65), Oral Evidence is a kind of secondary evidence.63(5)

Also Read: Rules on Burden of proof and Adverse Inference

Best available evidence must be produced; If Not, Adverse Presumption will be Taken

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

  • The rule that best available evidence must be produced is taken in the following cases:
  • Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; 
  • Hiralal v. Badkulal, AIR 1953 SC 225; 
  • A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; 
  • The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; 
  • Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
  • M/s. Bharat Heavy Electrical Ltd. v. State of U.P.,  AIR 2003 SC 3024;
  • Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

  • “It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

  • “13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient. (See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

  • “22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

  • “28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

In Digamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.

Rule of ‘Next Best Evidence’

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

  • G. Balamani v. Parimi Manga Devi, 2019-4 ALD 401; 2019-4 ALT 203; 2019-3 CivCC 590
  • Raghunath Ramnath Zolekar v. State of Maharashtra, 2013-1 Crimes(HC) 532
  • Biju Paul v. Nedungadi Bank Ltd. 2012-2 KerLT(SN) 113 (For creating equitable mortgage),
  • Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the  next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
  • Jagdamba Tea Factory v. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17 (Where no lease deed, the entries in the house-tax register, which was the next best evidence available, could very well be taken into consideration for determining the rate of rent.),
  • 2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the  next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
  • Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
  • M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456 (in the absence of the original deed of transfer the next best evidence of the owner’s title to the property is a certified copy of that document).
  • Ananthakrishnan v. K. G.  Rangasamy (Mad), 2020-4 CTC 411; 2020-1 LW 355 (quoted: M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456)

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that the copy of a deed of transfer is not ordinarily a document of title for the purposes of an equitable mortgage, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the  next best evidence of the owner’s title to the property would be a certified copy of that document.

Proof of Certified Copies Permitted by S. 77; Correctness Presumed by S. 79

Sec. 77 of the Evidence Act permits to produce certified copies of public documents in proof of its contents.  Sec. 77 reads as under:

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

In Kalyan Singh v. Chhoti, AIR 1990  SC 396, our Apex Court did not act upon the ‘just an ordinary copy‘, for, there was “also no evidence regarding content of the original sale deed”. It reads as under:

  • “Section 63 of the Evidence Act mentions five kinds of secondary evidences. Clause (1), (2) and (3) refer to copies of documents; clause (4) refers to counterparts of documents and clause (5) refers to oral accounts of the contents of documents. Correctness of certified copies referred to in clause (1) is presumed under Section 79; but that of other copies must be proved by proper evidence. A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex. 3 cannot, therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”

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

Certified Copy alone Admitted for Equitable Mortgage, Not Xerox Copy

Relying on Kalyan Singh v. Chhoti, AIR 1990 SC 396, the Madras High Court, in Ananthkrishnan V. K G Rangasamy, 2020-1 Mad LW 355, observed that when a document was a registered one, the xerox copy of the same was not admissible as secondary evidence; and the court found it bad to create an equitable mortgage with xerox copy. The same view is taken by the Kerala High Court in Syndicate Bank v. Modern Tile and Clay Works, 1980 KLT 550. It is followed in Biju Paul Vs. Nedungadi Bank,2012-245 KerLR 291.

But, the AP High Court observed in G Balamani v. Parimi Manga Devi, 2019-4 ALD 401,
2019-3 CIVCC 590, 2019-4 ALT 203, that a valid equitable mortgage could be created by deposit of photostat copies of title deeds.

Read Blog: Is Certified Copy of Registered Deed a Public Document? Is it Admissible in Evidence?

Non-Examination of Registrar

There is a presumption on registration of deeds. Therefore, the best evidence rule requires examination of Registrar when one seeks to rebut or displace the presumption. In Muruga Udayar v. Thirumalai Enterprises, 2011-3 LW 513, the Madras High Court took it seriously that the party, who raised dispute as to the execution of the agreement, did not chose to examine the Sub-Registrar, for proving his case that he did not appear before the Sub-Registrar and put his signature towards registration.

Oral Evidence must be Direct; Hearsay  Evidence, Inadmissible

As per the Evidence Act (Sec. 3), ‘evidence’ means and includes oral evidence and documentary evidence. As stated earlier, Sec. 59 of the Evidence Act says that all facts, except the contents of documents or electronic records may be proved by oral evidence. Sec. 60 directs that the oral evidence must be direct.

Sec. 6 of the Evidence Act – an Exception to Hearsay Rule. Though the Evidence Act does not contain the word ‘hearsay’, Sec. 60 makes it clear that ‘hearsay evidence is not admissible. But, Sec. 6 is an exception to this rule. It lays down that when the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant. It allows ‘res gestae’ (facts forming same transaction) evidence. The principle is that those facts ‘speak for themselves’. Evidence of a fact that took place in continuation of the real act in issue is embodied in ‘res gestae and in Sec. 6 of the Evidence Act. Sec. 6 reads as under:

  • “6. Relevancy of facts forming part of same transaction. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.”

In Sukhar v State of U.P. 1999 AIR SC 3968: (1999) 9 SCC 507 it was held that the statement of the witness indicating that the injured told him that his nephew had fired at him, would become admissible under Section 6 of the Evidence Act and it was observed that the rationale in making certain statement or fact admissible under Section 6 of the Evidence Act is on account of the spontaneity and immediacy of such statement or fact in relation to the fact in issue. But it is necessary that such fact or statement must be a part of the same transaction. In other words, such statement must have been made contemporaneous with the acts which constitute the offence or at least immediately thereafter. But if there was an interval, however slight it may be, which was sufficient enough for fabrication then the statement is not part of res gestae.

In Bishna vs State of West Bengal, AIR 2006 SC 302, besides the eye-witnesses, two more witnesses, PWs.16 and 19 were examined in this case. They came to the place of occurrence immediately after the incident had taken place and found the dead body of Prankrishna and injured Napal in an unconscious state. PW-16 found the mother of Prankrishna and Nepal weeping as also Chepulal and Shambhu present there. He heard about the entire incident from Chepulal including the role played by each of the Appellants and others. PW-19 also corroborated the testimonies of the prosecution witnesses. He heard about the incident from Subhas Mahato. The Supreme Court held that the evidence of these two witnesses is admissible in terms Section 6 of the Indian Evidence Act.

In Vasa Chandrasekhar Rao v. Ponna Satyanarayana, (2000) 6 SCC 286, the father of the accused informed the father of the deceased over telephone that accused had killed the deceased. There was no finding that the information was either of the time of commission of the crime or immediately thereafter, so as to form the same transaction. Therefore, it was held that it cannot be considered as relevant under Section 6 of the Evidence Act.

Secondary evidence allowed only when permitted under Sec. 65

Sec. 61 of the Evidence Act directs that the contents of documents may be proved either by primary or by secondary evidence. Sec. 62 says that Primary evidence means the document itself produced for the inspection of the Court.

Sec. 63 lays down the mode of secondary evidence permitted by the Act.  It reads as under:

  • “63. Secondary evidence means and includes—
    • (1) Certified copies given under the provisions hereinafter contained;
    • (2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
    • (3) Copies made from or compared with the original;
    • (4) Counterparts of documents as against the parties who did not execute them;
    • (5) Oral accounts of the contents of a document given by some person who has himself seen it.”

As pointed out earlier, Sec. 64 stipulates that documents must be proved by primary evidence except in the cases mentioned in Sec.65. Clauses (a) to (g) of Sec. 65 delineate the cases in which secondary evidence relating to documents may be given. They read as under:

  • (a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, of any person out of reach of,
    • or not subject to, the process of the Court,
    • or of any person legally bound to produce it, and when, after the notice mentioned in section 66, such person does not produce it;
  • (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;
  • (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
  • (d) when the original is of such a nature as not to be easily movable;
  • (e) when the original is a public document within the meaning of section 74;
  • (f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in 1 [India] to be given in evidence;
  • (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collection.

No Notice Required if Adverse Party knows that ‘he will be required to produce it‘

Sec. 66 of the Evidence Act stipulates that secondary evidence of the documents shall not be permitted unless the party proposing to give such secondary evidence have given notice to the other party. But, the proviso to the section states, among other things, that when, from the nature of the case, the adverse party knows that “he will be required to produce it,” then such notice is not required.

 In Hiralal Devji Kharva v. Ladhibai Gokal, 1979- 2 Guj LR 390, it was held that where the adverse party is expected to know from the facts of the case that the document is required to be produced and fails to produce the same the non service of notice would not preclude the party from leading secondary evidence. 

See Blog: Notice to Produce Documents in Civil Cases

Certain Certificates are Not Admissible

A certificate prepared on the basis of other documents, by itself, is not admissible as it will only be a secondary evidence. A wound certificate or post mortem report is not a substantive evidence. It has to be proved by a competent witness.

Unless presumption can be invoked under Sec. 114 Evidence Act, read with Sec. 35, no (official) certificate can be taken as proved. If presumption cannot be taken, its contents are to be proved in a formal manner. Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.

