Saji Koduvath Associates

What is Easement? Does Right of Easement Allow to ‘Enjoy’ Servient Land After Making Improvements Therein ?

Saji Koduvath, Advocate, Kottayam.

What is Easement?

Easement is a right possessed by the owner of a land (dominant land),
- to use the land of another (servient land),
- for the beneficial enjoyment of the dominant land.

Easement (सुखाधिकार) Does Not Confer Ownership or Possession

By virtue of easement –

No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
No Possession is obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335)
No Substantive Interest is created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).

Easement: According to ‘Katiyar on Easements’

Easement is not a right to land or exclude owner.
It is not a right to permanent occupation.
It does not confer exclusive right of user/enjoyment.
And, it is not a corporeal interest in land.

Easement – Definition under the Indian Easements Act

SECTION 4 of the Indian Easements Act defines Easements as under:

“An easement is a right
which the owner or occupier of certain land possesses,
- as such,
for the beneficial enjoyment of that land
to do and continue to do something, or to prevent and continue to prevent something being done,
in or upon, or in respect of, certain other land not his own.”

Easement is a mere ‘Privilege’ according to English Law.

But, Indian Law on Easement confers “limited interest” also in the land of another.
It is clear from Explanation to Sec. 4 (Definition of Easement) of the Indian Easements Act, 1882. The Explanation lays down that the expression “to do something” in the definition includes removal and appropriation of any part of the soil of the servient heritage, or anything growing or subsisting thereon (Profit-a-Prendre).
They are made definite by the Illustrations to various sections as shown under:
- Illustn.-(d) of Sec. 4.
  - It speaks as to – Graze cattle,
  - take water and fish out from the tank,
  - take timber from wood,
  - take fallen leaves for manuring.
- Illustn.- (b) of Sec. 22.
  - It states about cutting thatching- grass.
- Illustn.- (a) of Sec. 24.
  - It refers to easement to lay pipes.

Easement is Well Recognised, and Circumscribed by Law

Easement is a limited right to ‘use’or ‘enjoy‘ another’s land.
It is to do, or to prevent to do, some specific thing.
It is to be exercised in a way least onerous to the ‘another’s land’.
It is not a right to build and enjoy.
The right gained cannot be enlarged.
- That is, an easement of way to a particular (dominant) property cannot be extended to another property by the dominant owner; an easement for residential purpose cannot be enlarged for an industrial purpose.
Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

Salient Limitations of Easement under the Indian Easements Act

The owner of a land only ‘uses’or ‘enjoys‘ land of another (Sec. 31)
It is only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in Sec. 4).
It allows limited enjoyment of land, and advantages from its situation: S. 7
right be exercised in a way least onerous to ‘another’s land’: Sec. 22
Servient owner can secure full enjoyment; but, he should cause as little inconvenience: Sec. 24: 2017-2 KLT 63

It is Not a right to:

tend to total destruction of servient tenement: S. 17 (2003 (1) KLT320)
make additional burden: S. 23
make constructions in, or cultivate upon: (2003 (1) KLT 320).
prevent servient owner to use: S. 27 : 2003 (1) KLT 320
enlarge purpose of, or accustomed, user: S. 28
substantially increase an easement: S. 29
prevent servient owner from obstructing excessive ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
increase burden by making permanent change in do. tent: S. 43
capable of forming grant – No easement, if Not capable of forming grant (without document or registration): 1987 (2) KLT 1037.

No easement if:

right claimed is incidents of ownership.
servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.

“Which the owner or occupier of certain land possesses”

Sec. 12 states that an easement is acquired by the owner of an immovable property. Sec. 21 lays down that an easement must not be used for any purpose not connected with enjoyment of the dominant heritage. It cannot be severed from dominant heritage.

‘Enjoyment’ of ‘Land’

Easements are limited to ‘enjoyment of’ Servient ‘land’ (and things ‘subsisting’, for land includes things permanently attached to earth).

“For the beneficial enjoyment of that Land.“

The most outstanding clause in the definition of easement is “Beneficial Enjoyment”.

Easements are primarily for the beneficial enjoyment of dominant heritage. Easement stands as part and parcel of dominant land. The definition says that an easement is a ‘right which the owner or occupier of certain land possesses, as such’.

“As Such“

‘As such’ is used for emphasis to convey that easement is essentially connected to the dominant land, and it is inherently for the beneficial enjoyment of annexed/appertained (dominant) land; and not a right ‘in gross’ (for the benefit of individuals).

Profit-a-prendre (Right to Take): Indian Law Varies from English Law

Under English Law, an easement is a privilege alone, and profit-a-prendre (right to take) is not an easement. It does not allow “Removal and Appropriation” either. The Indian Easements Act purposefully used “to do something in or upon”, decisively avoiding, ‘to use’ or ‘to enjoy’; because Indian Law allows ‘profit-a-prendre‘ [fishing, pasturing, grass-cutting for thatching, etc.]. It is allowed in Indian situations, but without conferring substantial interest in the servient land. ‘Profit a prendre’ is not appurtenant to any dominant land; and it is a right ‘in gross’ (for the benefit of individuals).

‘Beneficial Enjoyment‘ in Easement includes “Removal and Appropriation“

The Explanation to the definition of Easement (in Sec. 4) reads as under:

“Explanation – In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth;
the expression “beneficial enjoyment” includes also possible convenience, remote advantage, and even a mere amenity;
and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”

The word ‘Servient’ is derived from ‘Servant’

Literal meaning of the word ‘servient’ is – subordinate, subservient and subject to another. Etymologically it is derived from ‘servus’ (Latin) meaning – slave or servant.

“Dominant and Servient Heritages and Owners: The land for the beneficial enjoyment of which the right exists is called the dominant heritage, and the owner or occupier thereof the dominant owner; the land on which the liability is imposed is called the servient heritage, and the owner or occupier thereof the servient owner.”

Thus, the land upon which the right is claimed is ‘servient’ land.

Easement is acquired; not arise out of ‘Express Permission’

Sec. 12, Easements Act states that an easement is acquired (under grant, partition or prescription) by the owner of an immovable property. Section 12, Indian Easements Act, 1882 reads as under:

12. Who may acquire easements-An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.
One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.

It is observed by the Apex Court in Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103, that the claimant of easement (prescription) should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement.

Easement and Licence – Distinction

Division Bench of this High Court in Chandu Lal v. Municipal Corporation of Delhi, AIR 1978 Del 174, distinguished easement and licence as under:

“26… A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain the right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser……..”

Methods of Acquisition of Easements

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:

easements by grant: express grant by the owner of the servient heritage
easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
easements by prescription: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and
customary easements: it is inferred that it is acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

Basis of Every Right of Easement Is Theoretically a Grant

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:

The basis of every right of easement is theoretically a ‘grant’ from the servient-owner.

It may be expressed, as in Sections 8 to 12 of the Act; or
it may be implied from the circumstances as in Section 13 of the Act; or
it may be presumed from long and continued user for a certain period as in Section 15 of the Act; or
it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

Grant by a Co-owner

Grant effected by a co-owner with the consent of other co-owners, or validated by their approval or ratification, alone is valid. In proper cases such consent or ratification may be presumed.

Lost Grant

In Easements Act by Dr. Karandikar & Chitaley at Page 425, note 20 (Title by lost grant), it is observed as follows:

“(2) The evidence from which a lost grant may be inferred is not very different from the evidence on which a claim for a prescriptive easement may be established.
(3) (Drainage system of defendant’s building connected with sewer line of plaintiff’s building – Right claimed by defendant exercised secretly – Held, right was not proved.) The presumption of lost grant may be negatived by showing legal incompetence as regards owner of the servient tenement to grant an easement or a physical incapacity of being obstructed as regard the easement itself or an uncertainty or secrecy of enjoyment putting out of the category of all known easements.
(4) Where the plaintiff did make out a case of user from time immemorial in the plaint a decree could be granted on the basis of lost grant.
(5) Acquisition of easement by immemorial user based on doctrine of lost grant can be claimed when dominant and servient tenements are held under same landlord.
(6) Proof of the origin of right or by such proof of long & uninterrupted usage as in the absence of a documentary title will suffice to establish a prescriptive right.” (Quoted in Varghese v. Jose Mathew, 2014-3 Ker LT 1065).

In Halsbury’s Laws of England Vol 16(2) at Page 42, paragraph 76, it is observed as follows:

“76. Prescription based on presumed grant. The doctrine of prescription generally is based upon the presumption of a grant, the common law doctrine being that all prescription presupposes a grant once made and validly subsisting, but since lost or destroyed. The other forms of prescription are merely modifications of this doctrine. The presumption in the former instance of such a grant arises under the doctrine of prescription from the fact of enjoyment of the right. It therefore follows that a right claimed by prescription must be such that it could have formed the subject matter of a grant. Nothing which cannot have had a lawful beginning can be claimed by prescription. Recourse can only be had to the doctrine of prescription in cases where a grant of the right is not forthcoming, for prescription has no place if a grant is proved and its terms are known“. (Quoted in Varghese v. Jose Mathew, 2014-3 Ker LT 1065).

Extent of Easement – If used for several purposes, inferred for all purposes

Under the provisions of the Easements Act, the dominant owner cannot –

enlarge purpose of, or accustomed, user (S. 28) and
substantially increase an easement (S. 29).

In Cowling v Higginson (1838) 4 M & W 245, it was held as under:

“If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes.”

Extent of Easement

The courts in India took the stand that easement for one purpose can be changed to another, provided there is no additional burden (agricultural purposes might be used for the purpose of a factory provided no additional burden). See:

Jesang v. Whittle, (1899) ILR 23 Bom 595,
Manchersha Sorabji v. Virjivallabhdas, (1926) ILR 50 Bom 635,
Mahammad Beari v. Badava Beari, (1931) 61 Mad LJ 58.

Our Courts followed the principles laid down in the following English cases-

Williams v. James: [1867] LR 2 CP 577, held that ‘a right of way obtained by prescription for the purpose of carting hay to field ‘cannot be increased so as to affect the servient tenement by imposing upon it any additional burthen’.

This decision is followed in Jotindra Mohan Mitter v. Probodh Kumar Dutt, AIR 1932 Cal 249, and it was held –
“In ascertaining the extent of the right of user of a road when the condition of the adjoining property has been altered, the fact that there was plenty of room in the road had never been taken into consideration. The right must be measured according to the principle laid down by Wills, J., in Williams v. James [1867] 2 C.P. 577 as a reasonable use for the purpose of the land in the condition in which it was when the user took place, that is in the case of this mansion, in the state in which it was when the grant was made. The matter must however be looked at reasonably, and no small addition to the house would be improper. Here there had been a very large increase.

Wimbledon and Putney Commons Conservators v. Dixon: (1875) 1 Ch D 362, held that ‘if a right of way to a field be proved by evidence of user, however general, for whatever purpose qua field, the person who is the owner of that field cannot from that say, I have a right to turn that field into a manufactory, or into a town, and then use the way for the purpose of the manufactory or town so built.’

This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
“In Wimbledon and Putney Commons Conservators v. Dixon (1875) 1 Ch D 362 it was held that the immemorial user of a right of way for all purposes for which a road was wanted in the then condition of the property, does not establish a right of way for all purposes in an altered condition of the property where that would impose a greater burden on the servient tenement. Where a road had been immemorially used to a farm not only for usual agricultural purposes, but in certain instances for carrying building materials to enlarge the farm-house and rebuild a cottage on the farm, and for carting away sand and gravel dug out of the farm, it was decided that those circumstances did not establish a right of way for carting the materials required for building a number of new houses on the land.”

Corporation of London v. Riggs (1880) 13 Ch. D. 798, held that a right of way of necessity is not a general right “for all purposes”; it is limited to the uses to which it had been put at the time when the action first arose or when the way of necessity was created.

This decision is followed in Manchersha Sorabji Shet v. Virijvalavdas Jekisandas, (1926) 28 BomLR 1158, and it was held –
“Again, in Corporation of London v. Riggs (1880) 13 Ch.D. 798 the head-note runs as follows :- Where the owner of a close surrounded by his own land grants the land and reserves the close, the implied right to a way of necessity to and from the close over the land operates by way of re-grant from the grantee of the land, and is limited by the necessity which created it.”

The converse had been pointed out in Cowling v. Higginson, (1838) 4 MEE & W 245-

“If a way has been used for several purposes, there may be a ground for inferring that there is a right of way for all purposes”. (See: Vasudeva Prabhu Madhava Prabhu, AIR 1993 Ker 68.)

Easement: ‘Easement’ is the right in the land of another

‘Easement’ under Sec. 4 of the Easements Act is the right in a land ‘not of his own’. See:

Vasudeva Prabhu Madhava Prabhu, AIR 1993 Ker 68 (no easement in co-ownership property)
Venkateswaraswamivari Devasthanam v. Velidandla Kanakalakshmi, AIR 1976 AP 250
Sumanlal Bhagwandas v. Naginlal Bhagwandas, AIR 1967 Guj 87,
Raychand Vanmali-das v. Maneklal Mansukhbhai, AIR 1946 Bom 266
Marghabhai Vallavbhai v. Motibhai Mithabhai, AIR 1932 Bom 513.

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

Can one claim ‘easement of necessity’ and ‘easement by prescription’ with respect to a (same) way?
Does a way that started with minimum width (say a foot-path) under the claim ‘easement of necessity’, and continued with a higher width (so that cars can be taken), in the course of time, for more than 20 years, will yield or bring-in ‘easement by prescription’?

We find answer in negative form in Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109. It is held as under:

“10. However, a way of necessity is distinguished from the right of way acquired by prescription and cannot ripen into a prescriptive easement so long as the necessity continues. A way of necessity arises by virtue of conditions entirely different from easement of way created by prescription. The former arises by implication of law out of the necessities of the case and is based upon principle of law which negative the existence of a way by continuous adverse user. The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Existence of alternate way will End Easement of Necessity

Existence of alternate way, how ever inconvenient, will end Easement of Necessity.

See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622
Gouri Amma Krishnamma v. Seethalakshmi Amma, AIR 2004 Ker 75,
Thilakraj v. Sebastian, 2014-4 Ker LT 714, 2014 KHC 5042,
Rameshchandra Bhikhabhai Patel v. Sakriben, AIR 1978 Guj 62.

In Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, it is held that an easement by grant would not get extinguished under Section 41 of the Act which relates to an easement of necessity.

Apparent and Continuous Easements

Sec. 5 of the Easements Act defines apparent and continuous easements.

An apparent easement is defined as one the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and
a continuous easement is one whose enjoyment is, or may be, continual without the act of man.

Easement of Necessity and Quasi Easement

Easement of Necessity: even if – no visible sign (not apparent); and even if – never used before (not continuous). E.g., a foot path to a landlocked plot.
- But, there should have strict necessity.
Quasi Easement – must be visible (apparent) and must be functioning without repeated human action (continuous). E.g., water flowing through a pipe or a drainage system.
- It is based on prior use before land division.
- It requires only reasonable necessity, not strict necessity.

Implied Grant and Quasi-Easement

The question of implied grant (or quasi-easement) arises only if the alleged easement is:
- Apparent (i.e., visible upon reasonable inspection), and
- Continuous (i.e., functions without repeated human intervention)
E.g., Water flowing through a pipe, A drainage trench, Overhead electric cables.

Easement: Implied Grant and Quasi Easement in a ‘Formed’ Way

There could be no implied grant where the easements are not continuous and non-apparent. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court found quasi easement under Section 13(b) of the Indian Easements Act over a way in the following circumstances –

Though there could be no implied grant where the easements are not continuous and non-apparent, if there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
There was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to dominant property and there was no objection also to the use of disputed way by the plaintiff.
An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances.
A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
Only access to the property was through disputed pathway.
It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
The user was not obstructed for very long time.
There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Easement of Necessity is limited to Barest Necessity, however inconvenient it is

In Hero Vinoth (Minor) vs. Seshammal, (2006) 5 SCC 545, AIR 2006 SC 2234, our Apex Court held as under:

“An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognized in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.”

Who has the Burden to show Alternate Way

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, it is held that the plaintiff claiming easement of necessity or grant has only a primary burden to prove the absence of any alternate pathway.

“In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A’ schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. … The defendants have not entered the witness box to disprove the evidence led by the plaintiff.”

Who has the Onus to show Alternate Way Could Not be Used ‘As of Right’

When the existence of alternate way is shown by the alleged servient owner of easement of necessity, the onus to prove that the way cannot be used “as of right” is upon the dominant owner. In Antony @ Anthappan v. George, LAWS(KER) 2012-11-179 it is held by t6he Kerala High Court as under:

“11. When the existence of an alternate way is shown, the appellants ought to have shown that they could not use it as of right. That is because that is a matter within the knowledge of the appellants. The appellants did not adduce evidence in that line.”

The High Court then remanded the case giving the dominant owners an opportunity to adduce evidence to show that the alternate way was not one which they were entitled to use as of right.

Pleaded ‘Grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘Grant’, and not, Implied Grant, our Apex Court, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, allowed Implied Grant observing as under:

“It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

Prescriptive Rights are Inchoate until upheld by a Competent Court

No doubt, it is true, one can ‘acquire’ easement by prescription. But, prescriptive rights are said to be inchoate (started; but, not full-blown) until the such title is upheld by a competent court.

It was observed in Sultan Ahmad v. Valiullah (1912) 10 ALJ 227, that the result of the Easements Act and the similar provisions of the Limitation Act was that a right of easement could not be said to be perfected until the right was declared by a decree of court. See also:

Sultan Ahmad v. Valiullah (1912) 10 ALJ 227 is referred to in: Nachiparayan v. Narayana Goundan, (1920): 60 Ind Cas 171, (1920) 39 MLJ 574; Arjuna Udayar v. Manuswamy Naicker, 1999-1 CurCC 97;
D. Ramanatha Gupta vs S. Razaack, AIR 1982 Kant 314..
See also: Tradesh and Miners, Ltd v. Dhirendra Nath Banerjee, AIR 1944 Pat 261.

Prescriptive easement is created by adverse user, by the Hostile use

It is held in Kantaben Parsottamdas v. Ganshyambhai Ramkrishan Purohit, AIR 2022 Guj 146, as under:

“15. It is pertinent to note that the prescriptive easement is created by adverse user, by the hostile use to the title of servient owner, whereas easement of necessity is based upon the grant either express or implied.”

Easement by Prescription – ‘Acquires’ by “Hostile or Notorious Act”

Chapsibhai Dhanjibhai Danad vs Purushotram, 1971 AIR 1878, it was pointed out as under:

“In Ravachand v. Maniklal (ILR 1946 Bom. 184), it was held that an easement by prescription under ss. 12 and 15 of the Act is in fact an assertion of a hostile claim of certain rights over another man’s property and in order to acquire the easement the person who asserts the hostile claim must prove that he had the consciousness to exercise that hostile claim on a property which is not his own and where no such consciousness is proved he cannot establish a prescriptive acquisition of the fight.”

In Raychand Vanmalidas vs Maneklal Mansukhbhai, (1946) 48 BomLR 25, it was held as under:

“In any case it must be shown that the right was enjoyed as an easement, that is, as an assertion of a hostile claim of certain limited rights over somebody else’s property. Such an assertion cannot be held proved without satisfactory proof of the requisite consciousness. Prescriptive easement, as opposed to easement by grant, is always hostile. It is in fact an assertion of a hostile claim of certain rights over another man’s property and as such it resembles in some respects the claim to ownership by adverse possession of property; both are of hostile origin and are, therefore, prescriptive rights obtained by adverse enjoyment for a certain period, the difference being that while in the case of adverse possession the possessor must assert his own ownership, in the case of easement he must assert limited rights of user on a property and acknowledge its ownership in some one else. It must, therefore, follow, in my opinion, that a person who asserts such a hostile claim must prove that he had the consciousness of exercising that hostile claim on a property which is not his own, and where no such consciousness is proved, he cannot prove the prescriptive acquisition of the right”.

Easement by prescription is ‘acquired’ by ‘prescriptive’ user. It should not have been by permission or agreement. In case of easement, law requires pleading and proof – that the right claimed was enjoyed independent of any express permission (Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103).

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 62, that the acquisition of easement by prescription may be classified under the head of implied grant; for, all prescription presupposes a grant.

Easement-by-Prescription – ‘Grant’or Acquisition by “Hostile or Notorious Act”

The basis of every right of easement is theoretically a grant from the servient-owner. Grant is presumed in easement by prescription, from long and continued user. Is there incongruity (in easement by prescription) between ‘grant’ (on one part) and ‘acquisition’ of easement by “prescription” which suggests ‘adverse’ and ‘hostile or notorious’ user (on the other part)?

The answer would be that the ‘grant’ herein is only a “presumption in law”; and virtually, easement by prescription has to be acquired by hostile and/or notorious acts.

Tanba Nusaji Mahajan v. Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109 lays down the legal position accepted by Indian law, clearly, as under:

“The acquisition of way by adverse user is based upon the theory of the hostility of the use to the title of the person over whose lands it is acquired, while a way of necessity is based upon an implication of an intended grant and the use of it is based entirely upon such implication or consent to its use.”

Read: Easement by Prescription – Grant or ‘Acquiring’ by “Hostile Act”

Plea of Title and Adverse Possession – Whether Mutually Contradictory?

In Government of Kerala v. Joseph, AIR 2023 SC 3988, it is held as under:

“21.9 Claim of independent title and adverse possession at the same time amount to contradictory pleas. The case of Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 elaborated this principle as:
“15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
This principle was upheld in the case of Mohan Lal v. Mirza Abdul Gaffar (AIR 1996 SC 910, 1996 1 SCC 639 – two Judge Bench) –
“4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
The Court in Uttam Chand (Sri Uttam Chand v. Nathu Ram AIR 2020 SC 461) has reiterated this principle of adverse possession.”

(Note: Mutually destructive plea is impermissible: (2006) 12 SCC 233, AIR 2009 SC 2355).

Profit-a-prendre – Indian Law Varies from English Law

Explanation to Sec. 4 of the Indian Easements Act, 1882 reads as under:

“Explanation – In the first and second clauses of this section, the expression “land” includes also things permanently attached to the earth; the expression beneficial enjoyment includes also possible convenience, remote advantage, and even a mere amenity; and the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon.”

From the above Explanation it is clear that easement includes appropriation of certain tangible material things or natural resources (Profit-a-Prendre). They are further made clear by the Illustrations to various sections as shown under:

Illustn.-(d) of S.4. It speaks as to Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring.
Illustn.- (b) of S. 22. It states about cutting thatching- grass.
Illustn.- (a) of S. 24. It refers to easement to lay pipes.

Hence, it is clear: Easement is not a mere ‘Privilege’; but, it includes:

limited (legally-recognised) enjoyment /user/interest in serviant heritage, and
a right for (expressly-recognised) profit.

Though Profit-a-prendre is allowed by Indian law considering the peculiarities of Indian situations, it is not a corporeal right. And, it does not allow maintaining a substantial interest over the servient land. No profit-a-prendre in gross also, i.e., for the benefit of individuals. On a close look, it can be seen that it is substantially related to ‘user’ of servient land.

“To do do something & ‘Removal and Appropriation‘

In State of Bihar v. Subodh Gopal Bose, AIR 1968 SC 281, our Apex Court held as under:

“By the Explanation to Sec. 4 the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon. A profit-a- prendre is therefore included in the definition of “easement” in Sec. 4 of the Indian Easements Act. But an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute.”

