Author Archives: sajikoduvath

Suggestion made by the Defence Counsel to a Witness in Cross-Examination may Bind the Accused

Saji Koduvath, Advocate, Kottayam.

Overview

1. A concession or Admission of a fact by a defence counsel would bind on his client. In criminal trials, suggestions in cross-examination may take the position of ‘pleadings’ in civil cases.
2. In a civil trial, it is not required to put its case to the witness, as pleadings already exist.
3. The probative value of suggestions and admissions made during cross-examination varies depending on the specific facts and context of each case, and admission in cross-examination varies depending on the facts of each case.
4. In civil proceedings, where pleadings are well-defined and play a central role in shaping the issues, such suggestions or admissions by counsel during cross-examination (as regards the pleaded matters) may carry less weight. In contrast, in criminal trials, where the stakes are higher and such admissions or suggestions can hold greater evidentiary significance.

Section 15 of the Bharatiya Sakshya Adhiniyam (Indian Evidence Act, 1872, Section 17) defines an admission as a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, made by a party to the proceeding.

  • Therefore, technically, a question posed by counsel can be a “statement” under this section.

Suggestions by the Defence Counsel can be Relied Upon

In Shoor Singh v. State of Uttarakhand, AIR 2024 SC 4551, while considering whether the necessary ingredients of dowry death have been proved beyond a reasonable doubt, and whether the presumption under Section 113-B of the Evidence Act would not be available to the prosecution, the court considered the case of the defence from the cross-examination of prosecution witnesses. The court said as under:

  • “Suggestion was given to the prosecution witnesses, and statement was also made under Section 313 CrPC, that the deceased used to remain depressed for being unable to join her husband at the place of his posting due to lack of residential quarter…. “

In Balu Sudam Khalde v. State of Maharashtra, Sudhanshu Dhulia, J.B. Pardiwala, JJ., AIR 2023 SC 1736; 2023-13 SCC 365, our Apex Court held that suggestions made to the witness by the defence counsel can be relied upon by the Court. The Court said as under:

  • 38. Thus, from the above it is evident that the suggestion made by the defence counsel to a witness in the cross-examination if found to be incriminating in nature in any manner would definitely bind the accused and the accused cannot get away on the plea that his counsel had no implied authority to make suggestions in the nature of admissions against his client.
  • 39. Any concession or admission of a fact by a defence counsel would definitely be binding on his client, except the concession on the point of law. As a legal proposition we cannot agree with the submission canvassed on behalf of the appellants that an answer by a witness to a suggestion made by the defence counsel in the cross-examination does not deserve any value or utility if it incriminates the accused in any manner.
  • 40. It is a cardinal principle of criminal jurisprudence that the initial burden to establish the case against the accused beyond reasonable doubt rests on the prosecution. It is also an elementary principle of law that the prosecution has to prove its case on its own legs and cannot derive advantage or benefit from the weakness of the defence. We are not suggesting for a moment that if prosecution is unable to prove its case on its own legs then the Court can still convict an accused on the strength of the evidence in the form of reply to the suggestions made by the defence counsel to a witness. Take for instance, in the present case we have reached to the conclusion that the evidence of the three eyewitnesses inspires confidence and there is nothing in their evidence on the basis of which it could be said that they are unreliable witnesses. Having reached to such a conclusion, in our opinion, to fortify our view we can definitely look into the suggestions made by the defence counsel to the eyewitnesses, the reply to those establishing the presence of the accused persons as well as the eyewitnesses in the night hours. To put it in other words, suggestions by itself are not sufficient to hold the accused guilty if they are incriminating in any manner or are in the form of admission in the absence of any other reliable evidence on record. It is true that a suggestion has no evidentiary value but this proposition of law would not hold good at all times and in a given case during the course of cross-examination the defence counsel may put such a suggestion the answer to which may directly go against the accused and this is exactly what has happened in the present case.
  • 41. The principle of law that in a criminal case, a lawyer has no implied authority to make admissions against his client during the progress of the trial would hold good only in cases where dispensation of proof by the prosecution is not permissible in law. For example, it is obligatory on the part of the prosecution to prove the post mortem report by examining the doctor. The accused cannot admit the contents of the post mortem report thereby absolving the prosecution from its duty to prove the contents of the same in accordance with law by examining the doctor. This is so because if the evidence per se is inadmissible in law then a defence counsel has no authority to make it admissible with his consent.
  • 42. Therefore, we are of the opinion that suggestions made to the witness by the defence counsel and the reply to such suggestions would definitely form part of the evidence and can be relied upon by the Court along with other evidence on record to determine the guilt of the accused.

Suggestions in Cross-Examination Could be taken into account

The Kerala High Court, in A. K. Ali v. C. H. Mammuty, 1989 CrLJ 1820, opined that a suggestion made in the cross-examination of witnesses, though not binding on the accused as admissions, those suggestions in cross-examination and statements of the accused given when questioned under S.313 could be taken into account for ascertaining the bona fides of the contentions.  

Admission for No challenge in Cross Examination

In Srichand and Shivan Das v. The State, 1985-28 DLT 360, the Delhi High Court held as under:

  • “6…. The law is well settled that where the evidence of a witness is allowed to go unchallenged with regard to any particular point it may safely be accepted as true ….”.

Purport of Cross-examination is not to give Suggestions

The Delhi High Court held in Sher Mohammad v. Mohan Magotra (Rajiv Sahai Endlaw, J.), 2013-202 DLT 708; 2013 SCC OnLine Del 2530, as under:

  • “However, I am of the opinion that in a civil trial which is based on pleadings, there is no need for such suggestions to be given. The respondent in his written statement had already denied the said payment and it was for the appellant to prove the same. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. … The purport of cross-examination is to challenge the testimony and/or to falsify the witness or his creditworthiness, and not to give suggestions to the effect that each and every deposition in examination-in-chief is false. Similarly, a party in a civil trial is not required to in cross-examination, put its case to the witness as the same as aforesaid already exists in the pleadings.” (Note: Not followed in Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708.)

The Delhi High Court, subsequently, in Sa v. Aa, 2016 SCC OnLine Del 1818 (taking note of Srichand and Shivan Das v. The State, 1985-28 DLT 360) preferred not to follow Sher Mohammad v. Mohan Magotra , 2013-202 DLT 708; 2013 SCC OnLine Del 2530. It is held that non-cross-examination of a witness on a suggestion will not be so serious as in a criminal case (for there are pleadings).

  • It appears that even the above view in Srichand and Shivan Das v. The State, 1985-28 DLT 360, is not the correct proposition of law, especially in view of Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.
  • It appears that the following may be the correct legal position – in civil matters, where pleadings are well-defined and play a central role in shaping the issues, such suggestions or admissions by counsel during cross-examination, as regards the pleaded matters, may carry less weight.

Suggestion or Admission in Cross-Examination –  Evidentiary Value

Suggestion and admission in cross-examination being come in ‘appreciation of evidence’, probative value of the same is a matter for the court, and it varies depending on the facts of each case. The principle involved therein is consistent – that is, truth should prevail.

There being well-defined pleadings as Plaint and Written Statement in civil cases, they get prime importance in determining the case of parties to civil cases. Therefore, the suggestion or admission in cross-examination (by the advocate) has no importance as that in a criminal case.

In Tarun Bora alias Alok Hazarika v. State of Assam, 2002-7 SCC 39; 2002 Cri. LJ 4076 (SC), the presence of the accused was admitted in a suggestion put to one of the witnesses. Considering the reply given by the witness, the court arrived at the conclusion that the presence of the accused was admitted. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)

In Rakesh Kumar alias Babli v. State of Haryana, 1987-2 SCC 34, a suggestion was put by the defence to the witness with regard to the colour of the shirt worn by one of the accused persons at the time of the incident. The Apex Court, considering the suggestion and the reply, arrived at the conclusion that the presence of the accused, namely Dharam Vir was established on the spot at the time of occurrence. (Referred to in: Balu Sudam Khalde v. The State of Maharashtra, AIR 2023 SC 1736.)

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

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Time City Infrastructure and Housing Ltd v. State of UP: Non-Compliance in taking Postal Steps – Court Should Vacate the Ad-Interim Injunction Order

Saji Koduvath, Advocate, Kottayam.

Introduction

In Time City Infrastructure and Housing Limited v. State of U.P. (J.B. Pardiwala, R. Mahadevan, JJ,) 2025 INSC 966, the Supreme Court of India elucidated two significant legal principles relating to the grant of ad-interim temporary injunctions.

They are:

  • When the Civil courts grant a temporary injunction without notice.
  • What is the effect of not complying with the direction in the CPC to take postal steps as provided in Rule 3 Proviso (a) and (b)?

When does the Civil Courts grant a Temporary Injunction without Notice

In Time City Infrastructure and Housing Limited v. The State of U.P., 2025 INSC 966, it is observed-

  • Looking to the scheme of Order 39, CPC , it is clear that ordinarily an order of injunction may not be granted ex parte.
  • Rule 3 carves out an exception in favour of granting an injunction without notice to the opposite party
    • where it appears that the object of granting the injunction would be defeated by the delay.
  • An obligation cast on the court to record reasons for granting an injunction without notice, and
    • an obligation cast on the applicant to comply with the requirements of Clauses (a) and (b) of the proviso.
  • Both the provisions are mandatory.
  • The applicant is granted an injunction without notice, subject to the condition of complying with Clauses (a) and (b) above.

Non-Compliance in taking Postal Steps – Court Should Vacate the Order

In Time City Infrastructure and Housing Limited v. The State of U.P., 2025 INSC 966, the Supreme Court, relying on  Shiv Kumar Chadha v. MCD, 1993 (3) SCC 161, held as under:

  • “We are of the opinion that if the court is satisfied of non- compliance by the applicant with the provisions contained in the proviso then on being so satisfied the court which was persuaded to grant an ex parte ad interim injunction confiding in the applicant that having been shown indulgence by the court he would comply with the requirements of the proviso, it would simply vacate the ex parte order of injunction without expressing any opinion of the merits of the case leaving it open to the parties to have a hearing on the grant or otherwise on the order of injunction but bipartite only. The applicant would be told that by his conduct he has deprived the opponent of an opportunity of having an early or urgent hearing on merits and, therefore, the ex parte order of injunction cannot be allowed to operate any more.”

However, the Apex Court directed the Trial Court to hear the plaintiff and defendants and decide the injunction application on merits.

End Notes

Order 39 Rule 3 of the Code of Civil Procedure reads as under:

  • “Rule 3. Before granting injunction, Court to direct notice to opposite party— The Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party:
  • Provided that, where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of granting the injunction would be defeated by delay, and require the applicant—
  • .(a) to deliver to the opposite party, or to send to him by registered post, immediately after the order granting the injunction has been made, a copy of the application for injunction together with —
    • (i) a copy of the affidavit filed in support of the application;
    • (ii) a copy of the plaint; and
    • (iii) copies of documents on which the applicant relies, and
  • (b) to file, on the day on which such injunction is granted or on the day immediately following that day, an affidavit stating that the copies aforesaid have been so delivered or sent.”

In Shiv Kumar Chadha v. MCD, 1993(3) SCC 161, our Apex  Court observed as under:

  • “The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said “the court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party”. The proviso was introduced to provide a condition, where court proposes to grant an injunction without giving notice of the application to the opposite party being of the opinion that the subject of granting injunction itself shall be defeated by delay. The condition so introduced is that the court “shall record the reasons” why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statute or under the common law, must be informed why instead of following the requirement of Rule 3 the procedure prescribed under the proviso has been followed.
  • The party which invokes the jurisdiction of the court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the court about the gravity of the situation and court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the court or the authorities concerned to record reasons before exercising power vested in them. In respect of some of such non-compliance therewith will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side under exceptional circumstances. Such ex parte orders have far-reaching effect, as such a condition has been imposed that court must record reasons before passing such order. If it is held that the compliance with the proviso aforesaid is optional and not obligatory, then the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purposes. Proviso to Rule 3 of Order 39 of the Code, attracts the principle that if a statute requires a thing to be done in a particular manner it should be done in that manner or not all.” (Quoted in: Time City Infrastructure and Housing Limited v. The State Of U.P., 2025 INSC 966.)

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Principles and Procedure

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Sec. 65B

Admission, Relevancy and Proof

Law on Documents

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Ryotwari System in Madras

Saji Koduvath, Advocate, Kottayam.

Introduction

  • In 1820, under the leadership of Thomas Munro, the Governor of Madras, the British introduced Ryotwari, a new system of revenue collection. The Government began collecting rent directly from the cultivators or tenants, bypassing the traditional Zamindars or landlords. This approach was based on the principle that such lands belonged to the Government, and hence, the rent collected was officially termed as ‘assessment‘. This system was later implemented in various other regions across British India.
  • Actually, it was an improved system of revenue/rent collection successfully practiced by the Mughals, who ruled northern India just before the arrival of the British.
  • Munro actually reduced the rent that tenants had previously paid to intermediaries; that is, from one-half to one-third of the produce; however, it was still considered exorbitant.

Land History of Ryotwari System in Madras Presidency

‘Land Law in Madras Presidency’, BR Chakravarthy, 1927, page 31 reads as under:

  • “When the East India Company assumed control over the administration of the province, the revenues of the land were being collected mainly in two ways. The first was that people going by the name of Zamindars and poligars, collected the revenue from the ryots and paid a certain percentage of the collection to the government, retaining the balance for themselves; as remuneration for their services; the second was that the Sirkar collected the land revenue directly. But even in the latter case, instead of employing a gradation of officers, for collecting the revenue from each individual ryots, as we have it now in the case of ryotwari lands, the government farmed out the revenues of single villages or groups of villages to individuals or to village communities leaving the task of internal collection to those intermediate agents called renters. This system offered a splendid opportunity to many a speculator to enrich themselves at the cost of the poor cultivators. Thus, there existed in general an intermediate agency in one form or other.
  • In the system of collecting revenue by middlemen, there were two important defects.
  • Firstly, there was no limit to the demand made by the government. They went on increasing their demand from year to year, without any regard whatever to the conditions .and prosperity of the cultivators.
  • Secondly, there was nothing to prevent the Zamindars or middlemen from rack-renting the tenants under their control; or whenever the government raised its demand, the middlemen in their turn began to squeeze the tenants to the utmost, and in their anxiety to see, that they incurred no loss from their own pockets, but had a decent fraction of the collections left for them after paying the government its due, they more often than not, made the position of the ryots simply intolerable.”

East India Company and the reign of the British

Malabar was a part of the erstwhile Madras Presidency, ruled by the British. The reign of the British traces its history from the establishment of the East India Company.

The East India Company was a joint-stock company that was founded in 1600. It was formed to trade in the Indian Ocean region, initially with the East Indies (South Asia and Southeast Asia), and later with East Asia. The company gained control of large parts of the Indian subcontinent and Hong Kong. It eventually came to rule large areas of the Indian subcontinent, exercising military power and assuming administrative functions.  The company initiated the beginnings of the British Raj in the Indian subcontinent.

By 1647, the company had 23 factories and settlements in India. Many of the major factories became some of the most populated and commercially influential cities in Bengal, including the walled forts of Fort William in Bengal, Fort St George in Madras, and Bombay Castle (Wikipedia).

Ryots were Tenants; the sum payable was essentially ‘Rent‘

While the payments made by the ryots were termed either ‘assessment‘ or ‘rent‘. But, the legislative enactments in this area demonstrate a distinct legal preference for the term ‘rent’ rather than the more administrative notion of ‘assessment’.

Madras Estates Land (Reduction of Rent) Act, XXX of 1947, reads  as under:

  • “An Act to provide for the reduction of rent payable by ryots in estates governed by the ‘Tamil Nadu Estates Land Act, 1908, approximately to the level of the assessments levied on lands in ryotwari areas in the neighbourhood  and for the collection of such rents exclusively by the State Government.” (Referred to in: Shree Raja Kandregula Srinivasa Jagannatha Rao v. State of AP, AIR 1971 SC 71; 1969-3 SCC 71)

Madras District Boards Act (Madras Act XIV of 1920) Section 79 reads as under:

  • “79. The annual rent value shall, for the purposes of S. 78, be calculated in the following manner: (i) In the case of lands held direct from Government on ryotwari tenure or on lease or licence, the assessment, lease amount, royalty or other sum payable to Government for the lands, together with any water-rate which may be payable for their irrigation shall be taken to be the annual rent value…..” (Quoted in: H. R. S. Murthy v. Collector Of Chittoor: AIR 1965 SC 177; 1964-6 SCR 666)

Pattom Proclamation of Travancore of 1040 ME (1865) (considered as a Magna Carta issued by the King to the cultivators) begins as under:

  • “Whereas we earnestly desire that the possession of landed as well as other property in Our territory should be as secure as possible; and whereas We are of opinion that, with this view, Sirkar Pattom** lands can be placed on a much better footing than at present so as to enhance their value; We are pleased to notify to Our ryots: …”
  • ** Note: ‘Sirkar‘ means Government; ‘Pattom‘ means rent.

In Travancore State Manual (Vol. III, page 315) it is stated as under:

  • “The peculiarity of these Jenmom properties is that their owners have absolute control over them and that they take from the ryots the pattern or rent as well as the Rajabhogam …. “

‘Janmam Right in Jenmi‘ in Malabar

Different from riotwary settlement in other parts of Madras Presidency

In ‘Land Law in Madras Presidency’, BR Chakravarthy, 1927, page 372, it is stated as under:

  • “The land Revenue settlement in Malabar differs from the ordinary ryotwari settlement in the rest of the presidency in that in Malalabar the existence of lit landlord between the state and the actual cultivator is recognised in the theoretical distribution of the produce, on which- the rates of assessment are based. For instance, in the case of wet lands, from the commuted value of the annual grain out-tum a deduction of 15 per cent is first made for vicissitudes of season and unprofitable areas; then a further deduction is made for cultivation expenses, of the balance is set apart for the cultivator’s share; and 6/10 of the remainder is fixed as the assessment. The calculation with respect to dry lands is similar and is even more lenient.
  • The reason of this difference from the rest of the presidency can be understood only if we bear in mind the essential distinction, or at any rate what according government constitutes an essential distinction, in regard to private ownership of land between Malabar and the cast of the presidency. The right of ownership in land in Malabar is termed janmam and is said to comprise the tall and complete ownership in land; so that the owner of janmam right or jenmi as he is called, is absolutely entitled not merely to the soil, but to all things above and below it from the highest point of heaven to the lowest depths of the earth. At one time, there was considerable dispute on this question in regard to Malabar as it was with regard to the other parts of the presidency. But it was ultimately accepted by the Government itself that in Malabar, at least, the private ownership mast be taken to exist in the jemnis and that the government could not claim any such right.”

Lands held under ryotwari tenure after ryotwari Settlement (1934)

In Kannan Devan Hills Produce v. State of Kerala, AIR 1972 SC 2301; 1972-2 SCC 218, it was pointed out that it was held by the Full Bench of the Kerala High Court in Sukapuram Sabhayogam v. State of Kerala, AIR 1963 Kerala 101 that the lands, after 1934, were ‘held under ryotwari tenure after the introduction of the ryotwari Settlement in the Malabar area of Kerala State’.

  • Note: The expression ‘estate’ in Article 31A (relating to ‘acquisition’ of land etc.) included ‘ryotwari’ land also by virtue of the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect.

Lease by Government, under Pattas

  • Under the ryotwari system, land was given on lease by the government to the ryot (or cultivator) under a patta. A ryotwari pattadar was not a proprietor of land in its full sense, but only a tenant.

Our Apex Court, in Threesiamma Jacob v.Geologist, Dptt. of Mining & Geology, AIR 2013 SC 3251; 2013-3 KLT 275; 2013-9 SCC 725, it is held as under:

  • “26. Coming to the ryotwari tenures, this Court [In Karimbil Kunhikoman v. State of Kerala, AIR 1962 SC 723] held that they were governed by the standing orders issued from time to time by the Revenue Board. Under the ryotwari system land was given on lease by the government to the ryot under a patta. Noticing the salient features of the ryotwari system as explained in various authoritative works, this Court opined that “though a ryotwari pattadar is virtually like a proprietor and has many of the advantages of such a proprietor”, such pattadar was never considered a proprietor of land but only a tenant.” (Also quoted in Raphy John v. Land Revenue Commissioner, Thiruvananthapuram, 2022-3 KLT 679.)

Landmark Change by the 1971 Constitutional Amendment

In S. Thenappa Chettiarv. State of Tamil Nadu, AIR 1986 SC 1117, it was held, following Khajamian Wakf Estates v. State of Madras, AIR 1971 SC 161, that the expression ‘estate’ in Article 31A included ‘ryotwari‘ land also – by virtue of the Seventeenth Amendment of the Constitution on June 20, 1964 with retrospective effect.

It stands marked as a gigantic step in the history of land reforms in India..

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

“Due Process of Law” in Civil Suits

Taken from: Even the Rightful Owner is NOT entitled to Eject a Trespasser, by Force

Saji Koduvath, Advocate, Kottayam.

Introduction

It goes without saying that the the rightful owner is not legally entitled to eject the interloper or trespasser by force, otherwise than by due process of law; especially when the trespasser is in settled possession.

In Karthiyayani Amma v. Govindan, AIR 1980 Ker 224, the High Court considered the question whether the rightful owner can eject a trespasser in possession with force; and whether a person in illegal possession could sustain a suit for injunction against the true owner, from forcibly dispossessing him from the property.  It was held as under:

  • “The ultimate position, therefore, reduces itself to this:
  • Can a person in possession without title sustain a suit for injunction against the rightful owner if he proves possession?
  • Yes.
  • In this case, plaintiff is found to in be possession. On the finding, he should be granted the injunction prayed for. A person in possession can be evicted only in due process of law. Even the rightful owner cannot eject him with force. If he cannot be evicted with force, he continues to be in possession and he can resist invasion of his possession by everyone including the rightful owner. If the rightful owner threatens his peaceful possession, he can approach Courts of Law and pray for the equitable relief of injunction to protect his possession”. (Followed in Aiysumma Vs. Mariyamma, 1994-2 CIVCC 52, 1994-1 KerLT 570. )

It is pointed out in Suresh v. Ashok Girdharilal Chandak, 2016-1 MHLJ 171 that ‘bearing in mind the basic principle of law in civil jurisprudence that even a trespasser cannot be evicted without following due process of law and no one can be allowed to take law into his own hands to recover possession of the property without following due process of law and without proving title to the immovable property in possession of a person holding actual physical possession thereof’.

Possession cannot be disturbed except in Due Process of Law

The Apex Court, in Maria Margarida Sequeira Fernandes v. Erasmo Jack De Sequeira, (2012) 5 SCC 370, observed as under:

  • “81. Due process of law means nobody ought to be condemned unheard. The due process of law means a person in settled possession will not be dispossessed except by due process of law. Due process means an opportunity for the Defendant to file pleadings including written statement and documents before the Court of law. It does not mean the whole trial. Due process of law is satisfied the moment rights of the parties are adjudicated by a competent Court.”

In Padhiyar Prahladji Chenaji v. Maniben Jagmalbhai, 2022 SCC OnLine SC 258 (M.R. Shah, B.V. Nagarathna, JJ.), it is observed as under:

  • “The plaintiff is not entitled to any injunction and/or protect his possession against the rightful owner, more particularly, when he fails to get the declaratory relief with respect to the title.
  • In a suit for permanent injunction to restrain the defendant from interfering with the plaintiff’s possession, the only thing the plaintiff will have to establish is that as on the date of the suit, he was in lawful possession of the suit property and the defendant has tried to interfere or disturb his possession
  • the plaintiff, who has failed to get any declaratory relief on title cannot be said to be in “lawful possession”. Only when the person seeking the relief is in lawful possession and enjoyment of the property, he is legally entitled to be in possession, and not to disposes him, except in due process of law.
  • The contention of the plaintiff that even if the plaintiff failed to get the declaratory relief and the suit is dismissed, once the plaintiff is found to be in possession, her possession cannot be disturbed except in due process of law and the only remedy available to the defendant would be “to file a substantive suit to get back the possession is noticed only to be rejected outright”.
  • In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, (2012) 5 SCC 370, it was held that the ‘due process’ or ‘due course’ condition was satisfied the moment the rights of the parties were adjudicated upon by a court of competent jurisdiction, and that it did not matter who brought the action to court.
  • In Maria Margarida Sequeira Fernandes Vs. Erasmo Jack de Sequeira, the Court has approved the following findings of the High Court of Delhi in Thomas Cook (India) Ltd. Vs. Hotel Imperial (2006) 88 DRJ 545:
    • “In this context, when a party approaches a court seeking a protective remedy such as an injunction and it fails in setting up a good case, can it then say that the other party must now institute an action in a court of law for enforcing his rights i.e. for taking back something from the first party who holds it unlawfully, and, till such time, the court hearing the injunction action must grant an injunction anyway? I would think not.”
  • Once the rights of the parties are adjudicated and the defendant is held to be the true owner, it can be said that due process of law has been followed and thereafter the plaintiff is not entitled to any permanent injunction against the true owner.”
    • Note: It is not specifically stated in this decision, Prahladji Chenaji v. Maniben Jagmalbhai, that one can resume possession using force.

In Thomas Cook (India) Limited v. Hotel Imperial, 2006 (88) Del. RJ 545; AIR 2007 (NOC) 169, it is held as under:

  • “28. The expressions ‘due process of law‘, ‘due course of law’ and ‘recourse to law’ have been interchangeably used in the decisions referred to above which say that the settled possession of even a person in unlawful possession cannot be disturbed ‘forcibly’ by the true owner taking law in his own hands. All these expressions, however, mean the same thing – ejectment from settled possession can only be had by recourse to a court of law. Clearly, ‘due process of law‘ or ‘due course of law’, here, simply mean that a person in settled possession cannot be ejected without a court of law having adjudicated upon his rights qua the true owner.
  • Now, this ‘due process‘ or ‘due course’ condition is satisfied the moment the rights of the parties are adjudicated upon by a court of competent jurisdiction. It does not matter who brought the action to court. It could be the owner in an action for enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, in an action preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of a right (injunction against dispossession), is not of much consequence.”

‘Possession is Good Against All But the True Owner’

The principle ‘Possession is Good against all but the True Owner’ is declared in Parry v. Clissold, (1907) AC 73. In this decision it was also pointed out that if the rightful owner did not come forward and assert his title within the period of limitation, his right would be extinguished and the possessory owner acquires an absolute title.

The Supreme Court of India while accepting this principle in Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, pointed out that the law in India allows a plaintiff to maintain a possessory suit under Sec. 9 (preset Sec. 6) of the Specific Relief Act. Such a suit can be filed against a title holder, if he had dispossessed the plaintiff ‘otherwise than in due course of law’.

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

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

In Nair Service Society Ltd. vs. K.C. Alexander, AIR 1968 SC 1165, it is observed as under:

  • “17. … To express our meaning we may begin by reading 1907 AC 73 (Perry V. Clissold), to discover if the principle that possession is good against all but the true owner has in any way been departed from.
  • 1907 AC 73 reaffirmed the principle by stating quite clearly:
    • “It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”
  • Therefore, the plaintiff who was peaceably in possession was entitled to remain in possession and only the State could evict him. The action of the Society was a violent invasion of his possession and in the law as it stands in India the plaintiff could maintain a possessory suit under the provisions of the Specific Relief Act in which title would be immaterial or a suit for possession within 12 years in which the question of title could be raised. As this was a suit of latter kind title could be examined. But whose title? Admittedly neither side could establish title. The plaintiff at least pleaded the statute of Limitation and asserted that he had perfected his title by adverse possession. But as he did not join the State in his suit to get a declaration, he may be said to have not rested his case on an acquired title. His suit was thus limited to recovering possession from one who had trespassed against him. The enquiry, thus narrows to this:
    • did the Society have any title in itself,
    • was it acting under authority express or implied of the true owner or
    • was it just pleading a title in a third party ?
  • To the first two questions we find no difficulty in furnishing an answer. It is clearly in the negative. So the only question is whether the defendant could plead that the title was in the State?
  • Since in every such case between trespassers the title must be outstanding in a third party a defendant will be placed in a position of dominance. He has only to evict the prior trespasser and sit pretty pleading that the title is in someone else. As Erle, J. put it in Burling v. Read [(1848)11 Q.B. 904]
    • ‘parties might imagine that they acquired some right by merely intruding upon land in the night, running up a hut and occupying it before morning’.
  • This will be subversive of the fundamental doctrine which was accepted always and was reaffirmed in Perry V. Clissold (1907 AC 73). The law does not, therefore, countenance the doctrine of ‘findings keepings’.

Possession is a Good Title or Right Against any one who cannot Show a Better

In Poona Ram v. Moti Ram, AIR 2019 SC 813, our Apex Court explained the principle ‘possession is a good title of right against any one who cannot show a better’ as under:

  • “9. The law in India, as it has developed, accords with jurisprudential thought as propounded by luminaries like Salmond. Salmond on Jurisprudence states:­
    • “These two concepts of ownership and possession, therefore, may be used to distinguish between the de facto possessor of an object and its de jure owner, between the man who actually has it and the man who ought to have it. They serve also to contract the position of one whose rights are ultimate, permanent and residual with that of one whose rights are only of a temporary nature.
    • x x x x x
    • In English law possession is a good title of right against any one who cannot show a better. A wrongful possessor has the rights of an owner with respect to all persons except earlier possessors and except the true owner himself. Many other legal systems, however, go much further than this, and treat possession as a provisional or temporary title even against the true owner himself. Even a wrongdoer, who is deprived of his possession, can recover it from any person whatever, simply on the ground of his possession. Even the true owner, who takes his own, may be forced in this way to  restore it to the wrongdoer, and will not be permitted to set up his own superior title to it. He must first give up possession, and then proceed in due course of law for the recovery of the thing on the ground of his ownership. The intention of the law is that every possessor shall be entitled to retain and recover his possession, until deprived of it by a judgment according to law.
    • Legal remedies thus appointed for the protection of possession even against ownership are called possessory, while those available for the protection of ownership itself may be distinguished as proprietary. In the modern and medieval civil law the distinction is expressed by the contrasted terms petitorium (a proprietary suit) and possessorium (a possessory suit).”
  • 10. As far back as 1924, in the case of Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, AIR 1924 PC 144, the learned Judge observed that in India, persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a court. Later, in the case of Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165, this Court ruled that when the facts disclose no title in either party, possession alone decides. It was further held that if Section 9 of the Specific Relief Act, 1877 (corresponding to the present Section6) is employed, the plaintiff need not prove title and the title of the defendant does not avail him. When, however, the period of six months has passed, questions of title can be raised by the defendant, and if he does so the plaintiff must establish a better title or fail. In other words, such a right is only restricted to possession in a suit under Section 9 of the Specific Relief Act (corresponding to the present Section 6) but does not bar a suit on prior possession within 12 years from the date of dispossession, and title need not be proved unless the defendant can provide one.
  • 11. It was also observed by this Court in Nair Service Society Ltd (supra) that a person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against the entire world except the rightful owner. In such a case, the defendant must show in himself or his predecessor a valid legal title and probably a possession prior to the plaintiff’s, and thus be able to raise a presumption prior in time.”

Settled Possession and Established Possession

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

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

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

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

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Book No. 2: A Handbook on Constitutional Issues

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

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Can a suit be Rejected (Order VII rule 11 CPC) on the Ground of Res Judicata?

Saji Koduvath, Advocate, Kottayam.

Can a suit be rejected (Order VII rule 11 CPC) on the ground of Res Judicata?

No.

Kamala v. K. T. Eshwara Sa, (2008) 12 SCC 661, is the direct authority. In this decision, our Apex Court held –

  • For invoking clause (d) of Order VII Rule 11 C.P.C., only the averments in the plaint would be relevant.
  • For this purpose, there cannot be any addition or substraction.
  • No amount of evidence can be looked into.
  • The issue on merits of the matter would not be within the realm of the Court at that stage.
  • The Court at that stage would not consider any evidence or enter a disputed question of fact of law.

The Court said as under:

  • “21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up.
  • Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
  • 22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject- matter of an order under the said provision.
  • 23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of  the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.
  • 24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.
  • 25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject- matter thereof, the application for rejection of plaint should be entertained.” (Quoted by the Apex Court in: Eldeco Housing And Industries Limited vs Ashok Vidyarthi on 30 November, 2023)

Similar view was expressed in 

  • Shakti Bhog Food Industries Ltd. v. Central Bank of India and another, (2020) 17 SCC 260: 2020: INSC:413, and 
  • Srihari Hanumandas Totala v. Hemant Vithal Kamat and others,  (2021) 9 SCC 99: 2011: INSC:387.

The law on Order VII rule 11 C.P.C. was laid down in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra) as under:

  • “23.2. The remedy under Order 7 Rule 11 is an independent and special remedy, wherein the court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision.”

The Supreme Court held in T.Aravindam as under:

  • “5. We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentently resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful – not formal – reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under Order VII, Rule 11, CPC taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X, CPC. An activist Judge is the answer to irresponsible law suits. The trial Courts would insist imperatively on examining the party at the first hearing so that bogus litigation can be shot down at the earliest stage. The Penal Code is also resourceful enough to meet such men, (Cr. XI) and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi”.

End Notes

  • On Rejection of Plaint,
  • Striking pleadings,
  • Preliminary Issue on Maintainability and
  • Invoking Inherent Powers

Order 7 Rule 11 of the Code provides for rejection of plaint

  • 11. Rejection of plaint. The plaint shall be rejected in the following cases:
  • (a) where it does not disclose a cause of action;
  • (b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
  • (c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
  • (d) where the suit appears from the statement in the plaint to be barred by any law;
  • (e) where it is not filed in duplicate;
  • (f) where the plaintiff fails to comply with the provisions of rule 9:

Order VI Rule 16: Striking out pleadings at any stage

  • “16. Striking out pleadings.- The Court may at any stage of the proceedings order to be struck out or amended any matter in any pleading-
  • a) which may be unnecessary, scandalous, frivolous or vexatious, or
  • b) which may tend to prejudice, embarrass or delay the fair trial of the suit, or
  • c) which is otherwise an abuse of the process of the Court.”

Order 14 Rule 2 hearing any preliminary issue

  • 2. Court to pronounce judgment on all issues.
  • (1) Notwithstanding that a case may be disposed of on preliminary issue, the Court shall, subject to the provisions of sub-rule (2), pronounce judgment on all issues.
  • (2) Where issues both of law and of fact arise in the same suit, and the Court is of opinion that the case or any part thereof may be disposed of on an issue of law only, it may try that issue first if that issue relates to-
    • (a) the jurisdiction of the Court, or
    • (b) a bar to the suit created by any law for the time being in-force.
  • and for that purpose may, if it thinks fit, postpone the settlement of the other issues until after that issue has been determined, and may deal with the suit in accordance with the decision on that issue.

Justice V.R.Krishna Iyer:  T. Arivandandam v. T.V. Satyapal, (1977) 4 SCC 467:

On a meaningful — not formal — reading of the plaint, if manifestly vexatious, gross and flagrant abuse of the process of the court & irresponsible lawsuits –   nip it in the bud searchingly under Order 10, CPC. The Court held as under:

  • “We have not the slightest hesitation in condemning the petitioner for the gross abuse of the process of the court repeatedly and unrepentantly resorted to. From the statement of the facts found in the judgment of the High Court, it is perfectly plain that the suit now, pending before the First Munsif’s Court, Bangalore, is a flagrant misuse of the mercies of the law in receiving plaints. The learned Munsif must remember that if on a meaningful-not formal-reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, be should exercise his power under Or. VII r. 11 C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing by examining the party searchingly under Order X C.P.C. An activist Judge is the answer to irresponsible law suits. The trial court should insist imperatively on examining the party at the first bearing so that bogus litigation can be shot down at the earliest stage. The Penal Code (Ch. XI) is also resourceful enough to meet such men, and must be triggered against them. In this case, the learned Judge to his cost realised what George Bernard Shaw remarked on the assassination of Mahatma Gandhi: “It is dangerous to be too good.”

Order 10 rule 1. CPC

  • Examination of parties by the court: 1. Ascertainment whether allegations in pleadings are admitted or denied.—At the first hearing of the suit the Court shall ascertain from each party or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement (if any) of the opposite party, and as are not expressly or by necessary implication admitted or denied by the party against whom they are made. The Court shall record such admissions and denials.

When Inherent power Invoked: If an Absolutely Groundless Suit is filed: Re-Agitation may or may not be barred as res judicata. If the Court finds that there is an abuse of the process of court, and is satisfied that there is no chance of succeeding, Court may exercise its discretion with circumspection, though only in special cases.

In K.K. Modi v. K.N. Modi, AIR 1998 SC 1297: 1998 (3) SCC 573, it is observed as under:

  •  “32. Under Order 6 Rule 16, the Court may, at any stage of the proceeding, order to be struck out, inter alia, any matter in any pleading which is otherwise an abuse of the process of the court. Mulla in his treatise on the Code of Civil Procedure. (15th Edition, Volume II, page 1179 note 7) has stated that power under clause (c) of Order 6 Rule 16 of the Code is confined to cases where the abuse of the process of the Court is manifest from the pleadings; and that this power is unlike the power under Section 151 whereunder Courts have inherent power to strike out pleadings or to stay or dismiss proceedings which are an abuse of their process.
  • In the present case the High Court has held the suit to be an abuse of the process of Court on the basis of what is stated in the plaint.”

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Operation Asha  v. Shelly Batra: A Critical Appreciation of the Landmark Judgment on S. 92, CPC

Saji Koduvath, Advocate, Kottayam.

Introduction

The Supreme Court decision, Operation Asha  v. Shelly Batra (delivered on 05 August 2025), will be a significant and impactful judgment in the history of Indian law.

Reflection on Two questions of Critical Significance

The decision, Operation Asha  v. Shelly Batra, prompts reflection on two questions of critical and profound significance. They are:

  • 1. Can an institution/organisation be considered as a ‘trust’?
  • 2. Is it possible for a Registered Society –
    • to create a trust upon the properties that have been acquired by the society after its registration, and
    • to ‘vest’ its properties in a ‘trust’ to have scrutiny thereof under Section 92 CPC?

The reflections of this author, in a nutshell, are the following –

  • In law, it is a misconception to match or equate a Trust with an Institution or Organisation. 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.

This legal position is vividly presented in Operation Asha v. Shelly Batra. It reads as under:

  • “However, if it is argued that a trust has instead separately been created for holding the property of the society after its registration as a society, the same must be clearly and sufficiently proven. Here, the separate trust which has been created and the properties which has been vested in said trust would be subject to scrutiny under Section 92. In both these scenarios, an ‘express trust’ would be created and in a suit under Section 92 CPC, the first criterion i.e., the existence of an express or constructive trust, would be met.”

Why it is a Misconception to Equate a Trust with an Association

  • 1. In legal parlance, ‘trust’ is a concept, and the Association is a reality. (It is true, in common language, the word ‘trust’ is often used – as though the concept has assumed a tangible ‘shape’.)
  • In Indian law, a trust is an ‘obligation‘; not a legal entity or organisation—it is neither a person nor a Society. A trust is a duty imposed upon the trustees to manage and administer the trust property for the benefit of the beneficiaries; whereas, a Society is an association of individuals. Both are fundamentally distinct. Any attempt to blend the legal character of a trust with that of a Society would run contrary to their distinctive legal frameworks and is totally inconsistent with established principles of jurisprudence.
  • 2. Property of a Society vests in its Members subject to the contract (Bylaws) and the basic or essential principles upon which it is founded.

Why No ‘Trust’ in a “Property Belonging to a Society”

  • 1. Under Indian law, members of a Registered Society are not permitted to ‘dedicate’ property belonging to the society, as the Societies Registration Act, 1860, comprehensively governs the vesting and management of such property. As per Section 5 of the Act, if the property is not vested in trustees, it automatically vests in the Governing Body of the Society. Furthermore, the Act itself prescribes the procedure for dealing with the society’s property upon its dissolution. Any attempt by the members to transfer such property outside this legal framework will stand inconsistent with the statutory scheme and is therefore impermissible.   
  • 2. Section 92 CPC envisages ‘express or constructive trust’. This requirement is brought home only when there is dedication of property.
    • Note: The “property belonging to a society” cannot be dedicated, after its Registration, even by a unanimous decision of its entire members, because the Society Registration Act governs the ‘vesting’, as stated above.
  • 3. Societies, both registered and unregistered, are voluntary associations of persons. Article 19(1)(c) of our Constitution guarantees freedom to form associations and unions.  It includes in itself the right of effective functioning so as to achieve its lawful objectives.
  • 4. Since the Civil Courts’ jurisdiction to interfere in the internal affairs of a Society is well-defined by the Societies Registration Act and common law, the LAW does not envisage interference upon the “property belonging to a society” under Section 92 CPC.  

Read Articles by the same author:

Instances Where a Society Falls Under the Clutches of S. 92 CPC

Section 92 CPC envisages ‘trust’ in a general, and not in a restrictive, sense as it refers to ‘express or constructive trust created for public purposes of a charitable or religious nature’. The following are the instances of imposing ‘trust’ (upon the property of a Society) to be subjected to the jurisdiction under Section 92 CPC:

  1. If a charitable institution is established by an association of persons through a valid dedication of property, it acquires the character of a trust for a public purpose within the meaning of Section 92 of the CPC. The subsequent registration of the association under the Societies Registration Act will not alter or extinguish its trust, which had arisen from the original act of dedication and the charitable purpose it serves
    •  Note: 1. Such property cannot be treated as the property ‘belonging to’ the association. (The property of a society is described in Section 5 of the So. Regn. Act as the property ‘belonging to the society’.)
    • 2. Beneficiaries of such a public trust will be outsiders (other than the members of the association) or, at least, outsiders must also be the beneficiaries.
  2. If it is manifested from the nature of an association (Society or a Non-Trading-Company) that a property held by such an institution is meant for the benefit of the third parties or public, i.e., other than the members of the association.
  3. If a society is formed with the object of dedicating property for a public charitable or religious purpose, and if the property is so dedicated and a trust is predicated.
  4. If the society accepts a gift of a property with the obligation to manage the same for the benefit of the beneficiaries intended by the donee.
    • The Delhi High  Court has held in Young Men’s Christian Association of Ernakulam v. National Council YMCAs of India (relying ono Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan, (2017) 4 SCC 77) that a public trust can be validly created by gifting property to a society on condition that the same should be used for a specific public purpose and by appointing the society as its trustee.

The Supreme Court, in Swami Shivshankargiri Chella Swami v. Satya Gyan Niketan,considered whether a trust would arise when the donor waqfed (gifted) property to a society, registered under the Indian Societies Registration Act, 1960, for the development and publicity of the Hindi Language. The property was gifted on condition that the society would not have the right to mortgage or the right of sale. The society had not been taking any interest in achieving the purpose. Therefore, a petition was filed under Section 92 of CPC. The district judge allowed the petition, observing that prima facie it appeared that a constructive trust was created. The district judge relied on the Kerala High Court decision in Sukumaran v. Akamala Sree Dharma Sastha. The High Court, in Revision, reversed the order of the district judge.  The matter was finally considered by the Apex Court, by ‘special leave’.  The Apex Court upheld the view of the District Judge, observing as under:

  • “We have noticed that the trust deed was executed in favour of the respondents. But it appears in view of the facts and circumstances of this case and the submissions made on behalf of the respondents, that it was waqfed/gifted for a lawful purpose i.e. a “trust” (which) is an obligation annexed to the ownership of the 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 owner, (Act II of 1882 Trusts, Section 3]. Accordingly, in our opinion, the application filed by the appellants was falling within the required ambit of Section 92 of CPC and the learned district judge had rightly permitted the appellants to institute a suit.”

In Sukumaran v. Akamala Sree Dharma Sastha, the Kerala High Court relied on the following passage from Keshava Panicker v. Damodara Panicker:

  • “The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property. 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……. 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”.

The Delhi High Court, in Young Mens Christian Association of Ernakulam v. National Council YMCAs of India, 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 Delhi High 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 court considered the following judgments:

  • Swami Shivshankargiri Chella v. Satya Gyan Niketan:  AIR 2017 SC 1221,
  • K. Rajamanickam v. Periyar Self Respect Propaganda Institution: AIR 2007 Mad 25,
  • Abhaya A Society Registered v. J.A. Raheem: AIR 2005 Ker 233,
  • Advocate General v. Bhartiya AdamJati Sewak Sangh: 2001-3 ShimLC 319,
  • S. Guhans v. Rukmani Devi Arundale: AIR 1988 Mad 1,
  • Kesava Panicker v. Damodara Panicker, AIR 1976 Ker 86.

The Delhi High Court (in Young Mens Christian Association of Ernakulam) also relied on Kesava Panicker v. Damodara Panicker, where it was held that if a trust was created for a public or charitable purpose, the fact that it was registered as a society would not change the character of the properties.

The Delhi High Court distinguished

  • Abhaya, A Society v. JA Raheem,
  • S. Guhans v. Rukmini Devi Arundale,  
  • K. Rajamanickam v. Periyar Self Respect Propaganda Institution, and
  • Advocate General v. 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. In these cases the property was owned by the Society concerned and it belonged to it. But, National Council YMCAs of India, the defendant, was formed to promote the work of the YMCA Movement in India and to resuscitate the existing languishing YMCAs and aid in formation of new YMCAs. It started administering and looking after the existing YMCAs which were formed even before it came into existence as a Society. The defendant “holds in trust, properties on behalf of the member YMCAs”. Thus, the defendant was in both ‘express’ and ‘constructive’ trust of the properties belonging to its members. The agreements in respect of immovable properties were actually signed for and on behalf of the members by the defendant. The defendant was thus playing the role of not merely an association holding something in trust but also has the power to enter into a transaction in respect of such properties.

Fact of the Case, Operation Asha  v. Shelly Batra, in a Nutshell

  • Operation Asha v. Shelly Batra, arose from a suit filed under Section 92 CPC.
  • The suit was filed by Shelly Batra and her mother, co-founders of a trust, alleging misconduct and breach of several of the society’s by-laws by the defendant No. 3, the CEO of the Society
  • Single Judge of the Delhi High Court allowed the application of the plaintiff filed under Section 92.
  • The Division Bench dismissed the appeal filed by the defendant Society.
  • The Supreme Court of India also dismissed the challenge of the Society.

Importance of the SC Judgment

In this erudite judgment, the Apex Court upheld the plaintiff’s right to proceed against the defendant Society under Section 92 CPC; and delivered a ruling, offering a comprehensive analysis on the following pivotal legal issues –

  • 1. Scope of the words ‘Constructive Trust’ in Section 92 CPC.
  • 2. What is the significance of the phrase, “if not vested in trustees,” in Section 5 of the Societies Registration Act?  

Operation Asha  v. Shelly Batra: Important Findings

The Apex Court (Justice JB Pardiwala and Justice R. Mahadevan) observed, inter alia, as under:

1. A suit under S. 92, CPC is a representative suit

  • “A suit under Section 92 of the CPC is a representative suit of a special nature since the action is instituted on behalf of the public beneficiaries and in public interest. Obtaining a ‘grant of leave’ from the court before the suit can be proceeded with, acts as a procedural and legislative safeguard in order to prevent public trusts from being subjected to undue harassment through frivolous suits being filed against them and also to obviate a situation that would cause a further wastage of resources which can otherwise be put towards public charitable or religious aims. However, at the stage of grant of leave, the court neither adjudicates upon the merits of the dispute nor confers any substantive rights upon the parties.”

2. Institution/ organisation can be a ‘trust’ or a ‘constructive trust’

  • “A crucial condition that needs satisfaction is whether the institution/ organisation in relation to which certain reliefs are sought can in fact be considered to be a ‘trust’ or a ‘constructive trust’.“

3. Registration as Society could not change the character of Trust

  • “If the aforementioned circumstances exist and the entity has been, much later in time, registered as a society under the Societies Registration Act, 1860, it would still be treated as a ‘public trust’ as per the dictum of the Full Bench of the Kerala High Court in Kesava Panicker (supra) wherein it was observed that the mere factum of registration of a society under the Societies Registration Act, 1860, after it attained the characteristics of a public trust, could not change the character of the properties which had already been constituted as trust properties.”
  • “However, if the institution has been registered, from its inception, as a society under the Societies Registration Act, 1860, it is true that whenever a society acquires property, it cannot be said that it declares itself a trustee in respect of said property. In other words, the effect of registration under the Societies Registration Act, 1860 would not be to automatically invest the properties of the society with the character of trust property. This has been consistently laid down by the decisions of several High Courts.”

4. Property belonging to the society can be vested in ‘trustees’

  • “Having said so, one must examine what effect the mechanism of vesting provided under Section 5 of the Societies Registration Act, 1860 has on the society. It reads that –
    • “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[…]”.
  • What  follows is that the property belonging to the society can either be vested in ‘trustees’ or in the governing body of the society. This vesting has been envisaged because a society registered under the aforesaid Act is not a juristic person or a body corporate capable of holding property by itself.”

5. A public trust could be created prior to the Registration of a Society

  • “The phrase, ‘if not vested in trustees, ‘ must be read to mean that a trust can be created, either expressly or impliedly, before or after the registration of a society, for the purpose of holding its properties. A public trust would be created prior to the registration of a society if the broad circumstances enumerated under point (v) are met. In such a case, all the properties of the society which had been imbued with the character of ‘trust property’ would be subject to Section 92.

A Separate Trust can also be Created after Registration

  • However, if it is argued that a trust has instead separately been created for holding the property of the society after its registration as a society, the same must be clearly and sufficiently proven. Here, the separate trust which has been created and the properties which has been vested in said trust would be subject to scrutiny under Section 92. In both these scenarios, an ‘express trust’ would be created and in a suit under Section 92 CPC, the first criteria i.e., the existence of an express or constructive trust, would be met.

6. Society cannot be considered as an ‘express trust’; It can be a ‘constructive trust’

  • “Therefore, while the society cannot be considered as an ‘express trust’, what must also be noted, at this crucial juncture, is that, for an entity to be brought within the rigours of Section 92, the plaintiff has the option of also contending  that a ‘constructive trust’ exists in the circumstances and a breach of such a constructive trust has occurred or that the directions of the Court are necessary for the administration of such a constructive trust.”

7. Finally the Apex Court directed as under:

  • “The underlying suit bearing CS (OS) No. 153 of 2020 filed before the Single Judge of the High Court must be commenced at the earliest and the High Court must pay careful attention to whether the circumstances necessitating the imposition of a ‘constructive trust’ is made out. If yes, it must delineate the properties which would be subjected to the constructive trust and assess whether the reliefs prayed for under prayers (c), (d) and (e) respectively of the present plaint may be granted.”

It is a Misconception to Equate a Trust with an Institution or Organisation

In Operation Asha v. Dr. Shelly Batra, the Hon’ble Supreme Court observed in Para (137.iv) as under:

  • “iv. “A crucial condition that needs satisfaction is whether the institution/ organisation in relation to which certain reliefs are sought can in fact be considered to be a ‘trust’ or a ‘constructive trust’.”

Did our Apex Court mean to convey, by the afore-quoted words — an ‘organisation’ (against which the reliefs are sought) can be equated as a ‘trust’ or a ‘constructive trust’?

  • No. Because in our law, a trust is not a legal entity—it is neither a person nor an institution. The blending of Trust with an Association of Persons is totally against the concept of Trust in Indian Law.

A trust, in law, is a legal obligation attached to property, requiring the trustees to administer that property for the benefit of others. It is a mere relationship with property. Therefore, a trust cannot be equated with an institution or organisation. Such a conflation is both legally and conceptually unsound.

  • Therefore, when relief is sought under the principles of trust law, the proper inquiry is not whether the institution is a trust, but whether it holds property (as trustee) subject to trust obligations—whether express or constructive. The distinction is subtle but critical in ensuring a sound legal analysis.
  • 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 the burden is cast 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 founder in 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 trust upon 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.

Trust Definition

  • Sec. 3 of the Indian Trusts Act, 1882 defines trust as under:
  • “Trust: 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.”

Legal Conceptions

From the definition, it is clear that ‘Trust’ holds the following conceptions:

  • Trust is ‘an obligation’ upon the trustee.
  • It is to administer the endowed property.
  • The administration must be done by the trustee as if he is the owner  of the trust property.
  • It must be done by him accepting the intents desired by the author.
  • And, the same must be for the benefit of the beneficiaries.

It is clear that the word ‘trust’ is used in law as an ‘abstract countable noun’, similar to ‘a concept’, ‘an idea’ or ‘a duty’.

‘A Trust’ is “An Obligation” and Not a Legal Entity

‘A trust’, according to the definition, being ‘an obligation’, it is clear that ‘a trust’ does not convey the idea that the ‘trust’ is a legal person, an association of persons, or a tangible or corporeal property.

  • The following are the important decisions on this point.
    • Govt. of the Province of Bombay v. Pestonji Ardeshir Wadia:  AIR 1949 PC 143;
    • Thiagesar Dharma Vanikam  v.  CIT: AIR 1964 Mad 483: 1963- 50 ITR 798  (Mad); 
    • Ramdass Trust v. Damodardas 1967 Raj LW 273;
    • Duli Chand v. Mahabir Pershad Trilok  Chand Trust: AIR 1984 Del 144;
    • Thanthi Trust v. Wealth Tax Officer: 1989- 45 TAXMAN 121: 1989-178  ITR 28;
    • Chikkamuniyappa Reddy Memorial Trust v. State: ILR 1997  Kar 2460;
    • KishorelalAsera v. Haji Essa Abba: 2003-3 Mad LW 372: 2003-3 CCC367;
    • Sagar Sharma v. Addl. CIT: 2011-239 CTR 169: 2011-336  ITR 611;
    • Sambandam v. Nataraja Chettiar: 2012-1 Mad LW 530.

As explained above:

  • ‘A trust’ is ‘an obligation’ or a fiduciary duty upon the trustee to administer the trust property for the benefit of the beneficiaries.
  • ‘Trust’ being an obligation or fiduciary duty upon the trustee to administer the trust property for the benefit of the beneficiaries, it is essentially a legal concept.
  • The expression ‘a trust’ in the definition, being followed by the words ‘is an obligation’, it is clear that ‘a trust’ does not convey the idea that it is a tangible matter or a corporeal property.
  • Trust differs from an ‘Endowment’ for,the latter is basically a tangible corporeal reality to which social concepts are adhered to.
  • The trust-property (or the dedicated-property) vests in the ‘legal ownership’ of the trustee.  
  • The term ‘endowment’ stands analogous to ‘trust property’, and not to ‘trust’ as such.
  • From the above, it is clear that, legally, the ‘trust’:
    • (i)   cannot be a juristic person;
    • (ii) cannot be an association of persons; and
    • (iii) cannot be a tangible endowment or a corporeal property.
  • In Surya Kant Chunilal v. Mahesh Chand, AIR 1972 Del. 72 it is held as under:
    • “Further defendant No. 2 (Trust) is not a registered body or a juristic person. The properties of the Trust vest in the trustees.”
  • In Kansara Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmadabad it is observed by the Gujarat High Court as under:
    • “The ‘trust property’ is nothing but the subject matter of the trust; that is, a property which is impressed with the obligation giving rise to a trust. When we speak of a trust, we speak merely of the requisite obligation which is annexed to the ownership of a property. This obligation is not a legal entity in any sense; as for example, the trust cannot own any property the property is owned by the trustee who is an entity by himself different from the trust, a trust cannot sue and a trust cannot be sued; it is only a trustee who can sue and who can be sued. It is only a trustee who can hold properties. A ‘trust’ cannot be a landlord since the trust properties vest in the legal ownership of the trustees. It is the trustee alone who can be a landlord. Since the trust is not a legal entity, no question of hardship suffered by the trust or accommodation required by the trust can arise for consideration.”

Defining Features of Societies

The following points are important and significant, and they should not be overlooked while exploring the status of societies.

  • 1. Societies, both registered and unregistered, are voluntary associations of persons. Article 19(1)(c) of our Constitution guarantees freedom to form associations and unions.  It includes in itself the right of effective functioning so as to achieve its lawful objectives.
  • 2. The Societies, as understood in our legal system, are identified in English Common Law as ‘Members’ Clubs’ and ‘Friendly Societies’.
  • 3. Societies are formed for accomplishing social, charitable, or benevolent objectives as desired by the founders and can be allowed to be modified by the future members in their discretion.
  • 4. They are funded, mainly, on voluntary donations from members or outsiders.
  • 5. Property of a Society (though theoretically joint property of the members) is maintained for the benefit of persons other than the members also (true, therefore encumbered with obligations pertaining to ‘trust’). It can be allowed to be modified by the future members in their discretion.
  • 6. Societies are registered under the Central or State Societies Registration Act, for acquiring legal identity and recognition alone.
  • 7. A society formed for religious purposes can also be registered under the Societies Registration Act as the society formed for religious purposes would also ordinarily be a Society for charitable purposes.
  • 8. But, it is held by the Patna High Court in Md. Yunus v. The Inspector General of Registration that the Societies Registration Act does not embrace purposes which are religious or predominantly religious. It is explained in Nelson v. Kallayam Pastorate by our Apex Court that when the Church, indisputably, carries on secular activities also, keeping in view the interest of the general public, there is no reason as to why in a case of mismanagement of such (registered) charitable organisations, although run by minorities, the Court cannot oversee its functions.
  • 9. Bye Laws Bind as Contract. 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. Even the formation of a society itself is based on a contract. When a person becomes a member of the society, he would have no independent rights, and lose his individuality qua the society, except those that are given to him by the statutes concerned and bylaws; and the rights of members merge in the rights of the society. In State of UP v. CD Chheoki Employees Co-operative Society, AIR 1997  SC  1413, our Apex Court explicated it with the analogy that the stream cannot rise higher than the source. It reads:
    •  “Thus, it is settled law that no citizen has a fundamental right under Article 19(1)(c) to become a member of a Cooperative Society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfillment of the qualifications prescribed to become a member and for being a member of the society and on admission, he becomes a member. His being a member of the society is subject to the operation of the Act, Rules and bye-laws applicable from time to time. A member of the society has no independent right qua the society and it is the society that is entitled to represent as the corporate aggregate. No individual member is entitled to assail the constitutionality of the provisions of the Act, Rules and the bye-laws as he has his right under the Act, Rules and the bye-laws and is subject to its operation. The stream cannot rise higher than the source.” (Quoted in Zoroastrian Co-op. H. Society Ltd. v. District Registrar: AIR 2005  SC  2306; Supreme Court Bar Association v. BD Kaushik: (2011) 13 SCC 774; Chandigarh Housing Board v. Devinder Singh: AIR 2007 SC 1723.)
  • Civil Courts’ Jurisdiction to Interfere in the Internal Affairs of a Society is well-defined by Common-Law. Unless by express mode or by necessary implication barred, civil courts’ jurisdiction permeates into every civil matter including that of the private associations and even clubs. When the affairs of such institutions, associations etc. are governed by statutes, the courts test the validity of their actions on the touch stone of such statutes. If such bodies are not directly governed by any statute but being administered under their own rules, bye laws etc., their impugned actions are tested in the light of those rules or bye laws. The courts enquire whether their acts were in conformity with those rules and bye laws, and following the principles of natural justice.

Endowment and Trust

  • ‘Trust’ is essentially a legal concept; whereas, ‘endowment’ is a corporeal reality to which social concepts are adhered. An endowment is founded by dedication of property for the purposes of religion or charity, having both the subject and object certain and capable of ascertainment.
  • An ‘endowment’ may be public or private. From the usage of the word ‘endow’ and the connected word ‘endowment’  it is clear that they relate to the idea of giving, bequeathing, or dedicating property or other possession, for some specified purpose.  According to Chambers’ Twentieth Century Dictionary, the word ‘endowment’ means: ‘that which is settled on any person or institution’. Webster’s International Dictionary gives the following meaning to the word ‘endowment’:
    • “(1) The act of bestowing a dower, fund, or permanent provision for support. (2) That which is bestowed or settled on a person or an institution; property, fund, or revenue permanently appropriated to any object; as the endowment of a church, a hospital or a college. (3) That which is given or bestowed upon the person or mind; gift of nature, accomplishment; natural capacity; talents; usually in the plural.”

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

Because, no ‘dedication’ of “property belonging to a society”. (See also notes above, under the head – A Society May Be Subjected  to the Jurisdiction of S. 92 CPC)

A suit with respect to the administrative matters of a society (both registered and unregistered), or property ‘belongs to a society’, is not controlled by Section 92. Section 92 pertains to public trusts. 

Dedication of specified property by a competent person is essential for a valid endowment.  It is relinquishment of entire rights of the donor or founder in the property dedicated. For a valid dedication, there should be proof of renunciation by the owner or divestment of his title to the property dedicated.

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; and, in the latter, the beneficial interest will 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 ‘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 objects of the society are charitable and religious purposes); and therefore, Sec. 92 CPC will not be attracted to the ‘property belonging’ to the societies. A society usually uses its property for its own purposes and it will be the property of the Society alone; and it will not be a property in respect of which it is possible to predicate a public trustas envisaged in Sec. 92 CPC. The same will be the position of Non-Trading-Companies also.

In ‘Abhaya’ a Society v. Raheem, while dealing whether Sec. 92 CPC is attracted to the affairs of a registered society, it is pointed out by the Kerala High Court 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’. Section 92 CPC is held out on the principles of ‘parens patriae’, once a trust always a trust, and the court is the protector of all charities.

In Pragdasji v. Ishwarlalbhai  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. 

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. But, if a charitable or religious institution of a public nature 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 v. Damodara Panicker  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.”

‘Property belonging to a Society’ ‘merely describes‘ the property

In Unani Tibia College case the Constitution Bench of the Supreme Court has held that the expression ‘property belonging to a society’ does not give the society a corporate status and it ‘merely describes the property which vests in trustees or governing body’ and that the provisions of the Societies Registration Act did not give a ‘corporate status’ to a society ‘for the purpose of holding and acquiring property’.  In this decision, it is further held:

  • “….. Those provisions undoubtedly give certain privileges to a society registered under that Act and the privileges are of considerable importance and some of those privileges are analogous to the privileges enjoyed by a corporation, but there is really no incorporation in the sense in which that word is legally understood.”
  • “…..  Thus something in the nature of perpetual succession is conceded by the provision that the society’s property is to vest in the trustees for the time being of the society for the use and benefit of the society and its members and of all persons claiming through the members according to the society’s rules, and further (and this is the most noteworthy provision) that the property shall pass to succeeding trustees without assignment or transfer.”

Vesting of Property – In Members, subject to the BYLAWS

Property of a Society vests in its Members subject to the contract and the foundational principles upon which it is founded. It should not be lost sight of –

  • The ownership of the ‘property of a society’ does not absolutely vest either in its members or in the governing body, but it vests in the members of the society subject to the bye laws or contract, and the fundamental principles or ‘trust’ upon which it is founded.
  • Therefore, the members do not have any proprietary or beneficial interest in the property of the society, and they cannot claim any interest in the property of the dissolved society.

We can take cue (i) from the observations of our Apex Court in Addanki Narayanappa  v. Bhaskara  Krishnappa that the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership becomes the property of the firm, and the partnership property will vest in all the partners since a firm has no legal existence; and (ii) from the following erudite assertion of Dr. BK Mukherjea, J., on Hindu Law of Religious and Charitable Trusts:

  • “The idol as representing and embodying the spiritual purpose of the donor is the juristic person recognised by law and in this juristic person the dedicated property vests.”

In case of Registered Societies, the vesting of ownership of the ‘property of a society’ is further subject to the provisions of the Act under which it is registered.

Status of property of a Society acquired after Registration

The property of a Society that was acquired after the registration of a society, also attracts Section 92 CPC if –

  • 1. it is an added property to the existing trust administered by the Society; or
  • 2. it is a property validly acquired by the Society for the purpose of dedicating it to the ‘public’.

Conclusion

For a suit to be maintainable under Section 92 of the Civil Procedure Code, the fundamental requirement is the existence of a valid trust created for public purposes of a charitable or religious nature. The application of Section 92 to the property of a society is subject to strict judicial scrutiny.

  • Courts are consistently cautious in extending the ambit of this provision to Societies, unless there is clear, unequivocal evidence that the property is held under an enforceable trust obligation for charitable or religious purposes.

Importantly, the property in question must not merely be “property belonging to a society,” as such property is governed by the Societies Registration Act, which prescribes its own statutory framework for ownership, management, and dissolution.

End Notes

Vesting of Property in Various Kinds of Associations and Trusts

Club, Society, Firm and Company

Nature of Association.Vesting of Management and Legal Ownership.Vesting  of actual/ ultimate ownershipWhether perma-nent or can it be put an end to
  ClubTrustees or Gov. Body, as per  ByelawsMembers, subject to the byelaws and objectives of foundation.Presumed to be not permanent.[19]
Unregistered. Society/ Association  -do-  -do-Presumed to be permanent.
Registered Society-do--do-Permanent.  SR Act governs dissolution
FirmPartnersPartnersContract/partnership deed governs
Trading CompanyBoard of DirectorsCompanyPermanent. Co. Act govern winding up.
Charitable or Non-trading company  -do-  -do-  -do-

Trusts/Religious-Endowments:

Public Trust– English Law[20]  TrusteesLegal ownership in Trustees; beneficial ownership in Beneficiaries.  Permanent
Public Trust-Indian (common) Law    Trustees  Beneficiaries have only beneficial interest; and, no beneficial ownership. Theoretically, properties vest in public or section who are beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of founda-tion or byelaws, if any.        Permanent
Public School, Public Library, etc.  Trustees (called by different names).    -do-  Permanent.
Private religious or charitable trustsManagement on Trustees (called by different names). If the trust/ institution/ endowment is a legal person upon which legal ownership can be vested, legal ownership will be vested upon it.Properties vest in trust/ institution/endowment itself.  If it cannot be – for it is not a legal person – property vests in such persons as established by evidence or the deed of foundation or byelaws.  Beneficiaries have no beneficial ownership.        Presumed to be permanent.
Mosque, Church, Gurudwara, etc.  Management on Trustees (by different names).  If the trust/ institution/ endowment is a legal person upon which legal ownership can be vested, legal ownership will be vested upon it.In trust/institution or endowment itself.  If it cannot be – for it is not a legal person – section of public who are beneficiaries, subject to the objectives of foundation, as established by evidence or as revealed from the deed of foundation or bylaws, if any.  Permanent
  Temple (Public)Management on Shebaits/ Darmkarta/ Ooralen. Since Idol/deity is a legal person upon which legal ownership can be vested, legal ownership vests upon it.  Idol/deitydo-
 Temple (private)-do--do--do-
   MuttManagement on Madathipathi. Since Mutt is a legal person upon which legal ownership can be vested, legal ownership vests upon it.  Mutt-do-
Private Trust (Coming under the Trusts Act  Trustees  Terms/ Deed of Trust govern.Trusts Act governs Extinction and Revocation.[21]

Government School, University, etc.

University, Govt. Hospital, Govt. College, etc.  Administrators as provided in the statute concerned  In the institution itself, if not expressly stated to be in the Government.Presumed to be permanent. Governed by the Statute concerned.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

If a Sharer Dies & the LRs are Not Impleaded – Partition Suit as a Whole Abates. But the Court SHOULD Direct Either Side to Take Steps to Bring in the Legal Heirs

Saji Koduvath, Advocate, Kottayam.

Introspection

Will a partition suit as a whole abate if a sharer dies and his legal representatives are not impleaded?

Answer – Yes, the entire partition suit will abate.

  • This is because it involves and hinges on the legal question – whether a sharer in a partition suit is a necessary party.
  • Since the rights and interests of all co-sharers must be determined collectively, the absence of a necessary party renders the adjudication incomplete and invalid, thereby causing the suit to abate as a whole.
  • Order 22, rules 3 and 4 of the Code of Civil Procedure provide for an automatic abatement.

Can a partition suit be dismissed for ‘abatement’?

Answer – No, the suit cannot be dismissed for abatement.

  • This is because partition suits are treated with certain unique characteristics under our benevolent legal system.
  • Unlike ordinary civil suits, a partition suit is considered a continuing cause of action, and the rights involved do not lapse merely due to the death or absence of a party.
  • The courts, recognising the collective and evolving nature of such claims, allow for substitution or continuation, ensuring that justice is not defeated by procedural technicalities.
  • Therefore, whenever it comes to the notice of the court that there will be prejudice to the parties for not impleading the legal heirs of a deceased party to a partition suit, the court should direct either side of the proceedings to take steps to bring in the legal heirs to the party array, and proceed thereon; because, it will be improper, if not illegal, to dismiss a partition suit or appeal on the principles of ‘abatement’.

Prologue

  • 1. It is axiomatic that a suit cannot proceed in the absence of a necessary party – Mitthulal v. Badri Prasad, AIR 1981 MP 1; Mumbai International Airport v. Regency Convention Centre , (2010) 7 SCC 417; Udit Narain Singh v. Addl. Member, Board of Revenue, AIR 1963 SC 786.
  • 2. A sale deed was executed by one person in favour of several persons (jointly). One among them died, and his legal heirs were not impleaded. Hence, the suit was abated (put an end) against him/successors. It results in the abatement (end) of the entire appeal – Raghu Sutar v. Nrusingha Nath Thakur, AIR 1959 Ori. 148; Bhajan Jena v. Panchu Jena,  AIR 1958 Ori. 246;  Harihar Pati v Sisir Kumar Bose,  AIR 1959 Ori. 41.
  • 3. It is different from a case where the interests of the purchasers were separable (by the sale deed itself) – Baij Nath v. Ram Bharose, AIR 1953 All 565; Raghu Sutar v. Nrusingha Nath Thakur, AIR 1959 Ori. 148.
  • 4. An Appeal would abate on account of the death of a necessary party whose legal representatives have not been brought on record within the prescribed period – Om Sarup Nand Lal v. Gur Narain, AIR 1965 Punj 367.
  • 5. On the death of a necessary party, the suit will stand abated due to the failure of the plaintiff to take steps for substitution – Shrimati Panna Bala Manna v. Basudeb Manna, 2011-2 CalLJ 471.
  • 6. If a plaintiff/respondent in whose favour the decree was passed dies, the appeal abates so far as he is concerned on the omission to implead his legal representative within the time allowed by law and if he was a necessary party to the appeal, the entire appeal becomes incompetent and cannot be proceeded with – Santosh Kumar Mondal v. Nandalal Chakrapani, AIR 1963 Cal. 289; State of Punjab v. Nathu Ram, AIR 1962 SC 89, Kali Dayal v. Nagendra Nath, 24 Cal WN 44 : AIR 1920 Cal 264; Bishnu Bijoy v. Chandra Bijoy, AIR 1955 Cal 281.

Necessary Party

In Mumbai International Airport Private Limited v. Regency Convention Centre and Hotels Private Limited, (2010) 7 SCC 417, it is held as under:

  • “15. A “necessary party” is a person who ought to have been joined as a party and in whose absence no effective decree could be passed at all by the court. If a “necessary party” is not impleaded, the suit itself is liable to be dismissed. A “proper party” is a party who, though not a necessary party, is a person whose presence would enable the court to completely, effectively and adequately adjudicate upon all matters in dispute in the suit, though he need not be a person in favour of or against whom the decree is to be made. If a person is not found to be a proper or necessary party, the court has no jurisdiction to implead him, against the wishes of the plaintiff. The fact that a person is likely to secure a right/interest in a suit property, after the suit is decided against the plaintiff, will not make such person a necessary party or a proper party to the suit for specific performance.” (Quoted in: Urban Improvement Trust, Bikaner v. Gordhan Dass, 2024-3 SCC 250.)

In Udit Narain Singh Malpaharia v. Addl. Member, Board of Revenue, Bihar, AIR 1963 SC 786, it was held as under:

  • “The law on the subject is well settled: it is enough if we state the principle. A necessary party is one without whom no order can be made effectively; a proper party is one in whose absence an effective order can be made but whose presence is necessary for a complete and final decision on the question involved in the proceeding.” (Quoted in: Assam Small Scale Ind. Dev. Corp. Ltd.  v. JD Pharmaceuticals, AIR2006 SC131; 2005-13 SCC 1)

Potential Arguments Against Abatement

In a partition suit, every party—whether plaintiff or defendant—is considered a necessary party. Ordinarily, unless appropriate steps are taken to bring the legal heirs on record, the death of a party may lead to abatement of the suit. However, there are strong legal and equitable arguments that can be raised to say that there is no abatement (of the whole suit) in certain situations, such as:

  1. One of the plaintiffs died. His legal heirs cannot take a different stand from what had been taken by their predecessor (and that taken by the living co-plaintiffs).
  2. If the deceased defendant had filed a written statement admitting the plaint, and his legal heirs cannot take a different stand.
  3. The heirs of the deceased co-sharer or co-owner is a necessary party to the suit, and each one can come on record, afterwards, on his own application, under Order 21, Rule 10 CPC.

Counter to the above arguments is that there is no settled legal principle that supports the view. But, in case of a final decree proceedings, the following assertions are germane –

  1. Once a court passes a preliminary decree, it must ensure that the matter is referred to the Collector or a Commissioner for division unless the parties themselves agree the manner of division.
  2. A decree in a partition suit enures to the benefit of all co-owners.
  3. There is no limitation for filing a final decree application in law.

Final decree without LRs may cause prejudice

It is plain – it is a reality that the final decree proceedings without a sharer may cause prejudice to the legal heirs of the deceased, and also to other parties to the suit; and that there is a possibility of inconsistent decrees – one in favour of the surviving parties and the other in favour of the deceased party.

Recent Supreme Court Decisions

In a recent decision of our Apex Court, Suresh Chandra v.  Parasram, 18 July 2025, the verdict of the High Court, that found that there was no sufficient cause to condone the delay in filing an application to set aside the abatement on the death of a co-appellant, while the appeal was pending in the High Court, was upheld; and also confirmed the dismissal of the suit by the High Court. The application had been filed by the first appellant, on the death of the second appellant, his near relative. The Supreme Court held as under:

  • “On abatement of second appeal qua the second appellant Ram Babu, the entire second appeal abated as continuance of the second appeal would have given rise to a possibility of inconsistent decrees i.e., one in favour of the plaintiff against the deceased defendant-appellant  and the other in favour of the surviving defendant appellant, even though both defendants claimed joint interest in the suit property flowing from their father.”

In Venigalla Koteswaramma v. Malampati Suryamba, 2021 (4) SCC 246, a suit was instituted, inter alia, for partition, our Apex Court accepted the submission that the whole appeal before the High Court had been abated due to non-substitution of the legal representatives of the deceased defendant, after surveying several decisions including a five-Judge Bench decision of the Supreme Court in Sardar Amarjit Singh Kalra v. Pramod Gupta, (2003) 3 SCC 272.  (Venigalla Koteswaramma v. Malampati Suryamba, 2021 (4) SCC 246, is referred to in: Suresh Chandra v.  Parasram, 18 July 2025)

Court WILL Exercise its Inherent Power to set aside Abatement

Rule 9 of Order 22 CPC enables only the plaintiff or the person claiming to be the legal representative of the deceased plaintiff to apply for an order to set aside the abatement – the legal representatives of a deceased defendant are not so enabled. Therefore, the heirs of the deceased defendant are free to come on record on his own application, invoking the inherent power of the court. (See: Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291;  Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79.)

In such cases, even though the defendant has been given no power to make an application to set aside the abatement, the Court has inherent power to set aside the abatement and enable the suit to be proceeded with. The Court should exercise this inherent power to save the parties from the trouble and costs of a second partition suit and traverse the grounds already traversed. The court will exercise this power in appropriate cases. (See: Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291;  Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79.) It is further held in Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291, as under:

  • “There is however the provisions of O. 1, R. 10 of the Code which is very wide in its terms and which would enable the legal representative of a deceased defendant to be added as a party. ……. This power is very extensive and there is no limitation curtailing or restricting the power of the Court to add parties under O. 1, R. 10 of the Code of Civil Procedure. In exercise of the power under this rule, the Court has power and should exercise that power to save a partition suit which has abated.” (Quoted in: Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79.)

Earlier, in Morasa Anjaiah v. Kondragunte Venkateswarlu, AIR 1993 AP 156, it was opined that the court has no inherent power to set aside abatement, as it can be invoked only when there is no specific provision in the Code and that a party cannot be allowed to have recourse to the general provisions of Order 1, Rule 10 C.P.C. for impleading the legal representatives. This view is not accepted by a single judge in Sriramula Ramachandram v. Sriramula Bhoodamma, AIR 1994 AP 79, and said as under:

  • “But in Morasa Anjaiah v. Kondragunte Venkateswarlu, AIR 1993 AP 156 a Division Bench of this Court relying on the judgment of the Supreme Court in Union of India v. Ram Charan, AIR 1964 SC 215 held as follows:– “in view of this decision of the Supreme Court (Ram Charan’ ‘s case, AIR 1964 SC 215), the judgment of the Madras High Court in M. Ramakrishna Reddi v. R. Narasimha Reddi, AIR 1932 Mad 527 and the judgment of the Calcutta High Court in Provat Chandra v. Rabindra Nath, AIR 1960 Cal 291, in so far as they held that the Court has inherent power to set aside the abatement, are no longer good law.” With respect to the Division Bench, I demur.”

The Legitimate View to Settle the Controversies

  • Whenever it comes to the notice of the court that there will be prejudice to the parties for not impleading the legal heirs of a deceased party to a partition suit, the court SHOULD direct either side of the proceedings to take steps to bring in the legal heirs to the party array, and proceed thereon; because, it will be improper, if not illegal, to dismiss a partition suit or appeal on the principles of ‘abatement’.

No abatement in execution of a partition suit because of a Specific Provision

In UP, there will be no abatement in execution of a decree in a partition suit (for not impleading LRs), because of a specific provision.  It is pointed out in Rudra Pal Singh v. Ram Pal Singh, AIR 1972 All. 67, as under:

  • “The Allahabad High Court has made certain amendments in the Rule, and the amended Rule 12 of Order XXII, C.P.C. reads thus:
    • “Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order or to proceedings in the original court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit.” 
  • Because of this amendment, there is no question of abatement either of the execution proceeding or of the preparation of the final decree in case of the death of a party. The amendment made by the Allahabad High Court certainly has got no retrospective effect, as was held by this Court in ‘AIR 1935 ALL 180’ (Sewa Ram v. Gian Singh).” See also: AIR 1931 ALL 490 (FB)”. 
  • Quoted in: Muthulakshmi v. R. Purusothaman, decided on 27 April, 2009 (Madras).

No Final Decree Against the Deceased Party; If so, Nullity

AN Ray, J. further observed in 1962, in Sohanlal Serowgie v. Gambhirmull Serowgie, 1962-67 CalWN 417, as under:

  • “Mr. Bhabra rightly contended that if, after the preliminary decree, the party dies, then the final decree could not be made against the deceased party, as such decree would be a nullity as against the deceased party.
    • See: Sakti Nath v. Jessore United Bank Ltd., AIR 1939 Cal. 403,
    • Mr. Abdur Rahim v. Ezekiel, 39 CWN 1284.
  • It was pointed out in Nazir Ahmed v. Tamizaddin, 57 Cal. 285, that it is necessary to have the legal representative of the deceased party substituted in place of the deceased party. Mr. Bhahra contended that this substitution is made under Or. 22 r. 10 of the Code and the provision under rr. 3 and 4 of O. 22 have no application.
    • See: Shanti Devi v. Khodai Prosad Sinha, AIR 1924 Pat. 340
    • Lalbehari v. Ishwar, AIR (1956) Pat. 376
    • Eknath v. Hanmantram,   AIR (1947) Nag. 75,
    • Bhusan Chandra v. Chabimoni, 53 C. W. N. 582.
  • It is thus manifest that a party may be added to the suit after the preliminary decree and the manner in which the legal representative has to be brought on record should be by amending the cause title in the plaint and also by inserting in the body of the plaint, if necessary, the character in which he is brought and the liabilities which he has or the rights which he asserts.
    • See: Janab All v. Satis Chandra, AIR 1936 Cal. 698 at 699 and
    • Jagannath v. Parameshwar, AIR 1940 PC 11.”

Preliminary Decree Must Be Potential Enough

A N Ray, J. pointed out in 1962, in Sohanlal Serowgie v. Gambhirmull Serowgie, 1962-67 CalWN 417, that the definition of decree says that the decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in suit; and that the preliminary decree must be pregnant enough to take further proceedings. It is observed as under:

  • “It will appear from the definition of decree that the decree conclusively determines the rights of the parties with regard to all or any of the matters in controversy in suit. In the preliminary decree, there are further proceedings to be taken before the suit can be completely disposed of. When such further proceedings remain to be taken, the suit is pending and there can be amendment of the plaint as has been held by the Judicial Committee in Jagannath Roy v. Parameshwar,   AIR 1940 PC 11, and Bhutnath v. Tarachand, 25 C. W. N. 595.

In Phoolchand v.. Gopal Lal, AIR 1967 SC 1470, it was found, in a partition suit – even after the preliminary decree, an amendment is permissible until the passing of the final decree on account of subsequent events leading to variation in shares.

In Partition Suits, No adjudication of Title of Transferee; Still Add him

In Ram Prasad Rauniar v. Bishwanath Prasad Rauniar, AIR 1976 Pat 94, it was pointed out, relying on Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee, (1894) ILR 21 Cal. 904, that two fundamental principles were to be borne in mind in dealing with such cases.

  • (i) “A transferee from one of the co-sharers from out of his share of an undivided property has no separate existence for the purpose of the partition suit, apart from his transferor. That being so, in a pure suit for partition, the derivative title of such a transferee does not fall for any adjudication.”
  • (ii) “The second basic principle in cases of this nature is that although such a transferee of an undivided share of a joint property cannot claim as a matter of right to be added as a necessary party to the suit, yet the important advantage of his being so permitted to be represented at the time of final allocation and allotment of shares is that it lightens the partition suit by avoiding the necessity of deciding as to the existence and validity of the transfers claimed over the undivided shares. Keeping these principles in view, it cannot be said that in the absence of defendant No. 9, who was appellant No. 3 in the Lower Appellate Court, the rights and liabilities of the parties in so far as the partition of the suit lands was concerned, could not be effectively adjudicated upon. It also follows as a necessary concomitant of the second principle enunciated above that in order to lighten the partition suit by avoiding the necessity of deciding as to the existence and validity of the transfers in question it is meet and proper in the circumstances of the case to add the present appellants 4 to 9, who are the heirs of the original defendant No. 9 as party appellants before the Lower Appellate Court ex debito justitiae.”

This decision emphasises that a ‘sharer’ is a necessary party.

Partition  Suits – Whether Mortgagee a Necessary Party

In Jadu Nath Roy v. Parameswar Mullick, AIR 1940 PC 11, it was considered whether a mortgagee was a necessary party in a partition suit. It was pointed out that a partition necessarily affected the interest of a mortgagee, but he was not a necessary party. Sir George Rankin said as under:

  • “A partition necessarily affects the interest of a mortgagee of an undivided share, since after the partition, his security is upon the divided share or the separate allotment. For this reason, some High Courts in India would appear to join such mortgagees as parties to the suit as a matter of course, and by some English authorities [cf. Daniel’s Chancery Practice (Edn. 8) p. 198] the practice is considered to be that while a mortgagee upon the whole estate is not a necessary party a mortgagee of one of the undivided portions would be a necessary party [cf. Swan v. Swan, (1819) 8 Price 518=22 RR 770 ; Sinclair v. James, (1894) 3 Ch 554=63 LJ Ch 873=8 R 637=71 LT 483. The practice in Bengal follows the lines laid down by Sir Arthur Wilson in 1880 in Mohindro Bhoosun v. Soshee Bhoosun, (1880) 5 Cal 882 where a person having a disputed claim to be a mortgagee from the plaintiff in a partition suit applied to be joined.”
  • “In Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee, (1894) 21 Cal 904 at p. 909 stated the practice succinctly: A mortgagee is not a necessary party to a partition suit but he may and frequently does obtain leave to attend the proceedings as a quasi-party.”
  • “The question as between the plaintiff and the defendant is who is entitled to the property in dispute? To determine that question it is not necessary that the mortgagees should appear; they will not be bound by any finding come to in their absence. In case of a decree for partition being made the mortgagees should have leave to come in and attend the partition proceedings.”

Sir George Rankin quoted from Khetterpal Sritirutno v. Khelal Kristo Bhuttacharjee, (1894) ILR 21 Cal. 904, where Sale J. said as under:

  • “A mortgagee is not a necessary party to a partition suit, but he may, and frequently does, obtain leave to attend the ‘proceedings as a quasi-party’.”

Further, Sale J. added as under:

  • “If the mortgagee had proceeded to a sale pending the partition, the purchaser would have become a necessary party to the partition suit’.”

It is beyond doubt – the Privy Council proceeded on the basis that a ‘sharer’ was a necessary party.

End Notes

Order 22, Rule 3 of Code of Civil Procedure reads as under:

  • 3. Procedure in case of death of one of several plaintiffs or of sole plaintiff– (1) Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.
  • (2) Where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned and, on the application of the defendant, the Court may award to him the costs which he may have incurred in defending the suit, to be recovered from the estate of the decreased plaintiff.

Order 22, Rule 10 of the CPC reads as under::

  • 10. Procedure in case of assignment before final order in suit. (1) In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
  • (2) The attachment of a decree pending an appeal therefrom shall be deemed to be an interest entitling the person who procured such attachment to the benefit of sub-rule (1).

Note – Order 22, Rule 10, CPC recognises the right of a transferee to be impleaded as a party to the proceedings and to be heard before any order is made.

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

First Appellate Court to Independently Assess the Evidence, Even If No Ground is Taken in Appeal Memorandum

Saji Koduvath, Advocate, Kottayam.

Abstract

  • The first appeal court must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings.
  • First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law.
  • The first appellate court must, being the final court of fact, give reasons for its decision on each point independently to that of the trial court.
  • The first appellate court must consider, and discuss the entire evidence in detail.
  • The first appeal is a valuable right of the parties and unless restricted by law.
  • In the first appeal, the parties have a right to be heard both on questions of law and on facts and the judgment.

CIVIL CASES: First Appellate Court To Independently Assess The Evidence

In B.V. Nagesh v. H.V. Sreenivasa Murthy, (2010) 10 SCC 551, the Supreme Court of India held as under:

  • “The appellate Court has jurisdiction to reverse or affirm the findings of the trial Court. The first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for re-hearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put- forth and pressed by the parties for decision of the appellate Court. Sitting as a court of appeal, it was the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings. The first appeal is a valuable right and the parties have a right to be heard both on questions of law and on facts and the judgment in the first appeal must address itself to all the issues of law and fact and decide it by giving reasons in support of the findings. [Vide Santosh Hazari vs. Purushottam Tiwari, (2001) 3 SCC 179 and Madhukar and Others vs. Sangram and Others, (2001) 4 SCC 756].” (Quoted in: H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492; 2011-4 SCC 240)

In H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492; 2011-4 SCC 240, it is held as under:

  • “18. The said provisions provide guidelines for the appellate court as to how the court has to proceed and decide the case. The provisions should be read in such a way as to require that the various particulars mentioned therein should be taken into consideration. Thus, it must be evidence from the judgment of the appellate court that the court has properly appreciated the facts/evidence, applied its mind and decided the case considering the material on record. It would amount to substantial compliance with the said provisions if the appellate courts judgment is based on the independent assessment of the relevant evidence on all important aspects of the matter and the findings of the appellate court are well founded and quite convincing.  It is mandatory for the appellate court to independently assess the evidence of the parties and consider the relevant points which arise for adjudication and the bearing of the evidence on those points. Being the final court of fact, the first appellate court must not record mere general expression of concurrence with the trial court judgment rather it must give reasons for its decision on each point independently to that of the trial court. Thus, the entire evidence must be considered and discussed in detail. Such exercise should be done after formulating the points for consideration in terms of the said provisions and the court must proceed in adherence to the requirements of the said statutory provisions.
    • (Vide: Thakur Sukhpal Singh v. Thakur Kalyan Singh, AIR 1963 SC 146;
    • Girijanandini Devi v. Bijendra Narain Choudhary, AIR 1967 SC 1124;
    • G. Amalorpavam  v. R.C. Diocese of Madurai, (2006) 3 SCC 224;
    • Shiv Kumar Sharma v. Santosh Kumari, (2007) 8 SCC 600; and
    • Gannmani Anasuya & Ors. v. Parvatini Amarendra Chowdhary, AIR 2007 SC 2380)

CRIMINAL CASES: First Court of Appeal Must Re-Appreciated The Entire Evidence

In State of Punjab v. Bhag Singh, AIR 2004 SC 1203; 2004-1 SCC 547  (Doraiswamy Raju, Dr. Arijit Pasayat, JJ.), it is held as under:

  • “5. The trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the trial Court was at lapse in this regard the High Court was obliged to undertake such an exercise by entertaining the appeal. The trial Court on the facts of this case did not perform its duties, as was enjoined on it by law. The High Court ought to have in such circumstances granted leave and thereafter as a first court of appeal, re-appreciated the entire evidence on the record independently and returned its findings objectively as regards guilt or otherwise of the accused. It has failed to do so. The questions involved were not trivial. The requirement of independent witness and discarding testimony of official witnesses even if it was reliable, cogent or trustworthy needed adjudication in appeal. The High Court has not given any reasons for refusing to grant leave to file appeal against acquittal, and seems to have been completely oblivious to the fact that by such refusal, a close scrutiny of the order of acquittal, by the appellate forum, has been lost once and for all. The manner in which appeal against acquittal has been dealt with by the High Court leaves much to be desired. Reasons introduce clarity in an order. On plainest consideration of justice, the High Court ought to have set forth its reasons, howsoever brief, in its order indicative of an application of its mind, all the more when its order is amenable to further avenue of challenge. The absence of reasons has rendered the High Court order not sustainable.” (Also See: State of Orissa v. Dhaniram Luhar, AIR 2004 SC 1794; 2004-5 SCC 568, Doraiswamy Raju, Dr. Arijit Pasayat, JJ.)

In Ghurey Lal v. State of U.P., (2008) 10 SCC 450, as follows:

  • “1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law.
  • 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent.
  • 3. Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.
  • In light of the above, the High Court and other appellate courts should follow the well-settled principles crystallised by number of judgments if it is going to overrule or otherwise disturb the trial court’s acquittal:
  • The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so.
  • A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court’s decision. “Very substantial and compelling reasons” exist when:
    • The trial court’s conclusion with regard to the facts is palpably wrong;The trial court’s decision was based on an erroneous view of law;The trial court’s judgment is likely to result in “grave miscarriage of justice”;The entire approach of the trial court in dealing with the evidence was patently illegal;The trial court’s judgment was manifestly unjust and unreasonable; The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.
    • This list is intended to be illustrative, not exhaustive.”

Reasons For Interference Against Trial Court’s Acquittal

In S. Anil Kumar v. State of Karnataka, (2013) 7 SCC 219, it is held as under:

  • “Only in exceptional cases where there are compelling circumstances and where the judgment in appeal is found to be perverse, can the High Court interfere with the order of acquittal.”

In Rohtash v. State of Haryana, (2012) 6 SCC 589: AIR 2012 SC 2297, it was observed as under:

  • “The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court’s acquittal bolsters the presumption of innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.
  • (Vide State of Rajasthan v. Talevar, (2011) 11 SCC 666 : AIR 2011 SC 2271 : 2011 AIR SCW 3889
  • Govindaraju v. State, (2012) 4 SCC 722 : AIR 2012 SC 1292 : 2012 AIR SCW 1994).”

If two views possible, one favourable to accused not be disturbed

In Ramaiah @ Rama v. State of Karnataka, 2014 (9) SCC 365, it has been held by Hon’ble Apex Court that if two views are possible on the evidence adduced and the one favourable to the accused has been taken by the trial court, it should not be disturbed.

  • “30. This very principle of law was formulated by the Court in M. Madhusudhan Rao (supra) in the following manner:
  • “13. There is no embargo on the appellate court to review, reappreciate or reconsider the evidence upon which the order of acquittal is founded. Yet, generally, the order of acquittal is not interfered with because the presumption of innocence, which is otherwise available to an accused under the fundamental principles of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a court of law, gets further reinforced and strengthened by his acquittal. It is also trite that if two views are possible on the evidence adduced in the case and the one favourable to the accused has been taken by the trial court, it should not be disturbed. Nevertheless, where the approach of the lower court in considering the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to the characterised as perverse, then, to prevent miscarriage of justice, the appellate court is obliged to interfere.
  • 14. All these principles have been succinctly culled out by one of us (C.K. Thakker, J.) in Chandrappa and Ors. v. State of Karnataka, (2007) 4 SCC 415 : AIR 2007 SC (Supp) 111 : 2007 AIR SCW 1850″.
  • 31. In Chandrappa (supra), which was followed in the aforesaid case, the Court had observed:
  • “44. In our view, if in the light of above circumstances, the trial court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of the appellate court are as wide as that of the trial court and it can review, reappreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court, it ought not to be disturbed by the appellate court. In this case, a possible view on the evidence of prosecution had been taken by the trial court which ought not to have been disturbed by the appellate court. The decision of the appellate court (the High Court), therefore, is liable to be set aside.”

 In State of Rajasthan v. Raja Ram, (2003) 8 SCC 180 : AIR 2003 SC 3601, Court observed thus:

  • “7. Generally the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, or the purpose of ascertaining as to whether any of the accused committed any offence or not. (see Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.” (Emphasis Supplied).
  • 16. Therefore, the argument of the learned counsel for the appellant that the High Court has erred in reversing the acquittal of accused appellant, stands good. The Additional Sessions Judge was right in granting him benefit of doubt. The view which favours the accused/appellant has to be considered and we discard the opposite view which indicates his guilt.
  • 17. We are also of the view that the High Court should not have interfered with the decision taken by the Additional Session Judge, as the judgment passed was not manifestly illegal, perverse, and did not cause miscarriage of justice. On the scope of High Court’s revisional jurisdiction, this Court has held in Bindeshwari Prasad Singh v. State of Bihar, (2002) 6 SCC 650 : AIR 2002 SC 2907, “that in absence of any manifest illegality, perversity and miscarriage of justice, High Court would not be justified interfering with the concurrent finding of acquittal of the accused merely because on re-appreciation of evidence it found the testimony of PWs. to be reliable whereas the trial Court had taken an opposite view.” This happens to be the situation in the matter before us and we are of the view that the High Court was wrong in interfering with the order of acquittal of Upendra Pradhan passed by the Additional Sessions Judge.
  • 18. The Second ground pleaded before us by the counsel for the accused appellant, that the testimonies of P.W. 1 and P.W. 7 should not have been considered, as they were interested witnesses, holds no teeth. We are of the opinion that the testimonies of interested witnesses are of great importance and weightage. No man would be willing to spare the real culprit and frame an innocent person. This view has been supplemented by the decision of this Court in Mohd. Ishaque v. State of West Bengal, (2013) 14 SCC 581.
  • * *
  • 22. Therefore, in the light of the above discussion, we allow this appeal and set aside the impugned judgment and order passed by the High Court. The appellant has been released on bail vide this Court’s order dated 15.04.2014. His bail bonds are discharged.”

In V. Sejappa Vs. State AIR 2016 SC 2045, our Apex Court observed as under”:

  • “21. If the evaluation of the evidence and the findings recorded by the trial court does not suffer from any illegality or perversity and the grounds on which the trial court has based its conclusion are reasonable and plausible, the High Court should not disturb the order of acquittal if another view is possible. Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. In State through Inspector of Police, A.P. v. K. Narasimhachary, (2005) 8 SCC 364, this Court reiterated the well settled principle that if two views are possible, the appellate court should not interfere with the acquittal by the lower court and that only where the material on record leads to an inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. The same view was reiterated in T. Subramanian v. State of T.N., (2006) 1 SCC 401.
  • 22. In Muralidhar alias Gidda and Anr. v. State of Karnataka, (2014) 5 SCC 730, this Court noted the principles which are required to be followed by the appellate court in case of appeal against order of acquittal and in paragraph (12) held as under:-
  • .”12. The approach of the appellate court in the appeal against acquittal has been dealt with by this Court in
    • Tulsiram Kanu, AIR 1954 SC 1,
    • Madan Mohan Singh, AIR 1954 SC 637,
    • Atley, AIR 1955 SC 807,
    • Aher Raja Khima, AIR 1956 SC 217,
    • Balbir Singh, AIR 1957 SC 216,
    • M.G. Agarwal, AIR 1963 SC 200,
    • Noor Khan, AIR 1964 SC 286,
    • Khedu Mohton, (1970) 2 SCC 450,
    • Shivaji Sahabrao Bobade, (1973) 2 SCC 793,
    • Lekha Yadav, (1973) 2 SCC 424,
    • Khem Karan, (1974) 4 SCC 603,
    • Bishan Singh, (1974) 3 SCC 288,
    • Umedbhai Jadavbhai, (1978) 1 SCC 228,
    • K. Gopal Reddy, (1979) 1 SCC 355,
    • Tota Singh, (1987) 2 SCC 529,
    • Ram Kumar, (1995) Supp 1 SCC 248,
    • Madan Lal, (1997) 7 SCC 677,
    • Sambasivan, (1998) 5 SCC 412,
    • Bhagwan Singh, (2002) 4 SCC 85,
    • Harijana Thirupala, (2002) 6 SCC 470,
    • C. Antony, (2003) 1 SCC 1,
    • K. Gopalakrishna, (2005) 9 SCC 291,
    • Sanjay Thakran, (2007) 3 SCC 755 and
    • Chandrappa, (2007) 4 SCC 415.
  • It is not necessary to deal with these cases individually. Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following:
  • .(i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court;
  • (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal;
  • (iii) Though, the powers of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified; and
  • (iv) Merely because the appellate court on reappreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.”

Raghunath Laxman Makadwada v. State of Maharashtra, AIR 1986 SC 1070; 1986-2 SCC 90, observed as under:

  • “In Shivaji Narayan Bachhav v. State of Maharashtra, (1983) 4 SCC 129, we had referred to several of the earlier cases and stated :
  • “The appeal of the accused of the High Court was dismissed summarily with the one word dismissed, placing this Court in a most embarrassing position in dealing with the special leave petition under Article 136 of the Constitution. Such summary rejection of appeals by the High Court has been disapproved by this Court more than thirty years ago in Mushtak Hussein v. State of Bombay (AIR 1953 SC 282) and thereafter, over the years, in a series of cases from the same High Court :
    • Shreekantiah Ramayya v. State of Bombay, (AIR 1955 SC 287),
    • Vishwanath Shankar Beldar v. State of Maharashtra, (1969 (3) SCC 883),
    • Siddanna Apparao Patil v. State of Maharashtra, (AM 1970 SC 977),
    • Narayan Nathu Naik v. State of Maharashtra, (AIR 1971 SC 1656),
    • Govinda Kadtuji Kadam v. State of Maharashtra, (AIR 1970 SC 1033),
    • Shaikh Mohd. Ali v. State of Maharashtra, (AIR 1973 SC 43),
    • Kapurchand Kesrimal Jain v. State of Maharashtra, (AIR 1973 SC 243),
    • Jeewan Prakash v. State of Maharashtra (AIR 1973 SC 278),
    • Mushtaq Ahmed v. State of Gujarat, (AIR 1973 SC 1222),
    • Krishna Vithu Suroshe v. State of Maharashtra, (AIR 1974 SC 274),
    • Sampat Tatyada Shinde v. State of Maharashtra, (AIR 1974 SC 791),
    • Dagadu v. State of Maharashtra, (AIR 1981 SC 1218).
  • We are pained and not a little perturbed, that despite the long series of judgments all arising from cases from the same High Court has not chosen to correct itself and continues in the error of its ways. Except in certain cases when an accused person has pleaded guilty and in petty cases, every person convicted of an offence has a right of appeal under the Criminal Procedure Code. An appeal may be both against conviction and sentence and on facts and law. A convicted person is entitled to ask an appellate Court to reappraise the evidence and come to its own conclusion. An appellate Court has the undoubted power to dismiss an appeal in limine. Section 384 of the Criminal Procedure Code provides for it. But, it is a power which must be exercised sparingly and with great circumspection. One would think a conviction for murder and a sentence of imprisonment for life, as in the case before us, were serious enough matters for the High Court to warrant admission of the appeal and fair and independent consideration of the evidence by the High Court. Summary rejection of the appeal with the laconic expression dismissed seems to be a drastic step in such cases. To so reject an appeal is to practically deny the right of appeal. We cannot also over-emphasise the importance of the High Court making a speaking order when dismissing a criminal appeal in limine.
  • “The requirement of recording reasons for summary dismissal, however concise, serves to ensure proper functioning of the judicial process.” There must be some indication that the High Court addressed itself to the questions at issue and had the record before it. In the present case there is not even an indication whether the record had been called for and whether it was before the Court. We have little option but to set aside the order of the High Court. The High Court may now admit the appeal and deal with it according to law.”

In Santosh Hazari v. Purushottam Tiwari, AIR 2001 SC 965, 2001 (3) SCC 179 (CJ, R.C. Lahoti, Briijesh Kumar), it is held as under:

  • “The Appellate Court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court must, therefore, reflect its conscious application of mind, and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. The task of an appellate Court affirming the findings of the trial Court is an easier one. The appellate Court agreeing with the view of the trial Court need not restate the effect of the evidence or reiterate the reasons given by the trial Court; expression of general agreement with reasons given by the Court, decision of which is under appeal, would ordinarily suffice (See Girijanandini Devi & Ors. Vs. Bijendra Narain Choudhary, AIR 1967 SC 1124). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate Court for shirking the duty cast on it.” (Quoted in: Madhukar v. Sangram, AIR 2001 SC 2171, 2001 (4) SCC 756)

Duty on the First Appellate Court

In L.N. Aswathama v. P. Prakash, (2009) 13 SCC 229 (Harjit Singh Bedi, R. V. Raveendran, JJ.), the duty of first Appellate court was quoted in para 8 of the judgment as follows:-

  • “The first appellate court can re-appreciate evidence and record findings different from those recorded by the trial court. It is well settled that if the appraisal of evidence by the trial court suffers from material irregularity, as for example when its decision is based on mere conjectures and surmises, or when its decision relies upon inadmissible evidence or ignores material evidence or when it draws inferences and conclusions which do not naturally or logically flow from the proved facts, the appellate court is bound to interfere with the findings of the trial court. It is equally well settled that where the trial court has considered the entire evidence and recorded several material findings, the first appellate court would not reverse them on the basis of conjectures and surmises or without analysing the relevant evidence in entirety. As the final court of facts, if the first appellate court is reversing the judgment of the trial court, it is bound to independently consider the entire evidence.”

Eschewing Relevant Evidence – Appeal Court Can Consider, Even If No Ground

In the decision in Retnamma v, Mehaboob, ILR 2013-2 Ker 613; 2013-2 KHC 670; 2013-2 KLT 648, the appellants had not challenged the commission report as per appeal memo in this second appeal and no ground was also raised regarding the validity of commission report. It was argued on the basis, Boodireddy Chandraiah v. Arigela Laxmi, 2007 (8) SCC 155, that in the absence of any ground being raised in the appeal memo and also in the absence of framing of an issue by this Court relating to commission report, it would be illegal to consider the same in the second appeal. The High Court said as under:

  • “75. The above question is a substantial question of law because to resolve the dispute between the parties, it would be essential to consider the same and the factual findings on the dispute will depend upon the answer to the above question. It will be inevitable to consider the question, even to resolve the question of identity of the property, which is crucial. Therefore, the above substantial question of law is involved in this appeal and hence, both sides are heard on the same, as permitted by Section 100, C.P.C.
  • 78. In this context, it is also relevant to make a reference to Rule 109 (4) of the Civil Rules of Practice. The said provision lay down that “no question regarding the admissibility of evidence shall be made the subject of an issue“. Therefore, such an issue may not arise before the trial court.”

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Handwriting Expert Evidence: Relevant, But Merely an Opinion

Saji Koduvath, Advocate, Kottayam.

Abstrract

  • Evidence of Handwriting Expert is not a substantial piece of evidence.
  • Admissibility and reliability are different aspects.
  • It can be relied upon when supported by other evidence.
    • However, it is also important to note that there is no rule of law requiring corroboration.
    • It is also not impermissible to base a finding solely on the opinion of a handwriting expert.
  • Expert opinion is a weak type of evidence.
  • The court is not bound by the opinion of the expert; an expert deposes and does not decide.
  • The court has to satisfy ‘on its own observation’.
  • It is open to the Court to apply its own observation by comparison.
  • It may be the plain duty of the court to compare the handwriting with or without an expert, with or without other evidence.
  • Under S. 293 of the CrPC, the report of a Government-scientific-expert will be admissible, even if the expert is not examined.

Introduction

Evidence of a Handwriting Expert is not a substantial piece of evidence. It can be relied upon when supported by other items of internal and external evidence (Alamgir v. State (N.C.T. Delhi), AIR 2003 SC 282: 2003 Cr LJ 456).

Weak Evidence

The expert opinion is a weak type of evidence. In S. Gopal Reddy v. State of Andhra Pradesh, AIR 1996 SC 2184, our Apex Court held as under:

  • “27….. The evidence of an expert is rather weak type of evidence and the courts do not generally consider it as offering ‘conclusive’ proof and therefore safe to rely upon the same without seeking, independent and reliable corroboration.
  • In Magan Bihari Lal Vs. State of Punjab (AIR 1977 SC 1091), while dealing with evidence of a handwriting expert, this Court opined:
  • “We think it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with mare caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. This rule has been universally acted upon and it has almost become a rule of law.
  • It was held by this Court in Ram Chandra v. State of U.P., AIR 1957 SC 381 that it is unsafe to treat expert handwriting opinion as sufficient basis for conviction, but it may be relied upon when supported by other items of internal and external evidence.
  • This Court again pointed out in Ishwari Prasad v. Md. Isa, AIR 1963 SC 1728 that expert evidence of handwriting can never be conclusive because it is, after all, opinion evidence, and this view was reiterated in Shashi Kumar Vs. Subodh Kumar, AIR 1964 SC 529, where it was pointed out by this Court that expert’s evidence as to handwriting being opinion evidence can rarely, if ever, take the place of substantive evidence and before acting on such evidence, it would be desirable to consider whether it is corroborated either by clear direct evidence or by circumstantial evidence.
  • This Court had again occasion to consider the evidentiary value of expert opinion in regard to handwriting in Fakhruddin v. State of M.P. AIR 1967 SC 1326 and it uttered a note of caution pointing out that it would be risky to found a conviction solely on the evidence of a handwriting expert before acting upon such evidence, the court must always try to see whether it is corroborated by other evidence, direct or circumstantial.”

Also Read: Expert Evidence and Appreciation of Evidence

S. 293 CrPC:  Admissible Even If Expert is Not Examined

According to Section 293 of the CrPC, the report of a Government-scientific-expert will be admissible as evidence, even if the expert is not examined, if the court can summon or examine the experts. When the court summons such an expert and that expert is not able to attend personally, such expert can send his responsible working officer on his behalf who is well versed with the examination done by such expert.

Proof-value of Expert Opinion Considerations

While appreciating an expert-evidence, the Court has to consider –

  • .(i) Danger of error or deliberate falsehood (Haryana Seeds Development Corporation Ltd. v. Sadhu,  AIR 2005 SC 2023: (2005) 3 SCC 198.
  • (ii) It is only an opinion; there is a chance of error. (Mohd. Zahid v. State of Tamil Nadu, AIR 1999 SC 2416: (1999) 6 SCC 120).
  • (iii) There is a likelihood of being unconsciously prejudiced in favour of the side that calls him. (Gulzar Ali v. State of Himachal Pradesh,  (1998) 2 SCC 192.)

No rule of law – Corroboration Necessary

In Murari Lal v. State of Andhra Pradesh, AIR 1980 SC 531: (1980) 1 SCC 704O (Chinnappa Reddy, Ranjit Singh Sarkaria,JJ.) the Supreme Court laid down the following rules –

  • “We begin with observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration.
  • 4. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses-the quality of credibility or incredibility being one which an expert shares with all other witnesses-, but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion.
  • The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect.
  • The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent.
  • On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher.
  • But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons.
  • It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness.
  • His opinion has to be tested by the acceptability of the reasons given by him.
  • An expert deposes and not decides. His duty ‘is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence’. (vide Lord President Cooper in Dacie v. Edinbeagh Magistrate : 1953 S. C. 34 quoted by Professor Cross in his Evidence).
  • From the earliest times, courts have received the opinionof experts. As long ago as 1553 it was said in Buckley v. Rice-Thomas(1) :
    • “If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation.”
  • 6. Expert testimony is made relevant by s. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person ‘specially skilled’ ‘in questions as to identity of handwriting’ is expressly made a relevant fact.
  • There is nothing in the Evidence Act, as for example like illustration (b) to s. 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars which justifies the court in assuming that a handwriting expert’s opinion is unworthy of credit unless corroborated. 
  • The Evidence Act itself (s. 3) tells us that ‘a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists’.
  • It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act.
  • Further, under s. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case.
  • It is also to be noticed that s. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant.
  • So, corroboration may not invariably be insisted upon before acting on the opinion of handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree.
  • There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated.
  • The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.”
  • xxxx
  • “…. There is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated.
  • But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution.
  • Reasons for the opinion must be carefully probed and examined. All other relevant evidence must be considered.
  • In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted.
  • There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight.
  • We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.
  • The argument that the court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. 
  • Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written.
  • If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary.
  • There may be cases where both sides call experts and two voices of science are heard. There may be cases where neither side calls an expert, being ill able to afford him. In all such cases, it becomes the plain duty of the Court to compare the writings and come to its own conclusion.
  • The duty cannot be avoided by recourse to the statement that the court is no expert. 
  • Where there are expert opinions they will aid the Court.
  • Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court’s own experience and knowledge.
  • But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar (AIR 1964 SC 529) and Fakhruddin v. State of Madhya Pradesh ( AIR 1967 SC 1326) were cases where the Court itself compared the writings.”

Murari Lal v. State of Andhra Pradesh, AIR 1980 SC 531: (1980) 1 SCC 704O, is referred to in the following decisions:

  • Yogarani VS State by the Inspector of Police, AIR 2024 SC 4641,
  • Basheera Begam v. Mohammed Ibrahim, 2020-11 SCC 174
  • Padum Kumar v. State of Uttar Pradesh, AIR 2020 SC 447; 2020-3 SCC 35,
  • M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1,
  • B.  Raghuvir Acharya v. Central Bureau of Investigation, 2014-14 SCC 693,
  • Ravichandran v. State by Dy. Supdt. of Police, Madras, AIR 2010 SC 1922; 2010 – 11 SCC 120
  • Alamgir v. State (NCT, Delhi), AIR 2003 SC 282; 2003-1 SCC 21,
  • State of Maharashtra v. Sukhdev Singh, AIR 1992 SC 2100; 1992-3 SCC 700.

Science of Identification of Handwriting Not Infallible

In State of Maharashtra v. Sukhdev Singh & Another, (1992) 3 SCC 700, this Court observed as under:

  • “29. It is well settled that evidence regarding the identity of the author of any document can be tendered
  • (i) by examining the person who is conversant and familiar with the handwriting of such person or
  • (ii) through the testimony of an expert who is qualified and competent to make a comparison of the disputed writing and the admitted writing on a scientific basis and
  • (iii) by the court comparing the disputed document with the admitted one. …
  • But since the science of identification of handwriting by comparison is not an infallible one, prudence demands that before acting on such opinion the court should be fully satisfied about the authorship of the admitted writings which is made the sole basis for comparison and the court should also be fully satisfied about the competence and credibility of the hand writing expert. It is indeed true that by nature and habit, over a period of time, each individual develops certain traits which give a distinct character to his writings making it possible to identify the author but it must at the same time be realised that since handwriting experts are generally engaged by one of the contesting parties they, consciously or unconsciously, tend to lean in favour of an opinion which is helpful to the party engaging him. That is why we come across cases of conflicting opinions given by two handwriting experts engaged by opposite parties. It is, therefore, necessary to exercise extra care and caution in evaluating their opinion before accepting the same. So courts have as a rule of prudence refused to place implicit faith on the opinion evidence of a handwriting expert. Normally courts have considered it dangerous to base a conviction solely on the testimony of a handwriting expert because such evidence is not regarded as conclusive. Since such opinion evidence cannot take the place of substantive evidence, courts have, as a rule of prudence, looked for corroboration before acting on such evidence. True it is, there is no rule of law that the evidence of a handwriting expert cannot be acted upon unless substantially corroborated but courts have been slow in placing implicit reliance on such opinion evidence, without more, because of the imperfect nature of the science of identification of handwriting and its accepted fallibility. …”(Quoted in Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1)

Court has to Satisfy ‘On Its Own Observation’

In Ram Narain v. State of Uttar Pradesh, AIR 1973 SC 2200: (1973) 2 SCC 86, a child was kidnapped; the parent received post-card and an inland letter demanding money, as ransom; a handwriting expert testified the writings in the letters to be in the handwriting of the accused. Solely on the basis of this evidence the accused was convicted. The Supreme Court upholding  the conviction observed as under:

  • “Both under section 45 and section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case, the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means is to apply its own observation verify the opinion of the witness. This is not to say that the Court may play the role of an expert, but to say that Court may accept the fact only when it has satisfied itself on its own observation that it is safe to accept the opinion of the expert or the other witness.”

In Ram Narain v. State of U.P., (1973) 2 SCC 86, our Apex Court also observed as under:

  • “6. … Now it is no doubt true that the opinion of a handwriting expert given in evidence is no less fallible than any other expert opinion adduced in evidence with the result that such evidence has to be received with great caution. But this opinion evidence, which is relevant, may be worthy of acceptance if there is internal or external evidence relating to the document in question supporting the view expressed by the expert. …” (Quoted in Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1)

In Fakhruddin v. State of Madhya Pradesh, AIR 1967 SC 1326, our Apex Court observed as under:

  • “Both under Section 45 and Section 47 the evidence is an opinion, in the former by a scientific comparison and in the latter on the basis of familiarity resulting from frequent observations and experience. In either case the Court must satisfy itself by such means as are open that the opinion may be acted upon. One such means open to the Court is to apply its own observation to the admitted or proved writings and to compare them with the disputed one, not to become a handwriting expert but to verify the premises of the expert in the one case and to appraise the value of the opinion in the other case. This comparison depends on an analysis of the characteristics in the admitted or proved writings and in finding of the same characteristics in large measure in the disputed writing. In this way the opinion of the deponent whether expert or other is subjected to scrutiny and although relevant to start with becomes probative. Where an expert’s opinion is given, the court must see for itself and with the assistance of the expert come to its own conclusion whether it can safely be held that the two writings are by the same person. This is not to say that the court must play the role of an expert but to say that the court may accept the fact proved only when it has satisfied itself on its own observation that it is safe to accept the opinion whether of the expert or other witness.” (Quoted in Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1)

Admissibility & Reliability – Different Aspects

In Malay Kumar Ganguly Vs. Sukumar Mukherjee. AIR 2010 SC 1162, it is pointed out that the evidence of an expert should be interpreted like any other evidence.

In Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1, it is observed as under:

  • “Whether the FSL Report on its own was sufficient to hold that the suicide letter was written by Neeraj.
  • 60. However, the mere fact that the expert report was admissible in evidence does not mean that it should on its own form the basis of conclusion that the suicide letter was written by Neeraj. Admissibility and reliability/credit worthiness of a piece of evidence are entirely different aspects. An inadmissible piece of evidence is to be eschewed. But when a piece of evidence is admissible, as to what weight it would carry for determining a fact in issue would depend on the proven facts and circumstances of the case.

Court Not To Base Finding Solely On Opinion Of Expert

In Santosh @ Bhure v. State (G.N.C.T.) of Delhi, 2023 INSC 443; 2023-4 MLJ(Cri) 1, our Apex Court continued after referring its various previous decisions as under:

  • “65. The underlying principle deducible from the observations extracted above is that though it is not impermissible to base a finding with regard to authorship of a document solely on the opinion of a handwriting expert but, as a rule of prudence, because of imperfect nature of the science of identification of handwriting and its accepted fallibility, such opinion has to be relied with caution and may be accepted if, on its own assessment, the Court is satisfied that the internal and external evidence relating to the document in question supports the opinion of the expert and it is safe to accept his opinion.
  • 66. In the instant case, with regard to authorship of the suicide letter, the Trial Court though returned a finding in favour of the prosecution by relying solely on the expert report but did not record its satisfaction having regard to its own observations with respect to the admitted and disputed writings. It also did not examine whether in the proven facts and circumstances of the case it would be safe to rely on the expert report. It be noted that section 73 of the IEA, 1872 enables a Court to compare the words or figures written by a person present in Court with any words or figures alleged to have been written by such person. The Trial Court therefore could have undertaken such an exercise. But, in the instant case, there appears no such exercise undertaken by the Trial Court. What is important is that in the instant case there is no witness statement identifying the handwriting of Neeraj or disclosing that Neeraj wrote the suicide letter in his presence. There is also no evidence to explain the relevance of the contents of the suicide letter. Interestingly, the suicide letter indicts one Chhote Porwal. As to why such indictment was made; whether it was with reference to some other event contemplated, the prosecution evidence is silent. Besides that, there is no evidence to show that the investigating officer queried person(s) conversant with the handwriting of the deceased to rule out possibility of the suicide letter being in the writing of the deceased himself. In our view, such an exercise was necessary to lend assurance to the prosecution story of the suicide letter being written by Neeraj to mask the murder, because, firstly, the death on its face was not suicidal, and, secondly, it could have ruled out possibility of it being written in contemplation of some other event. Seen in that light, barring the expert report, there exists no internal or external evidence to lend assurance to the prosecution story that the suicide letter was written by Neeraj.
  • xxxxxx
  • 68. A glance at those injuries would reflect that five of them were perforating or penetrating wounds cavity deep. Out of those, two were on chest and three on abdomen. Such injuries are clearly homicidal therefore, masking this homicidal event as a suicide does not appeal to logic. Further, the injuries are not of same dimension. In these circumstances, a question would arise as to why would Neeraj who has no proven connection with the deceased or the co accused Santosh, or for that matter the apartment where the dead body was found, make a futile effort to mask the event of murder and thereby leave a trace of his own culpability. To answer that, the prosecution has led no admissible evidence. Thus, even if we assume that a suicide letter was found, at what stage it was written — prior to, or post the murder, or in connection with some other event which the deceased contemplated — is anybody’s guess.
  • 69. In light of the discussion above, taking into account that Neeraj has denied the incriminating circumstance of writing the suicide letter and no internal or external evidence, save the expert report, supports the writing of suicide letter by Neeraj, we are of the considered view that though the expert evidence was admissible as an opinion on the writing in the suicide letter but, on overall assessment of the evidence led by the prosecution, solely on its basis, it would be extremely unsafe to hold that the suicide letter retrieved from the trouser of the deceased was written by Neeraj.”

Evidence of a handwriting expert is unlike that of a fingerprint expert

In Bhagwan Kaur v. Maharaj Krishan Sharma, AIR 1973 SC 1346: (1973) 4 SCC 46, it was observed as under::

  • “The evidence of a handwriting expert, unlike that of a fingerprint expert, is generally of a frail character and its fallibilities have been quite often noticed. The courts should, therefore, be wary to give too much weight to the evidence of a handwriting expert.”

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Divergent Views – Whether S. 43, Evidence Act Includes S. 13; Whether Judgment not Inter Parties is Admissible under S. 13  

Taken from: Relevance of a Civil Case Judgment in Criminal Cases: Does a Civil Court Judgment Bind a Criminal Court?

Saji Koduvath, Advocate, Kottayam.

Abstract

  • The relevancy of a previous judgment (in a subsequent case) is governed by Sections 40 to 43 of the Indian Evidence Act, 1872.
  • Section 43, inter alia, permits the production of earlier judgments that are deemed “relevant under other provisions of this Act.”
  • There are divergent views on the applicability of Sections 5, 8, 11 and 13, Evidence Act, under this clause in Section 43.
    • First view—Sections 5, 8, 11 and 13 being delineate the general provisions, and the relevance of prior judgments is primarily governed by Sections 40 to 43, the previous judgments will not be liberally permitted (invoking the clause “relevant under some other provisions of this Act”).
    • Second view—The phrase “relevant under some other provisions of this Act” as stated in Section 43, must be interpreted to encompass its complete and comprehensive significance.
  • Differences of opinion also exist as to the admissibility of a judgment not inter parties, under Section 13.
  • The legitimate view, it appears, is the following –
    • (i) Previous judgments can be admitted in evidence (invoking the clause “relevant under some other provisions of this Act”) if they fall under Sections 5, 8, 11 and 13. Nevertheless, the admissibility of the previous judgments being essentially governed by Sections 40 to 43, they cannot be allowed to be freely imported, invoking the general provisions.
    • (ii) The probative value of the previous judgment has to be determined by the court, even if such a previous judgment is marked in evidence as ‘relevant’.
    • (iii) In any case, the use of the previous judgment is definitely relevant in certain contexts. For instance:
      • To show motive for an offence (Section 8) – i.e., to find whether the judgment provoked anger in the accused.
      • To determine the sentence or damages to be imposed – i.e., to see whether there would be double jeopardy.

First View: “Other Provisions of this Act” in S. 43 Will Not Cover S. 13

A three-Judge Bench, in State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Syed Murtaza Fazalali, A. Varadarajan, V. Balakrishna Eradi, JJ.) held as under:

  • “We are, however, of the opinion that where there is a specific provision covering the admissibility of a document, it is not open to the court to call into aid other general provisions to make a particular document admissible. In other words, if a judgment is not admissible as not falling within the ambit of sections 40 to 42, it must fulfil the conditions of s. 43. Otherwise, it cannot be relevant under s. 13 of the Evidence Act. The words “other provisions of this Act” cannot cover s. 13 because this section does not deal with judgments at all.”

Second View: Judgment not Inter Parties is Admissible under Section 13

But, a contra-view is taken in a Two-Judge Bench in Tirumala Tirupati Devsthanam v. K. M. Krishnaiah, AIR 1998 SC 1132; 1998-3 SCC 331 (S.P. Bharucha & M. Jagannadha Rao, JJ.), which reads as under:

  • “9. In our view, this contention is clearly contrary to the rulings of this Court as well as those of the Privy Council. In Srinivas Krishna Rao Kango v. Narayan Devji Kango & Ors., AIR 1954 SC 379, speaking on behalf of a Bench of three learned Judges of this Court, Venkatarama Ayyar, J. held that a judgment not inter parties is admissible in evidence under Section 13 of the Evidence Act as evidence of an assertion of a right to property in dispute. A contention that judgments other than those falling under Sections 40 to 44 of the Evidence Act were not admissible in evidence was expressly rejected.
  • Again B.K. Mukherjee, J. (as he then was) speaking on behalf of a Bench of four learned Judges in Sital Das v. Sant Ram & Ors., AIR 1954 SC 606, held that a previous judgment not inter parties, was admissible in evidence under Section 13 of the Evidence Act as a ‘transaction’ in which a right to property was ‘asserted’ and ‘recognised’.
  • In fact, much earlier, Lord Lindley held in the Privy Council in Dinamoni v. Brajmohini, (1902) ILR 29 Cal. 190 (PC), that a previous judgment, not inter partes** was admissible in evidence under Section 13 to show who the parties were, what the lands in dispute were and who was declared entitled to retain them. The criticism of the judgment in Dinamoni v. Brajmohini and Ram Ranjan Chakerbati v. Ram Narain Singh, 1895 ILR 22 Cal. 533 (PC), by Sir John Woodroffe in his commentary on the Evidence Act (1931, P 181) was not accepted by Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder, AIR 1934 PC 157.”
  • ** ‘inter partes‘: meaning – between the parties

This view (Judgment not Inter Parties is Admissible under Section 13) is also in:

  • Ahale Sunnathwal Jamath Jogi Madam, Majid v. Haji Syed Irfan Hussain Sahib, 2024-2 CTC 27; 2023-5 LW 775; 2024-1 MLJ 202
  • Tiruvannamalai Karuneekar Sangam v. Saradambal Ammal 2023-5 CTC 138; 2023-3 LW 289,
  • S. Govindarasu Udayar v. Pattu, 1999 – 2 – L.W. 184,
  • Daular Ram v. Keshav Smarak Samiti, 2011 SCC Online Del 4472,
  • Raman Pillai Krishna Pillai v. Kumaran Parameshwaran, AIR 2002 Ker 133
  • Andhra Pradesh Waqf Board v. Syedm Jalaluddin Sha, AIR 2005 AP 54.
  • Dinamoni v. Brajmohini, (1992) ILR 29 Cal 190 (PC – Lord Lindley)
  • Lord Blanesburgh in Collector of Gorakhpur v. Ram Sunder, AIR 1934 PC 157: 61 IA 286.

Also see:

  • Madhukar D. Shende v. Tarabai Aba Shedage (2002-2 SCC 85),
  • Ram Bhool and Another v. Bhudev Prasad and Another (2013-11 ADJ 276) &
  • Nisar Husain & Another v. Board of Revenue Uttar Pradesh at Allahabad & Others (2016 -34 LCD 2672).
  • Collector of Gorakhpur vs. Ram Sundar Mal, AIR 1934 PC 157
  • Maharaja Sir Kesho Prasad Singh vs. Bahurin Musammat Bhagjogna Juer, AIR 1937 PC 69.

Conclusion

  • 1. Even though State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, is rendered by the larger bench, it is seen that the High Courts preferred to follow Tirumala Tirupati Devsthanam v. K. M. Krishnaiah, AIR 1998 SC 1132, as shown above.
  • 2. The apparent inconsistency between State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, and Tirumala Tirupati Devsthanam v. K. M. Krishnaiah, AIR 1998 SC 1132, is not yet resolved by the Supreme Court.

End Notes:

What are “Relevant Under Some Other Provisions of this Act” in Sec. 43

Following provisions are pointed out frequently, in this regard –

  • Sec. 5 (Facts in issue);
  • Sec. 8 (which refers to motive, preparation and previous or subsequent conduct);
  • Sec. 11 (which says when facts not otherwise relevant become relevant);
  • Sec. 13 (when existence of right or custom is in question then any transaction or particular instances where the right or custom is claimed, recognized etc. become relevant),
  • Sec. 54 Explanation (2), when a previous conviction is relevant as evidence of bad character), etc.
  • Sec. 58 (Admitted Facts)

Judicial Discipline & Application of Per Incuriam Rule

Propositions:

  • 1. Decision of a Bench of larger number of Judges prevails over the decision of a smaller number of Judges – Union of India v. Raghubir Singh, AIR 1989 SC 1933.
  • 2. If a Bench of the same number of Judges disagrees with a decision of the same number of Judges, then the matter has to be referred for decision to a larger Bench of the Supreme Court.  Even if a later decision is given without referring to the earlier decision, yet it is the earlier decision which will hold the field – Union of India v. S.K. Kapoor (2011) 4 SCC 589

Relevancy of a Civil Case Judgment in a Criminal Case – Abstract Propositions

1. Independent evidence/finding needed.

  • M.S. Sheriff v. State of Madras, AIR 1954 SC 397 (Vivian Bose, J.)
  • State of Rajasthan v. Kalyan Sundaram Cement Industries, AIR 1996 SC 2823,
  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87 (MB Shah, J.)
  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370  (G.P. Mathur, J.)
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765,
  • Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (SB Sinha, J.)
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

2. It is not correct to say – a judgment of a civil court shall be binding on the criminal court.

  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
  • Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545 (SB Sinha, J.)

3. There is neither any statutory nor any legal principle that findings recorded by the court, either in civil or criminal proceedings, shall be binding between the same parties (even) while dealing with the same subject-matter.

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 (R.F. Nariman, J.)

4. Sections 41 to 43 of the Evidence Act deal with relevancy alone (Not conclusive except as provided in Section 41).

  • K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
  • Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713

5. Criminal liability must be proved beyond reasonable doubt, while civil liability is based on preponderance of probabilities; different principles and different standards of proof.

  • Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
  • P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765
  • Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.

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