Best Evidence Rule insists Evidence of High Probative Value

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

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

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

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

Oral Evidence on contents of Documents – No Use, Unless Secondary Evidence Permitted

Sec. 22 and 144 of the Evidence Act postulate that the oral admissions or assertions as to contents of documents are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under Sec. 65, or unless the genuineness of a document produced is in question.

Sec. 22 emphasises that oral evidence as to contents of documents , even if adduced, will be of no use, as it will be ‘irrelevant’. By virtue of Sec. 144 of the Evidence Act, the adverse party may object to giving oral evidence as to contents of the same until such document itself is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.

Sec. 22 of the Evidence Act reads as under:

  • 22. When oral admissions as to contents of documents are relevant.—Oral admissions as to the contents of a document are not relevant, unless and until the party proposing to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.

Sec. 22A says as to oral admissions as to contents of electronic records as under:

  • 22A. When oral admissions as to contents of electronic records are relevant
  • Oral admissions as to the contents of electronic records are not relevant, unless the genuineness of the electronic record produced is in question.”

Sec. 144 of the Evidence Act reads as under:

  • 144. Evidence as to matters in writing.—Any witness may be asked, whilst under examination, whether any contract, grant or other disposition of property, as to which he is giving evidence, was not contained in a document, and if he says that it was, or if he is about to make any statement as to the contents of any document, which, in the opinion of the Court, ought to be produced, the adverse party may object to such evidence being given until such document is produced, or until facts have been proved which entitle the party who called the witness to give secondary evidence of it.
  • Explanation.—A witness may give oral evidence of statements made by other persons about the contents of documents if such statements are in themselves relevant facts.
  • Illustration. The question is, whether A assaulted B. C deposes that he heard A say to D—”B wrote a letter accusing me of theft, and I will be revenged on him”. This statement is relevant as showing A’s motive for the assault, and evidence may be given of it, though no other evidence is given about the letter.

Sec. 59 of the Evidence Act lays down that contents of documents (or electronic records) are to be proved by oral evidence.  Sec. 62 defines primary evidence to mean ‘the document itself’ produced for the inspection of the Court. Sec. 64 of the Act requires that that the documents to be proved primarily by ‘primary evidence’, except in cases where secondary evidence is provided under Sec. 65.  

Sections 22, 59, 61, 62 and 64 of the Evidence Act project the ‘rule of best evidence’ and it directs that the contents of the document are to be proved by the original document itself, unless secondary evidence is provided under Sec. 65. (See: Bimla Rohal v. Usha, 2002-2 HLJ 745; 2002-2 Shim LC 341)

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.

The word ‘disposition’ is not a ‘term of law’ as observed in Pushpalatha N V v.  V Padma, AIR 2010 Kant 124.  It is said as under:

  • “The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”

Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6  SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7  SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani: AIR 2003 SC 2418, as under:

  • “The grounds of exclusion of extrinsic evidence are (i) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Jahuri Sah v. Dwarka Prasad Jhunjhunwala, AIR 1967 SC 109).

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

  • “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: Thomas v. AA Henry, 2008(2) KLT 63.)

Oral Admission of Witnesses as to the contents of a document is Bad and Barred

From the wording of Sec. 22 it is clear that the “oral admissions as to the contents of a document” by any ‘witness’ (not only that of “the party proposing to prove them”), are barred. It is equally bad and barred as that of ‘hearsay evidence’, because of the forceful edict in Sec. 22 – “Oral admissions as to the contents of a document are not relevant”.

Bulk of evidence waste Time and Space of the courts

It is very important to note that the statements of witnesses contrary to what is in the document is liable to be eschewed (for it is irrelevant); and therefore, the statements could not harm or benefit the party to the suit or the maker thereof. Still, it is a sheer fact that bulk of such evidence is adduced in court wasting the time and space of the courts.

EXCEPTIONS to the Rule of Irrelevancy of Oral Evidence on Documents

Following are the exceptions to the general rule as to bar of oral evidence on contents of documents:

  1. Exceptions in Sec. 91:
    • “Exception 1.––When a public officer is required by law to be appointed in writing, and when it is shown that any particular person has acted as such officer, the writing by which he is appointed need not be proved.
    • Exception 2.–– Wills admitted to probate in India may be proved by the probate.”
  2. Provisos to Sec. 92:
    • Proviso (1). –– Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contracting party, want or failure] of consideration, or mistake in fact or law.
    • Proviso (2). ––The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document.
    • Proviso (3). ––The existence of any separate oral agreement, constituting a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved.
    • Proviso (4). ––The existence of any distinct subsequent oral agreement to rescind or modify any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.
    • Proviso (5). –– Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description, may be proved:
    • Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.
    • Proviso (6). –– Any fact may be proved which shows in what manner the language of a document is related to existing facts.

Interpretation of Documents (Except Wills) – Provisions under Evidence Act

Produce Document itself (Sec. 91); and No oral evidence can be given –

  • (i) for varying, adding to, etc. its terms (S. 92).
  • (ii) to explain a document, on its face, ambiguous (S. 93).
  • (iii) to show a plain document not meant to apply such facts (S. 94).

Evidence can be given –

  • (i) to show language of a plain – (but)  unmeaning to facts –  document is used in a peculiar sense (S. 95).
  • (ii) to show language used – (though) applies to several persons – in a document apply to one only  (S. 96).
  • (iii) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets  (S. 97).
  • (iv) to show language used – (though) applies partly to one set facts and partly to another set – in a document apply to which of the two sets  (S. 97).
  • (v) to show the meaning of illegible characters of technical expressions of words used in a peculiar sense (S. 98).

Interpretation of Wills

  • .(i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
  • (ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.

Sec. 93 to 100 Evidence Act:

  • 93. Exclusion of evidence to explain or amend ambiguous document. –– When the language used in a document is, on its face, ambiguous or defective, evidence may not be given of facts which would show its meaning or supply its defects.
    94. Exclusion of evidence against application of document to existing facts. –– When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
  • 95. Evidence as to document unmeaning in reference to existing facts. –– When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
  • 96. Evidence as to application of language which can apply to one only of several persons. –– When the facts are such that the language used might have been meant to apply to any one,
    and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
  • 97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies. –– When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
  • 98. Evidence as to meaning of illegible characters, etc. –– Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
  • 99. Who may give evidence of agreement varying terms of document. –– Persons who are not parties to a document, or their representatives in interest, may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.
  • 100. Saving of provisions of Indian Succession Act relating to wills.––Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills

Circumstantial/presumptive evidence

When there is no direct evidence on a matter for consideration in a case, a court can base its findings on circumstantial evidence. The evidence relied on in such a case should always be admissible evidence. It is the application of an admissible evidence to attain a direct aim in an indirect way by inferring matters on presumptions allowed under Sec. 114 of the Evidence Act. In Umedbhai Jadavbhai v. The State of Gujarat, AIR 1978 SC 424, the Supreme Court held as under:

  • “It is well established that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonable be considered consistent with the innocence of the accused. Even in the case of circumstantial evidence, the court will have to bear in mind the cumulative effect of all the circumstances in a given case and weigh them as an integrated whole. Any missing link may be fatal to the prosecution case.”

In Laxman Naik v. State of Orissa, AIR 1995 SC 1387, the Apex Court held that the standard of proof required to convict a person on circumstantial evidence was that the circumstances relied upon in support of the conviction must be fully established and the chain of evidence furnished by those circumstances must be so complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused.

The Supreme Court pointed out in Gade Lakshmi Mangraju v State of A.P., AIR 2001 SC 2677, that one circumstance by itself may not unerringly point to the guilt of the accused; but, it is the cumulative result of all circumstances which could matter.

Corroborative evidence

Sec. 5 of the Evidence Act stipulates that Evidence can be given of facts in issue and relevant facts, ‘as are hereinafter declared to be relevant, and of no others’.  The Evidence Act expressly declared to adduce ‘corroborative evidence’ in the following circumstances:

  1. Section 8 Illustration (j) [falls under Explanation 1] specifically says that the fact that a rape-victim said that she had been ravished can be relevant as corroborative evidence under section 157.
  2. Sec. 114 Illustration (b) speaks that an accomplice is unworthy of credit, unless he is corroborated in material particulars. (However, it must be seen that Sec. 133 says that an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.)
  3. Sec. 156 allows to adduce independent evidence of facts in evidence in order to corroborate the evidence as to an any relevant fact which he observed at or near to the time or place at which such relevant fact occurred.
  4. Sec. 157 permits to prove former statements of witness to corroborate his later testimony relating to the same fact at or about the time when the fact took place.
  5. Sec. 158 allows to prove all matters that may be proved either in order to contradict statements relevant under section 32 or 33 or to corroborate it.

Order XI rule 12, 13, 14 & 21 CPC

Provisions in Order XI CPC as to discovery and production of documents are also meant to stand abide by ‘best evidence rule’.

