sajikoduvath

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.	Proposit`i`ons	Sec. in Evd. Act
1	Best available evidence must be produced. If not, adverse presumption will be taken.	114 (g)
2	Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).	60
3	Documents 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;
4	To 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
5	No 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
6	Sec. 93 and 94 speaks as to exclusion of evidence.	93 & 94
7	Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.	94 to 99
8	Circumstantial and Presumptive evidence can be resorted to in proper cases.	114
9	Substantive evidence that requires corroboration must be corroborated.	157
10	When 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:

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.”
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:

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.
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.)
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.
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.
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:

It is applied only against the party on whom the burden of proof lies;
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.”

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Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant

Jojy George Koduvath.

Abstract of this blog

A ‘formed road’ can give rise to a right of quasi-easement.
Implied grant can be inferred if ‘formed road’ on date of severance.
Implied grant can be presumed from the circumstances of a case.
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.

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Village Pathways and Right to Bury are not Easements in its ‘True Sense’

Adv. Saji Koduvath.

Abstract of this Blog:

‘Customary Easement’ is not an ‘Easement’ in its true sense.
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.
A Village Pathway is a good example of ‘Customary Easement’.
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:

easements by grant: a grant by the owner of the servient heritage
easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
easements by prescription: acquired by peaceable and open enjoyment, without interruption for twenty years and
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.

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.”

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Sec. 65B, Evidence Act Certificate: Forms

Saji Koduvath, Advocate, Kottayam.

Sec. 65B Certificate – Requisites under Law

From Sub Sections (2) and (4) of Sec. 65B, it is clear that the certificate must refer to the following aspects –

the computer was used regularly to store or process information;
the activities were regularly carried on over that period;
they were done by a person having lawful control over the computer;
the information was regularly fed into the computer;
it was in the ordinary course of the said activities;
the computer was operating properly (if not, give details);
the information was fed in the ordinary course of the activities.
the electronic record must be identified
the manner in which it was produced;
particulars of device involved in the production of that electronic record.

Sec. 65B Certificate – Draft Model Forms: to be used with required variations.

Print out of Office Computer:
Certified that this Computer output contains true and correct information that is produced by the Computer (………… … bearing No. … ………..), operated during the period with respect to which the entries in the statement (mentioned above/attached) were made while the computer was used regularly to store and process information in the same for the purposes of activities regularly carried on by (me) (….. …….. office) over the said period, (and used through the employees of ….. ……. office under me as ……………;)
that I had lawful control over the use of the computer system during the said period information was fed into the computer;
throughout the period the computer was operating properly;
the information contained in the computer is fed into the computer in the ordinary course of the business activities of this office;
(that the aforesaid computer is operated from the various branches of this office and are connected to the core-server-computer in my office and ) that this computer print-out is that taken from the said (core-)computer under my direction in the mechanical process in ……… ………. printer , Bearing No…… .. …..which itself ensures accuracy; and
that all what is stated above are true and correct to the best of my knowledge.

Pen Drive containing the recording of CC TV Footage:

Certified that the Pen Drive (computer output) produced herewith contains the CC TV recordings (information) that is (was) contained in the Hard Disc (electronic record) of the CC TV System which bears the name …… …….. . and No ….. …….
That the information in the pen drive relates to the period from ……… to ……….., over which period the CC TV System has been used regularly to store the CC TV recordings in the Hard Disc of the CC TV System that were taken using various CC TV Cameras attached to the same, including the one that been put up at ……… …… , and regularly fed into the Hard Disc of the CC TV System, in the ordinary course of its activities.
That the contents in the pen drive are the that captured by the said camera at ………
That throughout the said period, the CC TV System was operating properly.
That I am a responsible official in relation to the operation of the CC TV System and its management and that I was the person having lawful control over the use of the CC TV System over that period.
That the copy of the recordings of the CC TV in the Pen Drive are that produced by the CC TV System itself and copied by me from the Hard Disc of the CC TV System using the provision to copy the recordings into the pen drive as provided in the CC TV System itself.
All matters stated are true to the best of my knowledge and belief.

Photograph.

Certified that the photograph produced herewith is taken by me in my mobile phone (………… … bearing No. … ………..), on … …… ……., while the mobile phone (with Camera) was used regularly for all its uses including taking photos;
that I have full control over the use of the phone;
that it was/is operating properly; that it is taken in the ordinary course of activities;
that these photo-print-outs are taken in the mechanical process, which itself ensures accuracy, at ……… ………. Studio at ……………. ; and
that the photo is true and correct picture; and that all what is stated above are true and correct to the best of my knowledge.

CD containing Video recordings of a Marriage ceremony

Certified that the CD produced herewith contains the Video recordings of the Marriage ceremony of …………. (so and so) with ………….. (so and so), and related functions, taken on ………. (date) ………….. at ……… (place), in the ……………. (product name) Digital Camera bearing No: …………..
That the videos in the CD are taken by me in the said camera; and that during that period the said camera has been used, by me, regularly to record the videos; and that such videos were regularly captured into the said camera.
That throughout the said period the camera was operating properly, and video recordings were regularly recorded, in the ordinary course of activities.
That the operation of the camera and its management were done by me, and I am the person having full control over the use of the camera during that period.
That the copy of the images (the video) in the CD are that produced by the said camera and it is copied by me to the CD from the said camera through the computer system of ………. (product name) which bears No: … …, owned by me.
All what is stated above are true and correct.

Pen Drive containing the recording of Video

Certified that the Pen Drive (computer output) produced herewith contains the Video recordings (information) that is (was) contained in the Hard Disc (electronic record) of the Video Camera which bears the name …… …….. . and No ….. …….
That the information in the pen drive relates to the recordings from ……… to ……….. on …. …… ………
That the Video Camera has been used by me regularly to record video in the Hard Disc of the Video Camera in the ordinary course of its activities.
That the contents in the pen drive are the that recorded by me in the said camera.
That throughout the said period, the Video Camera was operating properly.
That I am a responsible official in relation to the operation of the Video Camera and its management and that I was the person having lawful control over the use of the Video Camera over that period.
That the copy of the recordings of the Video Camera in the Pen Drive are that produced by the Video Camera itself and copied by me from the Hard Disc of the Video Camera using the provision to copy the recordings into the pen drive as provided in the Video Camera itself.
All matters stated are true to the best of my knowledge and belief.

Who can give Certificate under Sec. 65 B

Basing on Sub-section (4) of Section 65B, it is made clear in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 3 SCC 216 –

The certificate can be given by anyone out of several persons who occupy a ‘responsible official position’ in relation to the operation of the relevant device.
The person who may otherwise be in the ‘management of relevant activities’ spoken of in Sub-section (4) of Section 65B. (It is provided to give the certificate to the “best of his knowledge and belief”.) See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

Can the Certificate u/s 65B be Given Long After the Electronic Record was Produced

In Arjun Panditrao Khotkar vs. Kailash Kushanrao Gorantyal, (2020)3 SCC 216 it was held that by virtue of Section 65B(4), the Certificate u/s 65B can be given long after the electronic record has actually been produced by the computer. (Note: the certificate to be given is to the “best of his knowledge and belief”.) See also – Smriti Madan Kansagra Vs. Perry Kansagra 2020-12 SCALE 450.

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End Notes

Sec. 65A and Sec. 65B of the Evidence Act reads:

Sec. 65A: Special provisions as to evidence relating to electronic record:

The CONTENTS of electronic records may be PROVED in accordance with the provisions of section 65B.

65B. Admissibility of electronic records

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

^{Definitions of Computer and Electronic Record}
^{The Information Technology Act, 2000 (No. 21 of 2000) defines computer in section 2. (1) (i) as under:}
^{” ‘Computer’}^{means any electronic magnetic, optical or other high-speed data processing device or system which performs logical, arithmetic, and memory functions by manipulations of electronic, magnetic or optical impulses, and includes all input, output, processing, storage, computer software, or communication facilities which are connected or related to the computer in a computer system or computer network.’}
^{The Act defines computer in section 2. (1) (t) as under:}
^{“ ‘Electronic Record’}^{means data, record or data generated, image or sound stored, received or sent in an electronic form or micro film or computer generated micro fiche.”}

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces (sic?) or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate;
and for the purposes of this sub-section
it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.

Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.

Read in this Cluster (Click on the Topic):

Book No. 1. Handbook of a Civil Lawyer

Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Land Laws

Evidence Act – General

Contract Act

Easement

Stamp Act

Book No. 2: A Handbook on Constitutional Issues

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

General
Property & Trust
Suits
Amendment and Dissolution
- Amendment of Bye laws of Societies and Clubs
- Dissolution of Societies and Clubs
Rights and Management
Election
- Election & Challenge in Societies and Clubs
- Court Interference in Election Process
State Actions
- State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
General

Legal Personality of Trustees and Office Bearers of Societies

Saji Koduvath.

Abstract of this Note:

No ‘dual ownership’ (as observed by Salmond) in Indian Law of Trusts.
Beneficiaries have no ‘beneficial ownership’ in Indian Law; trustees have no ‘beneficial interest’ also.
Trustees and office-bearers of societies are destined to sue or be sued in their ‘personal capacity’ and ‘personal names’.

TRUST – In Law.

Trust is ‘an obligation’, in law. It arises when a property is endowed by its owner for the benefit of another. Trust is created when a trustee is appointed. The trustee administers the property as required by the author. It has to be done by the trustee as if he is the owner of the property.

Trustee Administers as sole ‘owner’ of Trust

The obligation upon the trustee to administer the endowed property, as if he is its owner and as directed by the author, for the benefit of another, is ‘trust’ in law.

The trustee should have been appointed with clear directions for management. The trustee is bound to obey the directions of the author. The mode and modalities of administration of trusts are primarily determined under the terms of the trust (written or otherwise). Lewin on Trusts[1] reads as under:

“The person who created the trust may mould it in whatever form he pleases.”

Duty of the trustees may be passive or active according to the nature of the trust. With regard to duties of trustees it is stated in ‘Principles of Equity’ by H. A. Smith[2]as under:

“A trust is a duty seemed in equity to rest on the conscience of a legal owner. This duty may be either passive, such as to allow the beneficial ownership to be enjoyed the some other person, named the cestui que trust, in which case the legal owner is styled a bare trustee; or it may be some active duty, such as to sell, or to administer for the benefit of some other person or persons; such for example are the duties of a trustee in bankruptcy.”[3]

Underhill has defined a simple trust as a trust in which the trustee is a mere repository of the trust property, with no active duties to perform.[4]Trustees are bound by customs and usages. Apart from the enactments applicable, trusts and trustees are also governed under the directions of competent authorities concerned.

Trust Funds Are Vested In Trustees ‘with the personal capacity to sue’

While discussing the ‘person’ and ‘personality’ in depth in ‘English Private Law’,[5] Edited by Professor Peter Birks Qc FBA, Volume I it was observed that the trust funds were vested in trustees with the personal capacity to sue (and to be sued) in their own names in the course of administering the trust business. It is posited as under:

“(c) Artificial persons: …. English law does not consider a trust estate to possess the capacity to sue or be sued, and requires trust funds to be vested in trustees with the personal capacity to sue (and to be sued) in their own names in the course of administering the trust business, executors and administrators (collectively termed personal representatives) perform a similar function with respect to a deceased persons estate, as do receivers and liquidators when a company goes into receivership or liquidation.”

No ‘Duel Ownership’ in Indian Law; It Differs from English Law

No duel ownership under Common Law of India and as per the definition (Sec. 3) of trust in the Indian Trusts Act, 1882. According to Indian law, the trustee holds the trust property as its legal owner. The properties ‘vest in the trustee’, or he holds the same, for the limited purpose of administration and management (Thiagesar Dharma Vanikam Vs. Comner. IT, Madras: AIR 1964 Mad 483). He has the obligation to use this ownership for the benefit of the beneficiaries (Kansara Abdulrehman Sadruddin Vs. Trustees of the Maniar Jamat: AIR 1968 Guj 184). It is not the legal (or trust) ownership referred to in English law; inasmuch as, in English law, when ‘legal ownership’ is referred, it denotes: ‘legal estate’; one of the ownerships bifurcated from the ‘duel ownership’.

Common Law of India and the Indian Trusts Act do not refer to ‘beneficial ownership’ with the beneficiary; it refers only to ‘interest’ or ‘beneficial interest’ with the beneficiary (See: Ram Bharose Sharma Vs. Mahant Ram Swaroop: 2001 AIR- SCW 4062: Mitar Sain Vs. Data Ram: AIR 1926 All 7; Urshottam Vs. Kanhaiyalal: AIR 1966 Raj 70). In English law, when ‘beneficial interest’ is referred, it denotes: ‘beneficial ownership’ or ‘beneficial estate’; the other bifurcated ownership in the ‘duel ownership’.

A founder can also be a beneficiary of a trust after its dedication. (But, he cannot claim any special right on that stock, unless he reserved the same, positively.) It is observed by the Kerala High Court in Mohammed Basheer Vs. Ahmed Kutty, 2011 (3) Ker L J 767, following the decision of the Privy Council in Chhatra Kumari Vs. Mohan Bikram, AIR 1931 PC 196, and the definition of trust in the Indian Trusts Act, that, ‘unlike English law, in Indian law the owner of the trust property is the trustee, and beneficial interest of course is to be conveyed to the beneficiary’. Under Indian law, beneficiaries have beneficial interest (pertaining to beneficiaries) alone; and it is not‘proprietary interest’ or ‘beneficial interest pertaining to owner’. ‘Beneficial interest pertaining to the owner’ is also dedicated ‘in the trust’ when a trust is established.

Property Vests in Trustee; But No ‘Proprietary Interest’

As pointed out in WO Holdsworth Vs. State of Uttar Pradesh, AIR 1957 SC 887, by our Apex Court the Indian Trusts Act, 1882 declares legal ownership with trustees while defining trust and beneficial interest in Sec. 3. Trust is defined to be an obligation annexed to the ownership of property for the benefit of another, the ‘beneficial interest’ as the beneficiary’s right against the trustee as owner of the trust property.

Sec. 6 of the Indian Trusts Act lays down that transfer of the dedicated property to the trustee is essential for creation of a trust. Inasmuch as the vesting of ownership of trust property with the trustee is under an obligation to manage it for the benefit of the beneficiaries (Sec 3, definition of trust of in the Indian Trusts Act), it can be concluded that the trust properties vest in the (sole) ‘legal ownership’ of the trustees. (Chhatra Kumari Vs. Mohan Bikram: AIR 1931 PC 196; Kansara Abdulrehman Sadruddin Vs. Trustees, Maniar Jamat: AIR 1968 Guj 184. See also: Ramabai Govind Vs. Raghunath Vasudevo: AIR 1952 Bom 106).

Though the Indian Trusts Act, 1882 is basically meant for private trusts, the principles of English Law of Trusts which have been incorporated in the Indian Trusts Act will apply to public trusts also. Those principles will not become untouchable for it is incorporated in the Trusts Act (Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309; Uttar Pradesh Vs. Bansi Dhar: AIR 1974 SC 1084;Bai Dosabai Vs. Mathurdas Govinddas: AIR 1980 SC 1334).

The legal or trust ownership (Salmond on Jurisprudence: 12^th Edition, page 256) of the trust property is ‘vested’ with the trustee, as in English law, in Indian law also. The trustee has no ‘proprietory interest’, inasmuch as the beneficial interest is ‘carved out’, or impressed upon, in the property itself. In dealings with the world at large, the trustee personates or represents as the owner of the property (Govardhandhari Devsthan Vs. Collector of Ahmednagar: AIR 1982 Bom 332). Kapoorchand Rajendra Kumar Jain Vs. Parasnath Digambar: 2000-1 MPJR 199. The Privy Council explained in M. E. Moolla Sons Vs Official Assignee of The High Court of Judicature at Rangoon (AIR 1936 PC 230) that the beneficiary has no interest(proprietary interest) in immovable property because his right was only to call upon the trustees to carry out their trust, or because the distinction between legal and equitable estates did not as such exist in the law of India.

Sec. 10 and 75 of the Indian Trusts Act denotes ‘vesting of property in trustees’. Sec. 10 of the Indian Trust Act, 1882 reads as under:

10. ….. Disclaimer of trust.—Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it, and such disclaimer shall prevent the trust property from vesting in him. A disclaimer by one of two or more co-trustees vests the trust property in the other or others and makes him or them sole trustee or trustees from the date of the creation of the trust.

Sec. 75 of the Indian Trust Act, 1882 reads:

75.Vesting of trust property in new trustees.—Whenever any new trustee is appointed under section 73 or section 74, all the trust property for the time being vested in the surviving or continuing trustees or trustee, or in the legal representative of any trustee, shall become vested in such new trustee, either solely or jointly with the surviving or continuing trustees or trustee, as the case may require.

Trustee Must Exercise on His Own Judgment

A trustee cannot delegate the exercise of powers which he ought to personally perform. Although a trustee may listen to the opinions and wishes of others, he must exercise his own judgment. Thus a trustee for sale of property, cannot leave the whole conduct of the sale to his co-trustees. The reason for this proposition is that the settler has entrusted the trust property and its management to all the trustees, and the beneficiaries are entitled to the benefit of their collective wisdom and experience (Shanti Vijay And Co Vs. Princess Fatima Fouzia AIR 1980 SC 17; Also see: Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309; Underhill’s Law relating to Trusts and Trustees, 12th Ed., PP. 434, 442-43; Scot on Trusts, Vol. 2, p. 1033).