“In or upon, or in respect of, certain other land not his own”

Easement is a right to do something in or upon land of another. Even if the easement involves ‘construction’, it should be of another; because, Sec. 4: Explanation reads: “land” includes also things permanently attached to earth.

If the subsisting-construction is made by, or it belongs to, dominant owner, no doubt, there will be no easement. [1987 (2) Ker LT 1037 (Bund); AIR 1915 PC 131 (Jetty); AIR 1971 SC 1878].

Easement Not Allows to ‘Enjoy’ After Making a Construction or Cultivation .

Easement is a Right for ‘enjoyment’ of things ‘subsisting’. It is a Right for limited enjoyment, and advantages arising from its situation; and it does not allow to build-and-enjoy. It is clear from Sec. 7 which indicates that easement is only a right for limited enjoyment of (a) land and (b) advantages arising from its situation. It is also clear from the Scheme of the Act as shown under:

S. 4 An easement is a ‘right which the owner or occupier of certain land possesses’ “as such”
S.4: Illustn. (d): Graze cattle, take water and fish out from the tank, take timber from wood, take fallen leaves for manuring .
S. 7: Only a right for limited enjoyment of (a) land & (b) advantages arising from its situation. (It is stated: Easements are restrictions of (a) Exclusive right (of owner) to enjoy immovable property, (b) Rights to advantages arising from its situation)
S. 12 An easement is acquired by owner an immovable property.
S. 17: Not a right – to tend to total destruction of the servient tenement. (2003 (1) KLT 320)
S. 21 An easement must not be used for any purpose not connected with enjoyment of the dominant heritage.
S. 22: Exercise easement – least onerous to servient tenement (Illustn.- b: can cut thatching- grass, not to destroy plants)
S. 23: Not to make additional burden (Illus.- b: not to advance eaves; Illus.- d: not another pollution)
S. 24: Secure full enjoyment, but cause as little inconvenience. Illus. (a) easement to lay pipes
S. 27: Servient owner is entitled to use – consistent with easement
S. 28: Easements of necessity, Right of way, Other prescriptive rights not to enlarge purpose, accustomed user etc.
S. 29: Dominant owner Cannot substantially increase an easement
S. 31: If excessive user – servient owner may obstruct the user.
S. 43: Permanent change in the dominant heritage and the burden increased – easement is extinguished

Customary Easements

Section 18 of the Easement Act reads as under:

“18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement are to be proved (Lachhi v. Ghansara Singh, AIR 1972 HP 89). In customary easements there need not be any ‘dominant tenement’. It is a right ‘in gross’ (to many). Customary easements also does not allow to ‘construct and use’.

Acquiring Customary Easement by One Person or a Fluctuating Body

Illustration (a) to sec. 18 runs as follows:

“By the custom of a certain village every cultivator of village land is entitled, as such, to grass his cattle on the common pasture. A having become the tenant of a plot of uncultivated land in the village, breaks up and cultivates that plot. He thereby acquires an easement to graze his cattle in accordance with the customs.”

A customary easement can be claimed by a family or an individual, and such claim need not be by a large community alone (R. Venkateswara Raju v. State of AP, 2020 Supreme (AP) 206). To constitute a customary easement the right claimed must be an easement and it must be in virtue of a local custom. A customary right of uninterrupted user is quite different from setting up a local custom.

It is also pointed out that different persons may have a right of pasture over a land, but the plaintiff can nonetheless claim a right independent of others, provided the necessary conditions are satisfied. A customary easement, as is obvious, embraces the needs of variable persons belonging to a class or locality, while a right by prescription is always personal. Therefore, customary easement is unappurtenant to any dominant tenement, or it has no relation to the beneficial enjoyment of a dominant tenement as required in easement. A fluctuating body like the inhabitants of the locality cannot claim an easement as can be done in customary easement. Easements are private rights belonging to particular persons while customary rights are public rights annexed to the place in general (Brahma Nand v. Teju Ram, 2019-195 AIC 584).

Easement and Grant

The term ‘Grant’ is used to denote-

A generic term to mean ‘transfer’ of immovable property (e.g., sale, lease, gift etc.).
But, in judicial parlance, it will not be an absolute ‘transfer’ of property; and remain as a concession, permission, settlement, grant of easement etc., if it is used in place of ‘transfer’ of property.
Present, aid, help etc., and the act of a settlor of trust, or of donor of a charity.
A technical term to denote conditional-transfer of lands by sovereign especially when it is purposefully used to differentiate from ‘transfer’ of property.
More than a licence (which does not create an estate or interest) and less than an outright and unconditional ‘transfer’ of property (similar to sale, gift etc.).

Characteristics of ‘Grant’

Usually it denotes a grant by deed.
It can be with or without consideration.
Unless specifically specified, it is creation of an ‘interest’ in property (in case of easement, no interest is created; but only a right of enjoyment).
As long as the conditions are fulfilled, grant is usually irrevocable.
Conditions can also be fixed to limit the period of grant.
Inferior interest, out of an interest retained by the grantor, e.g. the grant of a lease of land by the person holding the freehold. (Collins Dictionary of Law).

‘Grant’ – Salmond on Jurisprudence

What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’. According to Salmond a grant–

” is an agreement“,
“creates a right“
is NOT “a right in Personam between the parties to it”,
examples – “grants of leases, easements, charges, patents, franchises, licences and so forth“.

Salmond distinguishes ‘grant’ from other legal concepts as under.

“…. A contract is an agreement which creates an obligation or a right in personam between the parties to it.
A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth.
An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)

A Planter under a Grant from Government is not a Jenmi

Padmanabharu Govindaru v. The State of Kerala, AIR 1963 Ker 86

Kannan Devan Hills Produce v. The State of Kerala, AIR 1972 SC 2301
State of Kerala v. Kanan Devan Hills Produce Co. Ltd., (1991) 2 SCC 272
State of Kerala v. The Kannan Devan Hills Produce Co., AIR 1998 Ker 267

Grant may be Express or “Implied“

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user.

Note: Traditionally, the term ‘implied easement’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“13. On the question of easement by grant, the Appellate Court was of the opinion that the plaintiff’s claim in that respect stood proved. The plaintiff had acquaintance and association with the Ashramam and Yogini Amma from his childhood days as revealed from the oral and documentary evidence. Considering the location and nature of `B’ schedule pathway, the location of two pillars at its inception and the gate from which it started, it could be seen that it had been in use by the plaintiff as a pathway. The plaintiff had been residing in the house on `A’ schedule property even prior to the deed of settlement. Therefore, the Appellate Authority arrived at the conclusion that the plaintiff had obtained right of easement of grant from Yogini Amma over the `B’ schedule pathway.
An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”

The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swyam Prakash Ashramam v. N. Gopala Pillai on 9 May, 2006. It was affirmed by the Supreme Court. The Kerala High Court held as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Upholding the view of the Kerala High Court the Apex Court held as under:

“In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

Also read: Implied Grant: A Valid Mode of Creation of Easement under Indian Law

No Explicit ‘Consideration’ Required for Easement by Grant

Neither the provisions of the enacted law (Easements Act, 1882) nor judicial decisions specifically address the requirement of ‘consideration’ in the creation of easements by grant. This omission is understandable, as Indian law clearly permits the acquisition of easements by grant – both express and implied. Since an easement may arise by implication, and the intention to grant can be inferred from the terms of the grant or the surrounding circumstances, the fundamental principle of easement law – that every easement is, in theory, rooted in a grant – supports the conclusion that no express consideration is required for the creation of an easement by grant.

Sec. 8 of the Indian Easements Act reads:

“An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or, on his behalf, by any person in possession of the same.”

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without a requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user.”

Way Widened; Request to confine to Two Feet – Sheer Impracticability

It is held by the Kerala High Court in Mahalinga Bhat v. Dooja Souza, 1994-1 KLJ 160; 1994-1 KLT 197, as under:

“3. In view of the concurrent findings of the Courts below that there existed a pathway having width of two feet through plaint A schedule and that it was widened by the people of the locality, the question that arises for consideration is whether plaintiff is entitled to seek injunction restraining the defendants from taking vehicles through the road. As the evidence in the case discloses the fact that there existed a public pathway through plaint A schedule, even if the plaintiff had to surrender portion of his property for converting the pathway into a road it cannot be retained as his private properly. Plaintiff’s contention that the foot path with two feet width as it existed before widening of the same alone can be used by the defendants and that they cannot use the remaining portion of the road cannot be accepted due to its sheer impracticability. Plaintiffs claim that he alone can use vehicles through the road as the existing foot path was widened by surrendering portion of his property and that defendant do not have that right deserves to be rejected as the widening of the road ensures to the benefit of the general public.”

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Public Records under Sec. 35 Evidence Act: Presumption of Truth and Probative Value

Jojy George Koduvath

Introspection

Sec. 35 of the Evidence Act speaks as to ‘relevancy’ of entry in public record, or an electronic record, made in performance of an official duty.
Can ‘truth of its contents’ be presumed under Sec. 114?

Answer: Yes.

But, Note: ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption (correctness or truth), we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc.
‘Regularity’ in Illustration (e) can also be taken as an aid in such an evaluation.

Presumption in Evidence Act under S. 114

Besides direct evidence and admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’, etc. under S. 114, Indian Evidence Act, 1872, can be used to prove the existence and genuineness/truth of a document. Sec. 114 Evd. Act reads as under”

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

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

Illustration (e) of Sec. 114, Evd. Act

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases.

‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc.

General (Sec. 114) and Specific (Sec. 79 to 90A) Presumptions in Evidence Act

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

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

Relevancy, Admissibility and Presumptions on Truth under Sec. 16, 34, 35

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

Documents in the Course of Business – Relevant Fact under Sec. 16

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

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

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

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

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

Sec. 34 – Entries in Books of Account, in the Course Of Business, Relevant

Section 34 enjoins that entries in books of account, regularly kept in the course of business, are relevant. But, they by themselves, cannot create any liability.

In Dharam Chand Joshi v. Satya Narayan Bazaz, AIR 1993 Gau 35, it was pointed out that unbound sheets of paper are not books of account.

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

Sec. 32: ‘Presumption Of Truth’ on Documents Falls Relevant Under Sec. 32

Sec. 32 Evidence Act reads as under:

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

Presumption on Truth on Documents Prepared under Sec. 35

Sec. 35 of the Evidence Act reads as under:

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

The entries made in the statutory registers are admissible in evidence in terms of Section 35 of the Indian Evidence Act, 1872 (CIDCO v. Vashudha Gorakhnath Mandevleka, 2009 (7) SCC 283).

In The State of Haryana v. Amin Lal (SC), 2024-4 CurCC(SC) 222, it is held as under:

“Revenue records are public documents maintained by government officials in the regular course of duties and carry a presumption of correctness under Section 35 of the Indian Evidence Act, 1872. While it is true that revenue entries do not by themselves confer title, they are admissible as evidence of possession and can support a claim of ownership when corroborated by other evidence.”

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

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

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

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

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

In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.

Public Register is Public Document; A Certificate, Not

In Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992, the Division Bench of Allahabad High Court considered whether the letter/certificate issued by Regional Transport Officer coluld be considered to be a public document as defined in Section 74 of the Indian Evidence Act which required no proof. It is pointed out –

‘A public document is a document that is made for the purpose of public making use of it. When a public officer is under a duty to make some entries in the official book or register, the entries made therein are admissible in evidence to prove the truth of the facts entered in the official book or register. The entries are evidence of the particular facts which was the duty of the officer to record. The law reposes confidence in the public officer entrusted with public duties and the law presumes that public officers will discharge their duties with responsibility. A driving licence is issued under Chapter II of the Act. Section 26 of the Act makes it mandatory for the State Government to maintain a register known as State Register of Driving Licences. The entries with regard to issuance or renewal of driving licence by the licensing authorities which contains particulars of the licence and the licence holder are entered by the Regional Transport Officer/the licensing authority in discharge of their official duty enjoined by law. The State Register of Driving Licences is record of the acts of public officers. The State Register of Driving Licences is a public record. It can be inspected by any person. We are of the considered opinion that the State Register of Driving Licences is a public document as defined by Section 74 of the Evidence Act.
10. Section 76 of the Evidence Act gives the right to obtain a certified copy of a public document which any person has a right to inspect on payment of fee. A certified copy of the entries made in the public record is required to be issued on payment of fee in Form 54 as laid down by rule 150 (2). Form 54 being a certified copy of a public document, namely, the State Register of Driving Licences need not be proved by examining a witness. Once a certified copy of the entries made in the register maintained under Section 26 (1) read with rule 23 is issued in Form 54 it is admissible in evidence under Section 77 of the Evidence Act, and no further proof of Form 54 by oral evidence by examining witnesses is required.
12. The aforesaid information is in the form of a letter written to the investigator appointed by the insurance company. It cannot be deemed to be a certificate or certified copy in Form 54 of the Rules. Deposit of fee would not convert the letter into a certificate under rule 150. Therefore, the aforesaid letter issued by the Regional Transport Officer, Raipur (Chhattisgarh) was required to be proved by the insurance company before the Tribunal by oral evidence by examining witnesses. Insurance company had failed to lead any evidence to prove the aforesaid letter by examining witnesses before the Tribunal. The Tribunal rightly refused to place reliance on the letter dated 20.4.2005.”

Oriental Insurance Company Ltd. v. Poonam Kesarwani , (2010) ACJ 1992 is quoted and followed in New India Assurance Company Ltd. v. Indu Bala, ILR 2016-3 HP 1829 (Tarlok Singh Chauhan, J.).

Wajibul-Arz – Part of Settlement Record Presumption of Correctness Attached

The Privy Council has held in Fatea Chand v. Knshan, 10 ALJ 335, that wajibul-arz is a cogent evidence of rights as they existed when it was made.

The value of wazibul-aiz has been accepted to be very high in Anant Prasad v. Raja Ram, 1984 Supp AWC 194 and Yash Pat Singh v. Jagannath, 1946 ALJ 132.

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

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

Proof on Date of Birth

In Harpal Singh v. State of H. P. , AIR 1981 SC 361; 1981-1 SCC 560, it was held as under:

“A certified copy of the relevant entry in the birth register which shows that Saroj Kumari, who according to her evidence was known as Ramesh during her childhood, was born to Lajwanti wife of Daulot Ram on 11-11-1957. Mr, Hardy submitted that in the absence of the examination of the officer/chowkidar concerned who recorded the entry, it was inadmissible in evidence. We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author.”

In Ravinder Singh Gorkhi v. State of U. P. , AIR 2006 SC 2157; 2006 5 SCC 584, it was observed that there was nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act, and thereafter it was held as under:

“22. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder :
(i) it should be in the nature of the entry in any public or official register;
(ii) it must state a fact in issue or relevant fact;
(iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and
(iv) all persons concerned indisputably must have an access thereto.”

In Sushil Kumar v. Rakesh Kumar, (2003) 8 SCC 673, it is held that transfer certificate issued by a Primary School does not satisfy the requirement of Section 35 of Indian Evidence Act. Para 32 and 33 of the judgment read as under:

“32. Under Section 35 of the Indian Evidence Act, a register maintained in terms of a statute or by statutory authority in regular course of business would be relevant fact. Had such a vital evidence been produced, it would have clinched the issue. The respondent did not choose to do so.

33. In the aforementioned backdrop the evidence brought on record are required to be considered. The Admission Register or a Transfer Certificate issued by a Primary School do not satisfy the requirements of Section 35 of the Indian Evidence Act. There is no reliable evidence on record to show that the date of birth was recorded in the school register on the basis of the statement of any responsible person.”

In Ravinder Singh Gorkhi v. State of U.P. (2006) 5 SCC 584, the proof of copy of a school leaving certificate was considered under Section 35 of the Evidence Act was considered, and it is held as under:

“17. “The school leaving certificate was said to have been issued in the year 1998. A bare perusal of the said certificate would show that the appellant was said to have been admitted on 01.08.1967 and his name was struck off from the roll of the institution on 06.05.1972. The said school leaving certificate was not issued in ordinary course of business of the school There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said Head Master that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made any statement or submitted any proof in regard thereto. The entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Head Master that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school; there was no reason as to why the same had not been produced.

19. The school leaving certificate was not an original one. It was merely a second copy. Although it was said to have been issued in July 1972, the date of issuance of the said certificate has not been mentioned. The copy was said to have been signed by the Head Master on 30.04.1998. It was accepted before the learned Additional Sessions Judge, Bulandshahr on 27.01.1999. The Head Master has also not that the copy given by him was a true copy of the original certificate. He did not produce the admission register.

23. Section 35 of the Evidence Act would be attracted both in civil and criminal proceedings. The Evidence Act does not make any distinction between a civil proceeding and a criminal proceeding. Unless specifically provided for, in terms of Section 35 of the Evidence Act, the register maintained in ordinary course of business by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which, inter alia, such register is kept would be a relevant fact. Section 35, thus, requires the following conditions to be fulfilled before a document is held to be admissible thereunder : (i) it should be in the nature of the entry in any public or official register;; (ii) it must state a fact in issue or relevant fact; (iii) entry must be made either by a public servant in the discharge of his official duty, or by any person in performance of a duty specially enjoined by the law of the country; and (iv) all persons concerned indisputably must have an access thereto.

35. We have not been shown as to whether any register was required to be maintained under any statute. We have further not been shown as to whether any register was maintained in the school at all. The original register has not been produced. The authenticity of the said register, if produced, could have been looked into. No person had been examined to prove as to who had made entries in the register. The school leaving certificate which was not issued by a person who was in the school at the time when the appellant was admitted therein, cannot be relied upon.”

Entry on Caste in school admission registers- Relevant and Admissible

Desh Raj v. Bodh Raj, AIR 2008 SC 632; 2008-2 SCC 186, it is held as under:

“Having regard to the provisions of Section 35, entries in school admission registers in regard to age, caste etc., have always been considered as relevant and admissible. [See : Umesh Chandra vs. State of Rajasthan, 1982 (2) SCC 202 and State of Punjab vs. Mohinder Singh, – 2005 (3) SCC 702]. In Kumari Madhuri Patil vs. Addl. Commissioner, [1994 (6) SCC 241], this Court observed that caste is reflected in relevant entries in the public records or school or college admission register at the relevant time and certificates are issued on its basis.”

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

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

Revenue record Presumption of Truth Attached

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

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

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

Presumption of Correctness to Revenue Record Entries

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

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

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

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

Public Document Admissible per se without Formal Proof

Certified copies of the public documents can be proved without formal proof. See:

Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425 ,
Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC 3115; 2009-12 SCC 454
Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361
Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633
Rajasthan State Road Trans. Corp. v. Nand Kishore, 2002 ACJ 1564 (Raj)
Md. Akbar v. State of A.P., 2002 CrLJ 3167 (And)
Collector (L. A. ), South Andaman v. Himangshu Mondal, 2015-2 CalLT 1
Arti Meena v. Rajasthan High Court, Jodhpur, 2020-1 SCT 1 (Raj).

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

“9. … The document in question being a Certified copy of a public document need not have been proved by calling a witness.”(Referred to in Rangaraju v. Kannayal, 10 Jan 2012, (Mad).

In Harpal Singh and Another v. State of Himachal Pradesh, AIR 1981 SC 361, it is held as under:

“3.… We cannot agree with him for the simple reason that the entry was made by the concerned official in the discharge of his official duties, that it is therefore clearly admissible under Section 35 of the Evidence Act and that it is not necessary for the prosecution to examine its author ” (Quoted in: Manikanta v. State of Karnataka, 2024 Kar HC 21233)

In Shyam Lal @ Kuldeep v. Sanjeev Kumar, AIR 2009 SC 3115; 2009-12 SCC 454, it was observed as under:

“25. The findings of the learned District Judge holding Ex. P. 2 to be a public documentand admitting the same without formal proof cannot be questioned by the defendants in the present appeal sinceno objection was raised by them when such document was tendered and received in evidence.
It has been held in Dasondha Singh and Others v. Zalam Singh and Others [1997(1) P.L.R. 735] that an objection as to the admissibility and mode of proof of a document must be taken at the trialbefore it is received in evidence and marked as an exhibit.
Even otherwise such a document falls within the ambit of Section 74, Evidence Act, and is admissible per se without formal proof“.

In Jaswant Singh v. Gurdev Singh, 2012-1 SCC 425, it is held that certified copy of a public document prepared under Section 76 of the Act, in terms of Section 74 of the Indian Evidence Act, 1872 is admissible in evidence under Section 77 of the said Act, without being proved by calling witness. It is said as under:

“9. … To put it clear, the compromise had become a part of the decree which was passed by the court of Sub-Judge Ist Class, Hoshiarpur. Hence, it is a public document in terms of Section 74 of the Indian Evidence Act, 1872 (in short ‘the Act’) and certified copy of the public document prepared under Section 76 of the Act is admissible in evidence under Section 77 of the said Act. A certified copy of a public document is admissible in evidence without being proved by calling witness.

See also the following cases where documents were accepted in evidence and acted upon on the basis of Section 35 Evidence Act:

Umesh Chandra v. State of Rajasthan, AIR 1982 SC 1057 (admission forms as also the School’s register)
Harpal Singh v. State of Himachal Pradesh, AIR 1981 SC 361 (certified copy of the birth register).

REVENUE SETTLEMENT REGISTERS of Travancore in 1910, Basic Record of Land matters

The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:

“We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14 th Kumbhom 1061 corresponding to 24th February 1886.”

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If Settlement Register says Government Land, Petitioner to Establish Title

In Sahana Industries v. State of Kerala (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:

“… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”.

In Travancore Devaswom Board v. Mohanan Nair M.N., (2013) 3 KLT 132, (T.R. Ramachandran Nair, J ; A.V. Ramakrishna Pillai, J), it is observed as under:

“52. As far as the property herein is concerned, the land register and the settlement register produced herein are relevant. The property having the entire extent of 2.26 acres is described as ‘kavu’ (holy grove) in the settlement register. In the land register also it is described as ‘kshethram irippu sthalam’ (property where the temple is situated). No other document or other evidence is there to prove the contrary. Therefore, these documents will definitely show that the item of property will fit in with the requirement of Section 3(1)(x) of the Act.”

SEC. 35 REGISTRATION ACT: There is Presumption – “It is VALIDLY EXECUTED“

Sec. 35 in the Registration Act, 1908 says that the Registrar allows registration of a document (i) if only he is satisfied as to the identity of the person who executes the document, and (ii) if the executant admits the execution of the document.
Presumptions can be invoked in view of the Sec. 58 and 59 Sec. 60 (certificate) of the Registration Act. The presumption of regularity of official acts in Illustration (e) of Section 114 of the Evidence is also attached to a registered deed.
The certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution – Piara v. Fatnu, AIR 1929 Lah 711.
There is a presumption – registered document is validly executed –
- Prem Singh v. Birbal, AIR 2006 SC 3608;
- Abdul Rahim v. Abdul Zabar, AIR 2010 SC 211
- Jamila Begum v. Shami Mohd., AIR 2019 SC 72;
- Manik Majumder v. Dipak Kumar Saha, AIR 2023 SC 506.
A registered document carries with it a presumption that it was executed in accordance with law – Bellachi v. Pakeeran, AIR 2009 SC 3293.

Genuineness can also be drawn onRegistered Deeds, Invoking Presumption

Besides the presumption on a registered document that it is validly executed, there is also a presumption that the “transaction is a genuine one” (Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, 2009- 5 SCC 713.)
The onus of proof, thus, would be on a person who questions the same.