Order 11 rule 12 says as to ‘Application for discovery of documents’. O. 11 R. 13 directs filing ‘Affidavit of documents’. O. 11 R. 14 gives power to the court to order ‘Production of documents’. O. 11 R. 21 lays down the effect of ‘Non-compliance with order for discovery’ that is: ‘liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out’. These Rules read as under:

  • O. 11 R. 12 Application for discovery of documents: Any party may, without filing any affidavit, apply to the Court for an order directing any other party to any suit to make discovery on oath of the documents which are or have been in his possession or power, relating to any matter in question therein. On the hearing of such application the Court may either refuse or adjourn the same, if satisfied that such discovery is not necessary, or not necessary at that stage of the suit, or make such order, either generally or limited to certain classes of documents, as may, in its discretion be thought fit :
  • Provided that discovery shall not be ordered when and so far as the Court shall be of opinion that it is not necessary either for disposing fairly of the suit or for saving costs.
  • O. 11 R. 13 Affidavit of documents: The affidavit to be made by a party against whom such order as is mentioned in the last preceding rule has been made, shall specify which (if any) of the documents therein mentioned he objects to produce, and it shall be in Form No. 5 in Appendix C, with such variations as circumstances may require.
  • O. 11 R. 14 Production of documents: It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto, upon oath of such of the documents in his possession or power, relating to any matter in question in such suit, as the Court shall think right; and the Court may deal with such documents, when produced, in such manner as shall appear just.
  • O. 11 R. 21 Non-compliance with order for discovery:         (1) Where any party fails to comply with any order to answer interrogatories, or for discovery or inspection of documents, he shall, if a plaintiff, be liable to have his suit dismissed for want of prosecution, and, if a defendant, to have his defence, if any, struck out, and to be placed in the same position as if he had not defended, and the party interrogating or seeking discovery or inspection may apply to the Court for an order to that effect and  an order may be made on such application accordingly, after notice to the parties and after giving them a reasonable opportunity of being heard.       
  • (2) Where an order is made under sub-rule (1) dismissing any suit, the plaintiff shall be precluded from bringing a fresh suit on the same cause of action.

See Blog: Production of Documents: Order 11, Rule 14 & Rule 12

PART II

Adverse Inference Drawn when a party Withholds Documents, Even if he has no burden

The Supreme Court observed in Gopal Krishnaji Ketkar v. Mahomed Haji Latif, AIR 1968 SC 1413, as under:

  • “Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof. In Murugesam Pillai v. Manichavasaka Pandara Lord Shaw observed as follows:
    • “A practice has grown up in Indian procedure of those in possession of important documents or information lying by, trusting to the abstract doctrine of the onus of proof, and failing, accordingly, to furnish to, the, Courts the best material for its decision.. With regard to 44 I. A. 98, at P. 103. third parties, this may be right enough-they have no responsibility for the conduct of the suit but with regard to the parties to the suit it is, in their Lordships’ opinion an inversion of sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the written evidence in their possession which would throw light upon the proposition.”

This passage was cited with approval by this Court in a recent decision: Biltu Ram v. Jainandan Prasad . In that case, reliance was placed on behalf of the defendants upon the following passage from the decision of the Judicial Committee in Bilas Kunwar v. Desrai Ranjit Singh.

  • But Shah, J., speaking for the Court, stated:
    • “The observations of the Judicial Committee do not support the proposition that unless a party is called upon expressly to make an affidavit of documents and inspection and production of documents is demanded, the Court cannot raise an adverse inference against a party withholding evidence in his possession. Such a rule is inconsistent with illustration(g) of s. 114 of the Evidence Act, and also an impressive body of authority.”

In Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay, AIR 1961 SC 1316, It was held as under:

  • “7. The same rule was reaffirmed in Rameshwar Singh v. Bajit Lal, AIR 1929 PC 95 and was approved by this Court in Hiralal v. Badkulal, AIR 1953 SC 225. These three decisions lay down that it is the duty of a party to a suit in possession of important documents to produce them in court, and if that duty is not discharged the court may as well draw the presumption which it is entitled to do under S. 114 of the Evidence Act. A division bench of the Madras High Court in Narayana Rao v. Venkatapayya, ILR (1937) Mad 299 : (AIR 1937 Mad 182) considered the interaction of the provisions of S. 118 of the Negotiable Instruments Act and S. 114 of the Evidence Act in the matter of rebuttal of the presumption under the former section. After considering the earlier decisions, including those of the Privy Council, Varadachariar, J., summarized the law at p. 311 ( of ILR Mad) : (at p. 187of AIR) thus:
  • “It has to be borne in mind that, when evidence has been adduced on both sides, the question of onus is a material or deciding factor only in exceptional circumstamces, cl. Yellappa Ramappa Naik v. Tippanna, 56 Mad LJ 287 : (AIR 1929 Mad 8) and that even the onus under S. 118 of the Negotiable Instrument Act need not always be discharged by direct evidence adduced by the defendant; Muhammad Shafi Khan v. Muhammad Moazzam Ali Khan, 79 Ind Cas 464 : (AIR 1923 All 214), Singar Kunwar v. Basdeo Prasad, 124 Ind Cas 717 : (AIR 1930 All 568) and Bishambar Das v. Ismail, AIR 1933 Lah 1029. Not merely can the Court base its conclusion on the effect of the evidence taken as a whole but it may also draw adverse inferences against a party who being in a position to adduce better evidence deliberately abstains from doing so; AIR 1917 PC 6, Guruswami Nadan v. Goplaswami Odayar, ILR 42 Mad 629 : (AIR 1919 Mad 444) and Raghavendra Rao v. Venkataswami Naicken, 30 Mad LW 966 at p. 971 : (AIR 1930 Mad 251 at p. 254).
  • We respectifully accept the correctness of the said observations.”

Mere Non-Production of Documents would Not result in Adverse Inference

In Mahendra L. Jain v. Indore Development Authority, (2005) 1 SCC 639, the Supreme  Court held that mere non-production of documents would not result in adverse inference. If a document was called for in the absence of any pleadings, the same was not relevant. An adverse inference need not necessarily be drawn only because it would be lawful to do so. In Manager, R.B.I., Bangalore v. S. Mani, AIR 2005 SC 2179, the Industrial Tribunal directed the employer to produce the attendance register. The explanation thereto was that the attendance registers being very old, could not be produced. The Tribunal drew an adverse inference. The respondents did not adduce any evidence whatsoever. Apex Court reversed the finding observing as under:

  • “The initial burden of proof was on the workmen to show that they had completed 240 days of service. The Tribunal did not consider the question from that angle.”

Similar view is stated in the following decisions:

  • Mt. Bilas Kunwar v. Desraj Ranjit Singh, AIR 1915 PC 96;
  • Mahant Shri Srinivas Ramanuj Das v. Surjanarayan Das, AIR 1967 SC 256; Smt. Indira Kaur v. Shri Sheo Lal Kapoor, AIR 1988 SC 1074;
  • Kamma Otukunta Ram Naidu v. Chereddy Pedda Subba Reddy, AIR 2003 SC 3342, Mohinder Kaur v. Kusam Anand, (2000) 4 SCC 214; 
  • Takhaji Hiraji v. Thakore Kubersing Chamansing, AIR 2001 SC 2328;
  • Municipal Corporation, Faridabad v. Siri Niwas, AIR 2004 SC 4681; A. Jayachandra v. Aneel Kaur, AIR 2005 SC 534; R.M.
  • Yellatti v. Assistant Executive Engineer AIR 2006 SC 355;
  • Pratap Singh v. State of M.P., AIR 2006 SC 514;
  • Ramrati Kuer v. Dwarika Prasad Singh, AIR 1967 SC 1134, 
  • Ravi Yashwant Bhoir v. District Collector, Raigad, AIR 2012 SC 1339,

Referring all the aforesaid decisions it is held in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, as under:

  • “16. Thus, in view of the above, the law on the issue can be summarised to the effect that, issue of drawing adverse inference is required to be decided by the court taking into consideration the pleadings of the parties and by deciding whether any document/evidence, withheld, has any relevance at all or omission of its production would directly establish the case of the other side. The court cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The court has to consider further as to whether the other side could file interrogatories or apply for inspection and production of the documents etc. as is required under Order XI CPC. Conduct and diligence of the other party is also of paramount importance. Presumption or adverse inference for non-production of evidence is always optional and a relevant factor to be considered in the background of facts involved in the case. Existence of some other circumstances may justify non-production of such documents on some reasonable grounds. In case one party has asked the court to direct the other side to produce the document and other side failed to comply with the court’s order, the court may be justified in drawing the adverse inference. All the pros and cons must be examined before the adverse inference is drawn. Such presumption is permissible, if other larger evidence is shown to the contrary.”

Party Not Examine Himself -Adverse Inference if only he is a Material Witness

In Bijoy Kumar Karnani vs Lahori Ram Prasher,  AIR 1973 Cal 465, the High Court considered the argument as to non-examination of the plaintiff as a witness in the light of Section 114, illustration (g) of the Evidence Act which provides that the Court may presume that evidence which could be and is not produced would, if produced be unfavourable to the person who withholds it. The court pointed out that the plaintiff was not a material witness as to the disputed facts, sans admitted facts. Citing Gurbakhsh Singh v. Gurdial Singh, AIR 1927 PC 230, it was observed that the argument of the defendant would be apt if only the plaintiff was a material witness, as stated by the  Privy Council as under:

  • “The true object to be achieved by a Court of Justice can only be furthered with propriety by the testimony of the party who personally knowing the whole circumstances of the case can dispel the suspicions attaching to it. The story can then be subjected to all its particulars to cross-examination.”

