Order I rule 8 of the Code of Civil Procedure, 1908, enables the plaintiffs to file a suit in a representative capacity on behalf of or for the benefit of a class of (numerous) persons. There should be a common grievance, seeking a common relief also. Law requires proper notice (including news-paper advertisement) to all such persons interested.
Object of Order I rule 8
The object of Order I rule 8 is to avoid multiplicity of litigation (Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608).
In Narayanan v. Kurichitanam Educational Society, AIR 1959 Ker 379, it was pointed out that it would be difficult to prescribe a minimum number which would be sufficient to satisfy the expression ‘numerous’ as used in Order I, r. 8. It is a matter of discretion left to the court.
When Order I Rule 8 Representation allowed
Order I Rule 8 reads as under
“8. One person may sue or defend on behalf of all in same interest.
(1) Where there are numerous persons having the same interest in one suit,- (a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested; (b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.
(2) The Court shall, in every case where a permission or direction is given under sub-rule (1), at the plaintiff’s expense, give notice of the institution of the suit to all persons so interested either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.
(3) Any person on whose behalf, or for whose benefit, a suit is instituted or defended, under sub-rule (1), may apply to the Court to be made a party to such suit.
(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff’s expense, notice to all persons so interested in the manner specified in sub-rule (2).
(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.
(6) A decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Explanation– For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the person on whom behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.”
Numerous Persons “Having The Same Interest”
Order I Rule 8 can be invoked, with the permission of the Court –
(i) where numerous persons having the same interest have to sue (as plaintiff)or
(ii) numerous persons having the same interest are to be sued (as defendants)
(iii) it can be invoked by the defendants also, for Order I Rule 8 (1) (a) says – “one or more of such persons may, with the permission of the Court … defend such suit, on behalf of, or for the benefit of, all persons so interested”.
“Numerous Persons” need not have “same cause of action”
The Explanation to this rule was introduced by the Code of Civil Procedure (Amendment) Act, 1976. It was needed as doubts arose as to whether the party representing others should have the ‘same cause of action as the persons represented by him’.
The objects and reasons for the amendment were stated below:
“Rule 8 of O. I deals with representative suits. Under this rule, where there are numerous persons having the same interest in one suit, one or more of them may, with the permission of the Court, sue or be sued, on behalf of all of them. The rule has created a doubt as to whether the party representing others should have the same cause of action as the persons represented by him. The rule is being substituted by a new rule and an explanation is being added to clarify that such persons need not have the same cause of action. ” (Quoted in Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608)
‘Sameness of Interest’ Or ‘Community of Interest’of Numerous Persons
In Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608, it is said as under:
“7. … The provisions of O. 1 R. 8 have been included in the Code in the public interest so as to avoid multiplicity of litigation. The condition necessary for application of the provisions is that the persons on whose behalf the suit is being brought must have the same interest. In other words either the interest must be common or they must have a common grievance which they seek to get redressed. In Kodia Goundar v. Velandi Goundar, ILR (1955) Mad 335, a Full Bench of the Madras High Court observed that on the plain language of 0.1, R.8, the principal requirement to bring a suit within that Rule is the sameness of interest of the numerous persons on whose behalf or for whose benefit the suit is instituted.”
The Court, while considering whether leave under the Rule should be granted or not, should examine whether there is sufficient community of interest to justify the adoption of the procedure provided under the Rule. The object for which this provision enacted is really to facilitate the decision of questions, in which a large number of persons are interested, without recourse to the ordinary procedure.”
Chairman, T. N. Housing Board, Madras v. T. N. Ganapathy, AIR 1990 SC 642, 1990-1 SCC 608. Is referred to in the following decisions:
Brigade Enterprises Limited v. Anil Kumar Virmani, AIR 2022 SC 119; 2022-4 SCC 138
Manish Kumar v Union of India, 2021-5 SCC 1
Anjum Hussain v. Intellicity Business Park Pvt Ltd., 2019-6 SCC 519,
Shri V. J. Thomas v Shri Pathrose Abraham, AIR 2008 SC 1503; 2008-5 SCC 84.
Interest Need Not be Identical or joint and concurrent
To invoke O I r 8 CPC what is needed is same or similar interest. It need not be identical or ‘interest in entirety’.
In K. P. Venkata Subbaiah v. Hlndupur Municipality, 1976-1 APLJ 302, it was pointed out that Community of Interest is therefore essential and it is a condition precedent for bringing a representative suit. (Referred: Kodla v. Velandi, ILR 1955 Madras 339). But, the Madras High Court (K. P. Venkata Subbaiah) pointed out that “it is not necessary that the interest should be identical or should be joint and concurrent“.
Whether O.I r.8 Decree is Res Judicata
Order I Rule 8(6)says that a decree passed in a suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.
Whether the decree in such a suit operates as res judicata against the persons who are represented remains as a controversy. In any event, by the insertion of Sub-rule (6) to rule 8 of Order I, in 1976, it became legitimate to say that the decree stands as res judicata. Sub-rule (6) lays down that a decree passed in a suit under rule 8 shall be binding on all persons on whose behalf or for whose benefit the suit is instituted or defended.
Therefore, the view taken in Srinivasa Aiyankar v. Aryar Srinivasa Aiyankar, (1910) ILR 33 Mad 483 : 6 IC 229, that the decisions do not bind on those who were not actually (eo nominee) parties (and hence not res judicata and not enforceable in execution) does not hold good at present. This view in Srinivasa Aiyankar had been taken in following cases (prior to 1976) also:
Sahib Thampi v. Hamid, 36 Mad. 414
Walker v. Sur, 1914-2 KB 930
Hardie and Lane Limited v. Chiltern, 1928-1 KB 663
Kodia Goundar v. Velandi Goundar. AIR 1955 Mad 281
When Order 1 rule 8 Petitions are Dismissed
No sameness of the interest i.e. no common grievance – Surender Pal Singh VS DLF Homes Panchkula Pvt. Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752
No common interest or common grievance – Surender Pal Singh VS DLF Homes Panchkula Pvt. Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752
Not seeking same/identical relief- Surender Pal Singh VS DLF Homes Panchkula Pvt. Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752
Suit/complaint must necessarily be filed on behalf of or for the benefit of all the persons having a common grievance, seeking a common relief (Surender Pal Singh VS DLF Homes Panchkula Pvt. Ltd., 2018-3 CPJ(NC) 534; 2018-2 CPR (NC) 752)
Whether O.I r.8 Decree is Enforceable in Execution against one ‘Represented’
The enforceability of an injunction decree, under r. 32 of O. XXI, in a representative suit against the persons represented is yet to be resolved either by enactment, or by an authoritative decision taking note of the divergent views of various High Courts in this matter.
It is noteworthy that even when Sub-r. (6) of r. 8 of O. I was not available in the Code, it was observed in Waryam Singha v. Sher Singh, AIR 1942 Lah 136, that the decree for injunction could be executed against any of the persons who were represented under O. 1 r. 8 CPC; because, all the persons who were represented must be held to be parties as the decree obtained in such a suit was binding on all of them. This view is taken in following cases also:
Mool Chandra Jain v. Jagdish Chandra Joshi, AIR 1955 All 385
Abdulla v. Parshotam Singh, AIR 1935 Lah 33
Jatindra Mohan Banerje v. Kali Charan, AIR 1960 Cal 623
Relying on Shri V. J. Thomas v. Shri Pathrose Abraham, AIR 2008 SC 1503, and Kodia Goundar v. Velandi Goundar, AIR 1955 Mad 281,the Kerala High Court has in Narayanan v. Periyadan Narayanan Nair, 2021 (3) KHC 211 (FB) held that execution of a decree is not possible if he was not impleaded as a defendant. The Full Bench overruled James Vs. Mathew (ILR 2012-4 Ker 753, 2012-4 Ker 640, 2012-4 Ker LT 666, 2012-4 KHC 604 ), which held that a decree for injunction obtained in a representative suit is binding on all persons for whose benefit the suit was defended, though they were not eo nomine parties to the suit; and that in case of wilful disobedience of such a decree by those persons for whose benefit the suit was defended, it is enforceable against them under r. 32 of O. XXI of the Code.
Theory of Revival of Decree of Injunction by a Separate Suit
The Madras High Court, in Kodia Goundar v. Velandi Goundar, AIR 1955 Mad 281, propounded a theory of ‘revival of injunction‘, in a representative suit, by a separate suit. It was observed as under:
“11. This principles that a decree for injunction cannot be extended so as to render those who are not ‘eo-nomine’ defendants liable for disobedience of the decree is based on sound and equitable grounds. Before any person could be proceeded against personally for disobedience of a decree of court, it must be shown that he was bound personally by the decree and obliged to obey such a decree. To entitle the decree-holder therefore to proceed against such persons who are not parties on record the injunction must be revived against them, which must be by a separate suit and in such a suit an opportunity will be afforded to them to raise appropriate defences. Without a revival therefore of the decree for injunction against these other persons, no proceedings in pursuance of the decree could be started against them.”
Representative Suit (OI, r8) Not Abate on death of a Plaintiff or a defendant
In Charan Singh v. Darshan Singh, AIR. 1975 SC 371, it was held by our Apex Court as under:
“… Since the suit had been filed in a representative capacity, it is clear that on the death of one of the plaintiffs it did not abate.”
In Jagdam Ram v. Asarfi Ram, AIR 1937 Pat. 149, it was held that the provisions of Order 22, CPC relating to the death of a plaintiff or a defendant cannot be applied to a case instituted or defended by a few persons on behalf of numerous persons not on record under Order I, Rule 8, CPC. (Referred to in: C. Ramasamy v. The District Collector, 1990-2 LW 363; 1990-2 MLJ 562).
In C. R. Ramakrishnan v. Raman, 1983 1 ILR(Ker) 566; 1983 KLT 63, it was held (referring Charan Singh v. Darshan Singh, AIR. 1975 SC. 371) as under:
” 7. Learned counsel for the respondents raised a preliminary objection to the effect that since the legal representatives of the 6th respondent have not been impleaded, the appeal has abated cot only against the 6th respondent but as a whole. Learned counsel for the appellant would submit that the suit being a representative one, it was unnecessary to implead the legal representatives of a deceased defendant and the death of such a representative party cannot lead to abatement of the appeal to any extent.
9. …. In an appeal filed before the Supreme Court (in Charan Singh and another v. Darshan Singh, AIR. 1975 SC. 371) by some of the defendants, it was contended that the second appeal had abated in view of the failure to implead the legal representatives of one of the plaintiffs. Relying on the decision Raja Anand Rao v. Ramdas Daduram (AIR. 1921 P.C.123), the Supreme Court held that as the suit was filed in a representative capacity, on the death of one of the representatives, the suit did not abate. That was because the suit was not prosecuted by individuals in their own interest but as representatives of others. There could be no abatement in such a case. We also notice that various High Courts have taken the same view. Vide
In K. Suseelan, v. Thamarakshy, 2020-1 KHC 618; 2020-1 KLJ 745, it is observed as under:
“But, the death of any of the defendants would attract the rigour of Order 22 C.P.C. ( Rule 3 or 4),unless it was defended in a representative capacity for the persons having the same defence in the suit.”
In G.F.F. Foulkes v. Suppan Chettiar, AIR 1951 Mad 296, Rajamannar, C.J., observed at page 300 as follows:
“There is authority for the position that when a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate, because, the right to represent others of a class is not a right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other person or persons should be joined….” (Quoted in: C. Ramasamy v. The District Collector, 1990-2 LW 363; 1990-2 MLJ 562; C. Ramasamy v. The District Collector, 1990-2 MLJ 562;
In G.Christhudas v. Anbiah, AIR2003 SC 1590: 2003-3 SCC 502, the Apex Court held that a representative suit does not abate on the death of the plaintiff. It is for two reasons:
Firstly the plaintiff does not represent only himself but represents all other persons on whose behalf he is prosecuting the suit, thus all those persons are also parties to the suit albeit constructively, the conduct of the suit being in the hands one person to whom permission has been granted by the court and in case of his death, any other person can continue the suit.
And secondly, the persons represented by the plaintiff cannot said to be legal representatives of the deceased plaintiff within meaning of Section 2 (11) of Code of Civil Procedure and hence the provisions of order 22 would not apply to such case. (See: Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024)
The Apex Court held as under:
“… The High Court after adverting to the decision of this Court in Charan Singh v. Darshan Singh, AIR 1975 SC 371, and Ramaswamy vs. Collector of Dindigul, 1990 II MLJ 562, set out the law correctly to the effect that if a suit had been filed in a representative capacity, there can be no abatement on the death of any one of the plaintiffs or the appellants; that only Article 137 of the Limitation Act is applicable and within the period set out therein an application for impleadment could be made inasmuch as no particular provision is made therein as to the period within which such application can be filed.”
In Abdulkhader Haji v. Kunhammed, AIR 1986 Ker 3, it is pointed out relying on T K. Amma v. M. K. Ravunni Nair, AIR 1965 Ker. 303, and Charan Singh v. Darshan Singh, AIR. 1975 SC 371, that there would be no abatement of a representative suit by the death of the plaintiff.
On death of a Trustee, Trust Would Not Fail; Vests in Remaining Trustees
In Kapoorchand Rajendra Kumar Jain v. Parasnath Digambar Jain Bada Mandir, 2000-1 MPJR 199, it is held as under:
“A trustee exercises the rights of the beneficiary in such a dispute. He represents and personates the beneficiary, while dealing with the world at large. Thus, he acquires a legal personality. If there be more than one trustee, then all of them conjointly form a corporate or legal personality. This principle has been recognized under Order 31 Rule 1 of the Code of Civil Procedure. The Court has ample power to order that a suit on behalf of the beneficiary shall be represented by one or more trustees. Where there be order of the Court or if the requirement of the law, all trustees have to be joined as parties to the suit. The trust would not fail because one of the trustees had died after filing of the suit. The body of trustees is not dissolved. The trust vested in the remaining trustees shall continue. The rights and the duties of the trustees are not abrogated by the death of one of trustees. So in this case, the remaining trustees after the death of two trustees could continue the suit. The right to sue for and on behalf of the beneficiary continued. There was no abatement. This principle was recognized by the Privy Council in the case of Raja Anand Rao v. Ramdas Daduram and others, reported in AIR 1921 P.C. 123, wherein their Lordships stated that a suit, filed under Section 539 of the Code of Civil Procedure Code, 1882, could continue even after the death of person whom the Court granted permission to sue. It could be continued by a member of the public. This case was referred to with approval of the decision in the case of Charan Singh and Anr. v. Darshan Singh and others, reported in AIR 1975 SC 371 (at para 5 page 373). In somewhat similar circumstances, the Supreme Court in the case of Krishna Singh v. Mathura Ahir and others, reported in AIR 1980 SC 707, held that the death of Mahant during the pendency of a suit for ejectment brought by him against a trespasser would no cause the suit, to abate. It is true that the obligations of a Mahant are not that of a trustee but his office is akin to the office of a trustee. Therefore, the principle laid down in that case would apply.”
Effect of the death of a party in a suit under Section 92, CPC
In Charan Singh v. Darshan Singh, AIR. 1975 SC. 371, considering the effect of the death of a party in a suit under Section 92, CPC, the Supreme Court held that there was no abatement on the death of one of the plaintiffs. The Supreme Court referred to with approval the decision of the Privy Council in Raja Anand Rao v. Ramdas Deduram, 48 LA. 12. (See: C. Ramasamy v. The District Collector, 1990-2 LW 363; 1990-2 MLJ 562).
On death of a Trustee, new Trustee cannot be a Legal Representative
It is pointed out in Sadati Al Hussaini Al Jalali Trust v. Qasim Ganaie (J&K High Court, 03.05.2024) the Apex Court had held, in two cases, that on the death of a trustee new trustee (elected or appointed) cannot be said to be a legal representative of the deceased trustee but is a person on whom the interest of the Trust property devolves, under the provisions of Order 22 Rule 10; as it applies to him. The cases referred to by the J&K High Court are the following –
Charan Singh v. Darshan Singh,1975 (1) SCC 298;
Karuppaswamy v. C. Ramamurthy, 1993(4) SCC 41.
But, in G.F.F. Foulkes v. A.S. Suppan Chettiar, AIR 1951 Mad 296, it was held as under:
“When a suit is brought by several persons in a representative capacity, and if one of them dies, the suit does not abate because, the right to represent others of a class is not right which ipso facto survives to the legal representatives of the deceased party. The source of that right is the order of the Court permitting the party to represent others. In such a contingency, namely, the death of one of the parties to whom originally permission was granted to institute a suit in a representative capacity, it is for the Court to decide whether the suit can be allowed to be continued by the surviving person or persons or whether other persons should be joined. The proper procedure , in a case like this, is for the remaining person or persons to apply to the Court for directions and it is for the Court to decidewhether it will permit the remaining person or persons to whom the original sanction was given to continue to prosecute or defend the suit or appeal or it will give directions to bring on record additional person or persons.”
In a subsequent suit, Ram Kumar v. Jiwanlal, AIR 1960 Mad 288, the Madras High Court took a liberal view. It was held in this decision that a representative suit does not abate on the death of the representative as he or she can be substituted by another member of the plaintiff on defendant. (See also: Raja Anand Rao v. Ramdas Daduram, AIR 1921 PC 123, State of Rajasthan v. Mst. Parwati Devi, AIR 1966 Raj 210).
O 22 Not Apply to Repre. Suits where devolution (Not Substitution) takes place
In Jagadamba Bai & Beharilal Khandelwal v. Biswanath Jhunjhunwala, 1978 Cal HN 1050, it is observed as under:
8. In a case reported in AIR 1975 SC page 371 between Charan Singh v. Darshan Singh, Supreme Court has held that where the suit is filed in a representative capacity death of one of the plaintiffs during the pendency of the appeal, the appeal does not abate. In AIR 1921 PC at page 123 in the case of Raja Anand Rao v. Ramdas Dadu Rao, a distinction was drawn between a suit which was prosecuted by an individual for his own interests and persons suing as representatives of the general public.
9. Order 22 of the Civil Procedure Code provides the rules for recording the death and/or substitution of the parties.
Order 22 Rule 1 provides-
“The death of a plaintiff or defendant shall not cause a suit to abate if the rights of suit survive”.
Order 21 Rule 2 provides that
where there are more plaintiffs or defendants than one, and anyone of them dies and where the rights of a suit survive against the surviving defendants alone, the court shall cause an entry to that effect to be, made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs or against the surviving defendant or defendants.
Order 22 Rule 10 provides
in other cases of assignments, creation or devolution of interest during the pendency of a suit, the suit may by leave of the court be continued by or against the person to or upon whom such interest has come or devolved.
10. Order 22 does not apply to representative suits. Suits brought in a representative character can be continued under Order 22 Rule 20(10) by the successor in office. Where a trustee dies or retires or is removed and another is elected it is a case of devolution. In this respect the relevant cases are reported in AIR 1928 Cal. page 651 and also in AIR 1926 page 540. The right to apply in such a case is pending law and accrues from day to day and is therefore not barred by the law of limitation. In this respect, reference can be made to cases reported in 57 CWN page 710 and also AIR 1952 Pat. 323 and 30 Cal. page 609. In case reported in 36 CWN at page 816 (Sri Sri Keshab Rai Jeu Thakur & Raja Jyoti Prasad Sinsh Deo) a Division Bench judgment of this High Court presided over by Mitter J. and Bartley J. it was held that Order 22 Rule 10 of the Civil Procedure Code applies to a case of substitution of a person who had sued or held been sued against in a representative capacity. In the case reported in 27 CWN at page 710 which was referred in my order, Chatterjee J. and Pearson J. held that where the heirs are substitutedon the ground of devolution of interest such interest would be governed by Order 22 Rule 10. It further held that three months limitation does not apply to a case of devolution pending the suit. It further held that application under Order 22 Rule 10 can be made in the Appellate Court even over the devolution of interest when the case was pending before the Trial Court.”
Easement (सुखाधिकार) is a right possessed by the owner of a land (dominant land),
touse the land of another (servient land),
for the beneficial enjoyment of the dominant land.
By virtue of easement –
No Ownership is bestowed in the (servient) land (AIR 2004 All 359; AIR 1925 Bom 335).
No Possession is obtained in the (servient) land. (2011 (2) KLT 605; AIR 1925 Bom 335)
No Substantive Interestis created in the (servient) land. (2003 (1) KLT 320; AIR 1954 All 393).
SECTION 4 of the Indian Easements Act defines Easements as under:
“An easement is a right
which the owner or occupier of certain land possesses,
as such,
for the beneficial enjoyment of that land
to do and continue to do something, or to prevent and continue to prevent something being done,
in or upon, or in respect of, certain other land not his own.”
Significance of Section 7, Easements Act
Section 7, Easements Act further explains legal incidents of Easement
In the heading (Easements restrictive of certain rights) itself it is explicated that easement is only “restrictive” to certain rights; that is,
it only ‘restricts’ exclusive (civil) right to enjoy a property by its owner (servient owner); and
it does not confer a right to ‘exclude’ the servient owner or it ‘extinguishes’ his rights.
Section 7 Easements Act, 1882
“Sec. 7. Easements restrictive of certain rights: Easements are restrictions of one or other of the following rights (namely):—
(a) Exclusive right to enjoy. —The exclusive right of every owner of immovable property (subject to any law for the time being in force) to enjoy and dispose of the same and all products thereof and accessions thereto.
(b) Rights to advantages arising from situation. —The right of every owner of immovable property (subject to any law for the time being in force) to enjoy without disturbance by another the natural advantages arising from its situation.
Illustrations of the Rights above referred to –
(a) The exclusive right of every owner of land in a town to build on such land, subject to any municipal law for the time being in force.
(b) The right of every owner of land that the air passing thereto shall not be unreasonably polluted by other persons.
(c) The right of every owner of a house that his physical comfort shall not be interfered with materially and unreasonably by noise or vibration caused by any other person.
(d) The right of every owner of land to so much light and air as pass vertically thereto.
(e) The right of every owner of land that such land, in its natural condition, shall have the support naturally rendered by the subjacent and adjacent soil of another person.
Explanation.—Land is in its natural condition when it is not excavated and not subjected to artificial pressure; and the “subjacent and adjacent soil” mentioned in this illustration means such soil only as in its natural condition would support the dominant heritage in its natural condition.
(f) The right of every owner of land that, within his own limits, the water which naturally passes or percolates by, over or through his land shall not, before so passing or percolating, be unreasonably polluted by other persons.
(g)The right of every owner of land to collect and dispose within his own limits of all water under the land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner’s limits without material alteration in quantity or temperature.
(i) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.
(j) The right of every owner of land abutting on a natural stream, lake or pond to use and consume its water for drinking, household purposes and watering his cattle and sheep; and the right of every such owner to use and consume the water for irrigating such land and for the purposes of any manufactory situate thereon, provided that he does not thereby cause material injury to other like owners.
Explanation.—A natural stream is a stream, whether permanent or intermittent, tidal or tideless, on the surface of land or underground, which flows by the operation of nature only and in a natural and known course.
Section 7 lays down –
First – easement is a restriction to the civil right of exclusive enjoyment of immovable property by its owner (Servient owner). That is, the civil right of the servient owner, to use his property without being disturbed by anybody, is meddled by virtue of the provisions of the Easement Act.
Second – easements are also rights that stand against the (otherwise) civil right of owner of an immovable property not to shoulder the burden of supporting-with the natural advantages arising from its situation (to the neighbours property).
What is stated here is, by virtue of the statutory provisions of the Easement Act the dominant owner (neighbour) can enjoy (i) the rights recognised by the Easements Act in the servient land and (ii) the natural advantages arising from its situation (though they may negatively affect the civil rights of the servient owner).
Two Natural Rights to Flow Water (in Sec. 7, Illustrations – h and i)
Illustration (h) reads as under:
“(h) The right of every owner of land that the water of every natural stream which passes by, through or over his land in a defined natural channel shall be allowed by other persons to flow within such owner’s limits without interruption and without material alteration in quantity, direction, force or temperature; the right of every owner of land abutting on a natural lake or pond into or out of which a natural stream flows, that the water of such lake or pond shall be allowed by other persons to remain within such owner’s limits without material alteration in quantity or temperature.”
Illustration (i) reads as under:
(i) The right of every owner of upper land that water naturally rising in, or falling on, such land, and not passing in defined channels, shall be allowed by the owner of adjacent lower land to run naturally thereto.
Drain Water is a “natural inherentright“,independent of easement
This natural right of draining water that naturally falls on a property (by rain or rises in the same by other means) to the adjacent lower property is a natural right inherent in property (Viswanath Mohapatra v. Bhramdhar, ILR 1966 Cal. 118). Therefore it can be said to be ‘independent of easement‘ (Yesoda v. Yusuff Haji, 1991-2 KLT 306). The Bombay High Court in Sitaram Motiram v. Keshav Rachandra, AIR 1947 Bom 4, observed that this right is strictly not an easement.
Natural Right is Independent of Easement Right
In Secretary of State for India in Council v. Sannidhiraju Subbarayudu, AIR 1932 PC 46, it was pointed out – natural right of support could be distinguished from the easement of enhanced support. In K. Anantha Bhat v. K. M. Ganapathy Bhatta, AIR 1981 Ker 102, it was held that natural right is different from a right of easement, and that very owner of land abutting a natural stream has a natural right to the user of water in the stream.
See also:
District Board of West Tanjore v. Secretary of State, AIR 1943 PC 133;
Rama Bhatta v. Krishna Bhatta, 1962 Ker LJ 45;
Kalyani v. Bhaskaran, ILR 1993-2 Ker 689; 1993-1 KLT 415,
Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450; (AP)
Adikanda Swain v. Debaraj Mishra, 2015 Supp2 OLR 285 (Ori).
English Law
Kalyani v. Bhaskaran, ILR 1993-2 Ker 689; 1993-1 KLT 415, referred the following authorities that say as to ‘natural tight’ and ‘easement’.
Chishire & Burn (13th Edition page 499). It reads:
“Thus “ex jure naturae’, an owner has a right to so much support from his neighbour’s land as will support his own land, unincumbered by buildings, at its natural level…. Such natural rights differ from easements in at least two respects – their existence does not depend upon some form of grant, and they cannot be extinguished by unit of seisin”.
R.E. Megary and H.W.R. Wade (Law of Real Property – 4th Edn. Page 814) highlight the distinction between an easement and a natural right:
“The most obvious difference between an easement and a natural right is that a natural right exists automatically but an easement must be acquired.”
Lord Denning describes the right to lateral support, very graphically in Crow v. Mood (1971) 1QB 77):
“It is not an easement strictly so called because it involves the servient owner in the expenditure of money. It was described by Gale as a “spurious kind of easement’. But it has been treated in practice by the courts as being an easement….”
In Davis v. Powell (1921 LJ. Ch. 40) it was observed:
“A proprietor of land has a right to support of it, not as an easement, but as an ordinary right of property necessarily and naturally attached to the soil.”
Difference Between ‘Natural Right’ And ‘Right Of Easement’
In Namitarani @ Pratimarani Khuntia v. State of Odisha, AIR 2019 Ori 41, it is said as under:
“11. The difference between ‘natural right’ and ‘right of easement’ before stated for proper appreciation.
In Peacock on Easements it was stated:-
“Natural rights are by law annexed to, and are inherent in a land exjure nature, of natural right, and exist prima facie in all cases as between a landowner and his neighbour, otherwise, as Mr. Goddard says in his work on Easements (7th Edn. P.3) no man would be assured that his land would not at any moment be rendered useless by a neighbour’s act otherwise lawful or a neighbor might deprive a landowner of the benefit of certain things which in the course of nature have been provided for the common good of mankind.”
The Division Bench in Girish Chandra Sahu and others –V- Nagendranath Mitra and others; 1978 (1) CWR 348, case held:
“Natural rights though resembling easements in some respects, are clearly distinguishable from them.
The essential distinction between easements and natural rights appears to lie in this that easements are acquired restrictions of the complete rights of property, or, to put it in another way, acquired rights abstracted from the ownership of one man and added to the ownership of another, whereas natural rights are themselves part of the complete rights of ownership, belonging to the ordinary incidents of property and are ipso facto enforceable in law.”
12. The Madras High Court in the case of Bharathamatha Desiya Sangam, Madhavaram & Anr v. Roja Sundaram & Ors, AIR 1987 Madras 183, while dealing with right to access to highways held that owner of land abutting road is entitled to access to it from every point of his boundary. He is entitled to enforce his right notwithstanding the fact that there is some space available between the offending constructions. The Court further observed that the offending constructions would constitute a continuing wrong and though suit is filed after construction, it would be maintainable.
The Court in the foregoing decision referred to the case of Municipal Committee, Delhi v. Mohammed Ibrahim, AIR 1935 Lah 196, wherein it was laid down that to the owners of houses abutting a public highway, the question of frontage means a great deal and if anything is done by those in whom the highway vests which interferes with the rights of the owners with regard to the highway and which tends to diminish the comforts of the owners, they will undoubtedly have an actionable claim against the encroachers.
In the case of Patna Municipality v. Dwarka Prasad, AIR 1939 Pat 683, it was held that the owner of the land abutting a roadway is entitled to access to that roadway at all points on his boundary.
In the case of Damodara Naidu v. Thirupurasundari Ammal, AIR 1972 Mad 386, it was held that where there is a public highway, the owners of land adjoining the highway have a right to go upon the highway from any point of their land and if that right is obstructed by anyone the owner of the land abutting the highway is entitled to maintain an action for the injury, whether the obstruction does or does not constitute a public nuisance.”
Right to Drain Water is a “Restricted Easement“
In Nadupuri Narayana v. Ijjada Narayana, AIR 2002 AP 387, it is held as under:
“(11) The right of every owner of upper land that water naturally rising in, and not passing in defined channels is recognized by law as restricted easement. The right of every owner of the land to the natural flow of water by natural stream without interruption and without material alterations is also recognized.”
Right of natural drainage includes discharge through a particular route
Kerala High Court held in Yesoda v. Yusuff Haji, 1991-2 KLT 306, as under:
“8. Every property owner has a natural right of drainage of surface water in the property lying at a lower level. The owner of land has the natural right not only to collect and retain within the limits of his own land surface water not flowing in a defined channel, but also a right to draw it off on to his neighbours’ lower land or put it to whatever use he pleases.
9. This principle applies to rain or flood waters naturally accumulating on land of higher level which must find its level by draining into the lower land. This is a natural right independent of an easement, grant or custom.
10. This right of an owner of a land lying on a higher level could be an easement or quasi easement right as well. Easement of drainage is the right of the owner of one land to cause the water on his land to flow in defined channel on the land of his neighbour. This is also a natural right of the owner of the higher land that the water rising in or falling on his own land, shall be allowed by his neighbour owning the lower land to run naturally thereto. The natural right mentioned above isnot restricted to natural drainage of water from higher to lower land but includes discharge of it through a particular route at a specified point. This natural right is a right which can be claimed in respect of water naturally rising in, or falling on, one’s land and not passing in defined channels. The right of an upper proprietor to throw natural water on the lower land is a natural right inherent in property. The lower riparian proprietor has no right to prevent such natural flow or to throw the flow back on to the upper riparian property.”
The right to discharge water through a particular route at a specified point is considered by the Madras High Court also in in Samiappa Gounder v. Subbanna Gounder, 2017-4 LW 341, after referring Supreme Court decision in Patneedi Rudrayya v. Velugubantla Venkayya, AIR 1961 SC 1821. It held as under:
“16. Taking note of the said observation, this Court is of the opinion that the plaintiffs have no right of easement to drain the water through “Vadikal Kavuru” as claimed in the plaint. However, when there is accumulation of excess water due to natural rain fall, the natural right of draining the water lower riparian cannot be taken away or deprived by means of artificial blockage. Therefore, whenever there is excess water, accumulated in the land of the plaintiffs, by natural means, riparian land owner shall not prevent the draining of excess water through the point ‘X’.“
Draining water through Natural Drain is a Natural Right.
The Supreme Court, in Patneedi Rudrayya v Velugubantla Venkayya, AIR 1961 SC 1821, considered the right of owner of upper land to pass flood water on to lower land based upon Section 7 Illustration (i) of the act, and it was held as under:
“Where a right is based upon the Illustration (i) to section 7 of the Indian Easements Act, 1882 (5 of 1882), the owner of higher land can pass even flood water received by him on to the lower land, at any rate where the flood is a usual or a periodic occurrence in the locality. The High Court has quoted a passage from Coulson and forbes on Waters and Land Drainage, 6th ed, P. 191, and a passage from the judgment in Nield v London and North western Railway, (1874) 10 Ex 4, in support of its conclusions. In the passage in Coulson and Forbes it is stated that the owner of land must not take active steps to turn the flood water on to his neighbour’s property. Here, the dam erected by the defendants 1 and 2 stems flood waters going from plaintiffs land down to the defendant’s land and so the passage does not support the conclusion of the High court. The decision in Nield’s case, (1874) 10 Ex 4 is further based on the common enemy” doctrine. In that case also there are certain observations which would militate against the conclusion of the High Court. For instance:
“where, indeed, there is a natural outlet for natural water, no one has a right for his own purposes to diminish it, and if he does so he is, with some qualification perhaps, liable to any one who is injured by his act, no matter where the water which does the mischief came into the water course. “
Of course, the court in that case was dealing with water flowing along a natural water course. But the point is whether a person has a right to create an impediment in the flow of water along its natural direction. Now the water on a higher ground must by operation of the force of gravity flow on to lower ground. Where the owner of the lower ground by creating an embankment impedes the natural flow of water he would be obstructing the natural outlet for that water. It makes little difference that the water happens to be not merely rain water but flood water provided the flood is of the kind to which the higher land is subjected periodically.”
Inferior Tenement Is Obliged To Receive The Water Which Falls From The Superior
In Gibbons v. Lenfestey, AIR 1915 PC 165, the Privy Council held as follows:
“Where two contiguous fields one of which stands upon higher ground than the other, belong to different proprietors, nature itself may be said to constitute a servitude on the inferior tenement by which it is obliged to receive the water which falls from the superior. If the water, which would otherwise fall from the higher grounds insensibly without hurting the inferior tenement, should be collected into one body by the owner of the superior in the natural use of his property for draining or otherwise improving it, the owner of the inferior is without the positive constitution of any servitude, bound to receive that body of water on his property.” (Quoted in: Veniram v. Karam Singh, ILR 1993 MP 179; Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450)
Full Bench of Madras High Court in Sheik Hussain Sahab v. Pachipulusu Subbavya, AIR 1926 Mad. 449, the Privy Council Judgment observed that the lower heritor cannot object so long as the flow whether above or below ground is due to gravitation or unless it has been unduly and unreasonably increased by operations which are in aemulationem vicini. (referred to in: Veniram v. Karam Singh, ILR 1993 MP 179)
In Kaosal Mohan Pawar v. Kodu Dajiba Pawar, AIR 1946 Nag. 75, Bose, J. observed as under:
“The rightful possessors of land on a higher level than the defendant’s with a natural drainage in that direction have the right to discharge the surplus rain water which falls on their land on to the defendant’s land, and the defendant is bound to accept this water. He cannot raise artificial barriers on his land which will cause the water to accumulate on another’s property. He cannot do this even if it is necessary to protect his own property.” (quoted in: Veniram v. Karam Singh, ILR 1993 MP 179)
In Veniram v. Karam Singh, ILR 1993 MP 179, it was observed that there should be no doubt that owner of a higher adjacent field has a right to uninterrupted flow of water to the lower field.
In C. Venkatareddi v. Kotireddi, it was held by the Andhra High Court that right of owner of a high land to drain off the natural surface water to the adjacent lower lands is incidental to the ownership of the land. In Seshayya V. Seetayya, referring to Section 7 of the Act held that rights of every owner of upper land that water naturally raising in, or falling on the said land shall be allowed by the owner of the adjacent lower land to run naturally thereof, but excess water from the land cannot be allowed to flow into the land of defendants, since it is not surface water or natural water. (Both decisions were referred to in: Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450)
Natural Right Even if Not Pleaded by Plaintiffs, Being Proved can be Granted
Madras High Court held in Samiappa Gounder v. Subbanna Gounder, 2017-4 LW 341 as to pleading of natural right as under:
“13. It is found from the judgment of the trial Court that though the Court has found that there is natural right inured upon the plaintiffs to drain the water collected, naturally, since, they have pleaded their right to drain water based on the right of easementand since, they have failed to prove the fact that the time immemorial, they have been draining the water through “Vadikal Kavuru” as pleaded in the plaint, it has declined to grant the relief sought.”
After referring decision of the Supreme Court in Patneedi Rudrayya v. Velugubantla Venkayya, AIR 1961 SC 1821, the Madras High Court continued as under:
“18. Under such circumstances, while dismissing the Second Appeal, on the ground the substantial questions of law raised are not in favour of the plaintiffs, and no easementary right by prescription proved by the plaintiffs, the natural right though not pleaded by the plaintiffs, being proved, to preserve the natural right of draining the excess water collected by natural course of event, it is necessary to point out that the survient land holder cannot block the flow of naturally collected water getting drained through point ‘X’ to the canal marked as ‘AB’.”
Natural Right – No Need to Pray for a Declaration
The Madras High Court (Madurai Bench) in Gowri Bai v. Elizabath, (2011) 2 CTC 266, observed as under:
“17. Therefore, from the passages from the Book of Easements and License by Katiyar and also as per the judgments of our Court, it has been made clear that the water on a higher ground must by operation of the force of gravity flow on to the lower ground and if the owner of the lower ground raised an obstruction to the natural flow of water, he can be restrained if it causes damage to the owner of the land on the high level. No doubt, in the judgment reported in Saraswathi v. S. Ganapathy, 2001 (4) SCC 694, the Hon’ble Supreme Court has held that when two properties were owned by a single person and subsequently he sold those two properties to different persons, no easementary rights regarding the drainage of water could have been acquired by one owner and the person cannot claim any right over the land of another by contending that previously the owner was allowing the rain water to drain from the roof on the other property and therefor, he also entitled to have the same facility after his purchase.
20. Though the plaintiff could have applied for the relief of declaration in a Suit for injunction, the Court is entitled to give the findings regarding the rights of the parties and as a matter of right, injunction can be granted only when the Court gives the finding that the Plaintiff’s are entitled to prevent the Defendants from causing any obstruction or damages to the Plaintiffs property. Therefore, in a Suit for injunction, the Court has no necessarily give a finding regarding the right of the Plaintiffs. Therefore, it cannot be considered that without the prayer for declaration, the suit for bare injunction is not maintainable. As stated supra, the Plaintiffs are entitled to take the water which flows naturally from the western tank street through the Defendants property and when the Plaintiffs are entitled to allow the natural water to flow through the Defendants’ property, they are entitled to the relief of injunction, and there is no need to pray for a declaration that they are entitled to take the water from the Defendant’s property. Hence, the Suit is not bad for not praying for the relief of declaration and the third substantial question of law is also answered in favour of the Appellants.” (quoted in: C. Mani v. P. R. Sadhasivam, 2017-2 MLJ 271)
No Natural Right to flow water from the roof to the land of his neighbour
The Supreme Court, in Saraswathi v. S. Ganapathy, 2001-4 SCC 694, observed as under:
“19. …..As the 1st respondent had purchased the property he was entitled to construct on his own property. Mr. Sivasubramaniam seriously submitted that the 1st respondent was bound to allow water from the roof of the triangular room to flow on to the land of the 1st respondent as it had always done in the past. Mr. Sivasubramaniam seriously contended that the 1st respondent could not construct on his own land in a manner which would prevent the flow of such water into the 1st respondent’s land. In our view, this argument merely needs to be stated to be rejected. No person can have a right to have water from his property flow on to the land of his neighbour. No such right was granted under the sale deed. No such easementary right can be claimed in law. All that the appellants can claim is to see that water from the roof of his house is allowed to flow on to his own land.” (quoted in: C. Mani v. P. R. Sadhasivam, 2017-2 MLJ 271)
Drain Off Natural Water Is Incidental to the Ownership
The Bombay High Court in Sitaram Motiram v. Keshav Rachandra, AIR 1947 Bom 4, the Hon’ble dealt in detail the easement right of the dominant land owner vis-a-vis the right of the survient land owner in respect of discharging excess water. The Bombay High Court observed as under:
“9. … there is a natural right of drainage from higher lands to lower lands of water flowing in the usual course of nature in undefined channels. This principle is embodied in illust. (I) to S. 7, Easements Act, which says that every owner of upper land has a right that water naturally falling on such l and shall be allowed by the owner of the adjacent lower land to run naturally thereto. This right is incidental to the enjoyment of property and partakes of all the characteristics of an easement, but is really a part of the total content of the proprietary rights. This natural right exists ab initio and does not depend for its creation on prescription, grant or custom, but is inherent in the geographical configuration of the property. As this right is strictly not an easement as defined in the Indian Easements Act, S.23 of that Act does not come into play. Under that section the dominant owner may from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose additional burden on the servient heritage. If S.23, Easements Act, could have been applied to the present case, the matter could have been easily disposed of, for it is obvious that the method of enjoyment of the right of the owner of the upper land to discharge water on the adjacent lower land could be altered only so far as it does not impose additional burden on the servient tenement. In the present instance the defendant could have altered the method of discharging his surface water on to the plaintiff’s land in any manner he pleased provided that he did not cast additional burden on the plaintiff’s servient tenement. As in point of fact additional burden has been cast, the defendant could be held to have contravened the provisions of S.23, Easements Act.” (quoted in: C. Mani v. P. R. Sadhasivam, 2017-2 MLJ 271)
In Nadupuri Narayana v. Ijjada Narayana, AIR 2002 AP 387it is held as under:
“( 11 ) THE right of every owner of upper land that water naturally rising in, and not passing in defined channels is recognized by law as restricted easement. The right of every owner of the land to the natural flow of water by natural stream without interruption and without material alterations is also recognized. The right, however of an owner to claim a share in the water in a well constructed in a separate and distinct land is not recognized in law. Indeed Section 8 of the Transfer of Property act, 1882 lays down the effect of transfer of property. According to this Section, the transfer of property passes forthwith to the transferee all the interests, which the transferor is capable of passing in the property and the legal incidents thereof.”
To Drain water through Artificial Channels, Perfection of Easement Required
Commentaries on Easement by Peacock says:
“Every land owner has a natural right to deal with his surface drainage-water has he pleases. He can either let it find its way to his neighbour’s land if that is at a lower level than his own, or he can collect it or use it as he pleases on his own land, subject always to the reservation that if he allows it flow for the prescriptive period through defined and permanent artificial channels on to his neighbour’s land, his neighbour may acquire a right to its continuance, and, conversely the enjoyments of an out let for his surplus water for over a period of twenty years through defined artificial channels, may give him a right to the continuance of the outlet.” (quoted in Sitaram Motiram v. Keshav Rachandra, AIR 1947 Bom 4)
No easement right can be acquired to surface water not flowing in a stream
Section 17(c) of the Easements Act lays down that no easement right can be acquired to surface water not flowing in a stream and not permanently collected in a pool, tank or otherwise. Sec. 17 reads as under:
17. Rights which cannot be acquired by prescription:
Easements acquired under section 15 are said to be acquired by prescription, and are called prescriptive rights. None of the following rights can be so acquired
(a) a right which would tend to the total destruction of the subject of the right, or the property on which, if the acquisition were made, liability would be imposed;
(b) a right to the free passage of light or air to an open space of ground;
(c) a right to surface-water not flowing in a stream and not permanently collected in a pool, tank or otherwise;
(d) a right to underground water not passing in a defined channel.
Illustration G to Section 7(b) also speaks of the right of every owner of land to collect and dispose within his own limits, of all water under land which does not pass in a defined channel and all water on its surface which does not pass in a defined channel.
In Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450, it is held as under:
“30. Section 17(c) of the Act does not prohibit the acquisition of easementary right regarding the trickling water from higher to lower plots in well defined channel as held by the Privy Counsel in Baswantappa v. Bhimappa. It is also clear from Section 17 (c) of the Act that such right to discharge excess water or collected rain water to the land of lower owner only for the purpose of discharging surface water and not any other water. But here the plaintiffs wanted to discharge or let out excess or collected rain water from their land, who is upper land owner to the land of the defendant, who is lower land owner without any defined channel or stream.”
The High Court (Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450) pointed out – in Dharnidhar Sahu v Bhagirathi Sahu, AIR 1956 Ori 89, referring Section 17(c) of the Act, it was observed the following –
“Two principles thus emerge: firstly that an owner of land is entitled to collect and impound all surface water passing over his land and secondly, that no prescriptive right can be acquired in respect of such water against the servient owner. In other words, unless the water flows through a defined channel no right can be acquired either by lost grant or prescription to the use of such water.”
The High Court (Medapti Nagi Reddy v. Sathi Satyanarayana Reddy, 2017-1 ALD 264; 2016-6 ALT 450) after quoting Dharnidhar Sahu v Bhagirathi Sahu, 1956 AIR Ori 89, continued as under:
“22. The main feature of surface water is its inability to maintain its identity and existence as a water body. Water flowing into a field from a known channel and passing along the field onwards into another field though not over a confined track in the former field but along its whole area is not surface water as held by this court in Venkataramanaiah v. Subbaramayya following the principles laid down by the Madras High Court in a judgment reported in Adinarayana v. Ramudu.
23. In Adinarayana referred to supra, the Madras High Court had an occasion to decide similar question and held that the chief characteristics of surface water is its inability to maintain and existence of water body.
24. Merely because water spreads itself over the upper field before it gets into the lower field, it does not fulfill the definition of surface water. If it flows in a well defined course into an upper land spreads itself over the whole field which is irrigated by it and then over the field ridge to another field or into an intermediate channel through which it comes into another field, it can be treated as surface water as held by this Court in Venkataramaiah referred to supra.
25. Here, the plaintiffs claimed both natural right of discharging rain water and excess water to the field D as shown in the plan from field P. Such right is natural right and question of claiming easement by prescription does not arise, it is natural servitude. The other right is to discharge or let out excess water, such right cannot be acquired by prescription.
26. In the present case, the excess or collected rain water is to be let or discharge into the field of the defendant, as the collected water from the field of deitys land is flowing into the land of the plaintiffs, but not in a definite course of channel or a stream. In such case, the question of easement by prescription as contemplated under Section 15 does not arise in view of bar under Section 17 (c) of the Act, since the acquisition of such right i.e letting out or discharge of excess water into the land of lower owner is impermissible, except by natural servitude of discharge natural surface water, but not collected water.”
In Narsoo Bhandari v. Madan Lal Tulsiram, ILR 1975 MP 843, after analysing law on the subject, it is held as under:
“(54) A survey of the case law shows that rain water coming from upper lands to lower lands according to topographical features of the lands is surface water and it maintains that character until it begins to flow in a defined channel. Till then it cannot be said to flow in a stream and is not subject to any right of easement. To the same effect is the following statement by Peacock:
“it is settled Law both in India and England that water must flow in a defined channel whether natural or artificial, to become the subject of an easement by prescription. “
The Law relating to easements in British India, 2nd edition, p. 118] surface water may also become subject of an easement when it gets permanently collected in a pool or tank. Section 17 (c) of the Easements Act specifically enacts that “a right to surface water not flowing in a stream, and not permanently collected in a pool, tank or otherwise” cannot be acquired by prescription. The word “stream” in this section has been used in a technical sense, as explained above, meaning water flowing in a defined channel whether natural or artificial and not in a generic sense of mere flow of water. Surface water before it enters a defined channel remains the property of the owner of the land over which it flows and he can deal with it in any manner he likes. The owner of the land over which the surface water flows may collect the water by construing a tank and the water so collected will still remain the property of the owner of the land but it may then become subject of an easement by prescription. But, as already stated, until the surface water enters a defined channel or gets collected in pool or tank no easement by prescription can be acquired in it.”
Public will have every right to use every inch of Public Property
In Tata Seshaiah v. Maruboyina Sankaramma, 2018-2 ALD 380 (AP), it is observed as under:
“The public will have every right to use every inch of public property and that right is a natural right but not prescribed by easement. To buttress her argument, she relied upon the following judgments.
Mst. Bhagwanti v. Mst. Jiuti AIR 1975 Allahabad 341
S. Someswar Rao v. S.Tirupatamma 1988 (2) Law Summary 223
Movva Butchamma v. Movva Venkateswararao AIR 1969 AP 136.”
If a tenant claims title on the land leased, • owner can recover the land ‘on the strength of his Title’. Forfeiture of Lease (Sec. 111(g), TP Act, 1882) arises when – • (1) lessee breaks a condition; • (2) lessee renounces lease & claim title; or • (3) lessee is adjudicated an insolvent. In case of forfeiture, •Landlord who is the Owner can (i) file a recovery suit ‘on Title’ • or, (ii) he can file a suit invoking Sec. 111(g), TP Act . •Landlord, who is not the Owner, • has only one remedy – to invoke Sec. 111(g), TP Act, for recovery.
Introduction
If a tenant claims title on the land leased, the landlord having ownership in the property has two options against the tenant-
1. File a recovery suit ‘on Title’. (It is a common law right.)
2. File a recovery suit ‘on Forfeiture’ of tenancy. (The principle and procedure thereof are contained in Section 111 Clause (g) of the Transfer of Property Act, 1882. Under this provision. notice in writing must have been issued to the tenant)
If the landlord is not the owner of the property (Eg. An agent who leased-out a property; or, a lessee who gave sub lease), he has no other option but to file the suit ‘on Forfeiture’ of tenancy, under Section 111 Clause (g) of the TP Act.
Note: ‘Agricultural leases’ are exempted from the provisions of Chapter V of the TP Act (that deals with ‘leases of immovable property’) as per Section 117 of the TP Act.
Nonetheless, it is established (Amrit Lal v. Mamleshwar, AIR 1973 Del. 75, Lokman Lodhi v. Narmadabai, AIR 1953 SC 228) that such landlords can recover such agricultural properties applying the ‘principles’ of forfeiture in Clause (g) of Section 111 of the TP Act; because the doctrine of forfeiture is a common law doctrine based on justice, equity, and good conscience.
Similarly, even though ‘grants’ are not referred to in Section 111, grantors can sue the grantees for recovery of the granted land if the grantees forfeit the grant claiming title.
Right on Forfeiture is a Right Arose in Common Law
Section 111, Transfer of Property Act, 1882 says as to forfeiture as to lease. It being based on the common law principles as to justice, equity and good conscience, the principles can be applied to ‘grants’ also; for, (i) the provisions of the Transfer of Property Act are not applicable to ‘grants’ and (ii) no provision of law (as regards grant) stands contrary these principles (Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730).
Section 111, Transfer of Property Act reads as under:
“111. Determination of lease– A lease of immoveable property determines—
(a) … to … (f)
(g) by forfeiture; that is to say,
(1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or
(2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or
(3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event;
and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease;
(h) ….”
Sec. 117 of the Transfer of Proper Act provides as follows:
“117. Exemption of leases for agricultural purposes – None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication.”
Principles of S. 111 TP Act Apply To Agricultural Leases
Though Agricultural leases are exempted (from the whole Chapter) under Sec.117 of the Transfer of Proper Act, the right of forfeiture (for claiming title as owner, by tenant) being a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Ratan Lal v. Vardesh Chander AIR 1976 SC 588), it can be applied in “agricultural leases” also, if no express prohibition.
Analogy with Sec. 116 TP Act (‘Effect of holding over’)
Sec. 116 of the Transfer of Property Act speaks about ‘effect of holding over’. The principles thereof apply fully to agricultural leases also; despite the fact that agricultural leases are entirely exempted from the provisions of the Chapter V of the TP Act (that deals with ‘leases of immoveable property’), as laid down in Section 117 of the TP Act. The same analogy can be profitably extended to ‘forfeiture’ in Sec. 111.
Sec. 116 of the Transfer of Property Act reads as under:
116. Effect of holding over:If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.
KM Joseph, J. held in Vasudeva Menon v. K.J. Plantation, 2012 (3) KerLT 730, as under:
“Whether the principle of Sec. 116 of the Transfer of Property Act will apply in regard to agricultural lease in view of Sec.117 Act ? …
… But there we may notice that the principle of Sec. 116 would apply even to agricultural leases on the basis of it embodying principles of equity, justice and good conscience. In this connection we may refer to a Bench decision of the Delhi High Court in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75).”
The relevant passage in Amrit Lal v. Mamleshwar (AIR 1973 Del. 75) reads as under:
“16. Shri Bindra placed reliance on Section 117 of the Transfer of Property Act which exempts leases for agricultural purposes from the provisions of Chapter V of the Transfer of Property Act. In Anantmal v. Lala, AIR 1964 Raj 88, it was held that the principle underlying Section 116 of the Transfer of Property Act is based upon considerations of equity, justice and good conscience and in the absence of anything to the contrary the provisions are applicable to cases not governed by the Transfer of Property Act. The principles of Section 116 are applicable to leases of agriculture lands. Similarly in Alphanso Pinto v. Thukru Hengsu, AIR 1955 Mad 206, it was held if there is no agreement fixing the terms of a new lease, the terms of the old lease must be deemed to be applicable. Where the tenant holds over after the expiration of the term, he holds subject to all the covenants in the lease which are applicable to the new situation. Therefore, clause 9 must be held to be one of the terms of the tenancy by holding over. The tenancy must be held to be one subject to the covenants in respect of Sardarkhti rights contained in the original lease deed. The rule that principles of equity, justice and good conscience apply to agricultural leases and that the principle contained in Section 116 of the Transfer of Property Act is a principle of equity, justice and good conscience has been enunciated in a number of rulings, for example in
Mt. Kesarbai v. Rajabhau Sadasheo Rao, AIR 1944 Nag 94,
Nanjappa Goundan v. Rangaswami Gounda, AIR 1940 Mad 410,
Moore v. Makhan Singh, Air 1919 Pat 254,
Eayo George v. Kacki Muthaliyar, AIR 1953 Trav-Co 299,
Bainani Properties Private Ltd. v. M. Gulamali Abdul Hossain and Co., and
Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)”
Forfeiture on Claim of Ownership By ‘Grantee’
There is no specific provision for forfeiture of grant for claiming ‘title as owner’, by Grantee (similar to the forfeiture of tenancy for claiming ‘ownership’ by a tenant under Sec. 111(g) of the TP Act).
Will claim of ownership (over the granted-property) by Grantee amount to forfeiture?
The answer is – Yes. Following are the reasons:
1. Applying the Principles of ‘Forfeiture of Tenancy’ it being on principles on justice, equity and good conscience. The right of forfeiture (for claiming title as owner, by tenant, under Sec. 111(g), TP Act) is a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Rattan Lal v. Vardesh Chander AIR 1976 SC 588).
2. Analogy to Holding-over in agriculturallease. The right of ‘holding over’ on termination of lease (if lessor accept rent even after termination of the lease period) is provided under Sec. 116 of the TP Act. Though Sec. 117 of the TP Act exempts ‘leases for agricultural purposes’ (from the whole Chapter), it is pointed out in a good number of decisions that the principles thereof (holding over) would apply to agricultural leases also, if no express prohibition, for it contains the principles of justice, equity and good conscience. (See: Amrit Lal v. Mamleshwar, AIR 1973 Del. 75.)
3. Analogy to Forfeiture (itself) in agricultural lease.agricultural leases, being specifically exempted in Sec. 117 (it may be argued), the principles on justice, equity and good conscience may not apply to them as regards forfeiture (under Sec. 111).
But, the principles thereon (forfeiture) definitely apply to grants, for it is not governed by the TP Act (See: Namdeo Lokman Lodhi v. Narmadabai, AIR 1953 SC 228.)
Grants Act, 1895 and Eviction of tenants from Govt. Lands
By the advent of the Grants Act, 1895, provisions of the TP Act were not applicable to govt. lands. Therefore, (i) no statutory notice – under Sec. 106 TP Act – was necessary for evicting tenants from Govt. lands; (ii) no bar to apply the provisions in Sec. 111 (g) of the TP Act to invoke forfeiture provision (for claiming title or violating any provision in the agreement) with respect to agricultural tenancy lands owned by Govt.; for, the right of forfeiture is a right that arises in common law (that is, on the principles of justice, equity and good conscience (Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1; Rattan Lal v. Vardesh Chander AIR 1976 SC 588).
Note: Grants Act, 1895 apply to all States except to the “Part B States”. Under States Reorganisation Act, 1956, Part B states were Patiala and East Punjab States Union (PEPSU), Hyderabad, Jammu and Kashmir, Travancore-Cochin. Madhya Bharat, Mysore, Rajasthan, and Saurashtra.
Does the ‘Forfeiture Clause’ Apply to Agricultural Tenants and Grantees
Agricultural leases are exempted (from the whole Chapter) under Sec.117 of the TP Act. And, ‘Grants’ are not mentioned in Sec. 111.
Does it mean –
1. There will be no forfeiture of tenancy even if the agricultural tenant or Grantee ‘forfeit’ tenancy or grant by claiming ownership or adverse possession?
2. “Notice in writing to the lessee of his intention to determine the lease” is essential under Sec. 111(g) (on his claiming title). Whether it is required to be issued to (i) agricultural tenants and (ii) Grantees on forfeiture of tenancy/grant (on his claiming title) – on principle of justice, equity and good conscience?
As shown above, though Sec. 117 of the TP Act exempts ‘leases for agricultural purposes’ (from the whole Chapter), it is pointed out in the following decisions that the principles as to ‘forfeiture’ would apply to agricultural leases also, for it contains the principles of justice, equity and good conscience. The decisions are::
Maharaja of Jaipore v. Rukmini Pattamahadevi, 46 Ind App 109; AIR 1919 PC 1;
Ratan Lal v. Vardesh Chander AIR 1976 SC 588.
The potential argument in favour of issuance of Notice –
The notice in writing under Sec. 111(g) of the TP Act embodies a principle of justice, equity and good conscience and therefore there can be no forfeiture unless notice in writing is given to (i) agricultural tenants (Though agricultural leases are exempted, from the whole chapter, under Sec.117 TP Act) and (ii) Grantees.
But, the following are shown in support of the view that no written notice is needed in cases of (i) agricultural tenants and (ii) Grantees–
This provision was introduced by 1929 Amendment only.
This provision for Notice was not in force in English law. (Hence doctrine of justice, equity and good conscience ‘is not ‘applied by English Courts’ do not apply).
Institution of suit itself is a notice to (i) agricultural tenants (Besides, agricultural leases are exempted (from the whole Chapter)under Sec.117 of the TP Act) , (ii) Grantees, etc.
It is not equitable to argue that a tenant or Grantee, who wilfully forfeited the transaction, is entitled for a notice, on principles of equity.
Notice is required only because it is stipulated in law – Sec. 111(g) of the TP Act. When common law principles are invoked (in agricultural tenancy or grant) the statutory requirement need not be complied with.
Clause (g) of Sec. 111 of the TP Act and Notice Provided under Clause (g)
Section 111 Clause (g) of the TP Act (which requires a notice in writing) applies to cases where the Owner of a property had to sue the defendant as a tenant. If the position of the defendant is that of a trespasser (or agricultural leasee or grantee), there would be no question of invoking Clause (g) of Section 111. It is observed in Sheela v. Firm Prahlad Rai Prem Prakash, AIR 2002 SC 1264; 2002-3 SCC 375 – Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounceshis character as such by setting up a title in a third person or by claiming title in himself.
Section 116 of the Evidence Act
Section 116 of the Indian Evidence Act reads as under:
“Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be heard to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.”
In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335: 1976 4 SCC 838, it is held as under:
“The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant”.
The principle behind the proposition, which asserts that the owner/landlord has the right to recover the property based on his title if the defendant-tenant raises claim of title, is founded upon the notion that a tenant is precluded from disputing the title of the landlord or owner, as laid down in Section 116 of the Evidence Act.
Forfeiture of tenancy under Clause (g) of Section 111 of the TP Act
In Sheela v. Firm Prahlad Rai Prem Prakash (Ruma Pal, R.C. Lahoti, JJ.), AIR 2002 SC 1264; 2002-3 SCC 375, it is held as under:
“In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
“Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact – situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself. “In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
13. The law as to tenancy being determined by forfeiture by denial of the lessor s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with Justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See – Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr. – AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.
“14. Denial of landlord’s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive Evans & Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or deny the landlord s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord’s title isanalogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it, and so any breach of this condition must be clear and unambiguous. Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with “Acts which prejudice lessor s title” state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.”
Tenant sets up title cannot claim benefits u/S. 111 TP Act
Two instances – Plaintiff has to sue Tenant/Mortgagor “On Title”-
Oral mortgage (cannot be proved for want of registration)
Tenant sets up title in himself.
It is pointed out in Vaghela Raghuvirsinh v Pratapba, 2013 AIR(CC) 2745; 2013-4 CivCC 659 (Guj) as under:
“Where a plaintiff cannot regain possession on the basis of an oral mortgage as it cannot be proved in a court of law for want of registration, it is open to him to recover possession on the strength of his title. (See Ma Kyi v. Maung Thon, AIR 1935 Rang 230 at p. 232 (FB) and Hansia v. Bakhtawarmal, AIR 1958 Raj 102 at p. 106) Luckily for them, the appellants did not base their suit solely on the oral mortgage. They also founded their claim on their title.”
The Division Bench of Madras High Court, in Bhargavakula Nainargal Sangam, Thiruvannamalai v. Arunachala Udayar, (1990)1 L.W. 46, held – by virtue of denial of title of the landlord by forfeiture, the tenancy is determined. But they seem to say following the reasoning given in the earlier Division Bench decision in Veeraswami Naicker v. Alamelu Animal, (1965)2 MLJ 188, that once a tenant sets up title in himself or third persons there is no scope for him to claim benefits under the provisions of the Act (Sec. 111 TP Act). (Referred to in: Pandian Automobiles Private Ltd. v. Tirunelveli Sivakasi Hindu Nadar Pothu Abhiviruthi Sangam, 1992-2 MLJ 185.)
No man can Approbate and Reprobate
In Majati Subbarao v. P.V.K. Krishna Rao, AIR 1989 SC 2187, referring Sec. 111(g) of the TP Act, it is observed as under:
“The principle of forfeiture on disclaimer is grounded on the rule that a man cannot approbate and reprobate at the same time. Since the consequence of applying the rule is very serious, it must be held that the denial of title to has to be clear and in unequivocal terms.”
In Pandian Automobiles Private Ltd. v. Tirunelveli Sivakasi Hindu Nadar Pothu Abhiviruthi Sangam, 1992-2 MLJ 185, it is observed as under:
“17. Sec. 18 of the City Tenants’ Protection Act provides that the Transfer of Property Act, 1882 shall to the extent necessary to give effect to the provisions of this Act be deemed to have been repealed or modified. Since Sec.111 of the Transfer of Property Act provides various modes of determination of tenancy, and the definition of tenant in Sec. 2(4) includes a person who continues in possession of the land after the determination of the tenancy agreement, and when there is no provision whatsoever in the City Tenants’ Protection Act itself as to how a tenancy is to be determined, it can be held that Sec. 111 of the Transfer of Property Act shall not be deemed to have been repealed or modified. But the Division Bench in Bhargavakula Nainargal Sangam, Thiruvannamalai v. Arunachala Udayar, (1990)1 L.W. 46, appears to say that in view of Sec.13 of the present Act it is not necessary to discuss about the provisions contained in Sec.111(g) of the Transfer of Property Act. This means they do not seem to hold that by virtue of denial of title of the landlord by forfeiture the tenancy is determined. But they seem to say following the reasoning given in the earlier Division Bench decision in Veeraswami Naicker and another v. Alamelu Animal and others, (1965)2 M.L.J. 188, that once a tenant sets up title in himself or third persons there is no scope for him to claim benefits under the provisions of the Act.”
•➧ Sections 41 – 43, Evidence Act deal with the Relevancy of Previous Judgments. •➧ Judgment of a civil court is not binding on a criminal court. •➧ Judgment of a criminal court will also not be binding on a civil court. •➧ A judgment in rem is conclusive in a criminal as well as in a civil proceeding. •➧ It is appropriate that the disputes of title be adjudicated in appropriate civil procedure. •➧ The Supreme Court in M.S. Sheriff v. State of Madras, AIR 1954 SC 397, held that the decision of one court will Not be binding on the other, except for certain limited purposes; such as – awarding “sentence or damages”. That is, both courts should not award damages or compensation, simultaneously. •➧ In Prem Raj v. Poonamma Menon, [2024] 4 S.C.R. 29, adopted the stand – while imposing sentence or damages, “the Court in criminal jurisdiction would be bound by the civil Courthaving declared the cheque, the subject matter of dispute, to be only for the purposes of security”.
PART I
Introduction
Relevancy of a Civil Case Judgment in Criminal Cases – Propositions in a Nutshell
1. Independent evidence/finding needed
M.S. Sheriff v. State of Madras, AIR 1954 SC 397,
State of Rajasthan v. Kalyan Sundaram Cement Industries, AIR 1996 SC 2823,
K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765,
Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.
2. It is not correct to say – a judgment of a civil court shall be binding on the criminal court.
K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87.
3. There is neither any statutory nor any legal principle that findings recorded by the court, either in civil or criminal proceedings, shall be binding between the same parties (even) while dealing with the same subject-matter.
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370,
Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713.
4. Civil proceedings may be relevant under the Indian Evidence Act, 1872.
State of Rajasthan v. Kalyan Sundaram Cement Industries, AIR 1996 SC 2823,
K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87.
5. That is, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act dealing with the relevance of previous judgments in subsequent cases may be taken into consideration (Not conclusive).
Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713.
6. Criminal liability must be proved beyond reasonable doubt, while civil liability is based on preponderance of probabilities; different principles and different standards of proof.
Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370
P. Swaroopa Rani v. M. Hari Narayana, (2008) 5 SCC 765
Radheshyam Kejriwal v. State of West Bengal, (2011) 3 SCC 581.
The Law on this matter is evolved taking the following course.
1. M.S. Sheriff v. State of Madras, AIR 1954 SC 397
The Constitution Bench, in M.S. Sheriff v. State of Madras, AIR 1954 SC 397, held –
(i) that the criminal matters should be given precedence in trial (for, the public interests demand that criminal justice should be swift and sure)
(ii) that the civil/criminal court refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages.
(iii) Civil or Criminal proceedings may be stayed – depends upon each case
It is held as under:
“15. As between the civil and the criminal proceedings, we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.”
2. Karam Chand Ganga Prasad v. Union of India, 1970-3 SCC 694 (Overruled)
Our Apex Court observed in Karam Chand Ganga Prasad v. Union of India, 1970-3 SCC 694, that the decisions of the civil courts will be binding on the criminal courtsbut the converse is not true.
It is held as under:
“…….It is a well-established principle of law that the decisions of the civil courts are binding on the criminal courts. The converse is not true.”
Note:
This view is overruled in KG Premshanker v. Inspector of Police, 2002-8 SCC 87. In Vishnu Dutt Sharma v. Daya Sapra, 2009-13 SCC 729, it is observed as under:
“26. It is, however, significant to notice a decision of this Court in Karam Chand Ganga Prasad v. Union of India (1970) 3 SCC 694, wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts but the converse is not true, was overruled therein.”
3. The Land Acquisition Officer v. H. Narayana, 1976–4 SCC 9; AIR 1976 SC 2403
Sections 41 – 43, Evidence Act deal with the Relevancy of Previous Judgments.
Sec. 43 Evidence Act reads as under:
“43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant. Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue or is relevant under some other provisions of this Act.”
In The Land Acquisition Officer, City Improvement Trust Board v. H. Narayana, 1976 – 4 SCC 9; AIR 1976 SC 2403 our Apex Court approved the view that in land acquisition cases judgments, not inter partes, are relevant, under Sec. 11 and 13 Evidence Act, if such judgments relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
4. State of Bihar v. Radha Krishna Singh, 1983-3 SCC 118
In State of Bihar v. Radha Krishna Singh, 1983-3 SCC 118, our Apex Court approved the view of the Calcutta High Court, that the judgments not inter partes were not admissible in evidence, as under:
“129. In Gadadhar Chowdhury v. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows :
‘Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.’
130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.” (Quoted in: V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 SCALE. 367)
5. Commissioner of Income Tax, Kanpur v. Kamla Town Trust, 1996-7 SCC 349
In Commissioner of Income Tax, Kanpur v. Kamla Town Trust, 1996-7 SCC 349, it was held that the Order thatdirected rectification of Trust Deed would be relevant under Sec. 11 Evidence Act.
6. K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372
It is held that the Judgment of a Court is relevant if only conditions u/s 40 to 43 are satisfied.
The position of law is laid down in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, as under:
“30. What emerges from the aforesaid discussion is –
(1) the previous judgment which is final can be relied uponas provided under Sections 40 to 43 of the Evidence Act;
(2) in civil suits between the same parties, principle of res-judicata may apply;
(3) in a criminal case, Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied;
(4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil Court would be relevant if conditions of any of the Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein.”
In K.G. Premshanker v. Inspector of Police continued to hold that that the Court has to Decide – To what extent previous Judgment is Binding. It is held as under:
“Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, Court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein.”
“Take for illustration, in a case of alleged trespass by ‘A’ on ‘B’s property, ‘B’ filed a suit for declaration of its title and to recover possession from ‘A’ and suit is decreed. Thereafter, in a criminal prosecution by ‘B’ against ‘A’ for trespass, judgment passed between the parties in civil proceedings would be relevant and Court may hold that it conclusively establishes the title as well as possession of ‘B’ over the property. In such case, ‘A’ may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear.”
“Hence, in each and every case, first question which would require consideration is whether judgment, order or decree is relevant?, if relevant its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon facts of each case.”
“In the present case, the decision rendered by the Constitution Bench in M.S. Sheriff’s case (supra) would be binding, wherein it has been specifically held that no hard and fast rule can be laid down and that possibility of conflicting decision in civil and criminal Courts is not a relevant consideration. The law envisages “such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for limited purpose such as sentence or damages.”
7. Iqbal Singh Marwah v. Meenakshi Marwah, 2005-4 SCC 370,
In Iqbal Singh Marwah v. Meenakshi Marwah, 2005-4 SCC 370, (relying inter alia on M.S. Sheriff v. State of Madras, AIR 1954 SC 397) it was held by the Constitution Bench –
An effort should be made to avoid conflict of findings between the civil and criminal courts.
No Statutory Provision nor any Legal Principle – Findings in one is treated as Final; both the cases have to be decided on the basis of the evidence adduced therein.
Constitution Bench in M.S. Sheriff v. State of Madras, AIR 1954 SC 397, gave a complete answer to the problem posed – That is, the lawrefrains from making the decision of one court binding on the other,except for certain limited purposes, such as sentence or damages.
It is observed as under:
“32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standards of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given.
There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein. While examining a similar contention in an appeal against an order directing filing of a complaint under Section 476 of the old Code, the following observations made by a Constitution Bench in M.S. Sheriff v. State of Madras [1954 SCR 1144: AIR 1954 SC 397: 1954 Cri LJ 1019] give a complete answer to the problem posed: (AIR p. 399, paras 15-16)
“15. As between the civil and the criminal proceedings, we are of the opinion that the criminal matters should be given precedence. There is some difference of opinion in the High Courts of India on this point. No hard-and-fast rule can be laid down but we do not consider that the possibility of conflicting decisions in the civil and criminal courts is a relevant consideration. The law envisages such an eventuality when it expressly refrains from making the decision of one court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. The only relevant consideration here is the likelihood of embarrassment.
16. Another factor which weighs with us is that a civil suit often drags on for years and it is undesirable that a criminal prosecution should wait till everybody concerned has forgotten all about the crime. The public interests demand that criminal justice should be swift and sure; that the guilty should be punished while the events are still fresh in the public mind and that the innocent should be absolved as early as is consistent with a fair and impartial trial. Another reason is that it is undesirable to let things slide till memories have grown too dim to trust.”
This, however, is not a hard-and-fast rule. Special considerations obtaining in any particular case might make some other course more expedient and just. For example, the civil case or the other criminal proceeding may be so near its end as to make it inexpedient to stay it in order to give precedence to a prosecution ordered under Section 476. But in this case we are of the view that the civil suits should be stayed till the criminal proceedings have finished.”
8. P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, AIR 2008 SC 1884
In P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu, AIR 2008 SC 1884, it was held as under:
“13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case.” (Quoted in: Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)
9. Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528
It is held in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528
Criminal proceeding will have precedence over the Civil proceeding.
The decision in Karam Chand Ganga Prasad v. Union of India (1970) 3 SCC 694, wherein it was held that the decisions of the civil courts will be binding on the criminal courts but the converse is not true, was overruled (in KG Premshanker).
A judgment in rem (Section 43) is conclusive in criminal and civil proceedings.
It is observed as under:
“It is, however, significant to notice that the decision of this Court in Karam Chand Ganga Prasad v. Union of India (1970) 3 SCC 694, wherein it was categorically held that the decisions of the civil courts will be binding on the criminal courts but the converse is not true, was overruled (in KG Premshanker v. Inspector of Police, stating:
“33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case (M.S. Sheriff v. State of Madras, AIR 1954 SC 397) as well as Sections 40 to 43 of the Evidence Act.”
“10. It is, however, now well settled that ordinarily a criminal proceeding will have primacy over the civil proceeding. Precedence to a criminal proceeding is given having regard to the fact that disposal of a civil proceeding ordinarily takes a long time and in the interest of justice the former should be disposed of as expeditiously as possible.” (relied on: M.S. Sheriff v. State of Madras, AIR 1954 SC 397.)
11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.”
“Rendition of a final judgment which would be binding on the whole world being conclusive in nature shall take a long time. As and when a judgment is rendered in one proceeding subject to the admissibility thereof keeping in view Section 43 of the Evidence Act may be produced in another proceeding. It is, however, beyond any cavil that a judgment rendered by a probate court is a judgment in rem. It is binding on all courts and authorities. Being a judgment in rem it will have effect over other judgments. A judgment in rem indisputably is conclusive in a criminal as well as in a civil proceeding.” (Surinder Kumar v. Gian Chand, AIR 1957 SC 875, is relied on)
In Seth Ramdayal Jat v. Laxmi Prasad, (2009) 11 SCC 545, it is observed that a Case to be determined on Evidence, not on Previous Judgment.
It is held as under:
“16. If a primacy is given to a criminal proceeding, indisputably, the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of the evidence brought in the criminal proceeding.
In Seth Ramdayal Jat v. Laxmi Prasad, AIR 2009 SC 2463, 2009 (11) SCC 545, it is pointed out that the observation in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] that a judgment of a civil court shall be binding on the criminal court (but the converse is not true) may not be entirely correct being in conflict with a Three-Judge Bench decision of this Court in K.G. Premshanker vs. Inspector of Police and anr. [(2002) 8 SCC 87].
11. Avitel Post Studioz Limited v. HSBC PI Holdings, 2021-4 SCC 713
It is held in this decision as under:
Other than Sec. 41 – 43, No Legal Principle – Findings of Civil Court Bind Criminal Court.
Standard of proof is different in civil and criminal cases.
In this decision, the principles in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, is followed and held –
“18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.
It is further pointed out in Avitel Post Studioz Limited–
“Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.”
Prem Raj v. Poonamma Menon, 02 April, 2024 (Sanjay Karol, Aravind Kumar, JJ.)
Our Apex Court held in Prem Raj v. Poonamma Menon, 02 April, 2024, that conviction under Section 138 NI Act is not sustainable when the “civil Court having declared the cheque, the subject matter of dispute, to be only for the purposes of security”.
Facts in a nutshell
Accused/Appellant (Prem Raj) issued a cheque.
The cheque was dishonored.
The Complainant filed the complaint under Sec. 138 NI Act.
The accused had filed an Original Suit
The prayers were “to declare cheque… as a security cheque, issue mandatory injunction directing the 1st defendant to return the said cheque and issue a permanent prohibitory injunction restraining defendants .. from taking any steps to encash the said cheque.”
The Munsiff decreed the Suit (in favour of the accused in the criminal case).
The civil appeal was dismissed.
The Criminal Court convicted the accused to undergo simple imprisonment for 1 year as well as pay compensation of Rs. 2,00,000 in default and he was to undergo further simple imprisonment for six months.
The First Appellate Court and the High Court confirmed the conviction.
Thus it was placed before the SC.
The main question addressed was the following –
“Whether, a criminal proceeding can be initiated and the accused therein held guilty with natural consequences thereof to follow, in connection with a transaction, in respect of which a decree by a competent Court of civil jurisdiction, already stands passed?”
The Apex Court (in Prem Raj v. Poonamma Menon, 02 April, 2024) analysed the matter and Held as under:
“11. The position as per Premshanker (supra) is that sentence or damages would be excluded from the conflict of decisions in civil and criminal jurisdictions of the Courts. Therefore, in the present case, considering that the Court in criminal jurisdiction has imposed both sentence or damages, the ratio of the above-referred decision dictates that the Court in criminal jurisdiction would be bound by the civil Court having declared the cheque, the subject matter of dispute, to be only for the purposes of security.
12. In that view of the matter, the criminal proceedings resulting from the cheque being returned unrealised due to the closure of the account would be unsustainable in law and, therefore, are to be quashed and set aside. Resultantly, the damages as imposed by the Courts below must be returned to the appellant herein forthwith.”
Conclusion
In the earlier decisions, M.S. Sheriff v. State of Madras, AIR 1954 SC 397, and K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, while considering the relevancy and binding nature of ‘Former Judgments’, our Apex Court considered only the “sentence/ damages”portion (of the former judgment) alone; and not the rest part of the previous judgment.
That is, the former decisions were used for the limited purpose – while awarding “sentence or damages”, so that both civil and criminal courts may not award compensation or damages (simultaneously).
Nevertheless, it appears, our Apex Court, in Prem Raj v. Poonamma Menon [2024] 4 S.C.R. 29, used the former civil court decision not only while imposing sentence or compensation (in the criminal case), but also for finding on ‘guilt’. The final Appeal Court set aside the conviction in the criminal case, in the light of the finding (in favour of the accused) in the civil court, following (?) K.G. Premshankar v. Inspector of Police.
PART II
Sections 41 – 43, Evidence Act
Section 40, Evidence Act reads as under:
“40. Previous judgments relevant to bar a second suit or trial. The existence of any judgment, order or decree which by law prevents any Courts from taking cognizance of a suit or holding a trial is a relevant fact when the question is whether such Court ought to take cognizance of such suit or to hold such trial.”
Section 41 reads thus:
“41. Relevancy of certain judgments in probate, etc., jurisdiction. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant.
Section 42 reads:
“42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry, but such judgments, orders or decrees are not conclusive proof of that which they state.”
Illustration:
A sues B for trespass on his land. B alleges the existence of a public right of way over the land, which A denies.
The existence of a decree in favour of the defendant, in a suit by A against C for a trespass on the same land in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of way exists.
Section 43, Evidence Act reads as under:
43. Judgments, etc., other than those mentioned in sections 40 to 42, when relevant. Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of this Act.
Illustrations
.(a) A and B separately sue C for a libel which reflects upon each of them. C in each case says, that the matter alleged to be libellous is true, and the circumstances are such that it is probably true in each case, or in neither. A obtains a decree against C for damages on the ground that C failed to make out his justification. The fact is irrelevant as between B and C.
(b) A prosecutes B for adultery with C, A’s wife. B denies that C is A’s wife, but the court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A’s lifetime. C says that she never was A’s wife. The judgment against B is irrelevant as against C.
(c) A prosecutes B for stealing a cow from him, B, is convicted. A afterwards sues C for the cow, which B had sold to him before his conviction. As between A and C, the judgment against B is irrelevant.
(d) A has obtained a decree for the possession of land against B, C, B’s son, murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime. 1[(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.
(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under section 8 as showing the motive for the fact in issue because the existence of the earlier Judgment in the civil case showed that ‘motive’ under Section 8 from the latter crime; in (e), relevancy is accepted because it is a ‘fact in issue’ in the latter case; in (f) relevancy is accepted because the earlier judgment is evidence of motive under Section 8 in the latter case.
What are “Relevant Under Some Other Provisions of this Act” in Sec. 43
Following provisions are pointed out frequently, in this regard –
Sec. 8(which refers to motive, preparation and previous or subsequent conduct);
Sec. 11(which says when facts not otherwise relevant become relevant);
Sec. 13(when existence of right or custom is in question then any transaction or particular instances where the right or custom is claimed, recognized etc. become relevant),
Sec. 54Explanation (2), when a previous conviction is relevant as evidence of bad character), etc.
Sec. 58(Admitted Facts)
End Notes:
Sec. 11 Civil Procedure Code, 1908, reads as under:
Res Judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
Dispute Essentially of a Civil Nature Cannot be used as a Weapon of Harassment
A mere breach of contract, by one of the parties, would not attract prosecution for criminal offence in every case, (Sarabjit Kaur v. State of Punjab, 2023-5 SCC 360; Referred to by the Supreme Court in: Naresh Kumar v. The State of Karnataka, March 12. 2024)
In Paramjeet Batra v. State of Uttarakhand, 2013-11 SCC 673, it is held as under:
“A complaint disclosing civil transactions may also have a criminal texture. But the High Court must see whether a dispute which is essentially of a civil nature is given a cloak of criminal offence. In such a situation, if a civil remedy is available and is, in fact, adopted as has happened in this case, the High Court should not hesitate to quash the criminal proceedings to prevent abuse of process of the court.” (Quoted by the Supreme Court in: Naresh Kumar v. The State of Karnataka, March 12. 2024; Followed in: Randheer Singh v. State of U.P., 2021-14 SCC 626; Usha Chakraborty v. State of West Bengal, 2023 SCC OnLine SC 90)
Distinction: Cheating and Breach of Contract –Fraudulent Intention at the time of Promise
There is distinction between the offence of cheating and a mere breach of contractual obligations. In Vesa Holdings (P) Ltd. v. State of Kerala, (2015) 8 SCC 293, has held that every breach of contract would not give rise to the offence of cheating, and it is required to be shown that the accused had fraudulent or dishonest intention at the time of making the promise. (Referred to by the Supreme Court in: Naresh Kumar v. The State of Karnataka, March 12. 2024)
Standard of proof is different in Civil and Criminal Cases.
In Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713, the principles in K.G. Premshanker v. Inspector of Police, (2002) 8 SCC 87: AIR 2002 SC 3372, is followed and held –
“18. Thus, in view of the above, the law on the issue stands crystallised to the effect that the findings of fact recorded by the civil court do not have any bearing so far as the criminal case is concerned and vice versa. Standard of proof is different in civil and criminal cases. In civil cases it is preponderance of probabilities while in criminal cases it is proof beyond reasonable doubt. There is neither any statutory nor any legal principle that findings recorded by the court either in civil or criminal proceedings shall be binding between the same parties while dealing with the same subject-matter and both the cases have to be decided on the basis of the evidence adduced therein. However, there may be cases where the provisions of Sections 41 to 43 of the Evidence Act, 1872, dealing with the relevance of previous judgments in subsequent cases may be taken into consideration.
It is further pointed out in Avitel Post Studioz Limited v. HSBC PI Holdings (Mauritius) Limited, 2021-4 SCC 713 –
“Moreover, the judgment, order or decree passed in previous civil proceedings, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case the court has to decide to what extent it is binding or conclusive with regard to the matters decided therein. In each and every case the first question which would require consideration is, whether the judgment, order or decree is relevant; if relevant, its effect. This would depend upon the facts of each case.”
No Statutory Provision nor any Legal Principle – Findings in one treated as Final
Standards of proof required in the two proceedings are entirely different
In Iqbal Singh Marwah v. Meenakshi Marwah, 2005-4 SCC 370, (relying inter alia on M.S. Sheriff v. State of Madras, AIR 1954 SC 397) it was held as under:
“32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standards of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given. There is neither any statutory provision nor any legal principle that the findings recorded in one proceeding may be treated as final or binding in the other, as both the cases have to be decided on the basis of the evidence adduced therein.”
Not Correct – Civil Decisions Bind Criminal Courts, and Converse Not True
Our Apex Court observed in Karam Chand Ganga Prasad v. Union of India, 1970-3 SCC 694, that the decisions of the civil courts will be binding on the criminal courts but the converse is not true. It is overruled in KG Premshanker v. Inspector of Police (2002) 8 SCC 87.
Overruling Karam Chand Ganga Prasad. v. Union of India, 1970-3 SCC 694, it is held in KG Premshanker v. Inspector of Police (2002) 8 SCC 87as under:
“33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case (Karam Chand Ganga Prasad v. Union of India, (1970-3 SCC 694) are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case (M.S. Sheriff v. State of Madras, AIR 1954 SC 397) as well as Sections 40 to 43 of the Evidence Act.”
While referring KG Premshanker v. Inspector of Police (2002) 8 SCC 87, it is held in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528 as under:
“It is, however, significant to notice that the decision of this Court in M/s Karam Chand Ganga Prasad v. Union of India (1970) 3 SCC 694, wherein it was categorically held that the decisions of the civil courts will be binding on the criminal courts but the converse is not true, was overruled, stating:
“33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case (M.S. Sheriff v. State of Madras, AIR 1954 SC 397) as well as Sections 40 to 43 of the Evidence Act.”
11. Axiomatically, if judgment of a civil court is not binding on a criminal court, a judgment of a criminal court will certainly not be binding on a civil court. We have noticed hereinbefore that Section 43 of the Evidence Act categorically states that judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant under some other provisions of the Act. No other provision of the Evidence Act or for that matter any other statute has been brought to our notice.”
Disputes of Title, be adjudicated in Civil Procedure
In Janak Vohra v. DDA, 103-2003-DLT 789, it was held that in case of disputed questions of title, and mutation being asked for, it is appropriate that the disputes of title be adjudicated in appropriate civil procedure and no direction be issued to mutate the property in the name of a party. (Referred to in Syed Askari Hadi Ali Augustine Imam v. State (Delhi Admn.), 2009- 5 SCC 528)
Land Acquisition judgments, not inter partes, Relevant under S. 11 and 13
In The Land Acquisition Officer, City Improvement Trust Board v. H. Narayana, 1976 – 4 SCC 9; AIR 1976 SC 2403 our Apex Court approved the view that in land acquisition cases judgments, not inter partes, are relevant, under Sec. 11 and 13 Evidence Act, if such judgments relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.
Order directed rectification of Trust Deed Relevant under Sec. 11
In Commissioner of Income Tax, Kanpur v. Kamla Town Trust, 1996-7 SCC 349, it was held that the Order that directed rectification of Trust Deed would be relevant under Sec. 11 Evidence Act.
Judgment not inter partes admissible to find what lands involved
In State of Bihar v. Radha Krishna Singh, 1983-3 SCC 118, our Apex Court approved the view of the Calcutta High Court as under:
“129. In Gadadhar Chowdhury v. Sarat Chandra Chakravarty [AIR 1941 Cal 193 : (1940) 44 Cal WN 935 : 195 IC 412 : 72 Cal LJ 320] it was held that findings in judgments not inter partes are not admissible in evidence. In this connection a Division Bench of the Calcutta High Court observed as follows : ‘Though the recitals and findings in a judgment not inter partes are not admissible in evidence, such a judgment and decree are, in our opinion, admissible to prove the fact that a decree was made in a suit between certain parties and for finding out for what lands the suit had been decreed.’
130. This, in our opinion, is the correct legal position regarding the admissibility of judgments not inter partes.” (Quoted in V. Kalyanaswamy v. L. Bakthavatsalam, 2020-9 SCALE. 367)
End Notes:
Sec. 11 Civil Procedure Code, 1908, reads as under:
Res Judicata-No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.
Explanation I– The expression “former suit” shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.
Explanation II.- For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.
Explanation III.- The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV.- Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.
Explanation V.- Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.
Explanation VI– Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.
Explanation VII.- The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.
Explanation VIII.-An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.
It is actually application of judicial mind to “proceed with” the further legal step under Sec. 200 or 204(on the contents of a Complaint or a Police Report).Therefore, it is not mere ‘application of judicial mind‘ (as conveyed literally).
Jojy George Koduvath.
Abstract
•➧ Plain meaning of ‘cognisance’ is – to take notice of something. •➧ In law, it is ‘taking judicial notice’ on a cause or offence. •➧ ‘Judicial notice’ is taken by the Magistrate by ‘applying his judicial mind’. •➧ Taking cognizance does not involve any formal action. •➧ Unless cognizance is barred by a statute, anyone can file a civil suit. •➧ Magistrate has a discretion not to take Cognizance (of a criminal case). •➧ For taking cognizance, the offence must be one punishable under law. •➧ Cognizance is taken against the suspected commission of offence; not offender. •➧ It is the application of mind by the Magistrate “to the suspected commission of offence”. •➧ ‘Application of judicial mind‘ is not what is conveyed literally; cognizance is ‘application of judicial mind‘ (on the contents of the Complaint or Report, as to the offence) “to proceed with” the further legal step under Sec. 200 or 204. Because, cognizance is not taken – if the Magistrate orders investigation under section 156(3), or issues a search warrant, (That is, in such circumstance, the Magistrate is not applying his mind “to proceed” under Sec. 200 or 204.) •➧ Cognizance can be taken by a Magistrate by 3 ways (S. 190 Cr PC) . They are – • (a) upon a complaint; • (b) upon a police report – in both, ‘offence-made-out’ and ‘refer-charge’ (If the Magistrate decides to proceed against the accused disregarding the opinion in the police report to ‘refer’); • (c) upon information from any person or upon his own knowledge. •➧ The Magistrate Prima Facie satisfied on the final report (S. 173 Cr PC) has to take cognizance and issue Process (summons/warrant) to the accused. •➧ If cognizance is wrongly taken (without Prima Facie essential ingredients of the alleged offence) it will be QUASHED by the High Court.
What is Cognizance or Application of Mind by a Magistrate?
In law, cognizance is – ‘taking judicial notice’ by ‘applying the judicial mind’ of the Magistrate on a cause or offence. It is not possible to precisely define what is ‘cognizance’.
It is also difficult to pinpoint – when cognizance is taken (of an offence) by a Magistrate.
According to Black’s Law Dictionary the word ‘cognizance’ means ‘jurisdiction’ or ‘the exercise of jurisdiction’ or ‘power to try and determine causes’. In common parlance, it means taking notice of. (State of U.P. v. Paras Nath Singh, 2009-6 SCC 372)
‘Cognizance’ can be explained from following elucidations.
1. No cognizance is takenwhen the Magistrate (who receives the complaint, or the information, under Sec. 190) applies his mind for ordering investigation under section 156(3) CrPC, or when a search warrant is issued for the purpose of the investigation.
2. Cognisance is takenwhen the Magistrate applies his mind to proceed with the further legal step such as to proceed under Sec. 200 CrPC(that is, in case of a complaint – examine the complainant)or under Sec. 204 CrPC(that is, in case of a police report or other information, issue process – summons/warrant – to accused). For that matter, the magistrate must have
(i) applied his mind to the contents of the complaint, or the police report, or the information, and
(ii) decided to proceed under Sec. 200, 204 CrPC .
“A Magistrate taking Cognizance”
It is definite from the above – taking cognizance is not the same thing as issuance of process; for, in case of judicial action on police report or other information, Cognizance is taken first, and process (summons/warrant) is issued subsequently.
Taking cognizance does not involve any formal action or a formal order that ‘cognizance is taken’. It is clear from the words “a Magistratetaking cognizance” in Sec. 200 and 204.
Sec. 200 reads: “A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant …”
Sec. 204 reads: “If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, … issue his summons …. or …. warrant ….
Cognizance – Judicial Process for determining whether a Legal Action be Initiated
From the above, it is clear that ‘cognisance’ is actually application of judicial mind to “proceed with” the further legal step under Sec. 200 or 204 (on the contents of a Complaint or a Police Report). Therefore, it is not mere ‘application of judicial mind’ (as conveyed literally).
In other words, Cognizance is the judicial process made by a court for arriving at a conclusion whether a legal action be initiated against an offence by a process of reasoning, analysing facts in the light of the law applicable.
In simple terms, it is a fact finding process at the beginning stage of proceedings – to see whether, Prima Facie, an offence has been committed.
Taking cognizance does not involve any formal action
In Emperor v. Sourindra Mohan Chuckerbutty, (1910) ILR 37 Cal. 412, 14 CWN 512-6 IC 8, 11 Cr LJ 217, it is observed as under:
“Taking cognizance does not involve any formal action; or indeed action of any kind, but occurs as soon as a Magistrate, as such, applies his mind to the suspected commission of an offence.” (Reiterated in R.R. Chari v. State of Uttar Pradesh, AIR 1951 SC 207; Ajit Kumat Palit v. State of West Bengal, AIR 1963 SC 765; Darshan Singh Ram Kishan v. State of Maharashtra, (1972) 1 SCR 571.
At the stage of issue of summons, detailed reasoning as to why a Magistrate is issuing summons, however, is not necessary. (See: Sachin Garg v. State of U. P., 30 Jan 2024 (Aniruddha Bose, Sanjay Kumar, JJ.), 2024 INSC 72 (SC)
Taking cognizance is not the same thing as issuance of process
In State of W.B. v. Mohd. Khalid, 1995-1 SCC 684, it is observed as under:
“13. It is necessary to mention here that taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a Prima Facie case is made out.” (Quoted in: Anil Kumar v. M.K. Aiyappa, 2013–10 SCC 705; Jayant v. State of Madhya Pradesh, 2021 AIRSC496; 2021–2 SCC 670)
Cognizance & Prima Facie Case
If there is a prima facie case (that is, sufficient ground for proceeding) the Magistrate has to take cognizance and issue summons to the accused.
Jagdish Ram v. State of Rajasthan, 2004-4 SCC 432,
Pepsi Foods Ltd. v. Special Judicial Magistrate 1998-5 SCC 749,
Sachin Garg v. State of U. P., 30 Jan 2024 (Aniruddha Bose, Sanjay Kumar, JJ.), 2024 INSC 72 (SC)
The Magistrate satisfied on the basis of the consideration of the final (S. 173) report (the statements under Section 161 of the Code) that Prima Facie case is made out, the Magistrate has to take cognizance and issue Process (summons/warrant) to the accused (Mukhtar Zaidi v. State of Uttar Pradesh, 2024 INSC 316).
Procedure on receipt of a (Private) Complaint by a Magistrate
From India Carat Pvt. Ltd. v. State of Karnataka, 1989 (2) SCC 132, it is clear –
On receipt of a (private) Complaint a Magistrate has to either –
order investigation by the police under Sec. 156(3)
or, take cognizance and procced under Sec. 200 – and record evidence of the complainant.
After taking evidence under Sec. 200, the Magistrate
could issue process at once under s. 204 o
or could dismiss the complaint under s. 203
or, to take evidence/enquiry under s. 202.
Section 202 Enquiry
The Sec. 202 enquiry can be by –
the Magistrate himself – who takes cognisance of an offence
(upon a complaint or
police report or
upon his own knowledge)
or any Magistrate subordinate to him,
or by a police officer,
or by such other person as he thinks fit.
Purpose of Sec. 202 enquiry is extremely limited
The purpose is – “deciding whether or not there is sufficient ground for proceeding”.
The Supreme Court in Fiona Shrikhande v. State of Maharashtra, 2013-14 SCC 44, observed as under:
“At the complaint stage, the Magistrate is merely concerned with the allegations made out in the complaint and has only to “Prima Facie satisfy” whether there are “sufficient grounds to proceed” against the accused and it is not the province of the Magistrate to enquire into a detailed discussion on the merits or demerits of the case. The scope of enquiry under Section 202 isextremely limitedin the sense that the Magistrate, at this stage, is expected to examine prima facie the truth or falsehoodof the allegations made in the complaint.”
In Suresh Chand Jain v. State of M.P., 2001(2) S.C.C. 628, the Supreme Court observed as under:
“Section 156, falling within Chapter XII, deals with powers of the Police Officers to investigate cognizable offences. Section 202 which falls under Chapter XV, also refers to the power of a Magistrate to “direct an investigation by a Police Officer”. But the investigation envisaged in section 202 is different from the investigation contemplated in section 156 of the Code. The significant point to be noticed is that when a Magistrate orders investigation under Chapter XII he does so before he takes cognizance of the offence.
A Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of section 202(1) Cri.P.C. would convince that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a Police Officer or by any other person. Such investigation is only for helping the Magistrate to decide whether or not there is sufficient ground for him to proceed further.
This can be discerned from the culminating words in Section 202(1) i.e. “or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding”.
This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.”
The legal position has been summarized in Suresh Chand Jain thus:
“10. The position is thus clear. Any Judicial Magistrate, before taking cognizance of the offence, can order investigation under Section 156(3) of the Code. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein. For the purpose of enabling the police to start investigation it is open to the Magistrate to direct the police to register an FIR. There is nothing illegal in doing so. After all registration of an FIR involves only the process of entering the substance of the information relating to the commission of the cognizable offence in a book kept by the officer in charge of the police station as indicated in Section 154 of the Code. Even if a Magistrate does not say in so many words while directing investigation under Section 156(3) of the Code that an FIR should be registered, it is the duty of the officer in charge of the police station to register the FIR regarding the cognizable offence disclosed by the complaint because that police officer could take further steps contemplated in Chapter XII of the Code only thereafter.”
Suresh Chand Jain v. State of M.P., 2001(2) S.C.C. 628, is quoted in:
Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. State of Maharashtra, AIR 2021 SC 3580; 2021-8 SCC 753.
Dilawar Singh v. State of Delhi, (2007) 12 SCC 641
In Mohd. Yousuf v. Afaq Jahan, 2006-1 SCC (Cri.) 460 laid down the relevant principles under Sec. 202 as under:
“9. But a Magistrate need not order any such investigation if he proposes to take cognizance of the offence. Once he takes cognizance of the offence he has to follow the procedure envisaged in Chapter XV of the Code. A reading of Section 202(1) of the Code makes the position clear that the investigation referred to therein is of a limited nature. The Magistrate can direct such an investigation to be made either by a police officer or by any other person. Such investigation is only for helping the Magistrate todecide whether or not there is sufficient ground for him to proceed further. This can be discerned from the culminating words in Section 202(1) i.e. “or direct an investigation to be made by a police officer or by such other person as he thinks fit, for the purpose of deciding whether or not there is sufficient ground for proceeding.”
10. This is because he has already taken cognizance of the offence disclosed in the complaint, and the domain of the case would thereafter vest with him.”
In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed as under:
“.. . when on a petition of complaint being filed before him a Magistrate applies his mind for proceeding under the various provisions of Chapter XVI of the Code of Criminal Procedure, he must be held to have taken cognizance of the offences mentioned in the complaint. When however he applies his mind not for such purpose but for purposes of ordering investigation under s. 156(3) or issues a search warrant for the purpose of investigation he cannot be said to have taken cognizance of any offence. It was so held by this Court in R.R. Chari v. State of U. P. and again in Gopal Das v. State of, Assam In the case before us the Magistrate after receipt of Bhadai Sah’s complaint proceeded to examine him under s. 200 of the Code of Criminal Procedure. That section itself states that the Magistrate taking cognizance of an offence on a complaint shall at once examine the complainant and the witnesses present, if any, upon oath. This examination by the Magistrate under s. 200 of the Code of Criminal Procedure puts it beyond doubt that the Magistrate did take cognizance of the offences mentioned in the complaint. After completing such examination and recording the substance of it to writing as required by s. 200 the Magistrate could have issued process at once under s. 204 of the Code of Criminal Procedure or could have dismissed the complaint under s. 203 of the Code of Criminal Procedure. It was also open to him, before taking either of these courses, to take action under s. 202 of the Code of Criminal Procedure.
Scope of 202 Enquiry -“Ascertaining the truth or falsehood of the complaint”
In Vadilal Panchal v. Dattatraya Dulaji Ghadigaonkar, AIR 1960 SC 1113, our Apex Court has observed that the purpose of Section 202 of CrPC was to ascertain the truth or falsehood of the complaint for ascertaining whether there was a sufficient evidence available in support of issuance of the summoning order.
In Jamuna Singh v. Bhadai Shah, AIR 1964 SC 1541, it is observed as under:
“That section (s. 202) empowers the Magistrate to “postpone the issue of process for compelling the attendance of persons complained against, and either enquire into the case himself or if he is a Magistrate other than a Magistrate of the third class, direct an enquiry or investigation to be made by any Magistrate subordinate to him, or by a police officer, or by such other person as he thinks fit, for the purpose of ascertaining the truth or falsehood of the complaint.”
Not Proper to Order to “File Charge Sheet”, under Sec. 202 (Only Investigation)
In Tula Ram v. Kishore Singh, 1977- 4 SCC 459, it was held that the Magistrate can order the police to investigate the complaint, but it has no power to compel the police to submit a charge sheet on a final report being submitted by the police.
In Abdul Rahim v. Abdul Muktadin, ILR (1952) 4 Assam 273 : AIR 1953 Assam 112 a Division Bench of the Assam High court held as under:
“There is no provisions of law by which a Magistrate is empowered to direct the police to send up a charge sheet against an accused person whom an information has been lodged. A magistrate is empowered to take cognizance of the case in accordance with S. 190 code of criminal Procedure.”
In Anand Kumar Pandey v. State of U. P. , 2020-1 All.CR 899, it is found as under:
If and when such investigation or inquiry is ordered the result of the investigation or inquiry has to be taken into consideration before the Magistrate takes any action under s. 203 of the Code of Criminal Procedure.
We find that in the case before us the Magistrate after completing the examination under s. 200 of the Code of Criminal Procedure and recording the substance of it made the order in these words :–
“Examined the complaint on s.a. The offence is cognizable one. To S.I. Bakunthpur for instituting a case and report by 12.12.56.”
If the learned Magistrate had used the words “for investigation” instead of the words “for instituting a case” the order would clearly be under s. 202(1) the Code of Criminal Procedure. We do not think that the fact that he used the words “for instituting a case” makes any difference. It has to be noticed that the Magistrate was not bound to take cognizance of the offences on receipt of the complaint. He could have, without taking cognizance, directed an investigation of the case by the police under s. 156(3) of the Code of Criminal Procedure. Once however he took cognizance he could order investigation by the police only under s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code of Criminal Procedure. As it is clear here from the very fact that he took action under s. 200 of the Code of Criminal Procedure, that he had taken cognizance of the offences mentioned in the complaint, it was open to him to order investigation onlyunder s. 202 of the Code of Criminal Procedure and not under s. 156(3) of the Code. It would be proper in these circumstances to hold that though the Magistrate used the words “for instituting a case” in this order of November 22, 1956 he was actually taking action under s. 202 of the Code of Criminal Procedure, that being the only section under which he was in law entitled to act.”
Police investigation u/Sec. 156(3) & 202(1) – Two operate in distinct spheres;
Section 202 is Not to initiate a Fresh Case on Police Report –Only to see “Sufficient Ground to proceed“
In Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, 1976-3 SCC 252: AIR 1976 SC 1672, it is pointed out as under:
“17. Section 156(3) occurs in Chapter XII, under the caption:
“Information to the Police and their powers to investigate”;
while Section 202 is in Chapter XV which bears the heading:
“Of complaints to Magistrates”.
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the precognizance stage, the second at the post-cognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under sub- section (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”.
Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.” (Followed in Tula Ram v. Kishore Singh (1977) 4 SCC 459; and Quoted in Anand Kumar Pandey v. State Of U. P. , 2020-1 All.CR 899)
Sec. 156(3) exercised, if complaint discloses a “cognizable offence“
In Tilak Nagar Industries Limited v. State of Andhra Pradesh(2011) 15 SCC 571, it is held as under:
“12…power under Section 156(3) can be exercised by the Magistrate even before he takes cognizance provided the complaint discloses the commission of cognizable offence.” (Quoted in: Supreme Bhiwandi Wada Manor Infrastructure Pvt. Ltd. v. State of Maharashtra, AIR 2021 SC 3580; 2021-8 SCC 753.)
Sec. 156(3) is a “preemptory intimation” to the police
In Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, it is said as under:
“35. Investigation into commission of a crime can be commenced by two different modes. First, where the police officer registers an FIR in relation to commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code, the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV. Section 156 primarily deals with the powers of a police office to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for order an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance. It is an order in the nature of a preemptory reminderor intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code.”
Investigation commences by (i) FIR and (ii) Magistrate-order
In Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, it is said as under:
“35. Investigation into commission of a crime can be commenced by two different modes. First, where the police officer registers an FIR in relation to commission of a cognizable offence and commences investigation in terms of Chapter XII of the Code, the other is when a Magistrate competent to take cognizance in terms of Section 190 may order an investigation into commission of a crime as per the provisions of that Chapter XIV. Section 156 primarily deals with the powers of a police office to investigate a cognizable case. While dealing with the application or passing an order under Section 156(3), the Magistrate does not take cognizance of an offence. When the Magistrate had applied his mind only for order an investigation under Section 156(3) of the Code or issued a warrant for the said purpose, he is not said to have taken cognizance. It is an order in the nature of a preemptory reminder or intimation to the police to exercise its primary duty and power of investigation in terms of Section 151 of the Code.
Magistrate has no power to compel police to submit a charge sheet
Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, proceeded as under:
36. Caution in this process had been introduced by this Court vide its judgment in the case of Tula Ram & Ors. v. Kishore Singh [1977) 4 SCC 459] where it was held that the Magistrate can order the police to investigate the complaint, but it has no power to compel the police to submit a charge sheet on a final report being submitted by the police.
Sec. 156(3), 200 and 202
Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, proceeded further:
37. Still another situation that can possibly arise is that the Magistrate is competent to treat even a complaint termed as an application and pass orders under Section 156(3), but where it takes cognizance, there it would have to be treated as a regular complaint to be tried in accordance with the provisions of Section 200 onwards falling under Chapter XV of the Code. There also the Magistrate is vested with the power to direct investigation to be made by a police officer or by such other person as he thinks fit for the purposes of deciding whether or not there is sufficient ground for proceeding. This power is restricted and is not as wide as the power vested under Section 156(3) of the Code. The power of the Magistrate under Section 156(3) of the Code to order investigation by the police have not been touched or affected by Section 202 because these powers are exercised even before the cognizance is taken. In other words, Section 202 would apply only to cases where Magistrate has taken cognizance and chooses to enquire into the complaint either himself or through any other agency. But there may be circumstances where the Magistrate, before taking cognizance of the case himself, chooses to order a pure and simple investigation under Section 156(3) of the Code. These cases would fall in different class. This view was also taken by a Bench of this Court in the case of Rameshbhai Pandurao Hedau v. State of Gujarat [(2010) 4 SCC 185]. The distinction between these two powers had also been finally stated in the judgment of this Court in the case of Srinivas Gundluri & Ors. v. SEPCO Electric Power Construction Corporation & Ors. [(2010) 8 SCC 206] where the Court stated that to proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. But where it takes cognizance and decides as to whether or not there exists a ground for proceeding any further, then it is a case squarely falling under Chapter XV of the Code.
Sec. 156(3)– Power of Magistrate Limited
Anju Chaudhary v. State Of U.P., 2013 (6) SCC 384, proceeded further as under:
38. Thus, the Magistrate exercises avery limited power under Section 156(3) and so is its discretion. It does not travel into the arena of merit of the case if such case was fit to proceed further. This distinction has to be kept in mind by the court in different kinds of cases.
In the present case, the learned Magistrate while passing the order dated 29th July, 2008, had not dealt with the case on merits, but on a legal assumption that it was not a case to direct investigation because investigation was already going on under FIR No. 45/2007. Once it is held as done by us above, there were two different and distinct offences committed by different persons and there was no commonality of transaction between the two. We do not find any error of jurisdiction in the order of the High Court requiring the learned Magistrate to deal with the cases afresh and pass an order under Section 156(3) of the Code.
Final Reportunder Sec. 173 and Cognizance by the Magistrate
On getting the 156(3) Order, the police will register an FIR and investigate the matter.
Finally, the police submits a report under Section 173(2).
On receiving the police report the Magistrate –
(a) takes cognizance of the offence under Section 190(1)(c) and issue process to the accused – even if the police report is to the effect that no case is made out. [Note: Magistrate takes cognizance, not because he is bound by the Sec. 173 Police Report; but, because – on ‘application of judicial mind‘ on the Report, the Magistrate finds it proper “to proceed” under 204.]
(b) proceeds to act under Section 200, by taking cognizance of the offence on the basis of the complaint originally submitted to him, and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.
(c) drops the proceedings if it is satisfied (on applying his judicial mind – without regard to the opinion on the police officer as to grounds to ‘proceed’ against the accused) that there is no sufficient material to take cognizance of the offence.
In India Carat Pvt. Ltd. vs. State of Karnataka, 1989 (2) SCC 132, it is observed as under:
“13. From the provisions referred to above, it may be seen that on receipt of a complaint a Magistrate has several courses open to him….. …… … …Yet another course open to the Magistrate is that instead of taking cognizance of the offence and following the procedure laid down under Section 200 or Section 202, he may order an investigation to be made by the police under Section 156(3). When such an order is made, the police will have to investigate the matter and submit a report under Section 173(2). On receiving the police report the Magistrate may take cognizance of the offence under Section 190(1)(c) and issue process straightaway to the accused. The Magistrate may exercise his powers in this behalf irrespective of the view expressed by the police in their report whether an offence has been made out or not. This is because the police report under Section 173(2) will contain the facts discovered or unearthed by the police as well as the conclusion drawn by the police therefrom. If the Magistrate is satisfied that upon the facts discovered or unearthed by the police there is sufficient material for him to take cognizance of the offence and issue process, the Magistrate may do so without reference to the conclusion drawn by the Investigating Officer because the Magistrate is not bound by the opinion of the police officer as to whether an offence has been made out or not. Alternately the Magistrate, on receiving the police report, may without issuing process or dropping the proceeding proceed to act under Section 200 by taking cognizance of the offence on the basis of the complaint originally submitted to him and proceed to record the statement upon oath of the complaint and the witnesses present and thereafter decide whether the complaint should be dismissed or process should be issued.”
Magistrate has to independently apply his mind on a Final Report
A Magistrate can, independently apply his mind to a police report. He is not bound to follow the procedure under Sections 200 and 202 of the Code for taking cognizance. (It is, however, open to the Magistrate to do so: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27). It is held in Gangadhar Janardan Mhatre v. State of Maharashtra, (2004) 7 SCC 768as under:
“6. There is no provision in the Code to file a protest petition by the informant who lodged the first information report. But this has been the practice. Absence of a provision in the Code relating to filing of a protest petition has been considered. This Court in Bhagwant Singh v. Commr. of Police [(1985) 2 SCC 537 : 1985 SCC (Cri) 267 : AIR 1985 SC 1285] stressed on the desirability of intimation being given to the informant when a report made under Section 173(2) is under consideration. The Court held as follows (SCC p. 542, para 4):
“There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. We are accordingly of the view that in a case where the Magistrate to whom a report is forwarded under sub-section (2)(i) of Section 173 decides not to take cognizance of the offence and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the first information report, the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report.” (Quoted in: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27)
Magistrate can take cognizanceeven if police report is – no case made out
In Jitender Mehta v. Shivani Mehta, (M.K. Hanjura, J.), AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, it is held as under:
“23. The position is, thus, clear that when a Magistrate receives police report under Section 173(2), he is entitled to take cognizance of an offence even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and other material collected during investigation and form his own opinion independently without being bound by the conclusions arrived at by the investigating agency and take cognizance under Section 190(1)(b) of the Code and direct the issue of process to the accused.”
Magistrate cannot use any material other than Police investigation records; Magistrate to follow the Procedure under Sec. 200 and 202
In Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, it is also held as under:
“However, the Magistrate cannot make use of any material or evidence other than the investigation records while acting under Section 190(1)(b) of the Code. If he chooses to make use of any materials other than the investigation records, he will have to follow the procedure laid down in relation to complaint cases, on the basis of original complaint or application moved under Section 156(3) Cr.P.C. which otherwise tantamount to complaint or the Protest petition filed against acceptance of final report treating the same as complaint.
This proposition would be in consonance with the provision of Section 207 which inter-alia provides for supply of copy of statements recorded under Sub-section (3) of Section 161 of all persons whom the prosecution proposes to examine as its witnesses and any other document or relevant extract thereof forwarded to the Magistrate with the police report under Sub-section (5) of Section 173.”
Standard of Proof of Evidence at Sec. 202-Stage
The complaint filed by a private party can be dismissed by the learned Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding. While exercising his discretionary powers, the Magistrate should not allow himself to evaluate and appreciate the sworn statements recorded by him under Section 202 Cr.P.C. All that he could do would be, to consider as to whether there is a Prima Facie case for a criminal offence, which, in his judgment, would be sufficient to call upon the alleged offender to answer. At the stage of Section 202 Cr.P.C. enquiry, the standard of proof which is required finally before finding the accused guilty or otherwise should not be applied at the initial stage. [Ponnal @ Kalaiyarasi v. Rajamanickam, 1998 Cri LJ 4333; 1998 (4) Crimes 543 (Mad)]
Accused has no right of hearing until Issuance of Process
In Manharibhai Mujlibhai Kakadia v. Shaileshbhai Mohanbhai Patel, 2012-10 SCC 517, it is observed as under:
“46. The legal position is fairly well-settled that in the proceedings Under Section 202 of the Code the accused/suspect is not entitled to be heard on the question whether the process should be issued against him or not. As a matter of law, upto the stage of issuance of process, the accused cannot claim any right of hearing. Section 202 contemplates postponement of issue of process where the Magistrate is of an opinion that further inquiry into the complaint either by himself is required and he proceeds with the further inquiry or directs an investigation to be made by a Police Officer or by such other person as he thinks fit for the purpose of deciding whether or not there is sufficient ground for proceeding. If the Magistrate finds that there is no sufficient ground for proceeding with the complaint and dismisses the complaint under Section 203 of the Code, the question is whether a person accused of crime in the complaint can claim right of hearing in a revision application preferred by the complainant against the order of the dismissal of the complaint. The Parliament being alive to the legal position that the accused/suspects are not entitled to be heard at any stage of the proceedings until issuance of process Under Section 204, yet in Section 401(2) of the Code provided that no order in exercise of the power of the revision shall be made by the Sessions Judge or the High Court, as the case may be, to the prejudice of the accused or the other person unless he had an opportunity of being heard either personally or by pleader in his own defence.”
See:Contra view below.
Contra View –Once a Final Report (favourable to Accused), Accused be heard before rejecting it
Though accused has no right of hearing until Issue of Process, as shown above, in Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, it is held as under:
“25. The learned counsel for the petitioner has energetically argued that the impugned order dated 25th November 2006 was passed without giving opportunity of hearing to the petitioner. His submission is that once there is a Final Report, then, before the Magistrate rejects the same, he must hear the accused. In this connection it may be mentioned that the Supreme Court in Bhagwant v. Commissioner, AIR. 1985 SC 1285, has held that prior to accepting the Final Report, a notice must be given to the first informant or a person aggrieved and such a person must be heard. The ratio of the said decision will be applicable to a contrary case as well, like the present one. In the present case, the petitioner is an accused in a case in which a Final Report has been submitted. His grievance, and rightly so, is that before rejecting the Final Report he should have been heard. It is true that there is no statutory provision that before rejecting the Final Report the Magistrate must hear the accused but there is also no statutory requirement that before accepting the Final Report the complainant should be heard. If it is held that before accepting the Final Report the complainant must be heard, then it cannot be understood by what logic the accused should be denied a right of hearing before the Final Report is rejected. The same principle should apply to the complainant and the accused alike.”
26. The Supreme Court in recent years has been steadily widening the scope of Articles 14 and 21 of the Constitution.
In Maneka Gandhi v. Union of India, AIR 1978 SC 597 (which is a Seven Judge Constitution Bench decision) the Supreme Court has emphasised that even where there is no specific statutory requirement the principles of natural justice may apply. It has been also held that the procedure for depriving a man of his life and liberty must be fair, reasonable and just. Similarly, in Bachan Singh v. State of Punjab, AIR 1982 SC 1825 it was held by the Supreme Court that “every facet of the law which deprives a person of life or personal liberty would therefore have to stand the test of reasonableness, fairness and justice in order to be outside the inhibition of Article 21”. Having said so, once a Final Report is submitted, then before its rejection the accused should be heard, for, it may be that he may be able to persuade the Magistrate that the Final Report was justified and no case is made out against him. It will be unfair to hear only the person filing the protest petition but not the accused. Where a protest petition is filed against a Final Report, both the parties should be heard as that procedure would be fair to the accused and the complainant and hence in accordance with the trend of the decisions of the Supreme Court (from Maneka Gandhi’s case onwards) in which the scope of Articles 14 and 21 of the Constitution has been greatly expanded and it has been laid down that the procedure should be just, fair and reasonable. Once a final report is filed it is only fair and reasonable that the accused should be heard before rejecting the Final Report and taking cognizance. I do not mean to say that cognizance cannot be taken on the basis of the final report. The Supreme Court in M/s India Carat Pvt. Ltd. case (supra) has held that this can be done. But fairness demands that this should be done only after hearing the accused, otherwise the accused may be put to unnecessary harassment.
Magistrate takes a judicial decision on the Final Report
Jitender Mehta v. Shivani Mehta, AIR OnLine 2018 J & K 546; 2018 Kash LJ 918, continued as under:
“27. It may not be out of place to mention here that the Constitution of the India is the supreme law of the land and the provisions in the criminal statutes must be read and interpreted not in isolation but in the light of the constitutional provisions as interpreted by the Supreme Court. If upon an investigation, it appears to the officer-in-charge of the police station or to the police officer making the investigation that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, if such person is in custody, release him and the Final Report can be filed before the Magistrate. It is true that the Final Report is not binding on the Magistrate and if the Magistrate differs from the opinion of the I.O., he can take the cognizance or order for the further investigation, but that action of the Magistrate is a judicial action and at that stage while taking decision on the Final Report the Magistrate has to act judicially as a Court. The Magistrate is required to weigh the prima facie evidence and take a judicial decision.”
Complaint can be dismissed under Section 203 Cr.P.C.
The complaint filed by a private party can be dismissed by the Magistrate under Section 203 Cr.P.C., if he thinks that there is no sufficient ground for proceeding.
If cognizance is (wrongly) taken, it will be QUASHED by the High Court
On the contrary if, on the basis of the consideration of the final report (the statements under Section 161 of the Code), that the essential ingredients of the alleged offence is not, Prima Facie, made out, certainly the Magistrate could not take cognizance; and if cognizance is (wrongly) taken, it will be quashed by the High Court. (Anil Ritolla v. State of Bihar, 2007-10 SCC 110)
‘No court shall take cognizance’, except with the previous sanction u./S. 197
The Three-Judge Bench of our Apex Court, in State of U.P. v. Paras Nath Singh, 2009-6 SCC 372, explained Sec. 197 of the CrPC to point out that a court ‘is precluded from entertaining a complaint or taking notice of it or exercising jurisdiction if it is in respect of a public servant who is accused of an offence alleged to have been committed during discharge of his official duty’. It is held as under:
“And the jurisdiction of a Magistrate to take cognizance of any offence is provided by Section 190 of the Code, either on receipt of a complaint, or upon a police report or upon information received from any person other than a police officer, or upon his knowledge that such offence has been committed. So far as public servants are concerned, the cognizance of any offence, by any court, is barred by Section 197 of the Code unless sanction is obtained from the appropriate authority, if the offence, alleged to have been committed, was in discharge of the official duty. The section not only specifies the persons to whom the protection is afforded but it also specifies the conditions and circumstances in which it shall be available and the effect in law if the conditions are satisfied. The mandatory character of the protection afforded to a public servant is brought out by the expression, ‘no court shall take cognizance of such offence except with the previous sanction’. Use of the words ‘no’ and ‘shall’ makes it abundantly clear that the bar on the exercise of power of the court to take cognizance of any offence is absolute and complete. The very cognizance is barred. That is, the complaint cannot be taken notice of.” (Quoted in:Anil Kumar v. M.K. Aiyappa, 2013–10 SCC 705; Jayant v. State of Madhya Pradesh, 2021 AIRSC496; 2021–2 SCC 670)
Protest Complaint on a Police Charge- Cognisance can be taken
In Kishore Kumar Gyanchandani v. G.D. Mehrotra, (2011) 15 SCC 513, it is held as under:
“6. It is too well settled that when police after investigation files a final form under Section 173 of the Code, the Magistrate may disagree with the conclusion arrived at by the police and take cognizance in exercise of power under Section 190 of the Code. The Magistrate may not take cognizance and direct further investigation in the matter under Section 156 of the Code. Where the Magistrate accepts the final form submitted by the police, the right of the complainant to file a regular complaint is not taken away and in fact on such a complaint being filed the Magistrate follows the procedure under Section 201 of the Code and takes cognizance if the materials produced by the complainant make out an offence. This question has been raised and answered by this Court in the case of Gopal Vijay Verma v. Bhuneshwar Prasad Sinha [(1982) 3 SCC 510 : 1983 SCC (Cri) 110] whereunder the view of the Patna High Court to the contrary has been reversed. The Court in no uncertain terms in the aforesaid case has indicated that the acceptance of final form does not debar the Magistrate from taking cognizance on the basis of the materials produced in a complaint proceeding.” (Quoted in: Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27).
No Meticulous Evaluation; Even GRAVE SUSPICION Sufficient to Frame CHARGE.
In Shashikant Sharma v. State Of Uttar Pradesh, 2024 AIR SC 193 It is observed as under:
At the stage of framing of charges, the Court is not required to undertake a meticulous evaluation of evidence and even grave suspicion is sufficient to frame charge. Nevertheless, there is also a long line of precedents that from the admitted evidence of the prosecution as reflected in the documents filed by the Investigating Officer in the report under Section 173 CrPC, if the necessary ingredients of an offence are not made out then the Court is not obligated to frame charge for such offence against the accused.
Prima Facie Case, Strong Suspicion and Higher Standard
In Sarabjit Singh v. State of Punjab, 2009-16 SCC 46, it is held as under:
“22. ……. Whereas the test of prima facie case may be sufficient for taking cognizance of an offence, at the stage of framing of charge, the court must be satisfied that there exists a strong suspicion. While framing charge in terms of Section 227 of the Code, the court must consider the entire materials on record to form an opinion that the evidence if unrebutted would lead to a judgment of conviction.
23. Whether a higher standard be set up for the purpose of invoking the jurisdiction under Section 319 of the Code is the question. The answer to these questions should be rendered in the affirmative. Unless a higher standard for the purpose of forming an opinion to summon a person as an additional accused is laid down, the ingredients thereof viz. (i) an extraordinary case, and (ii) a case for sparingly (sic sparing) exercise of jurisdiction, would not be satisfied.” (Quoted in: Hardeep Singh VS State of Punjab, AIR 2014 SC 1400; 2014-3 SCC 92; Sunil Kumar Gupta v. State Of Uttar Pradesh, AIR 2019 SC 1174; 2019-4 SCC 556)
Trailblazing decisionon ‘Cognizance‘
Das Gupta J. in Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee, AIR 1950 Cal. 437, held as follows:
“What is taking cognizance has not been defined in the Criminal Procedure Code and I have no desire to attempt to define it. It seems to me clear however that before it can be said that any magistrate has taken cognizanceof any offence under section 190 (1) (a), Criminal Procedure Code, he must not only have applied his mindto the contents of the petition but hemust havedone so for the purpose of proceeding in a particular way as indicated in the subsequent provisions of this Chapter – proceeding under section 200 and thereafter sending it for inquiry and report under section 202.
When the magistrate
applies his mind not for the purpose of proceedingunder the subsequent sections of this Chapter,
but for taking action of some other kind,
e.g., ordering investigation under section 156 (3),
orissuing a search warrant for the purpose of the investigation,
he cannot be said to have taken cognizance of the offence.“
This finding is approved by the Apex Court in R.R. Chari vs. the State of Uttar Pradesh reported in AIR 1951 SC 207, saying as under:
“In our opinion that is the correct approach to the question before the court.”
Superintendent and Remembrancer of Legal Affairs, West Bengal v. Abani Kumar Banerjee is the trailblazing decisionon ‘cognizance‘. It is consistently followed as seen in the following decisions:
Jayant v. State of Madhya Pradesh, 2021 AIR SC 496; 2021-2 SCC 670
Prasad Shrikant Purohit v. State of Maharashtra, AIR 2015 SC 2514; 2015-7 SCC 440
Mehmood Ul Rehman v. Khazir Mohammad Tunda, AIR 2015 SC 2195; 2015-12 SCC 420;
Fakhruddin Ahmad v. State of Uttaranchal, 2008-17 SCC 157
Cref Finance LTD. v. Shree Shanthi Homes Pvt. LTD., AIR 2005 SC 4284; 2005-7 SCC 467
State of WBv. Bejoy Kumar Bose, 1978 AIR SC 188; 1978–1 SCC 173
Ajit Kumar Palit v. State of W.B., AIR 1963 SC 765
R.R. Chari v. The State of Uttar Pradesh, AIR 1951 SC 207.
Supreme Court Decisions on Cognizance
If cognizance on police report not to examine complainant or his witnesses
In Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27, it is pointed out as under:
If cognizance is taken on basis of the police report and not on the complaint, question of examining the complainant or his witnesses would not arise.
After final report cognizance can be on a protest/complaint
In Vishnu Kumar Tiwari v. State of Uttar Pradesh, AIR 2019 SC 3482; 2019-8 SCC 27, it is also found –
Acceptance of final report by police would not preclude taking cognizance on a protest/complaint petition. Protest petition if satisfying requirements of a complaint should be dealt with as complaint
See also: Mahesh Chand v. B. Janardhan Reddy, (2003) 1 SCC 734,
When investigation under Section 156(3) of Cr.P.C. is ordered, no cognizance taken.
When a Magistrate applies his mind for taking action of some other kind, such as directing an investigation under Section 156(3) of Cr.P.C. or issuing a search warrant or a warrant of arrest for the purpose of investigation, he cannot be said to have taken cognizance of the offence. If he does so, he is not to examine the complainant on oath because he was not taking cognizance of any offence therein.
Section 202 of the Code is invoked after cognizance is taken
The powers under Section 156(3) to direct a police investigation can be invoked by the Magistrate at a pre-cognizance stage, whereas powers under Section 202 of the Code are to be invoked after cognizance is taken on a complaint, but before issuance of process.
Tula Ram v. Kishore Singh, AIR 1977 SC 2401;
Narayandas Bhagwandas Madhavdas v. West Bengal, AIR 1959 SC 1118;
Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, 1976-3 SCC 252: AIR 1976 SC 1672
Suresh Chand Jain v. State of MP, (2001) 2 SCC 628;AIR 2001 SC 571;
Dharmeshbhai Vasudevbhai case, (2009) 6 SCC 576;
Dilawar Singh v. State of Delhi, (2007) 12 SCC 641.
Object of Section 200 is to prevent false or vexatious steps
The object of Section 200 of the Code requiring the complainant and the witnesses to be examined, is to find out whether there are sufficient grounds for proceeding against the accused and to prevent issue of process on complaints which are false or vexatious or intended to harass the persons arrayed as accused.
In Small Industries Corporation Limited v. State (NCT of Delhi), 2009-1 SCC 407:
Nirmaljit Singh Hoon v. State of W.B., AIR 1972 SC 2639
Dayle De’souza v. Government of India, AIR 2021 SC 5626
Court of Session not take cognizance as a court of original jurisdiction
Court of Session has no jurisdiction to take cognizance of an offence as a court of original jurisdiction. But, on committal, Sessions Court gets jurisdiction, to take cognizance of offence of persons not named as offenders, whose complicity in the crime comes to light from the material available on record. Hence on committal under S. 209, Sessions Judge may summon, without recording evidence, the appellants not named in police report under S. 173 to stand trial along with those already named therein.
Kishun Sing v. State of Bihar, (1993) 2 SCC 16.
Court considers only averments in the charge-sheet; Not to appreciate evidence
At the time of taking cognizance of the offence, the Court considers only the averments made in the complaint or in the charge-sheet filed under Section 173. It is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no Prima Facie case is made out for proceeding further in the matter.
State of Bihar V. Rajendra Agarwall (1996 (8) SCC 164);
Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
It is open to the Court, before issuing the process, to record the evidence, and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters.
Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415.
Cognizance is taken first; Process issued thereafter
Taking cognizance of an offence is not the same thing as issuance of process. Cognizance is taken at the initial stage when the Magistrate applies his judicial mind to the facts mentioned in a complaint or to a police report or upon information received from any other person that an offence has been committed. The issuance of process is at a subsequent stage when after considering the material placed before it the court decides to proceed against the offenders against whom a Prima Facie case is made out.
State of Karnataka v. Pastor P. Raju, (2006) 6 SCC 728.
S. 156(3) – a bare reading of the complaint – if a cognizable offence disclosed, then may direct the police for investigation
To proceed under Section 156(3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation.
Srinivas Gundluri v. SEPCO Electric Power Construction Corporation, (2010) 8 SCC 206,
Anju Chaudhary v. State of U.P., (2013) 6 SCC 384.
Magistrate is not required to record reasons.
Based on the allegations made in the complaint or the evidence led in support of the same, at the stage of issuing the process to the accused,the Magistrate is to bePrima Facie satisfied that there are sufficient grounds for proceeding against the accused (and not whether there is sufficient ground for conviction; it is determined only at the trial). At this stage, the Magistrate is not required to record reasons. Though speaking or elaborate reasoned orders are not required at this stage, the order of the Magistrate summoning the accused must reflect that he has applied his mind to the facts of the case and the law applicable thereto. And the Magistrate is not to act as a post office in taking cognizance of the complaint.
Mehmood Ul Rehman v. Khazir Mohammad Tunda, (2015) 12 SCC 420,
Birla Corporation Ltd. v. Adventz Investments and Holdings, (2019) 16 SCC 610.R.R. Chari v. State of U.P. AIR 1951 SC 207.
Narayandas Bhagwandas Madhavdas v. West Bengal, AIR 1959 SC 1118, held as under:
“As to when cognizance is taken of an offence will depend upon the facts and circumstances of each case and it is impossible to attempt to define what is meant by taking cognizance. Issuing of a search warrant for the purpose of an investigation or of a warrant of arrest for that purpose cannot by themselves be regarded as acts by which cognizance was taken of an offence. Obviously, it is only when a Magistrate applies his mind for the purpose of proceeding under s. 200 and subsequent sections of Chapter XVI of the Code of Criminal Procedure or under s. 204 of Chapter XVII of the Code that it can be positively stated that he had applied his mind and therefore had taken cognizance.”
Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, 1976-3 SCC 252: AIR 1976 SC 1672, held as under:
“What is meant by “taking cognizance of an offence`’ by a Magistrate within the contemplation of s. 190? This expression has not been defined in the Code. But from the scheme of the Code, the content and marginal heading of s. 190 and the caption of Chapter XIV under which ss. 190 to 199 occur, it is clear that a case can be said to be instituted in a Court only when the Court takes cognizance of the offence alleged therein. The was in which such cognizance can be taken are set out in clauses (a), (b) and (c) of Section 190(1). Whether the Magistrate has or has not taken cognizance of the offence will depend on the circumstances of the particular case including the mode in which the case is sought to be instituted and the nature of the preliminary action, if any, taken by the Magistrate. Broadly speaking, when on receiving a complaint, the Magistrate applies his mind for the purposes of proceeding under s. 200 and the succeeding sections in Chapter XV of the Code of 1973, he is said to have taken cognizance of the offence within the meaning of s. 190(l)(a). If, instead of proceeding under Chapter XV, he has in the judicial exercise of his discretion, taken action of some other kind, such as issuing a search warrant for the purpose of investigation, or ordering investigation by the police under s. 156(3), he cannot be said to have taken cognizance of any offence”
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“Section 156(3) occurs in Chapter XII, under the caption :
“Information to the Police and their powers to investigate”;
while Section 202 is in Chapter XV which bears the heading:
“Of complaints to Magistrates”.
The power to order police investigation under Section 156(3) is different from the power to direct investigation conferred by Section 202(1). The two operate in distinct spheres at different stages. The first is exercisable at the pre-cognizance stage, the second at the postcognizance stage when the Magistrate is in seisin of the case. That is to say in the case of a complaint regarding the commission of a cognizable offence, the power under Section 156(3) can be invoked by the Magistrate before he takes cognizance of the offence under Section 190(1)(a). But if he once takes such cognizance and embarks upon the procedure embodied in Chapter XV, he is not competent to switch back to the pre-cognizance stage and avail of Section 156(3). It may be noted further that an order made under subsection (3) of Section 156, is in the nature of a peremptory reminder or intimation to the police to exercise their plenary powers of investigation under Section 156(1). Such an investigation embraces the entire continuous process which begins with the collection of evidence under Section 156 and ends with a report or charge-sheet under Section 173. On the other hand, Section 202 comes in at a stage when some evidence has been collected by the Magistrate in proceedings under Chapter XV, but the same is deemed insufficient to take a decision as to the next step in the prescribed procedure. In such a situation, the Magistrate is empowered under Section 202 to direct, within the limits circumscribed by that section an investigation “for the purpose of deciding whether or not there is sufficient ground for proceeding”. Thus the object of an investigation under Section 202 is not to initiate a fresh case on police report but to assist the Magistrate in completing proceedings already instituted upon a complaint before him.”
Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285, explained as under:
“Now, when the report forwarded by the officer-in charge of a police station to the Magistrate under sub-section (2)(i) of Section 173 comes up for consideration by the Magistrate, one of two different situations may arise.
The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may do one of three things:
(1) he may accept the report and take cognizance of the offence and issue process or
(2) he may disagree with the report and drop the proceeding or
(3) he may direct further investigation under sub-section (3) of Section 156 and require the police to make a further report.
The report may on the other hand state that, in the opinion of the police, no offence appears to have been committed and where such a report has been made, the Magistrate again has an option to adopt one of three courses:
(1) he may accept the report and drop the proceeding or
(2) he may disagree with the report and taking the view that there is sufficient ground for proceeding further, take cognizance of the offence and issue process or
(3) he may direct further investigation to be made by the police under sub-section (3) of Section 156.
… There can, therefore, be no doubt that when, on a consideration of the report made by the officer in charge of a police station under sub-section (2)(i) of Section 173, the Magistrate is not inclined to take cognizance of the offence and issue process, the informant must be given an opportunity of being heard so that he can make his submissions to persuade the Magistrate to take cognizance of the offence and issue process. …”
“The position may however, be a little different when we consider the question whether the injured person or a relative of the deceased, who is not the informant, is entitled to notice when the report comes up for consideration by the Magistrate. …. But even if such person is not entitled to notice from the Magistrate, he can appear before the Magistrate and make his submissions when the report is considered by the Magistrate for the purpose of deciding what action he should take on the report. … We may also observe that even though the Magistrate is not bound to give notice of the hearing fixed for consideration of the report to the injured person or to any relative of the deceased, he may, in the exercise of his discretion, if he so thinks fit, give such notice to the injured person or to any particular relative of or relatives the deceased, but not giving of such notice will not have any invalidating effect on the order which may be made by the Magistrate on a consideration of the report.”
In Kishun Sing v. State of Bihar, (1993) 2 SCC 16, “the question which arises for consideration” was “whether the learned Sessions Judge was justified in law in invoking Section 319 of the Code at the stage at which the proceedings were pending before him solely on the basis of the documents including statements recorded under Section 161 of the Code during investigation without commencing trial and recording evidence therein?
This decision (A.M. Ahmadi, N.P Singh) answered several questions including (i) Whether the Sessions Court takes Cognisance on committal (ii) can the sessions court add more accused before taking evidence etc. It is held as under:
“…. Now as pointed out earlier Section 319 deals with only one situation, namely, the complicity coming to light from the evidence taken and recorded in the course of an inquiry or trial. This may happen not merely in cases where despite the name of a person figuring in the course of investigation the investigating agency does not send him up for trial but even in cases where the complicity of such a person comes to light for the first time in the course of evidence recorded at the inquiry or trial. Once the purport of Section 319 is so understood it is obvious that the scope of its operation or the area of its play would also be limited to cases where after cognizance the involvement of any person or persons in the commission of the crime comes to light in the course of evidence recorded at the Inquiry or trial. Thus the Section does not apply to all situations and cannot be interpreted to be repository of all power for summoning such person or persons to stand trial along with others arraigned before the Court. ….
We have already indicated earlier from the ratio of this Court’s decisions in the cases of Raghubans Dubey v. State of Bihar, 1967-2 SCR 423: AIR 1967 SC 1167, and Hariram Satpathy v. Tikaram Agarwala, 1979-1 SCR 349: AIR 1978 SC 1568, that once the court takes cognizance of the offence (not the offender) it becomes the court’s duty to find out the real offenders and if it comes to the conclusion that besides the persons put up for trial by the police some others are also involved in the commission of the crime, it is the court’s duty to summon them to stand trial along with those already named, since summoning them would only be a part of the process of taking cognizance.
We have also pointed out the difference in the language of section 193 of the two Codes; under the old Code the Court of Session was precluded from taking cognizance of any offence as a Court of original jurisdiction unless the accused was committed to it whereas under the present Code the embargo is diluted by the replacement of the words the accused by the words the case. Thus, on a plain reading of section 193 as it presently stands once the case is committed to the Court of Session by a magistrate under the Code, the restriction placed on the power of the Court of Session to take cognizance of an offence as a court of original jurisdiction gets lifted. On the magistrate committing the case under section 209 to the Court of Session the bar of section 193 is lifted thereby investing the Court of Session complete and unfettered jurisdiction of the Court of original jurisdiction to take cognizance of the offence which would include the Summoning of the person or persons whose complicity in the commission of the crime can Prima Facie be gathered from the material available on record. The Full Bench of the High Court of Patna rightly appreciated the shift in section 193 of the Code from that under the old Code in the case of S.K Laytfur Rahman v. The State, 1985 PLJR 640: 1985 Crl LJ 1238, as under:
“Therefore, what the law under section 193 seeks to visualise and provide for now is that the whole of the incident constituting the offence is to be taken cognizance of by the Court of Session on commitment and not that every individual offender must be so committed or that in case it is not so done then the Court of Session would be powerless to proceed against persons regarding whom it may be fully convinced at the very threshold of the trial that they are Prima Facie guilty of the crime as well…. … Once the case has been committed, the bar of section 193 is removed or, to put it in other words, the condition therefore stands satisfied vesting the Court of Session with the fullest jurisdiction to summon and individual accused of the crime.”
We are in respectful agreement with the distinction brought out between the old section 193 and the provision as it now stands.
For the reasons stated above while as are in agreement with the submission of the learned counsel for the appellants that the stage for the exercise of power under section 319 of the Code had not reached, inasmuch as, the trial had not commenced and evidence was not led, since the Court of Session had the power under section 193 of the Code to summon the appellants as their involvement in the commission of the crime Prima Facie appeared from the record of the case, we see no reason to interfere with the impugned order as it is well-settled that once under it is found that the power exists the exercise of power under a wrong provision will not render the order illegal or invalid. We, therefore, dismiss this appeal.”
Rashmji Kumar v. Mahesh Kumar Bhada, 1997 SCC (Cri) 415, referred to earlier decision of the Apex Court (State of Bihar v. Rajendra Agrawalla, 1996-8 SCC 164) and observed as under:
It was held in State of Bihar v. Rajendra Agrawalla, 1996-8 SCC 164, that it is not open for the Court to sift or appreciate the evidence at that stage with reference to the material and come to the conclusion that no Prima Facie case is made out for proceeding further in the matter. It is equally settled law that it is open to the Court, before issuing the process, to record the evidence and on consideration of the averments made in the complaint and the evidence thus adduced, it is required to find out whether an offence has been made out. On finding that such an offence has been made out and after taking cognizance thereof, process would be issued to the respondent to take further steps in the matters. If it is a charge-sheet filed under Section 173 of the Code, the facts stated by the prosecution in the charge-sheet, on the basis of the evidence collected during investigation, would disclose the offence for which cognisance would be taken by the court to proceed further in the matter. Thus it is not the province of the court at that stage to embark upon and sift the evidence to come to the conclusion whether offence has been made out or not. The learned Judge, therefore, was clearly in error in attempting to sift the evidence with reference to the averments made by the respondent in the counter-affidavit to find out whether or not offence punishable under Section 406, IPC had been made out.”
In Anil Kumar v. M.K. Aiyappa, 2013-10 SCC 705, it is observed as under:
“15. The judgments referred to hereinabove clearly indicate that the word “cognizance” has a wider connotation and is not merely confined to the stage of taking cognizance of the offence. When a Special Judge refers a complaint for investigation under Section 156(3) CrPC, obviously, he has not taken cognizance of the offence and, therefore, it is a pre-cognizance stage and cannot be equated with post-cognizance stage. When a Special Judge takes cognizance of the offence on a complaint presented under Section 200 CrPC and the next step to be taken is to follow up under Section 202 CrPC. Consequently, a Special Judge referring the case for investigation under Section 156(3) is at pre-cognizance stage.” (Quoted in: Jayant v. State of Madhya Pradesh, 2021 AIR SC 496; 2021-2 SCC 670)
Magistrate candirect a Proper Investigationand Monitor the same
In Sakiri Vasu v. State of U.P., 2008-2 SCC 409 (Markandey Katju, J.), while dealing with the scope of Section 156(3) Cr.P.C., held that the Magistrate can monitor the investigation of police; and it can direct a proper investigation if an application under Section 156(3) is filed. It is held as under:
“11. In this connection we would like to state that if a person has a grievance that the police station is not registering his FIR under Section 154 CrPC, then he can approach the Superintendent of Police under Section 154(3) CrPC by an application in writing. Even if that does not yield any satisfactory result in the sense that either the FIR is still not registered, or that even after registering it no proper investigation is held, it is open to the aggrieved person to file an application under Section 156(3) CrPC before the learned Magistrate concerned. If such an application under Section 156(3) is filed before the Magistrate, the Magistrate can direct the FIR to be registered and also can direct a proper investigation to be made, in a case where, according to the aggrieved person, no proper investigation was made. The Magistrate can also under the same provision monitor the investigation to ensure a proper investigation.
12. Thus in Mohd. Yousuf v. Afaq Jahan this Court observed: (SCC p. 631, para 11) …….
13. The same view was taken by this Court in Dilawar Singh v. State of Delhi (JT vide para 17). We would further clarify that even if an FIR has been registered and even if the police has made the investigation, or is actually making the investigation, which the aggrieved person feels is not proper, such a person can approach the Magistrate under Section 156(3) CrPC, and if the Magistrate is satisfied he can order a proper investigation and take other suitable steps and pass such order(s) as he thinks necessary for ensuring a proper investigation. All these powers a Magistrate enjoys under Section 156(3) CrPC. Criminal Appeal No. 102 of 2011 Page 4 of 8 14. Section 156(3) states:
“156. (3) Any Magistrate empowered under Section 190 may order such an investigation as abovementioned.”
The words “as abovementioned” obviously refer to Section 156(1), which contemplates investigation by the officer in charge of the police station.
15. Section 156(3) provides for a check by the Magistrate on the police performing its duties under Chapter XII CrPC. In cases where the Magistrate finds that the police has not done its duty of investigating the case at all, or has not done it satisfactorily, he can issue a direction to the police to do the investigation properly, and can monitor the same.
16. The power in the Magistrate to order further investigation under Section 156(3) is an independent power and does not affect the power of the investigating officer to further investigate the case even after submission of his report vide Section 173(8). Hence the Magistrate can order reopening of the investigationeven after the police submits the final report, vide State of Bihar v. J.A.C. Saldanha [(1980) 1 SCC 554 : 1980 SCC (Cri) 272 : AIR 1980 SC 326] (SCC : AIR para 19).
17. In our opinion Section 156(3) CrPC is wide enough to include all such powers in a Magistrate which are necessary for ensuring a proper investigation, and it includes the power to order registration of an FIR and of ordering a proper investigation if the Magistrate is satisfied that a proper investigation has not been done, or is not being done by the police. Section 156(3) CrPC, though briefly worded, in our opinion, is very wideand it will include all such incidental powers as are necessary for ensuring a proper investigation.
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27. As we have already observed above, the Magistrate has very wide powers to directregistration of an FIR and to ensure a proper investigation and for this purpose he can monitor the investigation to ensure that the investigation is done properly (though he cannot investigate himself).”
Sakiri Vasu v. State of U.P. is quoted in:
XYZ v. State of Madhya Pradesh, 2022 AIR SC 3957; 2023-9 SCC 705,
M. Subramaniam v S. Janaki, 2020-16 SCC 728,
Vinubhai Haribhai Malaviya v. State of Gujarat, AIR 2019 SC 5233,
Hamant Yashwant Dhage v. State of Maharashtra, AIR 2016 SC 814.
By the Implied Power, Magistrate is the Whole Sole Authorityto Monitor
In Dr. Kuldeep Kaushik v. State of U.P. , 2016 SCC OnLine All. 722, it is found – by the implied power the magistrate is the Whole Sole Authority to Monitorthe Investigation. An instance of monitoring is pointed out in this decision. It held as under:
“It can be inferred that there is no express power to the magistrate regarding the monitoring of the investigation but under section 156 of the Cr.P.C., that implied power is there and magistrate is having whole sole authority to monitor the investigation and in case investigation is not going on proper or in fair manner in that case, magistrate is even having authority to interfere in the investigation.
Xxxxxx
This court is certainly of the view that magistrate is all empowered to monitor the investigation and in case it is required then proper direction may also be issued and if in view of the Code certain papers that are being filed by the accused to be sent to the Investigating Officer, that right can very well be given to the accused, although magistrate will refrain from expressing any opinion regarding the papers and further accused can also not claim that papers may be taken into consideration by the Investigating Officer and after taking all those papers, opinion should be found by the Investigating Officer and only then the wanting report be submitted.
xxxxxx
Had applicant tried to submit the papers before the Investigating Officer and had he refused for taking the papers into consideration, only then the right of accused could have accrued for praying the magistrate to direct the Investigating Officer for a proper investigation under Section 156 Cr.P.C.”
Further investigation by Police – under Sec.173(8) Cr PC
Under 173(8) of the CrPC, a police officer can carry on further investigation. (It does not authorise the Magistrate to make such an order.) Police should seek formal permission from the Court for such further investigation, as held in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762.
In Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC 5233, it is observed as under:
“When Section 156(3) of CrPC states that a Magistrate empowered under Section 190 of CrPC may order such an investigation, such Magistrate may also order further investigation under Section 173(8), regard being had to the definition of investigation contained in Section 2(h).”
In Union Public Service Commission v. S. Papaiah, 1997-7 SCC 614, it was observed as under:
“The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to ‘further investigate’ the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the ‘new’ report to be submitted by the investigating officer would be governed by sub- sections (2) to (6) of Section 173 CrPC.”
(Quoted in: Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC 5233; Central Bureau of India v. Hemendhra Reddy (J.B. Pardiwala, JJ.)
Criticism – The Magistrate, u/s 156(3) CrPC, cannot– (i) monitor or (ii) direct investigation.Similarly, Magistrate cannot Order further investigation under Section 173(8) also.
It is definite –
The CrPC does not specifically say it.
‘Investigation’ is particularly destined to Police; and inquiry is assigned to Magistrate.
Sec. 156(3) reads as under:
“(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.”
Sec. 173(8) reads as under:
(8) Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under Sub-Section (2) has been forwarded to the Magistrate and, where upon such investigation, the officer in charge of the police station obtains further evidence, oral or documentary, he shall forward to the Magistrate a further report or reports regarding, such evidence in the form prescribed; and the provisions of Sub-Sections (2) to (6) shall, as far as may be, apply in relation to such report or reports as they apply in relation to a report forwarded under Sub-Section (2).
It appears –
The logic given in Sakiri Vasu [on “such an investigation“] does not seem convincing. Sec. 156 deals with a lone act of requiring investigation; and no further direction is contemplated (till a final report is filed by the Police).
The CrPC does not give a power to the Magistrate to “monitor” the investigation. (If it was really intended to convey, or the scheme was, a ‘wide power’ to the Magistrate, including monitoring, it would have been stated in the Code itself.)
The power of Magistrate to order ‘further investigation’ is only in Sec. 202 CrPC. It cannot be made under Sec. 156(3) or Sec. 173(8).
Note: Sec. 156(3) deals with the power of Magistrate to direct investigation of cognizable offences by police.
Sec. 173(8)does not authorise the Magistrate to make an order for further investigation. (It authorises the the police officer alone.)
The power for ‘Ordering Proper Investigation’ (by police) may be a matter for the High Court under Article 226 of the Constitution. The ‘grievance’ on investigation cannot be slipped-down to a magistrate, as laid down in Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhages (supra) as an ‘alternate remedy’.
The Magistrate derives powers to deal with (or take cognizance of) the facts which constitute an offence, under Clauses (a) to (c) of Sec. 190(1) of the CrPC. It is on the following –
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
Under Sec. 202, the Magistrate is required to act upon “receipt of a complaint of an offence of which he is authorised to take cognizanceor which has been made over to him under section 192“; and he can exercise following powers –
“enquire into the case himself or
ordering further investigation, through police or any other person”
That is, once a Final Report is filed, the Magistrate has to apply his mind (under Sec. 204) – whether to proceed with it or not.
Once a Final Report is filed, the Magistrate has to apply his mind – to decide whether to proceed with it (that is, to issue summons/warrant under Sec. 204) or not. At this stage, if the Magistrate finds it proper to take further evidence or conduct further investigation, he has to invoke Sec. 202 (and, he cannot go back to Sec. 156). It is for the following – (i) after getting the police report, the magistrate has to take cognizance of offences, under Sec. 190, if he decides to proceed. (ii) after taking cognizance on a police report, if the Magistrate finds it proper to take further evidence or conduct further investigation (to decide whether there is sufficient ground to proceed against accused), only enabling provision in the CrPC is Sec. 202. (iii) after taking cognizance, the Magistrate cannot go back to the pre-cognisance stage, Sec. 156(3). (iv) Sec. 202 expressly provides for taking further evidence or conducting further investigation by the Magistrate, after taking cognizance on a police report also.** [**Note: It is not confined to “Complaint”. The term used is not mere “complaint”. It can also be a ‘complaint of an offence’ in a Charge also. It is clear from the words in Sec. 202 – “on receipt of a complaintof an offenceof which he is authorised to take cognizance the Magistrate can ‘either inquire into the case himself or direct an investigation to be made by a police officer'” ]
A ‘complaint of an offence of which he is authorised to take cognizance‘ “made over to him under section 192“, stated in Sec. 202 definitely refers to a Police Report (on which cognizance is taken) also. It too shows – “complaint of an offence” [in Sec. 202] is used in a wider sense; and not confined to “complaint”.
In short, Magistrate can ‘enquire into the case himself’ or ‘order further investigation’, upon a police report [Refer Report or Charge], which refers to “complaint of an offence of which he is authorised to take cognizance” (without accepting the Police Report, as such) under Sec. 202.
Power of Magistrate under S. 156(3) is Limited, for he cannot travel into the arena of merit of the case (it is to be done in trial). Similarly, the scope of S 202 is also limited for it is only for helping the Magistrate to decide whether or not there is sufficient ground to proceed – that is, if ‘prima facie’ ground, the Magistrate has to proceed.
There is no specific provision that allows the Magistrate to give specific directions as to investigation (to police) in ‘further investigation‘ also.
Concisely, the Code does not allow or direct the Magistrate to “give directions” or to “monitor” the investigation (while it is done by the police).
The above views can be supported by Devarapalli Lakshminarayana Reddy v. V. Narayana Reddy, (1976) 3 SCC 252.
(Note: This decision is not followed in subsequent decisions – Vinubhai Haribhai Malaviya v. State of Gujarat (RF Nariman, J.), AIR 2019 SC 5233, Union Public Service Commission v. S. Papaiah, 1997-7 SCC 614, etc., to observe that Magistrate could, under Section 173(8) CrPC, direct ‘further investigation’.
Sec. 156(3)– Power of Magistrate, Limited
The above propositions are supported by Anju Chaudhary v. State of U.P., 2013 (6) SCC 384 (Madan B. Lokur, Swatanter Kumar JJ.), which pointed out –
“38. Thus, the Magistrate exercises avery limited power under Section 156(3) and so is its discretion. It does not travel into the arena of merit of the case if such case was fit to proceed further.” (Quoted in: Kailash Vijayvargiya v. Rajlakshmi Chaudhuri, 2023-2 Crimes(SC) 384.)
New Code, BNSS, 2023
It is noticeable that the new Code, BNSS, does not make any change to the aforesaid provisions of the CrPC – inspite of the aforestated Supreme Court decesions. It bespeaks the legislative intent clear.
‘Alternate remedy’ to approach the Magistrate
In Sudhir Bhaskarrao Tambe v. Hemant Yashwant Dhages, (2016) 6 SCC 277, it is observed as under:
“2. This Court has held in Sakiri Vasu v. State of U.P., that if a person has a grievance that his FIR has not been registered by the police, or having been registered, proper investigation is not being done, then the remedy of the aggrieved person is not to go to the High Court under Article 226of the Constitution of India, but to approach the Magistrate concerned under Section 156(3) CrPC. If such an application under Section 156(3) CrPC is made and the Magistrate is, prima facie, satisfied, he can direct the FIR to be registered, or if it has already been registered, he can direct proper investigation to be done which includes in his discretion, if he deems it necessary, recommending change of the investigating officer, so that a proper investigation is done in the matter. We have said this in Sakiri Vasucase because what we have found in this country is that the High Courts have been flooded with writ petitions praying for registration of the first information report or praying for a proper investigation.
3. We are of the opinion that if the High Courts entertain such writ petitions, then they will be flooded with such writ petitions and will not be able to do any other work except dealing with such writ petitions. Hence, we have held that the complainant must avail of his alternate remedy to approach the Magistrate concerned under Section 156(3) CrPC and if he does so, the Magistrate will ensure, if prima facie he is satisfied, registration of the first information report and also ensure a proper investigation in the matter, and he can also monitor the investigation.
4. In view of the settled position in Sakiri Vasu case, the impugned judgment of the High Court cannot be sustained and is hereby set aside. The Magistrate concerned is directed to ensure proper investigationinto the alleged offence under Section 156(3) CrPC and if he deems it necessary, he can also recommend to the SSP/SP concerned a change of the investigating officer, so that a proper investigation is done. The Magistrate can also monitor the investigation, though he cannot himself investigate (as investigation is the job of the police). Parties may produce any material they wish before the Magistrate concerned. The learned Magistrate shall be uninfluenced by any observation in the impugned order of the High Court.”
Cognizance In Civil Suits
Rajasthan State Road Transport Corporation v. Bal Mukund Bairwa, AIR 2009 SC 1857; 2009-4 SCC 299, it is held as under:
“Section 9 of the Code is in enforcement of the fundamental principles of law laid down in the maxim Ubi jus Ibi remedium. A litigant, thus, having a grievance of a civil nature has a right to institute a civil suit in a competent civil court unless its cognizance is either expressly or impliedly barred by any statute. Ex facie, in terms of Section 9 of the Code, civil courts can try all suits, unless bared by statute, either expressly or by necessary implication.”
‘Cognizable Offence’ and ‘Non-Cognizable Offence’– Definitions
‘Cognizable offence’ is defined in Section 2 (c) of the CrPC as under:
“Cognizable offence means an offence for which, and ‘cognizable case’ means a case in which a police officer may, in accordance with the First schedule or under any other law for the time being in force, arrest without warrant “.
Section 2(l) defines ‘non-cognizable offence’ as under:
“Non-Cognizable offence means an offence for which and ‘non cognizbale case’ means a case in which a police officer has no authority to arrest without warrant.
Subsequent proceedings after taking Cognizance
It is clear thatunder Sec. 200, in case of a (private) complaint, magistrate can examine the complainant only if he had taken cognizance in the matter.
Subsequent proceedings after taking cognizance (Chapter XVI: Sections 204 to 208)
On getting police report, the Magistrate may resort to one of the following three steps:
(i) accept the report and take cognizance of the offence and issue process;
(ii) disagree with the report and drop the proceedings or
(iii) direct further investigation under Section 156(3).
Where the report of the police states that no offence appears to have been committed, then the Magistrate may resort to one of the following three steps:
(a) accept the (refer) report and drop the proceedings;
(b) disagree with the report and take cognizance of the case and issue process or
(c) direct further investigation to be made by the police under Section 156(3).
If the Magistrate decides not to take cognizance of offence or drop proceedings against some persons mentioned in F.I.R., he must give notice and hear first the informant. Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.
Similarly, where the Magistrate decides not to take cognizance of the offence in spite of Report under sub-sec.(2) of S.173 and to drop the proceeding or takes the view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, the Magistrate must give notice to the informant (not to the injured or to a relative of the deceased, unless such person is the informant) and provide him an opportunity to be heard at the time of consideration of the report. (However, such injured or to a relative of the deceased can appear before the Magistrate and make his submissions when the report is considered by the Magistrate.) Bhagwant Singh v. Commissioner of Police, AIR 1985 SC 1285.
Further investigation by Police and Magistrate – 173(8)
Under Section 156(3) the Magistrate has power to order further investigation (reopening of the investigation). Under 173(8) of the CrPC, a police officer can carry on further investigation. Police should seek formal permission from the Court as held in Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, for further investigation.
No conflict with the power of the police to investigate further in light of Section 173(8) of the CrPC, and the Magistrate’s power to order further investigation under Section 156(3) of the CrPC and therefore the Magistrate can order reopening of the investigation.
Magistrate has three options under Sec. 202 CrPC – on receipt of a final report under Section 173 –
either to accept the report and close the case,
to disagree with the report and proceed with the case or
to order further investigation [obviously under Section 202 of the CrPC).
In Union Public Service Commission v. S. Papaiah, (1997) 7 SCC 614, it was held that the Magistrate could direct “further investigation” under Section 173(8) CrPC also.
Further investigation under 173 (8) possible
In Union Public Service Commission v. S. Papaiah, (1997) 7 SCC 614, it was held as under:
“The Magistrate could, thus in exercise of the powers under Section 173(8) CrPC direct the CBI to “further investigate” the case and collect further evidence keeping in view the objections raised by the appellant to the investigation and the “new” report to be submitted by the investigating officer would be governed by sub-sections (2) to (6) of Section 173 CrPC.”. (quoted in: Central Bureau Of India v. Hemendhra Reddy (Surya Kant, J.B. Pardiwala, jj.)
End Notes
Section 156:
Police Officer’s power to investigate cognisable case.
(1) Any officer-in-charge of a police station may, without the order of a Magistrate, investigate any cognisable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.
Section 190:
Cognizance of offences by Magistrates:
(1) Subject to the provisions of this Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under subsection (2), may take cognizance of any offence-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon a police report of such facts;
(c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed.
(2) The Chief Judicial Magistrate may empower any Magistrate of the second class to take cognizance under subsection (1) of such offences as are within his competence to inquire into or try.
Section 191:
Transfer on application of the accused:
When a Magistrate takes cognizance of an offence under clause (c) of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of the accused, if there be more than one, objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in this behalf.
Section 192:
Making over of cases to Magistrates:
(1) Any Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to any competent Magistrate subordinate to him. (2) Any Magistrate of the first class empowered in this behalf by the Chief Judicial Magistrate may, after taking cognizance of an offence, makeover the case for enquiry or trial to such other competent Magistrate as the Chief Judicial Magistrate may, by general or special order, specify, and thereupon such Magistrate may hold the inquiry or trial.
Section 200
Examination of complainant:
A Magistrate taking cognizance of an offence on complaint shall examine upon oath the complainant and the witnesses present, if any, and the substance of such examination shall be reduced to writing and shall be signed by the complainant and the witnesses, and also by the Magistrate;
Provided that, when the complaint is made in writing, the Magistrate need not examine the complainant and the witnesses, if a public servant acting or purporting to act in the discharge of his official duties or a Court has made the complaint; or if the Magistrate makes over the case for inquiry or trial to another Magistrate under section 192;
Provided further that if the Magistrate makes over the case to another Magistrate under section 192 after examining the complainant and the witnesses, the latter Magistrate need not re-examine them.
Section 202
Postponement of issue of process.
(1) Any Magistrate, on receipt of a complaint of an offence of which he is authorised to take cognizance or which has been made over to him under section 192
may, if he thinks fit,
and shall, in a case where the accused is residing at a place beyond the area in which he exercises his jurisdiction
postpone the issue of process against the accused, and
either inquire into the case himself or
direct an investigation to be made by a police officer or by such other person as he thinks fit,
for the purpose of deciding whether or not there is sufficient ground for proceeding:
Provided that no such direction for investigation shall be made, –
(a) where it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session; or
(b) where the complaint has not been made by a Court, unless the complainant and the witnesses present (if any) have been examined on oath under section 200.
(2) In an inquiry under sub-section (1), the Magistrate may, if he thinks fit, take evidence of witnesses on oath :
Provided that if it appears to the Magistrate that the offence complained of is triable exclusively by the Court of Session, he shall call upon the complainant to produce all his witnesses and examine them on oath.
(3) If an investigation under sub-section (1) is made by a person not being a police officer, he shall have for that investigation all the powers conferred by this Court on an officer-in-charge of a police station except the power to arrest without warrant.
Section 204
Issue of process.
(1) If in the opinion of a Magistrate taking cognizance of an offence there is sufficient ground for proceeding, and the case appears to be –
(a) a summons case, he shall issue his summons for the attendance of the accused, or
(b) a warrant case, he may issue a warrant, or, if he thinks fit, a summons, for causing the accused to be brought or to appear at a certain time before such Magistrate or (if he has no jurisdiction himself) some other Magistrate having jurisdiction.
(2) No summons or warrant shall be issued against the accused under sub-section (1) until a list of the prosecution witnesses has been filed.
(3) In a proceeding instituted upon a complaint made in writing, every summons or warrant issued under sub-section (1) shall be accompanied by a copy of such complaint.
(4) When by any law for the time being in force any process-fees or other fees are payable, no process shall be issued until the fees are paid and, if such fees are not paid within a reasonable time, the Magistrate may dismiss the complaint.
(5) Nothing in this section shall be deemed to affect the provisions of section 87.
•➧Sec. 67, Indian Succession Act says that (the portion of) a Will will be void if – • property is bequeathed to an attesting witness • or to wife/husband of the witness • or to any person claiming under either of them. •➧Sec. 57 says – provisions of the Act as to Wills executed by Hindus are limited to – • the provisions listed in Schedule III of the Act; and • Schedule III does not enumerate Sec. 67. •➧Thereby, a Witness to Hindu-Will will not Lose Benefit(if any, under the Will) .
Section 67 of The Indian Succession Act, 1925, reads as under:
67. Effect of gift to attesting witness.—A will shall not be deemed to be insufficiently attested by reason of any benefit thereby given either by way of bequest or by way of appointment to any person attesting it, or to his or her wife or husband; but the bequest or appointment shall be void so far as concerns the person so attesting, or the wife or husband of such person, or any person claiming under either of them.
Explanation – A legatee under a will does not lose his legacy by attesting a codicil which confirms the will.
Attesting Witness, if Beneficiary, will not Get Benefit under the Will
In Lisamma v. Saramma (A. Hariprasad, J.), ILR 2017-3 Ker 133; 2017-3 KHC 27; 2017-2 KLT 1084, explained Sec. 67 as under:
“On a careful reading of the Section, following matters will be clear:
.(i) A Will shall not be deemed to be insufficiently attested by reason of any benefit given to any person attesting it.
(ii) The benefit can either be by way of a bequest or by way of an appointment (like executor, administrator, etc.)
(iii) No deemed insufficiency in attestation, even if such a benefit is given to any person attesting it or to his or her wife or husband, as the case may be.
(iv) However, the bequest or appointment shall be void so far as it concerns the person so attesting, or the wife or husband of the attestor, as the case may be, or any person claiming under either of them.
9. The sum and substance of the Section is that merely for the reason that a beneficiary has attested a Will, the document will not become void ipso facto. If any benefit is given to the attestor by way of a bequest or by way of an appointment, he will not get any right as that bequest or appointment shall be void insofar as he is concerned. Not only that the attestor’s wife or husband, as the case may be, and persons claiming under either of them are also precluded from claiming any benefit or appointment, as any such benefit or appointment conferred on them by the Will shall be void.”
A beneficiary can be a witness to the Hindu’s Will
Sec. 57 says that provisions of the Succession Act as to Wills apply to Wills of Hindus, Buddhists, Sikhs or Jainas (after 1st January, 1927) –
but, it is limited to provisions listed in Schedule III of the Act; and
Schedule III does not enumerate Sec. 67.
Thereby, a beneficiary can be a witness to Hindu’s Will; and he/she will not lose benefit, if any, under the Will.
It is delineated in Lisamma v. Saramma, as under:
“10. It is interesting to note that the restrictions in Section 67 of the Act may not be applicable to Hindus. It will be amply clear on a conjoint reading of Section 57 and Schedule III of the Act.”
Section 57 reads as under:
57. Application of certain provisions of Part to a class of Wills made by Hindus, etc.—The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply—
(a)to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b)to all such Wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and
(c)to all Wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such Will or codicil.
Section 58 reads as under:
“58. General application of Part.—(1) The provisions of this Part shall not apply to testamentary succession to the property of any Muhammadan nor, save as provided by section 57, to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jaina; nor shall they apply to any Will made before the first day of January, 1866.
(2) Save as provided in sub-section (1) or by any other law for the time being in force, the provisions of this Part shall constitute the law of India applicable to all cases of testamentary succession.”
Relevant portion of SCHEDULE III reads as under:
“Provisions of Part VI Applicable to Certain Wills and Codicils Described in Section 57 –
•➧ Literally translated, Nemo dat quod non habet means: “No one gives what they do not have.” •➧ It is a fundamental principle of the law of Transfer of Property. •➧ Exceptions to this Rule – (i) Negotiable Instruments (ii) Transfer in Good Faith for Value (It is subject to conditions). •➧ If Excess Given, Confine to the Right Held. •➧ Sale by a Sharer in a Partition Suit – courts will, on equity, allot his share to favour the purchaser. •➧ By Proving a Deed, the Title of the Executing Person is Not Automatically Confirmed.
Introduction
In Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., 2021-3 SCC 401, it is pointed out that if literally translated, Nemo dat quod non habet means –
“No one gives what they do not have.”
It is a fundamental principle of the law of Transfer of Property
In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held as under:
“19. It is a fundamental principle of the law of transfer of property that “no one can confer a better title than what he himself has” (Nemo dat quod non habet). The appellant’s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.”
This principle is followed in the following cases also
Union of India v. Vijay Krishna Uniyal, 2018-11 SCC 382,
Standard Chartered Bank v. Andhra Bank Financial Services LTD. 2006 AIR SC 3626; 2006-6 SCC 94
P. Kishore Kumar v. Vittal K Patkar (2023 SCC Online SC 1483; 2024-1 CTC 547; 2023-4 CurCC(SC) 278) is a latest decision (Dipankar Datta, Bela M. Trivedi, JJ.) in this matter which held as under:
“18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., “no one can confer a better title than what he himself has”.
S.27 of the Sale of Goods Act Incorporates this Rule
S.27 Sale of Goods Act reads as under:
“Sale by person not the owner.- Subject to the provisions of this Act and of any other law for the time being in force, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner the buyer, acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell;
Provided that where a mercantile agent is, with the consent of the owner, in possession of the goods or of a document of title to the goods, any sale made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same.
Provided that the buyer acts in the good faith and has not at the time of the contract of sale notice that the seller has no authority to sell.”
The Kerala High Court observed in Vishnu & Co. v. Abdulkhadar Haji, 1990-1 KLJ 358; 1990-1 KLT 519, as under:
S. 27 of the Sale of Goods Act incorporates partially the general rule of English law that no one can transfer a better title to goods than he himself possesses. This rule is often expressed in terms of the Latin maxim “Nemo dat quod non babet”.
The principle underlying the Section is that prima facie the right of the legal owner should be protected unless he has done something to induce innocent purchasers or pledgees to believe that the immediate possessor of the goods is the true owner.
Two exceptions to the strict general rule are provided in the above Section itself. Some others are contained in S.28 to 30 and 54 of the Act itself. S.27 itself makes the rule subject to other exceptions provided by other laws. By providing exceptions to the general rule which protects the true owner absolutely, the law had tried to make provision to protect cases where goods are sold by persons who are not really entitled to sell them. This is an attempt to strike a balance between competing claims put forward by the true owners on the one hand and the bona fide purchaser on the other hand. This is required in the interest of trade and commerce. Thus, under the Indian Law, a purchaser from a seller who has no title or authority to sell the goods can get a valid title to goods only in case he establishes that he comes under one or the other exceptions provided by law as indicated above. The exception relevant for the purpose of this case is the first exception provided in S.27 itself. To bring the case within the first exception to S.27 a person has to establish that he is a bona fide purchaser for value without notice of any defect in title and for that he has to prove that he had purchased the goods after proper enquiry into the right of the person in possession to make the sale. So, an honest purchase made carelessly without making proper enquiries cannot be said to have been made in good faithto convey good title capable of defeating the title of the true owner. Again a bona fide purchaser for value without notice should further show that the true owner is in the circumstances of the case “precluded from denying the seller’s authority to sell”.
This exception is based on the principle of estoppel. Such an estoppel may arise either (I) by reason of a representation made by the true owner that the seller is the owner of the goods or (II) by negligence on the part of the true owner which enables the seller to create an appearance of ownership. Where negligence is relied upon as raising estoppel, it is necessary to show that the true owner owed the buyer a duty to be careful, that in breach of that duty the true owner was negligent and that this negligence was the proximate or real cause of the buyer being induced to part with the purchase price of the goods to the seller. Mere carelessness on the part of the owner to guard his goods does not however create an estoppel. Mere delivery by the true owner to another person of the possession of the goods or documents of title to goods does not estop him from asserting his title as against one who has purchased the goods from that person. A reference to a few passages from Benjamin’s Sale of Goods, Second Edn. at pages 465 and 470 would show that these principles are well settled principles governing acquisition of title by estoppel:
“Where the true owner of goods, by words or conduct, represents or permits it to be represented that another person is the owner of the goods, any sale of the goods by that person is as valid against the true owner as if the seller were actually the owner thereof, with respect to any one buying the goods in reliance on the representation. Although the representation may be by words or conduct, it must be clear and unequivocal. It is therefore well established that the mere parting with possession of goods is not conduct which estops the true owner from setting up his title. Parting with possession alone is not a representation of ownership, even if the person receiving the goods has the authority of the true owner to deliver them to third parties. If the rule were otherwise, any bailor would be estopped from denying his bailee’s right to sell the goods, and there would be no necessity at all for the Factors Acts. There must be something more. The true owner must have so acted as to mislead the buyer into the belief that the seller was entitled to sell the goods”
“The circumstances in which negligence on the part of the true owner can raise such an estoppel are narrowly circumscribed. It is necessary for the buyer to show, first that the true owner owed him a duty to be careful; secondly, that in breach of that duty the true owner was negligent; and, thirdly that this negligence was the proximate or real cause of the buyer being induced to part with the purchase price of the goods to the seller.”
That these are the principles applicable in cases where title is claimed by a bona fide purchaser for value without notice relying upon the principle of title by estoppel, can be seen from important decisions rendered by both English and Indian Courts. Thus in the decision reported in Central Newbury etc. Ltd. v. Unity Finance, (1956) 3 A11.E.R. 905 while dealing with a claim based on title by estoppel two of the three learned Judges Lord Justice Hodson and Morris Q. observed thus:
“Hodson, L.J: by delivering the car registration book, as well as the car itself, to C the plaintiffs had not given him the means of appearing to be the owner or of having apparent authority to sell the car, since the registration book was not a document of title to the car, and since delivery of the car without more would not have amounted to giving C. apparent authority to sell it; and therefore the plaintiffs, who were the true owners of the car, were not estopped from denying the title of the third parties to sell the car to the first defendants, and were entitled to recover damages for its conversion.
Per Morris, L.J.: it cannot be assumed that the person in possession of a car and its registration book is the owner of the car. The absence of a registration book when a car is being sold will naturally give rise to much inquiry. The existence of one in the hands of a seller does not remove all occasion for inquiry and does not prove legal ownership.”
Denning L.J. who dissented from the majority view upheld the claim of the bona fide purchase in a very forceful judgment in the following manner:
“It is said, however, that the original owner owed no duty to the innocent purchaser. I do not agree. When the original owner handed over the car and log-book to a complete stranger, intending to part with the property in them, he ought to have foreseen the possibility that the stranger might try to dispose of them for his own benefit to someone or other. That is what does happen when you hand over goods to a stranger reserving no right to yourself. The original owner owed a duty to any person to whom the stranger might try to dispose of them. The case comes within the words of Lord Wright in Mercantile Bank of India Ltd. v. Central Bank of India Ltd. (4) (1938) 1 All E.R. at p.62): ‘The duty may be, in the words of Blackburn, J., ‘to the general public of whom the person is one’ His identity may be ascertainable only by the event, in the sense that he had turned out to be the member of the general public actually reached and affected by the conduct, negligence, representation or ostensible authority”.
In the decision reported in Moorgate Mercantile Co. Ltd. v. Twitchings (1977) A.C.890 it was again held by the House of Lords that in the case of motor vehicles, delivery to another of possession of the vehicle with the vehicle registration book (or registration certificates) does not constitute a representation that the bailee has authority to sell the vehicle. It is interesting to note that the said decision was also a majority decision and two of the law Lords dissented from the majority and upheld the claim of the bona fide purchaser.”
Transfer of a Motor Vehicle
The Kerala High Court continued in Vishnu & Co. v. Abdulkhadar Haji, 1990-1 KLJ 358; 1990-1 KLT 519, as under:
“26. Further it is necessary to refer to some of the relevant provisions of the Motor Vehicles Act, 1939 (Act IV of 1939) and to understand the exact scope and effect of the registration of the vehicles under the said Act and the nature and implications of the certificate of registration issued under the Act. S.24(2) provides that the registering authority shall issue the owner of a motor vehicle registered by it in accordance with S.21 and 22 of the Motor Vehicles Act; a certificate of registration in the prescribed form. It has been further provided in S.31 of the said Act that whenever a transfer of ownership takes place the transferor as well as the transferee are bound to inform the registering authority of such transfer of ownership and on complying with the requirements of that Section the registering authority shall register the transfer reported to it. Provision is also made as to what should be done when the transfer is omitted to be reported by the transferor and transferee. Relevant portions of S.31 are in the following terms:
“Transfer of ownership. (1) Where the ownership of any motor vehicle registered under this Chapter is transferred,
(a) the transfer-or shall
(i) within fourteen days of the transfer, report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee;
(ii) within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (i) –
(A) a no objection certificate obtained under S.29-A;
(B) in a case where no such certificate has been obtained,-
(I) a receipt obtained under sub-section (2) of S.29-A; or
(II) a postal acknowledgment received by the transferor if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in S.29-A, together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;
(b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.
(1-A)
(1-B)
(1-C)
(2) A registering authority other than the original registering authority making any such entry shall communicate the transfer of ownership to the original registering authority.”
27. From the above provisions it is evident that registering of the transfer of ownership is an act to be done by the statutory registering authority on the basis of the actual transfer of ownership already effected. It is only a record of the fact of change of ownership or title to a motor vehicle and cannot be equated to an act necessary for transfer of ownership or title. Under S.31 the statutory authority is bound to record what has been intimated to it and the authority has no option to refuse registration if the requirements of the Section are complied with. That this is the legal position can be seen from the decision reported in Santakumari v. R.T.O., Kozhikode, 1975 K.L.T. 580 wherein it has been observed as follows:
“From this it is clear that once the transferee reports the fact of transfer within 30 days to the registering authority and certificate of registration is also submitted in order that particulars of the transfer of ownership may be entered in the certificate of registration together with the prescribed fee and a copy of the report received by him from the transferor, and the transferor also makes a report of the transfer to the registering authority, the registering authority has no option but to make the necessary entries in the registration certificate.”
The following observation in the decision reported in P.K. Panda v. Premalata Choudhury, AIR 1980 Orissa 102 is also worth noting in this connection:
“There is no provision of law that the registration of a motor vehicle with the registering authority is a sine qua non for transfer of ownership or that transfer without registration would be void or ineffective. The provisions of S.22, 24 and 31 contemplate a completed transfer of ownership of a motor vehicle. The provisions of the Act regarding registration of vehicles have nothing to do with ownership. They only provide for regulation of the use of the motor vehicles in public places. The certificate of registration issued under S.24(2) of the Act is not a document of title, but it is a piece of evidence to show the owner of the vehicle
Exception to this Rule – Negotiable Instruments
In State Bank of India v. Rajendra Kumar Singh, AIR 1969 SC 401, it is observed as under:
“The property in coins and currency notes passes by mere delivery and it is the clearest exception to the rule Nemo dat quod non habat. This exception was engrafted in the interest of commercial necessity. But the exception only applies if the transferee of the coin. or currency notes takes in good faith for value and without notice of a defect in the title of the transferor. The rule is stated by Wills J. in Whistler v. Forster as follows :
`The general rule of law is undoubted, that no one can transfer a better title than he himself possesses: Nemo dat quod non habat. To this there ,are some exceptions; one of which arises out of the rule of the law merchant as to negotiable instruments. These, being part of the currency, are subject to. the same rule as money: and if such an instrument be transferred in good faith, for value, before it is overdue, it becomes available in the hands of the holder, notwithstanding fraud which would render it unavailable in the hands of a previous holder.`
Transfer in Good Faith for Value: Exception to the Rule – Nemo dat quod non habet
It is applied if the following conditions are also satisfied –
No misrepresentation or fraud, which would render the transactions as void,
the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer the said land, and
In V. Chandrasekaran VS Administrative Officer, 2012 12 SCC 133, it is laid down as under:
“23. The general rule of law is undoubted, that no one can transfer a better title than he himself possesses; Nemo dat quod non habet.
However, this Rule has certain exceptions and one of them is, that the transfer must be in good faith for value, and there must be no misrepresentation or fraud, which would render the transactions as void and also that the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer the said land, and finally that, the parties have acted in good faith, as is required under Section 41 of the Transfer of Property Act, 1882. (Vide: Asa Ram & Anr. v. Mst. Ram Kali & Anr., AIR 1958 SC 183; State Bank of India v. Rajendra Kumar Singh & Ors., AIR 1969 SC 401, Controller of Estate Duty, Lucknow v. Aloke Mitra, AIR 1981 SC 102; Hanumant Kumar Talesara v. Mohal Lal, AIR 1988 SC 299; and State of Punjab v. Surjit Kaur (Dead) through LRs., JT (2001) 10 SC 42).”
If Excess Given, Confine to the Right Held
In Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao, (2013) 9 SCC 425, it is held that the bequest has to be treated only to the extent of the share held by the testatrix, where the testatrix had bequeathed property in excess to her share. This principle is followed in Kavita Kanwar v. Pamela Mehta, AIR 2020 SC 2614; 2021-11 SCC 209.
Bill of Lading and a Negotiable Instrument
In Morvi Bank v. Union of India, 1965 (3) SCR 254, it was observed as under:
“The law on the subject, as we conceive it may be stated thus: An owner of goods can make valid pledge of them by transferring the railway receipt representing the said goods. The general rule is expressed by the maxim nemo dat quod non habet, i.e., no one can convey a better title than what he had. To this maxim, to facilitate mercantile transactions, the Indian law has grafted some exceptions, in favour of bona fide pledgees by transfer of documents of title from persons, whether owners of goods or their mercantile agents who do not possess the full bundle of rights of ownership at the time the pledges are made. To confer a right to effect a valid pledge by transfer of documents of title relating to goods on owners of the goods with defects in title and mercantile agents and to deny it to the full owners thereof is to introduce an incongruity into the act by construction. On the other hand, the real intention of the legislature will be carried out if the said right is conceded to the full owner of goods and extended by construction to owners with defects in title or their mercantile agents.” (Quoted in: Union of India VS Federal Bank, ILR 1982-1 Ker 561)
In Law and Practice of Banking by Milnes Holden observed at page 269 as under:
“The Act did not make bills of lading negotiable instruments. The essential characteristics of a negotiable instrument are (i) the property therein is capable of being transferred by delivery (either with or without endorsement according as to whether the instrument is in favour of order or bearer), (ii) a bona fide transferee for value obtains a title free from equities, and (iii) the holder can sue on the instrument in his own name. The second characteristic implies that a transferee who gives value in good faith may be able to obtain a better title then his transferor had for example, a bona fide transferee for value of a bill of exchange can obtain a good title from a thief. It is this quality that is lacking in the case of a bill of lading. A transferee takes it subject to any defects in the title of prior parties.” (Quoted in: Union of India VS Federal Bank, ILR 1982-1 Ker 561)
What is said of bills of lading applies to a railway receipt also. Anson in the Law of Contract, 24th Edition at page 448 expresses as under:
“But a bill of lading differs from the negotiable instrument with which we have just been dealing: In the first place, its endorsement transfers a remedy in rem, the right to claim specific goods, whereas a negotiable instrument confers only a remedy in personam, the right to be paid a certain sum money.. ….
A bill of lading, then, is a contract assignable without notice; it so far resembles a conveyance that it gives a title to property, but it cannot give a better title, whether proprietary or contractual, than is possessed by the consignee.” (Quoted in: Union of India VS Federal Bank, ILR 1982-1 Ker 561)
In Union of India v. Federal Bank, ILR 1982-1 Ker 561, it was observed as under:
“An endorsee of a document of title (which a railway receipt is – see S.137 of the Transfer of Property Act) does not confer on a transferee better rights than a transferor and even if he might have taken the transfer bona fide for value he cannot claim rights which his transferor did not have. Therefore, if in this case we find that the goods had not been booked and the railway receipts therefore are really not documents of title transferring property or operating as pledges of the property, merely because the Bank took the receipts on payment of value and without knowing the real facts the Bank may not be entitled to a decree. So, the crucial question in this case is whether the railway receipts have been issued without receiving the goods for consignment.
12. In the circumstances of the case the consideration of the question of burden of proof becomes relevant. In this case on whom does the burden lie to show that goods had not been received by the railway administration notwithstanding the admitted issue of railway receipts? The learned counsel Sri Shenoi does not seriously contend that despite the issue of the railway receipts the burden is on the plaintiff. But he submits that such burden on the Railway authorities has been discharged by the evidence in the case. The railway receipt, as we have already indicated, is evidence, so far as third parties are concerned, of entrustment of goods at the stations mentioned therein for the purpose of consigning them. It contains an admission of the receipt of the goods by the railway. An admission is not conclusive evidence. It is open to the party to prove that notwithstanding the admission the facts are otherwise. But in the face of such admission the burden would necessarily be on the railway administration to show that the goods were not received. The court below seems to have made the same approach.”
Sale by some Sharers in Partition Suits & nemo dat quod non habet
Our Apex Court held in Dhanalakshmi v. P. Mohan, 2007-10 SCC 719, that purchasers of undivided shares of the coparceners were entitled to come on record in preliminary decree proceedings so that they may claim an equitable set off in the final decree proceedings as regards their purchase transaction. Hence, the plaintiffs’ omission to array purchasers of undivided share prior to institution of the suit necessitates reconsideration of the matter after affording an opportunity to the purchasers.
The Supreme Court in T. Ravi v. B. Chinna Narasimha, 2017- 7 SCC 342, dealt with a similar situation as under:
“Purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and it cannot be reopened and whatever equity could have been claimed in the final decree proceedings to the extent of the vendor’s share has already been extended to the purchasers.”
In Sardar Surjeet Singh v. Juguna Bai, 2018-1 ICC 591; 2017-4 RCR(Civ) 695 (SC), it is observed as under:
“Thus the determination of shares as per preliminary decree has attained finality, shares of the parties had been crystalised in each and every property. Purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and it cannot be re-opened and whatever equity could have been claimed in the final decree proceedings to the extent of vendor’s share has already been extended to the purchasers.”
In Marirudraiah v. B. Sarojamma, 2009-12 SCC 710 also ou Apex Court accepted the direction (of the High Court) to the trial court to work out the equity in favour of the purchasers and compensate the plaintiffs and other sharers who are not parties to the sale deed.
In S. Sugunamma v B. Padmamma, 2017-5 ALD 403; 2017-4 ALT 757, the Andhra High Court followed the general principle adopted by our courts. It reads as under:
“35. Therefore, in fine, the appellant is entitled to a preliminary decree for partition and separate possession of her one-fifth share in the suit schedule properties. It may be open to the alienees to seek the allotment of the properties purchased by them to the share of the 1st defendant in the final decree proceedings.”
Karnataka High Court in Nagarathnamma v. B. Rudriah, 2012 4 AIR Kar R 424; ILR 2012 (Kar) 4129, in a suit for partition directed the plaintiffs to implead the alinees (of some sharers) in the final decr
This equity principle is consistently followed by the courts in India. See:
Narayana Naicker v. Kannusamy Naicker, 2019 3 LW 19,
Domegunta Venkatasesha Reddy v. Gowramma, 2019-2 AIR Kar R 401; ILR 2019 (Kar).
By Proving a Deed, Title of the Executing Person is Not Automatically Confirmed
The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:
“18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1, Verumpattam Kuzhikkanam dt.14th July 1910). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 .… But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”
1. A ‘trust’ is an obligation. •➧ It is not a legal entity. •➧ It cannot be an association of persons, also. •➧ The properties of the Trusts vest in the trustees. By virtue of Sec. 5, TP Act property can be transferred to Trusts. No such enabling provision to file Cheque-Cases, against Trusts, in NI Act.
2. Sec. 141 of the NI Act, says as to “Offences by Companies”. •➧ In Explanation (a) to this section, it is stated as under: •➧“ ‘Company’ means any body corporate and includes a firm or other association of individuals.” •➧ A ‘firm’, in law, is a collection of partners; and it is a compendious name for all the partners. •➧ But, Trust will not fall in “any body corporate and includes a firm or other association of individuals.”. Therefore, Cheque-Cases under Sec. 138, NI Act will not lie against Trusts.
What is Trust, in Law?
Sec. 3 of the Indian Trusts Act, 1882 defines trust as under:
“Trust: A ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner.”
From the definition it is clear that ‘Trust’, in law, holds the following conceptions:
Trust is ‘an obligation’ upon the trustee.
It is to administer the endowed property.
The administration must be done by the trustee as if he is the owner of the trust property.
It must be done by him accepting the intents desired by the author.
And, the same must be for the benefit of the beneficiaries.
It is clear that the word ‘trust’ is used in law as an ‘abstract countable noun’, similar to ‘a concept’, ‘an idea’ or ‘a duty’.
‘A Trust’ is “An Obligation” and Not a Legal Entity
From the above, it is clear that, legally, a ‘trust’ –
(i) cannot be a juristic person;
(ii) cannot be an association of persons; and
(iii) cannot be a tangible endowment or a corporeal property.
In Surya Kant Chunilal v. Mahesh Chand, AIR 1972 Del. 72 it is held as under:
“Further defendant No. 2 (Trust) is not a registered body or a juristic person. The properties of the Trust vest in the trustees.”
In Kansara Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmadabad, AIR 1968 Guj 184, it is observed by the Gujarat High Court as under:
“The ‘trust property’ is nothing but the subject matter of the trust; that is, a property which is impressed with the obligation giving rise to a trust. When we speak of a trust, we speak merely of the requisite obligation which is annexed to the ownership of a property. This obligation is not a legal entity in any sense; as for example, the trust cannot own any property the property is owned by the trustee who is an entity by himself different from the trust, a trust cannot sue and a trust cannot be sued; it is only a trustee who can sue and who can be sued. It is only a trustee who can hold properties. A ‘trust’ cannot be a landlord since the trust properties vest in the legal ownership of the trustees. It is the trustee alone who can be a landlord. Since the trust is not a legal entity, no question of hardship suffered by the trust or accommodation required by the trust can arise for consideration.” (See also: Ramabai Govind v. Raghunath Vasudevo: AIR 1952 Bom 106).
Order 31 rule 1 CPC
Order 31 rule 1 of the Code of Civil Procedure spells out – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.
In Government of the Province of Bombay v. Pestonji Ardeshir Wadia, AIR 1949 PC 143, the Privy Council held as under:
“The trust is not the plaintiff, and there is no power under the Code for trustees to sue in the name of their trust, as members of a firm may sue in the name of the firm. The plaintiffs were, and were bound to be, the three trustees, and, as no notice was given specifying their names and addresses, the condition precedent to the filing of the suit was not fulfilled”.
The view taken by the Privy Council was accepted by our Apex Court in Ghanshyam Dass v. Dominion of India, AIR 1984 SC 1004, Penner JE, the Professor of Law at King’s College, London, in his Book, The Law of Trusts, has commented as under:
“The trust itself has no legal personality like a company, on behalf of which agents of the company make contracts which bind the company as a legal person itself. Having no legal personality, one cannot sue the trust itself for breach of contract; one sues the trustee for his own breach of contract, even though the breach was of contractual obligation he undertook to benefit the trust.”
Relying the Privy Council and Penner J E, the Kerala High Court held in KR Rajan v. Cherian K. Cherian, 2019-5 KHC 661; 2019-4 Ker LJ 981; 2019-4 Ker LT 1056, as under:
“Trust not being a legal person, and the Code of Civil Procedure not providing any enabling provision for the Trust to sue or for being sued in its name, there is no merit in the contention that the Trust is to be arrayed as an eo-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustees who are to be impleaded to represent the trust.”
In M. V. Muthuramalingam v. D. Narayanaswamy, 1995-83 CC 77 it is held by the Madras High Court as under:
“Unlike a company registered under the Indian Companies Act, the trust is not a juristic person having a separate legal entity. It can act only through its trustees. So, when the petitioner came to issue the impugned cheques and that has resulted in his committing an offence under section 138 Of the Negotiable Instruments Act, he is liable to be proceeded against.”
The Madras High Court has held in Kishorelal Asera v. Haji Essa Abba Sait Endowments, 2003-3 Mad LW 372: 2003-3 CCC 367, and in Thiagesar Dharma Vanikam v. CIT, AIR 1964 Mad 483; 1963- 50 ITR 798, that a trust not being a legal person is not entitled to sue in its own name (Referred to in: Thanthi Trust v. Wealth Tax Officer: 1989-78 CTR 54: 1989- 45 TAXMAN 121: 1989-178 ITR 28).
The Gujarat High Court has also held in Kansara Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmedabad, AIR 1968 Guj 184, that ‘the trust is not a legal entity’ (See also: Ramabai Govind v. Raghunath Vasudevo, AIR 1952 Bom 106).
Following decisions do not present correct law (It is clear from the above)
(i) Pratheesh V v. State of Kerala, 2017-2 Ker HC 977. It is observed as under:
“It is the settled position of law that a registered trust is a legal entity and juristic person entitled to hold property by itself.”
(ii) Lal Chandra Jain v. Suparasdas Jain, 2016-11 All DJ 615. It is observed –
“It is also not in dispute that a registered Trust is a legal person/juristic person and can be sued or can sue in its own name, through the person responsible to manage it.”
Legal Persons, Arbitrary Creations of the Law
Salmond on Jurisprudence, 12th Edn., Page 305, reads:
“A legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination.”
Salmond reads further:
“Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases. Those which are actually recognised by our own system, however, are of comparatively few types. Corporations are undoubtedly legal persons, and the better view is that registered trade unions and friendly societies are also legal persons though not verbally regarded as corporations. If, however, we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application, and that there are several distinct varieties, of which three may be selected for special mention.
1. The first class of legal persons consists of corporations, as already defined, namely, those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus of the legal person are termed its members.
2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a church or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality, not to any group of persons connected with the institution, but to the institution itself.
3. The third kind of legal person is that in which the corpus is some fund or estate devoted to special uses a charitable fund, for example or a trust estate.”(Quoted in: Shriomani Gurudwara v. Shri Som Nath: AIR 2000 SC 1421).
In Manohar Ganesh v. Lakshmiram, (1888) ILR 12 Bom 247, the Division Bench of the Bombay High Court set out the rationale for and the process by which legal personality is conferred on a Hindu idol. Justice West observed:
“The Hindu law, like the Roman law and those derived from it, recognizes, not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also juridical persons or subjects called foundations. A Hindu, who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it, and the ruler will give effect to the bounty … A trust is not required for this purpose: the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English law. In early times a gift placed, as it was expressed, “on the altar of God sufficed to convey to the church the lands thus dedicated.”(Quotted in M Siddiq v. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1).
Law Attributes Legal Personality
Roscoe Pound, Jurisprudence, Part IV, 1959 Edition, on “Jurisprudence”, reads as under:
“In civilised lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antonius Pius the slave was not a person. He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such like animals, could be the object of rights of property. … In French colonies, before slavery was there abolished, slaves were put in the class of legal persons by the statute of April 23, 1833 and obtained a ‘somewhat extended juridical capacity’ by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rights.”(Quoted in: Shiromani Gurdwara v. ShriSom Nath: AIR 2000 SC 1421; M Siddiq v. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1)
The Supreme Court in Som Prakash Rekhi v. Union of India, AIR 1981 SC 212, held that ‘a legal person is any entity other than human being to which law attributes personality’. It held further as under:
“Let us be clear that the jurisprudence bearing on corporations is not myth but reality. What we mean is that corporate personality is a reality and not an illusion or fictitious construction of the law. It is a legal person. Indeed, a legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality is one of the most noteworthy feats of the legal imagination. Corporations are one species of legal persons invented by the law and invested with a variety of attributes so as to achieve certain purposes sanctioned by the law.” (Quoted in: Shriomani Gurudwara Prabandhak v. Shri Som Nath :AIR 2000 SC 1421. See also: Samatha Hyderabad Abrasives Minerals v. State of AP: AIR 1997 SC 3297)
In SGPC v. Som Nath Dass, AIR 2000 SC 1421, the Supreme Court held:
“The very words ‘Juristic Person’ connote recognition of an entity to be in law a person which otherwise it is not. In other words, it is not an individual natural person but an artificially created person which is to be recognized in law as such.”
It held further that Guru Granth Sahib revered in Gurudwara had all the qualities to be recognized as juristic person. Holding otherwise would mean giving too restrictive a meaning to a ‘juristic person’ and that would erase the very jurisprudence which gave birth to it.It is observed (obiter) in this case that ‘it is really the religious faith that leads to the installation of an idol in a temple. Once installed, it is recognised as a Juristic Person. The idol may be revered in homes but its Juristic Personality is only when it is installed in a public temple’.
Nevertheless, Dr. BK Mukherjea, J. in his treatise ‘On Hindu Law of Religious & Charitable Trusts’ the principles as to legal personality, rights emanating therefrom, etc. with respect to a family temple, are presented in the same manner as that of a public temple (KM Senthivel Pillai v. Kulandaivel Pillai: 1970-2 MADLJ 555; P. Jayader v. Thiruneelakanta Nadar: ILR 1966-2 Mad 92; Commissioner of Endowments v. Sri Radhakanta Deb: 1969-35 Cut LT 992).
Is Trust a ‘Living Person’ under S. 5 of the TP Act
Can transfer of property be made to or by Trusts/Associations
Sec. 5 of the TP Act reads as under:
5. “Transfer of property” defined: In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affectany law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.
Existing Laws as to Transfer of Property, will Remain in Force
Two points are emphasised in the 2nd paragraph of Sec. 5 –
First, all unregistered associations, whether incorporated or not, are ‘living persons’, so that transfer of property can be made.
Second, the qualifyingsecond limb – ‘nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals‘ – makes it clear:
if any law regulates transfer of property to (or by) companies, associations or bodies of individuals, it will remain in force.
Note: Order 31 rule 1 CPC spells out – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.
‘Law for the Time Being in Force’ Includes ‘Common Law’
‘Law for the time being in force’ in Sec. 5 TP Act includes “common law”.
It is a reality – the common law of our country accepts as valid the ‘transfer of property’ made to or effected by well-known institutions, organisations, and associations attached to reputed trusts, institutions etc., though they are not juristic-persons in its strict sense. Our courts sumptuously refer to such deeds as documents executed by or in favour of such entities, when they are referred to as exhibits. For example:
Settlement deed by Ashramam–Swayam Prakash Ashramam v. G Anandavally Amma : AIR 2010 SC 622;
Settlement to trust – S N Mathur v. Board of Revenue: 2009-13 SCC 301;
Lease deed by trust to school – TNP Mothoo Natarajan v. PV Ravi: 2015-2 MLJ (Cri.) 656;
Settlement deed to private trust –Kolli Venkata Raja Vv. Govt. of AP: 2014-1 ALT 155;
Lease deed to a public trust –Nadigar Sangham Charitable Trust, rep. by its managing Trustee, R. Sarathkumar v. S. Murugan:2013-1 MLJ 433;
Sale deed to Board of Trustees – Commissioner of Income Tax v. Chemists and Druggists Association Building Trust: 1995-215 ITR(Mad) 741;
“Bodies of individuals” in Sec. 5, TP Act
It may also be pointed out that, “bodies of individuals” in Sec. 5, TP Act is wide in meaning; and it stands independent. It is broad enough to take-in Beneficiaries/ Trustees of a Trust.
Accordingly, the registration and revenue authorities, without objection, register deeds relating to such properties in the names of such institutions, associations etc.
It was held by our Apex Court in Kamaraju Venkata Krishna Rao v. Sub Collector, Ongole, AIR 1969 SC 563, that, under Hindu Law, a tank can be an object of charity and when a dedication was made in favour of a tank, the same was considered as a charitable institution. Without deciding whether that institution can also be considered as a juristic person, it was held that the same had to be registered in its name (ie., in the name of the tank) in the Inam register though it had continue to be managed by its Manager.
It is also noteworthy that Salmond on Jurisprudence reads: “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.”
Trust IS NOT A JURISTIC PERSON to File a Complaint Under the NI Act
There is discernible difference between the expressions in Sec. 5, TP Act and Sec. 141, NI Act.
Sec. 5, TP Act reads – “nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals“.
Sec. 141, NI Act says as to “Offences by companies”. It reads – “ ‘Company’ means anybody corporate and includes a firm or other associationof individuals.”
It is noteworthy that the scope of the enabling provision in the NI Act is considerably limited by the words – “includes a firm or otherassociationof individuals”.
Because,
(i). As shown above, “bodies of individuals” in Sec. 5, TP Act (transfer to – “living person”) is broad enough to take-in Beneficiaries/Trustees of a Trust.
(ii). A firm, in law, is a collection of partners; and it is a compendious name for all the partners.
But, ‘Trust’ will not fall in ‘Company’or ‘any body corporate’ or ‘Firm’ or that “includes a firmor otherassociation of individuals”.
But, Sec. 141 of the NI Act, confines it to “a firm or other associationof individuals.”
BUT, it is held – (For NI Act) Public Charitable Trusts have ‘Juristic Personality’
To the question whether a Public Charitable Trust has been recognised as a juristic person for the purpose of Negotiable Instrument Act, it had been held by the Madras High Court (S. Nagamuthu, J.) in Abraham Memorial v. C. Suresh Babu, 2013- 2 Bank Cases 133: 2012-5 CTC 203: 2012-175 CC 361, that a Public Charitable Trust being capable of contracting, and capable of making and issuing a cheque or Bill (Sec. 26), it is a juristic person for the purpose of the said Act; and that a Trust, either private or public/charitable or otherwise, is a juristic person liable for punishment for the offence punishable under Sec. 138 of the NI Act.
This decision is referred to in –
(1) Nava Education Trust Thro Shambhubhai v. Prakashbhai Dhulabhai Patel (Gujrat, 12 March, 2024)
(2) Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252; 2023-6 KHC 175; 2023-4 KLJ 453; 2023-6 KLT 231
(3) Margadarsi Financiers v. State of Andhra Pradesh, 2019-2 ALD(Cri) 941; 2019-2 ALT(Cri) 197
(10) Battula Parameswara Reddy v. Charity International Trust, 2015-3 ALT(Cri) 141
(11) Jeppiar v. State of Tamil Nadu (29 Nov 2012)
Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252
The Supreme Court, in Sankar Padam Thapa v. Vijaykumar Dineshchandra, Agarwal(Ahsanuddin Amanullah, Prashant Kumar Mishra, JJ), 2025 INSC 1210 (October 09, 2025), overruled “Prana Educational and Charitable Trust”
Contention of the accused
The main contention of the accused (revision petitioners) in Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252; 2023-6 KHC 175; 2023-4 KLJ 453; 2023-6 KLT 231, basing on the Explanation to Sec. 141, was the following:
Trust is not a juristic person as defined under Section 141 of the NI Act.
The 1st accused being a charitable Trust and the 2nd accused being the Managing Trustee and signatory of the cheque, prosecution against the Trust and the Managing Trustee is not legally sustainable.
The accused relied on K.P. Shibu v. State of Kerala, 2019 (3) KHC 1(B. Sudheendra Kumar, J.). It was held in this decision (K.P. Shibu v. State of Kerala) that a Trust is not a body corporate or an association of individuals as provided in the explanation to Section 141 of the NI Act.
High Court accepted the Case of the complainant
The High Court accepted the contention of the complainant that a Trust fall under the expression “company” as used in subclause (a) of the Explanation to Section 141, as it was inclusive of “any body corporate” and “a firmor other association of individuals“.
The High Court followed the following decisions:
(1)Madras High Court: Abraham Memorial v. C. Suresh Babu, 2013- 2 Bank Cases 133: 2012-5 CTC 203: 2012-175 CC 361. It was held that though there was compulsory sentence of imprisonment prescribed under Section 138 of the N.I. Act, a Trust (an Artificial Person) can be prosecuted – as a drawer – and a Trust can be imposed only with fine or compensation.
In the light of Ramanlal Bhailal Patel v. State of Gujarat, 2008 (5) SCC 449, it was further held that (i) A Trust, either private or public/charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable under Section 138 of the Negotiable Instruments Act; (ii) A Trust, either private or public/charitable or otherwise, having either a single trustee or two or more trustees, is a company in terms of Section 141 of the Negotiable Instruments Act; and (iii) For the offence under Section 138 of The Negotiable Instruments Act, committed by the Trust, every trustee, who was in-charge of the day-to-day affairs of the Trust shall also be liable for punishment besides the Trust.
(2)Bombay High Court (Aurangabad Bench) in The Dadasaheb Rawal Co-op. Bank of Dondaicha Ltd v. Ramesh and others (2009 CrLJ 67; 2009 2 MhLJ 58). It was opined that a plain reading of the expression “company” as used in sub-clause (a) of the Explanation is that it is inclusive of any body corporate or “other association of individuals”. The term “association of individuals” will include club, trust, HUF business, etc. It shall have to be construed ejusdem generis along with other expressions “company” or “firm”.
(3)Gujarat High Court in Shah Rajendrabhai Jayantilal v. D. Pranjivandas, 2017-2 GLH 328. It was found that the term “association of individuals” would include club, trust, Hindu Undivided Family business. Prima facie, it shall have to be construed ejusdem generis along with other expression “company” or “firm”. Therefore, a joint family business must be deemed as a juristic person like a company or firm. The High Court followed Anita Handa v. M/s. Godfather Travels & Tours Pvt Ltd, 2007 (11) SCC 297 (wherein it was viewed that a complaint against a Director of the company would not be maintainable if the company is not impleaded as accused; and that a plain reading of the expression “company” as used in subclause (a) of the explanation appended to Section 141 is that it is inclusive of any body corporate or “other association of individual“.
The Kerala High Court (Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252) distinguished the earlier decision, K.P. Shibu v. State of Kerala, 2019 (3) KHC 1, stating the following:
“It is discernible that the said decision is not so elaborativeand the interpretation of the term “association of individuals” not done by applying the ratio of ejusdem generis. The principle of ejusdem generis intended for the construction of constitutional and statutory provisions means “of the same kind” and this doctrine provides that the general words which follow the specified words will be restricts to the same class of the specified words. While applying this principle,
(1) the general words must follow the specific words and the specific words must necessarily constitute, a genus/class
(2) the legislative intention of the statute to be born in mind for restricting the general word to the genus/class of the specified words if follows and
(3) this principle has to be used by the Courts properly and apply where it is necessary and not use this principle where it is not necessary so as to defeat the purpose of the statute and to cause miscarriage of justice are the conditions to be satisfied.”
A Discordant Note
‘A trust’, according to the definition, being ‘an obligation’; and, it does not convey the idea that (i) it is a “body corporate” or (ii) “a firm or other association of individuals” (as stated in Sec. 141 NI Act), it appears that the following decisions are not correctly decided –
Abraham Memorial v. C. Suresh Babu, 2013-2 Bank Cases 133: 2012-5 CTC 203: CC 2012-175 361, and
Prana Educational and Charitable Trust v. State of Kerala, 2023-6 KHC 175.
Conclusion
A trust differs from a ‘firm’, as a firm is, in law, a collection of partners; and it is merely a compendious name for all the partners, or only an ‘association of persons’ (Firm Alwar Iron Syndicate v. Union of India, AIR 1970 Raj 86; Shanker Hoursing Corporation v. Mohan Devi, AIR 1978 Del 255, DB).
Though a Firm is allowed to sue, or be sued, under Rule 1 of Order 30 CPC, it is only an enabling method to sue, or be sued, partners of a firm (both Registered and Unregistered), in the name of the firm. Suit by or against a firm is, in truth, suit by or against its partners.
It may also be pointed out that a trustee can be proceeded against, in a proper case, if the cheque dishonoured is signed by him (in the capacity as trustee). Because, as stated above, ‘trustee, who is an entity by himself’, stands technically distinct from the trust, in legal parlance; and, a trust has to be sued through its trustee (Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmadabad, AIR 1968 Guj 184).
1.‘Obstruction‘ up to One yearis Not an ‘Interruption’, under Sec. 15 In accordance with Explanation II to Sec. 15, Indian Easements Act, 1882 – •➧ an obstruction for a period up to One Year •➧ will not be counted, or considered, as a bar •➧ for achieving the the completion of 20 years’ •➧peaceable enjoyment without interruption •➧ (even if the obstruction is acquiesced, •➧ or suffered silently, by the dominant owner).
Because, Explanation II says – “Nothing is an interruption within the meaning of this section” (Sec. 15) •➧ “… unless such obstruction is submitted to or acquiesced in •➧for one yearafter the claimant has notice thereof and •➧ of the person making or authorising the same to be made”.
2. Period Up To One Year (not counted) can be in the 20th year, or earlier It is definite from Explanation II- •➧ The period of obstruction up to One Year (that will not stop •➧ the fulfilment of with 20 years’ peaceable enjoyment •➧‘without interruption’), can be – •➧ either in the end of 20th year, or in any period earlier thereto.
3.What does (20 + 2) years denote? Para 5 of Sec. 15 of the Easements Act, refers to various easements (such as, right to light or air, way, watercourse, use of water, etc. – the period for prescription for each one is 20 years) and says: •➧ “Each of the said periods oftwenty years shall be taken to be •➧ a period ending within two years next before •➧ the institution of the suit wherein •➧ the claim to which such period relates is contested.” It denotes two things: •➧ (1) Easement by prescription (with minimum 20 years’ user) •➧ must have been perfected, prior to the ‘obstruction’. •➧ (2) Suit must be filed within 2 years of obstruction (cause of action). Therefore, a suit can be filed – •➧ on the next day of completing the ‘20-years-user’; •➧ but, within 2 years of obstruction (cause of action).
4.Why No Limitation of 3 years, as usually seen in Limitation Act? ‘Obstruction’ up to One Year being Not Counted •➧ (for the purpose of Sec. 15, as per Explanation II) •➧ in cases of acquiescence by the dominant owner, •➧2 years‘ limitation period (in Sec. 15 para 5) will begin •➧ only after the said period “for One Year“. Therefore, where there is acquiescence for a period up to One Year, •➧ the period of ‘limitation’ will be 3 years. But, it is obvious: •➧ If the dominant owner has made an attempt to remove the obstruction •➧ (or interfered, in contrast to acquiescence) •➧ the ‘limitation-period’ of 2 years will run from that date.
1. “Obstruction is submitted to or acquiesced in for One Year” (in Explanation II)
For the acquisition of easement by prescription on light, air, support, way etc., Sec. 15 Easement Act stipulates that it must have been enjoyed ‘without interruption’ for minimum 20 years.
While explaining what is ‘interruption’, 1st part of Explanation II explains that ‘interruption’ is actual cessation of the enjoyment.
The 2nd part of Explanation II to Sec. 15 lays down –
“Nothing is an interruption within the meaning of this section” (Sec. 15) “… unless such obstruction is submitted to or acquiesced in for one yearafter the claimant has notice thereof and of the person making or authorising the same to be made”.
An Obstruction for a period up toOne Year will Not be an ‘Interruption’
Analysing Explanation II, on first principles, it can be said –
An obstruction for a period up to one year will not be an ‘interruption’, or a bar to the ‘peaceable enjoyment’ (to claim easement by prescription).
The aforesaid legal proposition (that an obstruction for a period up to one year will not prevent the perfection of easement by prescription), will apply with full vigour even if it is acquiesced by the dominant owner.
2. ‘Obstruction‘ up to One year (in the 20th year, or earlier), Not Counted
It is also definite from the 2nd part of Explanation II to Sec. 15 –
The aforesaid period of obstruction up to one year, that will not stop the fulfilment of 20 years’ uninterrupted enjoyment (required for the perfection of easement by prescription), can be either in the end of 20th year, or in any period earlier thereto .
3. Explanation II is an enabling provision
2nd part of Explanation II (that is, an obstruction for a period up to One Year will not stand as an interruption) is an enabling provision that stands in favour of the dominant owner (claimant of the easement), for the following reasons –
(1) ‘interruption’ is a (negative) matter that stands against (perfection of) easement by prescription, and
(2) Explanation II lays down – if only the dominant owner acquiesced obstruction, for a period more than one year, then only it will operate as an ‘interruption’ against acquiring easement.
Note: 1. It is clear that the pleading as to ‘interruption, for more than one year‘ has to come (in most cases) from the servient owner (to show no perfection of easement by prescription). Therefore, the burden of proving obstruction, for more than one year, will be upon the servient owner.
2. When this plea is raised by the servient owner-
(i) he has to admit the enjoyment of the right claimed up to the date of obstruction; and
(ii) if that plea is resisted by the dominant owner, saying that the period of obstruction is below one year, then it will be a question of fact.
4. Reckoning of one year period
Explanation II makes it clear –
the period of one year is reckoned (1) from the date of notice of the obstruction by the claimant and (2) after getting the knowledge of the person who made the obstruction, or the person who authorised the same to be made.
This plea can be validly raised by the dominant owner (claimant of easement) in the following set of facts –
The servient owner interrupts/obstructs a way by constructing a wall, a few months prior to completion of 20-year-period (for acquiring easement by prescription).
Acquiescing the obstruction, the dominant owner (claimant of easement) purchases a nearby property and makes an (alternate) way.
After completion of 20-years-user (as regards the earlier way) and within one year of ‘acquiescing’ obstruction, the dominant owner can validly claim easement by prescription over that way, invoking this provision.
5. Why No Limitation of 3 years as usually seen in Limitation Act?
‘Obstruction’ up to One Year being not counted (for the purpose of Sec. 15, in accordance with Explanation II) in cases of acquiescence by the dominant owner (that is, in spite of notice of obstruction, no attempt made to remove it), 2 years‘ limitation period (in Sec. 15 para 5) will begin only after the said period “for One Year“.
That is, in cases where there is acquiescence to obstruction for a period up to one year, the period of ‘limitation’ will be 3 years.
Hence, in cases where there is acquiescence (up to one year) after perfection of the 20-year period, suit can be filed –
on the next day of completing the ‘20-years-user’;
or, within three years of obstruction.
But, it is obvious:
If the dominant owner has made an attempt to remove obstruction (or interfered, in contrast to acquiescence), the limitation of 2 years will run from that date.
6. No Legal Basis for the Proposition based on “Completion of 22 Years user”
Para 5 of Section 15 of the Indian Easements Act, 1882 is the relevant provision.
It reads as under:
“Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested..”
(We see exactly similar wording in Sec. 25(2), Limitation Act also.)
“Each of the said periods of twenty years ” – Import
Section 15 and 25 refer to various easements – right to light or air, way, watercourse, use of water, way etc.
The period for prescription for each of the said easement is 20 years.
“Wherein the claim to which such period relates is contested”- Gist
It simply refers to ‘cause of action’.
“Ending within two years”– Purport
Para 5 of Sec. 15 lays down two essential conditions –
Firstly, the suit must have been filed after perfecting the right of easement by 20 years’ user, and
Secondly, the suit must have been filed within two years of cause of action; that is, obstruction.
On analysis, it can be seen that Para 5 of Section 15 is attracted in the following situation:
The cause of action for a suit under Section 15 (interruption to the enjoyment or its threat), must be after perfecting the right of easement by 20 years user.
Such cause of action can be one that arises on the next day of completion of 20 years. But, the suit must have been filed within 2 years of such cause of action.
There is no legal basis at all for the proposition based on “the completion of 22 years user” inasmuch as:
the cause of action (interruption or threat) contemplated in Para 5 is that arises after perfection of easement after completion of 20 years, and
the suit could be brought on that day of cause of action itself, or any day within two years.
In case, the suit is not filed within 2 years of the cause of action (interruption), by the person claiming the easement (dominant owner); his right thereon will stand barred.
‘Obstruction’ up to One Year being not counted, as explained above (for the purpose of Sec. 15, in accordance with Explanation II), 2 years‘ limitation period (in Sec. 15 para 5) will begin only after the said period “for One Year“; and thereby period of ‘limitation’ will be 3 years.
See:
Nachiparayan v. Narayana Goundan, AIR 1920 Madras 541,
Syed Manzoor Hussain v. Hakim Ali Ahmad, AIR 1980 All. 389,
Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216,
Badariya Madrassa Committee v. Antony Robert Breganza: 2006-2 Ker LT 636;
Marthoma Syrian Church v. Jessie Thampi, ILR 2020-2 Ker 713; 2020-2 Ker LT 653.
7. Does Cessation of Enjoyment (out of Obstruction) alone mark ‘Interruption’?
The 1st part of Explanation II to Section 15 explains what is ‘interruption’. It reads as under:
“Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant ….”
According to this part, there will be interruption if it is suffered –
by actual cessation of the enjoyment,
by an obstruction,
by the act of some person other than the claimant.
See:
Eaton v. The Swansea Waterworks Co., [1851] EngR 559, 17 QB 267, 117 ER 1282.
Prasad v. Patna City Municipality, AIR 1938 Pat 423;
Anu Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216.
Pankan Soman v. C.K. Manoharan, 2019-1 KHC 817,
See also: Neil J. Creado v. Shah Abbas Khan, 2020-1 Bom CR 160,
Kapilrai Brijbhukhandas v. Parsanben Dhirajlal, 1998-4 Guj CD 2941.
8. ‘Without Interruption’ in Section 15 is congruent to ‘Peaceable Enjoyment’
Explanation II to Section 15 explains ‘interruption’ as ‘actual cessation’ for ‘obstruction’. Therefore,
‘Without interruption’ in Section 15 is congruent to ‘peaceable enjoyment’; and actual cessation by obstruction’ alone negatives ‘peaceable enjoyment’.
In other words, ‘peaceable enjoyment’ also stands on par with (similar to) the explanation to ‘interruption’ (that is, there must be actual obstruction, more than a verbal dispute, or legal proceedings).
See:
Muthu Goundan v. Anantha Goundan, AIR 1916 Mad. 1001: 31 Ind Cas 528
Varkey John v. Varkey Stanselose, AIR 1973 Ker 198,
Eaton v. The Swansea Waterworks Company, [1851] EngR 559, (1851) 17 QB 267, (1851) 117 ER 1282.
In Tagore Law Lectures delivered by Peacock deduces, from the cases, that “peaceable enjoyment” means “enjoyment without interruption or opposition of the servient owner sufficient to defeat the enjoyment”, and “that obstruction or opposition to enjoyment must find expression in something done on the servient tenement or the legal proceedings.”
See: Bai Kurvarbai v. Jamsedji Rustamji Daruvala, 49 Ind Cas 963.
Acquisition by prescription. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
and where a right of wayor any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,
the right to such access and use of light or air, support or other easement shall be absolute.
Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
Explanation I.–Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
Explanation II.–Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one yearafter the claimant has notice thereof and of the person making or authorising the same to be made.
Explanation III.–Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
Explanation IV.–In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
When the property over which a right is claimed under this section belongs to Government this section shall be read as if, for the words “twenty years”, the words “thirty years” were substituted.
Illustrations
(a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882. The plaintiff is entitled to judgment.
(b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as an easement” for twenty years.
(c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoyed the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.
Saji Koduvath Associates 