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

“18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
Chottey Lal v. The Collector of Moradabad, AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

Where Truth Disputed, Truth of Public Document must be Established

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

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

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

INSTANCES WHERE PRESUMPTION WAS NOT INVOKED

Age of a Person in a School Register – Not Much Evidentiary Value

In Birad Mal Singhvi v. Anand Purohit ,1988 Supp. SCC 604, it was held as under:

“To render a document admissible under Section 35, three conditions must be satisfied, firstly, entry that is relied on must be one in a public or other official book, register or record; secondly, it must be an entry stating a fact in issue or relevant fact; and thirdly, it must be made by a public servant in discharge of his official duty, or any other person in performance of a duty specially enjoined by law. An entry relating to date of birth made in the school register is relevant and admissible under Section 35 of the Act but the entry regarding the age of a person in a school register is of not much evidentiary value to prove the age of the person in the absence of the material on which the age was recorded

No evidence – On What Material Entry in Voters List Made

In Babloo Pasi v. State of Jharkhand, AIR 2009 SC 314; 2008-13 SCC 133, it is held as under

“23. Therefore, on facts at hand, in the absence of evidence to show on what material the entry in the Voters List in the name of the accused was made, a mere production of a copy of the Voters List, though a public document, in terms of Section 35, was not sufficient to prove the age of the accused. Similarly, though a reference to the report of the Medical Board, showing the age of the accused as 17-18 years, has been made but there is no indication in the order whether the Board had summoned any of the members of the Medical Board and recorded their statement. It also appears that the physical appearance of the accused, has weighed with the Board in coming to the afore-noted conclusion, which again may not be a decisive factor to determine the age of a delinquent. Insofar as the High Court is concerned, there is no indication in its order as to in what manner Rule 22(5)(iv) has been ignored by the Board. The learned Judge seems also to have accepted the opinion of the Medical Board in terms of the said Rule as conclusive. Therefore, the afore-stated ground on which the High Court has set aside the opinion of the Board and holding the accused to be a juvenile, cannot be sustained.”

Hath Chitha – Not Proved, Entry in Discharge of Official Duties

In Ram Prasad Sharma v. State Of Bihar, AIR 1970 SC 326; 1969-2 SCC 359, it is held as under:

“In this case it has not been proved that the entry in question was made by a public servant in the discharge of his official duties. As observed by this Court in 1965-3 SCR 861 (Brij Mohan Singh v. Priya Brat Narain Sinha) at p. 864
“the reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high.”
No proof has been led in this case as to who made the entry and whether the entry was made in the discharge of any official duty. In the result we must hold that Ex. D, the hath chitha, was rightly held by the High Court to be inadmissible.”

Illiterate Public Servant, Somebody Else Made Entry – Does Not Come Within Sec. 35

Constitution Bench of in Brij Mohan Singh v. Priya Brat Narain Sinha, AIR 1965 SC 282, observed as under:

“The reason why an entry made by a public servant in a public or other official book, register, or record stating a fact in issue or a relevant fact has been made relevant is that when a public servant makes it himself in the discharge of his official duty, the probability of its being truly and correctly recorded is high. That probability is reduced to a minimum when the public servant himself is illiterate and has to depend on somebody else to make the entry. We have therefore come to the conclusion that the High Court is right in holding that the entry made in an official record maintained by the illiterate Chowkidar, by somebody else at his request does not come within Section 35 of the Evidence Act.”

Document Admissible Under Sec. 35 May (still) Require Corroboration

In Satpal Singh v. the State of Haryana, (2010) 8 SCC 714, it is held as under:

“22. Therefore, a document may be admissible, but as to whether the entry contained therein has any probative value may still be required to be examined in the facts and circumstances of a particular case. The aforesaid legal proposition stands fortified by the judgments of this Court in
Ram Prasad Sharma Vs. State of Bihar, AIR 1970 SC 326;
Ram Murti Vs. State of Haryana, AIR 1970 SC 1029;
Dayaram & Ors. Vs. Dawalatshah, AIR 1971 SC 681;
Harpal Singh & Anr. Vs. State of Himachal Pradesh, AIR 1981 SC 361;
Ravinder Singh Gorkhi Vs. State of U.P., (2006) 5 SCC 584;
Babloo Pasi Vs. State of Jharkhand, (2008) 13 SCC 133;
Desh Raj Vs. Bodh Raj, AIR 2008 SC 632; and
Ram Suresh Singh Vs. Prabhat Singh @Chhotu Singh, (2009) 6 SCC 681.
In these cases, it has been held that even if the entry was made in an official record by the official concerned in the discharge of his official duty, it may have weight but still may require corroboration by the person on whose information the entry has been made and as to whether the entry so made has been exhibited and proved. The standard of proof required herein is the same as in other civil and criminal cases. Such entries may be in any public document; i.e. school register, voters list or family register prepared under the rules and regulations, etc, in force, and may be admissible under Section 35 of the Evidence Act as held in Mohd, Ikram Hussian v. State of U.P. and Santenu Mitra v. State of W.B.”

Judge’s power to put Questions or Order Production

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

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Is TRUTH OF CONTENTS (also) Established when a Document is MARKED WITHOUT OBJECTION?

Taken From: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Documents Marked Without Objection – Effect

The law prevails in India is the following –

If a document is marked without objection as to its mode of proof, it is not open to the other side to object to its admissibility afterwards.

Following leading decisions predicate the law in this matter as under:

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Police reports were marked, without examining the Head Constables who covered those meetings, without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence ‘without foundation‘; but, without objection. They cannot be held inadmissible for originals were not produced. Failure to raise a timely objection amounts to waiver.	Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S. Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Copy of sale deed was marked without examining the executant or the donor; but, without objection. It was argued that mode of proof was insufficient. Held: Objection as to the mode of proof falls within procedural law. It could be waived.	Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder; Gopal Das v. Sri Thakurji, AIR 1943 PC 83; Sarkar on Evidence, 15th Edition, page 1084.
PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239 (R.M. Lodha, D.K. Jain,JJ.).	Non-examination of the author and absence of “proof of acknowledgment” by him – If no objection on ‘mode of proof‘ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof.	…
Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 4 SCC 731 (B. V. Nagarathna, V. Ramasubramanian, A. S. Bopanna, B. R. Gavai, S. Abdul Nazeer, JJ.)	If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage.	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection as regards the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, too late in the day to canvass that contents of Ex. 32 were not proved.	…

Failure to Raise Timely Objection, “Amounts to Waiver“

In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is laid down that “failure to raise timely objection” as to the irregularity of mode adopted for proving the document “amounts to waiver“.

Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court.

It is typically followed in India, after R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple (supra).

Note: 1. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
2. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

In RVE Venkatachala Gounder (supra), our Apex Court held as under:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. …. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”

Proof of Document is, normally, Proof of (both) Execution and Contents

When existence of a document is proved (either by admission or by proof), normally, contents thereof are also taken as proved.

In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’. But, it is not a rigid rule, for it falls under the caption, “appreciation of evidence”.
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents. It is left to the discretion (Sec. 3) of the court. In proper cases court is expressly authorised to presume (Sec. 114) truth.

For the above, by virtue of our procedure-laws (especially, Sec. 3 and 114 Evidence Act) and the law handed down by our Apex Court, the Courts are free to appraise a “marked” document as under:

1. Mere marking does not amount to proof of contents (even), or
2. Contents and ‘Truth of its Contents’, stand proved, or
3. Admission of contents; not truth of contents (especially when truth is in issue), or
4. Admission of contents and truth of contents; but, its probative value is small or nil.

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

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

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

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

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

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

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

“Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
See: Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24.

This “normal principle” (that proof must be by one who can vouchsafe for truth), is not invariably followed – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, if only ‘truth’ as to the contents of the documents is in dispute, this rule is insisted.

Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’

Usually, a document is proved through its author, or through a witness to its execution or a person acquainted with handwriting. Concession or admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act).

Sec. 58, Evidence Act reads as under:

“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

Sec. 58 says that no fact need be proved in any proceeding in three circumstances:

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

“Hearing” Partakes ‘recording evidence’

Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’. Rule 2 (1) reads as under:

“2. Statement and production of evidence – (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.”

Admissions at hearing

Admissions at ‘hearing’ (by the advocate) may be made at the evidence-stage (while the witnesses are examined) and at the time of ‘final hearing’. Admissions of advocate are to be deciphered from Order-sheet or Judgment.

Once no Objection to Mode of Proof, Right to Objection Stands Waived

From the above it is clear that it would not be legitimate for the court to refrain from exhibiting a relevant document which could be received in evidence on the (express or implied) concession or admission of the opposite side (as regards mode of proof), in the scheme of Evidence Act.

Our Procedure Codes (CPC, CrPC) also declare this principle.

Copy Marked, Without Objection, Right to Objection Stands Waived

“Admission”is a mode of proof, inasmuch as ‘facts admitted need not be proved’ (Sec. 58, Evidence Act). Once a document is marked as no objection to the mode of proof on account of lack of original, then the right to raise objection (on this score) stands waived. See:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple and Another, (2003) 8 SCC 752;
Rafia Sultan Widow of Mirza Sultan Ali Baig v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315
Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487.

Admissions are Substantive Evidence By Themselves

In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: [1966] 1 SCR 606, it was observed as under:

“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”

Bharat Singh v. Bhagirathi is Quoted/referred to in:

Dipakbhai Jagdishchandra Patel v. State of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78,
Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49,
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.

In Murlidhar Bapuji Valve v Yallappa Lalu Chougule, AIR 1994 Bom 358 (an often quoted decision), it was held that it was well settled law that an “admission” of a party (in a sale deed) was liable to be considered as substantive evidence even if the party made the admission was not confronted with the statement.

Judicial Admissions and Admissions in Pleadings

In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:

“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)

See also:

Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117,
Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006 (12) SCC 233,
Union of India v. Pramod Gupta, (2005) 12 SCC 1.

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

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

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

Read Blogs: Modes of Proof of Documents

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

Effect of Marking Documents without Objection

Following two things are different processes –

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

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

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

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

Divergent views are taken by the Courts depending on the facts of each case.

First view Proof (Contents) stands established. It cannot be questioned afterwards. Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315, 1986 ACJ 616; 1985-2 GujLR 1315.	RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731 [If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage.]
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved. (Note: It may not be legitimate to apply this principle literatim)	LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Domestic enquiry report); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.	See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.	See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; *Kaliya v. State of MP*: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.	See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.

1. (a) Once no Objection to Mode of Proof, Right to Objection Stands Waived

It is trite law that once no-objection is raised to the mode of proof , then the right of the opposite party to raise objection (on this score) stands waived. RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is often quoted to establish this proposition.

It was the position of law accepted by our legal system. See:

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

See also:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575,
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107, AIR 2004 SC 4082;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752;
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745

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

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

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

Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), 2023 4 SCC 731

The Constitution Bench (B. V. Nagarathna, V. Ramasubramanian, A. S. Bopanna, B. R. Gavai, S. Abdul Nazeer, JJ.) of our Apex Court laid down in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, as under:

Section 61 deals with proof of contents of documents which is by either primary or by secondary evidence.
When a document is produced as primary evidence, it will have to be proved in the manner laid down in Sections 67 to 73 of the Evidence Act.
Mere production and marking of a document as an exhibit by the court cannot be held to be due proof of its contents. Its execution has to be proved by admissible evidence. On the other hand, when a document is produced and admitted by the opposite party and is marked as an exhibit by the court, … (sic – no objection can be raised at any later stage with regard to proof of its contents).
The contents of the document must be proved either by the production of the original document i.e., primary evidence or by copies of the same as per Section 65 as secondary evidence.
So long as an original document is in existence and is available, its contents must be proved by primary evidence.
It is only when the primary evidence is lost, in the interest of justice, the secondary evidence must be allowed.
Primary evidence is the best evidence and it affords the greatest certainty of the fact in question.
Thus, when a particular fact is to be established by production of documentary evidence, there is no scope for leading oral evidence.
What is to be produced is the primary evidence i.e., document itself. It is only when the absence of the primary source has been satisfactorily explained that secondary evidence is permissible to prove the contents of documents.
Secondary evidence, therefore, should not be accepted without a sufficient reason being given for non-production of the original.
Once a document is admitted, the contents of that document are also admitted in evidence, though those contents may not be conclusive evidence.
Moreover, once certain evidence is conclusive it shuts out any other evidence which would detract from the conclusiveness of that evidence.
There is a prohibition for any other evidence to be led which may detract from the conclusiveness of that evidence and the court has no option to hold the existence of the fact otherwise when such evidence is made conclusive.

It is held further as under:

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

Objection as to non examination of the author is too late in the day

In PC Thomas v. PM Ismail (R.M. Lodha, D.K. Jain, JJ.), AIR 2010 SC 905; 2009-10 SCC 239, it is observed that the objection as to non examination of the author is too late in the day . It is held as under:

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

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

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

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

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

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

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

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

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

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

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

Inferences as to “TRUTH” of contents

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

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

It appears that the legal position can be reprised as under –

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

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

The following decisions also lay down the proposition that ‘mere marking of a document’ as an ‘exhibit’ may amount to proof of contents, but not its ‘truth’.

Rakesh Mohindra v. Anita Beri, 2015 AIR(SCW) 6271.
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758;
Sait Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865;
Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (“Mere identifying the signature of Mr. Pathak (by a witness) does not prove the contents of the said letter which is being relied upon by the appellant.”)

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

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

Standard of Proof in Civil Cases – Preponderance of Probability

It is noteworthy that the standard of proof required in civil cases is different from that of criminal cases; since, civil court proceeds on a preponderance of probability, whereas criminal court insists ‘proof beyond reasonable doubt’. In Miller v. Minister of Pensions, (1947)2 All ER 372, Lord Denning, described preponderance of probability as “more probable than not”. It is said in picturesque as ‘likelihood of 51%’.

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

This Proposition is Not to be Applied “Literatim”

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

This proposition is not attracted–

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

This proposition is attracted–

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

Each Case under this Head Requires Distinct Consideration

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

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

Following are the often-cited cases on this subject.

The Proposition -Mere Marking Does Not Prove the Contents – was NOT applied in the following decisions.

Decision	Did the Documents Mark without Proper Proof was accepted in evidence?	Reason for NOT Appling the Proposition Mere Marking Does Not Prove the Contents
Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745	Yes. The rent receipts* were received in evidence. (without formal proof)*	The rent receipts were ‘not disputed’* by the other side.*
Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758	Yes. The secondary evidence* of dying declaration produced in this case was accepted by the Court.*	Secondary evidence was adduced with foundational evidence (for producing copy; not original)

The Proposition -Mere Marking Does Not Prove the Contents – was applied in the following decisions; but, not unreservedly.

Decision	Did the proposition – Mere Marking Does Not Prove the Contents – unreservedly apply?	Reason for NOT applying the Proposition Mere Marking Does Not Prove Contents, unreservedly
Ramji Dayawala v. Invest Import: AIR 1981 SC 2085	No. Truth of contents of a letter and two telegrams were not taken. (though marked)	Truth of the facts in the document was “in issue“
M. Chandra v. M. Thangamuthu, 2010-9 SCC 712	No. Validity and Genuineness of the Photocopy (of the Caste Certificate) was not* accepted (though marked)*	Validity and Genuineness of the Caste Certificate was very much in question
H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240	No. *Contents* of the *Photocopy* was not* received as proof (though marked)*	*Photocopy* was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.
Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865	No. Accounts of the Plaintiff was not received as proof (though marked)	The accounts of the Plaintiff would not be proved by itself

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

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

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

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

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

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

Note:

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

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

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

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

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

It is only pointed out in this decision as under:

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

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

[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – Truth of the facts in the document was “in issue“]

It is held as under:

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

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

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

In this decision it was held:

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

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

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

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

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

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

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

It is added:

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

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

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

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

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

Other Important Decisions –

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

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

The fundamental principles as to proof of execution a document is that the execution has to be proved by proper evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745). But, in the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’.

It is legitimate to say that this requirement as to proof of ‘truth’ is independent from inviting ‘proof of signature and handwriting’ in Sec. 67 to 71 of the Evidence Act. This proposition is clear from Sec. 67, which lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:

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

Though proof of execution (dealt with in Sec. 67 to 71) is independent from proof as to ‘truth’ of contents of a document, proof as to ‘truth’ can be presumed by the court, in most cases, on ‘proof of execution’. It is more so, when a document is admitted without objection. Proof as to ‘truth’ is essential if ‘truth’ is in issue, or in dispute.

If ‘TRUTH’ is in issue, or in dispute, marking a document without objection, or mere proof of handwriting or execution,by itself, need not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala v. Invest Import, AIR 1981 SC 2085; Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81; Suresh v. Tobin, 2013-1 KerLT 293). Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).

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

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

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

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

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

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

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

In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, it is held as under:

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

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

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

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

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

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

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

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

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

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

Inasmuch as –

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

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

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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

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Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

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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

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
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Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Survey Records under Survey Act – Raises a Presumption of Correctness on Boundary; though Not Confer Title

Taken from: Revenue Records (or ‘Mutation’) & Survey by Survey Authorities will not Confer Title; It merely Raises a Presumption on Possession

Saji Koduvath, Advocate, Kottayam.

Abstract

1. Survey Authorities Not to decide Title.

2. Survey Records – Conclusive proof that Boundaries were recorded correctly (when survey was made).

3. Logical inference from the above propositions is the following: If a party to the suit establishes title by producing his title deed, he can rely on the presumption: that survey records establish possession and boundary. See:

Elambilan Nani Amma v. Mulavana Antony (K. Babu, J,), 2023-7 KHC 418
Kannan v. Kannan, (1964 KLT 228),
The Cheriyanad Grama Panchayath v. The State of Kerala, (2019 (5) KHC 699),
Venugopalan Nair v. Saraswathy Amma, (2013 (4) KLT 717),
Karthyayani v. Balakrishnan, (2014 (2) KLT Suppl. 67 (Ker.),
Ibrahim v. Saythumuhammed, (2013 (4) KLT 435)
Achama Alexander v. Asst. Director, Survey and Land Records, 2022-3 KLT 198.
Thomas v. Philip,2022(4) KerHC 451;

PART – 1

Survey and Boundaries Act

“The Survey and Demarcation of lands by the State have a Purpose”

In Achuthan Unni v. Vally, 1962 KLT 1010, it is held as under:

“3. The survey and demarcation of lands by the State have a purpose; they are intended to identify the different pieces of land so as to regulate the rights of landholders. Bights in land will normally be presumed to be in terms of the survey divisions. When a person is admitted or found to be in possession of a survey division, the presumption is of such possession being extensive with the survey division concerned; and he is not to be constrained to prove his possession of every inch of it. It is then for the person who asserts the contrary to prove by positive evidence that a defined portion thereof is in his adverse possession and has been lost to the owner thereof. If the court finds the same, the Land Records will be corrected accordingly sub-dividing the original survey division so as to demarcate each holding with separate survey number.” (quoted in: Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153; Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67).

In Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, it is held as under:

5. Where the disputed land is a narrow strip, (in this case, it is of width ranging from two or three feet) at the verge of the plaintiff’s land adjoining the defendants’ property it would in most cases, be difficult to prove its actual possession as such. If the remaining portion of the plaintiff’s land is admitted or found to be in the plaintiff’s possession, the same must be held to extend to the border, unless there be clear evidence to the contrary. In other words, when a person is admitted or found to be in possession of his land identified by a Survey Number and the dispute by the adjoining landholder concerns only a narrow strip at the mutual boundary, the possession of the former will be presumed to be coextensive with the relative survey division and the burden will be on the party claiming the encroachment to prove his adverse possession thereof for over the statutory period (of 12 years). [See: Achuthan Unni v. Vally, 1962 KLJ 400].”
(Quoted in: Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)

In Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67 (N.K. Balakrishnan, J.), the argument of the appellant in the Second Appeal was laid down by the court as under:

“5. The learned counsel for the appellant submits that the appellant who was examined as PW1 had a definite case that her property extends up to the ‘chal’ and the ridge on the eastern side of the property and so the findings entered by the appellate court that the boundary of the respondents’ property should be along the ‘EF’ line, cannot be accepted at all. Simply because resurvey was conducted and a plan was drawn by the Survey Authorities, it cannot be said that the appellant’s property does not extend up to the dotted line shown by the Commissioner, which is actually the natural boundary of the property, it is argued.”

Dismissing the second appeal, it is held as under:

“12. If it is a case where large extent of property lying in a different survey number is claimed by the plaintiff based on a survey record alone, when actually it is in the possession of the defendant, the plaintiff has to seek recovery of possession of that large extent of property which is in the possession of the defendant. So far as the case on hand is concerned, it is only a very narrow strip of land lying along the boundary line. Hence, the presumption should be that the person, who has got title to the property and whose boundary extends up to the line stated above is in possession of that narrow strip of land as well.”

Survey, Conclusive Proof – Boundaries determined & Recorded Correctly; It is More than a Presumption

In Elambilan Nani Amma v. Mulavana Antony (K. Babu, J,), 2023-7 KHC 418, it is observed as under:

“It is also trite that the decisions of the survey authorities under Chapter II of the Act (Kerala Survey and Boundaries Act) will not affect the right and title of the property acquired by a party as per a valid title deed. The right and title to property have to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed. The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly.
(Vide: Cheriyanad Grama Panchayath v. The State of Kerala and Ors. (2019 (5) KHC 699,
Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717),
Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)],
Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and
Achama Alexander v. Assistant Director, Survey and Land Records (2022 (2) KHC 131).”

The record of the survey result shall be conclusive proof that the boundaries were determined and recorded therein correctly (when survey was made).

This view is fortified by the decisions of the Kerala High Court in:

Kannan v. Kannan (1964 KLT 228),
The Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KerHC 699),
Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717);
Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.);
Ibrahim v. Saythumuhammed (2013 (4) KLT 435);
Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198);
Thomas v. Philip,2022(4) KerHC 451;
Elambilan Nani Amma v. Mulavana Antony, 2023-7 KHC 418

Note: The decisions above, based on Kerala Survey and Boundaries Act, 1969, lay-down the law ‘more than on presumption’ on general presumption on official act (Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707; 1981-2 SCC 103).

Determine Boundaries by Survey Authorities

Kerala High Court held in Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) to the following effect:

The Survey and Boundaries Act, 1961 empowers the survey authorities to determine the boundaries of different sub-divisions.
The Survey and Boundaries Act, 1961 empowers the survey authorities to determine the boundaries of different sub-divisions.
It is predominantly based on possession.
As per the Act, the survey officer has the power to determine and record any boundary as undisputed in respect of which no dispute is brought to his notice.
Where a boundary is disputed, the survey officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.

Survey Plan or Revenue Records Do Not Confer Title

In Laxkshmi B. v. Suku, 2024-@1 KerHC 380, it is observed as under:

“When a suit for recovery of possession has been filed on the strength of title or in a suit for title declaration, title would prevail over revenue records and resurvey numbers. To put it differently, tax receipts, survey plan, resurvey plan or revenue records do not confer title to anybody, when there is title deed in relation to the said property in favour of the title holder. Therefore, in suits involving title dispute, title would prevail over revenue records, if it is found on measurement that the property covered by the title deed is identified properly justifying the declaration of title and recovery of possession on the strength of title. The said reliefs never be denied merely on the ground that in the revenue records/resurvey records, the said portion of the property is not shown as the property of the plaintiffs.

