(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

Contents in a Nutshell

• 1. Ceiling Limit: The maximum extent of land assignable under a Purchase Certificate is circumscribed by the ceiling limit, under Section 72B(1)(a) and (b) of the Kerala Land Reforms Act, 1963.
• 2. Plantation Exemption: Owners and tenants of plantations are permitted to retain plantation lands in excess of the ceiling limit by availing the ‘exemption’ provided under Section 81. However, the said exemption does not confer any absolute proprietary right over such land.
• 3. Exempted-plantation-land Vest in Government: Title/ownership of unassigned–exempted-plantation-land is vested with the Government, under Section 72(1).
• 4. Prior Owners and Tenants will be Deemed as Tenants of the Govt. Such tenants have to pay ‘Rent’ to the Government (Section 72E) for the unassigned–exempted-plantation-land.  The rent is fixed by the Land Tribunal [Section 72F(5)(h) ].
• 5. On Acquisition, No Land Value to Previous Owners or Tenants: If the land vested in Government under Section 72 is acquired, land-value will not be paid to the former land-owner or the tenant (Section 112(5A).
• 6. Exemption will be lost, if “Fragmented”:The exemption granted to a plantation will be lost if it is “fragmented” or the plantation-crop is abandoned (under Section 87).

Relevant Provisions of Law

• 1. Section 72(1), Kerala Land Reforms Act, 1963: All right, title and interest of the land-owners held by cultivating-tenants as on 1.1.1970 entitled to fixity of tenure under Section 13 shall vest in the Government.
• 2. Section 72B: It deals with “cultivating tenants’ right to assignment” (of the land vested in Government under Section 72).  Sub Section 1(a) and (b) of this Section direct that the assignment should be within the ceiling limit (mentioned in Section 82).
• 3. Section 72C: It deals with assignment of land, where the cultivating-tenant has not made application under Section 72B. All provisions of Section 72B, except sub section 3, are made applicable to Section 72C.  The opening words of Section 72C (“notwithstanding anything contained in sub Section 3 of Section 72B”), indicate the nexus between Section 72B and Section 72C.  Therefore, the purchase certificate can be issued, within ceiling limit alone, under Section 72C, as in the case of Section 72B.
• 4. Section 72E: As stated above, tenancy-lands vest in the Government, under Section 72. The tenants (under Government) of unassigned-exempted-plantation-land, etc., are liable to pay rent to the Government for the unassigned (over and above the ceiling limit).
• 5. Section 72F(5)(h): Land Tribunal fixes the rent for the said unassigned–exempted-land (under Section 81) .
• 6. Section 87(1) and its Explanations I and II: Only a limited right to continue; and, fragmentation is prohibited.  The specified plantation-crop alone is permitted.  The exemption is given subject to the condition – not to “convert” the land for any other use.
  • In case the land is ‘converted’, the exemption-benefit would be lost, and the exemption may be withdrawn under Explanation II of Section 87(1).  
• 7. Section 112 (5A): On acquisition, the cultivating tenants are entitled to compensation for improvements (only) for the land vested in the Government under Section 72.
• 8. Section 112 (5A)(a):The compensation for any building or other improvements  belonging to the land-owner shall be awarded to the Government.
• 9. Section 112 (5A)(b):The balance-compensation remaining after deducting the amount 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.
• 10. Proviso to Article 31A(1) of the Constitution of India: The State need not pay compensation to the land owners (when land is acquired) above the ‘ceiling limit‘.
  • The provisions of the KLR Act, in this regard, are legislated following this proviso in Article 31A(1). It goes without saying – if no compensation is payable to the land-owners above the ceiling limit, it need not be given to tenants.

Legal Right Conferred by the Statute
From the above, it is clear:

• The unassigned land allowed to be occupied by a tenant (over and above the ceiling limit for which the tenant is liable to pay rent to the Government under Section 72E) can be termed as a “Legal Right conferred by the Statute”. It is not an absolute right that is conferred to some, including the BIG plantation tenants.

The Policy of the KLR Act
Section 83, lays down 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 of Kerala v. Puliyangattu Krishnan Master, 2008(1) KLJ 571).

Unjustifiable to Confer Undue Benefits to Plantation-Tenants
Under Section 72A and Section 88, meagre compensation is paid to the land owners on vesting landlords’ rights in the Government and on surrendering the surplus land.  It is most unjustifiable to confer undue rights or benefits on the tenants or lessees (which is not given to the land owners) when their lease-hold-lands are acquired (the majority of such plantation-lessees are Companies).