Fiduciary Capacity of Trustees of Religious Trusts

Because of the fiduciary position, liability of a Shebait or Mutawalli equates trustee. Archakas (Padmanabha Vs. Ramachandra Rao; AIR 1953 Mad 842) are also deemed to be in possession in a fiduciary capacity and as such they could not claim adverse possession.

In Balram Chunnilal Vs. Durgalal Shivnarain, AIR 1968 MP 81, it was found that an appointed pujari, for the purpose of worship and of maintaining the temple, was a servant and he got possession of temple property in a fiduciary capacity and that he was estopped as long as he continued to be in possession in that capacity from asserting his own title. When a servant occupied or came into possession of property belonging to his employer he was nothing more than a licensee or a bailee. In a general sense it was also a trust.

Trustee has to Act Gratuitously

Trustee, under English Law, has to perform his duties gratuitously. No remuneration can be claimed from the trust property or income unless the terms of the trust do not allow it. But that does not mean that the trustee has to meet the expenses from his pocket. He can charge actual expenses from the trust/property.

Indian Trusts Act , 1882 reads as under:

32.Right to reimbursement of expenses.—Every trustee may re-imburse himself, or pay or discharge out of the trust property, all expenses properly incurred in or about the execution of the trust.

36.General authority of trustee.— A trustee may do all acts which are reasonable and proper for the realisation, protection or benefit of the trust property.

44.Power to several trustees of whom one disclaims or dies.—When an authority to deal with the trust property is given to several trustees and one of them disclaims or dies, the authority may be exercised by the continuing trustees.

West and Buhler in Digest of Hindu Law, at page 248, states as under:

“Even when no emoluments are attached to the office of a Shebait, he enjoys some sort of right or interest in the endowed property which has partially at least the characteristics of a proprietary right….. The Shebait’s power to alienate the debutter property is very much limited and can be exercised only when there is a justifying legal necessity or benefit to the Deity; yet he can create derivative tenures in respect of the endowed property, which, even if not supported by legal necessity, cannot be impeached so long as he is alive and remains in office. The Shebait therefore has to some extent the rights of a limited owner.”

West and Buhler in Digest of Hindu Law, at page 248, reads further as under:

“Like the trustee in English law, a Shebait has to act gratuitously and he cannot charge the debutter estate for any remuneration on account of the time and labour he spends over his affairs. The position would certainly be different if there is a provision in the deed of dedication to that effect; or, in the absence of any deed of endowment, there is a usage sanctioning such remuneration to the Shebait. The law is well established that, in the absence of any provision in the deed of dedication or any usage to that effect, a Shebait has no right to take any portion of the income of the debutter estate nor even the surplus that remains after meeting the expenses of the deity. In this income would be included not merely the rents and profits of the debutter property but the offerings which are made to the deity by its devotees.”

Underhill in his treatise Law relating toTrusts and Trusteesunder the caption, Right to Reimbursement and Indemnity, it has been stated as under:

“Trustee is entitled to be reimbursed out of the trust property all expenses which he has properly incurred having regard to the circumstances of each particular case but without interest unless he has paid an interest bearing claim in which case he stands in the shoes of the creditor by subrogation.”

Section 32 of the Indian Trusts Act, 1882 which provides that the trustee is entitled to get reimbursement out of the trust property all expenses properly incurred in relation to the execution of the trust property and for preservation of the trust property is a principle of the English law of Trusts which has been incorporated in the Indian Trusts Act. Therefore such principles in Sec. 32 of the Indian Trusts Act are applied to public trusts also. (Kishore Joo Vs. Guman Behari Joo Deo: AIR 1978 All 1; Bapalal Godadbhai Kothari Vs. Charity Commissioner Gujarat: 1966 GLR 825 )

Trustee not to Benefit

It is the duty of the trustee to administer the trust solely in the interest of the beneficiaries. He is not permitted to place himself in a position where it would be for his own benefit or to violate his duty to the beneficiaries. (Scott on Trusts Vol. II Sec. 170. The leading case on the subject is Kench Vs. Gandford (1726) ;White and Tudor Leading Cases in Equity page 693;Referred to in: Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.)

Indian Trusts Act , 1882 reads as under:

Sec. 50. Trustee may not charge for services.—In the absence of express directions to the contrary contained in the instrument of trust or of a contract to the contrary entered into with the beneficiary or the Court at the time of accepting the trust, a trustee has no right to remuneration for his trouble, skill and loss of time in executing the trust.

Indian Trusts Act , 1882 reads as under:

51. Trustee may not use trust property for his own profit.—A trustee may not use or deal with the trust property for his own profit or for any other purpose unconnected with the trust.

Appointment of Trustees Irrevocable

A dedication of property to a trust is irrevocable, and the rules, if any, laid down by the founder at the time of dedication regulating succession to the office of the trustee should also be deemed to be irrevocable unless the power of revocation is reserved by the grantor. The condition relating to the rule of succession of trusteeship forms an integral part of the dedication and formation of trust itself. (Radhika Mohan Nandy v. Amrita Lal Nandy and another: AIR 1947 Cal 301; Virbala K. Kewalram Vs. Ramchandv Lalchandlaws: AIR 1997 Bom 46).

PRINCIPLES OF TRUST ADUMBRATED IN SOCIETIES

If only properties of Societies are ‘not vested in the trustees’, it will be deemed vested in governing body

5. Property of society how vested:The property, movable and immovable belonging to a society registered under this Act, if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings civil and criminal, may be described as the property of the governing body of such society for their proper title.

In Church of North India Vs. Lavajibhai Ratanjibhai[11] it is held that in terms of Section 5 of the Societies Registration Act, the property would vest in the trustees, and that only in the absence of vesting of such properties in the trustees, the same would be deemed to have been vested for the time being in the governing body of such society.[12]

In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh[13] it is observed:

“If what is vested in the College Committee or its governing body is a right of management simpliciter, there is no question of the members of the society or the members of the governing body being beneficially interested in its property. It necessarily follows that by the fact of appointment of a treasurer, there can be no deprivation of the society of its rights in property. The consequence, which would flow on the appointment of a treasurer by the Government under the provisions of the Charitable Endowments Act, would be that he will take charge of the management of the properties held by the society. There is no divesting of the rights of the society in its properties. As already stated, what all the society is deprived of would be right of management which cannot be equated to any right in the property.”[14]

‘fiduciary relation’ of Trustees

It is definite that our law accepts the ‘wider’ or ‘general’ expression as to ‘trust’, used by the progressive jurists like Salmond and Halsbury; and the same principle is adopted in the So. Regn. Act. The progressive jurists preferred investing principles of trust in the matters of various fiduciary relationships under which one holds property on behalf of, or for the benefit of, others.[6]

Salmond brings-in principles of trust in the affairs of associations. Salmond on Jurisprudence reads:[7]

“Thirdly, it is expedient that property in which large numbers of persons are interested in common should be vested in trustees.”

It is held by the Supreme Court in RV Sankara Kurup Vs. Leelavathy Nambiar[8] that the property in the hands of the agent was (actually) for the principal; and the agent stood in the fiduciary capacity, as a trustee, for the beneficial interest he had in the property. The petitioner had acted as an agent as a cestui que trust was a trustee and he held the property in trust for the respondent in his fiduciary capacity as an agent or trustee and he had a duty and responsibility to make over the unauthorised profits or benefits he derived while acting as an agent or a trustee and properly account for the same to the principal. Therefore, the High Court was right in its holding that the petitioner was an agent and trustee acted in the fiduciary capacity on behalf of the respondent-plaintiff as General power-of-attorney.

A society itself can be a trustee

A society can be formed for the administration of a trust.[9] If a trust is created for the benefit of a religious society, such trust shall continue to exist and it would not cease to exist by the resolution of the society. Such ‘creation of trust’ is considered by our Apex Court in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti[10] and held:

^“The High Court has rightly observed that: ‘… the trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”

Suit shall be in the Personal Name of President, Chairman, etc. of a Society

Sec. 6 of the Societies Registration Act, 1860 reads as under:

6. Suits by and against societies – Every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall be determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion.
Provided that it shall be competent for any person having a claim or demand against the society, to sue the president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.

From the expression in Sec. 7 of the Societies Registration Act, that ‘proceedings shall be continued in the name of or against the successor of such person’, it is clear that the words in Sec. 6 of the Societies Registration Act, ‘sue or be sued in the name of President, Chairman, or Principal Secretary, or Trustees,’ refers to filing suit by or against the President, Chairman, Principal Secretary or Trustees in their ‘personal name’; and not in their ‘official status’ “as” President, Chairman, Principal Secretary or Trustees.

Our Law Does Not Favour ‘Corporation Sole’

Our law does not favour characterising a ‘Corporation Sole’ as a Juristic Person,[15] except officials such as President of India, District Collectors, Secretaries/Office-Heads of various Departments of Government, Village Officers, etc.

S Govinda Menon Vs. Union of India: AIR 1967 SC 1274

Our Apex Court held in S Govinda Menon Vs. Union of India: AIR 1967 SC 1274 as under:

“It was also contended by the appellant in this connection that as the Commissioner was made a Corporation sole under s. 80 of the Act as a separate and independent personality, he was not subject to the control of the Government and no disciplinary proceedings ‘Could be initiated against him. We do not think there is any substance in this argument. It is true that the Commissioner has been made a Corporation sole under s. 80 of the Act which states that the Commissioner shall have perpetual succession and a common seal and may sue and be sued in his corporate name. Section 81(1) of the Act provides for the establishment of a Fund called ‘The Madras Hindu Religious and Charitable Endowments Administration Fund’ and further states that the Fund shall vest in the Commissioner. It was argued for the appellant that the corporate entity created by s. 80 of the Act has a separate legal personality. But there is a juristic distinction between a Corporation sole and a Corporation aggregate, and the Corporation sole is not endowed with a separate legal personality as the Corporation aggregate. As Maitland said:
- “If our corporation sole really were an artificial person created by the policy of man we ought to marvel at its incompetence. Unless custom or statute aids it, it cannot (so we are told) own a chattel, not even a chattel real. A different and an equally inelegant device was adopted to provide an owning ‘subject’ for the ornaments of the church and the minister thereof-adopted at the end of the Middle Ages by lawyers who held themselves debarred by the theory of corporations from frankly saying that the body of parishioners is a corporation aggregate. And then, we are also told that in all probability a corporation sole ‘Cannot enter into a contract except with statutory authority or as incidental to an interest in land ………. Be that as it may, the ecclesiastical corporation sole is no juristic person‘; he or it is either natural man or juristic abortion.” (See ‘Selected Essays of’ Maitland” pp. 100 & 103).
Keeton has also observed as follows
- “It was a device for transmitting real property to a, succession of persons without the necessity for periodic. conveyances. It was never intended that this device should’ be erected into a psychological person with a developed existence of its own In dealing with a corporation sole, the courts have never treated it as a conception similar in essential characteristics to a corporation aggregate. They have restricted its utility to the transmission of real, or exceptionally, by custom, as in Byrd v. Wilford, and now by statute, personal property from one holder of an office, lay or ecclesiastical, to his successor” (See ‘Elementary Principles of Jurisprudence’ by Keeton, 2nd Edn. pp. 155 & 162).”
We accordingly reject the contention of the appellant that the Commissioner has a separate legal personality as corporation sole under s. 80 of the Act and that he is exempt from disciplinary proceedings for any act or omission committed in his capacity as. Commissioner. In our opinion, the object of the legislature in enacting ss. 80 and 81 of the Act was to constitute a separate Fund and to provide for the vesting of that Fund in the Commissioner as a corporation sole and thereby avoid the necessity of periodic conveyances in the transmission of title to that Fund.”

Sec. 6 Impliedly Bars Filing a Suit in the Name of Society

Our Apex Court has repeatedly[16]made it clear that Sec. 6 of the Societies Registration Act provides that a registered society must sue or be sued through the office bearer or a nominee, as provided in that section. Therefore, it can be concluded that Sec. 6 impliedly bars filing a suit in the name of the society, otherwise than through its President, Secretary or the nominated person (in their personal names).

Conclusion

Both trustees and Governing Bodies of societies are administrators only. They are bound by the trust deed or bye laws, as the case may be. They are in a fiduciary relationship vis-à-vis, the beneficiaries of the trust or the members of the society, and the property placed for their administration. Suits by or against the trusts and societies are to be filed in the (personal) names of the trustees or Governing Body members.

[1] 12th Edn., p.805

[2] 4^th Edition, Page 23

[3]Quoted in Arjan Singh Vs. Deputy Mal Jain: ILR 1982-1 Del 11.

[4]Underhill: ‘Law relating to Trusts and Trustees’:13th Edition, Page 23; Quoted in Arjan Singh Vs. Deputy Mal Jain: ILR 1982-1 Del 11

[5] See: Court On Its Own Motion v. Chandigarh Administration: 2020 0 Supreme(P&H) 239

[6] See: Balram Chunnilal Vs. Durgalal Shivnarain: AIR 1968 MP 81.

[7] Salmond on Jurisprudence: 12^th Edition, page 257.

[8] AIR 1994 SC 2694

[9] Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre: AIR 2010 SC 2943

[10] 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394

[11] AIR 2005 SC 2544: 2005 (10) SCC 760.

[12] Quoted in Vinodkumar M Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394.

[13] AIR 1958 AP 773

[14] Quoted in Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392.

[15] Samatha Hyderabad Abrasives And Minerals Vs. State of AP: AIR 1997 SC 3297; T.K. Santhanagopala Chettiar Vs. Thimmi M. Seetharama Chettiar 1968-2 Mad LJ 41; S Govinda Menon Vs. Union of India: AIR 1967 SC 1274; S C Sreemanavikraman Raja Vs. Controller of Estate Duty: 1957-2 Mad LJ 226 (Rajagopala Ayyangar, J.).

[16] Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs.The State: AIR 1962 SC 458; Illachi Devi Vs. Jain Society Protection of Orphans India AIR 2003 SC 3397; Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre, AIR 2010 SC 2943.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Interrogatories: When Court Allows, When Rejects?

Jojy George Koduvath.

Introduction.

Interrogatories are meant to be used liberally. The aim is to shorten the litigation. But, it is not expected to be used with a blind-eye. Before opening the tool-box of Order 11, we must be thorough with the legal propositions.

Relevant provisions of CPC

“O.11.1. Discovery by interrogatories – In any suit the plaintiff or defendant by leave of the Court may deliver interrogatories in writing for the examination of the opposite parties or any one or more of such parties and such interrogatories when delivered shall have a note at the foot thereof stating which of such interrogatories each of such persons is required to answer:

Provided that no party shall deliver more than one set of interrogatories to the same party without an order for that purpose:

Provided also that interrogatories which do not relate to any matters in question in the suit shall be deemed irrelevant, notwithstanding that they might be admissible on the oral cross-examination of a witness.

O.11.2. Particular interrogatories to be submitted – On an application for leave to deliver interrogatories, the particular interrogatories proposed to be delivered shall be submitted to the Court (and that Court shall decide within seven days from the day of filing of the said application). In deciding upon such application, the Court shall take into account any offer, which may be made by the party sought to be interrogated to deliver particulars, or to make admissions, or to produce documents relating to the matters in question, or any of them, and leave shall be given as to such only of the interrogatories submitted as the Court shall consider necessary either for disposing fairly of the suit or for saving costs.”

O.11. R.6 Objections to interrogatories by answer – Any objection to answering any interrogatory on the ground that it is scandalous or irrelevant or not exhibited bona fide for the purpose of the suit, or that the matters inquired into are not sufficiently material at that stage, 1[or on the ground of privilege or any other ground], may be taken in the affidavit in answer.

O.11. R.7 Setting aside and striking out interrogatories – Any interrogatories may be set aside on the ground that they have been exhibited unreasonably or vexatiously, or struck out on the ground that they are prolix, oppressive, unnecessary or scandalous: and any application for this purpose may be made within seven days after service of the interrogatories.

Interrogatories & Discretion of Court

Issuance of interrogatories is always a matter of discretion of the Court.

Poonam Mansharamani v. Ajit Mansharamani, ILR 2016 MP 2999, 2016-1 MPHC 23, 2016-1 MPLJ 366, 2016 3 RCR(Civil) 544;
Sharadamma v. Sharad G. Jada v, AIR 2005 Kar 445.
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999 3 Mad LJ 660;
Satya Devi v. Kanta Rani, 1999-123 PLR 724; 1999-1 RCR(Civ) 71;
Rajasthan Golden Transport Co. (Pvt.) Ltd. v. Avon Footwear Industries Pvt. Ltd., AIR 1986 Delhi 286.
Golden Transport Co. Ltd. v. Avon F.I. Pvt. Ltd., AIR 1984 Del. 286.
Y. Venkateswara Rao v. K. Nagamma and another, AIR 1972 Mysore 87;

Used liberally, if it shortens litigation

1. Interrogatories are used liberally whenever it can shorten the litigation

Transport Corporation of India Ltd. v. Reserve Bank of India, AIR 2018-2 (Del)(R) 585; 2017 4 CivCC 612; 2017 243 DLT 168;
Hungama Digital Media Entertainment Pvt. Ltd. v. DB Mobile Entertainment, 2016-2 AD 69; 2015 4 Civ CC 467; 2015-223 DLT 85; 2015-64 PTC 280;
Canara Bank v. Rajiv Tyagi & Associates, 2010-166 DLT 523; ILR 2010-3 (Del) 270,
Smt. Sharada Dhir v. Ashok Kumar Mukhija, AIR 2003 Del. 288, 2002-99 DLT 350.
Bhakta Charan Mallik v. Nataorar Mallik, AIR 1991 Ori 319,
A.K. Aggarwal v. Shunti Devi 1996 Rajdhani LR 60,

2. Courts will not disallow interrogatories merely because the party interrogating has other means of proving the facts in question.