Adverse Inference Drawn if a Party Does Not Examine Himself: Not an Invariable Rule

The Supreme Court observed in Vidhyadhar v. Manikrao, AIR 1999 SC 1441, as under:

  • “Where a party to the suit does not appear in the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct.”

In Janki Vashdeo Bhojwani v. Indusind Bank Ltd. our apex Court followed Vidhyadhar v. Manikrao, AIR 2005 SC 439, and held as under:

  • “No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.”

But, it is not an invariable principle. Two contra-situations are pointed out by Kerala High Court:

  1. It is applied only against the party on whom the burden of proof lies;
  2. It is not applicable where there is no much scope for any oral evidence.

in Mammu Haji and Company Vs. Vasanthalakshmi, 2014 -3 KHC 213 that this proposition of law laid down by the Apex Court applies only in cases where the party on whom the burden of proof lies withholds himself from adducing evidence. It is held as under:

  • “In short, this decision can be applied against the party on whom the burden of proof lies; but did not adduce evidence. In the instance case, the burden of proof absolutely lies on the defendant who claims protection under S. 106 of the Act. Therefore, the non – examination of the plaintiff is not fatal and no adverse inference can be drawn against the plaintiff, where the lease arrangement is admitted as such by the defendant, and the entire burden of proof lies on the defendant.”

In Upendra Rao v. Ammini,  ILR 2017-1 Ker 466, the Kerala High Court pointed out that the principle in Vidhyadhar v. Manikrao  (that when a party to a suit does not appear in the witness-box and does not offer himself to be cross-examined by the other side, adverse presumption  can be taken) cannot be applied to the facts of a case where there is not much scope for any oral evidence.

In  P.  Sukumaran v. K. A.  Hamza Haji, ILR 2015-2 Ker 166, the Kerala High Court distinguished Vidhyadhar v. Manikrao observing as under”

  • “13. In Vidhyadhar’s case , the Apex Court was dealing with a case where the first defendant in the suit contended that, the sale deed executed by the second defendant in favour of the plaintiff was fictitious and the whole transaction was a bogus transaction as only Rs. 500/- was paid as sale consideration to the second defendant. He further claimed that payment of Rs. 4500/- to the second defendant at his home before the registration of the deed was wholly incorrect. This plea was not supported by the first defendant as he did not enter the witness box. It was in such circumstances, the Apex Court held that, the non-examination of the first defendant, by itself, is enough to reject his claim that the transaction of sale between second defendant and the plaintiff was a bogus transaction.
  • 14. But, in the case on hand, the tenancy in respect of the petition schedule building and the rate of rent are not in dispute. When a plea of discharge of rent is set up by the tenant, the burden is upon him to prove that plea of discharge and no adverse inference or a presumption under Section 114(g) of the Evidence Act, 1872, can be drawn against the landlord on his omission to appear as a witness and to state his own case on oath.”

‘Onus Probandi’ and Sec. 106 of the Evidence Act

The Latin maxim, Onus Probandi, means ‘burden of proof’.  This maxim generally conveys the rule and idea that one who asserts a positive fact has to prove it.

  • Sec. 101 to 103 of the Indian Evidence Act, 1872, deal with the burden of proof in general. Sec. 104 to 106 deal with specific situations.

In an election case, referring Sec. 106 and Sec. 114 of the Evidence Act, the Supreme Court reversed the judgment of the High Court, in Puneet Rai vs. Dinesh Chaudharv. (2003) 8 SCC 204, observing that the onus was on the respondent to prove that he belongs to ‘Passi’ community which falls in the Schedule caste category.

In  Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673, the Supreme Court reversed the decision of the High Court finding that the burden of proving the age of the elected candidate (above 25 years) was upon him. The Apex Court held as under:

  • “28. It is no doubt true that the burden of proof to show that a candidate who was disqualified as on the date of the nomination would be on the election petitioner.
  • 29. It is also true that the initial burden of proof that nomination paper of an elected candidate has wrongly been accepted is on the election petitioner.
  • 30. In terms of Section 103 of the Indian Evidence Act, however, the burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.
  • 31. Furthermore, in relation to certain matters, the fact being within the special knowledge of the respondent, the burden to prove the same would be on him in terms of Section 106 of the Indian Evidence Act. However, the question as to whether the burden to prove a particular matter is on the plaintiff or the defendant would depend upon the nature of the dispute.
  • 32. The age of a person, in an election petition has to be determined not only on the basis of the materials placed on records but also upon taking into consideration the circumstances attending thereto. The initial burden to prove the allegations made in the election petition although was upon the election petitioner but for proving the facts which were within the special knowledge of the respondent, the burden was upon him in terms of Section 106 of the Evidence Act. It is also trite that when both parties have adduced evidence, the question of onus of proof becomes academic [See Union of India and Others vs. Sugauli Sugar Works (P) Ltd., (1976) 3 SCC 32,(Para 14) and M/s Cox and Kines (Azents) Ltd. vs. Their Workmen and Others, AIR 1977 SC 1666, (Para 36)]. Furthermore, an admission on the part of a party to the lis shall be binding on him and in any event a presumption must be made that the same is taken to be established.”

‘Onus Probandi’ and Rule of ‘Best Evidence’

Rule of ‘Best Evidence’ requires a party to suit to produce all material evidence with him. If he fails to produce the best evidence, then illustration ‘g’ of Section 114 Evidence Act allows the court to take the presumption that, if that evidence had been produced, it would have been unfavourtable to him. In Dharampal v. State of Haryana (P& H, 2020) it is observed as under:

  • “20. Chapter VII in Part-Ill of the Evidence Act, 1872 examines the burden of proof and onus of proof or “onus probandi”. Section 101 lays down that whosoever, wants the court to give judgment as to any legal right or liability dependent on the existence of fact, which he asserts, must prove that those facts exist. However, Section 106 provides that any fact which is essentially within the knowledge of any person, the burden of proving that fact is upon him. Illustration-b to Section 106 specifically provides that if A is charged with travelling on a railway train without ticket, the burden of proving that he had bought a ticket is on the person who was found travelling. Still further, illustration ‘g’ of Section 114 require production of best evidence before the Court/authority. It lays down that the evidence which could be but is not produced, would be deemed to be unfavourable to the person who holds it from the Court/authority. It means that if a person fails to produce the best evidence which he could produce then the presumption would be that the aforesaid evidence, if had been produced, would be unfavourtable to the person, who withholds it.”

Read Related Blogs

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

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

Jojy George Koduvath.  

Abstract of this blog

  1. A ‘formed road’ can give rise to a right of quasi-easement.
  2. Implied grant can be inferred if ‘formed road’ on date of severance.
  3. Implied grant can be presumed from the circumstances of a case.
  4. Easement of necessity can be claimed for effective user of a property, in the ordinary course for its designed purpose, if it is ‘essentially necessary’(with required width – for taking vehicles also – in case of a way).

Quasi Easements, pertain to Apparent and Continuous rights

An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.

Apparent and Continuous Easements

Sec. 5 of the Easements Act defines apparent and continuous easements.

  • An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and
  • a continuous easement is one whose enjoyment is, or may be, continual without the act of man.

Easement of Necessity and Quasi Easement

  • Easement of Necessity: even if – no visible sign (not apparent); and even if – never used before (not continuous). E.g., a foot path to a landlocked plot.
    • But, there should have strict necessity.
  • Quasi Easement – must be visible (apparent) and must be functioning without repeated human action (continuous). E.g., water flowing through a pipe or a drainage system.
    • It is based on prior use before land division.
    • It requires only reasonable necessity, not strict necessity.

Implied Grant and Quasi-Easement

  • The question of implied grant (or quasi-easement) arises only if the alleged easement is:
  • Apparent (i.e., visible upon reasonable inspection), and
  • Continuous (i.e., functions without repeated human intervention)
  • E.g., Water flowing through a pipe, A drainage trench, Overhead electric cables.

Easement of Necessity and Quasi Easements – When Arise

Section 13 of the Indian Easements Act(see end notes) lays down Easements of Necessity and Quasi Easements.

Sec. 13 asserts easement right to three categories of persons

  •  (i) Transferees of immovable property
  • (ii) Transferors of immovable property
  • (iii) Sharers of partition of immovable property.

Sec. 13 lays down two types of easement rights.

  • (i) Easement of Necessity – easement necessary for enjoying the subject of the transfer.
  • (ii) Quasi Easement – easement that is apparent and continuous and necessary for enjoying the subject matter.

Illustrations in Sec.13 refer to the following instances of easement of necessity:

  • passing over (way)
  • light which passes over windows
  • polluting the air, with smoke and vapours of  factory
  • gutters and drains common to the two houses
  • lateral support for  building
  • vertical support of an upper room on partition
  • right of way to house and grounds let for a particular business.