Survey Authorities Not to decide title

It is not for the survey authorities to decide the question of the title (based on resurvey records).
The decision of the survey authorities shall not affect the right and title of the properties acquired by a party as per a valid title deed.

Properties Identified on Title Deeds

The properties of the parties are to be identified based on the title deeds.
The changes in the extent of the property in the resurvey would not confer title.

Title and Possession decided by Civil Court

The title and possession are matters to be decided by a Civil Court.

Merely because a portion of the plaintiff’s property is shown in the resurvey records as with defendant’s survey number, it cannot lead to an inference that possession was with the defendant.

In Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.) held as under:

“The questions of law regarding conclusiveness of the re-survey conducted under the Survey Act is held against the appellants and in favour of the 1st respondent/plaintiff. Necessarily, the resurvey conducted under Section 13 has to yield to the adjudication by the competent Civil Court with respect to the identity based on title.”

Power of Survey Officer to determine disputed boundary

In Cheriyanad Grama Panchayat v. State of Kerala, 2019 (4) KLT 916, it is laid down as under:

Section 10 of the Act authorizes the survey officer to re-define the boundary lines of a particular survey already settled by old survey records.
Section 6 and 7 of the Act do not empower survey officer to re-define any boundary line of a particular survey which was already settled and finalised in an earlier survey (except for the purpose of Section 5 of the Act which deals with the situation wherein certain area was taken away by sea erosion or action of river.)
Section 4 of the Act also permits a survey of the land, but its purpose should be understood in relation to the necessity to have a re-survey, certainly, not for altering the earlier survey records, but for recording the further divisions of property out of a large extent within a particular survey.

Sec. 10 of the Kerala Survey and Boundaries Act

Sec. 10 of the Kerala Survey and Boundaries Act reads as inder:

“10. Power of Survey Officer to determine and record a disputed boundary with reasons– (1) Where a boundary is disputed, the Survey Officer shall, after making such inquiries as he considers necessary, determine the boundary and record it in accordance with his decision with reasons in writing for arriving at that decision.
(2) Notice of every decision of the Survey Officer under sub-section (1) shall be given in the prescribed manner to the parties to the dispute and other registered holders of the lands, the boundaries of which may be affected by the decision.

In Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198, it is observed as under:

“24. A reading of Sec. 10 of the Act makes it candidly clear that the survey authority is only empowered to determine the disputes regarding the fixation of boundary between owners of land comprised in a particular survey division. The act of determination envisaged in Sec. 10 of the Act essentially draws a dividing line based on ownership within a particular survey or, in other words, Sec. 10 of the Act does not authorise the Survey Authority to redefine the boundary line of a particular survey already settled by old survey records. Section 10 of the Act does not empower the survey authority to change the ownership of a particular sub-division and make it part of another survey sub-division.”

Revenue record do Not confer Presumptive Value on Title

The argument as to ownership based upon entries in the revenue records had been negated in Prahlad Pradhan v. Sonu Kumhar,(2019) 10 SCC 259. It was held that the revenue record would not confer title to the property nor do they have any presumptive value on the title.

“5. The contention raised by the appellants is that since Mangal Kumhar was the recorded tenant in the suit property as per the Survey Settlement of 1964, the suit property was his self-acquired property. The said contention is legally misconceived since entries in the revenue records do not confer title to a property, nor do they have any presumptive value on the title. They only enable the person in whose favour mutation is recorded, to pay the land revenue in respect of the land in question. As a consequence, merely because Mangal Kumhar’s name was recorded in the Survey Settlement of 1964 as a recorded tenant in the suit property, it would not make him the sole and exclusive owner of the suit property.” (Quoted in Prabhagiya Van Adhikari Awadh Van Prabhag v. Arun Kumar Bhardwaj (SC): 2021). See also: Narasamma & Ors. Vs. State of Karnataka & Ors. (2009) 5 SCC 591).

It is also held:

“Revenue records are not documents of title”. (P. Kishore Kumar v. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278).

PART II

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

Sec. 35 Evd. Act speaks on ‘an entry in any public or other official book, register or record or an electronic record’. Sec. 35 Evd. Act speaks as to presumption.

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

Sec. 35 of the Evidence Act reads as under:

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

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

Presumption of Correctness on Entries in the Revenue Record

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

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

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

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

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

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

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

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

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

In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.

Record of rights and the record of Permanent Settlement

Our Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, as under:

“This brief review of evidence is sufficient to show that appellant has not been able by clear and conclusive evidence to rebut the presumption arising from the Record of rights and the record of Permanent Settlement and he has failed to establish his claim”.

In Vallikunnil Janaki Amma v. Sree Amruthamangalam Kshethram Moorthi, Kozhikode, 2014 (1) KHC 57, Kerala High Court Court referring to the decision of the Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, held as under:

“Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala, 6 April, 2022, Anil K. Narendran, J.)

Revenue Settlement Registers of Travancore in 1910, Basic Record of Land matters

The Kerala High Court held in Mohandas v. Santhakumari Amma, 2018-3 KLT 606 as under:

“We notice that, a new survey and settlement was undertaken in the erstwhile Travancore State for the purpose of putting in place a sound Revenue administration. Accordingly, it appears that a complete survey and reassessment of the entire State ’embracing an accurate measurement, demarcation, mapping and valuation of properties of every description and a registration of titles, as the basis of a sound Revenue Administration’ was carried out. On the basis of such a statement a proclamation was issued by the Maharaja of Travancore on 14 th Kumbhom 1061 corresponding to 24th February 1886.”

If Settlement Register says Government Land, Petitioner to Establish Title

In Sahana Industries v. State of Kerala (2021 KHC OnLine 7110), Kerala High Court (Devan Ramachandran, J.) held (October 11, 2021) as under:

“… If the Settlement Register shows this land to be Government land, then certainly, the petitioner is obliged to establish their title over the property through competent documents”.

Petitioner to Prove claim (Lease); cannot rely Inconsistencies of Respondents

In OT Alexander v. State of Kerala, LAWS (KER) 2021-5. 23, High Court of Kerala (N. Nagaresh, J.) did not accept the argument of the petitioner in the Writ Petition, against the Government Order for resumption of the land, for the absence of materials to establish the lease of 1933 claimed by the Petitioner. The prime contention of the petitioner was that the land was originally granted to the predecessors-in-interest of the petitioner, under Ground Rent Patta by erstwhile Collector of South Malabar District during the British regime in 1933; and that Land assigned under Ground Rent Patta could not be resumed by the Government.

The petitioner claimed that the transferees of the original leasee sold their right to a bank. The Bank (State Bank of Travancore) sold the property to a Company in 1995. The petitioner purchased the property from the Company as per the Sale Deed of the year 2004. The petitioner has been paying property tax to the Cochin Corporation. The action for resumption of land by the District Collector was on the ground that the sale deed between SBT and the Company was illegal. Pointing out that the petitioner cannot base his claim on inconsistencies of the respondents, the High Court did not accept the arguments against the resumption of land by the Collector.

It is Settled – Revenue Records will not confer title

Sawarni v. Inder Kaur, (1996) 6 SCC 223
Balwant Singh v. Daulat Singh, (1997) 7 SCC 137
Suman Verma v. Union of India, (2004) 12 SCC 58;
Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901
State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319
Faqruddin v. Tajuddin, (2008) 8 SCC 12;
Rajinder Singh v. State of J&K, (2008) 9 SCC 368;
Narasamma v. State of Karnataka, (2009) 5 SCC 591
Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689;
T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342;
Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191;
Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259;
Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.
Bhimabai Mahadeo Kambekar v. Arthur Import and Export Co. (2019) 3 SCC 191
Jitendra Singh v. The State of Madhya Pradesh (2021 SCC OnLine SC 802) [M.R. Shah, Aniruddha Bose, JJ.]
P. Kishore Kumar v. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278
Laxkshmi B. v. Suku, 2024-1 KerHC 380

Revenue Records Prove Possession

Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901 (Revenue record merely raises a presumption in regard to possession)
State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 (Revenue records merely show possession of a person)
Krishnamurthy S. Setlur v. O.V. Narasimha Setty, 2019-9 SCC 488 (Revenue records prove possession)

Revenue Records are Not Documents of Title.

P. Kishore Kumar v. Vittal K Patkar (2023 SCC Online SC 1483; 2024-1 CTC 547; 2023-4 CurCC(SC) 278) is a latest decision (Dipankar Datta, Bela M. Trivedi, JJ.) in this matter which held as under:

“11. It is trite law that revenue records are not documents of title.”

It is a settled proposition of law (i) that the mutation entry in revenue documents will not confer any right, title or interest in favour of any person and (ii) that the mutation in the revenue record is only for the fiscal purpose. After pointing out these legal propositions it is observed in Jitendra Singh vs The State Of Madhya Pradesh, 2021 SCC OnLine SC 802, as under:

“6. Right from 1997, the law is very clear. In the case of Balwant Singh v. Daulat Singh (D) By Lrs., reported in (1997) 7 SCC 137 , this Court had an occasion to consider the effect of mutation and it is observed and held that mutation of property in revenue records neither creates nor extinguishes title to the property nor has it any presumptive value on title. Such entries are relevant only for the purpose of collecting land revenue. Similar view has been expressed in the series of decisions thereafter.
6.1 In the case of Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186 , it is observed and held by this Court that an entry in revenue records does not confer title on a person whose name appears in record-of-rights. Entries in the revenue records or jamabandi have only “fiscal purpose”, i.e., payment of land revenue, and no ownership is conferred on the basis of such entries. It is further observed that so far as the title of the property is concerned, it can only be decided by a competent civil court. Similar view has been expressed in the cases of Suman Verma v. Union of India, (2004) 12 SCC 58; Faqruddin v. Tajuddin (2008) 8 SCC 12; Rajinder Singh v. State of J&K, (2008) 9 SCC 368; Municipal Corporation, Aurangabad v. State of Maharashtra, (2015) 16 SCC 689; T. Ravi v. B. Chinna Narasimha, (2017) 7 SCC 342; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Prahlad Pradhan v. Sonu Kumhar, (2019) 10 SCC 259; and Ajit Kaur v. Darshan Singh, (2019) 13 SCC 70.”

Revenue Documents do not Confer ‘Title’; It Raises Presumption on Possession

Our Apex Court, in Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901 (SB Sinha. J.), has held that a revenue record is not a document of title; and that it merely raises a presumption in regard to possession.

In Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund (supra) , held as under:

“A revenue record is not a document of title. It merely raises a presumption in regard to possession.” (Quoted in: State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319).

It is pointed out in this case that in proper cases (for revenue record is not a document of title) declaration is required .

It is also laid down in this decision as under:

“Presumption of possession and/ or continuity thereof both forward and backward can also be raised under Section 110 of the Indian Evidence Act. The Courts below, were, therefore, required to appreciate the evidence keeping in view the correct legal principles in mind.” (Quoted in: State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319).

It is observed by the Apex Court, in State of AP v. Star Bone Mill & Fertiliser Company, (2013) 9 SCC 319 (following Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, AIR 2008 SC 901),

“13. …. Even, a revenue record is not a document of title. It merely raises a presumption in regard to possession.” (Quoted in M. Siddiq v. Mahant Suresh Das, 2020-1 SCC 1).
“16. The courts below erred in holding, that revenue records confer title, for the reason that they merely show possession of a person.”

Revenue record Proves Possession; Presumption of truth Attached

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

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

Record of rights and the record of Permanent Settlement

Our Apex Court in Sukhdev Singh v. Maharaja Bahadur of Gidhaur, AIR 1951 SC 288, as under:

“This brief review of evidence is sufficient to show that appellant has not been able by clear and conclusive evidence to rebut the presumption arising from the Record of rights and the record of Permanent Settlement and he has failed to establish his claim”.

“Even though Ext. A2 is only an extract of the Settlement Register/ Adangal extract which may not by itself prove or confer title to a party in whose name the property stood registered, it can be accepted as evidence of title when there is no contra evidence. Admittedly it is adjacent to Amruthamangalam temple. The temple compound and this suit property which is adjacent to the temple are shown to be of Amruthamangalam Devaswom as per revenue record. In these circumstances, the contention that this property did not and does not belong to the temple/Devaswom cannot be sustained at all.” (Referred to in: Kunhimangalam Devaswam v. State of Kerala, 6 April, 2022, Anil K. Narendran, J.)

Nemo Dat Quod Non Habet

In P. Kishore Kumar v. Vittal K. Patkar, 2024-1 CTC 547; 2023-4 CurCC(SC) 278), after pointing out that the revenue records are not documents of title, it is held as under:

“18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., “no one can confer a better title than what he himself has”. In the present case, the plaintiff’s vendor having been denied the right of title in the land by the Commissioner’s order, could not have conveyed the same to her vendee.”
“22. Contention advanced on behalf of the plaintiff that through the record of rights the plaintiff has established his title by a preponderance of probabilities is not sustainable. As noted above, the plaintiff failed to produce a single document of title in respect of the suit property. In a dispute with respect to determination of title, merely pointing out the lacunae in the defendant’s title would not suffice. Having instituted the suit for declaration, the burden of proof rested on the shoulders of the plaintiff to reasonably establish the probability of better title, which the plaintiff in the present case, has manifestly failed to do.”

‘Mutation’ Only for Fiscal Purposes; Legal Rights are subject to civil court decision

Following propositions can be culled out from the very rules of The Transfer of Registry Rules made applicable in the State of Kerala (Rule 15 and 16):

It is the duty of the Tahsildar to determine the person in whose name the transfer of registry shall be made.
It is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) up to date.
It is the immediate concern of the Land Revenue Department bring into the thandaper accounts (Chitta) the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.
No case shall be rejected solely for the default of appearance of the parties.
Only a summary enquiry is to be made by the Revenue authorities.
The summary enquiry and the decision thereon is only an arrangement for fiscal purposes.
The summary enquiry and the decision thereon do not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases.
The question of legal rights is always subject to adjudication by civil courts.
And, pattas will be revised from time to time in accordance with judicial decisions.

In Sawarni vs. Inder Kaur and Ors., (1996) 6 SCC 223, it was held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

In Balwant Singh v. Daulat Singh, (1997) 7 SCC 137 it was held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

In Jitendra Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 802, it was held as under:

“6. … mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.” (Quoted in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

In Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49, it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

Patta is not a document of title. It can be Mortgaged as Title-Deed u/s. 58, TP Act

In Angu Pillai v. M.S.M. Kasiviswanathan Chettiar, AIR 1974 Mad 16, it was noticed as under:

“15.In Indian law, deposit of patta has been held to constitute a valid equitable mortgage, though patta is not in itself a deed of title, but is only an evidence of title. This Court has consistently taken the view that the main object of tender of patta is merely to give information of the land revenue payable and the details of the property and that the exact weight to be given to the patta would depend upon the circumstances of the case. In Dohganna v. Jammanna, AIR 1931 Mad 613 it is pointed out that in case of pattas in respect of a land in Zamindari, if the land be at the disposal of the landlord at the time of granting the patta, prima facie such patta would not be mere bill of rent but something more and that if it is not so it would not create any rights in the pattadar in derogation of the rights of a person who would be entitled to the land subject to the proper and regular payment of rent. The question directly arose before a Bench of this Court in Official Assignee v. Basudevadoss, AIR 1925 Mad 723, as to whether a deposit of patta is enough to constitute an equitable mortgage. The Bench answered the question in the affirmative. Srinivasa Aiyangar, J. who delivered the leading judgment in that case, has pointed out that the answer to the question as to whether the pattas in respect of a land is a document which would be sufficient, by being deposited, to evidence the intention required for an equitable mortgage would vary according to the conditions of the country and the consciousness on the part of the members of the community and that though a patta is not a document of title still a deposit of the same with intent to create an equitable mortgage would create an equitable mortgage.” (Quoted with approval in: Syndicate Bank v. Estate Officer, AIR 2007 AIR SC 3169; 2007-8 SCC 361)

Not to Set Aside Patta; for, Patta was Prepared not after hearing

In Godavarma Valia Raja v. Bhoothi Swamiyar, AIR 1952 TC/Ker 408, ir is observed as under:

Therefore, so far as the assessment is concerned it was not at all necessary to set aside the order of the Settlement Officer. It is only in case the Devaswom impeaches the order in so far as it refused to issue patta in favour of the Devaswom for some of the properties claimed by it that the Devaswom would be bound to set aside the order. Therefore, there is no substance in the contention that the plaintiff was bound to set aside the decision of the settlement Officer mentioned in the notice, Ex. VIII. The further question for consideration is whether the plaintiff was bound to set aside the patta, Ex. G. There is nothing to show that the patta was prepared after hearing the plaintiff or after giving him an opportunity to show cause why the assessment should not be fixed in the manner in which it was fixed in Ex. G. The preparation of the patta appears to have been a mere executive order of the Settlement Officer. It was not an order passed between two parties. Again, even if the declaration asked for in the plaint is allowed it will not have the effect of setting aside the patta. It will only have the effect of correcting the patta with respect to the assessment.”

Transfer of Registry Rules, 1966

Rule 15 and 16 of the Transfer of Registry Rules, 1966, of the Kerala State read as under:

Rule 15 : “With the help of the details furnished in the statement in Form ‘A’ prepared by the Village Officers and such further information as the Tahsildar may receive from parties and village officials at the time of enquiry regarding the fact of possession and enjoyment, payment of tax and other particulars, the Tahsildar shall determine the person in whose name the transfer of registry shall be made. No case shall be rejected solely for the default of appearance of the parties as it is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) upto date and bring into it the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.”
Rule 16 : “The summary enquiry and the decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The question of legal rights is always subject to adjudication by civil courts and pattas will be revised from time to time in accordance with judicial decisions.”

The Kerala High Court held in Thulasibhai CC v. State of Kerala, 2010 (4) KLT 215, that the revenue recovery proceedings would not stand as a bar either in the Revenue Recovery Act or in the Transfer of Registry Rules to effect mutation. In Sudan K.K. v. State of Kerala, 2013 (4) KLT 563, it was held that the pendency of a civil suit also can never be a bar with regard to the acceptance of land tax unless specifically restrained by any order passed by the Court.

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Book No, 1 – Civil Procedure Code

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Evidence Act – General

Sec. 65B

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Law on Documents

Documents – Proof and Presumption

Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Marking of Photocopy and Law on Marking Documents on Admission (Without Formal Proof)
Proof of Documents – Admission, Expert Evidence, Presumption etc.
Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

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Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
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Constitutional Principles
Ayodhya and Sabarimala Disputes
General

What is GRANT in Easement

Jojy George Koduvath.

“Basis of Every Right of Easement is Grant”

The Indian Easements Act, 1882 refers to the different methods by which easements are acquired. They are pointed out (Ramkanya Bai v. Jagdish, AIR 2011 SC 3258) to be the following:

easements by grant: express grant by the owner of the servient heritage
easements of necessity: based on implied grants or reservations made by the owner of a servient heritage at the time of transfers or partitions
easements by prescription: it is presumed that it is acquired by peaceable and open enjoyment, without interruption for twenty years and
customary easements: it is inferred that it is acquired by virtue of a local custom.

For easement by prescription, it is not necessary that the user should be exclusive, but the claimant should exercise it under some claim existing in his own favour independently of all others.

The origin of all easements is, theoretically, grant by the servient owner. It may be express or implied. It may also be presumed from long user. It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

In Lachhi v. Ghansara Singh, AIR 1972 HP 89, it is held as under:

“The basis of every right of easement by whatsoever method it may have been acquired, is theoretically a grant from the servient-owner.
- It may be expressed, as is mentioned in Sections 8 to 12 of the Act, or
- it may be implied from the circumstances as in Section 13 of the Act. or
- it may be presumed from long and continued user for a certain period as in Section 15 of the Act, or
- it may be inferred from a long and continued practice of user by a certain class of the public in certain locality.”

Easement is a Right

Easement is a right possessed by the owner of a land (dominant land),

to use the land of another (servient land),
for the beneficial enjoyment of the dominant land.

Easement Does Not Confer Ownership or Possession

By virtue of easement –

No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
No Possession is obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335).
No Substantive Interest is created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).

Easement (सुखाधिकार) is Well Recognised, And Circumscribed by Law

Easement is a limited right to ‘use’or ‘enjoy‘ another’s land.
It is to do, or to prevent to do, some specific thing.
It is to be exercised in a way least onerous to ‘another’s land’.
It is not a right to build and enjoy.
The right gained cannot be enlarged.
- That is, an easement of way to a particular (dominant) property cannot be extended to another property by the dominant owner; an easement for residential purpose cannot be enlarged for an industrial purpose. (Sec. 28, 29, 43 etc.)
Servient owner can use his land in any manner (without disturbing enjoyment of the easement).

According to ‘Katiyar on Easements’:

Easement is not a right to land or exclude owner.
It is not a right to permanent occupation.
It does not confer exclusive right of user/enjoyment.
And, it is not a corporeal interest in land.

Easement – Definition under the Indian Easements Act

SECTION 4 of the Indian Easements Act defines Easements as under:

“An easement is a right
which the owner or occupier of certain land possesses,
- as such,
for the beneficial enjoyment of that land
to do and continue to do something, or to prevent and continue to prevent something being done,
in or upon, or in respect of, certain other land not his own.”

Salient Limitations of Easement under the Indian Easements Act

The owner of a land only ‘uses’or ‘enjoys‘ land of another (Sec. 31)
It is only ‘enjoyment’ of soil or things ‘subsisting’ (Explanation in Sec. 4).
It allows limited enjoyment of land, and advantages from its situation: S. 7
Right be exercised in a way least onerous to ‘another’s land’: Sec. 22
Servient owner can secure full enjoyment; but, he should cause as little inconvenience: Sec. 24: 2017-2 KLT 63

It is Not a right to:

tend to total destruction of servient tenement: S. 17 (2003 (1) KLT320)
make additional burden: S. 23
make constructions in, or cultivate upon: (2003 (1) KLT 320).
prevent servient owner to use: S. 27 : 2003 (1) KLT 320
enlarge purpose of, or accustomed user: S. 28
substantially increase an easement: S. 29
prevent servient owner from obstructing excessive ‘user’ of servient land – as ‘enjoyment of easement’: S. 31
increase burden by making permanent change in do. tent: S. 43
capable of forming grant – No easement, if Not capable of forming grant (without document or registration): Mohammed vs. Doomunhi Achari, 1987 (2) KLT 1037.

No easement if:

right claimed is incidents of ownership.
servient property belongs to him. Easement is a right with conscious knowledge that the servient property does not belong to him. AIR 1966 Raj 265. It must also be with proper animus as to easement: AIR 1973 Mad 173.

Easement is acquired; Not arise out of ‘Express Permission’

Sec. 12, Easements Act states that an easement is acquired (under grant, partition or prescription) by the owner of an immovable property. Section 12, Indian Easements Act, 1882 reads as under:

12. Who may acquire easements-An easement may be acquired by the owner of the immovable property for the beneficial enjoyment of which the right is created, or on his behalf, by any person in possession of the same.
One of two or more co-owners of immovable property may, as such, with or without the consent of the other or others, acquire an easement for the beneficial enjoyment of such property.
No lessee of immovable property can acquire, for the beneficial enjoyment of other immovable property of his own, an easement in or over the property comprised in his lease.

Sec. 28 of the Easement Act reads as under:

28 Extent of easements -With respect to the extent of easements and the mode of their enjoyment, the following provisions shall take effect:-
Easement of necessity -An easement of necessity is co-extensive with the necessity as it existed when the easement was imposed.
Other easements -The extent of any other easement and the mode of its enjoyment must be fixed with reference to the probable intention of the parties, and the purpose for which the right was imposed or acquired. In the absence of evidence as to such intention and purpose-
- .(a) Right of way -A right of way of any one kind does not include a right of way of any other kind;
- (b) Right to light or air acquired by grant -The extent of a right to the passage of light or air to a certain window, door on other opening, imposed by a testamentary or non-testamentary instrument, is the quantity of light or air that entered the opening at the time the testator died or the non-testamentary instrument was made;
- (c) Prescriptive right to light or air -The extent of a prescriptive right to the passage of light or air to a certain window, door or other opening is that quantity of light or air which has been accustomed to enter that opening during the whole of the prescriptive period irrespectively of the purposes for which it has been used;
- (d) Prescriptive right to pollute air or water-The extent of a prescriptive right to pollute air or water is the extent of the pollution at the commencement of the period of user on completion of which the right arose; and
- (e) Other prescriptive rights -The extent of every other prescriptive right and the mode of its enjoyment must be determined by the accustomed user of the right.

Sec. 29 of the Easement Act reads as under:

29. Increase of easement -The dominant owner cannot, by merely altering or adding to the dominant heritage, substantially increase an easement. Where an easement has been granted or bequeathed so that its extent shall be proportionate to the extent of the dominant heritage, if the dominant heritage is increased by allution, the easement is proportionately increased, and if the dominant heritage is diminished by dilution, the easement is proportionately diminished. Save as aforesaid, no easement is effected by any change in the extent of the dominant or the servient heritage.

Who has the Burden to show Alternate Way

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, it is held that the plaintiff claiming easement of necessity or grant has only a primary burden to prove the absence of any alternate pathway.

“In a case where the original plaintiff was claiming easement right either as grant or as of necessity the plaintiff has only a primary burden to prove the absence of any alternate pathway. As the defendants have not proved the existence of any pathway for access to Plaint `A’ schedule property the version of the plaintiff that there is no alternate pathway shall be accepted. … The defendants have not entered the witness box to disprove the evidence led by the plaintiff.”

Implied grant and Quasi Easement in a ‘Formed’ Way

There could be no implied grant where the easements are not continuous and non-apparent. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court found quasi easement under Section 13(b) of the Indian Easements Act over a way in the following circumstances –

Though there could be no implied grant where the easements are not continuous and non-apparent, if there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
There was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to dominant property and there was no objection also to the use of disputed way by the plaintiff.
An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances.
A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
Only access to the property was through disputed pathway.
It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
The user was not obstructed for very long time.
There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Pleaded ‘grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘grant’, and not, Implied grant, our Apex Court, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, allowed Implied Grant observing as under:

“It is true that the defendant/appellant alleged that no implied grant was pleaded in the plaint. The Trial Court, in our view, was justified in holding that such pleadings were not necessary when it did not make a difference to the finding arrived at with respect to the easement by way of grant. Accordingly, there is no substance in the argument raised by the learned senior counsel for the appellants.”

Easement and Grant

The term ‘Grant’ is used in law to denote-

A generic term to mean ‘transfer’ of immovable property (e.g., sale, lease, gift etc.).
But, it will not be a ‘transfer’ of property; and remain as a concession, permission, settlement, grant of easement etc., if it is used in place of ‘transfer’, purposefully, to denote a lesser right.
Present, aid, help etc., and the act of a settlor of trust, or of donor of a charity.
A technical term to denote conditional-transfer of lands by sovereign especially when it is purposefully used to differentiate from ‘transfer’ of property.
More than a licence (which does not create an estate or interest) and less than an outright and unconditional ‘transfer’ of property.

Characteristics of ‘grant’

Usually it denotes a grant by deed.
It can be with or without consideration.
Unless specifically specified, it is creation of an ‘interest’ in property (in case of easement, no interest is created; but only a right of enjoyment).
As long as the conditions are fulfilled, grant is usually irrevocable.
Conditions can also be fixed to limit the period of grant.
Inferior interest, out of an interest retained by the grant or, e.g. the grant of a lease of land by the person holding the freehold. (Collins Dictionary of Law).

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

‘Grant’ – Salmond on Jurisprudence

What is ‘grant’ is stated in Salmond’s Jurisprudence, 12th Edition, at pages 338-339, under the heading ‘The Classes of Agreements’. According to Salmond a grant–

” is an agreement“,
“creates a right“
is NOT “a right in Personam between the parties to it”,
examples – “grants of leases, easements, charges, patents, franchises, licences and so forth“.

Salmond distinguishes ‘grant’ from other legal concepts as under.

“…. A contract is an agreement which creates an obligation or a right in personam between the parties to it.
A grant is an agreement which creates a right of any other description; examples being grants of leases, easements, charges, patents, franchises, licences and so forth.
An agreement which transfers a right may be termed generically an assignment. On which extinguishes a right is a release, discharge, or surrender.” (Quoted in H. Anraj v. Government of Tamil Nadu (& Shri Dipak Dhar v. The State of West Bengal), AIR 1986 SC 63: (1986) 1 SCC 414.)

Grant of Right of Way must be Liberally Construed

Katiyar on Easements repeatedly said in his treatise that a ‘grant of right of way must be liberally construed’ to ensure the dominant owner’s beneficial enjoyment of his land. Gale on Easements (leading English treatise) and “Law of Easements and Licenses” by P.S. Narayana also emphasised this principle.

In Mathai v. Jordi Poulose, ILR 2011-2 Ker 484; 2011-2 KHC 591; 2011-2 KLT 605, it was found that the suit agreement, made it clear that the right given thereunder was not a personal right but a right for the beneficial enjoyment for the property, and it could only be a right of easement and not a licence. The High Court referring Ram Sarup Gupta v. Bishun Narain Inter College, AIR 1987 SC 1242, said further as under:

“18. True, the plaint did not specifically show that appellant has claimed a right of easement by grant. But as rightly argued by the learned counsel appearing for the appellant, a pleading must be liberally construed and placing undue emphasis on the form is not in the interest of justice. The Honourable Supreme Court in Ram Sarup Gupta v. Bishun Narain Inter College (AIR 1987 SC 1242) held:
“It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the Court to ascertain the substance of the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of the pleadings, instead the Court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings parties knew the case and they proceeded to trial on those issues by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal.”

Taken from: What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?

Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545

The Supreme Court has observed, in Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545 as under:

“25. In the case at hand the High Court found that the approach of the trial court and the first appellate court was erroneous inasmuch as they proceeded on the basis as if it is a case of easement of necessity. Had the trial court and the first appellate court considered the evidence in the light of the respective stands of the parties and then concluded one way or the other, the position would have been different. When the approach was fundamentally wrong the High Court cannot be faulted for having gone into the question as to what was the proved intention of the party as culled out from the partition deed. The relevant (translated) portion reads as follows:
“Aravamutha Chettiar commonly enjoy the well situate on the portion allotted to Purushothaman Chettiar, likewise Purushothaman Chettiar commonly enjoy the lane situate on the portion allotted to Aravamutha Chettiar. Well is the exclusive property of Purushothaman Chettiar and lane is the exclusive property of Aravamutha Chettiar.”

26. Though an attempt was made by learned counsel for the appellant to contend that the quoted portion was only the preamble and not the intention of the parties, the same is clearly untenable. Earlier to the quoted portion it has been noted as follows:

“As per the above arrangement we decided to enter into the partition deed and hence we are writing this partition deed. We should take possession of our respective shares and enjoy the same uninterruptedly forever.”

27. Therefore, there is no manner of doubt that the intention was clear that it was a grant and not an easement of necessity which could be extinguished.

28. The question whether an easement is one acquired by grant (as contrasted from an easement of necessity) does not depend upon absolute necessity of it. It is the nature of the acquisition that is relevant. Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasieasement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made. Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Anyhow the scope of the grant could be determined by the terms of the grant between the parties alone. When there is nothing in the term of the grant in this case that it was to continue only until such time as the necessity was absolute; in fact even at the time it was granted, it was not one of necessity. If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognised and the servient tenement will be recognised and the servient tenement will be permanently burdened with that disability. Such a right does not arise under the legal implication of Section 13 nor is it extinguished by the statutory provision under Section 41 of the Act which is applicable only to easement of necessity arising under Section 13.

29. An easement by grant does not get extinguished under Section 41 of the Act which relates to an easement of necessity. An easement of necessity is one which is not merely necessary for the reasonable enjoyment of the dominant tenement, but one where dominant tenement cannot be used at all without the easement. The burden of the servient owner in such a case is not on the basis of any concession or grant made by him for consideration or otherwise, but it is by way of a legal obligation enabling the dominant owner to use his land. It is limited to the barest necessity however inconvenient it is irrespective of the question whether a better access could be given by the servient owner or not. When an alternate access becomes available, the legal necessity of burdening the servient owner ceases and the easement of necessity by implication of law is legally withdrawn or extinguished as statutorily recognised in Section 41. Such an easement will last only as long as the absolute necessity exists. Such a legal extinction cannot apply to an acquisition by grant and Section 41 is not applicable in such case.”

Mathai v. Jordi Poulose

In Mathai v. Jordi Poulose, ILR 2011-2 Ker 484; 2011-2 KHC 591; 2011-2 KLT 605, it is held as under:

“An easement can be acquired by an express grant or even by implied grant. The express grant could be oral and need not even be written and no form is prescribed. It will be sufficient if the words stated or written convey the idea of grant of a right of easement unequivocally.”

The High court quoted the following from In B.B.Katiyar Law of Easements and Licences Thirteenth Edn. at page 12 which reads as under:

“an easement may be acquired by express grant. It may be oral and need not be in writing or registered.”

The High Court continued as under:

“12. Justice Madhavan Nair in Musunoori Satyanarayana Murti v. Chekka Lakshmayya and others RSA 1267 & 1270 of 2005 24 (AIR 1929 Madras 79)quoting Peacock in his Tagore Lectures on the Easement Act by Mitchell that “by the law of India, wherever the Transfer of Property Act applies, the grant of easement by way of sale must be made by a registered instrument, an easement being an intangible thing, and if made by way of gift must also be by a registered instrument signed by or on behalf of the grant or and witnessed by at least two witnesses” held:-
“If I may say so with respect , very carefully and elaborately considered in Bhagwan Sahai v. Narasingh Sahai(1909 31 All.612) and I cannot do better than refer to the exposition of the law on this point contained in that judgment in answer to the appellant’s argument. In that case “the owner of a house undertook by an “argument” to permit the owner of an adjoining house when he built a second storey which was in contemplation, to discharge rain water and also water used for daily household purposes into the premises of the former.”

Sec. 92 of the Evidence Act

But, it is noteworthy that Sec. 92 of the Evidence Act enacts that when the terms of a grant or other disposition of property are reduced into writing, whether or not such contract or grant is compulsorily required to be reduced into writing and registered, no oral evidence shall be admitted to contradict, vary, add to or substract from its terms.

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General

Can the Ownership of (Exempted) Plantation (Above Ceiling Limit) be Changed? Can Plantation be Fragmented?

Taken from: Exempted Plantation Land – In whom Ownership Vests

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

Can Plantation be fragmented?
No.
Section 81 is a special provision to prevent fragmentation of plantation and to improve the economy of the state. Change the character of the plantation could be termed as ‘conversion’ and that will be against the provisions of the Act. (One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985)
Can Ownership of (Exempted) Plantation (Above Ceiling Limit) be Changed?
Yes; but, subject to the condition – use the land for the purpose for which exemption is granted.
Exemption granted under S.81(1)(a) is for the land and would continue to operate irrespective of change of ownership of the exempted land and the transferee would have to use the land for the purpose for which exemption is granted (R. V. Devassia v. Sub Registrar, Idukki, 2015-1 ILR(Ker) 1047; 2015-1 KHC 805; 2015-2 KLJ 17).

Does the Plantation Exemption confer Unconditional Rights over the ‘LAND’?

No.

Is the Vesting in Govt. “Fictional” (and it is only for transferring land to the Tenant)?

Yes; as regards lands within the ceiling limit.
No; as regards lands above ceiling limit.

It is for the following reason –

Exemption is only a ‘Legal Advantage conferred by Statute’. It continues (only) as long as Plantation exists.
Because,
- Under Sec. 2, clause (44), Plantation means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon.
- Section 87, Explanation II states that if a plantation for which exemption is given on recognition of a specific ‘plantation-crop’ is converted into any other ‘plantation-crop’ or the plantation activity is not continued, the exemption will be lost; and the land will be taken for considering the ceiling limit.

Sec. 87 reads as under:

“S. 87. Excess land obtained by gift, etc. to be surrendered – (1) Where any person acquires any land dafter the date notified under Section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivos or by bequest or inheritance or otherwise and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.
Explanation 1 – Where any land is exempted by or under Section 81 and such exemption is in force on the date notified under Section 83, such land shall, with effect from the date on which it ceases to be exempted, be deemed to be land acquired after the date notified under Section 83.
Explanation II – Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted intoany other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.”
Note:
1. The (main) section refers to lands in general (and not confined to Plantation). The Explanations refer to Plantation Lands.
2. The expression “ceases to be exempted” in first Explanation denotes the following –
- A Plantation land can be “ceases to be exempted” either ono “conversion” given in Explanation II or on legislation.
- Therefore, if there is conversion as stated in Explanation II, it will be taken as land “exceeds the ceiling area“, and
- “such excess” stands liable to be “surrendered” (automatically – without intervention of any authority).
3. In case of conversion by a transfer/sale, the expression “person” denote the transferee. It is clear from the beginning words of this section – “Where any person acquires any land … by gift, purchase, … or any other kind of transfer …”
4. The expression “shall be deemed to be land acquired after the said date” in the last limb of Explanation II (also) shows the nexus between the Explanations I and II. The result is that “such excess” stands liable to be “surrendered” (automatically – without intervention of any authority)

Read Blog: Glen Leven Estate v. State of Kerala: Not Correctly Decided?

Fragmentation of Plantation will be against the Provisions of the Act

Section 81 is a special provision to prevent fragmentation of plantation and to improve the economy of the state. Change the character of the plantation could be termed as ‘conversion’ and that will be against the provisions of the Act. (One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985).

No Total Prohibition in using Exempted Land for a Different Purpose

Explanation II does not make a total bar. It only causes to lose benefit of the exemption to a certain extent. That is, if a person converts any portion of his exempted land to any other class, that converted extent will be added to his account in determining his ceiling limit; and the Taluk Land Board can proceed upon that (excess) land. In short, the exemption will be lost for that portion. In this premises, in Wayanad Granites v. District Collector, 2023-4 KLT 874, it is held that ‘fragmentation is per se not illegal’. similarly, in District Collector v. Sajith Lal, 2023-4 KLJ 851, it is held that ‘there is no embargo under law in using any exempted land for non-exempted purposes as well’.

In Mathew K.T. v. State of Kerala, 19 April, 2024, in the light of earlier decisions, observed that there is no total prohibition in using an exempted land for a different purpose under the Kerala Land Reforms Act. The impediment or restriction is (only) the following –

If a portion of the exempted land is utilised for any other purpose, that would fall within his ceiling area and the authorities may be able to initiate ceiling proceedings.

The Full Bench decision, Mathew K. Jacob v. District Environmental Impact Assessment Authority [AIR 2019 Ker. 67, affirmed by the Supreme Court in K.H. Nazar v. Mathew K. Jacob, 2020-14 SCC 126] held as under:

“We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to Section 87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area. That is a matter to be dealt with by the Taluk Land Board with the assessee or the declarant and other interested parties on the party array and we desist from elaborating further.”

In District Collector v. Sajith Lal (2023-4 KLJ 851; 2023 KLT OnLine 1225) it is held as under:

“5. There is no embargo under law in using any exempted land for non- exempted purposes as well. If the land is used for non-exempted purposes, the holder of the land will lose the qualification for exemption, thus giving authority to the Land Board to initiate ceiling proceedings.” (Quoted in: Mathew K.T v. State of Kerala, 19 April, 2024)

No Embargo to Transfer (Exempted) Plantation Land (Above Ceiling Limit)

In R. V. Devassia v. Sub Registrar, Idukki, 2015-1 ILR(Ker) 1047; 2015-1 KHC 805; 2015-2 KLJ 17, it is held as under:

“9. On promulgation of the KLR Act in the State, the entire landed property in the State is subjected to State control as envisaged under the provisions of the KLR Act. No piece of the land escapes the clutches of the KLR Act including exempted land for ceiling purposes. The ceiling proceedings is a continuing proceedings and can be reopened in any of the circumstances, if so warranted, as contemplated under Section 87 of the KLR Act. Exemption granted from ceiling is the qualification to use the land in a particular manner, which means a burden is imposed on the land. The moment the qualification for exemption is vanished by conversion of the land, the protection from ceiling will also be extinguished to bring the land within the fold of the ceiling area. The exemption is in the nature of a burden on the land to use the land for the purpose for which exemption is granted. The eminent domain power of the State can be exercised for acquiring land without consent and also to regulate the use of land in public interest. The eminent domain is power inherent in any Sovereign State. This burden would bind the holder of the land as on 01/01/1970 and the successor-in-interest. The Division Bench of this Court in the State Human Rights Protection Centre, Thrissur and another v. State of Kerala and others [2009 (3) ILR 695] held that exemption granted under S.81(1)(a) is for the land and would continue to operate irrespective of change of ownership of the exempted land and the transferee would have to use the land for the purpose for which exemption is granted.”

In Everest Stone Crusher and Granites v. District Collector, Kannur, 2020-6 KHC 289, it is observed as under:

“16. In Devassia R.V. this Court noticed that, the provisions of the Kerala Land Reforms Act do not place any embargo on transfer. The transfer of registry is for fiscal purposes. The power of the competent authority to reopen the ceiling proceedings to include the land exempted for the purpose of ceiling is not lost on account of effecting mutation. Therefore, the Revenue Officials cannot refuse to effect mutation of the property purchased by the transferee.”

Tenant/Owner cannot ‘Sell’ Plantation Land (above ceiling limit) as his absolute property

An owner, or a tenant who got ‘fixity’ over such land, cannot ‘sell’ this land as his absolute (ownership) property.

Effect of Fragmentation for Non-exempted Category

The decision in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985, arose from the Writ Petition filed for a declaration that the fragmentation and sale of a Rubber Plantation for non-plantation purposes was illegal as it defeated the purpose of the Kerala Land Reforms Act. When the matter was placed before the Taluk Land Board under Sec 87, KLR Act, it found that there was no change in classification of the land and therefore dropped the proceedings. The Court held as under:

“34. Section 81 of the KLR Act is in pith and substance a special provision, with its main objective of giving exemption to certain lands including the lands maintained as plantations is to prevent fragmentation of the land and to keep it as plantation itself to improve the economy of the state for welfare of people as a whole while the Act creates a regime, the State is under an obligation to safeguard, the intended purpose of the provisions of the Act in its spirit. ….. …… It could be gathered from the records that the proposal to transfer 1.03 acres of land to each workers in discharge of their service or retrenchment benefits will definitely divide the plantation into separate slots and that would definitely change the character/nature of the plantation, which could be termed as ‘conversion’ and that will be against the provisions of the Act.”

Can a Tenant of Plantation Transfer his Rights, Fragmenting the Plantation

Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186].

Therefore, a tenant of plantation having rights of fixity (Sec. 13) may have the right to transfer it to another. In any case, the change of character or nature of the plantation by fragmentation being amount to ‘conversion’ that will be against the provisions of the Act, as pointed out in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985.

Sec. 120A, KLR Act is Relevant

Fragmentation of plantation land amounts to ‘conversion’. It will be against the provisions of the Act. Section 120A, KLR Act is relevant in this regard. It reads as under:

120A. Registering officer not to register in certain cases. – Notwithstanding anything contained in the Registration Act, 1908 (Central Act 16 of 1908), where the District Collector or any other officer authorised by the Government in this behalf informs the registering officer in writing that there are reasonable grounds to believe that any document relating to transfer of land which may be presented before him for registration is intended to defeat the provisions of this Act, such registering officer shall not register such document until the District Collector or the officer so authorised, as the case may be, informs the registering officer that the transfer is not intended to defeat the provisions of this Act. [Inserted by Act 17 of 1972.]

End Notes

Relevant provisions of KLR Act, in a Nutshell

Section	Provisions in a Nutshell
Chap. II 3(1)	Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres. “Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7 E	Persons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Hec. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13	Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
59	Deposit of purchase price and issue of certificate – to cultivating tenant.
72	Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt. ILR 2010(2) Ker. 845. 72(1) says: Holdings upon which tenanat entilted fixity under sec. 13 vest in govt. 72(4) – says: Landowner entitled to resume land shall apply within the time fixed. Otherwise vest in govt. Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).
72B	Cultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72E	Such tenant is liable to pay rent to the Government.
72C	Provides for suo moto action by LT. (No time limit,)
72K	LT shall issue purchase certificate. It shall be conclusive proof of assignment.
74	Prohibition of future tenancies.
Chap. III 81	Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertaking etc. ^Proviso^{– There will be exemption (as plantation, land given to educational institution, trust etc.) on Government lands, given under grant, lease etc.} ^{See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v. State of Kerala, AIR 1974 Ker 28.}
82	Ceiling area – 5/10 standard acres.
83	No person can hold or possess excess of ceiling area. (Holding is by tenant.) It is a total bar. (Note: plantations, industrial area etc. are exempted.) Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306 (Thomas Mariamma Vs. TLB), Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137) The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84	Certain transfers – void.
85(1)	Surrender excess.
85(2)	Owners and Tenants (in excess of the ceiling area) should furnish ceiling return to Land Board before March31, 1971, before the Land Board (including lands exempted under S. 81). Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009
85(3)	Excess shall be surrendered.
85(5)	Land Board shall determine – extend to be surrendered
85(7)	Whereon a person fails to file statement under 85(2), LB shall intimate TLB – TLB shall determine land to be surrendered. Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement: State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. [TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85A	File ceiling return within March 2, 1973 before Land Board..
86(1)	On determination of the extent to be surrendered under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
86(3)	Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)	Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)	Nothing applies to property of Govt. under KLC Act.
87 Exp. II	If a person converts any portion of exempted land for any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for the portion that exceeds the ceiling limit. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)

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General

Exempted Plantation Land – In whom Ownership Vests

(Does Plantation Exemption confer Unconditional Rights over the ‘LAND’?)

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

Does the Plantation Exemption confer Unconditional Rights (to the Owner) over the ‘LAND’?
No.
Exemption is only a ‘Legal Advantage conferred by Statute’. It continues (only) as long as Plantation exists.

Who is the OWNER of Exempted (Private-Leasehold) Plantation Lands in Kerala?
It is the Government, though by virtue of Chapter II (Sec. 13), the tenant has ‘Fixity’ (within ceiling limit).

What is the Right of ‘tenants’ of Plantations, after vesting the land with Govt.?
It is a ‘Legal Right conferred by Statute’.

Can Plantation be fragmented?
No.
Section 81 is a special provision to prevent the fragmentation of plantations and to improve the economy of the state. Changing the character of the plantation could be termed as ‘conversion’, and that will be against the provisions of the Act. (One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985)

PART I

Chapter III – Deals with Ceiling Limit and Exemptions

Chapter III (Sections 81 to 98A) of the KLR Act deals with ‘Restriction on Ownership and Possession of Land in Excess of Ceiling Area and Disposal of Excess Lands’.