Hungama Digital Media Entertainment Pvt. Ltd. v. DB Mobile Entertainment, 2016-2 AD 69; 2015 4 Civ CC 467; 2015-223 DLT 85; 2015-64 PTC 280;
Sharda Dhir v. Ashok Kumar Makhija, AIR 2003 Del. 288, 2002-99 DLT 350.

Leave of Court is Necessary

1. Leave is necessary to interrogate under Order XI rule 1 CPC.

Sreejith Varma v. Poonjar Koyikkal Royal Family Trust, 2020-4 KHC 363; 2020-4 KLT 792;
Omega Crown v. Thomson, 2012 (3) KLT 573

2. The touch-stone for leave is whether the interrogatories are necessary for fairly disposing of the suit or saving costs; and nothing else.

Sreejith Varma v. Poonjar Koyikkal Royal Family Trust, 2020-4 KHC 363; 2020-4 KLT 792;

3. A separate application for “leave” need not be filed, for interrogation under Order XI rule 1 CPC.

Omega Crown v. Thomson, 2012 (3) KLT 573

4. Interrogatories under Order XI rule 1 CPC can be administered by one plaintiff to another plaintiff, or by one defendant to another defendant.

Provided there is some question or issue between them in the suit action or proceeding. Reddys Laboratories Limited v. Y. Srinivasa Rao, 2009 6 ALT 252.

When Court Allows Interrogatories

1. When the object of interrogation under Order XI rule 1 CPC is shortening proceedings and save expenses and time.

P. Balan v. Central Bank of India, AIR 2000 Ker 24,
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999-3 Mad LJ 660;
Satya Devi v. Kanta Rani, 1999-123 PLR 724; 1999-1 RCR(Civ) 71;
Rajasthan Golden Transport Co. (Pvt.) Ltd. v. Avon Footwear Industries Pvt. Ltd., AIR 1986 Delhi 286.
Thakur Prasad v. Md. Sohayal, AIR 1977 Pat 233,
Ganga Devi v. Krishna Prasad Sharma, AIR 1967 Ori 194,

2. It is to know the nature of the opponents case and what case one has to meet at the hearing.

Hungama Digital Media Entertainment Pvt. Ltd. v. DB Mobile Entertainment, 2016-2 AD 69; 2015 4 Civ CC 467; 2015-223 DLT 85; 2015-64 PTC 280;
Sharda Dhir v. Ashok Kumar Makhija, AIR 2003 Del. 288, 2002-99 DLT 350.
PS Rajan v. KP John, ILR 2003-3 Ker 477, KHC 2003 0 348,
Bhakta Charan Mallik v. Nataorar Mallik, AIR 1991 Ori 319,
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999 3 Mad LJ 660;
Nishi Prem v. Javed Akhtar, AIR 1998 Bom 222, Satya Devi v. Kanta Rani, 1999-123 PLR 724; 1999-1 RCR(Civ) 710;
Janaki Ballav Patnaik v. Bennett Coleman and Co. Ltd, AIR 1989 Ori 216.

3. It is for facilitating proof of the case and to save the costs.

Canara Bank v. Rajiv Tyagi & Associates, 2010-166 DLT 523; ILR 2010-3 (Del) 270

4. It is also to discover new facts which are in the special knowledge of the opposite party.

Charan Inderpal Singh v. Sh. Gurpal Sing,ILR 2008-17 Del 1994.

5. Also to discover facts from his opponent in order to facilitate the proof of his own case.

Poonam Mansharamani v. Ajit Mansharamani, ILR 2016 MP 2999, 2016-1 MPHC 23, 2016-1 MPLJ 366, 2016 3 RCR(Civil) 544.
Rajasthan Golden Transport Co. (Pvt.) Ltd. v. Avon F.I. Pvt. Ltd. AIR 1986 Del. 286;
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999 3 Mad LJ 660

6. Also to help proving his case or to destroying the case of the adversary.

P. Balan v. Central Bank of India, Calicut, AIR 2000 Ker 24,
A.K. Aggarwal v. Shunti Devi 1996 Rajdhani LR 60,

7. Also to obtain admissions of any facts which he has to prove on any issue.

Transport Corporation of India Ltd v. Reserve Bank of India: 2018-2 AIR(Del)(R) 585; 2017 4 CivCC 612; 2017 – 243 DLT 168.
Thakur Prasad v. Md. Sohayal, AIR 1977 Pat 233,
Nishi Prem v. JavedAkhtar, AIR 1988 Bom 222 .

No rule – directing to limit to pleadings

1. There is no rule that restricts a party to limit the interrogatories to the pleadings.

Gopalan A. M. v. Umasankar, ILR 2015-4 Ker 123, 2015-3 KerLJ 845 .

2. The Court will be liberal as to allowing leave for interrogate, at the initial stage; but not so once the evidence of the opposite party is over.

Govind Narayan v. Nagendra Nagda: LAWS(RAJ) 2017 9 43,RAJLW 2017 4 3309

3. The interrogatories could be delivered with regard to title.

RP Tiwari v. Smt. Soluchna Choudhary, 2000 1 MPHT 481
Nishi Prem v. Javed Akhtar : AIR 1988 Bom 222.

4. Parties are not entitled to administer interrogatories for obtaining discoveries of facts which constitute evidence of its adversary’s case or title.

Nishi Prem v. Javed Akhtar : AIR 1988 Bom 222

Court is bound to consider necessity and propriety

1. Court has to consider from the touch-stone whether the interrogatories are necessary for fairly disposing of the suit or saving costs.

G. Nanchil Kumaran v. Govindasamy Reddiar, 1999-3 Mad LJ 660;
Sreejith Varma v. Poonjar Koyikkal Royal Family Trust, 2020-4 KHC 363; 2020-4 KLT 792.

2. Courts go into the merits of the interrogatories and examine necessity and propriety.

Kishorilal Babulal v. Ramlal, AIR 2013 Bom 19;2013-1 AIR Bom (R) 830; 2013 6 AllMR 892; 2014 1 CivCC 727; 2014 1 MhLJ 782.

3. The Court considers the nature of the claim, the necessity shown.

GM Pens International v. Ramesh Kumar Jain, 2009 0 Supreme(Mad) 3300.

When Court rejects

1. Court rejects interrogatories if they are irrelevant or not bona fide.

G. Nanchil Kumaran v. Govindasamy Reddiar, 1999 3 Mad LJ 660;
GM Pens International v. Ramesh Kumar Jain, 2009 0 Supreme(Mad) 3300

2. Court will not allow interrogatories if they do not relate to matters in question or points in issue.

Job Jose v. Sudharman, 2018-3 Ker LT 174,
Bhavans Vidya Mandir v. Shibu; 2017-1 Ker LT 726, KHC 2017-1 498, ILR 2017- 1 Ker 1088,
Poonam Mansharamani v. Ajit Mansharamani, ILR 2016 MP 2999, 2016-1 MPHC 23, 2016-1 MPLJ 366.
Eldho Kuruvilla v. K. G. Abraham, 2012-3 Ker LJ 228, 2012 KHC 2795;
P. Balan v. Central Bank of India, Calicut AIR 2000 Ker 24,
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999-3 Mad LJ 660;
Bhakta Charan Mallik v. Nataorar Mallik, 1991 AIROri 319 ,
Rajasthan Golden Transport Co. (Pvt.) Ltd. v. Avon F.I. Pvt. Ltd, AIR 1986 Del 286;
Ashok Kumar v. Dalmia Institute of Scientific and Industrial Research, AIR 1986 Ori 42,
Ganga Devi v. Krishna Prasad Sharma, AIR 1967 Ori 194;
Nishi Prem v. JavedAkhtar, AIR 1988 Bom 222.
Delhi Vansapati Syndicate v. K.C. Chawala, AIR 1983 J& K 65;
Raj Narain v. Smt. Indira Nehru Gandhi AIR 1972 SC 1302 – 1972 3 SCR 841;
Thakur Prasad v. Md. Sohayal, AIR 1977 Pat 233,

3. Interrogatories will not be allowed if they are ‘fishing’ in nature.

AFL Developers v. Veena Trivedi, AIR 2000 Del 354,
Anjulika Vinod Dewan v. Vijay Laxmi Chauhan, 2008-102 DRJ 755;
Rajasthan Golden Transport Co. (Pvt.) Ltd. v. Avon F.I. Pvt. Ltd, AIR 1986 Del 286;
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999-3 Mad LJ 660

4. Court will reject interrogatories if they are unreasonable, vexatious, prolix, redundant, oppressive or scandalous or irrelevant or not exhibited bona fide. Interrogatories which do not relate to the issue and matters in question shall be deemed to be irrelevant.

Transport Corporation of India Ltd. v. Reserve Bank of India 2018-2 AIR(Del)(R) 585; 2017 4 CivCC 612; 2017 – 243 DLT 168;
Canara Bank v. Rajiv Tyagi & Associates , 2010-166 DLT 523
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999 3 Mad LJ 660;
Nishi Prem v. Javed Akhtar and Ors., A.I.R. 1998 Bom 222;
Satya Devi v. Kanta Rani, 1999-123 PLR 724; 1999-1 RCR (Civ) 71.

5. Court will not allow interrogatories if questions therein go at par with the questions that can be put in cross examination

Charan Inderpal Singh v. Sh. Gurpal Sing, ILR 2008-17 Del 1994.
G. Nanchil Kumaran v. Govindasamy Reddiar, 1999 3 Mad LJ 660.
Bhakta Charan Mallik v. Nataorar Mallik, 1991 AIR Ori 319.
Raj Narain v. Indira Gandhi, 1972 3 SCR 841 ,
Rajasthan Golden Transport Co. (Pvt.) Ltd. v. Avon F.I. Pvt. Ltd, AIR 1986 (Del) 286.

6. If the plaint and written statement would sufficiently disclose the nature of the respective parties’ case, then the party may not be permitted to administer the interrogatories.

G. Nanchil Kumaran v. Govindasamy Reddiar, 1999 3 Mad LJ 660;
Satya Devi v. Kanta Rani, 1999-123 PLR 724; 1999-1 RCR(Civ) 710;
Nishi Prem v. Javed Akhtar, AIR 1998 Bom 222

7. Interrogatories will not be allowed if it meant to get answers – made by a party in its pleadings.

CharanInderpal Singh v. Sh. Gurpal Sing, ILR 2008-17 Del 1994.

8. If made to cause prejudice to the opposite party. Not a short cut method to prove the cases of the party.

GM Pens International v. Ramesh Kumar Jain, 2009 0 Supreme(Mad) 3300;

9. If facts which constitute exclusively the evidence of the other side, so that it may enable unscrupulous parties to tamper with the witnesses and to manufacture evidence and so shape his case as to defeat justice.

Nishi Prem v. Javed Akhtar, AIR 1998 Bom 222;
Satya Devi v. Kanta Rani, 1999-123 PLR 724; 1999-1 RCR(Civ) 71;
Janaki Ballav Patnaik v. Bennett Coleman and Co. Ltd. AIR 1989 Ori 216

10. If discovery constitute exclusively the evidence of his adversary’s case or title.

Nishi Prem v. Javed Akhtar and Ors., AIR 1998 Bom 222;
Satya Devi v. Kanta Rani, 1999-123 PLR 724; 1999-1 RCR(Civ) 71;
Ram Pravesh Rai Estate (P) Ltd. v. Rajesh Kumar Singh, 2016-1 BBCJ 50 (Patna).

11. If to enable the applicant to know as to how his opponent is going to prove his case.

Shrivallabh v. Ibrahimkhan, 2015-6 AllMR 321; 2015-6 BomCR 525; 2015-2 CivCC 741; 2015-2 MhLJ 175

12. If answers in itself or suggestive of answers.

Charan Inderpal Singh v. Sh. Gurpal Sing, ILR 2008-17 Del 1994.

13. If relates to any confidential communication between his opponent and his legal adviser.

Ram Pravesh Rai Estate (P) Ltd. v. Rajesh Kumar Singh, 2016-1 BBCJ 50 (Patna)

14. If about derivation of title.

Laws (Ker) 2010-9-115

15. If not with intend to support the evidence the opposite party.

Ganga Devi v. Krishna Prasad Sharma, AIR 1967 Ori 194,

16. If Question of law. (Interrogatories are confined exclusively to evidence. )

Nishi Prem v. Javed Akhtar, AIR 1988 Bom 222;
Delhi Vansapati Syndicate v. K.C. Chawala, AIR 1983 J& K 65

17. If disclosure is injurious to public interest.

Ram Pravesh Rai Estate (P) Ltd. v. Rajesh Kumar Singh, 2016 1 BBCJ 50 (Patna)

18. Court cannot direct a party to answer interrogatories in a particular manner to suit applicant’s convenience.

Tata Iron And Steel Co. v. Rajarishi Exports, AIR 1978 Ori 179,
Synergy Homes Ltd. v. Joshy John, 2011-4 KHC 512.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society/Trust

Can a Party to Suit Examine Opposite Party, as of Right?

Joji George Koduvath.

Introspection.

There is no specific provision in the CPC that allows a party to the suit to summon his opposite party as a witness, though the court can ‘examine any person, including a party to the suit’under the discretionary provisions in Order 16 rule 14 CPC, after 1976 Amendment.

O.16 R.14 reads as under:

O. 16 R. 14: Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit], and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.
- The words “of its own accord”, “subject to the provisions of this Code … and to any law” and “the Court may” make it clear that this provision is not intended to use openhandedly.

Order 16 rule 21 does not confer a right to call opposite party as a witness. See Jortin Antony v. Marthanda varma, 2000-2 KerLT680.

in views:

Opposite party cannot be called as a witness

Following decisions – prior to 1976 – took the view that opposite party cannot be called as a witness:

Kishori Lal v. ChunniLal, 31 All. 116 (Privy Council); Followed in Kaliaperumal v. Pankajavalli (1999) 1 MLJ 97.
Pirgonda v. Viswanath: AIR 1956 Bom 251
Mallangowda v. Gavisiddangowda, AIR 1959 Kant 194
Narayana Pillai v. KalyaniAmmal 1963 Ker LT 537
Muhammed Kunji v. Shahabudeen 1969 Ker LT 170

Contra view

Decisions that took the view that opposite party can be called as a witness:

Syed Yasin v. Syed Shaha Mohd. Hussain, AIR 1967 Kant 37
Sri Awadh Kishore Singh .v. Sri Brij Bihari Singh, AIR 1993 Pat 122
Symantec Software Solutions Pvt. Ltd. Vs. Ms. R. Modi: 2016-10 AD (Del) 109.

View of Delhi High Court

The Delhi High Court has laid down the following directions, with regard to the examination of witnesses in court, in Atul Kumar Singh v. Nitish Kumar: 2019-265 DLT 161:

“The summoning or examination of an opposite party of a suit must be allowed by the court only in the rarest of rare cases when it is unavoidable in the interest of justice.”

The power of Court to summon any person as witness

Section 30, CPC reads as under:

30. Power to order discovery and the like. Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,-
(a) make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) order any fact to be proved by affidavit.

Section 165, Indian Evidence Act, 1872 reads as under:

165. Judge’s power to put questions or order production.—The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question:
Provided that the Judgment must be based upon facts declared by this Act to be relevant, and duly proved:
Provided also that this section shall not authorize any Judge to compel any witness to answer any question, or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the questions were asked or the documents were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted.

In Kalliyara Estates Pvt. Ltd. v. State of Kerala, ILR 2012-3 Ker 876; 2012 3 KHC 386, it is discussed as under:

“Summoning the opposite party as a witness is deprecated by this Court in various decisions. (See Jortin Antony v. S.P.D.Marthanda Varma, 2000 (2) KLT 680; Narayana Pillai v. Kalliyani Ammia, 1963 KLT 537; Muhammed Kunju v. Shahabudeen, 1969 KLT 170; Syed Mohammed v. Aziz, 1990 (2) KLT 952 and Mary Francis v. Kesavan, 1993 (1) KLT 4.) A party to the suit is entitled to examine himself and give evidence. He is also entitled to adduce such other relevant evidence by examining other witnesses. The Court has power to summon any witness whose evidence appears to be relevant. Section 30(b) of the Code of Civil Procedure confers vast powers on the civil court to issue summons to persons whose attendance is required either to give evidence or to produce documents or such other objects as mentioned in clause (a). The power vested in a Court under Section 30 is subject to such conditions and limitations as may be prescribed. The power under Section 30 can be exercised either on its own motion or on the application of any party. The conditions and limitations prescribed occur in Order 16 of the Code of Civil Procedure. No right is vested in a party to summon the opposite party as a witness. The Court is entitled to ascertain whether the purpose of summoning witnesses is for adducing relevant evidence or whether it is an attempt to cause inconvenience and embarrassment to the opposite party. It is not the absolute right of a party to summon any person as a witness or to examine any number of witnesses. The Court is not powerless in the matter of regulating the proceedings for taking evidence in the case.”

Scheme of CPC & Evidence Act- Take Adverse Presumption

Why the Civil Procedure Code does not specifically provide for calling opposite party to suit as a witness? To find the answer we have to look into the scheme of the CPC and the relevant provisions of the Evidence Act. The ‘scheme’ of CPC is clear – that is, not to initiate coercive steps, against a party who does not examine himself as a witness, or withholds a document, inasmuch as the law prefers taking adverse presumption under Sec. 114 Evidence Act. (See: Suresh Vs. Uttam: 2013-2 AIR Bom R 196, 2012-5 All MR 880)

How an Opposite Party can be summoned in Civil Court, for Examination?

From Sec. 30 and Or. 16 r. 14, CPC it is clear that the party who desires to examine his opposite party as a witness has to seek the court to pass an order to that effect, filing a petition stating the grounds of “necessity” for examining him as a witness.

(Note: Order 16 r. 14 applies – “where the Court at any time thinks it necessary to examine any person, including a party to the suit”).
- See Blog: Production of Documents in Court: Order 11, Rule 14 CPC is not independent from Rule 12
The courts will allow such applications (only) ‘in the interest of justice’ and in ‘the rarest of rare cases’, and ‘when it is unavoidable’.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Jojy George Koduvath.

Introduction

The right of every owner of immovable property to enjoy such property with lateral support from the neighbouring land, as a natural advantage arising from its situation, is a recognised civil right. It is statutorily protected under Section 7 of the Easements Act, 1882.

Section 7 Easements Act, 1882

“Sec. 7. Easements restrictive of certain rights: Easements are restrictions of one or other of the following rights (namely):—
- (a) Exclusive right to enjoy. —The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.
- (b) Rights to advantages arising from situation. —The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
Illustrations of the Rights above referred to
(a) …. (d) … ..
(e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.
Explanation. —Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
(f) …. (j) … .. “

Sec. 7 (e) says as to the ‘extent of lateral support’ entitled to by the dominant tenement

The scope of the words, “not excavated and not subjected to artificial pressure”, triggered two conflicting ascertions.

One view is that the right of lateral support is available only if the dominant tenement is in its natural condition, that is, without being excavated and subjected to artificial pressure.
The opposite view is that Illustration (e) says as to the ‘extent of lateral support‘ entitled to by the dominant tenement, from the servient tenement. That is, the extent of lateral support is the quantum required “in its (dominant tenement’s) natural condition”.

From Illustration (e) of Sec. 7, with its Explanation, it is clear that the right recognised is:

(i) The “right of every owner of land” is the right available “in its natural condition” (that is, without being excavated and not being subjected to artificial pressure).
(ii) The right available will be the “support naturally rendered by the subjacent and adjacent soil of” the servient property.

Therefore, on analysis, it is clear that the Illustration (e) says as to the ‘extent of lateral support’ entitled to by the dominant tenement, from the servient tenement. That is, the extent of lateral support is the quantum required “in its (dominant tenement’s) natural condition”.

In other words, the extent or measure of lateral support to be rendered is the “support naturally rendered by the subjacent and adjacent soil” of the servient tenement, to the dominant tenement “in its natural condition”.

What is denied is the additional support from the servient property for making any additional construction or excavation in the dominant land.

It is also noteworthy that Sec. 7 does not say that entire right of lateral support will be lost if “such land” is not “in its natural condition”.

Lateral support ‘in its natural condition’ is Permanent

Right of lateral support to dominant tenement from servient tenement is an unalterable right.

The liability and measure of lateral support, is the quantum of lateral support required for the dominant tenement ‘in its natural condition’. It will not be lost for making any additional burden on dominant tenement (by any construction).

Kathiyar on the law of Easements and Licences (9th Edition), at page 189, reads:

“Even if the pressure upon the adjoining soil has been increased by the modern buildings on the surface, still an action will lie if the soil would have sunk if there had been no buildings thereon.” Quoted in: Nayarukandiyil Vinodan Vs. Rajimon, Mukundan: LAWS(KER) 2012 9 492.

Rulings on this matter:

Panchanan Mondal And Anr. v. Sm. Sulata Roy Mondal, AIR 1980 Cal 325
Ramakrishnan v. Davassy, 1988 (2) KLT 365
Narayanan v. Sankaran, 1971 KLJ 599.
Lonappan v.. Jacob: 2019-1 KLT 696 (though incorrect for inappropriately applying Sec. 15).

When Sec. 15 of the Easement Act is attracted

According to Sec. 7 of the Easement Act , if an ‘additional burden’ is made in dominant tenement, no additional lateral support will be available from servient tenement to sustain such additional burden. But, when the statutory-prescriptive-period (20 years) is over, such right can be claimed under S. 15 of the Easement Act.

When Sec. 13 of the Easement Act (Easement of Necessity and Quasi Easement) is attracted

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.

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.

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.

From Sec. 5, it is clear that claim for light, gutters and drains, lateral support, vertical support, etc. can be raised as quasi easements.

Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Evidence Act

Constitution

Contract Act

Easement

Club/Society

Trusts/Religion

Production of Documents in Court: Order XI, Rule 14 CPC is Not Independent from Rule 12

Saji Koduvath, Advocate, Kottayam.

A puzzling question: Is ‘discovery’, under Rule 12 of Order XI, CPC, an inevitable ‘pre-step’ to order ‘production’ under Rule 14 of Order XI?

Answer: Yes.

The probe is surfaced for it is not specifically stated either in Rule 12 or in Rule 14 that the ‘discovery’ under Rule 12 is a ‘condition precedent’ for ordering ‘production’ under Rule 14; though obviously there is a nexus between ‘discovery’ and ‘production’. The sequence in which these provisions are arrayed also gives us cue to answer this problem.

Order XI Rules 12 & 14: And the apparent anomalies that seek explanations

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.	Rule 12 deals with (i) filing application for ‘discovery’ and (ii) passing order thereon. It does not say specifically as to ordering ‘production‘ of documents after the discovery. (‘Production’ of documents is governed by Rule 14.)
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.	It is not made clear in Rule 12 – whether ‘discovery of the documents’ partake ‘production’ also. But, rule 13 says – opposite party may make ‘objection’ to “produce” documents. (No such provision for ‘objecting‘ in Rule 14.)
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.	Rule 12 allows any party to ‘apply to the Court for an order’ for discovery. (No such provision for ‘applying‘ in Rule 14.)
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.	Effect of ‘non-production’ under Rule 14 is not indicated in R. 21. (Only the effect of non-compliance of ‘discovery’ [Rule 12] is provided — in Rule 21.)

Resolutions and Propositions

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:

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’.
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’.
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.
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:

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.
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.
Similarly, the party to the suit has no vested right to seek production of ‘all documents‘ discovered under Rule 12.

Do the words “at any time” in Rule 14 indicate – it is independent from Rule 12?

No.

Rule 14 reads as under:

“It shall be lawful for the Court, at any time during the pendency of any suit, to order the production by any party thereto ….. “

It is definite – the words “at any time during the pendency of any suit,” only emphasise-

that a party to the suit has no vested right to seek ‘production’ under rule 14, soon after a document is discovered under rule 12; and
that wide-open discretion is given to the court for ordering production under rule 14, at any time.

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?

If 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. The Court can also invoke Sec. 165 of the Evidence Act.
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).

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 v. Gurbaksh Singh, (S.B. Sinha, P.K. Balasubramanyan) it is held (obiter) 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.”

Does Sec. 30 CPC, Give an Independent Right to Order Production of Documents

Does Sec. 30 CPC (the substantive provision) give an independent right, is another question that may arise in this matter. The beginning portion of the section itself makes it clear that the section is “subject to such conditions and limitations as may be prescribed”. Therefore, it is clear that the power of the court to order production of document, under Sec. 30, is subject to the provisions in O. XI r. 12 and 14.

Sec. 30 CPC reads as under:

“Sec. 30 – Power to Order Discovery and the like.

Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party-
(a) make such Orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;
(b) issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;
(c) Order any fact to be proved by affidavit.”

Order XVI Rule 21, CPC (Madras & Kerala Amendment)

Yet another provision to be looked into in this matter is Order XVI Rule 21 CPC (Madras & Kerala Amendment). It reads as under:

“Rule 21 – Rules in case of parties appearing as Witnesses: (1) When a party to a suit is required by any other party thereto to give evidence or to produce a document, the provisions as to witnesses shall apply to him so far as applicable.
(2) When a party to a suit gives evidence on his own behalf the Court may, in its discretion, permit him to include as costs in the suit a sum of money equal to the amount payable for travelling and other expenses to other witnesses in the case of similar standing….”

It is plain – Order XVI deals with ‘Summoning and Attendance of Witnesses’; and that the Madras and Kerala amendment on Order XVI Rule 21 CPC does not deal with the power of the court to Oder ‘Production of Documents’.

Can a Party Seek Discovery and Production in One Petition?

Technically it may not be illegal, altogether. But, it will be improper if the court passes orders on both prayers simultaneously, especially since the court has to order production.

The ‘Scheme’ of CPC

The ‘scheme’ of the CPC is also germane.

We can compare the provisions in the CPC as to production of documents with calling for the opposite party as a witness.
- There is no specific provision in the CPC that allows a party to the suit to summon the opposite party as a witness – though court has discretion (Order 16 rule 14 CPC), to ‘examine any person, including a party to the suit’ after 1976 Amendment of the CPC.
(See: Kishori Lal v. Chunni Lal, ILR 31 All. 116, Narayana Pillai v. Kalyani Ammal, 1963 KLT 537, Muhammed Kunji v. Shahabudeen, 1969 KLT 170.)
See blog: Can a Party to Suit Examine Opposite Party, as of Right?

It is clear, the scheme of the CPC is-

(i) not to initiate coercive steps, against a party who does not examine himself as a witness, or withholds a document;
(ii) but to take adverse presumption under Sec. 114 Evidence Act.

Notice and Summons to Produce Documents in other Provisions of the CPC

Besides the powers of the court under Sec. 165 of Evidence Act, no doubt, the provisions of Order XVI rule 14 (summons to witness to produce documents) and Order XI rule 15 and Order XII rule 8 (notice to the other party to produce documents) provide for production of documents independent of O. XI r. 12 and O. XI r. 14. These enabling provisions do not bestow a vehicle to the court to ignore the provisions under O. XI r. 12 and O. XI r. 14; for, the judicial principle – the general provisions should yield to specific provisions.

Order XVI r. 14

“Court may of its own accord summon as witnesses strangers to suit: Subject to the provisions of this Code as to attendance and appearance and to any law for the time being in force, where the Court at any time thinks it necessary [to examine any person, including a party to the suit], and not called as a witness by a party to the suit, the Court may, of its own motion, cause such person to be summoned as a witness to give evidence, or to produce any document in his possession on a day to be appointed, and may examine him as a witness or require him to produce such document.”
- But, the words “of its own accord“, “subject to the provisions of this Code … and to any law” and “the Court may” make it clear that this provision is not intended to use openhandedly.
Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively).

Discovery is Made to Aid the Production of Documents

The proposition, ‘production of a document under Rule 14 comes into consideration only if it is ‘discovered’ under Rule 12′ can be fully supported by the decision of the Bombay High Court, in Manager, Ramkrishna Ramnath Bidi v. First Civil J. First Class, Nagpur, AIR 1959 Bom 181 (J Mudholkar and S Kotwal, JJ).

Referring O. 11 of the CPC, it is held in this decision as under:

“In its first eleven rules, Order 11 deals with the delivery of interrogatories …. Then it makes provision for the discovery of documents in rules 12 and 13. After discovery is provided for, it deals with the subject of production of documents in Rule 14. Then provision is made for the inspection of the documents produced in Rules 15, 17 and 18 of the Order.
Reading the Order as a whole, it seems to us clear that the provisions made in the Order for discovery and inspection are only provisions made in order to aid the production of documents before the Court, particularly the provisions regarding ‘discovery’.”

Views of the Apex Court

The decision, M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, emphasises that it is not necessary for an applicant under Order XI rule 12 to specify in detail the documents sought to be discovered when they are in the hands of the other side; and that the claim of privilege can be considered only after discovery, when the stage of production is reached. It is also made clear that if the document is relevant for the purpose of throwing light on the matter in dispute, though it might not be admissible in evidence, it can be put to discovery under rule 12.

Documents Need Not be Admissible; Sufficient if Relevant and Throw Light

The Apex Court held in M. L. Sethi v. R. P. Kapur, AIR 1972 SC 2379, as under:

“Nor do we think that the High Court was right in holding that the documents ordered to be discovered were not relevant to the injuiry. The documents sought to be discovered need not be admissible in evidence in the enquiry or proceedings. It is sufficient it the documents would be relevant for the purpose of throwing light on the matter in controversy. Every document which will throw any light on the case is a document relating to a matter in dispute in the proceedings, though it might not be admissible in evidence. In other words, a document might be inadmissible in evidence yet it may contain information which may either directly or indirectly enable the party seeking discovery either to advance his case or damage the adversary’s case or which may lead to a trail of enquiry which m have either of these two consequences. The word ‘document’ may this context includes anything that is written or printed, no matter what the material may be upon which the writing or printing is inserted or imprinted. We think that the documents of which the discovery was sought, would throw light on the means of the respondent to pay court fee and hence relevant.”

It is true, our Apex Court, did not give effect to the proposition that compliance (discovery) of Rule 12 is a condition precedent to order production under Rule 14 in Basanagouda v. SB Amarkhed, AIR 1992 SC 1163, when it proceeded as under:

“The Court, therefore, is clearly empowered and it shall be lawful for it to Order the production, by any party to the suit, such documents in his possession or power relate to any matter in question in the suit provided the Court shall think right that the production of the documents are necessary to decide the matter in question.”
- Note: Whether ‘discovery under Rule 12 is a condition precedent for ordering production of documents under Rule 14’ was not considered in this case.

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End Notes

Section 130 Evidence Act

Sec. 130 stipulates that no witness who is not a party to a suit shall be compelled to produce
- (i) his title-deeds to any property, or
- (ii) any document in virtue of which he holds any property as pledge or mortgagee.

It will be interesting to consider whether the court has jurisdiction to compel a party to produce his title deeds to any property – applying the converse analogy on the negative assertion in Section 130 (otherwise than ‘discovery’ under Rule 12).

The answer is – No.

In Dolagovinda Pradhan v. Bhartruhari Mahatab, 1993 CIVCC 394, 1993-3 LJR 506, 1991-2 Ori LR395, 1991-3 CurCC 519, it is observed (obiter) that under Order XI, Rule 14, CPC, it would be lawful for the Court to require, the party to the suit, to produce such documents in his possession relating to any matter in question in the suit subject to its lawful objections. The High Court pointed out the converse analogy on the negative assertion in Section 130 Evidence Act (which provides that no witness who is not a party to a suit shall be compelled to produce his title-deeds to any property). Though the High Court merely referred to “lawful” authority of the court to require production of the document from a party, it clear that the postulation laid down is that the court has the “power” to order production, because the court placed the proposition in converse to the direction in Sec. 130 of the Evidence Act. It does not appear to be a correct proposition in the light of ML Sethi v. RP Kapur (supra).

Sec. 66 of the Evidence Act reads as under:

66. Rules as to notice to produce.—Secondary evidence of the contents of the documents referred to in section 65, clause (a) , shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader,] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case.
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

See blog: Notice to Produce Documents in Civil Cases

Courts to admit documents Without Proof

Section 163 of the Evidence Act, reads as under:

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

In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167 it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also. It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:

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

Read Blog: How to Prove Whatsapp Chats, Facebook Messages and Website Information in Courts?

Court’s Jurisdiction to Require to Prove an Admitted Document

In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can rely on Sec. 58 of Evidence Act and Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC to see the scheme of the procedural laws.

Section 294 of Code of Criminal Procedure reads as follows:

“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”

See Blog: PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS

Can a Commissioner be Appointed for Seizing Account Books

Can a Commissioner be appointed for seizing the books of account of a party to the suit in the exercise of its inherent powers?

No.
In Padam Sen v. The State of Uttar Pradesh, AIR 1961 SC 218, it was held that ‘the Munsif had no jurisdiction to appoint a Commissioner for seizing the account books of the plaintiff, which is passed by the Court is null and void’.

Similar Articles:

Read in this cluster (Click/touch 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

Book No. 2

Evidence Act – General

Book No. 3

Contract Act

Easement

Stamp Act

Will

Book No. 4: A Handbook on Constitutional Issues

Book No. 5: Common Law of CLUBS and SOCIETIES in India

Book No. 6: Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

Incidents of Trust in Clubs and Societies.

Jojy George Koduvath.

Introduction: What is Trust?

‘Trust’ is defined in Sec. 3 of the Indian Trusts Act, 1882 as under:

“A ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner,”

Therefore, in law:

Trust is ‘an obligation’.
It arises when a property is endowed by its owner for the benefit of another.
Trust is created when a trustee is appointed.
The trustee administers the property as required by the author.
It has to be done by the trustee as if he is the owner of the property.

This obligation upon the trustee to administer the endowed property, as if he is its owner and as directed by the author, for the benefit of another, is ‘trust’ in law.

Essential elements[3] for formation of a trust are the following:

(a) Intention to create a trust on the property, for the specified purpose, by the author,
(b) Reposing-in/declaring confidence in trustee by the author,
(c) Acceptance of the confidence (reposed in or declared by the author) by the trustee,
(d) Transfer of trust-property to the trustee,
(e) Obligation upon the trustee to administer the trust property, (i) as its ‘legal owner’, (ii) for the benefit of the beneficiaries.

Trust being an ‘obligation’[1] annexed to or enjoined upon the dedicated property, ‘trust’ cannot be an association of persons or a juristic person.[2] In law, ‘trust’ is neither a tangible-endowment nor a corporal-institution. Grammatically, it is an ‘abstract countable noun’, similar to ‘a business’, ‘an idea’ or ‘a duty’.

‘Trust’ is Personified, Even In Legal Parlance

Because, ‘a’ trust is ‘an’ obligation annexed to the trust property and has no existence without its trust property, generally, the endowment/institution, upon which the obligation of ‘trust’ is pervaded, is personified as ‘trust’, even in legal parlance. In any case, it has no corporate personality; and it is not a legal person.[4] [In Illustration (b) of Sec. 15 of the Trusts Act, the expression ‘trust’ is used an entity. The Illustration (b) of Sec. 15 reads: “(b) A, trustee of lease-hold property, directs the tenant to pay the rents on account of the trust to a banker, B, ….”]

The term ‘trust’ is also used as a compendious expression taking in the trustees, the beneficiaries and the subject matter of the trust.[5]

Similarly, when ‘a trust’ is created under the auspices of an association, the terms ‘trust’ and ‘association’ are generally used as synonyms, in view of the underlying significant nexus between the members of the association and the ‘trust’. An association can be formed for the administration of a ‘trust’;[6] and an artificial (or legal) person can be a trustee.[7]

Difference Between a Trust and a Society

An association of persons, or a society, is formed with specific aims and objectives, by the joint effort of its founding members. A trust is an obligation created by the author or founder of the trust, upon the trustee in whom burden is cast upon to administer the property for the benefit of the beneficiaries.
A society functions under its bye laws formulated by the founding members. The administration of a trust is carried on under the directions of the author (in the deed of foundation, or otherwise).
The bye laws of a society can be amended as provided under the bye laws and/or under the provisions of the Act under which it is registered. The edicts of the founderin the founding deed of a trust cannot be varied.
A society can be wound up following the procedures specified in the law. In trust, the principle is ‘once a trust always a trust’.
The property of a society vests with its members subject to its basic principles or trustupon which it is founded and to the Act, if any, under which it is registered. A trustee is the legal-owner of the trust property and the property vets in him as such.
A society functions under its bye laws which partake the character of a contract. The State and the Court protect the trust as ‘parens patreae’.
The administrators of a society can resign their office. But the trustees cannot renounce.
In terms of Section 5 of the Societies Registration Act, the property of a society could vest in the trustees; and only in the absence of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society.[8]

No beneficial-Interest or Enjoyment over Property of Society – Interest Created is that of Bare Trustees

The vesting of legal ownership of the property of a society in the governing body is merely a ‘method or mechanism permitted by the law’.[9] During the subsistence of a registered society, or on dissolution, the members do not have any proprietary-interest or right of beneficial-enjoyment [10] in the property of the society.[11]

In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh,[12] it was observed – what was vested in the College Committee or its governing body was a ‘right of management’ simpliciter, and there was no question of the members of the society or the members of the governing body being ‘beneficially interested’ in its property. Then, it was held as under:

“The Societies Registration Act, therefore, does not create in the members of the registered society any interest other than that of bare trustees.”

Underhill, in his treatise, ‘Law of Trusts and Trustees’, explained:

“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the Association for the time being. The members for the time being cannot under the Association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the Association for the time being.”[13]

“A trust is primarily a legal concept”

‘Trust’ is essentially a legal concept attached to the endowed property. It arises by the appointment of a trustee. For creation of a trust, the trust-property must have been transferred to the trustee. (Maulavi Kamiruddin Khan Vs. BadrunNisa Bibi: AIR 1940 Pat 90; Chief Controlling Revenue Authority Vs. Banarsi Dass: AIR 1972 Del 128; Pankumari Kochar SmtVs. Controller of Estate Duty: 1969-73 ITR 373.) The Delhi High Court held in Birdhi Chand Jain Charitable Trust Vs. Kanhaiya Lal Sham Lal, ILR 1973-1 Del 144, as under:

“A trust is primarily a legal concept, a mode of transfer of property and of holding property. On the other hand, an institution is primarily a social concept. It is not a legal concept at all. For, there is established legal method by which an institution may come into being. It may be established by way of an organisation which may assume any or no legal form. It may be a trust or a company or a statutory corporation or a mere unincorporated association or a society registered or otherwise. It is its work and place in the society that is the hall-mark of an institution. As observed by Lord Macnaghten in Mayor, etc. of Manchester V. Mcadam,3 Tax Cases 491 at 497, ‘it is the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle.’ In the present case, the founders of the trust may have transferred their property to a charitable purpose and thus created a public trust. But the body to translate the trust into a living and active principle has not yet come into existence. It is that body which will be entitled to be called an institution. It is not a mere legal arrangement like a trust but an active working body with a social impact which can be called an institution.”

Incidents of ‘Trust’ in Property of Clubs and Societies

Four views are possible.

(i) Positive view: The Common Law on Trust in India gives progressive and ‘wider’ or ‘general’ connotation to ‘trust’. Thereby, pointing-out that the governing body[14] of a society or a club acquires and holds property for and on behalf of the members of the society or club, it is said that incidents of trust are impressed upon the property of the Society or Club.

Salmond on Jurisprudence[15] reads:

‘The Club property is the joint property of the members, though in fact, it is often held by trustees on behalf of the members.’

Halsbury’s Law of England reads:[16]

“Unincorporated Members’ Clubs. – An unincorporated members’ club is a society of persons each of whom contributes to the funds out of which the expenses of conducting the society are paid. ……. Subject to any rule to the contrary, the property and funds of the club belong to the members of the time being jointly in equal shares. “

The property of a registered Society cannot absolutely vest in its members. By registration of a society, its property ‘shall continue to exist in perpetuity’[17] or something in the nature of perpetual succession is conceded. The property shall pass to succeeding trustees or governing body without assignment or transfer.[18]

If Valid Dedication, No Change of Character, On Regn. as Socieety

“Any addition to those properties must also have the same character.”

Section 5 of the Societies Registration Act[19] speaks as to vesting of property ‘belonging to a society’[20] in the trustees; and only in the absence of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society.[21] Therefore, it can be legitimately concluded from Section 5 that general characteristics of ‘trust’ are impressed upon the property of a society and that the members of a registered Society are trustees for[22] the future members who have to continue the aim and objects of the Society as envisaged by the founders or as manifested in the Rules or Bylaws.

If there was a charitable trust created by the public, the fact of its subsequent transformation, or its registration, as a society could not change the already invested trust-character[23] and any addition to those properties must also have the same character.[24] In such a case, suit can be filed, as if it is a trust itself, under Sec. 92 of the CPC.[25]

Property of a Society being maintained for the benefit of its future members also, and therefore encumbered with obligations attached to ‘trust’, it cannot be dealt with by the members or its administrators disregarding the objectives of foundation of the societies. When the property is in the hands of an agent for the principal, the agent stands in the fiduciary capacity as a trustee. He has a duty and responsibility to properly account for the profits or benefits he derived while acting as the agent.[26]

(ii) Negative view: (a) A society or club is formed by a group of people joined together on the basis of bye laws. It has the characteristics of a contract. Therefore, principles of fiduciary obligations as arises in trust do not apply to the acts and deeds of the administrators or members of a society or a club; but they are guided only by contractual obligations, either express or implied.

(b) A trust is formed only when a property is dedicated by its owner for a specified religious or charitable purpose. For a valid dedication there should be proof for divesting of the title of the founder/author[27] or of the person who dedicated the property. Since the property of a society or club belongs to the members of the club or society (or it vests in the society or club) there will be no ‘trust’ at all.

(c) Even if characteristics of a trust are adumbrated upon the property of a society, as stated above, it must be noticed that once the bylaws, the Societies Registration Act or the Common Law as to societies/clubs provide a particular procedure for a particular affair (such as management or dissolution), the same has to be carried on as per that procedure;[28] and it will not be guided by general principles applicable to a trust. Thus, the intent of the Societies Registration Act is not to invest properties of the society with the character of trust property.[29]

If the property destined for religious or charitable purposes is acquired with money collected by way of contribution by the members of a society, and the society itself manages the same without dedication in favour of the public, there will be no divesting of ownership of property in favour of the trust or institution.[30] In such a case, it may be possible to affirm – no trust is predicated.[31] The effect of the Societies Registration Act was not to invest the property ‘belonging to a society’[32] with the character of Trust property.[33] Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will ‘belong’ to the society and there is no trust and no trust can be predicated.[34]

(iii) Contract with express or implied fiduciary liabilities as are applicable to trusts:The members of a club or society, both registered and unregistered, are bound by the memorandum of association and its rules and regulations. The bye laws bind its members as a contract.[35] Even the formation of a society itself is based on a contract.[36] Salmond[37] reads:

“The rules of the club or society constitute the basic contract to which all the members are parties.”

Since the administrators of a club or a society manage its property for and on behalf of its members, there are fiduciary liabilities akin to ‘trust’ upon such administrators. When the property is in the hands of an agent for the principal, the agent stands in the fiduciary capacity as a trustee. He has a duty and responsibility to properly account for the profits or benefits he derived while acting as an agent or a trustee to the principal.[38]

(iv) It remains as academic alone – to explore, whether trust or contract: In case of a breach of fiduciary duty or mismanagement on the part of the administrators of the society, it gives rise to a cause for civil action under the principles of contract, or under the doctrines such as membership rights, ultra virus the bye laws, rule of majority, oppression of minority, etc.

Our law being dealt with these matters under a developed branch of law (club/society-law), one can justifiably argue that it remains as academic alone, or lingers as superfluous, to explore whether these doctrines are sprouted from express or implied trust. It is more so in view of Sec. 88 and 95 of the Indian Trusts Act.[39]

No Trust upon the “Property Belonging to a Society”: Exceptions

A trust cannot be created upon the “property belonging to a society”. But this proposition is subject to certain qualifications.

That is, certain properties held by a Society may be that vest with the Society only for administration – E.g., (i) where a charitable association is established, after a valid ‘dedication‘ of property – for the enjoyment of the public – by a group of persons, for the administration of the dedicated property (or the trust); (ii) a society formed with the object of dedicating property for a public charitable purpose; (iii) a Society is formed by the beneficiaries for administering a charitable institution (already) established by valid ‘dedication‘ of property.

Fundamental Rules Cannot Not Be Altered

In Noel Frederick Barwell Vs. John Jackson AIR 1948 All 146 it was held as under:

“51. It has been argued by Mr. Pathak on the basis of this decision and the decision of the House of Lords in Hole v. Garnsey (1930) 1930 A.C. 472, already referred to, that the rules of every association may be divided into two classes – the rules relating to fundamentals and the ordinary rules. Learned Counsel went on to urge that the fundamental rules could not be altered even by a unanimous vote of the members, though, if the rules provided for amendments, the other rules could be ant ended. It is not necessary for me to go into this question as the point does not arise in this case, but if I may say so without meaning any disrespect, the cases cited above have entirely been misunderstood. All that their Lordships intended to say was that the rules of any club being framed for the purpose of carrying on the objects of the club, ordinarily any power to amend such rules must be limited to the contemplated scope of the original rules and that under the general powers of amendment the alteration should not affect the foundation of the club or should not be incompatible with its fundamental objects.
52. Dealing with this question Lord Han – worth, Master of the Bolls, in Doyle v. White City Stadium Ltd (1935) 1 K.B. 110 said:
‘When these rules as altered are still for the purpose of carrying out the original purpose of the society or body of persons, the altered rules are made binding on the plaintiff. If there was an attempt fundamentally to alter the purpose for which the rules had been originally drawn up, the prospective agreement to adhere to-fresh rules, or any alteration in the rules, would not apply. It is quite plain from the decision in Thelluson v. Viscount Valentia (1907) 2 Ch. 1 that if and so long as the rules are akin to the purpose for which a society exists, there is no inherent, objection to an alteration of those rules or to further rules being made for the same purpose’.”

If Principles of Trust in a Club, It is in a Very Limited Sense

In Noel Frederick Barwell Vs. John Jackson (supra) it was held (majority) further as under:

“58. The next argument of learned Counsel is based on the law of trust. He has urged that the property of the club vests in the committee of management and the ordinary and temporary members are all beneficiaries and that under the law of trust all beneficiaries must join in the extinction of the trust. In a sense, “the office bearers of any public body or institution including a club, are trustees, but I am afraid this cannot be of much assistance to learned counsel. There is no question in this case of the right of the officers of the club to put an end to it and I have already said that if there is a trust it is in a very limited sense. This is a case where the members of the club have passed a resolution by a majority, that the club should be dissolved, and the decision must, therefore, to my mind, rest on the decision of two simple questions, firstly whether the rules of the club have made any provision with regard to its dissolution and, if so, whether the rules have been complied with, and secondly, if there is no such rule, whether the resolution is valid and should be given effect to.”

In this decision the minority judge pointed out, as to trust, as under:

“Finally it is said that the committee of the club are trustees of the club property and that the trust could only be extinguished with the consent of all the beneficiaries. But if a trust exists, it is created by the rules of the club and the trustees held the trust property subject to those rules; and if the rules permit of a dissolution at the will of the majority of the members then with the winding up of the club there is an extinguishments of the trust.”

Societies Registration Act Brings-forth ‘Fixity’ or Permanency.

A society or a club is a compendium of its members. Its property is the ‘joint property’ held by the members as ‘non-partiable’ or as ‘joint tenants’ (as differentiated to ‘tenants in common’) till a decision is taken for dissolution. If such property is maintained for the benefit of its future members also (and therefore encumbered with obligations as in a ‘trust’), it cannot be dealt with by the members disregarding this objectives of its foundation.

Registration of a society under the Societies Registration Act makes a sea-change with respect to the disposal of the property on dissolution; and a perpetual succession is conceded thereto. even if the property could have been distributed among its members on its dissolution, by virtue of registration, the dealings as to the property on its dissolution, is governed under the provisions of the Societies Registration Act alone.[40]

The members of a registered Society are trustees for the future members of the Society. Registration of a Society brings-in permanency. The left-behind-property of a Society, on dissolution, goes to another Society as determined by the members of the Society or by the court (Sec. 14 of the So. Regn. Act ). Either during the subsistence of a Society or at the time of its dissolution, the members of a Society do not have any kind of beneficial-enjoyment over its property.[41] As shown above, in Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh,[42] it was observed that the Societies Registration Act did not create in the members of the registered society any interest other than that of ‘bare trustees‘.

Sec. 14 of the So. Regn. Act reads as under:

14. Upon a dissolution no member to receive profit: If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or in default thereof, by such court as aforesaid:

Sec. 14 of the So. Regn. Act is enacted footing on the following general principles of law:

once a trust, always a trust;[43]
cypres doctrine; ie. the court will execute or accomplish the intention of the founder of a trust ‘as nearly as possible’ when it becomes impossible to carry out his intentions; and
the court is the protector of all charities.[44]

Fiduciary Position of Governing Body Members

The term ‘fiduciary’ as an adjective means ‘in the nature of a trust, having the characteristics of a trust, analogues to a trust; relating to or founded upon a trust or confidence’. ‘Fiduciary relationship’ invariably involves dominion over property which is wholly lacking in the case of a contract of suretyship or guarantee, that the surety has not received anything nor has he been given dominion with money or property and that he has no liability to account. There is no fiduciary capacity involving liability to account in relation to another. Mere confidence also cannot result in a fiduciary relationship.

Black’s Law Dictionary defines ‘fiduciary relationship’ as under:

“A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships, such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client, require the highest duty of care. Fiduciary relationships usually arise in one of four situations : (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.”

Directors of a company stand in a fiduciary[45] position and they are legally bound to exercise their powers for the company’s benefit. They have to protect the interest of the company and its shareholders. They cannot take part in any resolution under which they gain any benefit. If interested directors take part in such transactions there would be an irregularity and it renders the resolutions voidable at the instance of the company.[46]

The general principles as to the rights and responsibilities of the directors of a company apply to the governing body members of a society also.

Fiduciary Relationship Will Not be Allowed to be Varied

It is held by our Apex Court in Marcel Martins Vs. M Printer[47] as under:

“It is manifest that while the expression “fiduciary capacity” may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.”

Principles in Sec. 46 and 47 of the Indian Trusts Act (a trustee cannot renounce or delegate duties) are applied to various affairs of fiduciary relationship,[48]by our Courts, as they contain the common law principles of the universal rules of equity, justice and good conscience upheld by the English judges.

S. 46 and 47 of the Indian Trusts Act reads:

46. A trustee who has accepted the trust cannot afterwards renounce it except (a).. (b)..(c)..
47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) … (b) … (c) … (d) ….

In State of Uttar Pradesh Vs. Bansi Dhar[49] it is held by VR Krishna Iyer J. –

“But while these provisions (of Indian Trusts Act) proprio vigore do not apply, certainly there is a common area of legal principles which covers all trusts, private and public, and merely because they find a place in the Trusts Act, they cannot become ‘untouchable’ where Public Trusts are involved. Case must certainly be exercised not to import by analogy what is not germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the universal rules of equity and good conscience upheld by the English Judges, though also sanctified by the statute relating to private trusts. The Courts below have drawn inspiration from Section 83 of the Trusts Act and we are not inclined to find fault with them on that score because the provision merely reflects a rule of good conscience and of general application.”

Sec. 46 and 47 of the Indian Trusts Act make it clear: a fiduciary relationship and duties attached thereto should not be allowed to be unilaterally terminated or varied,[50] as it would be against the interests of society in general.[51]These principles would apply with equal force to servants and, in fact, to any body who has entered on another’s property in a fiduciary capacity.[52]

‘If Not Vested in Trustees’: Property Management & Vesting may be Separate

Though the administrative affairs of the societies are carried on by its governing body, the properties of the same may be vested with (separate) trustees (like ecclesiastical authorities, in case of certain religious societies). It is obvious that this system of vesting-of-property in trustees and administration-of-affairs by governing body, is primarily viewed in the So. Regn. Act of 1860 when it refers – ‘if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body’. It is obvious that our law accepts the ‘wider’ or ‘general’ expression as to ‘trust’ (used by the progressive jurists like Salmond and Halsbury) is adopted in the So. Regn. Act. The progressive jurists preferred investing principles of trust in the matters of various fiduciary relationships under which one holds property on behalf of, or for the benefit of, others.

Halsbury’s Laws of England defines ‘trust’ as a confidence reposed in a person with respect to property of which he has possession or over which he can exercise a power, to the intent, that he may hold the property or exercise the power for the benefit of some other person or object. Salmond brings-in principles of trust in the affairs of associations. Salmond reads:[53]

“Thirdly, it is expedient that property in which large numbers of persons are interested in common should be vested in trustees.”

It is held by the Supreme Court in RV Sankara KurupVs. Leelavathy Nambiar[54] that the property in the hands of the agent was for the principal and the agent stood in the fiduciary capacity for the beneficial interest he had in the property as a trustee. The petitioner had acted as an agent as a cestui que trust was a trustee and he held the property in trust for the respondent in his fiduciary capacity as an agent or trustee and he had a duty and responsibility to make over the unauthorised profits or benefits he derived while acting as an agent or a trustee and properly account for the same to the principal. Therefore, the High Court was right in its holding that the petitioner was an agent and trustee acted in the fiduciary capacity on behalf of the respondent-plaintiff as General power-of-attorney.

If a trust is created for the benefit of a religious society, such trust shall continue to exist and it would not cease to exist by the resolution of the society. Such ‘creation of trust’ is considered by our Apex Court in Vinodkumar M. MalaviaVs. Maganlal Mangaldas Gameti[55] and held:

^“The High Court has rightly observed that: ‘… the trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”

In Church of North India Vs. Lavajibhai Ratanjibhai[56] it is held that in terms of Section 5 of the Societies Registration Act, the property would vest in the trustees, and that only in the absence of vesting of such properties in the trustees, the same would be deemed to have been vested for the time being in the governing body of such society.[57]

In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh,[58]holding what was vested in the College Committee or its governing body was a right of management simpliciter and there was no question of the members of the society or the members of the governing body being beneficially interested in its property, it was observed that the Societies Registration Act, therefore, did not create in the members of the registered society any interest other than that of bare trustees.

‘If not Vested in Trustees’: Principles of Trust , not Alien to Affairs of Societies

Sec. 5 SR Act reads:

“Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”

The principles of trust are not alien to the affairs of societies. Following propositions can be legitimately put forward from Sec. 5, SR Act. That is,

(a) The system of vesting-of-property in trustees is primarily viewed in the So. Regn. Act of 1860.
(b) a society can be formed by the beneficiaries of a trust, or by its administrators;
(c) one can ‘transfer’[59] property to a society creating a trust;[60]
(d) a trust can be created on the property of a society for the benefit of its (present and future) members and/or outsiders; and
(e) a society can be formed simultaneously with creation of a trust over the property dedicated to, or set apart for the benefit of, the members of the society; or for the benefit of such members and outsiders.It is observed in Church of North India Vs. Lavajibhai Ratanjibhai[61] that the society and (public) trust can be ‘one entity’.

If a society is formed by the beneficiaries of a public trust the trust nature of the property continues; and the trust property remains vested in (separate) trustees (if the trustees are not the governing body of the society as per the bye laws of the society).

In terms of Section 5 of the Societies Registration Act, property of a society would vest in the trustees; and only in the absence[62] of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society.[63]

Governing body is defined in Sec. 16 as under:

The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Such trust can also be a ‘public/religious trust’ like a church that came for consideration of our Apex Court in Church of North India Vs. Lavajibhai Ratanjibhai[64] and Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti.[65]In public trust, the beneficiaries will be the general public or a class thereof.[66]

The property of such a public/religious trust, ‘shall continue to exist in perpetuity and it would not cease to exist by the resolutions’ of the society.[67]

The definition of ‘Member’ (in Sec.15)[68] in the So. Regn. Act, 1860 is not exhaustive as it is ‘for the purposes of this Act’ alone. It is confined to the activities enjoined to the ‘members’ in the So. Registration Act [ie. to make bye laws (S. 9), to take part in the meeting to amend the ‘purposes’ (S. 12), to take decision to ‘amalgamate’ with another society (S.12), dissolution (S. 13), etc.]. Non-fulfillment of requirements specified in the definition (payment of subscription and signature in the roll/list of members) does not bar a person -especially when it is a religious society – to be its ‘member’, if he is eligible to be a member as per the bye laws of the society. It also does not downbeat the propositions on ultimate ‘vesting of property’ in ‘members’ of a society.

If the property is set apart for the benefit of its present members (or society) alone, there will not be any trust.The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property.[69]

Apparent Incongruity in Sec. 5 and 16 Explained

A conjoint reading of Sec. 5 and 16 may raise an inappropriateness as to the position of trustees; that is, whether trustees stand independent of the governing body (Sec. 5) or whether they stand included in the governing body (Sec. 16).

Because,

Sec. 5 lays down that ‘the property, belonging to a society, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body’; and

Sec. 15 lays down that ‘the governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted’.

It can be explained by the following propositions.

Both are used ‘independently’.
The scheme of the Act provides that the ‘property belonging to a society’ can be vested in an ‘independent’ trust (the trustees of which can be persons other than members of the society).[70]
The scheme of the Act provides that trustees of such trust (even though they are not members of the society) can be the governing body, if the bye laws so provide. (It is noteworthy that the So. Regn. Act does not expressly deal with election of Governing Body.)

Founding Endowment by Subscriptions or Donations

In ancient times religious institutions were founded and managed by rulers, or wealthy persons or families. But, in modern times the trusts are mostly founded by associations of persons, and are administered by them, as trustees.

Where a person collects subscription from various persons and builds a choultry or a temple he has a right to direct in what manner the institution should be managed and what right the trustees should have in the management of that institution. This is recognised by the Hindu Law.

There is nothing illegal or improper in a person who builds a temple whether out of his own funds or out of the funds collected by subscriptions[71] or getting donations from people to create a trust and endow it, directing by the deed of endowment, in what manner and by whom it should be managed.[72] If a number of persons provide the original endowment, they may apparently together constitute the founder.[73] Every donor contributing at the time of foundation of a trust may not be a founder of the trust. Whether a contributor would become a joint founder of the trust would depend not merely upon the fact of his contribution but also upon the surrounding circumstances and the subsequent conduct of the parties.[74]

In Attorney-General Vs. Clapham[75] Lord Cranworth, Lord Chancellor observed as under:

“Where a fund is raised for a charitable purpose like that of founding a chapel and the contributors are so numerous as to preclude the possibility of their all concurring in any instrument declaring the trusts, but such a declaration is made by the persons in whom the property is vested, at or about the time when the sums have been raised, that declaration may reasonably be taken prima facie as a true exposition of the minds of the contributors. The presumption is, that the trusts declared were those which the contributors intended. It would be open to them, if the trusts were not so framed as to effect the object they had in view, to take steps for getting any errors corrected. If no such steps are taken, it must be assumed that the instrument declaring the trusts fairly embodies the intentions of the contributors.”[76]

Effect of Subsequent Transformation of a Trust as a Society

Section 2(13) of the Bombay Public Trusts Act reads:

” ‘Public trust’ means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act. 1860.”

The registration of the trust under the Societies Act would not alter the nature and character of its property.[77]In Amrithakumari Vs. VP Ramanathan,[78] it has been held by the Kerala High Court that if there was a charitable trust created by the public, the fact of its subsequent transformation, or its registration, as a Society, could not change the trust-character of its property; and in such a case, suit could be filed under Sec. 92 CPC.

Even after formation of a society by the persons in management of an already existing trust/institution, the trust/ institution continues to hold its ‘trust-identity’. The same is the position even if the beneficiaries of a trust formed a society. In Rajan Devasahayam Vs. Hindustan Bible Institute of India, it was observed that a Trust can be registered under the Societies Registration Act.[79]

Governing Body Administers Subject To Trust

The trustees or the governing body administer the ‘property of the society’ as per its bye laws so as to fulfill or attain the ‘aim and objects’ the founders viewed. Expressions in the Societies Registration Act, ‘property belonging to a society’ (Sec. 5) and ‘property of the society’ (Sec. 8 and 10), do not give the society a corporate status; it ‘merely describes the property which vests in trustees or Governing Body.’[80] They acquire and hold the property for and on behalf of[81] the members of the society subject to the obligations imposed by law, the bye laws and the fundamental principles[82] or trust[83] upon which it is founded. These propositions upheld by our courts also lead to the unerring conclusion that our law brings-in principles of trust in the affairs of the societies and clubs.

Effect of Unification of a Trust and a Registered Society

Trusts and societies can be dissolved only by adhering to the special procedures for the same. Unification of a registered society with a trust, under the resolutions, will not dissolve the society, automatically. Similarly, unless the properties vested in a trust are divested in accordance with law, a lawful merger cannot be claimed. Registered societies and trusts have to resort to the lawful modes for amalgamation.[84]

No principle of law permits transfer of trust

Trust is a confidential relationship which involves a special duty of loyalty to the purpose or object of the trust. Our Apex Court has held that there is no principle of law or precedent which permits transfer of trust in favour of another body of persons.[85] The Karnataka High Court held that the documents as to conversion of the properties of a society into a trust property fall within the meaning of ‘settlement’ under the Stamp Act.[86] (It may be noted that, in this case, the court did not consider whether ‘trust’ was an ‘institution’ and whether such a change amounts to dissolution of the society.) In Shri Digambar Jain v. Sub Registrar, Stamps, Indore[87] it is held in a similar situation that the documents would be ‘Declaration of Trust’ and not a ‘Conveyance’.

Duty of Courts to Protect Trusts

In AA Gopalakrishnan Vs. Cochin Devaswom Board[88] while adverting to the need for protecting the properties of deities, temples and Devaswom Boards, our Apex Court observed that it is also the duty of Courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.[89]

‘Breach of an Obligation’ in Sec. 38 of the Specific Relief Act

Under Sec. 38 of the Specific Relief Act the court is expressly authorised to grant injunctions to prevent breach of an obligation existing in favour of the plaintiff or where the defendant is trustee of the property for the plaintiff. Sec. 38 of the Sec. 38 of the Specific Relief Act reads:

“38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall be guided by the Rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely;

(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

The word obligation is defined in Sec. 2 of the Specific Relief Act with a wider meaning. It is so wide that it encompass obligations ‘whether expressly or by implication’. It also reads: ” ‘obligation’ includes every duty enforceable by law to include ‘every duty enforceable by law”. The word ‘trust’ is also used in a wider sense[90] in this Act as under: ” ‘trust’ has the same meaning as in Section 3 of the Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act.” It is also noteworthy that ‘trust’ is not alien to the affairs of a society inasmuch as the administrators of societies can be ‘trustees’ as seen from Sec. 5 and 16 of the Societies Registration Act, 1860.

Court is the Ultimate Protector of All Charities

As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities.[91] It is the guardian of the public charitable trust/institution.[92] Court has jurisdiction to enforce trusts.[93]

Gift on Trust to a Society

If property is gifted to a registered society on condition tht the property should be used for public purposes and cast duties on the society to act as trustee a trust is brought home.[94]

Church of North India Vs. Lavajibhai Ratanjibhai[95]

Brief facts: The Church, FCDB, was a registered religious society. This Church and other 6 Churches resolved to dissolve; and consolidate into a single entity, The Church of Northern India (CNI). The ‘CNI Trust Association’ was subsequently formed under the Companies Act and was appointed as the trustee of the CNI. Defendants 1 to 4 (though given consent to unification proceedings, earlier) obstructed the functioning of the CNI and asserted their independent right to hold all the movable and immovable properties of their congregation (Valsad Brethren Church) and took the stand that there was no resolution for ‘dissolution’ as set out in the So. Regn. Act.

During the pendency of the suit, unification was ‘given effect to’ by the Charity Commr. under the BPT Act. The plaintiffs filed the suit to declare ‘that the former FDCB has ceased to exist’ and ‘that the CNI is the legal continuation and successor of the FDCB …’ etc. The Civil Court may have jurisdiction over a matter which is outside the purview of the Act, or overa question arises in relation to a matter unconnected with the administration or possession of the trust property.

The effect of ‘dissolving’ a registered society (FDCB) by taking resolution ‘for unification’ with other associations (Churches) to form a single entity (CNI) was placed for consideration of our Apex Court several times. Besides, this decision (Lavajibhai Ratanjibhai), Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti[96] is important among them. The dismissal of the suit was upheld by our Apex Court holding that the civil court has no jurisdiction where bar is imposed in relation to a matter whereover the statutory authorities (under BPT Act) have the requisite jurisdiction and that a society created under a statute must conform to its provisions and the courts would interfere in case of its violation.[97]

It was observed, inter alia, in this land-mark decision (Church of North India Vs. Lavajibhai Ratanjibhai),rendered by SB Sinha, J:

“In terms of Section 5 of the Societies Registration Act, all properties would vest in the trustees and only in case in the absence of vesting of such properties in the trustees would the same be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society.” (Para 60)
“Unless a suit is filed in terms of Section 13 of the Act, the society is not dissolved.” (Para 64)
“Concededly, the properties of the trust being properties of the religious trust had vested in such trust.” (Para 64)
“If the properties of the churches did not belong to the society, the appellant herein cannot claim the same as their successor.” (Para 64)
“Even if it is contended that the administration of the property would mean the properties of the Brethren church both as a trust and as a society, still then having regard to the legal position, as discussed supra, the property belonging exclusively to the trust, the suit will not be maintainable (by virtue of the provisions of the BPTA).” (Para 64)

It was observed in Vinodkumar M. MalaviaVs. Maganlal Mangaldas Gameti,[98] inter alia:

“The argument that as per Article 254 of the Constitution, the Societies Registration Act overrides the BPTA or that the Societies Registration Act and BPTA are in conflict, does not stand either, since both the statutes are not in conflict with each other. On the contrary, they are in consonance with each other regarding the administration and regulation of public and religious trusts.”
“The High Court has rightly observed that: ‘… The trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”

Effect of Dedication of Property (for Public) by Society

Can a Society or Corporation be a Trustee?

A corporation can be a trustee. Earlier notion that a corporation could not be a trustee, as the property held by the Company or Corporation as its ‘beneficial owner’ could not be subjected to a trust for the benefit of third parties is not accepted by modern jurists.

N. SuryanarayanaIyer, in the Indian Trusts Act, observed as under:

“Formerly the notion was that the relationship of a trustee being one of confidence involving a personal element, a corporation could not be a trustee as there could not be a question of confidence being reposed in a corporation and therefore that it could not be a trustee. This notion, however, has long ago been given up. Corporate bodies have been held to be amenable to the jurisdiction in Chancery and compellable to carry out the intentions of the settlor of property which has been vested in them…. Under the Indian law also a corporation, whether aggregate or sole, can be a trustee and there is ample jurisdiction in the court to enforce the performance of its duty by such trustee.”[99]

As shown above, generally, a Society acquires property to use the same for its objectives or purposes and for its own benefit; or in other words, ultimately for the benefit of the ascertainable members of the society. And, there will be neither public trust nor dedication of property, divesting the rights of the society, for any ‘public purpose of a charitable or religious nature’.

But, if a contra indication is manifested from the basic documents and assertions of a society (or a Non-Trading-Company) or from the very nature of an institution — that is, where the property is raised solely for the purpose of dedicating the same for establishing and maintaining a public trust/institution for the benefit of the general public or of an unascertainable section thereof as in the case of a church or temple(or, where the society and trust ‘is only one entity’ as the one considered in Church of North India Vs. Lavajibhai Ratanjibhai)[100] — no doubt, it cannot be treated as the property ‘exclusively’ belonging-to-the-society and not bound by Sec. 92 CPC. In other words, if a society is formed with the object of dedicating property for a public or charitable (including religious) purpose and the property procured by the society is validly dedicated, a trust will be predicated.

A Society May Be Subjectd To The Jurisdiction of Section 92 CPC

In Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India[101] the Delhi High Court considered whether the term “express or constructive trust” in Section 92 CPC was attracted when a society (National Council YMCAs of India) held ‘in trust’ property belonging to different organisations, and observed as under:

“In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but anybody or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”

The court found that the National Council YMCAs was in both ‘express’ and ‘constructive’ trust of the properties belonging to its member YMCAs. The mere fact that the defendant is a registered society did not take away its true character. The defendant is an organisation which worked for a public purpose and is subject to the jurisdiction of Section 92 of the CPC.

The defendant (National Council YMCAs of India) contended that it was not a trust but a society registered under the Societies Registration Act. There was a clear distinction between the nature of a trust and a society. If only it could be proved that the society could in fact be termed as a trust created for public purposes of a charitable or a religious character, leave under Section 92 of the CPC could be granted. The settled position on this issue was that if a society that was functioning in a fully democratic fashion, and there was no settler who had vested property in the society, leave could not be granted under Sec. 92. The defendant relied upon the following judgments:

K. Rajamanickam Vs. Periyar Self Respect Propaganda Institution, Tiruchirapalli: AIR 2007 Mad 25
S. Guhans Vs. Rukmani Devi Arundale: 1987-100 LW 182
Advocate General Vs. Bhartiya Adam Jati Sewak Sangh: 2001-3 ShimLC 319
Abhaya A Society Registered under the Travancore-Cochin Literary Vs. J.A. Raheem: AIR 2005 Ker 233
Kesava Panicker Vs. Damodara Panicker, AIR 1976 Ker 86
Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan: 2017-4 SCC 771

The High Court distinguished Abhaya A Society, Rukmini Devi Arundale and Bhartiya Adam Jati Sewak Sangh pointing out that these cases did not show that they held ‘in trust’ any property belonging to a different organisation. The property was owned by the Society concerned and it belonged to it. In other cases also, no express or implied trust emerged.

If Valid Dedication, No Change of Character, On Regn. as Socieety

As stated above, normally, the property acquired by a society does not part-take the character of ‘public purpose’ stated in Sec. 92 CPC.[102] But, if a charitable or religious institution of a public nature[103] is expressly or constructively founded by an ascertainable number of persons or an association, by valid dedication of properties acquired by the members or society, it will accomplish the character of ‘public purpose’ stated in Sec. 92 CPC.

Subsequent registration of an association involved in a trust, under the Societies Registration Act, will not make any change to the trust character of the properties dedicated. Kesava Panicker Vs. Damodara Panicker[104] was a case where the entire community in a particular area took an active interest and contributed funds for the purpose of creating ‘a trust fund’ for establishing a school. A committee was formed for collecting funds. Utilising that fund the school building was constructed. Subsequently a society was formed and registered under the Societies Registration Act for the purpose of management of the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench of the Kerala High Court held as under:

“If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character.”

Strict English Principles as to Trust, Not Accepted by Indian Law

According to strict English principles, there should be duel ownership upon a trust property; i.e., the legal ownership which is vested with the trustees; and the equitable or beneficial ownership, vested with the beneficiaries.[105] But, Law on Trust in India as expounded by judicial decisions does not recognise legal and equitable ownership, in both public and private trusts. The courts in India confer beneficial interest[106] alone upon the beneficiaries.[107]

Under the orthodox English view of trust, the trust property should be one which is capable of being transferred in favour of the beneficiaries. Since the property of a society does not go at par with the aforesaid English proposition, it can be demonstrated that properties of both registered and unregistered societies are not impressed with characteristics of ‘trust’ in its strict sense.

In Incorporated Body or Club, Trustees Act as Agents

The Supreme Court in Young Men’s India Association case[108] it was observed:

“… The difficulty felt in the legal property ordinarily vesting in the trustees of the members’ club or in the incorporated body was surmounted by invoking the theory of agency, i.e., the club or the trustees acting as agents of the members. ….. What was essential was that the holding of the property by the agent or trustee must be a holding for and on behalf of and not a holding antagonistic to the members of the club. …. The final conclusion of the High Court in the judgment under appeal was that the case of each club was analogous to that of an agent or mandatory investing his own moneys for preparing things for consumption of the principal, and later recouping himself for the expenses incurred. As no transaction of sale was involved there could be no levy of tax under the provisions of the Act on the supply of refreshments and preparations by each one of the clubs to its members.”

Directors of a Company, to Some Extent Trustees

In Piercy Vs. S. Mills and Co. Ltd.[109] their Lordships observed:

“I cannot look upon the Directors otherwise than as trustees for a public Company, and I must judge of the propriety of their conduct in this matter on the ordinary principle applicable to cases of trustee and cestuique trust. If shares are issued with indecent haste and scramble ………for a different purpose, I have no doubt that the Court will interfere to prevent so gross a breach of trust. If they were issued with the immediate object of controlling the holders of greater number of shares in the Company and of obtaining the necessary statutory majority for passing a special resolution, then it will not be valid or bona fide exercise of power.”[110]

In V S RamaswamyIyer Vs. Brahmayya and Company Official Liquidators Hanuman Bank Limited[111] the Madras High Court referred to various English authorities and pointed out that the directors of a company are not, properly speaking, trustees; yet they have always been considered and treated as trustees of money which comes to their hands. The High Court observed that the law in India regarding the nature of the liability of directors has not been different.

The Court referred to:

Palmer’s Company Law: “Directors are not only agents, but they are in some sense and to some extent trustees or in the position of trustees, but their position differs considerably from that of ordinary trustees, and the strict rules applicable to such trustees do not apply in all respects to directors. “

Charitable Corporation Vs. Sutton:[112] “The directors are persons selected to manage the affairs of the company for the benefit of the shareholders it is an office of trust, which, if they undertake, it is their duty to perform fully and entirely. A resolution by shareholders therefore, that shares or any other species of property shall be at the disposal of directors, is a resolution that it shall be at the disposal of trustees in other words, that the persons entrusted with that property shall dispose of it, within the scope of the functions delegated to them, in the manner best suited to benefit their cestuique trust. “

York and North Midland Ry. Vs. Hudson[113]

G.E. Ry. Vs. Turner:[114] “The directors are the mere trustees or the agents of the company: trustees of the company’s money and property agents in the transaction which they enter into on behalf of the company.”

In Re Forest of Dean Co.: “…….directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control…… For most purposes it is sufficient to say that directors occupy a fiduciary position and all the powers entrusted to them are only exercisable in this fiduciary capacity. ” [115]

Buckley on the Companies Acts: “The directors of a company fill a double character. They are (i) agents of the company, and (ii) trustees for the shareholders of the powers committed to them. …. . The assets of the company are entrusted to the directors to be applied for certain defined objects, and they are responsible as for a breach of trust if they apply them to other objects.”

Halsbury’s Laws of England: “A director who has misapplied or retained or become liable or accountable for any money or property of the company, or who has been guilty of nay breach of trust in relation to the company must make restitution or compensate the company for the loss. Where the money of the company has been applied for purposes which the company cannot sanction, the directors must replace it, however honestly they may have acted. The estate of a deceased director has always been liable for his breaches of trust. “

Gore-Browne, Handbook of Joint Stock Companies: “In the case of the death of a director his estate remains liable for any breach of trust he may have committed (including any wrongful dealing with the company’s property, such as a payment of dividend out of capital or sale of its assets at an undervalue)…. ….. In regard to actions for deceit and other wrongs, the principle actiopersonalismoritur cum persona may be mentioned. Under this principle, with regard to actions for wrongs, independent of contract, done either to or by a deceased person in his lifetime, his legal personal representative could neither sue nor be sued. This is still so in some cases, e.g., defamation. Even at common law this principle is subject to the modification that where loss results to the estate of the extent of the loss or profit. “

Flitcroft’s case:[116] “They are trustees for the company, nor for the individual shareholders. The liquidator represents the company, and is bound to discharge towards the creditors all the duties which the company owes them. It is therefore his duty when such a breach of trust as this is discovered to get a return of the assets improperly expended that they may be applied in payments of debts. The act of the directors is impeached as a breach of trust, not on the ground of tort or misfeasance. There are persons who may be made liable under section 165, without having been guilty of a breach of trust but where the person charged under that section is a trustee, the act which brings him within the section is a breach of trust”

Ramskill Vs. Edwards[117]

In Re Faure Electric Accumulator Company:[118]“ With respect to the capital of the company which is under their management, it has been said that they are `quasi-trustees’ for the company: Flitcroft’s case 1882 L.R. 21 Ch(D) 519. In that and other respects they are, `to a certain extent, trustees’ (Lindley on Partnership). In the language of Lord Romilly, in York and North Midland Ry. Co. Vs. Hudson 1845 16 Beav.485, `The directors are persons selected to manage the affairs of the company, for the benefit of the shareholders it is an office of trust, which, if they undertake, it is their duty to perform fully and entirely.’ They certainly are not trustees in the sense of those words as used with reference to an instrument of trust, such as a marriage settlement or a will. One obvious distinction is that the property of the company is not legally vested in them. Another and perhaps still broader difference is that they are the managing agents of a trading association, and such control as they have over its property, and such powers as by the constitution of the company are vested in them, are confided to them for purposes widely different from those which exist in the case of such ordinary trusts as I have referred to, and which required that a larger discretion should be given to them. Perhaps the nearest analogy to their position would be that of the managing agent of a mercantile house to whom the control of its property and very large powers for the management of its business are confided but there is no analogy which is absolutely perfect. Their position is peculiar because of the very great extent of their powers and the absence of control, except the action of the shareholders of the company.”

Concha Vs. Murrieta:[119] “It is true that no action for a tort can be revived or commenced against the representatives of the person who committed it but the case is quite different where the act is not a mere tort, but is a breach of a quasi-contract, where the claim is founded on breach of a fiduciary relation, or on failure to perform a duty. Here the father, though I do not call him a trustee, was in a position in which he owed duties of a fiduciary character to his daughter. In the very careful judgment of Lord Justice Bowen in Philips Vs. Homfray 1883 L.R. 24 Ch(D) 439, cases depending on breach of contract, express or implied, are excepted from the judgment. Here there is what we call a quasi-contract, the law implying a contract that a man will faithfully perform the duties which he has undertaken. Juan Jose Concha undertook a duty in consequence of his position, and losses arising from his breach of it can be followed up against his estate. “

In Re Lands Allotment Company:[120] “Then, if it was an improper transaction, all those directors who were parties to this improper investment, for in this point of view it was improper, would naturally and obviously be liable to make good the money……We are asked to say that the directors are liable for these moneys upon the footing that they committed a breach of trust, but that they are not entitled to the benefit of the Statute of Limitations which was passed for the benefit of trustees. I cannot be a party to any decision so supremely absurd. Although directors are not properly speaking trustees, yet they have always been considered and treated as trustees of money which comes to their hands or which is actually under their control and ever since joint stock companies were invented directors have been held liable to make good moneys which they have misapplied upon the same footing as if they were trustees, and it has always been held that they are not entitled to the benefit of the old Statute of Limitations because they have committed breaches of trust and are in respect of such moneys to be treated as trustees.. …….. Now, case after case has decided that directors of trading companies are not for all purposes trustees or in the position of trustees, or quasi-trustees, or to be treated as trustees in every sense but if they deal with the funds of a company, although those funds are not absolutely vested in them but funds which are under their control, and deal with those funds in a manner which is beyond their powers, then as to that dealing they are treated as having committed a breach of trust. I do not believe that there has ever been any deviation from the language of the late Sir George Jessel in the case of In re Forest of Dean Coal Mining Company 1878 L.R. 10 Ch(D) 450. Sir George Jessel said this `Directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control, but they are not trustees of a debt due to the company.’ So that, when they get assets of the company under their control, or into their hands, and deal with them in a way which is beyond the powers of the company, they are liable as for a breach of trust. “

Implied Trust in Sec. 82 & 94 Applied in a Proposed Society

In Ramchandra Krishna Yadav Vs. Sakharam Gangaram Mali[121] it is observed that an elected Chairman of a proposed society, and who admits that he was a leader of the villagers, collected various amounts from the proposed members and purchased the land out of that amount, was in the position as trustee qua the proposed members of the society and must hold the property for their benefit.

Applying Sec. 82 and 94 of the Indian Trusts Act, it was observed that implied trust is created though there was no express trust and no trust deed as such. Section 82 of the Act says that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee he must hold the property for the benefit of the person paying or providing the consideration. What are called ‘express trusts’ in English Courts are called merely ‘trusts’ in the Indian Trusts Act and are dealt with therein under Sections 4 to 79; while what are called ‘constructive or implied trusts’ in English Law are called “obligations in the nature of trust” and are dealt with in Chapter IX containing Sections 80 to 96 of the Indian Trusts Act.

Church: Voluntary Association & Religious Trusts

The word ‘church’ is used to denote, generally, two ideas: voluntary association of Christians and place where persons regularly assemble for worship. Halbury’s Laws of England[122] gives the meaning of ‘Church’ as under:

“Church, when used in relation to a religious body, has two distinct meaning; it may mean either the aggregate of the individual members of thechurch or it may mean the quasi-corporate institution which carries on the religious work of the denomination whose name it bears.”

Blacks Law Dictionary defines church as under:

“Church. In its most general sense, the religious society founded and established by Jesus Christ, to receive, preserve, and propagate His doctrines and ordinances. It may also mean a body of communicants gathered into church order; body or community of Christians, united under one form of government by the profession of the same faith and the observance of the same ritual and ceremonies; place where persons regularly assemble for worship; congregation; organization for religious purposes; religious society or body; the clergy or officialdom of a religious body.”

It is observed in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma[123] as under:

“A church is formed by the voluntary association of individuals. And the churches in the commonwealth are voluntary body organised on a consensual basis their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognized. ……”

Two (Kinds of) “Trusts” over the Parish or Branch Property

One Property, Several Trusts Possible

Trust is a general term used in wider sense in law. Therefore –

If a property is acquired by a branch of a larger body, or a parish of a Church, the entire members of the larger body, from time to time, will be presumed to be the owners, subject to (i) the byelaws of the (entire) association or trust and (ii) the purposes or objectives ‘aimed to achieve’ by that particular property.
If the bylaws (expressly or by necessary implication) provides for special beneficial enjoyment by the members of the branch or parish, over the branch/parish properties, definitely there will be two (kinds of) “trusts” over the same property – one, trust for the beneficial enjoyment of whole body; and the other, for the members of the branch/parish.

Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?

Can entre members put an end to the society?

The ownership of the property of a registered society vests in its members subject to the fundamental principles upon which it is founded[124] and the provisions of the Act under which it is registered.

It is not open for the majority of the members of a society to alter the fundamental principles upon which it is founded unless such a power is specifically reserved under the bye laws.[125] If a public or permanent trust is predicated by the founders or by the bye laws, the entire members of an unregistered society of a particular time cannot put an end to the society and appropriate its property.

Intention of Founders & Basic Principles, Paramount

Underhill, in his treatise, ‘Law of Trusts and Trustees’, explained it thus:

“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the Association for the time being. The members for the time being cannot under the Association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the Association for the time being”.[126]

Sec. 92 CPC is Not Attracted to Matters of a Society

Because, there will be no ‘dedication’ of “property belonging to a society”

Sec. 92 CPC envisages ‘express or constructive trust created for public purposes of a charitable or religious nature’. This requirement is brought home only when there is dedication of property. That is, unless there is an ‘express or constructive’ public trust founded by explicit ‘express or constructive’ dedication of the property divesting the rights of former owner over the same, ‘for public purposes of a charitable or religious nature’, Sec. 92 CPC is not attracted.

The characteristic distinguishing factor between a “Private Trust” and “Public Trust” is that in the former, beneficiaries are defined and ascertained individuals; but, in the latter, the beneficial interest must be vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it, answering particular description. Normally, there will be no explicit ‘express or constructive’ dedication of the ‘property belonging to a society’, divesting the rights of the society, ‘for public purposes of a charitable or religious nature’ (even if the society itself is formed for charitable and religious purposes); and therefore, Sec. 92 CPC will not be attracted to the ‘property belonging’ to the societies. A society has to use its property for its own purposes[127] and it will only be the property of the Society alone;[128] and it will not be a property in respect of which it is possible to predicate a public trust[129] as envisaged in Sec. 92 CPC.[130] The same will be the position of Non-Trading-Companies also.[131]

In ‘Abhaya’ a Society Vs. Raheem,[132] while dealing whether Sec. 92 CPC is attracted to the affairs of a registered society, it is pointed out that to constitute a trust there must be author, trustees, beneficiary, trust property and beneficial interest.

It is also clear from the wordings of Sec. 92 CPC that express or constructive trust in its ‘strict sense’ is envisaged in Sec. 92; and not trust in its ‘wider or general sense’ so as to include all ‘fiduciary relationships’.[133] Section 92 CPC is held out on the principles of ‘parenspatriae’, once a trust always a trust,[134] and the court is the protector of all charities.[135]

In Pragdasji Vs. Ishwarlalbhai[136] our Apex Court pointed out that a suit under Sec. 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character and that it must pray for one or other of the reliefs that are specifically mentioned in the Section. It is only when these conditions are fulfilled; a suit could be brought under Sec. 92.

Section 92 CPC does not specifically make any provision to remove the persons in management of the society and to appoint new managing body.

Majority of an Association Cannot Alter Fundamental Principles

The fundamental principles upon which a trust is founded cannot be varied. Therefore, the courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created. The trust properties will not be allowed to be sold even to the members of their community for whose benefit the trust is created and the properties were acquired.[137] This principle in Milligan Vs. Mitchel,[138] Attorney General Vs. Anderson[139] and Free Church of England Vs. Overtoun[140] is referred to in Prasanna Venkitesa Rao Vs. Srinivasa Rao.[141]

In Free Church of England Vs. Overtoun the House of Lords (by a majority of 5-2) found that the minority was entitled to the assets of the Free Church. It was observed that when men subscribe money for a particular object, and leave it behind them for the promotion of that object, their successors have no right to change the object endowed. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.

S. 88 & 95 of Trusts Act Encompass Govg. Bodies of Societies

Section 88 of the Indian Trusts Act expressly refers to director of a company. Though they are not express trustees, with respect to their duties, the Indian Trusts Act, 1882 takes the position of ‘executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person’ to that of trustees, in Chapter IX (Section 80 onwards) of the Indian Trusts Act. Their office is fiduciary in character.[142] They are bound by the directives in Sec. 88.

Sec. 88 of the Indian Trusts Act, 1882 reads as under:

88. Advantage gained by fiduciary: Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person, and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.

It is legitimate to comprehend that the words ‘or other person’ in Sec. 88 of the Indian Trusts Act encompass the governing bodies of societies and clubs also. By virtue of Sec. 95 of the Indian Trusts Act it is further clear that the principles and incidents of ‘trust’ are impressed upon the property held by societies and clubs also.

Sec. 95 of the Indian Trusts Act reads as under:

95. Obligator’s duties, liabilities and disabilities: The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it ….. “

Read Blogs:Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
- Suits By or Against Trusts and Trustees
- Remedies Under Sec. 92 CPC
Law on Hindu Religious Endowments
- Philosophy of Idol Worship
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
- Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
- Sabarimala Review Petitions & Reference to 9-Judge Bench
- SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
General

[1] Sp. Relief Act, 1963 [Sec. 2(a)] defines: “‘obligation’ includes every duty enforce by law’.

[2] Duli Chand Vs. Mahabir Pershad Trilok Chand Charitable Trust: AIR 1984 Del 144; Ramdass Trust Vs. Damodardas 1967 Raj LW 273; It is referred to in Sagar Sharma Vs. Additional Commissioner of Incometax: 2011-239 CTR 169: 2011-336 ITR 611. See al so: Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483: [1963] 50 ITR 798 (Mad); Kishorelal Asera Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC 367. [It is quoted in Thanthi Trust Vs. Wealth Tax Officer: (1989) 78 CTR 54: (1989) 45 TAXMAN 121: (1989) 178 ITR 28; Sambandam Died Vs. Nataraja Chettiar: 2012-1 Mad LW 530].

[3] Sec. 6 of the Indian Trusts Act, 1882, reads as under: “Creation of trust: Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.”

[4] Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483

[5] Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483. It is quoted in Thanthi Trust Vs. Wealth Tax Officer: (1989)78 CTR 54: (1989) 178 ITR 28. See also: Kishorelal Asera Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC 367.

[6] Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre: AIR 2010 SC 2943

[7] Yogendra Nath NaskarVs. Commissioner of Income Tax, Calcutta: AIR 1969 SC 1089.

[8] Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: (2013) 15 SCC 394.

[9] Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458

[10] That is, ‘proprietary interest’ or interest pertaining to owner.

[11] Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458; Dharam Dutt Vs. Union of India: AIR 2004 SC 1295.

[12] AIR 1958 A P 773: See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515.

[13] Quoted in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001- Para 69.

[14] Governing body is defined in Sec. 16 as under: The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

[15] 12^th Edition, Page 326

[16] IV Edition, Vol. 6, Para 205

[17] Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760. Followed in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: (2013) 15 SCC 394.

[18] Board of Trustees, Ayur. & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458; Pamula Pati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of A P: AIR 1958 A P 773.

[19] Sec. 5 reads: “Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”

[20] Board of Trustees, Ayur & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458

[21] Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394.

[22] Pamula Pati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of A P: AIR 1958 A P 773. See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515.

[23] Sukumaran Vs. Akamala Sree Dharma Sastha Idol: AIR 1992 Ker 406

[24] Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86

[25] Amrithakumari Vs. VP Ramanathan 1999 (1) CCC 238 (Ker). Followed in ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233.

[26] Balram Chunnilal Vs. Durgalal Shivnarain : AIR1968 MP 81. RV Sankara Kurup Vs. Leelavathy Nambiar (AIR 1994 SC 2694

[27] M R Goda Rao Sahib Vs. State of Madras: A. I. R. 1966 S. C. 653; Ram Charan Das Vs. Mst. Girjanandani Devi AIR 1959 All. 473. Shri Ram Kishan Mission Vs. Dogar Singh AIR 1984 All 72; See also: S. Shanmugam Pillai Vs. K. Shanmugam Pillai AIR 1972 SC 2069; Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.

[28] It is trite law that if a thing is prescribed to be done in a particular way, it can be done in that way alone, and by no other way. See: Nazir Ahmed case: AIR 1936 PC 253; Indian National Congress (I) Vs. Institute of Social Welfare AIR 2002 SC 1258; Supreme Court Bar Association Vs. The Registrar of Societies ILR 2012-22-Dlh-1031; Patna Improvement Trust Vs. Smt. Lakshmi Devi: 1963 SCR Supp. 812; State of Bihar Vs. J.A.C. Saldanha (1980) 1 SCC 554: AIR 1980 SC 326; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782; (2013) 15 SCC 394.

[29] Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86. Followed G. Chikka Venkatappa Vs. D. Hanumandappa (1970(1) My. LJ.

[30] See: Comner. of HRE Board Vs. Vinayakar AT Sabha: AIR 1953 Mad 407.

[31] G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196; Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86.

[32] Sec. 5 reads: “Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”

[33] G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196

[34] Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86. Followed G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196.

[35] Board of Trustees, Ayur. & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458; Siddheshwar Sahkari Sakhar Karkhana Vs. Commr. of IT, Kolhapur: AIR 2004 SC 4716; Hyderabad Karnataka Education Society Vs. Registrar of Societies: AIR 2000 SC 301; Co- op. Central Bank Vs. Addl. Industrial Tribunal, Andhra Pradesh: AIR 1969 SC 245; Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn Ltd. : AIR 1971 SC 422; Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973.

[36] Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar: AIR 2005 SC 2306; State Bank of India Staff Association Vs. Mohindra Bhattacharyya: AIR 1991 Cal 378.

[37] Salmond on Jurisprudence: 12^th Edition, Page 326.

[38] Balram Chunnilal Vs. Durgalal Shivnarain : AIR 1968 MP 81. RV Sankara Kurup Vs. Leelavathy Nambiar (AIR 1994 SC 2694;

[39] See notes below: Sec. 88 & Governing Bodies of Societies and Clubs.

[40] Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State: AIR 1962 SC 458. [Dennis Lloyd, ‘Law relating to Unincorporated Associations’ (1938 Edn) quoted.]

[41] Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458– Para 23.

[42] AIR 1958 A P 773: See: also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515.

[43] See Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma: AIR 1994 Ker. 107.

[44] C Chikka Venkatappa Vs. D Hanumanthappa: 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14: Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915.

[45] BijiPothen Vs. Thankamma John: 2012(3) Ker LT 658

[46] See: Narayandas Shreeram Somani Vs. Sangli Bank Ltd. AIR 1966 SC 170; See also: Seth Mohan Lal Vs. Grain Chambers Ltd., Muzaffarnagar: AIR 1968 SC 772; Shackleton on the Law and Practice of meetings, 7th edition (1983), Page 230

[47] AIR 2012 SC 1987. Relied on Central Board of Secondary Education Vs. Adiya Bandopadhyay: (2011) 8 SCC 497

[48] Bonnerji Vs. Sitanath: 49 IA 46: Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11.

[49] AIR 1974 SC 1084. See also: Kishore Joo Vs. Guman Behari Joo Deo: AIR 1978 All 1; HEH The Nizams Pilgrimage Money Trust Vs. Commr of IT AP: AIR 2000 SC 1802; Bonnerji Vs. Sitanath 49 IA 46: Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11; Sk. Abdul Kayum Vs. Mulla Alibhai : AIR 1963 SC 309. See: also: Shivramdas Vs. B V Nerukar, AIR 1937 Bom 374, Rambabu Vs. Committee of Rameshwar, (1899) 1 Bom LR 667; Nathiri Menon Vs. Gopalan Nair, AIR 1916 Mad 692.

[50] Bonnerji Vs. Sitanath: 49 IA 46: Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11.

[51] Balram Chunnilal Vs. Durgalal Shivnarain: AIR1968 MP 81.

[52] Balram Chunnilal Vs. Durgalal Shivnarain: AIR1968 MP 81.

[53] Salmond on Jurisprudence: 12^th Edition, page 257.

[54] AIR 1994 SC 2694

[55] 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394

[56] AIR 2005 SC 2544: 2005 (10) SCC 760.

[57] Quoted in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394.

[58] AIR 1958 AP 773: See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515; Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392.

[59] Sec. 6 of the Indian Trust Act requires ‘transfer’ for formation of a trust.

[60] See Note hereunder: “Can a Society or Corporation be a Trustee?”

[61] AIR 2005 SC 2544: 2005 (10) SCC 760.

[62] See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544. Followed in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: (2013) 15 SCC 394.

[63] See note below: Apparent Incongruity in Sec. 5 and 16 Explained.

[64] AIR 2005 SC 2544: 2005 (10) SCC 760

[65] 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394

[66] Deoki Nandan Vs. Murlidhar: AIR 1957 SC 133; Commissioner of Endowments Vs. Vittal Rao: AIR 2005 SC 454; Bala Shankar Maha Shanker Bhattjee Vs. Charity Comr Gujarat State: AIR 1995 SC 167, Jammi Raja Rao Vs. Anjaneya Swami Temple Valu: AIR 1992 SC 1110, Radhakanta Deb Vs. Comr of Hindu Religious Endowments Orissa: AIR 1981 SC 798, Commissioner For Hindu Religious And Charitable Endowments Mysore Vs. Ratnavarma Hegade: AIR 1977 SC 1848, Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan Vs. Charity Commissioner State of Bombay : AIR 1976 SC 871; Mahant Shri Srinivas Ramanuj Das Vs. Surajnarayan Das: AIR 1967 SC 256

[67] Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760.

[68] Sec. 15 reads: “Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations….”

[69] Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86; See also: C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233.

[70] See Notes Hereunder: Church of North India Vs. Lavajibhai Ratanjibhai

[71] Re St. Leonard (1884) 10 A.C. 304

[72] Settikara Venkatarama Chettiar Vs. Opdamodaram Chettiar: LAWS(PVC) 1925-11-220.

[73] Ananda Chandra Chuckerbutly Vs. Braja Lal Singh (1922) I.L.R. 50 C. 292; Re St. Leonard (1884) 10 A.C. 304; Settikara Venkatarama Chettiar Vs. Opdamodaram Chettiar: LAWS(PVC) 1925-11-220.

[74] Thenappa Chettiar Vs. N S Kr Karuppan Chettiar: AIR 1968 SC 915

[75] (1855) 43 E.R. 638

[76] Quoted in: Settikara Venkatarama ChettiarVs. OP Damodaram Chettiar: AIR 1926 Mad 1150: (1926) 51 MLJ 457.

[77] Sukumaran Vs. Akamala Sree Dharma Sastha Idol: AIR 1992 Ker 406

[78] 1999 (1) CCC 238 (Ker.)

[79] 1996 (1) L.W. 533. Referred to in Kishorelal Asera Vs. Haji Essa Abba Sait Endowments : 2003-3 Mad LW 372: 2003-3 CCC367.

[80] Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458: Para 11.

[81] See: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212.

[82] Prasanna Venkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12: Milligan Vs. Mitchel: 40 ER 852; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See also: Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547).

[83] See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544; Vinodkumar M. Malavia Vs. Maganlal Mangaldas: 2013 AIR (SCW) 5782; (2013) 15 SCC 394. See also: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212.

[84] Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SC)(CIV) 2849; 2013 AIR (SCW) 5782; (2013) 15 SCC 394.

[85] Abdul Kayua Vs. Alibhai: AIR 1963 SC 309: Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982-1 Del 11.

[86] Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392.

[87] AIR 1970 MadhPra 23(FB)

[88] AIR 2007 SC 3162

[89] It is referred to in Mandal Revenue Officer Vs. Goundla Venkaiah: AIR 2010 SC 744

[90] Rotopacking Materials Industry Vs. Ravider Kumar Chopra: 2003(6) BCR 6; Smt. Parul Bala Roy Vs. Srinibash Chowmal: AIR 1952 Cal 364; Referred to in Arun Kumar Mitra Vs. Gorachand Saheb Sekh Abdul: AIR 2005 Cal 178.

[91] Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; P. Mdhadevayya v. G. Mallikarjuniah: 53 Mys. HCR 167; Referred to in C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296.

[92] ChHoshiar Singh Mann Vs. Charan Singh 2009-162 DLT 208 : ILR 2009-19 Dlh 265]; See also: I Nel Son Vs. Kallayam Pastorate AIR 2007 SC 1337

[93] CK Rajan Vs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179 [Appeal Judgment: AIR 2004 SC 561: (2003) 7 SCC 546]; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915 ; Ch Hoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265; I Nel Son Vs. Kallayam Pastorate: AIR 2007 SC 1337; Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309; Subramonia Pillai Chellam Pillai Vs. Subramonia Pillai Chathan Pillai: AIR 1953 TC 198; M.G. Narayanaswami Naidu Vs. M. Balasundaram Naidu: AIR 1953 Mad 750.

[94] Swami Shivshankargiri Chella Swami Vs. SatyaGyan Nikethan: AIR 2017 SC 1221.

[95] AIR 2005 SC 2544: 2005 (10) SCC 760.

[96] (2013) 15 SCC 394; 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849.

[97] See: also: The Commissioner, Hindu Religious Endowments, Madras Vs. Sri LakshmindraThirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282; Ratilal Panachand Gandhi Vs. State of Bombay AIR 1954 SC 388.

[98] (2013) 15 SCC 394; 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849.

[99] Quoted in: B. Ramachandra Adityan Vs. Educational Trustee Co. (P.) Ltd.: 2003-113 Comp Cases 334.

[100] AIR 2005 SC 2544: 2005 (10) SCC 760.

[101] LAWS(DLH) 2018 7 484

[102] Keshava Panicker Vs. Damodara Panicker AIR 1976 Ker 86; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296.

[103] Eg. A temple or a math or Guru Granth Sahib, revered in a Gurudwara.

[104] Keshava Panicker Vs. Damodara Panicker AIR 1976 Ker 86

[105] Salmond on Jurisprudence: Eleventh Edition, page 307

[106] Note: Not the ‘proprietary interest’ or interest pertaining to owner; it is the interest pertaining to beneficiaries.

[107] See: Chhatra Kumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887; Commissioner of Wealth Tax Vs. Kripashankar: AIR 1971 SC 2463, Bai Dosabai Vs. Mathuradas: AIR 1980 SC 1334; Bomi Munchershaw Mistry Vs. Kesharwani Co Op Housing Society: 1993-2-BCR-301; Hem Chandra Vs. SuradhamDebya: AIR 1940 PC 134.

[108] Harbour Division II, Madras Vs. Young Men’s Indian Association, Madras: AIR 1970 SC 1212

[109] (1920) 1 Ch. 77.

[110] Quoted in Kalinga Tubes Ltd Vs. Shanti Prasad Jain: AIR 1963 Ori 189.

[111] 1966-36 Comp. Cases 270: 1966-1 Mad LJ 234.

[112] 1742-2 Atk. 400

[113] 1853 16 Beav. 485

[114] 1872 L.R. 8 Ch. 149

[115] 1878 (10) Ch(D) 450:

[116] 1882 (21) Ch(D) 519:

[117] 1885 Ch(D) 100

[118] 1889 L.R. 40 Ch(D) 141:

[119] 1889 L.R. 40 Ch(D) 543

[120] 1894 L.R. 1 Ch(D) 616

[121] 1996-1 ALLMR 338

[122] 4th Edition

[123] AIR 1995 SC 2001.

[124] See Cha Pter: ‘Vesting of Property’.

[125] PrasannaVenkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12 ; Milligan Vs. Mitchel: 40 ER 852 ; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See: also: Profulla Chorone RequitteVs. Satya Chorone Requitte: AIR 1979 SC 1682. Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547).

[126] Quoted in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001- Para 69.

[127] ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233.

[128] Keshava Panicker Vs. Damodara Panicker:AIR 1976 Ker 86. See: also: C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233.

[129] See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762

[130] Section 6 of the Indian Trusts Act, 1882 reads as under: “6. Creation of trust. – Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust -property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust – property to the trustee.”

[131] See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762

[132] AIR 2005 Ker 233

[133] The ‘wider’ or ‘general’ expression as to ‘trust’, used by the progressive jurists, is adopted in the Societies Registration Act.

[134] See Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C ChackoVs. Annamma: AIR 1994 Ker. 107 .

[135] C Chikka Venkatappa Vs. D Hanumanthappa: 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14: Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915.

[136] AIR 1952 SC 143. Also See: HarendraNathVs. Kali Ram Das: AIR 1972 SC 246.

[137] Pragji Savji VajaVs. Chhotalal Narsidas Parmar: AIR 2014-3 Bom R 211: 2013-6 BCR 72. See also: AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC 3162; Mandal Revenue Officer Vs. GoundlaVenkaiah: AIR 2010 SC 744; Doongarsee Shyamji Vs.Tribhuvan Das: AIR 1947 All 375; Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296: Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; CK Rajan Vs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179 [Appeal Judgment: AIR 2004 SC 561: (2003) 7 SCC 546].

[138] 40 ER 852

[139] (1888) 57 LJ Ch 543

[140] (1904) AC 515

[141] AIR 1931 Mad. 12

[142] V S Ramaswamy Iyer Vs. Brahmayya: 1966-36 Comp Cases 270, 1966-1 Mad LJ 234.

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