A ‘Formed Road’ at the time of Severance Attracts Quasi-Easements

The illustration (b) in Sec. 5 clearly lays down that a right of way is a discontinuous easement. Therefore, going by this illustration, quasi easement cannot be claimed over a way.

But, squarely disregarding the illustration in Sec. 5, and upholding apparent realities on ground, several High Courts in India followed the English principle that the ‘formed roads’ (that is, a well defined way like tarred or metalled road) are capable of forming quasi easements.

Sec. 13 speaks as to Easements of Necessity and Quasi Easements. For claiming Quasi Easements, signs or evidences of easements must be apparent on land. Therefore, if only a way that is (i) apparent, (ii) exists on the date of transfer or severance and (iii) necessary for enjoying the subject matter, then only a question of Quasi Easements arises.

Analysing these matters on ‘accommodation which existed during common ownership’. Kerala High Court held in Kochan Ramanathan v. Kochan Natarajan, ILR 1991-1 Ker 479; 1990-2 KLJ 617, as under:

  • “… It (quasi-easements) is an accommodation which existed during common ownership. Over and above necessity, the apparent and continuous nature of its use at the time of severance is necessary. But the necessity is not so absolute as in the case of easements of necessity, but only qualified. Quasi easement is available even when the property is otherwise enjoyable. Its limit is not restricted to absolute necessity, but controlled by the extent of the apparent and continuous user which existed at the time of severance. That limit cannot be increased or reduced except by consent Leela v. Ambujakshy 1989-2 K.L.T. 142. A right of way will not generally come under quasi-easements except when there is a formed road which was apparently and continuously used. In such cases, even without a grant, law implies a grant. The way which was in apparent and continuous use cannot be unilaterally interfered by the servient owner. The pathway was formed by the owner and he was regularly using it for a particular purpose. The user was apparent and continuous and necessary for enjoying Ext. A-2 portion of the property at the time when Exts. A-1 and 2 were executed. The Respondent, who is the owner of the servient tenement, cannot, according to his own whims and fancies, say that so much width is not necessary or that vehicles need not be taken. He cannot compel the dominant owner to reduce or restrict the user which was available at time when Exts. A-1 and 2 were executed. … .A right of way is not classed generally amongst quasi-easements of an apparent and continuous character. It is only when there is a formed road that the quasi-easement can be classed as one of an apparent and continuous nature. When there is a definite marked road, the Plaintiff is entitled to use the same by way of an easement.”

Referring Dakshina Ranjan Chowdhury v. Surendra Lal Dasgupta, 39 CWN 1202, and quoting Gale on Easements, it is observed in Alo Rani Banerjee v. Malati Roy, AIR 1992 Cal 302, that when there is a formed road, it is apparent and continuous in nature and that it can partake the class of quasi easements. The same view is taken in Nunia Mal v. Maha Dev, AIR 1962 P&H 299, also.

Contrary View

All ways are ‘discontinuous’ according to Sec. 5, Illustration (b) of the Easements Act. (It reads – A right of way annexed to A’s house over B’s land. This is a discontinuous easement.) Quasi easement is available only if the right claimed is ‘discontinuous’.

Pointing out that an easement with respect to a way is not continuous, easement under the provisions of Section 13, Clause (f) of the Easements Act, was denied in (Sri Rajah Vyricherla) Narayana v. Sree Rani Janaki Rathayyammaji, AIR 1930 Mad 609. It is held as under:

  • “But we are of opinion that having regard to the provisions of the Easements Act it is not open to us to follow the English decisions subsequent to the Easements Act and to hold that a formed and metalled pathway would be an apparent and continuous easement for the purpose of determining the rights of parties under Section 13, Clause (1) of the Easements Act.” (This decision is followed in Bai Champa v. Dwarkadas Mohanlal, 1969 GLR 965).

The Bombay High Court held in Malkajappa Chanvirappa Hullur v. Rachappa Panchappa Guledgud, (1942) 44 BomLR 673, as under:

  • “If a paved or metalled road, over which a right of way has been exercised before the severance took place, is deemed to pass to the transferee as a case of qualified necessity, it would be for the Legislature to make a proper amendment by bringing the Indian law in conformity with the trend of the recent English decisions. But so long as Section 5 and ill. (b) stand as they are at present, it is, in my opinion, difficult to hold that such an easement would fall under Section 13(b) and pass to the transferee. I think the decree of the lower Court is, therefore, correct, and the plaintiff has not acquired the alleged right of way as well as the right of passage for water.”

Origin of all easements is, theoretically, grant

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

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

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

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

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

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

In Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, it is held that an easement by grant would not got extinguished under Section 41 of the Act which relates to an easement of necessity.

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

Implied Grant can be Inferred from the Circumstances

Assume, a clear car-way with tyre-mark is available to a plot on severance, and existence of this way is not stated in the concerned deed, the way cannot be claimed as a quasi easement there being no ‘formed way’. But, the person claiming the way can plead ‘implied grant’ in this situation; because, implied grant can be inferred or presumed if there is “some permanence in the adaptation of the tenement“, as shown below.

Katiyar on Law of Easements and Licences, reads as follows:

  • “There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement… …It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“. (Quoted in Sree Swayam Prakash Ashramam v. G.Anandavally Amma, AIR 2010 SC 622)

“Implied Grant” in Law of Easements – Two Different Legal Attributions

  • First,  Theoretical basis of easement of necessity (and quasi easement). Both easement of necessity and quasi easement are dealt with in Sec. 13 Easement Act. Theoretically both arise from implied permission; and therefore it is said to be “implied grant”. Though both easement of necessity and quasi easement have some common features, both are distinguishable and cannot go together.
  • Second, ‘Easement by grant’ that arises by implication. When a right of easement by grant (implied or express) is raised, it takes the character of ‘grant’ under Sec. 8 of the Eaement Act which deals with express grant. In such situation it is not akin to claim of quasi easement (in Sec. 13 Easement Act) also. Such grant arise by implication is controlled by the (implied) terms and conditions of the grant and it will not be defeated by the emergence of the alternative way.

Quasi Easement and Implied Grant

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

Read Blog: “Implied Grant” in Law of Easements

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, it is held as under:

  • “25. ……… Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away. In Annapurna Dutta v. Santosh Kumar Sett [AIR 1937 Cal. 661], B.K. Mukherjee, as His Lordship then was observed:
    • “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road‘ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement‘ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
  • 26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Implied Grant and Quasi Easement in a ‘Formed’ Way

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

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

Existence of alternate way will End Easement of Necessity

Existence of alternate way, how ever inconvenient, will end Easement of Necessity.

  • See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622
  • Gouri Amma Krishnamma v. Seethalakshmi Amma, AIR 2004 Ker 75,
  • Thilakraj v. Sebastian, 2014-4 Ker LT 714, 2014 KHC 5042,
  • Rameshchandra Bhikhabhai Patel v. Sakriben,  AIR 1978 Guj 62.

Easement of Necessity is limited to Barest Necessity, however inconvenient it is

In Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, our Apex Court held as under:

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

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

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

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

Doctrine of ‘Designed Purpose‘ and Easement of Necessity

The conventional view as to easement of necessity is that bare minimum width of way alone could be allowed by courts in cases of easement of necessity. It appears the the progressive and pragmatic view is adopted by some High Courts. It is held that easement of necessity can be claimed for effective user of a property, in the ordinary course for its designed purpose, if it is ‘essentially necessary’. On this basis, a cartable way can be claimed for taking cars to house-plots inasmuch as, now-a-days, such a way is necessary for designed purpose of the house-plots.

It is held in Pravabati Roy v. Dwijendra Lal Sengupta, AIR 1987 Cal 97, as under:

  • “It does not appear to be a correct principle in law that even if by effecting thorough re-modelling of an existing structure, the structure so re-modelled can be used without the right of easement on the disputed property, a claim for easement of necessity will then stand defeated. The Court, in my view, should take a pragmatic view of the facts and circumstances and find out whether the property in question cannot ordinarily be effectively used without taking recourse to right of easement on same other’s property. In this connection reference may be made to the observation of Gale on Easement (14th Edition at page 118) since relied on by Mr. Mukherjee ‘if, however a particular part of the property cannot, without the right claimed, be used for its designed purpose, then it is probably true to say that a right of access for that purpose will arise as of necessity.‘ Whether or not a particular property can be effectively used without using the right of passage over a disputed property is basically a question of fact and both the courts below have concurrently found that the claim of easement of necessity in favour of the plaintiffs. In the aforesaid circumstances, I do not think that in a second appeal, in the absence of any strong and cogent material on the basis of which it can be demonstrated that such finding was perverse, should take any contrary view.   Hence, the findings of the courts below that the easement over the passage in dispute is an easement of necessity is accepted by this Court.”

In Babli Krishna Vaigankar v. Laxman Sagun Vaigankar, 2006-4 AIR(Bom)(R) 78; 2006-4 All MR 199; 2006-5 BomCR 277 it is observed as follows:

  • “(A) pragmatic view is required to be taken and for the purpose of deciding a case of easement of necessity all that is sufficient is that a party claiming e easement of necessity proves that for effective user of the house in the ordinary way and for its designed purpose the right of easement over a particular passage is essentially necessary.”

Extent of Easement – If used for several purposes, inferred for all purposes

Under the provisions of the Easements Act, the dominant owner cannot –

  • enlarge purpose of, or accustomed, user (S. 28) and
  • substantially increase an easement (S. 29).

In Cowling v Higginson (1838) 4 M & W 245, it was held as under:

  • “If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes.”

Easement – Unreasonable Enlargement & Imposing Additional Burthen.

Generally speaking, law on easement is strict and stand against unreasonably enlarging easements and imposing additional burthen on servient tenement. But, at times the courts in India took a pragmatic stand that easement for one purpose can be changed to another, provided there is no additional burden (agricultural purposes might be used for the purpose of a factory provided no additional burden). See:

  • Jesang v. Whittle, (1899) ILR 23 Bom 595,
  • Manchersha Sorabji v. Virjivallabhdas, (1926) ILR 50 Bom 635,
  • Mahammad Beari v. Badava Beari, (1931) 61 Mad LJ 58.

Leading English cases Extensively Referred by Katiyar

1. Williams v. James: [1867] LR 2 CP 577, held that ‘a right of way obtained by prescription for the purpose of carting hay to field ‘cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen’.

  • This decision is followed in Jotindra Mohan Mitter v. Probodh Kumar Dutt, AIR 1932 Cal 249, and it was held –
  • “In ascertaining the extent of the right of user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle laid down by Wills, J., in Williams v. James [1867] 2 C.P. 577 as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase.

2. Wimbledon and Putney Commons Conservators v. Dixon: (1875) 1 Ch D 362, held that ‘if a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built.’

  • This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
  • “In Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch D 362 it was held that the immemorial user of a right of way for all purposes for which a road was wanted in the then condition of the property, does not establish a right of way for all purposes in an altered condition of the property where that would impose a greater burden on the servient tenement. Where a road had been immemorially used to a farm not only for usual agricultural purposes, but in certain instances for carrying building materials to enlarge the farm-house and rebuild a cottage on the farm, and for carting away sand and gravel dug out of the farm, it was decided that those circumstances did not establish a right of way for carting the materials required for building a number of new houses on the land.”

3. Corporation of London v. Riggs (1880) 13 Ch. D. 798 held that a right of way of necessity is not a general right “for all purposes”; it is limited to the uses to which it had been put at the time when the action first arose or when the way of necessity was created.

  • This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
  • “Again, in Corporation of London v. Riggs (1880) 13 Ch.D. 798 the head-note runs as follows :- Where the owner of a close surrounded by his own land grants the land and reserves the close, the implied right to a way of necessity to and from the close over the land operates by way of re-grant from the grantee of the land, and is limited by the necessity which created it.”

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

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

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

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

Read Blog: Will Easement of Necessity Ripen or Convert into a Prescriptive Easement?

Profit-a-prendre – Indian Law Varies from English Law

Explanation in Sec. 4 reads:

  • “…’to do something’ includes removal and appropriation .. of any part of the soil .. or anything growing or subsisting thereon ..”

From Explanation in Sec. 4 it is clear that easement included appropriation of certain tangible material things or natural resources (Profit-a-prendre). They are made clear by the Illustrations to various sections. Eg.

  • Illustn.-(d) of S.4 speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.
  • Illustn.- (b) of S. 22 states cutting  thatching- grass. 
  • Illustn.- (a) of S. 24 refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’ (as in English Law); but, it includes:

  • limited (legally-recognised) enjoyment /user/interest in serviant heritage, and
  • a right for (expressly-recognised) profit.

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right on land.  And it does not allow maintaining a substantial interest over the servient land.  No profit-a-prendre in gross, ie. for the benefit of individuals (primarily because, it comes out from the ‘Explanation’ of the Definition of Easement). On a close look, it can be seen that it is definitely related to ‘user’ of servient land, by people living in a locality.

No right to build-and-enjoy

Easement is a Right for ‘enjoyment’ of things ‘subsisting’.  It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is further clear from Sec. 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation.

Conclusion

The Legislatures in India are, taking note of the ground realities of Indian situations, duty bound to make the very axiomatic matters of Easement Law up-to-date. If they do not get time to ponder on these ‘ground realities’, it is not only shocking and shameful but sinful too.

End Notes

Sec. 13 of the Easement Act reads as under:

13. Easements of necessity and quasi easements—

Where one person transfers or bequeaths immovable property to another,—

  • (a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
  • (b) if such an easement is apparent and continuous and necessary for enjoying the said subject as it was enjoyed when the transfer or bequest took effect, the transferee or legatee shall, unless a different intention is expressed or necessarily implied, be entitled to such easement;
  • (c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
  • (d) if such an easement is apparent and continuous and necessary for enjoying the said property as it was enjoyed when the transfer or bequest took effect, the transferor, or the legal representative of the testator, shall unless a different intention is expressed or necessarily implied, be entitled to such easement.

Where a partition is made of the joint property of several persons,—

  • (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or
  • (f) if such an easement is apparent and continuous and necessary for enjoying the share of the latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

The easements mentioned in this section, clauses (a), (c) and (e), are called easements of necessity.

Where immovable property passes by operation of law, the persons from and to whom it so passes are, for the purpose of this section, to be deemed, respectively, the transferor and transferee.

Illustrations

  • (a) A sells B a field then used for agricultural purposes only. It is inaccessible except by passing over A’s adjoining land or by trespassing on the land of a stranger. B is entitled to a right of way, for agricultural purposes only, over A’s adjoining land to the field sold.
  • (b) A, the owner of two fields, sells one to B, and retains the other. The field retained was at the date of the sale used for agricultural purposes only and is inaccessible except by passing over the field sold to B. A is entitled to a right of way, for agricultural purposes only, over B’s field to the field retained.
  • (c) A sells B a house with windows overlooking A’s land, which A retains. The light which passes over A’s land to the windows is necessary for enjoying the house as it war enjoyed when the sale took effect. B is entitled to the light, and A cannot afterwards obstruct it by building on his land.
  • (d) A sells B a house with windows overlooking A’s land. The light passing over A’s land to the windows is necessary for enjoying the house as it was enjoyed when the sale took effect. Afterwards A sells the lard to C. Here C cannot obstruct the light by building on the land, for he takes it subject to the burdens to which it was subject in A’s hands.
  • (e) A is the owner of a house and adjoining land. The house has windows overlooking the land. A simultaneously sells the house to B and the land to C. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. Here A impliedly grants B a right to the light, and C takes the land subject to the restriction that he may not build so as to obstruct such light.
  • (f) A is the owner of a house and adjoining land. The house has windows over-looking the land. A, retaining the house, sells the land to B, without expressly reserving any easement. The light passing over the land is necessary for enjoying the house as it was enjoyed when the sale took effect. A is entitled to the light, and B cannot build on the land so as to obstruct such light.
  • (g) A, the owner of a house, sells B a factory built on adjoining land. B is entitled, as against A, to pollute the air, when necessary, with smoke and vapours from the factory.
  • (h) A, the owner of two adjoining houses, Y and Z, sells Y to B, and retains Z. B is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Y as it was enjoyed when the sale took effect, and A is entitled to the benefit of all the gutters and drains common to the two houses and necessary for enjoying Z as it was enjoyed when the sale took effect. (i) A, the owner of two adjoining buildings, sells one to B, retaining the other. B is entitled to a right to lateral support from A’s building, and A is entitled to a right to lateral support from B’s building.
  • (j) A, the owner of two adjoining buildings, sells one to B, and the other to C. C is entitled to lateral support from B’s building, and B is entitled to lateral support from C’s
  • (k) A grants lands to B for the purpose of building a house thereon. B is entitled to such amount of and subjacent support from A’s land as is necessary for the safety of the house. 
  • (l) Under the Land Aquisition Act, 18701 (10 of 1870), a Railway Company compulsorily acquires a portion of B’s land for the purpose of making a siding. The Company is entitled to such amount of lateral support from B’s adjoining land as is essential for the safety of the siding.
  • (m) Owing to the partition of joint property, A becomes the owner of an upper room in a building, and B becomes the owner of the portion of the building immediately beneath it. A is entitled to such amount of vertical support from B’s portion as is essential for the safety of the upper room.
  • (n) A lets a house and grounds to B for a particular business. B has no access to them other than by crossing A’s land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds.

Sec. 5 of the Easements Act defines apparent and continuous rights as under:

5. Continuous and discontinuous, apparent and non-apparent, easements—

  • Easements are either continuous or discontinuous, apparent or non-apparent.
  • A continuous easement is one whose enjoyment is, or may be, continual without the act of man. A discontinuous easement is one that needs the act of man for its enjoyment.
  • An apparent easement is one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him.
  • A non-apparent easement is one that has no such sign.

Illustrations

  • (a) A right annexed to B’s house to receive light by the windows without obstruction by his neighbour A. This is a continuous easement.
  • (b) A right of way annexed to A’s house over B’s land. This is a discontinuous easement.
  • (c) Rights annexed to A’s land to lead water thither across B’s land by an aqueduct and to draw off water thence by a drain. The drain would be discovered upon careful inspection by a person conversant with such matters. These are apparent easements.
  • (d) A right annexed to A’s house to prevent B from building on his own land. This is a non-apparent easement.

Read Blogs:

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe free “

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Village Pathways and Right to Bury are not Easements in its ‘True Sense’

Adv. Saji Koduvath.

Abstract of this Blog:

  1. ‘Customary Easement’ is not an ‘Easement’ in its true sense.
  2. It is included as a branch of easement in Indian law, for it is also related to ‘user’ of servient (a word derived from ‘serve’) land, by people having land in a locality.
  3. A Village Pathway is a good example of ‘Customary Easement’.
  4. Right to bury is not a ‘Customary Easement’; it can only be a ‘Customary Right’.

‘Implied Grant’ Recognised in Three Distinct Legal Connotations

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

Customary Right

Halsbury’s Laws of England defines custom as under:

  • “A custom is a particular rule which exists either actually or presumptively from time immemorial and has obtained the force of law in a particular locality.” [Quoted in Manikrao v.  Maheshkumar, 2011-5 MhLJ 345.]

In Lakshmidhar Misra v. Rangalal, the Privy Council saw ‘customary right’ and ‘custom’ AIR 1950 PC 56, thus:

“A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large [Fitch v. Rawling (1795) 2 H BI 393 = 3 RR 425]. The custom, if established makes the local law of the district and it creates a right in each of the inhabitants irrespective of his estate or interest in any particular property.”

The right to bury dead body of a particular community in a particular locality or in the property of a particular person is a customary right; and to claim that right, it must be proved that such property has been used by custom from time immemorial.

Such a custom from long usage should have obtained the force of law. It must be

  • certain,
  • peaceable,
  • reasonable,
  • ancient and
  • not opposed to morality or public policy. [R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206.]

It is held in Ganpatrao Madhorao Hatker v. Sheikh Badar Farid Musalman, AIR 1939 Nag 193, that a custom must be:

  • reasonable and certain; and
  • it must be proved that the user was not permissive,
  • the user was not exercised by stealth,
  • the user was not exercised by force, and
  • that the right had been enjoyed for such a length of time as to suggest that by agreement or otherwise the user has become the customary law of the locality.

(See also: SK Wodeyar v. Ganapati Madhuling Dixit, AIR 1935 Bom 371;  Ramkanya Bai v. Jagdish, AIR 2011 SC 3258)

Custom must be construed strictly.

A custom that exist in a particular family or in a particular district, by its long usage will obtain the force of law. Besides it must be ancient, it must also be certain, reasonable and being in derogation of the general rules of law. It is further essential that it should be established to be so by clear and unambiguous evidence for it is only by means of such evidence that the courts can be assured of its existence and of the fact that it possesses the conditions of antiquity and certainty on which alone its legal title to recognition depends. It must be not be opposed to morality or public policy and must not be expressly forbidden by the legislature. [Subramanian Chettiar v. Kumarappa Chettiar, AIR 1955 Mad 155.]

Customary Easement Must also Be Exercised in a Reasonable Manner

The entire rights and limitations applicable in law to ‘Easements’ in general, under the scheme of the Easement Act, fully apply to customary easements also. Under Indian law a dominant owner ‘uses’ servient (a word derived from ‘serve’) tenement and ‘enjoys’ the easement. (See Sec. 31).

Easement is a right that allows:

  • Only ‘enjoyment’ of soil or things ‘subsisting’ thereon (Explanation in Sec. 4).
  • for limited enjoyment of (a) land & (b) advantages arising from its situation: S. 7
  • exercise right, in a way least onerous: S. 22
  • secure full enjoyment, but cause as little inconvenience: S. 24 2017(2) KLT 63

It is Not a right to:                                            

  • tend to total destruction of ser. tenement: S. 17 (2003 (1) KLT320)
  • make additional burden: S. 23
  • make constructions in, or cultivate upon: (2003 (1) KLT 320).
  • prevent servient owner to use: S. 27 : 2003 (1) KLT 320
  • enlarge purpose of, or accustomed, user: S. 28
  • substantially increase an easement: S. 29
  • prevent servient owner from obstructing excessive  ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
  • increase burden by making permanent change in do. tent: S. 43
  • capable of forming grant – No easement-if Not capable of forming grant (without document or registration): 1987 (2) KLT 1037;

No easement if:

  • right claimed is incidents of ownership.
  • servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.

Antiquity, most important Element for Custom

The custom must have been originated in remote antiquity. It was found in Abid All Khan v. Secretary of State, AIR 1951 Nag 327, as under:

  • “63. A custom, in order that it may supersede the ordinary law, must, besides being reasonable, be ancient as well as certain. On the question whether a custom should also be immemorial, there appears to be a difference of opinion. In Kuar Sen v. Mamman, 17 All 87: (1995 AWN 10) and Mohidin v. Shivlingappa, 23 Bom 666: (1 Bom LR 170) the view taken is that the common law rule that the custom must have originated in remote antiquity does not apply to India. In Mahamaya Debi v. Haridas, 42 Cal 455: (AIR 1915 Cal 161), it was held, following Mayor of London v. Cox, (1867) 2 H L 239, that a custom originating within time of memory, even though existing in fact, is void at law and that for a custom to be valid it must be immemorial in addition to being reasonable and certain.” [Quoted in: Ilam Chand Vs Janeshwar Das, 2006-1 ADJ 266.]

Customary Easements – Both custom and easement are involved

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

  1. easements by grant: a grant by the owner of the servient heritage
  2. easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
  3. easements by prescription: acquired by peaceable and open enjoyment, without interruption for twenty years and
  4. customary easements: acquired by virtue of a local custom.

The Apex Court pointed out in this decision that customary easements are the most difficult to prove among easements.

Customary Easements under S. 18 of the Easement Act

Section 18 of the Easement Act reads as under:

  • “18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement (long usage) are to be proved. [Lachhi v. Ghansara Singh, AIR 1972 HP 89.]

Customary easement includes the right to take water and earth from a tank, use water for cattle from a tank,  graze cattle [Illustration (a) to sec. 18], to take earth for building and repairing their houses etc.[Jugal Kishore v. Umrao Singh, AIR 1949 All 272. ] These are rights of people of a locality; and not a public right.

Customary Right is Independent of any Dominant Heritage

It is observed in Parbhawati Devi v. Mahendra Narain Singh (AIR 1981 Pat 133) that a customary right is not an easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to a particular person while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal with it. It expressly excludes it from its scope and purview.

In Amar Singh v. Kehar Singh (AIR 1995 HP  82) also it is held that a customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body of persons like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general.

A customary right also must be exercised in a reasonable manner. [See: Jugal Kishore v. Umrao Singh,  AIR 1949 All 272; Ram Saran Singh v. Birju Singh 19 ALL. 172; Bhola Nath Nundi v. Midnapore Zemindari Co. 31 Cal. 503.] A customary right by its very definition cannot be created under a written instrument. There cannot be a customary easement in favour of an individual. Customary easement acquired by local custom can only be in favour of a defined class of people or community of a particular locality.

A customary right can exist only in relation to the inhabitants of a district and it cannot be claimed in respect of the public at large. [Fitch v. Rawling, (1795) 2 HB. 393: (3 R.R. 425); Laxshmidhar Misra v. Rangalal, AIR1950 PC 56. Raj Nandan Singh v. Ram Kishun Lohar (AIR 1958 Pat 571). ] Therefore, a customary right is independent of any dominant heritage. [Jugal Kishore v. Umrao Singh, AIR 1949 All 272; Raj Nandan Singh v. Ram Kishun Lohar, AIR 1958 Pat 571.]

Easement – Indian law differs from English Law.

Under English Law, an easement is a privilege alone; and profit-a-prendre (right to take) is not an easement. The Indian Easements Act purposefully used “to do something in or upon”, decisively avoiding, ‘to use’ or ‘to enjoy’; because, Indian Law allows ‘profit-a-prendre’ [fishing, pasturing, grass-cutting for thatching, etc.]. It is allowed on Indian situations – without conferring substantial interest in the servient land. ‘Profit a predre’ is not appurtenant to any dominant land; and, in its very language, it is a right ‘in gross’ (for the benefit of individuals).

Is profit-a-prendre incompatible with Easement

Explanation in Sec. 4 reads:

  • “…’to do something’ includes removal and appropriation .. of any part of the soil .. or anything growing or subsisting thereon ..”

From Explanation in Sec. 4 it is clear that easement included appropriation of certain tangible material things. They are made clear by the Illustrations to various sections. Eg.

  • Illustn.-(d) of S.4 speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.
  • Illustn.- (b) of S. 22 states cutting  thatching- grass. 
  • Illustn.- (a) of S. 24 refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’ (as in English Law); but, it includes:

  • limited (legally-recognised) enjoyment /user/interest in serviant heritage, and
  • a right for (expressly-recognised) profit.