Lands of the Maharaja of Travancore were taken

It is a matter of record that even the lands of the Maharaja of Travancore—191 acres situated within Thiruvananthapuram City,  far in excess of the statutory ceiling of 7.5 acres, were taken over pursuant to the orders of the Land Board, Thiruvananthapuram, vide Order No. LB(B)2-18919/70 dated 15-01-1972. Equally, it is an indisputable fact that thousands of middle-class landowners were subjected to the rigour of the Act, and their excess lands were taken by the force of law.

• Therefore, it would be wholly unreasonable to contend that the Legislature intended to confer any special or undue benefit upon plantation-tenants (benefits which were not extended to middle-class landowners, to other categories of tenants governed by the Act and even to the Maharaja of Travancore).

Any interpretation that elevates plantation-tenants to a privileged class, beyond the plain limits imposed by the statute, would be contrary to the scheme, object, and egalitarian ethos of the Kerala Land Reforms Act.

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

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 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].

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.

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:

1. 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.
2. 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.
3. 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.

1. Hence, No ‘fixity’ under Sec. 13, for the tenants of ‘Plantation-Tenancy’ above 30 acres.
2. 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.
3. Land lord is entitled Sec. 81 exemption over such plantation.
4. 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.

1. 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.)
2. That is, the protection or benefits given to tenants (fixity) can be availed by such tenants (who put up plantation on land leased).
3. No purchase Certificate can be obtained, for, fragmentation of plantation will not be allowed (Sec. 87 Expl. II).
4. 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.
5. Such lands also vest in Government under Sec. 72.
6. 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.
• It is not lawful to initiate Suo Motu proceedings (under Section 72C) by the Government, for the benefit of a Plantation Tenant (entitled, within the time allowed, to purchase a certificate below the ceiling limit), because Explanation II to Section 87 disfavours the fragmentation of the plantation land.
  • Still, because of subsection (3) of Section 85, the tenant could have obtained a purchase certificate (under Section 72B) within the statutory period
• 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 not lawful to initiate Suo Motu proceedings (under Section 72C) by the Government for the benefit of a Plantation Tenant (entitled, within the time allowed, to purchase a certificate below the ceiling limit), because Explanation II to Section 87 disfavours the fragmentation of the plantation land. Still, because of subsection (3) of Section 85, the tenant could have obtained a purchase certificate (under Section 72B) within the statutory period. 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)

READ CONNECTED BLOGS (CLICK):

• Freehold Property in Law
• What is Patta or Pattayam?
• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Glen Leven Estate v. State of Kerala: Not Correctly Decided?
• Law on Acquisition of Private Plantation Land in KeralaLaw on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Plantation Exemption in Kerala Land Reforms Act–in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Grant in Law
• Exempted Plantation Land – In whom Ownership Vests

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

• Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar
• Replication, Rejoinder and Amendment of Pleadings
• Does Registration of a Document give Notice to the Whole World?
• Suit under Sec. 6, Specific Relief Act – Is it a ‘Summary Suit’ under Order XXXVII CPC?
• Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?
• Will Interlocutory Orders and Applications Get Revived on Restoration of Suit?
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• Previous Owner is Not a Necessary Party in a Recovery Suit
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Withholding Evidence and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Relevancy of Civil Case Judgments in Criminal Cases
• Waiver and Promissory Estoppel
• Can a Christian Adopt? Will an adopted child get share in the property of adoptive parents?
• Principles of Equity in Indian Law
• Thangam v.  Navamani Ammal: Did the Supreme Court lay down – Written Statements which deal with each allegation specifically, but not “para-wise”, are vitiated?
• No Criminal Case on a Dispute Essentially Civil in Nature.
• Doctrine of Substantial Representation in Suits
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?

Principles and Procedure

• Ratio Decidendi (alone) Forms a Precedent, Not a Final Order
• BNSS – Major Changes from CrPC
• Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code
• Substantive Rights and Mistakes & Procedural Defects in Judicial Proceedings
• Will Boundaries of Properties (Always) Preferred Over Survey Number, Extent, Side Measurements, etc.?
• All Illegal Agreements are Void; but All Void Agreements are Not Illegal
• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Admission by itself Cannot Confer Title
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Cheating and Breach of Contract: Distinction – Fraudulent Intention at the time of Promise.
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• What is COGNIZANCE and Application of Mind by a Magistrate?

PROPERTY LAW

Title, ownership and Possession

• ‘Nemo Dat Quod Non Habet’
• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Tenancy at Sufferance in Indian Law
• Recovery of Possession Based on Title and on Earlier Possession
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• Title and Ownership in Indian Law
• Does Registration of a Document give Notice to the Whole World?
• Admission by itself Cannot Confer Title
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Adverse Possession Against Government
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law
• Termination of Tenancy (& Grant) by Forfeiture (for Claiming Title)

Adverse Possession

• Neelam Gupta v. Rajendra Kumar Gupta (October 14, 2024) – Supreme Court Denied the Tenant’s Claim of Adverse Possession
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession Against Government
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• ‘Possessory Title’ in Indian Law
• Admission by itself Cannot Confer Title
• Ouster and Dispossession in Adverse Possession
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs

Land Laws/ Transfer of Property Act

• Tenancy at Sufferance in Indian Law
• Freehold Property in Law
• What is Patta or Pattayam?
• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Previous Owner is Not a Necessary Party in a Recovery Suit
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Glen Leven Estate v. State of Kerala: Not Correctly Decided?
• Sale Deeds Without Consideration – Void
• Law on Acquisition of Private Plantation Land in KeralaLaw on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Plantation Exemption in Kerala Land Reforms Act–in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Sec. 7 Easements Act – Natural Advantages Arising from the Situation of Land & Natural Flow of Water
• Grant in Law

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Notary-Attested Documents and Presumptions
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Should a Power of Attorney for Sale must have been Registered –
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Evidence Act – General

• Newspaper Reports are ‘Hearsay Secondary Evidence’
• Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023
• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Withholding Evidence and Adverse Inference
• Best Evidence Rule in Indian Law
• What is Collateral Purpose?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Admission by itself Cannot Confer Title
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Pictorial Testimony Theory and Silent Witnesses Theory
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Sec. 65B

• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate forms
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?

Admission, Relevancy and Proof

• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Admission by itself Cannot Confer Title
• Modes of Proof of Documents
• Proof of Documents & Objections To Admissibility – How & When?
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Production, Admissibility & Proof Of Documents
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Relevancy of Civil Case Judgments in Criminal Cases
• Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment does not Bind Criminal Court’

Law on Documents

• Admitted Documents – Can the Court Refrain from Marking, for no Formal Proof?
• Does Registration of a Document give Notice to the Whole World?
• Production, Admissibility & Proof Of Documents
• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Effect of Marking Documents Without Objection – Do Contents Stand Proved?
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Are RTI Documents Admissible in Evidence as ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents and Presumptions
• What is Collateral Purpose?
• No Application Needed for Filing or Admitting Copy
• Presumptions on Documents and Truth of Contents
• Presumptions on Registered Documents & Truth of Contents
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Modes of Proof of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Adjudication as to Proper Stamp under Stamp Act
• Marking Documents Without Objection – Do Contents Proved
• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• How to Contradict a Witness under Sec. 145, Evidence Act
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Pictorial Testimony Theory and Silent Witnesses Theory
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Interpretation

• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Wills
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• All Illegal Agreements are Void; but All Void Agreements are Not Illegal
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Cheating and Breach of Contract: Distinction – Fraudulent Intention at the time of Promise.

Law on Damages

• Law on Damages
• Who has to fix Damages in Tort and Contract?
• Law on Damages in Defamation Cases
• Pleadings in Defamation Suits

Easement

• Easement Simplified
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Easement of Necessity and Prescriptive Easement are Mutually Destructive; But, Easement of Necessity and Implied Grant Can be Claimed Alternatively
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law
• Right of Private Way Beyond (Other Than) Easement
• Easement – Should Date of Beginning of 20 Years be pleaded?
• One Year Interruption or Obstruction will not affect Prescriptive Easement
• Should the Plaintiff Schedule Servient Heritage in a Suit Claiming Perspective Easement?

Stamp Act & Registration

• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Time-Limit For Adjudication of Unstamped Documents, before Collector
• Time Limit for Registration of Documents
• Presumptions on Registered Documents & Truth of Contents
• Registration of Documents Executed out of India
• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration

Divorce/Marriage

• Presumption of Valid Marriage – If lived together for Long Spell
• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Negotiable Instruments Act

• Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Sec. 138 NI Act (Cheque) Cases: Presumption of Consideration u/s. 118
• Even if ‘Signed-Blank-Cheque’, No Burden on Complainant to Prove Consideration; Rebuttal can be by a Probable Defence
• “Otherwise Through an Account” in Section 142, NI Act
• Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
• Cheque Dishonour Case against a Company, Firm or Society
• What is ‘Cognizance’ in Law
• What is COGNIZANCE and Application of Mind by a Magistrate?

Arbitration

• Seesaw of Supreme Court in NN Global Mercantile v. Indo Unique Flame
• N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. and Ground Realities of Indian Situation
• What are Non-Arbitrable Disputes? When a Dispute is Not Referred to Arbitration in spite of Arbitration Clause
• Termination or Nullity of Contract Will Not Cease Efficacy of the Arbitration Clause
• No Valid Arbitration Agreement ‘Exists’ – Can Arbitration Clause be Invoked?

Will

• Witnesses to the Will Need Not See the Execution of the Will
• Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?
• A Witness to Hindu-Will will not Lose Benefit

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Doctrines on Ultra Vires and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur v. Union of India)
• Dr. Jaya Thakur v. Union of India – Mandamus (Given in a Case) Cannot be Annulled by Changing the Law
• Art. 370 – Turns the Constitution on Its Head

Religious issues

• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
  • Charitable and Religious Trusts Act, 1920: Provisions as regards opinion, advice or direction of the Court.
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
  • Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

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:

1. the parties or their agents agree to admit at the hearing
2. before the hearing, they agree to admit by any writing under their hands
3. 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’.

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).

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 (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.

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.

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

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, 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:

“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 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.

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.”

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

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.

(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’

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). 

• 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.

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, 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

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.

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.

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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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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

• Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar
• Replication, Rejoinder and Amendment of Pleadings
• Does Registration of a Document give Notice to the Whole World?
• Suit under Sec. 6, Specific Relief Act – Is it a ‘Summary Suit’ under Order XXXVII CPC?
• Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?
• Will Interlocutory Orders and Applications Get Revived on Restoration of Suit?
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?
• Pleadings Should be Specific; Why?
• Pleadings in Defamation Suits
• Previous Owner is Not a Necessary Party in a Recovery Suit
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• PLEADINGS IN ELECTION MATTERS
• Declaration and Injunction
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Is it Mandatory to Set Aside the Commission Report – Where a Second Commissioner is Appointed?
• Can a Commission be Appointed to Find Out the Physical Possession of a Property?
• Withholding Evidence and Adverse Inference
• Pendente Lite Transferee Cannot Resist or Obstruct Execution of a Decree
• Family Settlement or Family Arrangement in Law
• ‘Possessory Title’ in Indian Law
• Will Findings of a Civil Court Outweigh Findings of a Criminal Court?
• Relevancy of Civil Case Judgments in Criminal Cases
• Waiver and Promissory Estoppel
• Can a Christian Adopt? Will an adopted child get share in the property of adoptive parents?
• Principles of Equity in Indian Law
• Thangam v.  Navamani Ammal: Did the Supreme Court lay down – Written Statements which deal with each allegation specifically, but not “para-wise”, are vitiated?
• No Criminal Case on a Dispute Essentially Civil in Nature.
• Doctrine of Substantial Representation in Suits
• Order I rule 8, CPC (Representative Suit) When and How? Whether Order I rule 8 Decree is Enforceable in Execution?

Principles and Procedure

• Ratio Decidendi (alone) Forms a Precedent, Not a Final Order
• BNSS – Major Changes from CrPC
• Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code
• Substantive Rights and Mistakes & Procedural Defects in Judicial Proceedings
• Will Boundaries of Properties (Always) Preferred Over Survey Number, Extent, Side Measurements, etc.?
• All Illegal Agreements are Void; but All Void Agreements are Not Illegal
• Doctrines on Ultra Vires, Rule of Law, Judicial Review, Nullification of Mandamus, and Removing the BASIS of the Judgment
• Can an ‘Ex-parte’ Defendant Cross Examine Plaintiff’s Witness?
• Will – Probate and Letters of Administration
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross-Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Admission by itself Cannot Confer Title
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Cheating and Breach of Contract: Distinction – Fraudulent Intention at the time of Promise.
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• What is COGNIZANCE and Application of Mind by a Magistrate?

PROPERTY LAW

Title, ownership and Possession

• ‘Nemo Dat Quod Non Habet’
• Section 27, Limitation Act Gives-Rise to a Substantive Right so as to Seek Declaration and Recovery
• Sale Deeds Without Consideration – Void
• Tenancy at Sufferance in Indian Law
• Recovery of Possession Based on Title and on Earlier Possession
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs
• Title and Ownership in Indian Law
• Does Registration of a Document give Notice to the Whole World?
• Admission by itself Cannot Confer Title
• POSSESSION is a Substantive Right in Indian Law
• 22nd Law Commission  Report on ‘Law on Adverse Possession’
• Adverse Possession Against Government
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• Family Settlement or Family Arrangement in Law
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• ‘Possessory Title’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?
• Grant in Law
• Termination of Tenancy (& Grant) by Forfeiture (for Claiming Title)

Adverse Possession

• Neelam Gupta v. Rajendra Kumar Gupta (October 14, 2024) – Supreme Court Denied the Tenant’s Claim of Adverse Possession
• How to Plead Adverse Possession? Adverse Possession: An Evolving Concept
• Adverse Possession Against Government
• Adverse Possession: Burden to Plead Sabotaged
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Government of Kerala v. Joseph – Law on Adverse Possession Against Government
• ‘Possessory Title’ in Indian Law
• Admission by itself Cannot Confer Title
• Ouster and Dispossession in Adverse Possession
• Declaration of Title & Recovery of Possession: Art. 65, not Art. 58, Limitation Act Governs

Land Laws/ Transfer of Property Act

• Tenancy at Sufferance in Indian Law
• Freehold Property in Law
• What is Patta or Pattayam?
• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Previous Owner is Not a Necessary Party in a Recovery Suit
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Marumakkathayam – A System of Law and Way of Life Prevailed in Kerala
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• ‘Janmam’ Right is FREEHOLD Interest and ‘Estate’ in Constitution – By Royal Proclamation of 1899, The Travancore Sircar became Janmi of Poonjar Raja’s Land
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Sale Deeds Without Consideration – Void
• Law on Acquisition of Private Plantation Land in KeralaLaw on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE
• Plantation Exemption in Kerala Land Reforms Act–in a Nutshell
• Kerala Land Reforms Act – Provisions on Plantation-Tenancy and Land-Tenancy
• Sec. 7 Easements Act – Natural Advantages Arising from the Situation of Land & Natural Flow of Water
• Grant in Law

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Notary-Attested Documents and Presumptions
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Should a Power of Attorney for Sale must have been Registered –
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Evidence Act – General

• Newspaper Reports are ‘Hearsay Secondary Evidence’
• Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023
• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Withholding Evidence and Adverse Inference
• Best Evidence Rule in Indian Law
• What is Collateral Purpose?
• Burden of Proof – Initial Burden and Shifting Onus
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Effect of Not Cross-Examining a Witness & Effect of Not Facing Complete Cross Examination by the Witness
• Suggestions & Admissions by Counsel, in Cross Examination to Witnesses
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Admission by itself Cannot Confer Title
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• What is Section 27 Evidence Act – Recovery or Discovery?
• How ‘Discovery’ under Section 27, Evidence Act, Proved?
• Pictorial Testimony Theory and Silent Witnesses Theory
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

Sec. 65B

• Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate forms
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?

Admission, Relevancy and Proof

• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Admission by itself Cannot Confer Title
• Modes of Proof of Documents
• Proof of Documents & Objections To Admissibility – How & When?
• Burden of Proof – Initial Burden and Shifting Onus
• Burden on Plaintiff to Prove Title; Weakness of Defence Will Not Entitle a Decree
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence
• Production, Admissibility & Proof Of Documents
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant
• Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act
• Relevancy of Civil Case Judgments in Criminal Cases
• Prem Raj v.  Poonamma Menon (SC), April 2, 2024 – An Odd Decision on ‘Civil Court Judgment does not Bind Criminal Court’

Law on Documents

• Admitted Documents – Can the Court Refrain from Marking, for no Formal Proof?
• Does Registration of a Document give Notice to the Whole World?
• Production, Admissibility & Proof Of Documents
• Relevancy, Admissibility and Proof of Documents
• Admission of Documents in Evidence on ‘Admission’
• Effect of Marking Documents Without Objection – Do Contents Stand Proved?
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• Are RTI Documents Admissible in Evidence as ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents and Presumptions
• What is Collateral Purpose?
• No Application Needed for Filing or Admitting Copy
• Presumptions on Documents and Truth of Contents
• Presumptions on Registered Documents & Truth of Contents
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Proof of Documents – Admission, Expert Evidence, Presumption etc.
• Modes of Proof of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Adjudication as to Proper Stamp under Stamp Act
• Marking Documents Without Objection – Do Contents Proved
• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• How to Contradict a Witness under Sec. 145, Evidence Act
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Pictorial Testimony Theory and Silent Witnesses Theory
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents – When Produced; Cannot Wait Till it is Exhibited