Among other things, it procures provisions as to:
- ceiling limit,
- exemptions from ceiling limit,
- filing ceiling return,
- determining extent to be surrendered,
- surrender,
- taking possession by TLB,
- effect of conversion of exempted land.

Exemption from Ceiling Limit

Sec. 81(1) says that the provisions of Chapter III shall not apply to –

lands owned or held by the Government,
private forests,
plantations, etc.

PART II

Does the Plantation Exemption confer Unconditional Rights over the ‘LAND’?

No.

It is for the following reason –

Exemption is only a ‘Legal Advantage conferred by Statute’. It continues (only) as long as Plantation exists.
Because,
- Under Sec. 2, clause (44), Plantation means any land used by a person principally for the cultivation of tea, coffee, cocoa, rubber, cardamom or cinnamon.
- Section 87, Explanation II states that if a plantation for which exemption is given on recognition of a specific ‘plantation-crop’ is converted into any other ‘plantation-crop’ or the plantation activity is not continued, the exemption will be lost; and the land will be taken for considering the ceiling limit.

Sec. 87 reads as under:

“S.87. Excess land obtained by gift, etc. to be surrendered – (1) Where any person acquires any land dafter the date notified under Section 83 by gift, purchase, mortgage with possession, lease, surrender or any other kind of transfer inter vivos or by bequest or inheritance or otherwise and in consequence thereof the total extent of land owned or held by such person exceeds the ceiling area, such excess shall be surrendered to such authority as may be prescribed.
Explanation 1 – Where any land is exempted by or under Section 81 and such exemption is in force on the date notified under Section 83, such land shall, with effect from the date on which it ceases to be exempted, be deemed to be land acquired after the date notified under Section 83.
Explanation II – Where, after the date notified under Section 83, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or any land exempt under Section 81 from the provisions of this Chapter is converted into any class of land not so exempt and in consequence thereof the total extent of land owned or held by a person exceeds the ceiling area, so much extent of land as is in excess of the ceiling area, shall be deemed to be land acquired after the said date.”
Note: 1. The (main) section refers to lands in general (and not confined to Plantation). The Explanations alone refer to Plantation Lands.
2. The expression “ceases to be exempted” in first Explanation denotes the following –
- A Plantation land can be “ceases to be exempted” either ono “conversion” given in Explanation II or on legislation.
- That is, if there is conversion as stated in Explanation II, it will be taken as land “exceeds the ceiling area“, and
- “such excess” stands liable to be “surrendered” (automatically – without intervention of any authority).
3. In case of conversion by a transfer/sale, the expression “person” denote the transferee. It is clear from the beginning words of this section – “Where any person acquires any land … by gift, purchase, … or any other kind of transfer …”
4. The expression “shall be deemed to be land acquired after the said date” in the last limb of Explanation II (also) shows the nexus between the Explanations I and II. The result is that “such excess” stands liable to be “surrendered” (automatically – without intervention of any authority)

Fragmentation of Plantation will be against the Provisions of the Act

Section 81 is a special provision to prevent fragmentation of plantation and to improve the economy of the state. Change the character of the plantation could be termed as ‘conversion’ and that will be against the provisions of the Act. (One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985). (See: Notes under the heading – Effect of Fragmentation for Non-exempted Category)

Sec. 120A, KLR Act is Relevant

Fragmentation of plantation land amounts to ‘conversion’. It will be against the provisions of the Act. Section 120A, KLR Act is relevant in this regard. It reads as under:

120A. Registering officer not to register in certain cases. – Notwithstanding anything contained in the Registration Act, 1908 (Central Act 16 of 1908), where the District Collector or any other officer authorised by the Government in this behalf informs the registering officer in writing that there are reasonable grounds to believe that any document relating to transfer of land which may be presented before him for registration is intended to defeat the provisions of this Act, such registering officer shall not register such document until the District Collector or the officer so authorised, as the case may be, informs the registering officer that the transfer is not intended to defeat the provisions of this Act. [Inserted by Act 17 of 1972.]

Chapter III – Excess, Ceiling Return, Surrender, Exemption, Etc.

PLANTATIONS – Analysis of S. 81, 82 and 83

CHAPTER III of the KLR Act deals with Ceiling Area and Excess Lands.

Sec. 81 provides for ‘Exemptions’. Sec. 81 reads as under:

Exemptions: (1) The provisions of this Chapter shall not apply to –
- (a) lands owned or held by the Government ….
- …. …..
- (e) plantations;
- …………

Note: Exemption apply to lease-lands owned by the Government.

Sec. 81(1)(a) Proviso says –

“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease“. (See notes under the heading: “Sec. 81 exemptions do not apply to Govt. lands; But, Exemption apply to lease-lands”)

Ceiling area

S. 82 & 83 deal with ceiling area and bars holding land excess of ceiling fixed. Sec. 82 reads as under:

82. Ceiling area. – [(1) The ceiling area of land shall be,
(a) in the case of an adult unmarried person or a family consisting of a sole surviving member, five standard acres, so however that the ceiling area shall riot be less than six and more than seven arid a half acre in extent;
(b) in the case of a family consisting of two or more, but not more than five members, ten standard acres, so however that the ceiling area shall not be less than twelve and more than fifteen acres in extent.
(c) in the case of a family consisting of more than five members, ten standard acres increased by one standard acre for each member M excess of five, so however that the ceiling area shall not he less than twelve and more than twenty acres in extent; and
(d) in the case of any other person, other than a joint family, ten standard acres, so however that the ceiling are shall not be less than twelve and more than fifteen acres in extent.]

Sec. 83 reads as under:

“83. No person to hold land in excess of the ceiling area. With effect from such dates as may be notified by the Government in the Gazette, no person shall be entitled to own or hold or to possess under a mortgage lands in the aggregate in excess of the ceiling area.”

It is a total bar.

Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306 (Thomas Mariamma Vs. TLB),

The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.”

Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137) – quoted in 2008(1) KLJ 571 (State Vs. Puliyangattu). Followed in State vs Civil Judge, Nainital, AIR 1987 SC 16; Bhikoba S. Vs. ML Punchand Tathed, AIR 1982 (SC) 865.

Section 85(1) reads as under:

85. Surrender of excess land. (1) Where a person owns or holds land excess of the ceiling area on the date notified under Section 83, such excess land shall be surrendered as hereinafter provided: …. ….”

Section 2 (3) defines ceiling area as under:

“Ceiling area” means the extent of land specified in section 82 as the ceiling area”.

Relevant Provisions: Excess, Ceiling Return, Surrender, Exemption Etc.

Sec. 85 (1) provides for Surrender excess.
Sec. 85 (2) provides – Owners and Tenants of plantation (who owns or hold properties) should furnish statement (ceiling return) to Land Board before March 31, 1971, before the Land Board (including lands exempted under S. 81).
Sec. 85 (3) provides – Excess shall be surrendered.
Sec. 85 (5) provides – LAND BOARD shall DETERMINE – extend to be surrendered
Sec. 85 (7) provides – Whereon a person fails to file statement (ceiling return) under 85(2), LAND BOARD shall intimate Taluk Land Board (TLB),– TLB shall determine land to be surrendered.
- “The statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit and if such a person fails to file the statement in accordance with law, the Board is enjoined to proceed against such person.” State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009.
- [TLB not to do, suo motu, without direction from LB. State Of Kerala Vs Idiculla, 1980 KLT 120, referred to Shircy, J. in One Earth One Live Vs. State of Kerala, 2019(1) KLT 985.]
- The effect of not filing ceiling return can be equated to ‘not applying for assignment’ of purchase certificate, See: Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283.
Sec. 85A provides – File ceiling return/statement within March 2, 1973 before Land Board.
Sec. 86(1) provides – On determination of the extent to be surrendered (by LB) under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
Sec. 86(3) provides – Where any person fails to surrender as demanded, the TLB may order an officer to take possession.
Sec. 86(4) provides – Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
Sec. 86(6) provides – Nothing applies to property of Govt. under KLC Act.
Sec. 87 Exp. II provides – If CONVERTED TO ANY OTHER CLASS and the person owns excess of ceiling area – the excess shall be deemed to be land acquired.
Sec. 87(1A) provides – Person referred to above (transferee) also should file statement (Return).

See note below: ‘No Total Prohibition in using Exempted Land for a Different Purpose‘

Sec. 81 exemptions do not apply to Govt. lands; But, Exemption apply to lease-lands

Government lands are exempted under Sec. 81(1)(a).

81(1)(a) Proviso says –

“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease“.

This proviso is introduced in 1971. By virtue of this amendment (introducing Section 81(1)(a) Proviso) “Plantation-Exemption” takes effect on Government-lease-land (with tenants).

But it must be noted that a ‘valid lease’ must exist. That is, the person in possession of government land should be a “lessee”; he must not be trespasser or a person who forfeit the title of Government.

Section 81(1)(a) Proviso reads as under:

“Provided that the exemption under this clause shall not apply to lands owned by the Government of Kerala and held by any person under lease whether current or time expired or otherwise.”

The word “otherwise” must be understood as a permissive occupation

In MT Joseph v. State of Kerala, AIR 1974 Ker 28, it is held-

“Clause (a) of Sub-section (1) of Section 81 by which “Government lands held under a lease current or time expired or otherwise” can be understood only as referring to such lands which are held by persons in permissive possession. The word “otherwise” must be understood as a permissive occupation otherwise than under a lease. The word “otherwise” has no wider meaning in the context. So understood, the exemption to Clause (a) of that Section is perfectly legal and in that limited sense we uphold that provision as valid.”

Tenant is defined in Sec 2 (57) as under:

(57) “tenant“ moans any person who has paid or has agreed to pay rent or other consideration
for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes- …. ….. ….. “

Section 86 reads:

86. Vesting of excess lands in Government. (1) On the determination of the extent and other particulars of the lands, the ownership or possession or both of which is or are to be surrendered under Section 85, the ownership or possession or both, as the case may be of the land shall, subject to the provisions of this Act, vest in the Government free from all encumbrances and the Taluk Land Board shall issue an order accordingly.
(2) On receipt of [the order of the Taluk Land Board under Sub-section (1)] such person shall make the surrender demanded, in such manner as may he prescribed.
(3) Where any person fails to make the surrender demanded, the [Taluk Land Board] may authorise any officer to take possession or assume ownership of the land in such manner as may be prescribed.
[(4) Where the ownership of any land vests in the Government under Sub-section (1), the rights of the intermediary, if any, in respect of the land shall stand extinguished, and where possession of any land which was in the possession of a cultivating tenant vests in the Government under that Sub-section, the ownership of such land shall vest in the Government and the rights of the intermediary, if any, in respect of such land shall stand extinguished.]

Read Blog: Glen Leven Estate v. State of Kerala: Not Correctly Decided?

PART III

Effect of Conversion of a Portion of Exempted Land into a Non-exempted Category

Section 87 is the relevant provision – quoted above.

From Sec. 87, following legal principles can be deduced (as stated above) –

1. The (main) section refers to lands in general (and not confined to Plantation). The Explanations refer to Plantation Lands.
2. The expression “ceases to be exempted” in first Explanation denotes the following –
- A Plantation land can be “ceases to be exempted” either ono “conversion” given in Explanation II or on legislation.
- Therefore, if there is conversion as stated in Explanation II, it will be taken as land “exceeds the ceiling area“, and
- “such excess” stands liable to be “surrendered” (automatically – without intervention of any authority).
3. In case of conversion by a transfer/sale, the expression “person” denote the transferee. It is clear from the beginning words of this section – “Where any person acquires any land … by gift, purchase, … or any other kind of transfer …”
4. The expression “shall be deemed to be land acquired after the said date” in the last limb of Explanation II (also) shows the nexus between the Explanations I and II. The result is that “such excess” stands liable to be “surrendered” (automatically – without intervention of any authority)

No Total Prohibition in using Exempted Land for a Different Purpose

In Mathew K.T v. State of Kerala, 19 April, 2024, in the light of earlier decisions, observed that there is no total prohibition in using an exempted land for a different purpose under the Kerala Land Reforms Act. The impediment or restriction is (only) the following –

If a portion of the exempted land is utilised for any other purpose, that would fall within his ceiling area and the authorities may be able to initiate ceiling proceedings.

“We however add that any class of land earlier exempted in the ceiling case can be converted into any class of land not liable to be exempted under Explanation II to Section 87 of the Act. The consequence is that the benefit of the exemption would be lost and the extent added to the account of the assessee or the declarant in determination of his ceiling area. That is a matter to be dealt with by the Taluk Land Board with the assessee or the declarant and other interested parties on the party array and we desist from elaborating further.”

In District Collector v. Sajith Lal (2023-4 KLJ 851; 2023 KLT OnLine 1225) it is held as under:

“5. There is no embargo under law in using any exempted land for non- exempted purposes as well. If the land is used for non-exempted purposes, the holder of the land will lose the qualification for exemption, thus giving authority to the Land Board to initiate ceiling proceedings.” (Quoted in: Mathew K.T v. State of Kerala, 19 April, 2024)

No Embargo to Transfer Plantation Land

In R. V. Devassia v. Sub Registrar, Idukki, 2015-1 ILR(Ker) 1047; 2015-1 KHC 805; 2015-2 KLJ 17, it is held as under:

“9. On promulgation of the KLR Act in the State, the entire landed property in the State is subjected to State control as envisaged under the provisions of the KLR Act. No piece of the land escapes the clutches of the KLR Act including exempted land for ceiling purposes. The ceiling proceedings is a continuing proceedings and can be reopened in any of the circumstances, if so warranted, as contemplated under Section 87 of the KLR Act. Exemption granted from ceiling is the qualification to use the land in a particular manner, which means a burden is imposed on the land. The moment the qualification for exemption is vanished by conversion of the land, the protection from ceiling will also be extinguished to bring the land within the fold of the ceiling area. The exemption is in the nature of a burden on the land to use the land for the purpose for which exemption is granted.. The eminent domain power of the State can be exercised for acquiring land without consent and also to regulate the use of land in public interest. The eminent domain is power inherent in any Sovereign State. This burden would bind the holder of the land as on 01/01/1970 and the successor-in-interest. The Division Bench of this Court in the State Human Rights Protection Centre, Thrissur and another v. State of Kerala and others [2009 (3) ILR 695] held that exemption granted under S.81(1)(a) is for the land and would continue to operate irrespective of change of ownership of the exempted land and the transferee would have to use the land for the purpose for which exemption is granted.”

In Everest Stone Crusher and Granites v. District Collector, Kannur, 2020-6 KHC 289, it is observed as under:

“16. In Devassia R.V. this Court noticed that, the provisions of the Kerala Land Reforms Act do not place any embargo on transfer. The transfer of registry is for fiscal purposes. The power of the competent authority to reopen the ceiling proceedings to include the land exempted for the purpose of ceiling is not lost on account of effecting mutation. Therefore, the Revenue Officials cannot refuse to effect mutation of the property purchased by the transferee.”

Effect of Fragmentation for Non-exempted Category

The decision in One Earth One Life v. State of Kerala, 2019-2 KHC(SN) 10; 2019-1 KLT 985, arose from the Writ Petition filed for a declaration that the fragmentation and sale of a Rubber Plantation for non-plantation purposes was illegal as it defeated the purpose of the Kerala Land Reforms Act. When the matter was placed before the Taluk Land Board under Sec 87, KLR Act, it found that there was no change in classification of the land and therefore dropped the proceedings. The Court held as under:

“34. Section 81 of the KLR Act is in pith and substance a special provision, with its main objective of giving exemption to certain lands including the lands maintained as plantations is to prevent fragmentation of the land and to keep it as plantation itself to improve the economy of the state for welfare of people as a whole while the Act creates a regime, the State is under an obligation to safeguard, the intended purpose of the provisions of the Act in its spirit. ….. …… It could be gathered from the records that the proposal to transfer 1.03 acres of land to each workers in discharge of their service or retrenchment benefits will definitely divide the plantation into separate slots and that would definitely change the character/nature of the plantation, which could be termed as ‘conversion’ and that will be against the provisions of the Act.”

Can a Tenant of Plantation Transfer his Rights, Fragmenting the Plantation

Possession is a heritable and transferable right. [See: Nallammal Vs. Ayisha Beevi, 2017-5 Mad LJ 864; Phirayalal Kapur Vs. Jia Rani, AIR 1973 Delhi 186].

PART – IV

Plantation Exemption, Fixity & Purchase Certificate for a Tenant below 30-acres-plantation

Under Chapter III, Sec. 81(1)(e), he can also avail benefits of exemption for plantation (without being affected by the ceiling limit – Sec. 82 & 83).

Note: For getting benefits under Sec. 81 exemption, the tenant should have filed ceiling return (under Sec. 85(2); 85A).
Purchase Certificate being provided within ceiling limit alone under Sec. 72B or 72C, it is legitimate to state that a tenant cannot get Purchase Certificate on the plantation land, under Sec. 72B or 72C. (Note: No rider to Sec. 72B and 72C, by way of proviso or otherwise, exempting plantation.)

Combined Impact of Sec. 3(1)(viii) and Sec. 81 on Plantation-Tenancy-land

Below 30 acres – Chapter II applies:

By virtue of S. 3(1)(viii)Chapter II applies to all tenancies (both above and below 30 acres. It stands contradistinct to ‘leased-lands-upon-which-plantation-was-put-up’ by the tenant above 30 acres.
Such tenants also get benefit of exemption under Sec. 81 and they can continue without being affected by the ceiling limit under Sec. 82 and 83.
For getting benefits of Sec. 81 exemption ceiling return (Sec. 85(2); 85A). should have been filed.

Above 30 acres ‘Plantation-Tenancy’- KLR Act will not Apply:

S. 3(1)(viii) being exclude (from Chapter II) ‘Plantation-Tenancy’ (i.e. ‘leased-lands-upon-which-plantation-was-put-up’ by the landlord) above 30 acres, provisions of Chapter II do not apply to such plantations.

Hence, No ‘fixity’ under Sec. 13, for the tenants of ‘Plantation-Tenancy’ above 30 acres.
Contract applies to termination of tenancy, above 30 acre plantation–tenancy. But, until evicted lawfully, such tenants get benefit of exemption under Sec. 81 and they can continue without being affected by the ceiling limit under Sec. 82 and 83.
Land lord is entitled Sec. 81 exemption over such plantation.
For getting benefits of Sec. 81 exemption, ceiling return [Sec. 85(2); 85A] should have been filed.

If tenant raised plantation on bare land leased: S. 3(1)(viii)does not apply.

S. 3(1)(viii) does not deal with plantations put up on bare land leased by the tenants. (Such property is not excluded from Chapter II, also.)
That is, the protection or benefits given to tenants (fixity) can be availed by such tenants (who put up plantation on land leased).
No purchase Certificate can be obtained, for, fragmentation of plantation will not be allowed (Sec. 87 Expl. II).
Under Sec. 81, such tenants can avail exemption and they can also continue without being affected by the ceiling limit under Sec. 82 and 83.
Such lands also vest in Government under Sec. 72.
For getting benefits of Sec. 81 exemption ceiling return [Sec. 85(2); 85A]. should have been filed.

Assignment of Purchase certificate to Tenants

Sec. 72B provides for cultivating tenant’s rights to get assignment – purchase certificate (through LT) – within ceiling area. [Tenant is “obliged to apply” for it within 2 years from 1-1-1970. Effect of not applying for assignment, See: Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283. This decision also says that tenants having ‘no bona fide claim’ as to cultivating-tenancy has ‘no vested right to continue’.]
Sec. 72 C provides for suo moto action by LT. (No time limit,)
The tenant who opts to avail benefits of plantation-exemption, under Sec. 81, cannot seek fragmentation (Sec. 87, Explanation II) of the plantation land so as to obtain purchase-certificate (under Sec. 72A, 72B or 72C) within ceiling limit. Still, he stands as a cultivating tenant, “entitled to assignment” of the right under Sec. 72B. As shown elsewhere, there is an option for the tenant – either to obtain purchase-certificate or to avail plantation-exemption.

Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).

Such lands vest in Govt. under Sec. 72 also.

PATR IV

VESTING OF LAND IN GOVT. & RIGHT OF GOVT. TO COLLECT RENT

According to the provisions of the KLR Act, lands held by individuals (or associations of persons) vest in Govt. under two provisions. They are-

First, Sec. 72 – Vesting of landlord’s rights in Government.
Second, 86. Vesting of excess lands in Government.
- Note: Sec. 86 does not apply to Plantations, for (i) they being already vest in Govt. under Sec. 72, and (ii) if Govt. land, no question of vesting arises.

Section 72(1) reads:

“72. Vesting of landlord’s rights in Government: (1) On a date to be notified by the Government in this behalf in the Gazette, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under Sub-section (2) of Section 59 have not been issued, shall, subject to the provisions of this section, vest in the government free from all encumbrances created by the landowners and intermediaries and subsisting thereon the said date”

Section 86 reads:

86. Vesting of excess lands in Government. (1) On the determination of the extent and other particulars of the lands, the ownership or possession or both of which is or are to be surrendered under Section 85, the ownership or possession or both, as the case may be of the land shall, subject to the provisions of this Act, vest in the Government free from all encumbrances and the Taluk Land Board shall issue an order accordingly.
(2) On receipt of [the order of the Taluk Land Board under Sub-section (1)] such person shall make the surrender demanded, in such manner as may he prescribed.
(3) Where any person fails to make the surrender demanded, the [Taluk Land Board] may authorise any officer to take possession or assume ownership of the land in such manner as may be prescribed.
[(4) Where the ownership of any land vests in the Government under Sub-section (1), the rights of the intermediary, if any, in respect of the land shall stand extinguished, and where possession of any land which was in the possession of a cultivating tenant vests in the Government under that Sub-section, the ownership of such land shall vest in the Government and the rights of the intermediary, if any, in respect of such land shall stand extinguished.]
It is a total bar.
- Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306 (Thomas Mariamma Vs. TLB),
- The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137) – quoted in 2008(1) KLJ 571 (State Vs. Puliyangattu). Followed in State vs Civil Judge, Nainital, AIR 1987 SC 16; Bhikoba S. Vs. ML Punchand Tathed, AIR 1982 (SC) 865.

PART V

Who is the OWNER of Exempted (Private-Leasehold) Plantation Lands in Kerala?

It is Government, though by virtue of Chapter II (Sec. 13) the tenant has ‘Fixity’.

1. Plantation (lease) Lands VEST in GOVT, automatically

Because,
Sec. 72 provides for
- mandatory and involuntary vesting in Government–
- of leasehold lands that is held by cultivating tenants entitled to fixity of tenure under Sec. 13 (even if the extent exceeds ceiling limit).

2. ‘Vesting’ in Govt. is ‘Vesting of Ownership‘

It is for the reasons –
- Sec. 72(1) [Declared to be ‘vested’ in Government],
- Sec. 72E [the cultivating tenant shall pay rent to the Government from 01.01.1970],
- Sec.72F(h) [Land Tribunal to fix the rent stated in Sec. 72E] and
- Sec. 112(5A) [when a land is acquired, compensation for any building or other improvements belonging to the land owner shall be awarded to the Government; and when compensation is given to the tenant, no ‘value of the land’ be given].

3. Article 31A(1), Proviso of the Constitution of India

Article 31A(1), Proviso lays down that the State need not pay compensation to the land-owners (when land is acquired) above the ceiling limit. And, the aforestated provisions of the KLR Act are legislated following this constitutional provision.
Article 31A(1), Proviso of the Constitution reads as under:
“Provided further that where any law makes any provision for the acquisition by the State of any estate and where any land comprised therein is held by a person under his personal cultivation, it shall not be lawful for the State to acquire any portion of such land as is within the ceiling limit applicable to him under any law for the time being in force or any building or structure standing thereon or appurtenant thereto, unless the law relating to the acquisition of such land, building or structure, provides for payment of compensation at a rate which shall not be less than the market value thereof.”

Read Blog: Glen Leven Estate v. State of Kerala: Not Correctly Decided?

4. ‘Exemption’ in Chapter III Cannot be read into Sec. 72B(2)

Sec. 72B(2) specifies that the provisions of Section 82 (as to ceiling limit) shall apply for a limited purpose. It reads-
- (2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1)
The exemption provision in Sec. 81 (Chapter III) cannot be brought-forth or read-into Sec. 72B (provision for assignment/purchase-certificate) in Chapter II.
Further:
- Chapter II of the KLR Act (dealing with ‘Tenancy’) is exclusive and exhaustive as to ‘fixity’ and ‘vesting’ of land in Government.
- Proviso to Sec. 72B(1) shows – Sec. 72B(1) is an an independent provision. (It says as to assignment to a cultivating tenant within the ceiling limits.)
- It is not stated anywhere in the Act – the right and title of the (leased-plantation) land vested in Government under Sec. 72, will be divested in any manner (to the previous owner, or to the tenant or to anybody else), in any circumstance.
- Sec. 72E provides for collection of ‘rent‘ from the holders of the plantation. It is for the reason that (ownership of) the land vests in Govt.
- Proceedings initiated by Taluk Land Board under Chapter III (in respect of plantation) do not confer title.

5. Government Need Not Pay ‘Land-Value‘, as such, if Acquired

For the above (plantation land vest in Govt.), the Government Need Not Pay ‘Land-Value‘, as such, to the tenant, or the former owner, if such Lands are Acquired. (See Notes below under head: Sec. 112 of the KLR Act)

6. Tenant/Owner cannot ‘Sell’ Plantation Land (above ceiling limit) as his absolute property

An owner, or a tenant who got ‘fixity’ over such land, cannot ‘sell’ this land as his absolute (ownership) property.

Vesting in Government u/s. 72 is independent of issuance of Purchase Certificate

The rights of the landlord would vest in the Government, under Sec. 72 KLR Act. A tenant is free to apply for and obtain Purchase Certificate within the Ceiling Limit under Sect. 59(2) and 72B or 72C. from such property. Vesting of lease property in Government under Sec. 72 is independent of issuance of Purchase Certificate. In Perumal Smaraka Nidhi v. Harrisons Malayalam Limited (9 July, 2010, K.M.Joseph, J.) held-

The rights of the landlord would vest in the Government, under Sec. 72 KLR Act.
Sec. 72 would appear to contemplate vesting when there is no certificate of purchase issued under Sec. 59 (2).
If no certificate of purchase has been issued under sub Sec. (2) of Sect. 59 (irrespective of whether the tenants have applied), under Section 72, there will be vesting, if other conditions are satisfied.
(Appeal Judgment: Perumal Smaraka Nidhi vs M/S Harrisons Malayalam Ltd., 31. 01. 2013.)

Rights of ‘tenants’ of Plantations, after vesting the land with Govt.?

Is the Vesting in Govt. “Fictional” (and it is only for transferring land to the Tenant)?

Yes; as regards lands within the ceiling limit.
No; as regards lands above ceiling limit.

It is a ‘Legal Right conferred by Statute’

It is not Tenancy – For no landlord-tenant relation with the Govt.
Not Grant or Licence/Permission – For Grant as well as Licence/Permission arise from a contract (express or implied).
Therefore, it can termed only as a “Legal Right conferred by Statute“, the KLR Act.

What are the Stipulations attached to that “Legal Right”?
- Subject to the condition – not to “convert” it for any other use, other than the specific plantation (Sec. 87).
When Such a land is Required for Govt., Should it be Acquired?
- The ownership being vested in Govt. it need not be ‘strictly’ “acquired”.
- But no provision In Sec. 72 for ‘resuming’, if and when Govt. needs it.
Sec. 112 of the KLR Act
- But, Sec. 112 of the KLR Act says as to ‘Apportionment of land value in cases of acquisition’.
- Because of the “Legal Right conferred by Statute“ upon the former tenants of the plantation, they are entitled for certain compensation, when that land is required for the Govt..
- In cases falling under Chapter II (pertaining to, tenants entitled for fixity, issuance of purchase certificate etc.) Section 72 deals with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants; and says -the land will be free from encumbrances created by the land-owners and intermediaries.
- However, insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment (within ceiling limit) subject to the payment of purchase price – as stated in Section 72D. (See: Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439.)
- No ‘authority’ is also named in any law to fix the compensation to be given to the former tenants, when the Govt. requires it.
Therefore, it is said – Apportionment of land value in cases of ‘acquisition’.
- Note: It makes no difference (SUBSTANTIALLY, IN DETERMINING COMPENSATION) whether such a plantation land is “acquired” or not. Because, even if the land is not ‘acquired’, Govt. has to pay compensation for improvements to the former tenants (who holds the land by virtue of the “Legal Right conferred by Statute“, the KLR Act).

Apportionment’s of land value in cases of Acquisition

Sec. 112 of the KLR Act reads-

“112. Apportionment’s of land value in cases of acquisition – (1) Where any land is acquired under the law for the time being in force providing for the compulsory acquisition of land for public purposes, the compensation awarded under such law in respect of the land acquired shall be apportioned among the landowner, intermediaries, cultivating tenant and the kudikidappukaran in the manner specified in this Section.
(2) The compensation for any building or other improvements shall be awarded to the person entitled to such building or other improvements.
(3) The kudikidappukaran shall be entitled to the value of the land occupied by his homestead or hut subject to a minimum of-
- three cents in a city or major municipality; or
- five cents in any other municipally; or
- ten cents in a panchayat area or township.
(4) The difference between the value of three cents or five cents or ten cents, as the case may be, and the value of the extent of the land occupied by the homestead or hut shall, notwithstanding anything contained in the Kerala Land Acquisition Act, 1961, be borne by the Government or the local authority or the company or other person on whose behalf the land is acquired.
(5) The balance remaining after deducting the compensation referred to in Sub-section (2) and the value of the land occupied by the homestead or hut shall he apportioned among the landowner, the intermediaries and the cultivating tenant in proportion to the profits derivable by them from the land acquired immediately before such acquisition.
- Explanation. – “Profits derivable from the land” shall be deemed to be equal to (i) in the case of a landowner, the rent which he was entitled to get from the tenant holding immediately under him; (ii) in the case of an intermediary, the difference between the rent which he was entitled to get from his tenant and the rent for which he was liable to his landlord; and (iii) in the case of a cultivating tenant, the difference between the net income and the rent payable by him; and the rent payable by the cultivating tenant and the intermediary for the purposes of this Explanation shall be as calculated under the provisions of this Act.
(5A) Notwithstanding anything contained in Sub-sections (2) and (5), where there the right, title and interest of the landowner and the intermediaries in respect of the land acquired have vested in the Government under Section 72, –
- the compensation for any building or other improvements belonging to such landowner and intermediaries shall be awarded to the Government; and
- the balance remaining after deducting the compensation referred to in clause (a) and the value of the land occupied by the homestead or hut, if any, shall be apportioned between the cultivating tenant and the Government in proportion to the profits derivable by them from the land.
Explanation. – “Profits derivable from the land” shall be deemed to be equal to-
- in the case of the cultivating tenant, the difference between the net income immediately before the acquisition and the rent which he was liable to pay immediately before the date on which the right, title and interest of the landowner and the intermediaries have vested in the Government; and
- in the case of the Government, such rent.
(7) In this Section, “homestead” includes a dwelling house occupied by a person who is deemed to be a kudikidappukaran under Explanation IIA to clause (25) of Section 2.”

Apportionment depends upon rights on the date of acquisition

Valia Raja v. Veeraraghava Iyer, 1961 Ker LT 103, it was held that the question of apportionment of compensation has to depend upon the rights of the parties on the date of the acquisition. Referrd to in: Varkey Thomas Vs. Annamma Abraham, 1969 Ker LT 903.

Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439

In Glen Leven Estate (P) Ltd. v. State of Kerala, 2022-6 Ker LT 439, the question as to ‘rival claims raised by the cultivating tenant and landlord for compensation on acquisition’ arose. The land was leased out by landlords. The lease-rights came in the cultivating tenants by transfer. The Government contended that the tenant was a cultivating tenant and the land vested upon the Govt. under Sec. 72 KLR Act. Hence tenant alone would be entitled to get compensation for the improvements to be determined under the Kerala Compensation for Tenants Improvements Act, 1958, in view of Section 20(1) of the KLR Act.
The landlords argued that the land was a plantation (over 30 acres) when it was (originally) leased, and therefore, they are entitled to claim exemption and benefits in the light of the exemption under clause (viii) of Section 3 (1) of the KLR Act. Since there would be no fixity of tenure, it being a plantation, there would not be vesting of rights of the land owner in the Government. Hence, there should be the apportionment of the compensation between the lessor and the lessee and it should be decided in the acquisition proceedings.
The single Judge dismissed the writ petition, ‘leaving open the liberty of the lessee as well as the landlords, to approach the civil court seeking relief against the Government, and also to resolve the inter se dispute by and between the tenant and the landlords’.
The Division Bench, in appeal held that ‘land acquisition’ proceedings are to be initiated. It is pointed out that (even if it is a land vested in Govt.) there is no provision in Sec. 72 for ‘resuming’ if and when Govt. need it. The court also observed as under –
- “31. On an analysis of the provisions of Section 72(1) of the Act, 1963, it is clear that when the Government notified the said provision with effect from 01.01.1970, all right, title and interest of the landowners and intermediaries in respect of holdings held by cultivating tenants (including holders of kudiyirippus and holders karaimas) entitled to fixity of tenure under Section 13, and in respect of which certificates of purchase under sub-Section (2) of Section 59 have not been issued, vested in the Government.
- 32. Therefore, it is clear from Section 72 that what is vested with the Government is the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants. It is nothing but a legal fiction by which the interest held by a cultivating tenant in a property of a landlord or intermediary is protected from 01.01.1970 .
- 34. On a conjoint reading of Sections 72 and 72A, it can be seen that vesting of rights in the Government contained under Section 72 is the rights held by the landlord and the intermediary in respect of holdings held by the cultivating tenants. However, the same will not, in any manner, interfere with the rights enjoyed by a cultivating tenant in contemplation of the provisions of the Act, 1963.”
- 42. Therefore, we have no doubt in our mind to hold that Section 72 of Act, 1963 would only deal with the right, title and interest of the land owners and intermediaries in respect of the holdings held by the cultivating tenants free from encumbrances created by the land owners and intermediaries. However, the legal provisions discussed above would make it clear that insofar as the cultivating tenant is concerned, an absolute right is vested with him to seek assignment subject to the payment of purchase price in contemplation of Section 72D of the Act, 1963.
While considering the right of landlord, it is pointed out (basing on the principle, or scheme of the KLR Act*^*) that the landlord may have right for compensation under Section 72BB. The Division Bench said-
- “36. So also, sub-Section (1) of Section 72BB dealing with ‘the right of landlord to apply for assignment and compensation’ specifies that any landowner or intermediary, whose right, title and interest in respect of any holding have vested in the Government, may apply to the Land Tribunal for the assignment of such right, title and interest to the cultivating tenant and for the payment of the compensation due to him under Section 72A.”
*^{*Note: 1. If plantation-lease-(leasing a land when plantation existed)-above-30-acre-}
- ^{Sec. 72, 72 BB etc. will not apply (such land being excluded from Chapter II, under Sec. 3(1)(viii), KLR Act).}
^{2. In case of a plantation-lease-above-30-Acre-}
- ^{on termination of the lease period, the land lord can resume the land, on the basis of his title; for, the tenant will not have fixity in such case, the land being exempted from the benefits of Chapter II (as per Sec. 3(1)(viii) of the KLR Act).}
^{3. The landlords of such plantation will get the benefits (under Sec. 81) and protection from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).}
^{4. In such a case, the right of landlord may be on a higher level or footing than the tenant (to get compensation).}
^{5. It cannot be compared with a plantation that is put up by the tenant. The tenants of such plantation will-}
- ^{get fixity under Sec. 13 (though they will not get Purchase Certificate),}
- ^{get the benefits and protection (under Sec. 81) from ceiling limit that is stipulated under the provisions of Sec. 82, 83 etc. (that is, there will be no ceiling limit).}
- ^{In such a case, the right for compensation, if any, of the landlord will be nil or negligible.}
  - The Division Bench, inter alia, on the above observations directed ‘the State and its officials to take proceedings for the acquisition of the land’.

Read Blog: Glen Leven Estate v. State of Kerala: Not Correctly Decided?

The Govt. is Entitled Reasonable ‘Rent’ and Land Tax

The land being vest in Govt., it can collect reasonable ‘rent’. Sec. 72E reads as under:

72E. Rent of holdings vested in Government but not assigned to cultivating tenants. – Where in respect of any holding or part thereof, the right, title and interest of the landowner and intermediaries have vested in the Government under Section 72 and the cultivating tenant is not entitled to the assignment of such right, title and interest by virtue of Sub-section (1) of Section 72, the cultivating tenant shall be liable to pay to the Government the rent payable under this Act from the date of vesting under Section 72.

With respect to payment of tax it is stated as under in Sec. 72S:

72S. Liability for assessment alter the date of vesting under Section 72. (1)] Notwithstanding anything contained in the Kerala Land Tax Act, 1961, or in any other law for the time being in force, or in any contract, where the right, title and interest of the landowner and the intermediaries, if any, in respect of a holding have vested in the Government under Section 72, the cultivating tenant of that holding shall be liable to pay the basic tax payable in respect of that holding under the said Act and other taxes and cesses due in respect of that holding.
(2) In the case of a holding or part of a holding in respect of which an application for resumption under the provisions of this Act is rejected, the cultivating tenant shall be liable to pay the basic tax and other taxes and cesses in respect of such holding or part of the holding, as the case may be, with effect on and from the date notified under Sub-section (1) of Section 72.

Can Purchase-Certificate be given to Plantation-Land, over & above Ceiling-Limit?

No.
Because, under Sec. 72B(2) a cultivating tenant is entitled to get assigned the area within the ceiling limit under Sec. 82 alone.

Sec. 72B reads as under:

“72B. Cultivating tenants right to assignment. – (1) The cultivating tenant of any holding or part of a holding, the right, title and interest in respect of which have vested in the Government under Section 72, shall be entitled to assignment of such right, title and interest:
Provided that
(a) no cultivating tenant shall be entitled to assignment of the right, title and interest in respect of any holding or part of a holding under this Section if he, or if he is a member of a family, such family, owns an extent of land not less than-the ceiling area.
(b) where the cultivating tenant or, if he is a member of a family, such family, does not own any land or owns an extent of land which is less than the ceiling area, he shall be entitled to the assignment of the right, title and interest in respect of only such extent of land as will, together with the land, if any, owned by him or his family, as the case may be, be equal to the ceiling area.
Explanation. – In calculating the extent of land owned by the cultivating tenant or, where he is a member of a family, by such family, for the purposes of clauses (a) and (b) of the foregoing proviso, the portion of the land owned by such cultivating tenant or by the family, which is liable to be assigned to the cultivating tenants holding under him or such family, shall not be taken into account.
(2) The provisions of Section 82 shall, so far as may be, apply to the calculation of the ceiling area for the purposes of the proviso to Sub-section (1);
Provided that if no date has been notified under Section 83, the date notified under Section 72 shall be deemed to be the date notified under Section 83.
(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Sub-section (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the dote of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.
(4) An application under Sub-section (3) shall contain the following particulars, namely:
(a) the village, survey number and extent of the holding or part to which the assignment relates.
(b) the name and address of the landowner and intermediaries and also of every other person interested in the land and the nature of their interest so far as they arc known to him;
(c) the particulars regarding the other lands owned or held by him or if he is a member of a family; by such family; and
(d) such other particulars as may be prescribed.
(5) Where a cultivating tenant is entitled to the assignment of the right, title and interest in respect of only a portion of the holding held by him, he may indicate in the application under Sub-section (3) his choice of the portion to which the assignment shall relate.”

Balanoor Plantations & Industries Ltd. v. State of Kerala – Based on the Principle: LT to fix Tenancy’; TLB to Fix Plantation Exemption.

In Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it is pronounced that the tenants must have approached the Land Trtibunal for getting plantation exemption. It is basing on the Principle – Land Tribunal to fix tenancy’; TLB to fix excess land & resultantly to fix plantation exemption.

Cultivating Tenant ‘Entitled to Assignment’, were Obliged to Apply LT

Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it was observed that a cultivating tenant, “entitled to assignment” of the right under Sec. 72B, if failed to apply the same, will not have ‘vested right to continue’, as a cultivating tenant and he will not be entitled to the benefit of fixity under Sec. 13 of the KLR Act.

Sec. 72B provides for cultivating tenant’s rights to get assignment by purchase certificate (through LT) – within ceiling area.

It is definite: the principle applied in the Balanoor case (that it is legally obligated on every cultivating tenant to apply to the Land Tribunal) is the following –

It is for adjudicating the ‘tenancy right’.
The reason is that the Land Tribunal is the only authority that can decide on the “tenancy right.”
A Tenant is “obliged to apply” for it within 2 years from 1-1-1970.
Under Sec. 72A, the Landlord is entitled to Compensation and under Sec. 72D, a tenant is bound to pay the Purchase Price. The Scheme of the KLR Act requires that there should be proceedings before the Land Tribunal under Sec. 72B or 72C.
Suo Motu proceedings may not be initiated by the Government for the benefit of a Plantation Tenant (who was entitled to purchase a certificate within the ceiling limit, within the time allowed). It cannot be sought by a tenant, ‘as of right’.
Note: Plantation-lands usually involve Hundreds or Thousands of Acres of “excess” land. The assignment-possible-land (within ceiling limit) may be minuscule (7.5 acres or 15 acres). Therefore, the analogy that a tenant has a right to seek assignment is not apt at all.
Note: A tenant cannot declare himself to be a cultivating-tenant and avail benefits – the competent statutory authority (for the same) under the KLR Act is the Land Tribunal.

Therefore, the cultivating tenants entitled to assignment of the right, title and interest were “obliged to apply” to the Land Tribunal within the time fixed for asserting the claim as cultivating tenants. This decision also says that tenants having ‘no bona fide claim’ as to cultivating-tenancy will not have the benefit of fixity under Sec. 13 of the KLR Act, and they will have ‘no vested right to continue’.

Sec. 73B(3) reads as under:

“(3) Any cultivating tenant entitled to assignment of the right, title and interest in respect of a holding or part of a holding under Subsection (1) may apply to the Land Tribunal within whose jurisdiction such holding or part is situate within two years from the date of vesting of such right, title and interest in the Government under Section 72, or such further time as may be allowed by the Government in this behalf, for such assignment to him.”

Effect of not applying for assignment

In Balanoor Plantations & Industries Ltd. v. State of Kerala, 2018(3) KLT 283, it is stated that the tenants having ‘bona fide claim’ as to cultivating tenancy would have approached the LT. Those tenants who had not approached the LT would have ‘no vested right to continue’ as tenants (claiming plantation-tenancy-benefit).

A tenant cannot declare himself to be a cultivating-tenant and avail benefits – the competent statutory authority (for the same) under the KLR Act is the Land Tribunal.

Also Read: Plantation-Tenants Not Approached The Land Tribunal are Ineligible for Plantation-Exemption-Orders from the Land Board

End Notes

Relevant provisions of KLR Act, in a Nutshell

Section	Provisions in a Nutshell
Chap. II 3(1)	Exemptions – (i) Nothing in this Chapter shall apply to – (viii) Tenancies of plantations exceeding 30 acres. “Provided that the provisions of this chapter, other than sections 53 to 72S, shall apply to tenancies in respect of agricultural lands which are treated as plantations under sub clause (c) of clause (44) of Section 2”.
7 E	Persons acquired lands (before 2005 amendment in KLR Act) for consideration below 1 Ha. 61 Are 87 Sq.m. (4 acre) will be deemed to be tenants .
13	Fixity: “Every tenant, shall have fixity of tenure in respect of his holding.”
22	*Landlord* desiring to *resume* any land shall apply to the Land Tribunal.
31	Fair rent determined by Land Tribunal.
51B.	Landlord not to enter on land surrendered or abandoned by the tenant. Contravention is made punishable.
54(1) 55 57 57 (3) 57 (6) 61	54(1). A cultivating tenant (to purchase the right) has to apply Land Tribunal. 55. Purchase price is fixed by LT (on fair rent u/s. 31) to be paid u/s. 59 57. The LT after enquiries, pass orders determining purchase price. (3). The Land Tribunal allows the purchase of the land it determines. (6). The *Land Tribunal* *forwards* *orders to the Land Board. 61. Tenant to pay rent* (under orders of LT) pending proceedings.
59	When Sec. 54 application is allowed _{(by the LT)}, the purchase price _{(determined u/s. 57 by the LT)} shall be deposited with the Land Tribunal to the *credit of the Land Board* and issue of *certificate* – to cultivating tenant.
72 72(1) 72(4)	Sec. 72 provides for automatic vesting of lease-properties held by cultivating tenants in Govt. ILR 2010(2) Ker. 845. 72(1) says: Holdings upon which tenanat entilted fixity under sec. 13 vest in govt. 72(4) – says: Landowner entitled to resume land shall apply within the time fixed. Otherwise vest in govt. Rule 5 of the Vesting & Assignment Rules provides – LT may suo moto – notwithstanding no application – assign to cultivating tenant. (See S.72C also).
72B	Cultivating-tenant “shall be entitled to assignment” of land vested in Govt. under Sec. 72 –within ceiling area and get purchase certificate (through LT) (2 years from 1-1-1970). Effect of non-filing (See Balanoor Plantations case. 2018(3) KLT 283.)
72D.	The cultivating tenant has to pay the purchase price to the Government on the assignment to him of the right, title and interest of the landowner. (If the extent of land is one hectare or below, he shall not be liable to pay.)
72E	Such tenant is liable to pay rent to the Government.
72C	Provides for suo moto action by LT. (No time limit,)
72K	LT shall issue purchase certificate. It shall be conclusive proof of assignment.
74	Prohibition of future tenancies.
Chap. III 81	Exemption from ceiling and excess for Govt. lands, private forests, plantations, industrial or commercial undertakings, etc. _Proviso_{– There will be an exemption (as plantation, land given to educational institution, trust, etc.) on Government lands, given under grant, lease, etc.}_{See: HMT (Machine Tools) Limited v. Taluk Land Board, 2009 (3) KLJ 110; MT Joseph v. State of Kerala, AIR 1974 Ker 28.}
82	Ceiling area – 5/10 standard acres.
83	No person can hold or possess excess of ceiling area. (Holding is by tenant.) It is a total bar. (Note: plantations, industrial area etc. are exempted.) Apply to tenant also. 1980 KLT 259 (Gopalan Nair Vs. State), 1976 KLT 306 (Thomas Mariamma Vs. TLB), Raghunath Laxman Wani v. The State of Maharashtra (AIR 1971 SC 2137) The policy of the Act – no person –“be permitted to hold any land in excess of the ceiling area.” Raghunath Laxman Wani v. State of Maharashtra, 1971-3 SCC 391, Bhikoba Shankar Dhumal v. Mohan Lal Punchand Tatbed, 1982-1 SCC 680, State of U.P v. Civil Judge, Nainital, AIR 1987 SC 16, State Vs. Puliyangattu, 2008(1) KLJ 571.
84	Certain transfers – void.
85(1)	Surrender excess.
85(2)	Owners and Tenants _{(having land in excess of the ceiling area)} should furnish ceiling return to Land Board before March31, 1971, before the Land Board _{(including lands exempted under S. 81)}. Note: Effect of non-filing: See – Balanoor Plantations case – 2018(3) KLT 283.State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. According to S. 3(1) (viii), “tenancies of plantations exceeding 30 acres” is exempted from Chapter II. Therefore, the landlord can recover such plantation lands after the period of tenancy. Such landlords also had to file a ceiling return within the time stipulated.
85(3)	Excess shall be surrendered. *Note*: Tenant must have approached the LT _{(with respect to each plantation, if he has more plantations)} (He cannot declare himself a tenant) It is clear from the following provisions: 54(1) – A cultivating tenant has to apply to LT_{(or the purchase of right, title and interest}_.) 55 – Purchase price and fair rent fixed by LT 57 – LT after giving notice and enquiries, pass orders _{(on the} _{application for the purchase of right, title and interest)}. 57(3) – LT allots the purchase land it determines. 57(6) – The *Land Tribunal* *forwards* a copy of *orders to the Land Board. 61 – Cultivating tenant to pay rent (under orders of LT) 59 – The purchase price shall be deposited with the LT _{(to the credit of the Land Board)}* and issue of certificate – to cultivating tenant. It is the principle applied in the Balanoor case. *Note:* (i) The sub-section (3) itself says as to the settlement of claims for resumption and purchase of the right, title, and interest of the landowner by the cultivating tenant, (ii) LT is the only authority to determine tenancy (Land Board cannot determine it), and (iii) it is clear that even if it is a plantation-exemption-land (beyond ceiling limit), the tenant has to file petition under Section 54 – for fixing Purchase price and fair rent fixed by LT and for allotting the land under section 57(3) and for effecting the payments of ‘rent’ and ‘purchase price’_{(to the credit of the Land Board)} under sec. 61 and 59.
85(3A)	The person bound to file a statement under sub-section (2) _{(that is, Owners and Tenants – having land in excess of the ceiling area)} shall, within a period of three months from the date of final settlement or purchase, file a statement before the Land Board, and the provisions of the said Sub-section shall, as far as may he, apply in regard to the particulars to be contained in such statement, the calculation of the excess land and for the procedure for the surrender of the same.
85(5)	On receipt of the statement under Sub-section (2) or Sub-section (3A), the Land Board shall transfer the statement to such Taluk Land Board and such Taluk LandBoard shall determine the extent and identity of the land to be surrendered.
85(7)	Whereon a person fails to file statement under 85(2) or (3A), LB shall intimate that fact to TLB – TLB shall determine land to be surrendered. It is obvious – The LB can intimate TLB as to non-filing, on the basis of the records it obtained under Sec. 57(6) and 59. That is, those tenants who are not entitled to get a purchase certificate also has to file an application under Sec. 54(1) and 85(2) or (3A). Effect of non-filing: See – Balanur Plantations case (With respect to Sec. 72B application) – 2018(3) KLT 283. Statute prescribes liability on the person who owes or hold the land in excess of the ceiling limit to file statement: State of Kerala Vs. Varkey Mathew, AIR 1996 SC 1009. [TLB not to do, suo motu, without direction from LB. 1980 KLT 120, referred to in 2019(1) KLT 985.]
85A	File ceiling return within March 2, 1973 before Land Board..
86(1)	On determination of the extent to be surrendered under S. 85- Excess vests in Govt. and Taluk Land Board shall issue an order accordingly.
86(3)	Where any person fails to surrender as demanded, the TLB may order an officer to take possession
86(4)	Where any land, vests in the Govt, under s. 86(1) (including that of cultivating tenant) the ownership of such land shall vest in the Govt.
86(6)	Nothing applies to property of Govt. under KLC Act.
87 Exp. II	If a person converts any portion of exempted land for any other class, that converted extent will be added to his account in determining his ceiling limit. That is, the exemption will be lost for the portion that exceeds the ceiling limit. (Mathew K Jacob v. District Environmental Impact Assessment Authority, 2018-4 KLT 913)

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Should the Plaintiff, Schedule Servient Heritage in a Suit Claiming Easement?

Saji Koduvath, Advocate, Kottayam.

Should the plaintiff necessarily schedule servient heritage in a suit claiming prescriptive easement?

In P. V. Abdul Majeed Hajiv. Shorabi, 2020-4 KHC 53; 2020-4 KLT 629, the Kerala High Court answered the question with reference to Order VII Rule 3 CPC. It is held as under:

“4. … For claiming prescriptive right of easement, the servient heritage over which the claim is raised should be specifically and separately scheduled in the plaint so as to grant a decree in accordance with the mandate under Order VII Rule 3 CPC.”

It is difficult to single out ‘easement by prescription’ from other claims of easements (necessity, grant, etc.) in this regard.

In Kizhakke Neliyarambath Rafeek v. Thavararakkattil Choyikutty Master, 2021-5 KHC 592; 2021-5 KLT 574, it is held as under:

“12. On a reading of the common judgment of the first appellate court dated 18.6.2019, this Court is of the view that the court correctly analysed the points for consideration in the impugned judgment. The first appellate court mainly arrived at the following conclusions:-
…. The pathway claimed by the plaintiff therein alone is scheduled as schedule ‘B’. In a suit for easement right, the servient heritage and dominant heritage must be shown in the plaint as separate schedules.”

End Note:

Order VII Rule 3 CPC reads as under:

3. Where the subject-matter of the suit is immovable property. Where the subject-matter of the suit is immovable property, the plaint shall contain a description of the property sufficient to identify it, and, in case such property can be identified by boundaries or numbers in a record of settlement or survey, the plaint shall specify such boundaries or numbers.

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Neelam Gupta v. Rajendra Kumar Gupta (October 14, 2024) – Supreme Court Denied the Tenant’s Claim of Adverse Possession

Saji Koduvath, Advocate, Kottayam.

The Supreme Court, in Neelam Gupta v. Rajendra Kumar Gupta (October 14, 2024: C.T. Ravikumar and Sanjay Kumar, JJ.), upheld the decision of the High Court of Chhattisgarh at Bilaspur which held to the following effect –

Permissive possession of a defendant-tenant could not be converted as adverse possession except by proving his possession ‘adverse’ to the title of the plaintiff for a continuous period of 12 years or more; and
the starting point of limitation in terms of Article 65 of the Limitation Act would commence from the date of defendant’s possession becoming ‘adverse‘ and not from the date when the right of ownership was acquired by the plaintiff.

The findings of the Apex Court (as regards the Adverse Possession) can be summarised as under:

“Animus possidendi” (under hostile colour of title) is one of the ingredients of adverse possession.
To attract adverse possession (in a case of permissive possession of a defendant-tenant) it must be established –
- the time from which it was converted ‘adverse to the title of the plaintiff’, and
- it should be open and continuous for the prescriptive period.

The Findings as regards the adverse Possession

The Supreme Court referred to the following previous decisions to highlight the legal point it addressed –

Saroop Singh v. Banto, (2005) 8 SCC 330,
M. Durai v. Muthu, (2007) 3 SCC 114,
Mohd. Mohd. Ali v. Jagadish Kalita, (2004) 1 SCC 271,
Brij Narayan Shukla v. Sudesh Kumar, (2024) 2 SCC 590,
Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729,
M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1 (Ram Janmabhumi Temple case).

The Apex Court mainly based its decision on Saroop Singh v. Banto, (2005) 8 SCC 330, to highlight the change in the legal position brought under Articles 64 and 65 of the Limitation Act, 1963. The Court quoted the following from Saroop Singh v. Banto:

“28. The statutory provisions of the Limitation Act have undergone a change when compared to the terms of Articles 142 and 144 of the Schedule appended to the Limitation Act, 1908, in terms whereof it was imperative upon the plaintiff not only to prove his title but also to prove his possession within twelve years, preceding the date of institution of the suit. However, a change in legal position has been effected in view of Articles 64 and 65 of the Limitation Act, 1963. In the instant case, the plaintiff-respondents have proved their title and, thus, it was for the first defendant to prove acquisition of title by adverse possession. As noticed hereinbefore, the first defendant-appellant did not raise any plea of adverse possession. In that view of the matter the suit was not barred.

Change in law – once plaintiff proves title, Defendant to establish adverse possession

The Apex Court pointed out that the law laid down in Saroop Singh’s case is reiterated in M. Durai v. Muthu, (2007) 3 SCC 114, and cited the following from M. Durai v. Muthu –

“7. The change in the position in law as regards the burden of proof as was obtaining in the Limitation Act, 1908 vis-à-vis the Limitation Act, 1963 is evident. Whereas in terms of Articles 142 and 144 of the old Limitation Act, the plaintiff was bound to prove his title as also possession within twelve years preceding the date of institution of the suit under the Limitation Act, 1963, once the plaintiff proves his title, the burden shifts to the defendant to establish that he has perfected his title by adverse possession.”

It is further pointed out by the Supreme Court that Saroop Singh’s case was reiterated in Prasanna v. Mudegowda, 2023 SCC OnLine SC 511, and Vasantha v. Rajalakshmi, 2024 SCC OnLine SC 132, also. Referring Mohd. Mohd. Ali v. Jagadish Kalita, (2004) 1 SCC 271, it is pointed out in this decision – the claimant in permissive possession (tenant) categorically stated that his possession was not adverse to the true owner, and therefore the logical corollary is that he did not have the requisite animus. It is further held – Once the plaintiff proves his title over suit property it is for the defendant resisting the same claiming adverse possession (to prove) that he perfected title through adverse possession.

The Apex Court further emphasised, referring Saroop Singh v. Banto, (2005) 8 SCC 330, that the starting point of limitation, in terms of Article 65 of the Limitation Act, 1963, commences from the date the defendant’s possession becomes adverse. Relying Brij Narayan Shukla v. Sudesh Kumar, (2024) 2 SCC 590, the Court considered the question whether tenants of original owner could claim adverse possession against transferee of land lord. It was held that tenants or lessees could not claim adverse possession against their landlord/lessor, as the nature of their possession is permissive in nature.

The Apex Court then quoted the following from Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 which illustrated the three classic requirements of adverse possession, namely, nec vi, nec clam and nec precario. It reads as under:

“60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Adverse possession cannot be decreed on a title which is not pleaded. Animus possidendi under hostile colour of title is required.”

The Court finally referred M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1 (“Ram Janmabhumi Temple case”) quoting the following –

“1142. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed. Evidently, therefore, the plaintiffs in Suit 4 ought to be cognizant of the fact that any claim of adverse possession against the Hindus or the temple would amount to an acceptance of a title in the latter. Dr Dhavan has submitted that this plea is a subsidiary or alternate plea upon which it is not necessary for the plaintiffs to stand in the event that their main plea on title is held to be established on evidence. It becomes then necessary to assess as to whether the claim of adverse possession has been established.
1143. A person who sets up a plea of adverse possession must establish both possession which is peaceful, open and continuous possession which meets the requirement of being nec vi nec claim and nec precario. To substantiate a plea of adverse possession, the character of the possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. These requirements have to be duly established first by adequate pleadings and second by leading sufficient evidence. Evidence, it is well settled, can only be adduced with reference to matters which are pleaded in a civil suit and in the absence of an adequate pleading, evidence by itself cannot supply the deficiency of a pleaded 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

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

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Negotiable Instruments 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

Book No. 4: Common Law of TRUSTS in India

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Dedication and Vesting
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Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
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General

Marking of Photocopy and Law on Marking Documents on Admission (Without Formal Proof)

Abridged From: Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is No Formal Proof or (ii) it is a Photocopy?

Saji Koduvath, Advocate, Kottayam.

Introspection

Can the Court Refuse to Mark a (Relevant and Admissible) Document, for (i) there is Irregularity in Mode of (Formal) Proof or (ii) it is a Photocopy?

Answer: No, the Court Cannot.

It is for the following two main reasons –

First, Right of undertaking: Sec. 136, Indian Evidence Act, 1872 permits a party to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”.
Second, Right to Admit: Marking a document unopposed (by the opposite party), or the opposite party acquiesces irregularity of mode adopted for proving the document, amounts to waiver (of rights with the opposite side). It is based on the principles in Sec. 58, Evidence Act which directs that ‘facts admitted need not be proved’.

Proof of Document is, Normally, Proof of (both) Execution and Contents

When existence of a document is proved (either by admission or by proof), normally, Contents thereof are also taken as proved.
In most cases, ‘proof of execution’ may lead the court to presume ‘proof of truth’. But, it is not a rigid rule, for it falls under the caption, “appreciation of evidence”.
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents. It is left to the discretion (Sec. 3) of the court. In proper cases court is expressly authorised to presume (Sec. 114) truth.

Therefore, by virtue of our procedure-laws (especially, Sec. 3 and 114 Evidence Act) and the law handed down by our Apex Court, the Courts are free to appraise that marking of a document –

1. Contents and ‘Truth of its Contents’ stand proved, or
2. Mere marking does not amount to proof of contents (even), or
(3) admission of contents; not truth of contents (especially when truth is in issue), or
(4) admission of contents and truth of contents; but, its probative value is small or nil.

PART I

Documents Marked Without Objection as to MODE OF PROOF – Effect, Waiver

The law prevails in India is the following –

If documents are marked without objection as to its mode of proof, it is not open to the other side to object to their admissibility afterwards.

Following are the decisive authorities in this line.

P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)	Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.	Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatachalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)	Photo copies were admitted in evidence without leading foundation – without objection. They cannot be held inadmissible for originals were not produced.	Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082	Objection to be taken at trial before document is marked as an ‘exhibit’.	Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder
PC Thomas v. PM Ismail (R.M. Lodha, D.K. Jain, JJ.), AIR 2010 SC 905; 2009-10 SCC 239.	Non-examination of Witness to Prove Truth- If no objection on ‘mode of proof’ in trial court, it will be too late (in appeal) to raise objection on the ground of mode of proof – that is, “non production of John K as a witness”	…
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315	No objection about the truth* of contents* of Ex. 32. The witness of the defendant accepted the contents. Therefore, *too late in the day* to canvass that contents of Ex. 32 were not proved	…
Sarkar on Evidence .	If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal	Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.

Who Should Object FIRST – Court or Opposite Side?

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

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

First View: Court is under an Obligation to Exclude

In H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492, it is held:

“Mere admission of a document in evidence does not amount to its proof. … The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon.” (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.)

In Yeshoda v. Shoba Ram: AIR 2007 SC 1721, it is held:

“In order to enable a party to produce secondary evidence it is necessary for the party to prove existence and execution of the original document. .. The conditions laid down in the said Section (Section 65) must be fulfilled before secondary evidence can be admitted. Secondary evidence of the contents of a document cannot be admitted without non-production of the original being first accounted for in such a manner as to bring it within one or other of the cases provided for in the Section.

Second and Typically Followed View

1. ‘Failure to raise timely objection‘ as to the irregularity of mode adopted for proving the document “amounts to waiver“.
- R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.

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

In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is held “failure to raise timely objection” as to the irregularity of mode adopted for proving a document “amounts to waiver“.

(Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court).

In RVE Venkatachala Gounder, our Apex Court held as under:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently. The objections as to admissibility of documents in evidence may be classified into two classes:
- (i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision. In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence. In the first case, acquiescence would be no bar to raising the objection in superior Court.”

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

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

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

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

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

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

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

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

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

Relevant Provisions as to Appreciation of Evidence – Sec. 3 & 114, Evid. Act

The definition of “Proved” in Sec. 3 gives vast discretion to the court. It reads as under:

” ‘Proved‘ — 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.”

Sec. 114 reads as under:

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

_{“Any fact” may include “truth” of contents of documents.}

Relevancy of Evidence

Sec. 5 and 136 of the Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Sec. 5 Evidence Act, 1872 deals with Relevancy

Sec. 5 of the Indian Evidence Act, 1872 reads as under:

“5. Evidence may be given of facts in issue and relevant facts – Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation – This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure

Sec. 136, Evidence Act – Permits Evidence on Undertaking of the Party

Sec. 136, Evidence Act permits to furnish a fact before proving it formally, if “the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking”. It reads as under:

“S. 136. Judge to decide as to admissibility of evidence.
             When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved, would be relevant; and the Judge shall admit the evidence if he thinks that the fact, if proved, would be relevant, and not otherwise.
             If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned, unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.
             If the relevancy of one alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved, or require evidence to be given of the second fact before evidence is given of the first fact.”

Court can Reject ‘Irrelevant’ or ‘Inadmissible’ Document At Any Stage

Order 13 Rule 3 CPC reads as under:

“Rejection of irrelevant or inadmissible documents – The Court may at any stage of the suit reject any document which it considers irrelevant or otherwise inadmissible, recording the grounds of such rejection.

It is pertinent to note that Order 13 Rule 3 CPC speaks as to the rejection of irrelevant and inadmissible documents at any stage of the suit. It does not deal with the probative value of a document or marking/exhibiting the same in evidence. The courts can adjudicate the matters before them only on the basis of substantive evidence.

Court Cannot Discard Documents, Straight Away. It has to be marked ‘subject to proof’

When a ‘relevant’ and ‘admissible’ document is tendered in evidence, otherwise than through its executant (or a witness to the document) –

Can it be discarded outright by the Court, pointing out – no ‘formal proof’?
What will be the situation if the opposite side does not raise objection (or expressly say – they have no objection) to such marking?
Can a copy of a document be marked without ‘foundational evidence’, on admission?

It is definite –

The court cannot discard such documents, straight away.
It has to be marked ‘subject to proof’ or ‘subject to objection’, as it is the practice followed. The law also supports it.

Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’

Usually, a document is proved through its author, or through a witness or a person acquainted with handwriting. Admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act). Even ‘Truth of the contents’ of documents can also be established by concession or admission from the other side (“at the hearing”).

Sec. 58, Evidence Act reads as under:

“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”

Sec. 58 says that no fact need be proved in any proceeding in three circumstances:

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

“Hearing” Partakes ‘recording evidence’

Admissions – by the Advocate – at Hearing

Admissions (at ‘hearing’) – by the advocate – may be made at the evidence-stage (while the witnesses are examined) and at the time of ‘final hearing’. Admissions by advocate are to be deciphered from Judgment (Sarcar) or Order-sheet.

Admissions are Substantive Evidence By Themselves

In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: 1966-1 SCR 606, it was observed as under:

“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted.”

Bharat Singh v. Bhagirathi is quoted/referred to in:

Dipakbhai Jagdishchandra Patel v. State of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78,
Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49,
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.

In the case of Murlidhar Bapuji Valve v. Yallappa Lalu Chougule, AIR 1994 Bom 358, it was held that an “admission” made by a party in a sale deed was liable to be considered as substantive evidence, and there was no need to confront the witness with the statement.

Marking Documents “Subject to Objection or Proof”

In M. Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, the practice of marking documents “subject to objection and proof” was referred to as under:

“539. On 7 February 2002, counsel for the plaintiffs in Suit 5 filed a report dated 3 February 2002 before the High Court of Dr. KV Ramesh, pertaining to the “Ayodhya Vishnu Hari temple inscription”. The documents were taken on record “subject to objection and proof” as required by the provisions of the Evidence Act 1872. ….”

The practice of exhibiting documents ‘subject to proof and relevancy’ is also referred to in –

Jarnail Singh v. State of Punjab, 2022-10 SCC 451 (photocopy),
Uttaradi Mutt v. Raghavendra Swamy Mutt, 2018-10 SCC 484,
Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018-7 SCC 639,
Nandkishore Lalbhai Mehta v. New Era Fabrics Pvt. Ltd., 2015-9 SCC 755,
State of Bihar v. PP Sharma, AIR 1991 SC 1260: 1992 Supp1 SCC 222,
Nilavarnisa v. MM Faizal, 2019-1 KHC 699; 2019-1 KLT 652.

PART II

Effect of Marking Documents without Objection

Following two things are different processes –

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

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

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

Divergent views are taken by the Courts depending on the facts of each case.

First view (a) Proof (Contents and ‘Truth of its Contents’) stands established. It cannot be questioned afterwards. (b) Admission of contents – but, does not dispense with proof of truth of its contents.	(a) RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745; Dayamati Bai v. K.M. Shaffi : AIR 2004 SC 4082; Oriental Insurance Co v. Premlata: (2007) 8 SCC 575; Thimmappa Rai v. RamannaRai,(2007) 14 SCC 63; Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718. (b) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 .
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved. (Note: It may not be legitimate to apply this principle literatim. A close analysis of each case is essential.)	LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.	See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.	See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; *Kaliya v. State of MP*: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.	See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.

1. (a) Once no Objection to Mode of Proof, Right to Objection Stands Waived

It is trite law that once no-objection is raised to the mode of proof on account of lack of original, then the right of the opposite party to raise objection (on this score) stands waived. RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548: (2003) 8 SCC 752, is often quoted to establish the proposition –

It was the position of law accepted by our legal system. See:

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

See also:

Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
Oriental Insurance Co v. Premlata: (2007) 8 SCC 575,
Dayamathi Bai v. KM Shaffi, (2004) 7 SCC 107, AIR 2004 SC 4082;
R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami & V.P. Temple, (2003) 8 SCC 752;
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63.

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

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

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

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

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

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

Objection as to Truth of Contents, First Time In Appeal – Effect

In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:

“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”

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

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

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

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

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

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

Inferences as to “TRUTH of contents

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

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

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

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

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

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

Photocopy of 30 Years Old OFFICIAL DOCUMENTS – Marked WITHOUT OBJECTION– REGULARITY can be Presumed

Quoting Lakhi Baruah v. Padma Kanta, it is elucidated in Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718, as regards official/public document, marked without objection, presumption under Section 114(e) of the Indian Evidence Act (there shall be a that all official acts have been regularly performed) can be invoked, over and above the presumption under Ser. 90. It is held as under:

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

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

This Proposition is Not to be Applied “Literatim”

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

This proposition is not attracted–

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

This proposition is attracted–

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

Each Case under this Head Requires Distinct Consideration

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

Following are the often-cited cases on this subject.

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

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

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

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

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

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

Note:

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

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

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

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

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

It is only pointed out in this decision as under:

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

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

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

It is held as under:

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

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

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

In this decision it was held:

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

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

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

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

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

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

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

It is added:

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

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

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

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

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

Other Important Decisions –

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

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

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

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

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

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

See also:

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

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

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

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

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

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

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

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

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

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

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

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

Best Evidence Rule and ‘Evidence of High Probative Value‘

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

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

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

Secondary Evidence would be Admissible only in Exceptional Cases

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

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

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

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

Inasmuch as –

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

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

Duty of the Court to Aid Fair Trial

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

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

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

This principle is iterated in following cases also:

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

End Notes

1. Proof is of Two Types:

First, Formal Proof, or Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
Second, Substantive Proof or Proof as to truth. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the contents of the document is established.

2.Modes of Proof of Documents

Documents can be proved (both, ‘formal proof’ and ‘truth of the contents’) in the following ways:

Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Public documents – Sec. 74 – 77.
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

3. Proof as to truth is to be established-

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

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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

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

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

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General