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right on land.  And it does not allow maintaining a substantial interest over the servient land.  No profit-a-prendre in gross, ie. for the benefit of individuals (primarily because, it comes out from the ‘Explanation’ of the Definition of Easement). On a close look, it can be seen that it is definitely related to ‘user’ of servient land, by people having land in a locality.

Customary Easement not an easement in the true sense of that expression

It is observed in Gopalbhai Jikabhai Suvagiya v. Vinubhai Nathabhai Hirani, 2018  Supreme (Guj) 924, that a customary easement is not an easement in the true sense of that expression; it is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement; it is recognized and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right prevent and continue to prevent something done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.

How Customary-Easement is reckoned as an Easement; though it is apparently incongruent

A Customary-right is not an easement. An easement belongs to a determinate person or persons in respect of his or their land. An easement is a convenience over the land of another by a person or his family. A fluctuating body cannot claim an easement. It is pointed out in Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571, that customary-easement originates in a valid custom and vest in all owners of certain tenements within a particular locality, who form a class, for whose benefit the custom prevails.

On a close look, as we found in ‘profit-a-prendre’, customary easement is also related to ‘user’ of servient land, by people having land in a locality.

Illustration (a) to sec. 18 of the Easement Act runs as follows:

  • “By the custom of a certain village every cultivator of village land is entitled, as such, to graze his cattle on the common pasture. A having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the customs.”

In Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571 it is held as under:

  • “Easements are private rights belonging to particular persons and is only an accommodation in the servient tenement for the convenient enjoyment of the dominant tenement. Customary rights are public rights annexed to the place in general. Customary right is also different from customary easement. An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it (Ram Chandra Sah v. Abdul Hannan and others, AIR 1984 Pat 313). Customary easement originates in a valid custom and vest in all owners of certain tenements within a particular locality, who form a class, for whose benefit the custom prevails. It can be claimed only as appurtenant to some dominant tenement and not independently as customary rights. Village pathways based on customary rights vested in the people of the locality are not public highways (Narayani v. Govindan – 1968 Ker LT 626 ). Custom gives rise to customary easements. But there is a vital difference between the two. Easements Act deals with customary easements, but not customary rights. Customary rights are rights arising by custom, but not attached to a dominant tenement. But a customary easement can exist only for the beneficial enjoyment of other lands because it is merely appurtenant to a dominant heritage and cannot exist in gross (Ramachandra Singh v. Partapsingh and others, AIR 1965 Raj 217).”

It is also observed in Amar Singh v. Kehar Singh (AIR 1995 HP 82) that there is distinction between easement and customary easement and pointed out that an easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be severed from it. There can be no easement without dominant tenement and a servient tenement. Rights which are by a community or class or persons by virtue of a customary right are not easement but are right in gross. An easement must always be appurtenant to a dominant tenement. Indeterminate and fluctuating body of persons such as the public or the community cannot have an easement.

Parbhawati Devi v. Mahendra Narain Singh, AIR 1981 Patna 133, it is held as follows:

  • “A customary right is not easement. An easement belongs to a determinate person or persons in respect of his or their land. A fluctuating body like the inhabitants of the locality cannot claim an easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general. Customary right is also different from customary easement and Easements Act does not at all deal with it. It expressly excludes it from its scope and purview. An easement is always appurtenant to the dominant tenement and inseparably attached to it and cannot be served from it. Where the fluctuating body of persons namely, the villagers and not a particular person claimed easement to get water from a reservoir but there was nothing laid in the plaint as to for which land dominant tenement, easement was claimed, no case of easement could be said to have been made out.”

Acquiring Customary Easement by One Person or even by a Fluctuating Body

Quoting Illustration (a) of Sec. 18 Easements Act, it was held in Chandgi Ram v. Ram Lal, AIR 1963 Raj 161, that the customary easement of having access to ones field would be available to tenants of land newly brought under cultivation and that the above customary easement was so well known that the court could give effect to it even if it was not pleaded in the plaint.

A customary easement can be claimed by a family or an individual, and such claim need not be by a large community alone. [R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206.] To constitute a customary easement the right claimed must be an easement and it must be in virtue of a local custom. A customary right of uninterrupted user is quite different from setting up a local custom.

It is also pointed out that different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. Therefore, customary easement is unappurtenant to any dominant tenement, or it has no relation to the beneficial enjoyment of a dominant tenement as required in easement. A fluctuating body like the inhabitants of the locality cannot claim an easement as can be done in customary easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general. [Brahma Nand VS Teju Ram, 2019-195 AIC 584.]

 It is observed in R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206, that customary easement, as provided under Section 18 of the Easements Act, is an amenity to the land own and possessed by the farmers within the vicinity, since the same is being used as cart track and thrashing floor. In Lachhi v. Ghansara Singh, AIR 1972 HP 89 it is held as under:

  • “Different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. These observations I have made, so that the evidence is properly appreciated, while the case goes back to lower Courts.”

Order 1, Rule 8, Civil P.C. Notive not necessary

When the plaintiff sues in his personal capacity with respect to a customary easement the suit is maintainable in spite of the non-compliance with the provisions of Order 1, Rule 8, Civil P.C. [Jugal Kishore v. Umrao Singh,  AIR 1949 All 272.]

A Village Pathway is a good example of Customary Easement

It is observed in Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571 that customary easement originates in a valid custom and vest in all owners of certain tenements within a particular locality, who form a class, for whose benefit the custom prevails. It can be claimed only as appurtenant to some dominant tenement and not independently as customary rights. Village pathways based on customary rights vested in the people of the locality are not public highways (Narayani v. Govindan – 1968 Ker LT 626).

Village Pathways – Intermediate between the Public and Private Roads

In Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325, it is observed as under:

  • “In the Full Bench case of Chunilal in (1888) ILR 15 Cal 460, it has been stated that a village pathway comes under the description of the second class of rights intermediate between the public and private roads. This decision was followed by Mukherjee, J. , in the case of Jatindra v. Satya in (1938) 42 Cal WN 445 : (AIR 1938 Cal 366 ). It has been stated that a village pathway is not a public highway and so interference with the user of the same docs not involve any invasion of public rights, vide the page 448 (of Cal WN) : (at p. 368 of AIR ). It however appears from these cases that a village pathway, which comes under the description of the second class of rights intermediate between the public and private way, has its origin in custom, but a public highway exists for all the citizens and has its origin in dedication The case of Harish Chandra v. Prannath (AIR 1921 Cal 405) (supra) is in the plaintiffs’ favour. The decision of the Madras High Court in the case of Subbamma v. Narain Murthi (AIR 1949 Mad 634) (supra) cannot be followed because the learned single Judge of the Madras High Court dissented from the decisions of this Court in the cases of M. Devi v. Basanta, ILR 60 Cal 1003 : (AIR 1933 Cal 884) and of Surendra v. District Board of Nadia (AIR 1942 Cal 360 ). A village pathway is not a public highway. So in the case of obstruction of a village pathway or road, no proof of special damage arises. Such question is relevant only in the case of a public highway, where there is allegation of public nuisance. This principle has been enunciated by the Court in the cases of (1924) 39 Cal LJ 347 at p. 352 : (AIR 1923 Cal 622 at p. 624); ILR (1946) 1 Cal 522 : (AIR 1949 Cal 209) (Hangsa Kalita v. Pradip Rai Deka ).”

Bury the dead in the land of another – only a Customary Right; and not Customary Easement

There is difference of opinion on this matter. It appears that the correct position is that it is not a customary easement; because the the right claimed cannot be related to land (as we can in customary-easement, as shown above). In case of other rights claimed as customary easements, they can be related to user of land, in one way or other. As shown earlier, though Profit-a-prendre is allowed in Indian Law, it is not a corporeal right on land; and it does not allow maintaining a substantial interest over the servient land and there is no profit-a-prendre ‘in gross’. [See: Ramzan Momin  v. Dasrath Raut, AIR 1953 Patna 138. Mathura Prasad v. Karim Baksh, 31 Ind Cas 805.]

It is pointed out in Satyabhamakutty Pisharassiar v. Chinnathan Master (1976 Ker LT 78) a right to bury the dead in the land of another claimed by a section of the inhabitants of a locality can only be a customary right; and not an easement, as there is no question of beneficial enjoyment of a dominant tenement. It is held in this decision as under:

  • “A right to bury the dead in the land of another claimed by a section of the inhabitants of a locality can only be a customary right. It is a right claimed by a fluctuating body of persons. it is a right claimed in respect of a particular locality. It is a right which does not arise from a gram. It is not a claim by a defined person. It is not a claim that arises from the beneficial enjoyment of a dominant tenement. So the right claimed cannot be an easement. if such a right is to be upheld by courts it ‘should be immemorial in origin, certain and reasonable in nature and continuous in use’. In view of the peculiar nature of the right involved, a finding on the question of actual possession of the property cannot turn the tables against any party. Though the defendants claimed it as an easement, it is not really an easement.”

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion