One Year Interruption or Obstruction will not affect Prescriptive Easement

Taken from the Blog: What is ‘Interruption’ and “Period ending within two years next before the institution of the suit”?

Saji Koduvath, Advocate, Kottayam.

Abstract

1. ‘Obstruction‘ up to One year is 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 year after 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 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.”  
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 year after the claimant has notice thereof and
                   of the person making or authorising the same to be made    ”.

An Obstruction for a period up to One 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. ‘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;  
  • Satya Devi Vs. Sansar Chand: 2007-50 AIC 678, CIVCC 2007-2 605, HLJ 2006-2 1392, 2007-5 RCR(CIVIL) 352, ShimLC 2006 2 431
  • 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.

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End Notes

Sec. 15 Easement Act reads as under:

  • 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 way or 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 year after 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.

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Thangam v.  Navamani Ammal: Did the Supreme Court lay down – Written Statements with no “Para-Wise” Denial are Vitiated?

Saji Koduvath, Advocate, Kottayam.

Abstract

It appears, it may not be correct to say –
               In Thangam v.  Navamani Ammal
               the Supreme Court laid down the ‘law’ that
               the Written Statements would stand vitiated –
               if (or merely for) no “para-wise” denial of facts in the plaint;
               and,
               such Written Statements (without ‘para-wise’ denial)
               would be eschewed from consideration
               even if they do deal distinctly with each allegation of fact in the plaint.

Thangam v.  Navamani Ammal

In Thangam v.  Navamani Ammal (C.T. Ravikumar & Rajesh Bindal, JJ.), our Apex Court observed (AIR 2024 SC 1324) as under:

  • “15. In the absence of para-wise reply to the plaint, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.”

Finally, the Court held as under:

  • “15.6.  We have made the aforesaid observations as regularly this Court is faced with the situation where there are no specific para-wise reply given in the written statement/ counter affidavit filed by the defendant(s)/ respondent(s). In our opinion, if the aforesaid correction is made, it may streamline the working.”

It appears, it may not be correct to say –

  • The Supreme Court laid down the ‘law’ that the Written Statements would stand vitiated – if (or merely for) no “para-wise” denial of facts in the plaint;
  • and,
  • such Written Statements (without ‘para-wise’ denial) would be eschewed from consideration even if they do deal distinctly with each allegation of fact in the plaint.

The Supreme Court pointed out as under –

  • “15.1 Order VIII Rules 3 and 5 CPC clearly provides for specific admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.
  • 15.2 The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.”

The Apex Court relied on, and quoted from, the following two decisions:

  • Badat and Co. Bombay v. East India Trading Co AIR 1964 SC 538.
  • Lohia Properties (P) Ltd. v. Atmaram Kumar (1993) 4 SCC 6.

Badat and Co. Bombay v. East India Trading Co

In Badat and Co. Bombay v. East India Trading Co, AIR 1964 SC 538, it is held as under:

  •  “11. Order 7 of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written-statement, the particulars to be contained therein and the manner of doing so; XX XX XX These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.”

Lohia Properties (P) Ltd., Tinsukia v. Atmaram Kumar

In Lohia Properties (P) Ltd., Tinsukia v. Atmaram Kumar, (1993) 4 SCC 6, it is held as under:

  • “14. What is stated in the above is, what amount to admit a fact on pleading while Rule 3 of Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth.
  • 15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.”

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Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar

Jojy George Koduvath

Order IX Rule 9

  • Order 9 Rule 9 of the Civil Procedure Code provides that when the suit is wholly or partly dismissed under Rule 8 (dismissed for default) the plaintiff shall be precluded from bringing in a fresh suit in respect of the same cause of action.

Earlier suit for Injunction; present suit for Recovery & Injunction – No Bar

In Ghanchi Pirbhai Kala v. Meghamal Sirumal, 1989-1 Guj LH 539; 1989-1 Guj LR 183, it was held as under:

  • (24) …. The earlier suit was filed for injunction alone. … It was not a suit for recovery of possession and injunction…..
  • (25) The present suit is not filed on the same cause of action. In this suit the case of the plaintiff is that … possession of the plaintiff has been illegally taken away by the defendants and therefore the possession should be restored. Thus it is evident that cause of action in both the suits is entirely different. Hence the contention raised on the basis of the provisions of Order 9 Rule 9 of C. P. Code has no merits.

In Chelladurai v. Minor Aravind, 2008-4 LW 737 (Mad), the question arose was whether the subsequent suit for possession was not maintainable when the earlier suit for injunction has been dismissed for default.The court answered the question as under:

  • “The cause of action for the earlier suit was on account of the attempted trespass in respect of A schedule property. But the cause of action in the subsequent suit was entirely different and the relief was for a decree of recovery of possession. Therefore I am of the view that the subsequent suit in O.S.No.16 of 2003 was not barred under Order IX rule 9 in view of the dismissal of the earlier suit in O.S.No. 64/02. Therefore the first substantial question of law is answered against the defendant.”

Mandatory Injunction Sought For Instead One For Possession

If possession is lost, the plaintiff has to seek recovery; and mandatory injunction would not be sufficient. Court fee is also different for recovery. In Sant Lal Jain v. Avtar Singh, AIR 1985 SC 857, our Apex Court observed as under:

  • “7. In the present case it has not been shown to us that the appellant had come to the Court with the suit for mandatory injunction after any considerable delay which will disentitle him to the discretionary relief. Even if there was some delay, we think that in a case of this kind at-tempt should be made to avoid multiplicity of suits and the licensor should not be driven to file another round of suit with all the attendant delay, trouble and expense. The suit is in effect one for possession though couched in the form of a suit for mandatory injunction as what would be given to the plaintiff in case he succeeds is possession of the property to which he may be found to be entitled. Therefore, we are of the opinion that the appellant should not be denied relief merely because he had couched the plaint in the form of a suit for mandatory injunction.”

Also Read: Order II, Rule 2 CPC – Not to Vex Defendants Twice

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Sec. 65B

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Newspaper Reports are ‘Hearsay Secondary Evidence’

Saji Koduvath, Advocate, Kottayam.

Abstract

A Newspaper Report is Not a “Legal Evidence”; it is ‘Hearsay Evidence’.

Newspaper Reports Become Primary Evidence when Reporter is Examined.

Presumption of Genuineness U/S. 81, of the Indian Evidence Act is Not ‘Proof of the Facts ’.

CDs of News Clipping Telecasted in TV are also Hearsay Evidence.

Courts cannot take judicial notice of facts in a news in a newspaper.

Introductory Muse

Our Apex Court (Hrishikesh Roy and Justice Pankaj Mithal, JJ) observed in Dinesh B.S. v. State of Karnataka, MANU/SCOR/113600/2023, as under:

  • “To show the error in the reasoning of the High Court on laying much credibility on the newspaper reports, the learned Senior Counsel Mr. D. Seshadri Naidu quoted Mark Twain who said,
    • “If you don’t read the newspaper, you’re uninformed. If you read the newspaper, you’re misinformed.”
  • In the facts of the present case, this Court is inclined to accept the submission of the learned Counsel that an extrajudicial confession cannot be given greater credibility only because it is published in a newspaper and is available to the public at large.”

Laxmi Raj Shetty v. State of TN, is the Locus Classicus Decision

Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319 at 346, is the locus classicus decision on the question of admissibility of a news in a newspaper. It is held as under:

  • “We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aligned. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in S. 78(2) of the Evidence Act, 1872 which an allegation of fact can be proved. The presumption of genuineness attached u/ S. 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein.
  • It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.” (Quoted in: Quamarul Islam v. S. K. Kanta, AIR 1994  SC 1733; S. A. Khan v. Bhajan Lal, AIR 1993 SC 1348; 1993 3 SCC 151)
  • Note:
  • Sec. 78(2) of the Indian Evidence Act, 1872 speaks as to ‘proof of other official documents such as ‘the proceedings of the Legislatures – by the journals of those bodies respectively or by published Acts or abstracts; or by copies purporting to be printed by order of the Government concerned.
  • S. 81 speaks as to ‘presumption as to Gazettes, newspapers, private Acts of Parliament and other documents’.

Presumption of Genuineness Under Sec. 81 Is Not ‘Proof of the Facts Stated Therein’

In Ravinder Kumar Sharma v. State of Assam, (1999) 7 SCC 435, it was held that ‘the newspaper reports are merely hearsay and not proof of facts stated therein’. It is observed as under:

  • “…  (T)he presumption of genuineness attached under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay (Laxmi Raj Setty v. State of Tamil Nadu, 1988 (3) SCC 319).”

No Judicial Notice on News in a Newspaper

In Jacob Puliyel v. Union of India, 2022-7 Scale 256; 2022-3 SCR 471, it is held as under:

  • “It is settled law that courts cannot take judicial notice of facts stated in a news item published in a newspaper.”

Newspaper Report Cannot be Relied on Unless Proved by Evidence from another source

In RK Anand v. Registrar, Delhi High Court, 2009 8 SCC 106, it is held as under:

  • “SA Khan v. Bhajan Lal, (1993) 3 SCC 151, and in Quamarul Islam vs. S. K. Kanta, (1973) 1 SCC 471 relate to newspaper reports. In these two decisions it was held that newspaper report is hearsay secondary evidence which cannot be relied on unless proved by evidence aliunde.”

In Quamarul Islam v. SK Kanta, AIR 1994 SC 1733, 1994 Supp. (3) SCC 5, our Apex Court held as under:

  • “48. Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled.” (Quoted in: Borgaram Deuri v. Premodhar Bora, AIR 2004  SC 1386; 2004-2 SCC 227)

Newspaper Reports Becomes Primary Evidence when Reporter is Examined

The Supreme Court decision in Samant N. Balakrishna v. George Fernandez, (1969) 3 SCR 603 considered the question whether George Fernandez, had delivered a speech at Shivaji Park, Bombay as attributed in the report in the Maratha, a Marathi newspaper. Our Apex Court held as under:

  • “A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.”

In Oommen Chandy v. State of Kerala, 2016 4 Cri CC 43; 2017 CrLJ 925; 2016 3 ILR(Ker) 326, the Kerala High Court held as under:

  • “10. It is trite law that newspaper reports regarding the incident can only be treated as merely ‘hearsay’ in the matter and nothing more. When a reporter has reported some thing, and if it is from his personal knowledge, definitely it can be primary evidence, provided, the said person is examined to prove those statements. If not, it attains only the status of ‘hearsay secondary evidence’.”

CDs of News Clipping Reports Telecasted in a TV Channel –  Hearsay Evidence

Mohet Hojai, Son of Shri Thangmai Hojai v. National Investigation Agency (11 Aug 2023, Gau) held as under:

  • “149. In the case of Jacob Puliyel v. Union of India & Ors., reported in (2022) 3 SCR 471, the Hon’ble Supreme Court held that Courts cannot take judicial notice of facts stated in a news item published in a newspaper. A statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence, unless proved by the maker of the statement appearing in the Court and deposing to have perceived the fact reported.
  • 150. We feel that the same analogy would apply to a report telecasted in a TV channel. Thus, the CDs of news clipping reports sought to be proved in the testimony of Hiteswar Medhi (PW-27) and Caushiq Kashyap Bezbaruah (PW-70) were inadmissible as the same tantamount to hearsay evidence. That apart, the CDs were in form of secondary evidence and absence of certificate under Section 65B of the Evidence Act ruled out their production in evidence.”

A Newspaper Report is Not a “Legal Evidence”

In Naval Kishor Sharma v. State of U.P. (Samit Gopal, J.), 2022-11 ADJ 127; 2022-6 All LJ 556; 2022 155 All LR 37619, it is held as under:

  • “In the case of Ghanshyam Upadhyay v. State of U.P. : (2020) 16 SCC 811, it has been held by the Apex Court in paragraphs 6, 7 and 8 as under:-
  • “6. As noted, the entire basis for making the allegations as contained in the miscellaneous petition is an article relied on by the petitioner said to have been published in the newspaper. There is no other material on record to confirm the truth or otherwise of the statement made in the newspaper. In our view this Court will have to be very circumspect while accepting such contentions based only on certain newspaper reports. This Court in a series of decisions has repeatedly held that the newspaper item without any further proof is of no evidentiary value. The said principle laid down has thereafter been taken note in several public interest litigations to reject the allegations contained in the petition supported by newspaper report.
  • 7. It would be appropriate to notice the decision  in Kushum Lata v. Union of India, (2006) 6 SCC 180, wherein it is observed thus : (SCC p. 186, para 17)
  • “17. … It is also noticed that the petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases, newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition.”
  • 8. This Court, in Rohit Pandey v. Union of India, (2005) 13 SCC 702, while considering the petition purporting to be in public interest filed by a member of the legal fraternity had come down heavily on the petitioner, since the said petition was based only on two newspaper reports without further verification.”
  • 20. From the above judgements it is clear that newspaper report by itself does not constitute an evidence of the contents of it. The reports are only hearsay evidence. They have to be proved either by production of the reporter who heard the said statements and sent them for reporting or by production of report sent by such reporter and production of the Editor of the newspaper or it’s publisher to prove the said report. It has been held by the Apex Court that newspaper reports are at best secondary evidence and not admissible in evidence without proper proof of its content under the Indian Evidence Act, 1872. It is thus clear that newspaper report is not a “legal evidence” which can be examined in support of the complainant.
  • 21. It is trite law that there has to be legal evidence in support of the allegations levelled against a person. In the present case the only evidence relied upon is the newspaper reporting and nothing else. For what has been stated above and as per the settled legal position, a newspaper report is not a “legal evidence“.

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Replication, Rejoinder, Subsequent Pleadings and Amendment of Pleadings

Saji Koduvath, Advocate, Kottayam

Abstract

1. Under Order VIII, Rule 9 CPC leave of the Court is necessary for filing a pleading, by the plaintiff or defendant, subsequent to the written statement of a defendant.

2. The terms ‘Replication’ and ‘Rejoinder’ (though judicially recognized) are not used in the CPC; it uses only ‘written statement’ and ‘subsequent pleadings’.

3. A replication is filed by the Plaintiff. It is the plaintiff’s answer or reply to the defendant’s plea or answer.

                •➧ Material averment made in the written statement is presumed to be denied by the plaintiff and for that purpose he need not file a replication.                 •➧Failure to file a replication cannot be treated as an admission.

4. A rejoinder is filed by the defendant. It is filed subsequent to (plaintiff’s) replication.

5. A new plea can be permitted by an amendment. But, additional pleadings must be confined to points or answers with regard to which it is made.

6. An amendment relates back to the date of filing; but, subsequent pleadings not.

7. While considering the propriety of subsequent pleadings the court takes into account subsequent events, after the filing of the suit, and to avoid multiplicity of suits.

8. It is doubtful whether fault can be found with a plaintiff or defendant – for he did not file a ‘replication’ or ‘rejoinder’, of his own (that is, when no direction from the court), whatever be the circumstance.

Pleadings in Nutshell

  • Order VI of the Code of Civil Procedure deals with pleadings generally.
  • Order VII deals with the plaint.
  • Order VIII deals with written statement.
  • Pleading shall mean plaint or written statement.
  • The pleadings are supposed to set out material facts.
  • They are to be verified.
  • Rule 3 of Order VIII enjoins the defendant to deny specifically such of the averments of the plaint which he does not admit.
  • An averment made in the plaint if not specifically denied or only evasively denied in the written statement would be deemed to have been admitted.
  • Rule 2 of Order VIII enjoins the defendant to specifically plead new facts.

Order 8, Rule 9 CPC (After the Amendment Act of 2002)

  • “9. Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.”
  • The words, “No pleading subsequent to the written statement” shows that there is no impropriety in using the ‘general’ terms, ‘Replication’ and ‘Rejoinder’.

Order VI, Rule 17 CPC (After the Amendment Act of 2002)

  • “17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
  • Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

Order VIII, Rule 9 CPC Analysed

  • Plaintiff has a right to file written statement by way of defence to a set-off or counter-claim.
  • For filing a pleading by the plaintiff or defendant, subsequent to the written statement of a defendant leave of the Court is necessary,.
  • Court can at any time require a written statement or additional written statement from any of the parties.
  • CPC does not use the term Rejoinder or Replication; it uses only a written statement or additional written statement.

Rejoinder and Replication

  • A replication is filed by the Plaintiff. It is the plaintiff’s answer or reply to the defendant’s plea or answer.
  • A rejoinder is filed by the defendant. It is filed subsequent to (plaintiff’s) replication.
  • In court proceedings, these terms – rejoinder and replication – are being loosely used as interchangeable terms or synonyms, which they are not. (See: Prime Properties v. Sana Lakshmi Devi (SC, 2022)
  • Pleadings by way of rejoinder/replication are not to be found statutorily contemplated by the Code of Civil Procedure.
  • Opportunity of filing rejoinder/replication is being exploited to avoid the necessity of amending the plaint, even if necessary.

Black’s Law Dictionary

  • Black’s Law Dictionary, 6th Edn, defines ‘replication‘ as pleading in common law made by the plaintiff in an answer to the defendant s plea; and a rejoinder as a second pleading in common law on the part of the defendant being his answer to the plaintiff s replication. (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

Wharton s Law Lexicon

  • Wharton s Law Lexicon (14th Edn) defines ‘replication‘ as a term for a plaintiff s answer to a defendant s plea; and rejoinder is defined as a defendant s answer to the plaintiff s reply.

Corpus Juris Secundum

Corpus Juris Secundum lays down as regards ‘replication’ as under:

  • “a reply or replication is purely a defensive pleading, the office or function of which is to deny, or allege facts in avoidance of, new matters alleged in the plea or answer and thereby join or make issue as to such new matters. (para 184)
  • No reply or replication is necessary where the issues are completed by, and no new matter is set up, in the plea or answer. (para 185 a.)
  • At common law a replication is necessary where a plea introduces new matter and concludes with a verification; but under the codes, practice acts, or rules of civil procedure of a number of states a reply to new defensive matter is not necessary or is necessary only when ordered by the court. A reply to a counterclaim is generally necessary; but under some code provisions no reply or replication is required in any case. (para 185 b. (i))
  • The discretion which the court possesses, under some codes or practice acts, to direct the plaintiff, on the defendant s application, to reply to new matter alleged as a defence by way of avoidance will be exercised in favour of granting the application where the new matter, if true, will constitute a defence to the action and granting the order will prevent surprise and be of substantial advantage to the defendant without prejudice to the plaintiff. [ para 185 b. (ii) ]” (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

When Replication Permitted

A replication is permissible only in three situations:

  • (1) when required by law;
  • (2) when a counter claim is raised by the defendant;
  • (3) when the Court directs or permits a replication being filed.

When Court directs a replication:

  • The Court may direct filing of a replication when the court having scrutinised the plaint and the written statement feels the necessity of asking the plaintiff to join specific pleadings to a case specifically and newly raised by the defendant in the written statement.

Plaintiff can seek the leave of the court for filing replication:

  • The plaintiff may also feel the necessity of joining additional pleading to put forth his positive case in reply to the defendant’s case but he shall have to seek the leave of the court by presenting the proposed replication along with an application seeking leave to file the same. (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

Requirement of Replication

It is doubtful whether fault can be found with a plaintiff or defendant – for he did not file a ‘replication’, of his own (that is, when no direction from the court) whatever be the circumstance. However, in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J., authoritatively pointed out two circumstances where it is necessary to file ‘replication’.

1. The defendant denies plaintiffs title, and sets up a plea of gift.

  •  If the plaintiff merely denies the gift he need not file a replication.
  • If he admits the gift and pleads illegality, he has to file a replication.

2. The defendant pleads re-payment in a suit for money.

  • If the plaintiff merely denies it, he need not file a replication.
  • If the plaintiff admits the payment but proposes to plead that payment was towards some other loan, he has to file a replication.

Material averments in WS Presumed to be Denied – Need not file Replication.

In MSM Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, it is held as under:

  • “A mere denial of defendant’s case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue.”
  • (Quoted in:  Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024  AIR SC 2360; 2024-9 SCC 353)

In Anant Construction (P) Ltd. v. Ram Niwas, 1994 (31) DRJ 205, ILR 1995 2 (Del) 76, discussed the matters in detail and it was held as under:

  • “9. It is basic concept of pleadings that a defendant has to deny specifically every averment made in the plaint if he choses to dispute the same. As already stated, a non-specific or evasive denial in written statement may be taken as an admission of plaint facts. A failure to file WS would enable the Court pronouncing judgment against the defaulting defendant. However, a plaintiff is not to be treated similarly. Every material averment made in the written statement is presumed to be denied by the plaintiff and for that purpose he need not file a replication.
  • (Quoted in: Sahana Pal v. U. K.  Samanta, 2015-222 DLT 81; Arun Jaitley v. Arvind Kejriwal, 2016-3 CivCC 771; 2016-230 DLT 771)

Failure to file a replication cannot be treated as an admission

Anant Construction v. Ram Niwas, ILR 1995 2 (Del) 76, continued –

  • 21.1 The law of pleadings does not require a plaintiff to file a replication merely denying the allegations made in the written statement. Failure to file a replication cannot be treated as an admission of the plea in the written statement. Veemsekhara v. Amirthavalliammal, AIR 1975 Mad 51, Laxmansing. v. Laxminarayan Deosthan. AIR 1948 Nag 127, Bank of Behar Ltd v. Madhusudan Lal, AIR 1937 Pat 4281.
  • 21.2 In Amarjeet Singh vs Bhagwati Devi 1982 (12) RLR 156, this Court has held a pleading to mean plaint and written statement only. A plaintiff can claim relief on the basis of pleas in the plaint and not on pleas in the replication.
  • 21.3 In Roshan Lal vs. Prem Prakash, AIR 1980 Pat 59, it was held :
  • “A subsequent pleading by way of defense to a set off or counter-claim can be filed by the plaintiff as a matter of right, but the provisions do contemplate the filing of other pleading as well but by the leave of the Court and invest the Court with the widest possible discretion. Either party may, with the leave of the Court file a supplementary written statement, but at the same time the law does not compel the plaintiff to file any rejoinder to the allegations made in the written statement and the failure of the plaintiff to file such a rejoinder, cannot be treated as an admission of the plea in the written statement. The plaintiff is entitled to join issues with the defendant with respect to all those allegations which are made in the written statement and may lead evidence in rebuttal of those allegations notwithstanding the fact that he does not file any rejoinder.”
  • 21.4 Moti Ram vs. Baldev Krishan 15 (1979) DLT 90 is a single bend decision of this Court. It only says replication permitted by the Court to be filed forms part of the pleading besides the plaint and the written statement, which strictly constitute pleading under Order 6 Rule I CPC. The High Court of Punjab has in Mateshwar Dayal Vs Amar Singh, 1983 P&H 197 and Jag Dutta V. Savitri Devi held that replication is a part of the pleadings and the plea raised therein cannot be overlooked. All these decisions were cited by the learned counsel for the petitioner. Suffice it to say that replication if allowed by the court becomes a part of the pleadings. To this extent there can be no dispute”.
  • x x x x x x x x x x
  • 24. To sum up:
  • x x x x x x x x x x
  • (7) A mere denial of defendant’s case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue”. (Emphasis supplied)
  • 53. In K. Laxmanan Vs. Thekkayil Padmini and Others, (2009) 1 SCC 354, the Supreme Court held that pleadings, under Order VI Rule 1 CPC consist of only the plaint and the written statement. The plaintiff could have filed a replication in respect of the plea raised in the written statement, which if allowed by the Court, would have become the part of the pleadings.
  • But mere non-filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement.” (quoted in: Sahana Pal v. U. K.  Samanta, 2015-222 DLT 81)

Additional Written Statement

  • If the plaint is amended, the defendant would have a right of incorporating pleas by way of consequential amendment in his written statement or by filing additional written statement to the plea introduced in the plaint by way of amendment. The practice is that the courts allow to file additional written statement to be filed after the plaint is amended. (Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003)
  • The defendant does not have any opportunity of joining additional pleadings to the pleas introduced for the first time by the plaintiff in his replication.

When Subsequent Pleadings Allowed

  • If the defendant introduces a new case, the plaintiff will be allowed to file subsequent pleading. (Shakoor v. Jaipur Development Authority, AIR 1987 Raj 19)
  • If the plaintiff amends the plaint the defendant will be allowed to file additional Written Statement (Salicharan v. Sukanti, AIR 1979 Orissa 78).
  • When it is necessary to take into account subsequent events, after the filing of the suit and to avoid multiplicity of suits. (Ramaswami Naidu v. Pethu Pillai, AIR 1965 Mad 9)
  • If a minor who attains majority is dissatisfied with the pleading filed by the guardian. Shiva Kumar Singh v. Kari Singh AIR 1962 Pat 159

Denial in Pleadings and Presumed Denial

  • It is basic concept of pleadings that a defendant has to deny specifically every averment made in the plaint if he choses to dispute the same.
  • A non specific or evasive denial in written statement may be taken as an admission of plaint facts.
  • A failure to file WS would enable the Court pronouncing judgment against the defaulting defendant. However, a plaintiff is not to be treated similarly.
  • Every material averment made in the written statement is presumed to be denied by the plaintiff and for that purpose he need not file a replication.

Amendment of Pleadings

In Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003; 2002-2 SCC 445, the Supreme Court observed as under:

  •  “A pleading, once filed, is a part of the record of the Court and cannot be touched, modified, substituted, amended or withdrawn except by the leave of the Court.
  • Order 8 Rule 9 of CPC prohibits any pleadings subsequent to the written statement of a defendant being filed other than by way of defence to a set-off or counter-claim except by the leave of the Court and upon such terms as the Court thinks fit.
  • Section 153 of CPC entitled “General power to amend” provides that the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
  • Order 6 Rule 17 of the CPC confers a discretionary jurisdiction on the Court exercisable at any stage of the proceedings to allow either party to alter of amend his pleadings in such manner and on such terms as may be just.
  • The rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
  • Unless and until the Court is told how and in what manner the pleading originally submitted to the Court is proposed to be altered or amended, the Court cannot effectively exercise its power to permit amendment.
  • An amendment may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation, or, may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on.
  • It is, therefore, necessary for an amendment applicant to set out specifically in his application, seeking leave of the Court for amendment in the pleadings, as to what is proposed to be omitted from or altered or substituted in or added to the original pleadings.”

Halsbury s Laws of England

The Apex Court further pointed out the English practice – how an amendment of pleadings allowed by the Court is effectuated – as stated in Halsbury s Laws of England (Fourth Edition, Vol. 36, para 63, at pages 48-49). It reads as under:

  • “63. Mode of amendment. A pleading may be amended by written alterations in a copy of the document which has been served, and by additions on paper to be interleaved with it if necessary. However, where the amendments are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document must be prepared incorporating the amendments. If such extensive amendment is required to a writ it must be reissued. An amended writ or pleading must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the judge, master or registrar by whom any order authorizing the amendment was made and the date of the order: or, if no such order was made, the number of the rule in pursuance of which the amendment was made. The practice is to indicate any amendment in a different ink or type from the original, and the colour of the first amendment is usually red.

Amendment relates back to the date of Filing, Subsequent Pleadings Not

Our Apex Court, in P. A. Jayalakshmi v. H. Saradha,  2009-14 SCC 525 (SB Sinha, J.), observed as under:

  • “Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.”

No Inconsistent  Pleadings Possible in Subsequent Pleadings

In Mohammed Ali v. Khutejatul Kubra, ILR 2001 Kar 4580, 2002(1) KarLJ 596, the Karnataka High Court has held as under:

  • “6. A perusal of the aforesaid order makes it clear that if a party wants to plead a new ground of claim or a statement containing allegation of fact inconsistent with the previous pleadings of the party pleading the same shall be raised by way of amendment only. There is a total prohibition for pleading new claims and inconsistent statements by any other mode except by way of amendment to the existing pleadings. Though subsequent pleadings is permitted under Order 8, Rule 9 of CPC the same cannot be made use for raising pleas which are altogether new and inconsistent with the original pleadings in the written statement. Order 6, Rule 7 of the CPC deals with departure from the previous pleadings, Order 6, Rule 17 of the CPC deals with the amendment of pleadings and Order 8, Rule 9 of the CPC deals with subsequent pleadings. When they are read together distinction becomes apparent. Then it is clear by way of subsequent pleadings under Order 8, Rule 9 of the CPC new claims and inconsistent pleas cannot be raised and for raising such pleas one has to resort to Order 6, Rule 18 of the CPC only”.

Consequential Amendment – Judicially Recognized

In Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003; 2002-2 SCC 445, the Court observed as regards ‘Consequential Amendment’ as under:

  • “18. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase “consequential amendment” finds mention in the decision of this Court in Bikram Singh & Ors. v. Ram Baboo & Ors. – AIR 1981 SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party.”

Amendment of Written Statement to Prejudice Plaintiff – Not Allowed

The Three Judge Bench of the Apex Court held in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1977) 1 SCR 728: AIR 1977 SC 680: 1976-4 SCC 320 – cannot be allowed to withdraw an amendment if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. In Heeralal v. Kalyan Mal,1998 (1) SCC 278, the Supreme Court followed the decision, Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co., observing as under:

  • “Even that apart the said decision of two learned judges of this Court Akshaya Restaurant v. P. Anjanappa, 1995 Supp. (2) SCC 303), runs counter to a decision of a Bench of three learned judges of this court in the case of Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co., (1977) 1 SCR 728. In that case Ray, CJ., Speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff complete from the admissions made by the defendants in the written statements cannot be allowed. If such amendments are allowed in the written statement plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. In that case a suit was filed by the plaintiff for claiming a decree for Rs. 1,30,000/- against the defendants. The defendants in their written statement admitted that by virtue of an agreement date 07th April 1967 the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under order VI Rule 17 sought amendment of written statement by substituting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that plaintiff was mercantile agent cum-purchaser, meaning thereby they sought to go behind their earlier admission that plaintiff was stockist- cum-distributor. Such amendment was rejected by the Trial Court and the said rejection was affirmed by the High Court in Revision. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned judges of this the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned judges that decided the case in Akshaya Restaurant (supra). In the latter case it was observed by the Bench of two learned judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant (supra) proceed on an assumption tat it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However the aforesaid decision of the three member Bench of this Court in Modi Spinning (supra) is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff’s case the cause him irretrievable prejudice.
  • … We were then taken to another decision of this Court in the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another [ 1984 (Supp.) SCC 594]. In that case the plaintiff was held entitled to amend his plaint by submitting that though earlier he stated that the defendant was uterine brother, the plaintiff by amendment in his plaint could submit that the defendant was his brother and the word ‘uterine’ could be dropped. Even in that case the main case put forward by the plaintiff did not get changed as the plaintiff wanted submit that the defendant was his brother. whether the was uterine brother or real brother was a question of decree and depended on the nature of evidence that may be led before the Court. Therefore, the deletion of word ‘uterine’ was not found to be displacing the earlier case of the plaintiff. On the facts of the present case also, therefore, the aid decision cannot be of any assistance to the learned counsel for respondents.
  • In our view, therefore, on the facts of this case and as discussed earlier, no case was made out by the respondents, contesting defendants, for amending the written statement and thus attempting to go behind their admission regarding 5 out of 7 remaining items out of 10 listed properties in Schedule-A of the plaint. However, so far as Schedule-B properties are concerned from the very inception the defendants’ case qua those properties was that plaintiff had no interest therein. By proposed amendment they wanted to introduce an event with reference to those very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely or prejudicially affected the case of the plaintiff or displaced any admission on their part qua Schedule-B properties which might have resulted into any legal right in favour of the plaintiff. Therefore, so far as Schedule-B properties were concerned, the amendment could not be found fault with. Hence exercising the powers under Article 136 of the Constitution of India we would not be inclined to interfere with that part of the decision of the High Court allowing the amendment in the written statement, even though strictly speaking High Court could not have interfered with even this part of the order under Section 115, CPC.

Erroneous Admissions & Earlier Findings -Effect

In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100, it was held further as under:

  • “In view of these admissions, the question of burden of proof, as we have already pointed out, is really academic, and if any burden lay upon any party, it was upon the appellant to displace by cogent and convincing evidence that these admissions were erroneous and need not be accepted in proof.”

Plea inconsistent with the case is not permitted in replication and rejoinder

RC Lahoti, J. pointed out in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, as under:

  • “A plea inconsistent with the case set out by the plaintiff in the plaint can never be permitted to be raised in replication.
  • So also a plea in rejoinder cannot be inconsistent with the case set out by the defendant in his written statement.
  • Any subsequent pleading inconsistent with the original pleading shall be refused to be taken on record and if taken shall be liable to be struck off and taken off the file.”

It is also added by Lahoti, J.

  • A plea which essentially constitutes the foundation of a claim made by the plaintiff or which is essentially a part of plaintiff s cause of action cannot be introduced through a replication.
  • A replication is always a defensive pleading in nature.

New Plea Permitted in Amendment; Not in Additional Pleading

RC Lahoti, J. held in Gurdial Singh v. Raj Kumar Aneja, 2002 AIR SC 1003; 2002-2 SCC 445, as under:

  • “A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.
  • 19. Some of the High Courts permit, as a matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”

Conclusion

The legal position on Replication and rejoinder is summed up by RC Lahoti, J. in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, as under::

  • “(1) Replication and rejoinder have well defined meanings. Replication is a pleading by plaintiff in answer to defendant s plea. Rejoinder is a second pleading by defendant in answer to plaintiff s reply i. e. replication.
  • (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I. A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed.
  • (3) I. As. which do not involve adjudication of substantive righs of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing replication.
  • (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed.
  • (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing a plea by way of confession and avoidance.
  • (6) A plaintiff seeking leave of the court has to present before it the proposed replication. On applying its mind the court may grant or refuse the leave.
  • (7) A mere denial of defendant s case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue.
  • (8) Subsequent pleadings are not substitute for amendment in original pleadings.
  • (9) A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings.
  • (10) A plea which is foundation of plaintiff s case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication.”

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Does Registration of a Document give Notice to the Whole World?

Jojy George Koduvath

Abstract

What is the Relevant provision of law that deals with the doctrine – “registration of a document give notice to the whole world”?
Sec. 3 (Explanation 1), TP Act. It lays down –
Registration of document is only a constructive notice; and, it applies only to those who subsequently acquired that property or fraction of interest thereof. (R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590)

Does ‘registration of a document‘ establish “notice in rem“?
No. It is not a notice in rem: Parganas Lawyers Clerks Association  v. State, AIR 1986  Cal. 205.
The registration of document is only a constructive notice to a person, who subsequently acquired that property or interest or any part thereof 

Does the (general) observation in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363 – that the ‘registration of a document give notice to the whole world’ – apply with full vigour in India?
No.
It is held in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2009) 7 SCC 363 as under:
“Registration provides information to people who may deal with a property.”

Does it work against true owner in suits on ‘Adverse Possession’ (if he has no notice as to registration of the deed )?
No.
(Arabia Bibi v. Sarbunnisa: 2011, Madras)

Does it apply, and help the accused, in a Criminal Case (cheating – for suppressing earlier mortgage)?
No.
(Kuldip Singh v. State, AIR 1954 P&H 31)

What is the object behind the Explanation to Sec. 3 TP Act?
The object of the Explanation to Section 3 is to safeguard the interests of a third party who has (already) acquired a good title under a previous registered instrument. (Kuldip Singh v. State, AIR 1954 P&H 31).
It enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability. (Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363).

Does the registration of a Private Document Binds State/ Government
No. Read the Article: Title Enquiry by the Sub Registrar is Illegal
Sub-Registrar has no Authority to Ascertain whether the Vendor has Title

Registration provides information to people who may deal with a property

It is observed in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363, as under: 

  • “Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.”

Sec. 3 of the TP Act

Section 3 of the Transfer of Property Act defines the expression – “a person is said to have notice”.

S. 3 of the Transfer of Property Act

The relevant portion of S. 3 of the Transfer of Property Act reads as under:

  • ” ‘a person is said to have notice‘ of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
  • Explanation I – Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instruments, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or (where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-sec. (2) of Sec. 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share of interest is being acquired, is situated ).
  • Provided that- (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder,
  • (2) the instrument (or memorandum) has been duly entered or filed, as the case may be, in books kept under S. 51 of that Act, and
  • (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under S. 55 of that Act.

Explanation I to Section 3 of the TP Act is explained in Ranjit Singh v. Punjab State, 2014-4 LawHerald 3533; 2014-3 RCR(Civ) 766,  as under:

  • “19. Explanation I to Section 3 of the Transfer of Property Act clarifies that where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such party shall be deemed to have notice of such instrument as from the date of registration

The Privy Council applied this Doctrine with ‘Some Modification’

In Tilakdhari Lal v. Khedan Lal, AIR 1921 PC 112, while dealing with notice of registered mortgages, it was held that ‘it would not be reasonable to hold that registration was notice to the world of every deed which the register contained’ and that ‘the doctrine must be subject to some modification’.  The Privy Council further observed on the doctrine ‘registration as notice to the world’ as under:

  • “Their Lordships find it difficult to understand how such a difference can cause the register to be notice in the one case and not in the other. In either instance the doctrine of notice must necessarily depend upon the fact that there is a public register open for inspection, to which all persons having dealings with the property can have access; in each case they have before them the means of acquiring knowledge. In India that knowledge may afford complete protection even if notice be otherwise obtained of an unregistered deed. In England and Ireland that is not the case. But the completion of the register and the penal effect of non-registration do not appear to their Lordships to be any reason for causing the register to be notice in the one case and not in the other.
  • For these reasons their Lordships think that notice cannot in all cases be imputed from the mere fact that a document is to be found upon the register under the Indian Registration Act.”

Deems (only) ‘Constructive Notice’ of (earlier) Deed

That too to one who Subsequently Acquired the Property

In R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590, it is held as under:

  • “37. The legal position is well settled in that every document affecting an immovable property as provided in section 17 has to be registered so that any person who wants to deal or desire to acquire interest with such property could find out encumbrances if any, the legal obligations, rights and ownership or claim over such property, and registration acts as constructive notice to a person who subsequently acquires such property or interest or any part thereof or interest or fraction of interest thereof”.

Proposition ‘as to Notice to entire world’ is Not accepted in Adv. Possn. Claim

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J.), the suit property was sold only within the family members. Therefore, the co-owner against whom adverse possession was claimed was not in a position to know about the sale. She knew only at a later point of time. Hence it was held – that the registration is only a constructive notice to the person who has subsequently acquired such property; and that if the proposition  that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers.

Explanation I of Sec. 3 of the Transfer of Property Act is Explained in this decision as under:

  • “29. On going through the dictum laid down in the above judgments relied on either side, I am of the opinion that the registration of document is only a constructive notice to a person, who subsequently acquired that property or interest or any part thereof or interest or fraction of interest thereof. In this regard, it would be proper to refer Explanation I of Sec. 3 of the Transfer of Property Act, which reads as follows:
    • “Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, …..”
  • Thus, it is clear that the registration is only a constructive notice to the person who has subsequently acquired such property. If the submission of the learned counsel for defendants 1, 3, 5 and 7 that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers when the property was sold without their knowledge. Further, I find that the subject property was sold only within the family members and therefore, as contended by the learned counsel for the plaintiff, she might have been in a position to know about the same only at a later point of time. Moreover, the judgments relied upon by the appellants deal with the alienation of the property to the strangers. Further, I do not find any evidence in this case with regard to open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other co-owner, namely, the plaintiff in this case so as to constitute ouster. Therefore, in my considered opinion, the principle of ouster cannot be applied in this case. The courts below have correctly appreciated the evidence and the documents adduced by the parties. The concurrent findings of the courts below reflect the evidence on record.”

In KS Natraj v. NIL, 2020-2 KarLJ 356 (B.V. Nagarathna, Suraj Govindaraj, JJ.) it is observed as under:

  • “20. The most important purpose of registration is to secure that persons dealing with the property, where such dealings require registration, may rely upon the statements contained in the register of the Registrar of Assurances with confidence that the full and complete account of all transactions relating to or affecting the property is covered in such register.”

Apply When Wilful Abstention from Making (expected) Enquiry

In Godhan Son of Pola v. Ram Bilas, AIR 1995 All. 357, it is observed as under:

  • (22) FROM the reading of this provision along with Explanation-I, it comes out that the person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from making such enquiry which a person normally ought to have made he would have known it. In such cases the persons can also be deemed to have notice. According to Explanation-I, where law requires a transaction to be recorded or to be entered in, completed by registered deed then in respect of such transactions which satisfy two conditions i. e. a requirement of law that transaction is to be entered into by registered instrument only and the same has been completed by registered document, then persons shall be deemed to have knowledge of that instrument from the date of registration. The registration of the document has (sic) taken to complete notice to world at large. The agreement to sale immoveable property of value of more than Rupees One Hundred, under the Transfer of Property Act, is required to be entered into by the registered document.”

Sec. 3 TP Act Notice is on immovable property; & It is not a Notice In Rem

In truth, the proposition, ‘registration of a document gives notice to the world‘ is not followed in India. In  Parganas Lawyers Clerks Association  v. State, AIR 1986  Cal. 205, it is held as under:

  • “(30) THE notice contemplated under Explanation 1 of S. 3 of the Transfer of Property Act by registration of a document relates to transactions with regard to immovable property which is required by law to be and has been effected by a registered instrument and that also for a person acquiring such property or any part or share or interest in such property. It is not a notice in rem. Testamentary documents do not come within the purview of the notice as contemplated by the said section.

As regards the object of the Explanation to Section 3, it is observed as under:

  • It enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability. (Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363).
  • The object of the Explanation to Section 3 is to safeguard the interests of a third party who has (already) acquired a good title under a previous registered instrument. (Kuldip Singh v. State, AIR 1954 P&H 31).

Explanation to Section 3 TP Act in Criminal Matters

In a criminal matter, in Kuldip Singh v. State, AIR 1954 P&H 31, it was observed as under:

  • “(I)t was contended that the registration of a document which must under law be registered is constructive notice to the whole world and, therefore, Moti Parshad must be deemed to have had notice of the previous mortgages, and, therefore, it could not be said that Moti Parshad had been cheated since, in law, he already knew the factum of the previous charges.
  • My brother Soni thought that this point was of some importance and should be considered by a larger Bench and we have, therefore, heard arguments of counsel on this point and also the other points arising in the case.
  • 3. The argument of Mr. Sibal who appeared on behalf of the petitioner is based on the wording of Sections 3 and 55, T. P. Act.
  • Explanation I to Section 3 reads as follows :
    • “Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration.”
  • Section 55(1)(a) is in the following terms :
    • “The seller is bound to disclose to the buyer any material defect in the property or in the sellers title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.”
  • Mr. Sibal contends that the previous, mortgages were effected by means of registered deeds and, therefore, by virtue of the explanation to Section 3, Moti Parshad must be deemed to have had notice of these mortgages. Further Moti Parshad could by exercising ordinary care have discovered that the property which he was purchasing formed part of a much larger estate which was already under mortgage. Therefore, Kuldip Singh was not bound to disclose to him the previous charges and Moti Parshad must be deemed in law to be aware of them, and, that being so, Moti Parshad was not cheated, for no representation was made to him.
  • 4. The Transfer of Property Act deals with the rights of individuals in the property which is the subject-matter of any transaction. It is not concerned with whether a person has been cheated or not. The object of the explanation to Section 3 is to safeguard the interests of a third party who has acquired a good title under a previous registered instrument but it does not in any way alter or modify the criminal liability of a person who deliberately suppresses certain facts or misstates certain facts. If A has sold some property to B by a registered deed and he then sells it again to C, C cannot acquire a good title in the property because he must be deemed to have had notice of the previous registered sale deed in favour of B but nevertheless he was made to part with money on a misrepresentation made by A and therefore A is guilty of the offence of cheating. This is the case which is mentioned in illst. (i) to Section 415, Penal Code. The doctrine of constructive notice cannot be imported into criminal law for the purpose of determining whether a person is guilty of the offence of cheating or not.”

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Justiniano Antao v. Bernadette B. Pereira: Easement – Should Date of Beginning of 20 Years be pleaded?

Saji Koduvath, Advocate, Kottayam

Abstract

  • It may not be legitimate to insist on to ‘specify the date of beginning’ in the claims on easement by prescription – in the same manner it is insisted in adverse possession claims.
  • The concept of easement is appreciated in law as a benevolent right for the beneficial enjoyment of the dominant tenement; whereas ‘adverse possession’ curtails the rights of a true owner applying strict legal principles.

There should be specific pleadings

In Justiniano Antao v. Bernadette B. Pereira, (2005) 1 SCC 471, it was pointed out as follows:

  • “In order to establish a right by way of prescription to the detriment of the other party, one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be specific pleadings and categorical evidence in general and specifically that since what date to which date one is using the access for the last 20 years.”

Justiniano Antao v. Bernadette B. Pereira distinguished

Kerala High Court, in Soman Nair v. Manoj Kumar, 2014 (P. Bhavadasan, J.) distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

  • “12. A reading of the decision reported in Justiniano Antao’s case (cited supra) would reveal that the dictum has to be read in the context of facts of the case. That was a case where the Apex Court found that till 1984, the claimant was using another way and only thereafter the claim over the way through servient tenement was made. A vague assertion had been made in the said case that the pathway has been used for a long time. It was under those circumstances, the Apex Court had occasion to hold as mentioned above.
  • 13. In the case on hand, the definite pleading as could be culled out from the written statement and counter claim is that defendants as well as their predecessors-in-interest have been using the pathway in question for a long time in fact for more than 30 years and this is only means of access  to their property.”

Pappachan v. Alex, ILR 2023-3 Ker 523; 2023-5 KHC 10, distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

  • “24. In Justiniano Antao (supra) there was no pleading by the plaintiff that she used the pathway in question for a period of 20 years. Holding that in the absence of such a pleading which is elementary and essential to claim a prescriptive easement right, the Apex Court held that the date from which the right of way was started to use should have been pleaded.
  • The pleadings set forth by the appellants in this case certainly constitute sufficient pleadings to claim easement by prescription. It is true that they did not plead as to from which date they started using that pathway. They, however, pleaded that for the last more than 35 years they have been using that pathway. In the light of such a specific pleadings the law laid down in Justiniano Antao [(2005) 1 SCC 471] does not disentitle the appellants from claiming the relief.”

Importance of ‘Date of Beginning’ in Adverse Possession

Easement right is recognised in law for the ‘beneficial enjoyment’ of the dominant tenement; whereas ‘adverse possession’ curtails and defeats the rights of a true owner, applying strict legal principles. Therefore, the requirement to plead the “date of beginning” holds significant in the claim of adverse possession.

In Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779, it was specifically held, as regards claims adverse possession, as under:

  • “Therefore, a person who claims adverse possession should show
    • (a) on what date he came into possession,
    • (b) what was the nature of his possession,
    • (c) whether the factum of possession was known to the other party,
    • (d) how long his possession has continued, and
    • (e) his possession was open and undisturbed.
  • A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

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Principles of Equity in Indian Law

Saji Koduvath, Advocate, Kottayam.

Introduction

The English Court of Chancery exercised jurisdiction (during 13th to 19th centuries) over trusts, land law, the estates of lunatics and the guardianship of infants. ‘Chancery’ itself meant ‘equity’. It applied principles of equity in the matters before it, and applied its own liberal rules avoiding harsh or inflexible common law procedures; though it did not give-a-go-bye-to fundamental basic-principles of law and procedure (See: Vinod Seth v. Devinder Bajaj, 2010-8 SCC 1; Jagjit Singh v. Pamela Manmohan Singh, 2010-5 SCC 157; Kusheshwar Prasad Singh v. State Of Bihar, 2007-11 SCC 447).

Though there are no Equity Courts in India, Indian Courts are said to be ‘courts of law and equity’ (Dinesh Singh Thakur v. Sonal Thakur, 2018-17 SCC 12). The equity principles are embedded in Indian enactments (from the British-codification-period), in both –

  • substantive legislations (like Easement Act, TP Act, NI Act) and
  • procedural statutes (like CPC, CrPC).

Thereby, the framework of courts, concept of justice and the tasks of courts are fundamentally founded on equitable principles; that is, based on “equity, justice and good conscience”.

When an Indian Court Invokes Equitable Jurisdiction

When there are no enacted laws , or generally accepted legal principles, on a particular matter, courts in India apply principles of Equity to do justice to the injured persons.  (Muhammed Sherieff K. S.  v. Registrar of Co-Operative Societies, 2016-2 Ker HC 665; 2016-2 KerLJ 592, Dama Seshadri Naidu, J.).

Courts adopt principles in enacted laws also – which are based on equity, justice and good conscious (See: Chander bhan v. Mukhtiar Singh, 3.5.2024,SC).

Courts of Equity Proceed on First Principles

In Crabb v. Arun DC, [1976] 1 Ch 179 (Court of Appeal), Lord Denning, speaking for the Court of Appeal, while discussing promissory estoppel, it was observed as under:

  • “The basis of this proprietary estoppel – as indeed of promissory estoppel – is the interposition of equity. Equity comes in, true to form, to mitigate the rigours of strict law. The early cases did not speak of it as “estoppel”. They spoke of it as “raising an equity” If I may expand that, Lord Cairns said: “It is the first principle upon which all Courts of Equity proceed”, that it will prevent a person from insisting on his legal rights – whether arising under a contract or on his title deed, or by statute – when it would be inequitable for him to do so having regard to the dealings which have taken place between the parties.” (Quoted in: State of Jharkhand v. Brahmputra Metallics Ltd. , 2020-12 JT 78; 2020-13 Scale 500)

Where No Positive Law, Equity Invoked to Fill the Gaps

It is held in Bola v. Sardana, (1997) 8 SCC 522, as under:

  • “Equity steps in where the law has left yawning gaps”. (Quoted in: A. P. Showkath Ali v. State of Kerala, 2018-11 SCC 688).

In A. P. Showkath Ali v. State of Kerala, 2018-11 SCC 688, it was held as under:

  • “Even for courts, equity jurisdiction is meant to be exercised when there is no law operating in the field.”

It is observed in M.  Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020 1 SCC 1, as under:

  • “658. The correlation between law and justice was the defining factor– in one sense, equity modifies the applicable law or ensures its suitability to address the particular circumstances before a court to produce justice. The modification of general rules to the circumstances of the case is guided by equity, not in derogation or negation of positive law, but in addition to it. It supplements positive law but does not supplant it. In a second sense however, where positive law is silent as to the applicable legal principles, equity assumes a primary role as the source of law itself. Equity steps in to fill the gaps that exist in positive law. Thus, where no positive law is discernible, courts turn to equity as a source of the applicable law. In addition to these, Derrett notes that there is a third sense in which equity or aequitas assumed importance – where established political authority is taken away or is in doubt and the formal sources of law are in doubt, the nature of judicial office requires a decision in accordance with ex bono et aequo. This was evidenced in decisions concerning widows and orphans and in the realm of mercantile law.”

CPC, CrPC and Constitution of India & Source of Law

The civil courts in India are expressly authorised to invoke inherent powers under Sec. 151 of the Code of Civil Procedure. It is used wherever it requires to invoke ‘equity jurisdiction’. In criminal matters, the High Courts alone can invoke this jurisdiction, under  Section 482 of the Code of Criminal Procedure, 1973. Article 142 of the Constitution of India bestows wide inherent powers on the Supreme Court to pass orders “as is necessary for doing complete justice in any cause of matter pending before it”.

The courts that are authorised to invoke inherent powers are are duty bound to act as an institution to cast-and-apply proper law on the subject wherever it is lacking.

Indian Courts are governed by principle of equity

In Nar Bahadur Khatiwada v. State of Sikkim, 2013 (Pious Kuriakose, J.) held as under:

  • “Unlike in England, in this country we do not have separate courts of equity. Indian Courts are governed by principle of equity also. The Supreme Court in Ashok Kapil v. Sana Ullah : ((1996) 6 SCC 342) has held that the maxim “Nullus commodum capere protest de injuria sua propria”, thereby meaning “no man can take advantage of his own wrong” is a salient tenet of equity which Indian Court have been following from time to time.”

It is beyond doubt that in Indian situation, it is necessary and proper to invoke the equity jurisdiction in the matters of pathways to the plots of lands, wherever it is required.

Rule of Equity & No Perpetration of a legal fraud

Black’s Law Dictionary reads follows:

  • “Actual fraud. A concealment or false representation through an intentional or reckless statement or conduct that injures another who relies on it in acting. – Also termed fraud in fact; positive fraud; moral fraud.”
  • “Constructive fraud.
    • 1. Unintentional deception or misrepresentation that causes injury to another.
    • 2. Fraud in law. Fraud that is presumed under the circumstances, without regard to intent, usu. through statutorily created inference.
  • Fraud may be presumed, for example, when a debtor transfers assets and thereby impairs creditors’ efforts to collect sums due. This type of fraud arises by operation of law, from conduct that, if sanctioned, would (either in the particular circumstance or in common experience) secure an unconscionable advantage, irrespective of evidence of an actual intent to defraud. – Also termed legal fraud; fraud in contemplation of law; equitable fraud; fraud in equity.”
  • (Quoted in: Sukh Sagar Medical College and Hospital v. State of Madhya Pradesh, 2020)

Legal fraud which a Court of Equity must prevent

It appears that the law understood and applied in India, as regards ‘legal fraud’, slightly differs from what is explained in Black’s Law Dictionary (supra). A fraudulent representation (both actual and constructive) may be taken as ‘legal fraud’ applying the maxim ‘nullus commodum cap ere potest de injuria sua propria’.

The maxim ‘nullus commodum cap ere potest de injuria sua propria’ is applied in cases where false or fraudulent representation is made.

No man can take advantage of his own wrong & No Perpetration of a legal fraud

In Eureka Forbes Ltd. v. Allahabad Bank, 2010-6 SCC 193, the Supreme Court reiterated the principle as under:

  • “66. The maxim nullus commodum cap ere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. In the present case Respondents 2 and 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant.”

The Supreme Court, in Ashok Kapil v. Sana Ullah, (1996) 6 SCC 342, held as under:

  • “7. If the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a Court of law to take advantage of the mischief committed by him? The maxim “Nullus commodum capere ptest de injuria sua propria” (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a Court of law for enjoying the fruit of his own wrong. The upshot is, if the District Magistrate has commenced exercising jurisdiction under section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in respect of a building which answered the description given in the definition in section 3(i), he would well be within his jurisdiction to proceed further notwithstanding the intervening development that the building became roofless. We are inclined to afford such a liberal interpretation to prevent a wrongdoer from taking advantage of his own wrong.”

In Collector of Bombay v. Municipal Corporation of Bombay, AIR 1951 SC 469, our Apex Court observed as under:

  • “Can the Government be now allowed to go back on the representation, and, if we do so, would it not amount to our countenancing the perpetration of what can be compendiously described as legal fraud which a court of equity must prevent being committed? ………. Whether it is the equity recognised in Ramsden’s case, (1866) L.R. 1 H.L. 129, or it is some other form of equity, is not of much importance. Courts must do justice by the promotion of honesty and good faith, as far as it lies in their power. As pointed out by Jenkins C.J. in Dadoba Janardhan’s case, (1901) I.L.R. 25 Bom. 714, a different conclusion would be “opposed to what is reasonable, to what is probable, and to what is fair.”

It is pointed out in Abhilash Vinodkumar Jain v. Cox & Kings (India) Ltd., (1995) 3 SCC 732, as under:

  • “It is the duty of the court to defend the law from clever evasion and defeat and prevent perpetration of a legal fraud.” (Quoted in: P.  Mohanraj v. Shah Brothers Ispat Pvt.  Ltd. , AIR 2021 SC 1308;  2021-6 SCC 258)

Perpetration of a legal fraud

In A.P. State Financial Corporation v. Gar Re Rolling Mills, (1994) 2 SCC 647, it was observed as under:

  • “A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.”

It is observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. Ltd. v. Alice M. Hart:

  • “In order to invoke a rule of equity, it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as for example, non-performance of a contract of which equity can give specific performance.”
  • (See: Bengal Nagpur Ry. Co. Ltd. v.  Ruttanji Ramji, AIR 1935 Cal – 347;
  • Ferro Alloys Corporation v. AP State Electricity Board, AIR 1993 SC 2005;
  • Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660)

Mere false description not vitiate, if sufficient legal certainty

The principles of nullus commodum is subject to another principle – mere false description will not vitiate, if there be sufficient certainty as to the object.

In Harikrishna Lal v. Babu Lal Marandi, (2003) 8 SCC 613, the Supreme Court observed as under:

  • “13. A reference may usefully be made to the maxim “falsa demonstratio non nocet, cum de corpore constaf” which means mere false description does not vitiate, if there be sufficient certainty as to the object. ‘Falsa demonstratio’ means an erroneous description of a person or a thing in a written instrument and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the device; the characteristic of cases within the rule being that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. (See Broom’s Legal Maxims, 10th Edn., pp. 426-27.) Broom quotes (at p. 438) an example that an error in the proper name or in the surname of the legatee should not make the legacy void, provided it could be understood from the Will what person was intended to be benefited thereby.”

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An Instance of Invoking Equity Jurisdiction in Easement

In Muttil Rajan v. Kuthirakkal Letha, Kerala High Court (Thomas P. Joseph, J.), 2012, found easement of necessity; and, pointed out that the law did not intend “land locking”, in the following words:

  • “22. I must notice the precarious situation in which the respondents are placed. Even assuming that towards the south west of plaint A schedule, a portion of the property belongs to the appellants, it is practically admitted that the plaint A schedule is locked by private properties on all sides, the major portion belonging to the appellants. They can gain access to the public road on the extreme north only through private properties surrounding the plaint A schedule. Severance of tenements is also proved. In such a situation, it is hard to say that the respondents are not entitled a right of easement over the plaint C schedule by necessity. Holding so will amount to land locking the plaint A schedule and the appellants not being able to get out of the plaint A schedule. That is not the intend of the law. When the mother of the respondents claimed a right of access along the western side of the plaint B schedule, the appellants pointed  out the plaint C schedule as the way. Now when over the plaint C schedule the respondents made a claim, the appellants would say that it is not plaint C schedule but it is the PQRS way referred to in Exts.C3 and C4 which for reasons above stated, is not a way which respondents could use as of right. I am not inclined to think that by accepting such dilatory contentions raised by the appellants, the respondents should be driven from pillar to post for an access.
  • 23. This litigation which in effect started in the year, 1996 had reached this court in several forms. Having regard to the various circumstances, I do not find any substantial question of law, justice or equity in the claim now being raised by the appellants that the respondents can have no right of easement by necessity over the plaint C schedule and that the alternate way available to them is the PQRS shown in Exts.C3 and C4.”

Mere allegation of fraud not sufficient to detract Court from Refer to Arbitration

Our Apex Court, in A.  Ayyasamy v. A.  Paramasivam, AIR 2016 SC 4675; 2016 10 SCC 386, elaborated considered ‘fraud’ and held, in substance, as under:

  •  “Mere allegation of fraud simplicitor may not be a ground to nullify the effect of arbitration agreement between the parties. It is only in those cases where the Court, while dealing with Section 8 of the Act, finds that there are very serious allegations of fraud which make a virtual case of criminal offence or where allegations of fraud are so complicated that it becomes absolutely essential that such complex issues can be decided only by civil court on the produced, the Court can side-track the agreement by dismissing application under Section 8 and proceed with the suit on merits.”

Our Apex Court referred to and followed the following observations of the 246th Law Commission Report. It reads as under:

  • “50. The issue of arbitrability of fraud has arisen on numerous occasions and there exist conflicting decisions of the Apex Court on this issue. While it has been held in Bharat Rasiklalv. Gautam Rasiklal, (2012) 2 SCC 144 that when fraud is of such a nature that it vitiates the arbitration agreement, it is for the Court to decide on the validity of the arbitration agreement by determining the issue of fraud, there exists two parallel lines of judgments on the issue of whether an issue of fraud is arbitrable. In this context, a 2 judge bench of the Supreme Court, while adjudicating on an application under section 8 of the Act, in Radhakrishnan v. Maestro Engineers, 2010 1 SCC 72 held that an issue of 28 fraud is not arbitrable. This decision was ostensibly based on the decision of the three judge bench of the Supreme Court in Abdul Qadir v. Madhav Prabhakar, AIR 1962 SC 406. However, the said 3 judge bench decision (which was based on the finding in Russel v. Russel [1880 14 Ch.D 471]) is only an authority for the proposition that a party against whom an allegation of fraud is made in a public forum, has a right to defend himself in that public forum. Yet, following Radhakrishnan, it appears that issues of fraud are not arbitrable.
  • 51. A distinction has also been made by certain High Courts between a serious issue of fraud and a mere allegation of fraud and the former has been held to be not arbitrable (SeeIvory Properties and Hotels Private Ltd v. Nusli Neville Wadia, 2011 (2) Arb LR 479 (Bom); CS Ravishankar v. CK Ravishankar, 2011 (6) Kar LJ 417). The Supreme Court in Meguin GMBH v. Nandan Petrochem Ltd., 2007 (5) R.A.J 239 (SC), in the context of an application filed under section 11 has gone ahead and appointed an arbitrator even though issues of fraud were involved. Recently, the Supreme Court in its judgment in Swiss Timing Ltd v. Organising Committee, Arb. Pet. No. 34/2013 dated 28.05.2014, in a similar case of exercising jurisdiction under section 11, held that the judgment in Radhakrishnan is per incuriam and, therefore, not good law.”

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Right of Private Way Beyond (Other Than) Easement; Including Thondu, Kottappadu and Alley Way

Saji Koduvath, Advocate, Kottayam

Is it Possible to Acquire a (Private) Right of way otherwise than Easement?

Answer: Yes.

Examples:

  • Pathway formed by mutual grant (on the basis of custom or on an ‘agreement’, express or implied).
  • A (private) pathway which lies on a property title of which is not (explicitly) vested in anyone.

Mutually Granted Ways – Irrevocable, on principles of Estoppel

The word ‘Grant’ in property law conveys bestowal of a revocable right. But it may be irrevocable in certain cases – a way made by ‘Mutual Grant’ (on the basis on an ‘agreement’) is an example. The principles of Estoppel may also apply to such an eventuality.

In Travancore area of Kerala State, there is a custom of separating two properties with retaining walls (usually mud-walls, in early times) leaving a space of 2-3 feet in between, called “Thondu” or “Kottappad” – meant for water drainage, use as pathway (alley) and maintenance of retaining walls, and also for clear separation of the properties. It is, in law, a mutual grant (but, not easement – for, easement is a right exercised on property on another alone).

After separating the properties by a ‘thondu’, it is considered that the property of each owner (by the side of the thondu) is only upto his retaining wall. But, technically the line of ownership is up to the middle of the ‘thondu’. It usually gives rise to an as-of-right user of way, to a third-party-neighbour who has to pass through that way (as an alley).

Right of way Beyond (Other Than) Easement and Publlic Right  

In John Varghese (Pazhampallil) v. Sweena Anna Thomas, AIR 2014 Ker 1 (S.S. Satheesachandran, J.), it is held that the normal rule is that an existing pathway can be used by a property owner for the enjoyment of his property unobstructed by the defendant (neighbour) if it is shown –

  • that it is used as-of-right by the property owner and
  • title of that (way) portion of land is not with the defendant (especially when the disputed way is the only access to his property).

Facts in Nutshell (John Varghese v. Sweena Anna , AIR 2014 Ker 1)

  • The defendant was the adjacent property owner of the plaint property.
  • The only access to the plaint property was through the disputed way existed in between these properties.
  • The defendant blocked the way.
  • The plaintiff filed the suit for injunction for removal of the obstructions.
  • The suit was resisted by defendant contending that the plaintiff had no specific case –
    • as to any right of easement (to enjoy the way).
    • whether the pathway was a public way or a private way.

The Kerala High Court found –

  • The disputes to be adjudicated upon were –
    • what was the (civil) right claimed by plaintiff; and
    • should the plaintiff be non-suited for not pleading (i) a right of easement, or (ii) public right of way.  
  • The way was made when a partition was effected between the transferor of the plaintiff and his sister.
  • The partition deed would show that the pathway had been carved out earlier – even before execution of that deed, for convenient enjoyment of those properties. The defendant and her predecessor had only the right to use that pathway.

The High Court held (John Varghese v. Sweena Anna) as under:

  • “Where a person has a common boundary with a pathway beside his property, unless that pathway is shown to be the private property of another, normal rule is that he can make use of that pathway for enjoyment of his property.”
  • “If any portion of the pathway is owned by defendant, no doubt the plaintiff has to establish one of the two* aspects aforementioned.” (*easement/public-way)
  • “Defendant has no proprietary title over the pathway and as such no question of the plaintiff setting up any claim of easement against the defendant would arise for consideration.”
  • “In the given facts of the case plaintiff need not establish that the pathway had been dedicated to the public as a public way.”

What are the possible ‘Legal Rights’ in John Varghese v. Sweena Anna

It may be –

  • grant (say, implied or presumed grant, or lost grant),
  • customary easement, or
  • a civil right recognised by common-law or in equity.

Can it be a ‘Grant’ or an Easement

No. Because, ‘grant’ (or easement ) is a right on land of another.

  • Note: In State of Bihar v. Subodh Gopal Bose, AIR 1968 SC 281, it is observed as under:
  • ” … an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute …

SECTION 4 of the Indian Easements Act defines Easements. It reads 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.”

Even though the definition does not specifically says as to ‘right on a particular or identifiable person‘, courts in India consistently take the view that it is a right in the land of a ‘particular or identifiable’ servient owner so as to create a burden on the servient tenement. This principle is seen followed by the Kerala High Court in John Varghese v. Sweena Anna Thomas, AIR 2014 Ker 1 (supra).

Nevertheless, if it was possible to have a prescriptive right (under lost grant or otherwise) while there was an owner, when the right of way began, it is identified in law as ‘prescriptive easement’. (For this kind of easement, the way must have used for minimum 20 years.)

It can be a custom or customary easement

The essentials of a valid custom (SK Wodeyar v. Ganapati Madhuling Dixit, AIR 1935 Bom 371) are:

  • it must be definite,
  • ancient,
  • uniform and
  • not illegal in itself or unreasonable.

Our Apex Court observed in Ramkanya Bai v. Jagdish, AIR 2011 SC 3258, that to establish a custom, the following matters are to be proved:

  • (a) the usage is ancient or from time immemorial;
  • (b) the usage is regular and continuous;
  • (c) the usage is certain and not varied; and
  • (d) the usage is reasonable.

Section 18 of the Easement Act says as to customary easements. It reads as under:

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

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement are to be proved. [Lachhi v. Ghansara Singh, AIR 1972 HP 89.]

Customary easement includes, the right to take water and earth from a tank, use water for cattle from a tank,  graze cattle [Illustration (a) to sec. 18], to take earth for building and repairing their houses etc. [Jugal Kishore v. Umrao Singh, AIR 1949 All 272. ] These are rights of people of a locality; and it is not a public right.

Usually customary easements will not be accepted by a court without proper pleadings. But, it was held in Chandgi Ram v. Ram Lal, AIR 1963 Raj 161, that the customary easement of having access to a field would be available to tenants of land, if it was newly brought under cultivation, and the customary easement was so well known that the court could give effect to it – even if it was not pleaded in the plaint.

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Customary Easement – Not Necessarily be Annexed to Ownership of Land

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

  • “By the Explanation to s. 4 the expression “to do something” includes removal and appropriation by the dominant owner, for the beneficial enjoyment of the dominant heritage, of any part of the soil of the servient heritage, or anything growing or subsisting thereon. A profit-a- prendre is therefore included in the definition of “easement” in S. 4 of the Indian Easements Act. But an easement being a right which is super-added to the ordinary common law incidents of the ownership of a dominant tenement, and which connotes a corresponding burden on a servient tenement, can only be created by grant, or by statute. … ”
  • “An apparent exception to this rule is a customary easement. But a customary easement is not an easement in the true sense of that expression. It is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement: it is recognised and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right to prevent and continue to prevent something being done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.
  • A profit-a-prendre in gross – that is a right exercisable by an indeterminate body of persons to take something from the land of others, but not for the more beneficial enjoyment of a dominant tenement – is not an easement within the meaning of the Easements Act. To the claim of such a right, the Easements Act has no application. 
  • Section 2 of the Easements Act expressly provides that nothing in the Act contained, shall be deemed to affect, inter alia, to derogate from any customary or other right (not being a license) in or over immovable property which the Government, the public or any person may possess irrespective of other immovable property. A claim in the nature of a profit-a-prendre operating in favour of an indeterminate class of persons and arising out of a local custom may be held enforceable only if it satisfies the tests of a valid custom. A custom is a usage by virtue of which a class of persons belonging to a defined section in a locality are entitled to exercise specific rights against certain other persons or property in the same locality. To the extent to which it is inconsistent with the general law, undoubtedly the custom prevails. But to be valid, a custom must be ancient, certain and reasonable, and being in derogation of the general rules of law must be construed strictly. A right in the nature of a profit-a-prendre in the exercise of which the residents of locality are entitled to excavate stones for trade purposes would ex facie be unreasonable because the exercise of such a right ordinarily tends to the complete destruction of the subject-matter of the profit.”

Customary Easement – Not an easement – Enforced under common law

It is observed in Gopalbhai Jikabhai Suvagiya v. Vinubhai Nathabhai Hirani, 2018  (Guj), that a customary easement is not an easement in the true sense of that expression; it is not annexed to the ownership of a dominant tenement, and it is not exercisable for the more beneficial enjoyment of the dominant tenement; it is recognized and enforced as a part of the common law of the locality where it obtains. A customary easement arises in favour of an indeterminate class of persons such as residents of a locality or members of a certain community, and though not necessarily annexed to the ownership of land, it is enforceable as a right to do and continue to do something upon land or as a right prevent and continue to prevent something done upon land. Sanction for its enforceability being in custom, the right must satisfy all the tests which a local custom for recognition by courts must satisfy.

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Mutual way between adjoining landowners

B.B. Katiyar in his book ‘Law of Easements & Licences’, laid down as under:  

  • “22. Mutual way between adjoining landowners.-The weight of authority is to the effect that, where adjoining proprietors lay out a way or alley between their lands, each devoting a part of his own land for that purpose, and the way or alley is used for the prescriptive period by the respective owners of their successors-in-title, neither can obstruct nor close the part which is on his own land, and in these circumstances the mutual use of the whole of the way or alley will be considered adverse to the separate and exclusive use by either party. However, where the owners of land use an alley- way for their mutual convenience, the user being occasional, permissive, and for broken periods of time, no right of way in the alley is established by prescription“. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457)

Section 15 is not Exhaustive

B.B. Katiyar in ‘Law of Easements & Licences’, further said as under: 

  • “67. Section 15 is not exhaustive.- As has been already pointed out the provisions of Section 15 do not exhaust, the modes of acquisition of an easement by long user and, therefore, do not preclude other titles of modes of acquisition. For instance, although a tenant cannot acquire a prescriptive right of easement in land belonging to his landlord he may claim such right by immemorial user on the basis of a presumed grant. If a plaint contains allegations of user of a way for fifty or sixty years and is not confined in its averments to the mode of acquisition in Section 15, namely, prescription, the acquisition of an easement of right-of-way can be implied under a presumption of lost grant, provided there was no prejudice to the defendant in such a case, the High Court in appeal can allow the claim without remanding the case. The word “easement” in Section 4 means perfected easement. To construe the expression “as an easement” occurring in Section 15 it is not proper to refer to the meaning of easement as given in Section 4″. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457.)

In Halsbury’s Laws of England Vol 16(2) at Page 43, paragraph 79, it is observed as follows:

  • “79. Presumption in favour of long user. Every presumption is made in favour of long user. Not only ought the court to be slow to draw an inference of fact which would defeat a right that has been exercised during a long period, unless such inference is irresistible, but it ought to presume everything that it is reasonably possible to presume in favour of such a right. Where the user is equally consistent with two reasonable inferences, either of which would provide a lawful origin for the right enjoyed, the inference of a lost grant will not necessarily be drawn”. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457.)

Paragraphs 81 and 82 read thus:

  • “81. Basis of prescription at common law. Prescription at common law is based upon a presumed grant which the law assumed to have been made prior to 1189, the first year of the reign of Richard I. By the ancient rule of the common law, enjoyment of an easement has to be proved from time ‘whereof the memory of man runneth not to the contrary, that is to say, during legal memory or since the commencement of the reign of Richard-I”.
  • 82. Time for which user must be proved. As it is usually impossible to prove user or enjoyment further back than the memory of living persons, proof of enjoyment as far back as living witnesses can speak raises a prima facie presumption of an enjoyment from the remoter era.
  • Where evidence is given of the long enjoyment of a right to the exclusion of all other persons, enjoyed as of right as a distinct and separate property in a manner referable to a possible legal origin, it is presumed that the enjoyment in the manner long used was in pursuance of such an origin, which, in the absence of proof that it was modern, is deemed to have arisen beyond legal memory. Unexplained user of an easement or other incorporeal right for a period of 20 years is also held to be presumptive evidence of the existence of the right from time immemorial, but the rule is not inflexible, the period of 20 years being only fixed as a convenient guide. It is not, however, necessary in the case of a claim by prescription at common law to prove user for 20 years next before the proceedings in which the claim is made”. (Quoted in: Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457.)

As of Right User and Theory of Lost Grant

After quoting Halsbury, it is observed in Varghese v. Jose Mathew @ Roy, 2014-3 KLT 1065; 2015-5 RCR (Civ) 457, as under

  • “18. A reading of the above literature on the subject leaves one no doubt that merely because Section 15 of the Easements Act is not attracted, it may not be proper to decline relief to the plaintiff if other ingredients as mentioned by the authors referred to above are satisfied. If it is proved that there does exist a way as alleged in the plaint and it has been used for considerably long period i.e. over 20 years, then merely because the ingredients to attract Section 15 are not established, will the court be justified in declining relief?
  • 19. The answer seems to be in negative. In such cases, the courts have invoked the theory of lost grant for granting relief to the parties. When it is shown that a pathway is in existence and it has been used for a long time, the initial presumption drawn is unless shown otherwise it is used as of right.”

“Land Locking” and Claim of Easement

In Muttil Rajan v. Kuthirakkal Letha, Kerala High Court (Thomas P. Joseph, J.), 2012, found easement of necessity; and, pointed out that the law did not intend “land locking”, in the following words:

  • “22. I must notice the precarious situation in which the respondents are placed. Even assuming that towards the south west of plaint A schedule, a portion of the property belongs to the appellants, it is practically admitted that the plaint A schedule is locked by private properties on all sides, the major portion belonging to the appellants. They can gain access to the public road on the extreme north only through private properties surrounding the plaint A schedule. Severance of tenements is also proved. In such a situation, it is hard to say that the respondents are not entitled a right of easement over the plaint C schedule by necessity. Holding so will amount to land locking the plaint A schedule and the appellants not being able to get out of the plaint A schedule. That is not the intend of the law. When the mother of the respondents claimed a right of access along the western side of the plaint B schedule, the appellants pointed  out the plaint C schedule as the way. Now when over the plaint C schedule the respondents made a claim, the appellants would say that it is not plaint C schedule but it is the PQRS way referred to in Exts.C3 and C4 which for reasons above stated, is not a way which respondents could use as of right. I am not inclined to think that by accepting such dilatory contentions raised by the appellants, the respondents should be driven from pillar to post for an access.
  • 23. This litigation which in effect started in the year, 1996 had reached this court in several forms. Having regard to the various circumstances, I do not find any substantial question of law, justice or equity in the claim now being raised by the appellants that the respondents can have no right of easement by necessity over the plaint C schedule and that the alternate way available to them is the PQRS shown in Exts.C3 and C4.”

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Where No Positive Law, Equity Invoked to Fill the Gaps

It is held in Bola v. Sardana, 1997-8 SCC 522, as under:

  • “Equity steps in where the law has left yawning gaps”. (Quoted in: A. P. Showkath Ali v. State of Kerala, 2018-11 SCC 688).

In A. P. Showkath Ali v. State of Kerala, 2018-11 SCC 688, it was held as under:

  • “Even for courts, equity jurisdiction is meant to be exercised when there is no law operating in the field.”

It is observed in M.  Siddiq v. Mahant Suresh Das, (Ayodhya Case), 2020-1 SCC 1, as under:

  • “658. The correlation between law and justice was the defining factor– in one sense, equity modifies the applicable law or ensures its suitability to address the particular circumstances before a court to produce justice. The modification of general rules to the circumstances of the case is guided by equity, not in derogation or negation of positive law, but in addition to it. It supplements positive law but does not supplant it. In a second sense however, where positive law is silent as to the applicable legal principles, equity assumes a primary role as the source of law itself. Equity steps in to fill the gaps that exist in positive law. Thus, where no positive law is discernible, courts turn to equity as a source of the applicable law. In addition to these, Derrett notes that there is a third sense in which equity or aequitas assumed importance – where established political authority is taken away or is in doubt and the formal sources of law are in doubt, the nature of judicial office requires a decision in accordance with ex bono et aequo. This was evidenced in decisions concerning widows and orphans and in the realm of mercantile law.”

Conclusion

In Nar Bahadur Khatiwada v. State of Sikkim, 2013 (Pious Kuriakose, J.) held as under:

  • “Unlike in England, in this country we do not have separate courts of equity. Indian Courts are governed by principle of equity also. The Supreme Court in Ashok Kapil v. Sana Ullah : ((1996) 6 SCC 342) has held that the maxim “Nullus commodum capere protest de injuria sua propria”, thereby meaning “no man can take advantage of his own wrong” is a salient tenet of equity which Indian Court have been following from time to time.”

From the above, it is beyond doubt that in Indian situation, it is necessary and proper to invoke the equity jurisdiction in the matters of ways to the plots of lands, wherever it is required.

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End Notes

Methods of Acquisition of Easements

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

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

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

“Basis of Every Right of Easement Is, Theoretically, a Grant”

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

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

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

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

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

Sec. 12, Easements Act states that an easement is acquired by the owner of an immovable property. It is observed by the Apex Court in Bachhaj Nahar Vs. Nilima Mandal, AIR 2009 SC 1103, that the claimant of easement (prescription) should plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a licence and not an easement. 

Easement-by-Prescription – “Grant” or Acquisition by “Hostile or Notorious Act”? Is there incongruity?

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

  • The answer is that the ‘grant’ herein is only a “presumption in law”; and virtually, easement by prescription has to be acquired by hostile and/or notorious acts.
  • It is clear from Sec. 12 and 15 of the Easement Act.

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

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

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

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

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

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

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

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

“Implied Grant” – Two Different Legal Attributions in Law of Easements

  • First,  Theoretical basis of easement of necessity (and quasi easement). Both easement of necessity and quasi easement are dealt with in Sec. 13 Easements Act. Theoretically both these rights arise from implied approval of the servient owner; and therefore it is said to be “implied grant”. Though both easement of necessity and quasi easement have some common features, both are distinguishable and cannot go together.
  • Second, ‘Easement by grant’ that arises by implication. Grant of easement may be express or implied (that is arisen by necessary implication). An ‘implied grant’ is also governed under Sec. 8 of the Easement Act which deals with express grant. Easement by implied grant is not a right akin to ‘quasi easement’ (in Sec. 13 of the Easement Act). Implied grant is controlled by the (implied) terms and conditions of the grant; and an implied grant of way also will not be defeated by the emergence of an alternative way.

“Implied Grant” has as much efficacy as an express grant

  • In Hero Vinoth v.  Seshammal, 2006-5 SCC 545, it is laid down that the grant may be express or implied.
  • In Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834, Annapurna  v. Santosh Kumar, AIR 1937 Cal 661; Ratanchand Chordia v. Kasim Khaleeli, AIR 1964 Mad 209 and  L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR  1972 Mad 307, it was held that the grant of a right of way which had necessarily to be implied on a true construction of the deed, had as much efficacy as an express grant.
  • It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the implied grant could be raised even if there was no express grant; and that the argument that the absence of an express grant would negative an implied grant was quite untenable.
  • Easement right by way of implied grant stated in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, is this ‘Easement by grant’ that arise by implication.

Rule of Equity

The maxim ‘nullus commodum’ is applied in cases where false representation or fraudulent representation is made.

In Eureka Forbes Ltd. v. Allahabad Bank, 2010-6 SCC 193, the Supreme Court reiterated the principle as under:

  • “66. The maxim nullus commodum cap ere potest de injuria sua propria has a clear mandate of law that, a person who by manipulation of a process frustrates the legal rights of others, should not be permitted to take advantage of his wrong or manipulations. In the present case Respondents 2 and 3 and the appellant have acted together while disposing off the hypothecated goods, and now, they cannot be permitted to turn back to argue, that since the goods have been sold, liability cannot be fastened upon Respondents 2 and 3 and in any case on the appellant.”

No man can take advantage of his own wrong & No Perpetration of a legal fraud

The Supreme Court, in Ashok Kapil v. Sana Ullah, (1996) 6 SCC 342, held as under :

  • “7. If the crucial date is the date of allotment order, the structure was not a building as defined in the Act. But can the respondent be assisted by a Court of law to take advantage of the mischief committed by him? The maxim “Nullus commodum capere ptest de injuria sua propria” (No man can take advantage of his own wrong) is one of the salient tenets of equity. Hence, in the normal course, the respondent cannot secure the assistance of a Court of law for enjoying the fruit of his own wrong. The upshot is, if the District Magistrate has commenced exercising jurisdiction under section 16 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972, in respect of a building which answered the description given in the definition in section 3(i), he would well be within his jurisdiction to proceed further notwithstanding the intervening development that the building became roofless. We are inclined to afford such a liberal interpretation to prevent a wrongdoer from taking advantage of his own wrong.”

It is observed by Lord Tomlin in Maine and New Brunswick Electrical Power Co. Ltd. v. Alice M. Hart:

  • “In order to invoke a rule of equity, it is necessary in the first instance to establish the existence of a state of circumstances which attracts the equitable jurisdiction, as for example, non-performance of a contract of which equity can give specific performance.”
  • (See: Bengal Nagpur Ry. Co. Ltd. v.  Ruttanji Ramji, AIR 1935 Cal – 347;
  • Ferro Alloys Corporation v. AP State Electricity Board, AIR 1993 SC 2005;
  • Dushyant N. Dalal v. Securities and Exchange Board of India, AIR 2018 SC 447; 2017-9 SCC 660)

Perpetration of a legal fraud

In A.P. State Financial Corporation v. Gar Re Rolling Mills, (1994) 2 SCC 647, it was observed as under:

  • “A court of equity, when exercising its equitable jurisdiction under Article 226 of the Constitution must so act as to prevent perpetration of a legal fraud and the courts are obliged to do justice by promotion of good faith, as far as it lies within their power. Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law.”

Mere false description not vitiate, if sufficient legal certainty

The principles of nullus commodum is subject to another principle – mere false description will not vitiate, if there be sufficient certainty as to the object.

In Harikrishna Lal v. Babu Lal Marandi, (2003) 8 SCC 613, the Supreme Court observed as under:

  • “13. A reference may usefully be made to the maxim “falsa demonstratio non nocet, cum de corpore constaf” which means mere false description does not vitiate, if there be sufficient certainty as to the object. ‘Falsa demonstratio’ means an erroneous description of a person or a thing in a written instrument and the above rule respecting it signifies that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the device; the characteristic of cases within the rule being that the description, so far as it is false, applies to no subject at all, and, so far as it is true, applies to one only. (See Broom’s Legal Maxims, 10th Edn., pp. 426-27.) Broom quotes (at p. 438) an example that an error in the proper name or in the surname of the legatee should not make the legacy void, provided it could be understood from the Will what person was intended to be benefited thereby.”

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Can a Christian Adopt? Will an adopted child get share in the property of adoptive parents?

Saji Koduvath, Advocate, Kottayam.

Abstract

Can a Christian Adopt?

  • Answer: Yes.

Will an adopted child get share in the property of adoptive parents?

  • Answer: Yes.

Which is the law applicable for Christian adoption?

  • Answer: No enactment speaks about adoption by Christians.
  • Adoption being a legally recognised affair, and it reigns in the ‘personal law’ (law that pertains to religious communities) courts in India would look into the matter on two counts –
    • First, is there any custom among the group (Sohan Lal v. A.Z. Makuin, AIR 1929 Lahore 230).
    • Second, is it a matter prohibited by the religion or its teachings.
  • Various courts in India, including the Supreme Court (Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235) held that Christians can validly adopt children.

Pharez John Abraham v. Arul Jothi Sivasubramaniam

Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235 (M.R. Shah, L. Nageswara Rao, JJ.) is an authority on the following matters –

  • In the Christian Law, there is no prohibition against adoption.

By virtue of adoption, or once it is found the child is adopted –

  • he or she is deemed to be a son or daughter of the adoptive parents;
  • the child gets transplanted into the new family; and
  • he or she has the same rights and share which a natural child had.

It is held in Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235, as under:

  • “Therefore, all proceeded on the premise that defendant no. 3 and late Maccabeaus were the adopted children. Therefore, we may also proceed further with the case on the assumption that defendant no. 3 and late Maccabeaus were the adopted children of John D. Abraham. It is required to be noted that in the Christian Law, there is no prohibition against adoption. Nothing has been pointed out that unlike in Hindu law, there is any law prohibiting the Christian couple to adopt male or female child, although they may have natural born male or female child, as the case may be. Once, it is observed and held that original defendant no. 3 and late Maccabeaus were the adopted children of John D. Abraham, both of them were entitled to the share in the property of John D. Abraham – adoptive father.
  • 11.2 By virtue of adoption, a child gets transplanted into a new family whereafter he or she is deemed to be member of that family as if he or she were born son or daughter of the adoptive parents having same rights which natural daughter or son had. The right which the child had to succeed to the property by virtue of being son of his natural father, in the family of his birth, is thus, clearly to be replaced by similar rights in the adoptive family, and, consequently, he would certainly obtain those rights in the capacity of a member of that family as an adopted son.”

Codification of Adoption Laws

It deserves notice that (i) Juvenile Justice (Care and Protection of Children) Act 2006 and Guardian and Wards Acts do not deal with ‘adoption’, inheritance and other related matters; and (ii) adoption law exists only to bind the Hindus – Hindu Adoptions and Maintenance Act, 1956. Therefore, several attempts were made to enact a legislation in this field. Following are the main attempts –

  • the Adoption of Children Bill, 1972,
  • the Adoption of Children Bill, 1980,
  • the Christian Adoption and Maintenance Bill, 1990.

Owing to the objections raised by various religious communities, no law could have been enacted.

(See: Biju Ramesh v. J.P. Vijayakumar, AIR 2005 Ker 196.)

General Propositions as to Adoption – Kerala High Court

Philips Alfred Malvin v. Y.J. Gonsalvis, AIR 1999 Ker 187, laid down the general propositions as to adoption as under:

  • Christian Law does not recognise adoption. But it is an admitted fact that the Christian Law does not prohibit adoption. 
  • The Hindu Adoptions and Maintenance Act provides for adoption of children by Hindu parents.
  • The main purpose of law of adoption is to provide consolation and relief to childless person.
  • An adopted child is transplanted in the adoptive family creating all rights and relationships as if the child was a biological child.
  • On the other hand, all his rights and relationships cease in the natural family.
  • So far as Hindus are concerned, adoption is to preserve the continuation of ones lineage. 
  • Apart from the religious motives, secular motives were also important such as man’s desire for celebration of his name for the perpetuation of his lineage, for providing security in the old age and for dying in satisfaction that one has left a heir to one’s property.
  • It is essentially a transfer of dominion over the child from the natural parents to the adoptive parents and therefore some essential formalities were prescribed to effectuate the transfer on dominion.
  • The position of an adopted child in respect of inheritance and maintenance is the same as that of a natural born child.
  • Mohammaden Law also recognise adoption if there is custom prevailing among Mohammaden communities. (The custom is accepted to have the force of law, as is held in AIR 1936 Lahore 465.)
  • Section 29 of the Oudh Estates Act, 1869 permits a Mohammedan Talukdar to adopt a son.
  • In the State of Jammu & Kashmir, the existence of local custom regarding adoption has been recognised by virtue of Sri Pratap Jammu & Kashmir Laws Consolidation Act, 1977.
  • The right of the couple to adopt a son is a constitutional right guaranteed under Article 21. 
  • The right to life (Article 21) includes those things which make life meaningful. (One can think of making their life more meaningful by adopting a son.)
  • The Hindu Law, Mohammedan Law and Canon Law recognize adoption.
  • Therefore, simply because there is no separate statute providing adoption, it cannot be said that the adoption made by one is invalid.
  • Since the adopted son gets all the rights of a natural born child, he is entitled to inherit the assets of adoptive parents.

Inter-Country Adoption Apex Court Guidelines

  • Nowadays inter-country adoption is promoted for which the Apex Court has given some guidelines in Lakshmi Kant Pande v. Union of India, AIR 1984 SC 469. (Referred to in: Philips Alfred Malvin v. Y.J. Gonsalvis, AIR1999 Ker 187)

Evidence of Adoption

There is no specific law in this regard. From the aforesaid decision, Pharez John Abraham v. Arul Jothi Sivasubramaniam K., AIR 2019 SC 4235, it is clear that there is no special procedure or legal formality is also provided for ‘adoption’; the court pointed out – ‘all proceeded on the premise that defendant no. 3 and late Maccabeaus were the adopted children‘.

Therefore, all the evidence, including the facts and circumstances, emerges in the case has to be taken into consideration to find whether there is an adoption or not. The declarations made by the adoptive parents will be valuable pieces in this matter.

Philips Alfred Malvin v. Y.J. Gonsalvis

In Philips Alfred Malvin v. Y.J. Gonsalvis, AIR 1999 Ker 187, in order to prove adoption, the plaintiff has proved the Register of Baptism kept in the Holy Trinity Church, Kannur, where the alleged adoption took place. It read as follows:

  • “Illegitimate child of Anna, adopted by the god parents, mother gave her consent for the adoption and Catholic education, to the god parents. Both Anna and John were Marthomites from Travancore as per the entry in the Baptism Register.”

The Kerala High Court thereafter considered Canon Law and found that it did not prohibit adoption. The Code of Canon Law, commissioned by the Canon Law Society of America, Canon 110, 111 and 1094 relates to adoption, which read as follows:

  • “110. Children, who have been adopted according to the norm of civil law are considered the children of the person or persons who have adopted them.”
  • “111-1. Though the reception of baptism, the child of parents who belong to the Latin Church is enrolled in it, or, if one or the other does not belong to it, both parents have chosen by mutual agreement to have the offspring baptized in the Latin Church. If there is no mutual agreement, however, the child is enrolled in the ritual Church to which the father belongs.
  • 2. Anyone to be baptized who has completed the fourteenth year of age can freely choose to be baptized in the Latin Church or in another ritual Church sui juris; in that case, the person belongs to the Church which he or she has chosen.”
  • “1094. Those who are related in the direct line or in the second degree of the collateral line by a legal relationship arising from adoption cannot contract marriage together validly.”

From the above Canon Laws, it can be seen that the Church has adopted civil law pertaining to the area.

Formalities and Evidence Essential

In Biju Ramesh v. J.P. Vijayakumar, AIR 2005 Ker 196, it is pointed out as under:

  • “Even if the Christian Law recognizes adoption, there must be evidence of: the actual formality of the adoption by proving the physical act of giving and taking of the child ……” (Quoted in: In Re – R. R. George Christopher, 2010-2 LW 881; 2009-8 MLJ 309).

In Maxin George v. Indian Oil Corporation Ltd., 2005 (3) KerL T 57, it is held that an abandoned child fostered by a couple does not attain the status of the adopted child of that couple. Obtaining an order appointing one as guardian of such a child under the Guardians and Wards Act also does not confer on the child the status of an adopted child. It continued as under:

  • “14. Though after the amendment of the Hindu Adoptions and Maintenance Act by Act 45 of 1962 an orphan also could be adopted, such adoption also could be made only if the guardian gave the child in adoption. Among Christians also formalities of adoption takes in the physical act of giving and taking of the child. Obviously the giver of the child has to be one duly empowered or competent in that behalf. …
  • … In the absence of evidence of a valid adoption having been made in any of the recognised forms undergoing the formalities of adoption recognised by the community an adoption cannot become legal.”

In T. Crauford v. Ms. Maary Disilva,  AIR 2008 Raj 189, it is held that  ‘baptism is not synonymous to adoption and the baptised child does not get any right in the property of his sponsors i.e. godparents only on account of the baptism’.

Guardian and Adoption

Maxin George v. Indian Oil Corporation Ltd., 2005 (3) KerL T 57, held as under:

  • “Authorities on the subject seem to be unanimous in the view that an abandoned child fostered by a couple does not attain the status of the adopted child of that couple. Obtaining an order appointing one as guardian of such a child under the Guardians and Wards Act also does not confer on the child the status of an adopted child.”

Secular law in India Providing for Adoption

In In Re – R. R. George Christopher, 2010 2 LW 881; 2009 8 MLJ 309 it is pointed out as under:  

  • “13. The JJ Act for the first time provides adoption as a means to rehabilitate and socially reintegrate a child. It had empowered the State Government and the JJ Board to give a child for adoption. This is the first secular law in India providing for adoption. The provision: in Sections 40 and 41 are not restricted to persons belonging to particular religion alone.
  • 14. Sections 40 and 41 of the Juvenile Justice (Care & Protection of Children) Act, 2000 reads as follows:
  • “40. Process of rehabilitation and social reintegration:
  • The rehabilitation and social reintegration of a child shall begin during the stay of the child in a childrens home or special home and the rehabilitation and social reintegration of children shall be carried out alternatively by (i) adoption, (ii) foster care, (iii) sponsorship, and (iv) sending the child to an after-care organization.
  • 41. Adoption:
  • .(1) The primary, responsibility for providing care and protection to children shall be that of his family.
  • (2) Adoption shall be resorted to for the rehabilitation, of such children as are orphaned, abandoned, neglected and abused through institutional and non-institutional methods.
  • (3) In keeping with the provisions of the various guidelines for adoption issued from time to time, by the State Government, the Board shall be empowered to give children in adoption and carry out such investigations as are required for giving children in adoption in accordance with the guidelines issued by the State Government from time-to-time in this regard.
  • (4) The children homes or the State-Government run institutions for orphans shall be recognized as adoption agencies both for scrutiny and placement of such children for adoption in accordance with the guidelines issued under sub-section (3).
  • (5) No child shall be offered for adoption –
  • .(a) until tow members of the Committed declare the child legally free for placement in the case of abandoned children,
  • .(b) till the two months period for reconsideration by the parent is over in the case of surrendered children, and
  • .(c) without his consent in the case of a child who can understand and express his consent.
  • .(6) The Board may allow a child to be given in adoption –
  • .(a) to a single parent, and
  • .(b) to parents to adopt a child of same sex irrespective of the number of living biological sons or daughters”.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India