Interpretation

• Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule
• Interpretation of Wills
• Appreciation of Evidence by Court and ‘Preponderance of Probabilities’ & ‘Probative Value of Evidence

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• UNDUE INFLUENCE and PLEADINGS thereof in Indian Law
• All Illegal Agreements are Void; but All Void Agreements are Not Illegal
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Cheating and Breach of Contract: Distinction – Fraudulent Intention at the time of Promise.

Law on Damages

• Law on Damages
• Who has to fix Damages in Tort and Contract?
• Law on Damages in Defamation Cases
• Pleadings in Defamation Suits

Easement

• Easement Simplified
• What is Easement? Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• Prescriptive Rights – Inchoate until the Title thereof is Upheld by a Competent Court
• Will Easement of Necessity Ripen into a Prescriptive Easement?
• What is “period ending within two years next before the institution of the suit” in Easement by Prescription?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Easement of Necessity and Prescriptive Easement are Mutually Destructive; But, Easement of Necessity and Implied Grant Can be Claimed Alternatively
• Can Easement of Necessity and of Grant be Claimed in a Suit (Alternatively)?
• “Implied Grant” in Law of Easements
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition
• Grant in Law
• Right of Private Way Beyond (Other Than) Easement
• Easement – Should Date of Beginning of 20 Years be pleaded?
• One Year Interruption or Obstruction will not affect Prescriptive Easement

Stamp Act & Registration

• Cancellation of Sale Deeds and Settlement Deeds & Powers of Sub-Registrar in Registering Deeds
• Time-Limit For Adjudication of Unstamped Documents, before Collector
• Time Limit for Registration of Documents
• Presumptions on Registered Documents & Truth of Contents
• Registration of Documents Executed out of India
• LAW ON INSUFFICIENTLY STAMPED DOCUMENTS 
• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Can an Unregistered Sale Agreement be Used for Specific Performance
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration

Divorce/Marriage

• Presumption of Valid Marriage – If lived together for Long Spell
• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Negotiable Instruments Act

• Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Sec. 138 NI Act (Cheque) Cases: Presumption of Consideration u/s. 118
• Even if ‘Signed-Blank-Cheque’, No Burden on Complainant to Prove Consideration; Rebuttal can be by a Probable Defence
• “Otherwise Through an Account” in Section 142, NI Act
• Where to file Cheque Bounce Cases (Jurisdiction of Court – to file NI Act Complaint)?
• Cheque Dishonour Case against a Company, Firm or Society
• What is ‘Cognizance’ in Law
• What is COGNIZANCE and Application of Mind by a Magistrate?

Arbitration

• Seesaw of Supreme Court in NN Global Mercantile v. Indo Unique Flame
• N.N. Global Mercantile (P) Ltd. v. Indo Unique Flame Ltd. and Ground Realities of Indian Situation
• What are Non-Arbitrable Disputes? When a Dispute is Not Referred to Arbitration in spite of Arbitration Clause
• Termination or Nullity of Contract Will Not Cease Efficacy of the Arbitration Clause
• No Valid Arbitration Agreement ‘Exists’ – Can Arbitration Clause be Invoked?

Will

• Witnesses to the Will Need Not See the Execution of the Will
• Interpretation of Wills
• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal
• How to Prove a Will, in Court?Is Presumption enough to Prove a Registered Will?
• How to Write a Will? Requirements of a Valid Will
• When Execution of a Will is ‘Admitted’ by the Opposite Side, Should it be ‘Proved’?
• A Witness to Hindu-Will will not Lose Benefit

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Doctrines on Ultra Vires and Removing the BASIS of the Judgment, in ED Director’s Tenure Extension Case (Dr. Jaya Thakur v. Union of India)
• Dr. Jaya Thakur v. Union of India – Mandamus (Given in a Case) Cannot be Annulled by Changing the Law
• Art. 370 – Turns the Constitution on Its Head

Religious issues

• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
  • Charitable and Religious Trusts Act, 1920: Provisions as regards opinion, advice or direction of the Court.
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
  • Does Cheque-Case under Sec. 138, NI Act Lie Against a Trust?
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions