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.”

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

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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.”

An alienee, expected to make inquiry, presumed to have constructive notice

The Kerala High Court, in Gomathy Ammal v. Padmavathi Amma, AIR 1967 Ker 58, observed as under:

  • “Under S. 3 of the Act as amended, registration of a document by itself imports notice thereof. The law prior to the amendment has been laid down by the Privy Council in Tilakdhari Lal v. Khedan Lal AIR. 1921 P. C. 112, and in the concerned area by the Travancore High Court in Mariyadumperumal Chidambarathanu v. Namasivayom Sivakami 17 Trv.LJ 321 at p. 329.
  • The Privy Council said:
    •  “…. but nonetheless it shows that it would not be reasonable to hold that registration was notice to the world of every deed which the register contained. The doctrine must be subject to some modification. There may be circumstances in which omission to search the register would, even under the definition already given, result in notice being obtained and the circumstances necessary for this purpose may be very slight, but in the present case no such circumstances are found.
  • In Mariyadumperumal Chidambarathanu v. Namasivayom Sivakami, 17 Trv. LJ. 321 at p. 329 after a consideration of previous decided cases on the subject, the court said:
    • ‘without going so far as to lay down as an absolute proposition that registration is notice to subsequent alienees, we would hold that a subsequent alienee, who is expected as a prudent person to make inquiry or inspection in the Registry Officer, should be presumed to have had constructive or imputed notice of the prior registered deed, and consequently also of its contents as notice of the existence of a deed affecting title is notice of its contents’.”

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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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

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

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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

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

Adverse Possession Against Government

Saji Koduvath & James Joseph, Advocates, Kottayam.

1. Special Features of Government Land

When considering adverse possession, two important distinctions arise between government properties and private properties.

  • (i) Certain presumptions available;
  • (ii) Period of Limitation – 30 years.

Supreme Court of India in Land and Building Department Through Secretary v. Attro Devi, [2023] SCR [3] 374, it is held as under:

  • “12. The issue as to what is meant by “possession of the land by the State after its acquisition” has also been considered by Constitution Bench of Hon’ble Supreme Court in Indore Development Authority’s case (Indore Development Authority v. Manoharlal, 2020-8 SCC 129). It is opined therein that after the acquisition of land and passing of award, the land vests in the State free from all encumbrances. The vesting of land with the State is with possession. Any person retaining the possession thereafter has to be treated trespasser. When large chunk of land is acquired, the State is not supposed to put some person or police force to retain the possession and start cultivating on the land till it is utilized. The Government is also not supposed to start residing or physically occupying the same once process of the acquisition is complete. If after the process of acquisition is complete and land vest in the State free from all encumbrances with possession, any person retaining the land or any re-entry made by any person is nothing else but trespass on the State land.”

In Indore Development Authority v. Manoharlal, 2020-8 SCC 129; AIR 2020 SC 1496, (S. Ravindra Bhat, M. R. Shah, Vineet Saran, Indira Banerjee, Arun Mishra) it is held as under:

  • “245. The question which arises whether there is any difference between taking possession under the Act of 1894 and the expression “physical possession” used in Section 24(2). As a matter of fact, what was contemplated under the Act of 1894, by taking the possession meant only physical possession of the land. Taking over the possession under the Act of 2013 always amounted to taking over physical possession of the land. When the State Government acquires land and drawns up a memorandum of taking possession, that amounts to taking the physical possession of the land. On the large chunk of property or otherwise which is acquired, the Government is not supposed to put some other person or the police force in possession to retain it and start cultivating it till the land is used by it for the purpose for which it has been acquired. The Government is not supposed to start residing or to physically occupy it once possession has been taken by drawing the inquest proceedings for obtaining possession thereof. Thereafter, if any further retaining of land or any re-entry is made on the land or someone starts cultivation on the open land or starts residing in the outhouse, etc., is deemed to be the trespasser on land which in possession of the State. The possession of trespasser always inures for the benefit of the real owner that is the State Government in the case.”

2. Presumptions in Favour of Govt. Lands

(a) There is a presumption in favour of Government – all lands which are not the property of any person or which are not vested in a local authority, belong to the Government.

(b) In order to defeat the title of the Government, a claimant has to establish a clear title which is superior to or better than the title of the Government.

(c) In Pierce Lessley & Company Ltd. v. Violet Ouchterlong Waoshare, AIR 1969 SC 843, it was held as under –

  • “In this country escheat is not based on artificial rules of common law; and is not an incident of feudal tenure.  It is incident sovereignty and rests on principle of ultimate ownership by the State of all property within the jurisdiction.”

(d) In Chotte Khan v. Muhammed Obedulla Khan, AIR 1953 Nag. 361, held

  • “the State is the ultimate owner of all property situate within its boundaries”.

(e) In Ameer Hussain v. Deputy Director of Consolidation, 1978 RD 204, 1977 AWC 1, it is held that it would be deemed that the disputed land vested in State and if the other side fails, in law,  it would be taken that the land was vested in State. (Followed in: Mohd. Shafiq v. Assistant Director of Consolidation, 2011-9 ADJ 24)

(f)  In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “15. …… All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.

(g) The law as to title of property is laid down in Union of India v. Ibrahim Uddin, 2012(8) SCC 148 as under –

  • “The appellate courts examined the title of Government instead the plaintiff/respondent No. 1.  Such a course was not warranted.  The title of Government cannot be disputed.  In any event, possession of Government for decades is not disputed.  The plaintiff shifted the case from time to time; but failed to prove his title……….   The said courts did not realize that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit-land.”

(h) In Government of Kerala v. Joseph, AIR 2023 SC 3988 – It was pointed out –

  • “When the land subject to proceedings wherein adverse possession has been claimed, belongs to Government, the court is duty-bound to act with greater seriousness, effectiveness, care and circumspection as it may lead to destruction of a right/title of the State to immovable property.”

(i) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
  • The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. …”

(j) In State of Kerala v. Pathrose Mathai, 1970 Ker LJ 517; 1969 KerLT 507, it was held as under:

  • “There is also no presumption that a person who enters Government land, improves the same & keeps possession, is exercising acts hostile to the title of the State. This is because it is not uncommon for persons to enter upon Government land & reclain and improve such land in the hope of ultimately getting registry or lease of such land.”

3. Period of Limitation – 30 years

R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, continues (as regards period of limitation) as under:

  • ” … The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.
  • Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
  • 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years.
  • In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.

4. Receiving Tax, after Mutation, by Govt.

(a) In case of a claim of adverse possession against Government (obviously, the claimant is not the owner), it is trite law –

  • (a) mutation or payment of tax will not confer title (under adverse possession); and
  • (b) acceptance of land tax (by the Govt.) is a mark of holding property a person. A tax payer cannot validly raise any “adverse” rights against the Government (for he is not admitting it to be the Govt. property, so as to claim ‘adverse’ rights against Govt.).

(b) Assume (or even if) the Govt. received tax for a long period, and the Govt. slept over its rights for long period (or inadvertently accepted or admitted the so claimed title of the claimant), it is also trite law – after 1963 Limitation Act, under Article 65 – there will be no question of ‘adverse possession’, for two things –

  • 1. such a tax payer cannot validly say – he is possessing the Govt. property “adverse to” the interest of the Government (A plea of adverse possession is founded on the acceptance ownership, in another – Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461; Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)
  • 2. that ‘possession’ is not one “started with wrongful dispossession” of the Govt. (Article 65, Limitation Act says as to 12 years from dispossession) (See: Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753; Government of Kerala v. Joseph,AIR 2023 SC 3988)

 (c) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was also held as under:

  • “As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.

5. Denial of Title Possible, if only it is with the ‘knowledge as to the True Owner’; such denial must be ‘Made Known’ to the True Owner by the Claimant of Adv. Possn.

(a) Our Apex Court, in Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, it is held as under:

  • “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other.”

(b) In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “… … In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.”

(c) It observed in Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543, AIR 1995 SC 895, as under:

  • “14. … Adverse possession means a [hostile possession] which is expressly or impliedly in denial of title of the true owner. Under Article 65 [of the Limitation Act,] burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case. …
  • 15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.” (Quoted in: T. Anjanappa v. Somalingappa – (2006) 7 SCC 570)

(d) If according to the claimant (of adverse possession), the true owner was not the actual owner, the claimants cannot claim adverse possession against him. In Kurella Naga Druva Vudaya Bhaskara Rao v. Galla Jani Kamma Alias Nacharamma, (2008) 15 SCC 150, it was observed as under:

  • “The courts have pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff’s title will not be sufficient and he had to show that his possession was also hostile to the title and possession of the true owner”. (Quoted in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461.)

(e) In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461, referring T. Anjanappa v. Somalingappa – (2006) 7 SCC 570, it is laid down as under:

  • “If the defendants are not sure who the true owner is, the question of them being in hostile possession as well as of denying the title of the true owner does not arise.”

(f) In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, it was pointed out by the Apex Court :

  • The question of adverse possession without admitting the title of the real owner is not tenable.  

(g) In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461, our Apex Court allowed the appeal, negating the claim of adverse possession raised by the defendant, inter alia, for not accepting the title of the plaintiff (true owner), by the defendant. It was observed  as under:

  • “16. In the present case, the defendants have not admitted the vesting of the suit property with the Managing Officer and the factum of its transfer in favour of the plaintiff. The defendants have denied the title not only of the Managing Officer but also of the plaintiff.”

(h) P Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, it was observed as under:

  • “7…Consonant with this principle the commencement of adverse possession, in favour of a person implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” (Quoted in: M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)

6. Adverse possession  to the knowledge of the government

In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was held as under:

  • “A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession  to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.
  • Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
  • 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.
  • To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.
  • As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.” (Quoted in: Bhagi Ram v. State of H P (2023 April 10), Nathu Ram v. D D A (2022 February 1.)

6. ‘Slept-over Rights’ – No Meaning in Argument, If No case on Adv. Possn.

(a) Assuming (or even if), the Govt. slept-over its rights for long period and accepted the title deeds of the claimant (executed long back), such sleeping-over or acceptance gets relevance or meaning, only if –

  • the claimant has founded its case on ‘adverse possession’ (and not title); and the claimant raised adverse possession in his pleadings
  • “admitting the State to be the rightful owner”
    • (Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461;
    • Ayodhya case Judgment, M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1) and
  • stating that the claimant had come into possession of the land by “a wrongful dispossession” of the State (under Article 65 of Limitation Act, 1963)
    • (Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779;
    • T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570];
    • PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753;
    • Government of Kerala v. Joseph,AIR 2023 SC 3988).

 (b) If the claimant (of the disputed Govt. property) bases his stance on its title, he has to resist the claim of the Govt. with that title-claim; and not on saying – “sleeping over on right” by the Govt, as it will be a totally irrelevant and alien matter.

(c) The aforestated momentous legal propositions cannot be simply winked-off in the light of the following stupendous and classic judicial edicts –

  • Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779;
  • T. Anjanappa v. Somalingappa – (2006) 7 SCC 570;
  • PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753;
  • Government of Kerala v. Joseph – AIR 2023 SC 3988.

(d) If no adverse possession, mere possession of a claimant (of adverse possession) or trespasser,  however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title. See:

  • Government of Kerala v. Joseph, AIR 2023 SC 3988;
  • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461,
  • Ram NaginaRai v. Deo Kumar Rai, 2019-13 SCC 324,
  • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756,  
  • T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
  • Chatti Konati Rao v. Palle Venkata Subba  Rao, 2010-14 SCC 316;
  • Gaya Prasad Dikshit v. Dr.NirmalChander, 1984-2 SCC 286,
  • Thakur Kishan Singh v. Arvind Kumar, 1994-6 SCC 591]

(e)  U.N. Mitra, in the “Law of Limitation and Prescription” (Tagore Law Lectures – 12th Edition, Vol.2, Page 1430) stated as under:

  • “A squatter is one who settles on land without title or with a view to acquiring title. He is a person who settles or locate on land enclosed or unenclosed with no bona fide claim or colour of title and without consent of the owner. He is merely an intruder and no matter how long he may continue there, no right in law vests in him. A squatter who does not set up a claim of right cannot plead adverse possession. No length of squatting possession would operate as a good or valid defence in a suit for possession by the true owner. A mere squatter or intruder who does not deny the title of the true owner or set up any right in himself cannot claim to be in adverse possession. ………” (Quoted in: K.J. Abraham v. Mrs. Mariamma Itty, ILR 2016-3 Ker 98)

7. Burden of Proof – Complete change by Articles 64 and 65: In the recent decision, (g) (a) Government of Kerala v. Joseph, AIR 2023 SC 3988, our Apex Court observed that burden of proof rests on the person claiming adverse possession. The Court followed P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59, which observed as under:

  • “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent  complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”

(b) Owner “not take care to know notorious facts”  and hostile colour of title, required: Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, has held as under:

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

8. TITLE and POSSESSION need not be proved by the True Owner

(a)   Under Article 65 of the 1963 Limitation Act, TITLE need not be proved by the true owner. Period of possession (or its losing – 12 years back or more) of true owner is attracted only if the claimant pleads “adverse” possession for 12 years or more.

Because, if only the claimant (of adverse possession) “admits TITLE of the rightful owner” and asserts “a wrongful dispossession” (Article 65, Limitation Act – period 12 years from dispossession) of the true owner, then only the claimant can raise adverse possession. Therefore, in such a case (that is, averment of true owner that he is the TITLE holder is admitted), the true owner need not prove title.

(b)   Similarly, previous possession of true owner (within 12 years or so) need not be proved by him.

 (c) Under the (new) Limitation Act, 1963 (Article 65), the true owner will lose title only if the trespasser proves ‘adverse’ possession for 12 years. Therefore the true owner has no burden to show possession within 12 years (as required under the old Act of 1908, under which it was provided that a true owner would lose title if he did not file suit within 12 years of losing title).

  • In other words, the new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession against the true owner (knowing him and bringing his attention to the ‘trespass’).

(d) As shown above, a trespasser’s long possession is not synonymous with adverse possession. (Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729). If no adverse possession, mere possession of a claimant (of adverse possession) or trespasser,  however long, will not lose the right of the true owner (on the ground of limitation) to recover property on the basis of his title (Government of Kerala v. Joseph, AIR 2023 SC 3988; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461 etc.). For the above, under Art. 65 (which is based on title alone; and not previous possession), time-length of previous possession – or its lose – of true owner (or even the claimant) is immaterial. What matters is the ‘dispossession’ within 12 years by the claimant. It is to be pleaded and proved by him. In Ramiah v. M. Narayana Reddy, AIR 2004 SC 4261, 2004(7) SCC 541, it is held as under:

  • “9. … Article 65 of the Limitation Act, 1963 (Article 144 of the Limitation Act, 1908) on the other hand is a residuary article applying to suits for possession not otherwise provided for. Suits based on plaintiffs title in which there is no allegation of prior possession and subsequent dispossession alone can fall within Article 65. The question whether the article of limitation applicable to a particular suit is Article 64 or Article 65 has to be decided by reference to pleadings.” (Quoted in M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1.)

See : Sushila Kumari v. Rama Stores, AIR 2005 Del 401.

(e) In B. R. Anand v. DDA, 2005 SCC OnLine Del 910, it is held as under:

  • “22. A trespasser on Government land would not be entitled to any show cause notice before he is removed from the public site. Hearing is to be granted to a person before a decision is taken or an action is taken which affects his valuable rights. If there is no right, question of the same being affected by non-grant of a hearing does not arise. The right and the remedy are given uno flatu, and one cannot be disassociated from the other. No one has a right to trespass on Government land. No statute was shown which requires show-cause notice to be given to a trespasser before he is removed. Common Law principle of right to be heard is not attracted as no right is being infringed.” (Quoted in: Chetan Rana v. Delhi Development Authority , 21 Feb, 2024)

In appeal (Markandeya Katju, CJ.) on the above judgment, in B. R. Anand v. DDA,2006-3 AD (Del) 632; 2006-128 DLT 354; 2006 88 DRJ 205, it is held as under:

  • “The appellant was admittedly an unauthorised encroacher of the DDA land. It is true that he is blind but this did not entitle him to take the law into his own hands. While we may sympathise with him for his physical handicap, we cannot interfere in the matter as no one has a right to encroach on public land.“

9. Pleadings in Adverse Possession 

Karnataka Board of Wakaf v. Govt of India – (2004) 10 SCC 779; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753, authoritatively lay down the modules as under:

  • The claimant has been in ‘hostile and open, continuous uninterrupted as of right‘ possession of the land,
  • in denial of the title of the rightful owner,
  • adversely to the interest of the owner of the land,
  • started with wrongful dispossession of the rightful owner
    • (Note: Article 65, Limitation Act – period 12 years from dispossession),
  • exercising absolute rights of ownership in respect of the land,
  •  on and from .. . .. (Specify date).

‘Hostile and open’ possession with ‘animus‘ thereof can be attracted when it is shown –

  • Claimant’s acts were hostile enough to make the true owner aware of the adverse possession;
  • or, the claimant made the true owner knew as to his hostile acts or adverse possession (from the inception).

10. Until prescriptive rights are brought in question, they are inchoate

Until prescriptive rights are brought in question, they are inchoate only. In Siti Kantapal v. Radha Gobindaen, AIR 1929 Cal 542, it was held as under:

  • “It has been authoritatively held that a tie to easement is not complete merely upon the effluxion of the period mentioned in the Statute viz., 20 years and that however long the period of actual enjoyment may be, no absolute or indefeasible right can be acquired until the right is brought in question in some suit, and until it is so brought in question, the right is inchoate only and in order to establish it when brought in question, the enjoyment relied on, must be an enjoyment for 20 years up to within 2 years of the institution of the suit.” (Quoted in – D. Ramanatha Gupta v. S. Razaack, AIR 1982 Kant 314.)

This principle applies to adverse possession also.

11. Declaration – Article 65 and not Article 58 of the Limitation Act Governs

(a) In C. Natrajan v. Ashim Bai, AIR 2008 SC 363; 2007 14 SCC 183 (S.B. Sinha & Harjit Singh Bedi, JJ.), it is held as under:

  • “13. If the plaintiff is to be granted a relief of recovery of possession, the suit would be filed within a period of 12 years. It is one thing to say that whether such a relief can be granted or not after the evidences are led by the parties but it is another thing to say that the plaint is to be rejected on the ground that the same is barred by any law. If the suit has been filed for possession, as a consequence of declaration of the plaintiffs title, Article 58 will have no application.”

(b)   In State of Maharashtra v. Pravin Jethalal Kamdar, (2000) 3 SCC 460, it was held by the Supreme Court that merely for the fact that the plaintiff, besides the relief of possession, sought declaration also is of no consequence, and that in such a case the governing article of the Schedule to the Limitation Act would be Article 65.

(c)   In page 752 of the Treatise by B. B. Mitra, the Limitation Act, 23rd Edition, reads as under:

  • “Article 65, and not Article 58, was attracted because no separate declaration was necessary, and the suit was essentially a suit for possession attracting Article 65. (State of Maharashtra v. Praveen, AIR 2000 SC 1099)”

(d)   If plaintiff has clear title in a suit for recovery on the strength of that title, plaintiff is not obliged to seek declaration (Padmavathy v. Kesava Reddy, 1987-2 KLT 386, Dr. Kochuthomman, J.; Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker. 405)

(e)    In Seshumull M. Shah v. Sayed Abdul Rashid, AIR 1991 Kar. 273, Karnataka High Court observed that a suit where possession is claimed as a consequence of the declaration, it would be governed by Article 65 and not Article 58 of the Limitation Act.

(f)    In S. Krishnamma v. T.S. Viswajith :  2009 (4) KLT 840, it is held that Article 58 is not applicable for declaration that is sought only as an ancillary relief. It is held as under:

  • “When a declaration regarding the void character of the document is sought for that is which would not govern the period of limitation for the suit. The consequential relief sought for is to be treated as main relief governing the period of limitation for the suit. (See Mrs. Indira Bhalchandran Gokhale v. Union of India & Another-AIR 1990 Bombay 98). Therefore declaration prayed for in this case as relief Nos. 1 and 2 were unnecessary, and even if made, need only be treated as ancillary to the main relief of partition of immovable properties and the claim that appellant is entitled to get family pension.”

(g) In Aishani Chandna Mehra v. Rajesh Chandna,2019-0-Supreme(Del) 1-70; Laws (Dlh) 2019-1-288, (Rajiv Sahai Endlaw, J.) observed, referring his own earlier 3 judgments, as under:

  • “23. Otherwise also, I have in Sunil Kohliv. Subhash Chand Dua 2016 SCC OnLine Del 3244, Ashok Kumar v. Mohd. Rustam(2016) 227 DLT 385,  and Capital Land Builders Pvt. Ltd. v. Komal, 2018 SCC OnLine Del 11867, held –
  • (i) that in suits claiming relief with respect to immoveable property, the relief of declaration, even if claimed, is superfluous and the limitation for the suit would be governed by the limitation provided for the relief of possession; the longer limitation period provided for instituting a suit for recovery of possession would not be curtailed by the lesser limitation of three years provided for a suit for declaration;
  • (ii) that to hold otherwise would tantamount to providing two different periods of limitation for a suit for recovery of possession of immovable property based on title i.e. of three years if the suit, besides for the said relief is also for the relief of declaration of title and of twelve years, if no relief of declaration is claimed;
  • (iii) that a relief of declaration of title to immovable property is implicit in a suit for recovery of possession of immovable property based on title inasmuch as without establishing title to property, if disputed, no decree for the relief of possession also can be passed;
  • (iv) that thus, merely because a plaintiff in such a suit also specifically claims the relief of declaration of title, cannot be a ground to treat him differently and reduce the period of limitation available to him from that provided of twelve years, to three years; and,
  • (v) that when a relief of declaration is coupled with the relief of possession, the larger period of limitation for the relief of possession and not the lesser period of limitation for the relief of declaration would apply.
  • Reference in this regard may also be made to VidurImpex and Traders Pvt. Ltd. v. Pradeep Kumar Khanna (2017) 241 DLT 481 and C. Natrajan v. Ashim Bai (2007) 14 SCC 183.”

(h) In Ashok Kumar v. Gangadhar, 2007 (2) ALD 313, 2007 (3) ALT 561, it is held:

  • “If the contention of the defendants that Article 58 applies to the suit for possession based on title where declaration of title is also sought, is accepted, it would amount to ignoring the relief for recovery of possession and application of Article 65 to a suit for possession and taking away the right of the plaintiff to prove that the suit is within 12 years from the date when the possession of the defendant becomes adverse to the plaintiff.  If such a suit were to be decided with reference to Article 58 on the ground that the declaration is sought for, application of Article 65 to the suit for possession would be rendered otiose.  Such a construction would be opposed to all principles of interpretation of statutes.  Therefore different Articles of the Limitation Act will have to be interpreted harmoniously.  When such an interpretation is given to Articles 58 and 65 and when the suit is filed for declaration of title to the suit property with consequential relief of possession in my humble view Article 65 of the Limitation Act would apply and not Article 58 of the Limitation Act”.

(i) It is held in Mechineni Chokka Rao v. Sattu Sattamma, 2006 (1) ALD 116, as under:

  • “10…. It is obvious that Article 58 is in the nature of residuary provision among the declaratory suits. Indubitably the relief of declaration can be sought for in respect of an immovable property or movable property, or in respect of an instrument, or in respect of a decree, or in respect of an adoption. Thus, various types of declaratory reliefs can be sought for pertaining to those categories. Therefore, the relief of declaration alone appears to be not the criterion for prescribing the period of limitation but the subject-matter of the suit in respect of which the declaration is sought for, appears to be germane for consideration.”
  • “13. The problem can be viewed in a different dimension. The right over an immovable property will get extinguished as can be seen from Section 27 of the Act only after the expiry of the period prescribed for filing the suit for possession as per Articles 64 and 65 of the Act. Therefore, if the period falls short of the requisite period of 12 years the right over an immovable property will not get extinguished. When the person has a right over an immovable property which right is not extinguished as yet, he can lay the suit in respect of an immovable property even praying for the relief of declaration at any time within the period of 12 years at the end of which, his right would get extinguished. When we consider this clear mandate contained in Section 27 f the Act, it becomes manifest that a declaratory relief in respect of an immovable property can be sought for at any time within the period of 12 years after which the right will get automatically extinguished, notwithstanding the fact that Article 58, the residuary Article for filing declaratory suits, prescribes a period of three years limitation. … ….”

12. Should Private Sale Deeds be Challenged By Govt.

No. For two reasons:

  • First, if only the State is admitted to be to be the rightful owner then only the question of adverse possession arises against Government (Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461).
  • Second, if only the State is a party to the disputed deed, it is needed to seek relief for setting aside the deed; otherwise, the document can be ignored by the State (Sankaran v. Velukutty, 1986 KerLT 794).

13. Plea of Title and Adverse Possession – Whether Mutually Contradictory?

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

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

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

14. Date of Adverse Possession & knowledge to the True Owner etc.

Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 explored Animus possidendi as a requisite ingredient of adverse possession. It was found that a mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner. The date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed – must be established. (Relied on in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46).

15. Denial of Title of the True Owner

In Kurella Naga Druva Vudaya Bhaskara Rao the courts had pointed out that if according to the defendant, the plaintiff was not the true owner, his possession hostile to the plaintiff’s title would not have been sufficient and that the defendant had to show that his possession was also hostile to the title and possession of the true owner.

16. It not sure who the true owner is, there will be no Adverse Possession

Adverse possession is hostile possession which is expressly or impliedly in denial of title of the true owner. To attract adverse possession there must be animus possidendi to hold the land adverse to the title of the true owner (Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316; M. Venkatesh v. BDA, 2015-17 SCC 1; Brijesh Kumar v. Shardabai, 2019-9 SCC 369) with the knowledge of the true owner. If the defendants are not sure who the true owner is, there will be no question of possessing the property hostile to the true owner (T. Anjanappa v. Somalingappa, 2006-7 SCC 570; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46).

17. Claimant must have accepted title of the true owner

For claiming adverse possession against Govt., the claimant should have admitted the State to be the rightful owner when such a claim is raised

The Constitution Bench of our Apex Court, in M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1, it was held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. The Court held as under:

  • “747. A plea of adverse possession is founded on the acceptance that ownership of the property vests in another against whom the claimant asserts a possession adverse to the title of the other. Possession is adverse in the sense that it is contrary to the acknowledged title in the other person against whom it is claimed.”(Quoted in: Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461).

In Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461, our Apex Court allowed the appeal, negating the claim of adverse possession raised by the defendant, inter alia, for not accepting the title of the plaintiff (true owner), by the defendant. It was observed  as under:

  • “16. … The defendants have denied the title not only of the Managing Officer but also of the plaintiff. The plea of the defendants is one of continuous possession but there is no plea that such possession was hostile to the true owner of the suit property. The evidence of the defendants is that of continuous possession. Some of the receipts pertain to 1963 but possession since November, 1963 till the filing of the suit will not ripe into title as the defendants never admitted the plaintiff-appellant to be owner or that the land ever vested with the Managing Officer. In view of the judgments referred to above, we find that the findings recorded by the High Court that the defendants have perfected their title by adverse possession are not legally sustainable.”

18. No Equities in favour of a Person Pleading Adverse Possession

In Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316, it is observed as under:

  • “A person pleading adverse possession has no equities in his favour as he is trying to defeat the rights of the true owner and, hence, it is for him to clearly plead and establish all facts necessary to establish adverse possession. The courts always take unkind view towards statutes of limitation overriding property rights. The plea of adverse possession is not a pure question of law but a blended one of fact and law.” (Relied on in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46)

Can Government assert adverse possession?

No.

It is held in State of Haryana v.Amin Lal, 19 Nov 2024, (SC) as under:

  • “It is a fundamental principle that the State cannot claim adverse possession over the property of its own citizens.”

Following decisions were referred to:

  • Vidya Devi v. State of H.P, (2020) 2 SCC 569
  • Tukaram Kana Joshi v. MIDC, (2013) 1 SCC 353
  • State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404,
  • The State of Haryana v. Amin Lal (SC), Nov. 19, 2024.

Read related Blogs:

End Notes

R. Hanumaiah v. Secretary to Govt., (2010) 5 SCC 203

  • “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual. The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963 which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government. Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
  • 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years. In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted. A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government : whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title. Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
  • 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government. To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored. As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.”

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Sec. 138 NI Act (Cheque) Cases: Presumption of Consideration u/s. 118 – Even if ‘Signed Blank Cheque’, No Burden on Complainant to Prove Consideration; But, Rebuttal can be by a Probable Defence

 Saji Koduvath, Advocate, Kottayam.

Abstract

1. Because of the presumptions (under the NI Act), in cheque-bounce-cases, a complainant need not adduce positive evidence on consideration and debt or other liability‘.

2. As regards the Standard of ‘rebuttal evidence’ on presumption, there is an apparent conflict, as to what is needed –
                “Cogent Evidence” (as observed in Bir Singh v. Mukesh Kumar,
                2019-4 SCC 197 – Two Judge Bench)
                 or
                “Preponderance of Probabilities” (Rangappa v. Sri Mohan, 3-Judge Bench,
                2010-11 SCC 441, and other decisions).

3. The apparent conflict is resolved in Oriental Bank of Commerce v. Prabodh Kumar Tewari, 2022-7 SCR 72 (DY Chandrachud, A S Bopanna, JJ.). It is pointed out –
                (1). Three-Judge Bench decision in Rangappa v. Sri Mohan holds the field.
                (2). It is held in Rangappa v. Sri Mohan –
‘it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of “Preponderance of Probabilities”. 
Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution has to fail if it does not discharge the shifted onus. 

4. It is pitiful that several High Courts in India misapply the law in this matter without giving due notice to the well-reasoned analysis in Oriental Bank of Commerce v. Prabodh Kumar Tewari, 2022-7 SCR 72

Part I

Presumption Under Sec. 138, NI Act: for Consideration and Debt or other liability

A complainant in a Sec. 138, NI Act (cheque-bounce) case need not adduce positive evidence on consideration and debt or other liability, if signature in the cheque is proved or admitted.

  • Because, presumptions under Sec. 118 and 139 of the Act can be invoked.
    • Presumption under Sec. 118 lays down – cheque was drawn for consideration.
    • Presumption under Sec. 139 lays down – holder of the cheque received it for the discharge of debt or other liability (that needed to attract Sec. 138 proceedings).

Presumption is not in itself evidence

A presumption only makes a prima facie case for a party for whose benefit it exists, and it is not in itself evidence (Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513; Basalingappa v. Mudibasappa – 2019(5) SCC 418).

Rebuttal: Standard of Proof – Preponderance of Probabilities

The required evidence or Standard of Proof for the ‘rebuttal of presumption’ is –

  • Preponderance of Probabilities 
    • See: Triyambak S.  Hegde v. Sripad, 2022-1 SCC 742;
    • Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348).

Rebuttal: Standard of Proof – Probable Defence’ which ‘Creates Doubts‘

The required evidence or Standard of Proof (for rebuttal of a factual presumption) can be –

  • ‘Probable Defence’ which ‘Creates Doubts‘ about the existence of a legally enforceable debt.
    • Rangappa v. Sree Mohan, 2010(11) SCC 441;
    • M.S. Narayana Menon v. State of Kerala 2006-6 SCC 39;
    • Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, (1999) 3 SCC 35)

Part II

Presumption under S. 118(a) – Rebutted by Evidence as to Lack of Consideration

The presumption under Sec. 118 arises only if the signature in the cheque is proved or admitted. It can be rebutted by evidence as to

  • (i) lack of consideration or
  • (ii) improper execution.

Conflict on Nature of Evidence Required to Rebut the Presumption

The Conflict is between “Cogent Evidence” and “Preponderance of Probabilities”.

  • The First stricter view (on Cogent Evidence) is taken in Bir Singh v. Mukesh Kumar, 2019-4 SCC 197.
  • But the weight of authorities is in favour of the second view (on Preponderance of Probabilities). The following are the leading decisions-
    • Rajaram v.  Maruthachalam, AIR 2023 SC 471;
    • Oriental Bank of Commerce v. Prabodh Kumar Tewari, 2022-7 SCR 72;
    • Triyambak S.  Hegde v. Sripad, 2022-1 SCC 742;
    • Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348).
    • Basalingappa v. Mudibasappa – 2019(5) SCC 418
    • K. Subramani v. K. Damodara Naidu, 2015 -1 SCC 99.
    • Vijay v. Laxman, (2013) 3 SCC 86;
    • Rangappa v. Sree Mohan, 2010(11) SCC 441 (Three Judge Bench);
    • M.S. Narayana Menon v. State of Kerala 2006-6 SCC 39;
    • Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16;
    • Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, (1999) 3 SCC 35);
    • Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808.

Part III

Rebuttal need not be positively proved to be true

Rebuttal need not be conclusively established or positively proved to be true (Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808; Basalingappa v. Mudibasappa – 2019(5) SCC 418).

  • It need be reasonably probable 
    • See: Rajaram v.  Maruthachalam, AIR 2023 SC 471;
    • Basalingappa v. Mudibasappa – 2019(5) SCC 418
    • Hiten P. Dalal v. Bratindranath Banerjee, (2001) 6 SCC 16;
    • Vijay v. Laxman, (2013) 3 SCC 86

Rebuttal can be by invoking another Presumption

  • Not necessary for the accused to rebut (consideration) by direct evidence
    • M.S. Narayana Menon v. State of Kerala 2006(6) SCC 39, SB Sinha, J.).
    • See: Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal,  1999-3 SCC 35;
  • Rebuttal (of presumption) can be by invoking another presumption
    • Kundanlal v. Custodian Evacuee property, AIR 1961 SC 1316) Referred to in: Priyamvada K. v. M.  Rahufina, 2024-1 KerHC 245.
  • It can be the circumstances relied upon by the complainant (M.S. Narayana Menon v. State of Kerala 2006-6 SCC 39).
  • On such a ‘shifting’, the source of money and financial capacity of complainant to make the loan can be a point for consideration, and the complainant may have to produce bank-statement to show the alleged loan-payment, or his financial capacity.
    • See: Rajaram v.  Maruthachalam, AIR 2023 SC 471;
    • Basalingappa v. Mudibasappa, 2019-5 SCC 418).
    • K. Subramani v. K. Damodara Naidu, 2015 -1 SCC 99.

The Respondent has to Rebut the Presumption with “Cogent Evidence“

Sec. 118 says about presumption of consideration in a Negotiable Instrument (including cheque). Effect of administering this presumption in Sec. 138 is considered in Bir Singh v. Mukesh Kumar, 2019-4 SCC 197. It is held –

  • In view of Sec. 118, if signature in a Cheque is admitted by the accused –
    • Complainant has no burden to prove the loan or other liability.
    • Immaterial – who filled the cheque (complainant can fill the cheque, under Sec. 20, NI Act)
    • Reverse onus theory applies.
    • Onus/burden is on respondent – to show cheque was issued not in discharge of debt.
  • “Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”
  • (This view is reiterated (obiter) by a three-Judge Bench in Kalamani Tex v. P. Balasubramanian, 2021-5 SCC 283)

Presumption u/S. 118(a) – Initial onus only to show Consideration Doubtful

Our Apex Court in Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, (1999) 3 SCC 35 (V.N. Khare, R.P. Sethi, JJ.), laid down the law as to presumption under Section 118(a) as under:

  • “12. Upon consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non- existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.”
  • (Quoted in: Maitreya Doshi v. Anand Rathi Global Finance Ltd., AIR 2022 SC 4595;
  • K. S.  Ranganatha v. Vittal Shetty, 2022-1 Crimes(SC) 454; 2021-12 JT 165;
  • K. Prakashan v. P.K. Surendran (2008) 1 SCC 258;
  • Rev.  Mother Marykutty v. Reni C.  Kottaram, 2013-1 SCC 327;
  • Mallavarapu Kasivisweswara Rao v. Thadikonda Ramulu Firm, AIR 2008 SC 2898; 2008-7 SCC 655;
  • Krishna Janardhan Bhat v. Dattatraya G. Hegde, AIR 2008 SC 1325; 2008-4 SCC 54)

Rebuttal of Presumption Explained by SB Sinha, J.

In M.S. Narayana Menon v. State of Kerala, 2006(6) SCC 39, SB Sinha, J., in His Lordship’s stupendous characteristic style explained the legal position as to the ‘proof’ of ‘presumption’, and ‘probable defence‘, as under:

  • “29. In terms of Section 4 of the Evidence Act whenever it is provided by the Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. The words ‘proved’ and ‘disproved’ have been defined in Section 3 of the Evidence Act (the interpretation clause) to mean: –
    • “Proved”:  A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.
    • “Disproved”: A fact is said to be disproved when, after considering the matters before it the Court either believes that it does not exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.”
  • 30. Applying the said definitions of ‘proved’ or ‘disproved’ to principle behind Section 118(a) of the Act, the Court shall presume a negotiable instrument to be for consideration unless and until after considering the matter before it, it either believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist. For rebutting such presumption, what is needed is to raise a probable defence. Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.”

After quoting aforesaid passage from Bharat Barrel & Drum Manufacturing Company v. Amin Chand Payrelal, (1999) 3 SCC 35, it was continued in M.S. Narayana Menon v. State of Kerala, as under:

  • “32. This Court, therefore, clearly opined that it is not necessary for the defendant to disprove the existence of consideration by way of direct evidence.
  • 33. The standard of proof evidently is  Pre-ponderance of probabilities. Inference of Pre-ponderance of probabilities can be drawn not only from the materials on records but also by reference to the circumstances upon which he relies.
  • 34. Presumption drawn under a statute has only an evidentiary value. Presumptions are raised in terms of the Evidence Act. Presumption drawn in respect of one fact may be an evidence even for the purpose of drawing presumption under another.”

Rebuttal of Presumption- Burden Shifts; Not “Haunt the accused any longer“

On rebuttal of presumption, the burden shifts to the complainant, and thereafter and the burden does not “haunt the accused any longer” (Rajesh Jain v. Ajay Singh, AIR 2023 SC 5018;   2023-10 SCC 148).

Rebuttal: Standard of Proof – Probable defence which Creates Doubts

In Rangappa v. Sree Mohan, 2010(11) SCC 441 (CJI, K.G. Balakrishnan, P. Sathasivam and J.M. Panchal, JJ.), a case related to dishonour of cheque under Sec. 138,  it is observed that preponderance of probable defence, if sufficient to Creates Doubts, may shift the burden. It is held in this decision as under:

  • “28   In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of ‘preponderance of probabilities’. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.“

Para 28 of Rangappa v. Sri Mohan, 2010-11 SCC 441, is quoted in following decisions of our Apex Court –

  • Oriental Bank of Commerce v. Prabodh Kumar Tewari, 2022-7 SCR 72 (Dhananjaya Y Chandrachud, A S Bopanna, JJ.)
  • Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348 (Dhananjaya Y. Chandrachud, M.R. Shah, JJ.)
  • Basalingappa v. Mudibasappa – 2019(5) SCC 418, AIR 2019 SC 1983 (Ashok Bhushan, K.M. Joseph, JJ.)
  • Rohitbhai Jivanlal Patel v. State of Gujarat, AIR 2019 SC 1876; 2019-18 SCC 106 (Abhay Manohar Sapre, Dinesh Maheshwari, JJ.)

In Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348, following Rangappa v. Sri Mohanit (supra), it is held as under:

  • “The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities.”

Rebuttal Need Not be Conclusively Established – Basalingappa v. Mudibasappa

Basalingappa v. Mudibasappa, 2019(5) SCC 418 (Ashok Bhushan and K.M. Joseph, JJ.), , is a classic decision on ‘rebuttal of presumption’. In this decision our Apex Court relied on the following earlier decisions to formulate the final propositions.

(i). Kali Ram v. State of Himachal Pradesh, (1973) 2 SCC 808. A Three-Judge Bench of the Supreme Court laid down as under:

  • “23 ……. One of the cardinal principles which has always to be kept in view in our system of administration of justice for criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence with which he is charged. The burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of that burden, the courts cannot record a finding of the guilt of the accused. There are certain cases in which statutory presumptions arise regarding the guilt of the accused, but the burden even in those cases is upon the prosecution to prove the existence of facts which have to be present before the presumption can be drawn. Once those facts are shown by the prosecution to exist, the Court can raise the statutory presumption and it would, in such an event, be for the accused to rebut the presumption. The onus even in such cases upon the accused is not as heavy as is normally upon the prosecution to prove the guilt of the accused. If some material is brought on the record consistent with the innocence of the accused which may reasonably be true, even though it is not positively proved to be true, the accused would be entitled to acquittal.”

(ii). Bharat Barrel & Drum Manufacturing Co. v. Amin Chand Pyarelal, (1999) 3 SCC 35, considered Sec. 118(a) of the NI Act. Our Apex Court held as under –

  • Once execution of the promissory note is admitted, the presumption under Sec. 118(a) as to consideration would arise; and that such a presumption can be rebutted by raising a probable defence.
  • In such an event, the plaintiff is entitled to rely upon the evidence led by the plaintiff.
  • The court may not insist upon the defendant to disprove the consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt.
  • The bare denial does not appear to be any defence. Something which is probable has to be brought on record for shifting the onus to the plaintiff.
  • To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist.

(iii). M.S. Narayana Menon v. State of Kerala, (2006) 6 SCC 39 (Justice S.B. Sinha)

  • Sections 118(a), 138 and 139 of the NI Act was considered in this decision. Referring Union of India v. Pramod Gupta, (2005) 12 SCC 1, it was pointed out that the expression ‘shall presume’ cannot be synonymous with ‘conclusive proof’; and that for rebutting the presumption under Sec. 118(a), a probable defence alone is needed.
  • Even for the said purpose, the evidence adduced on behalf of the complainant could be relied upon.
  • It is analysed on the principle (as to the definition, “proved”, in Sec. 3 Evidence Act) whether the court believes that the consideration does not exist or considers the non-existence of the consideration so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that the consideration does not exist.
  • The standard of proof evidently is preponderance of probabilities.
  • Inference of preponderance of probabilities can be drawn not only by direct evidence or from the materials on record; but it can also be by reference to the circumstances upon which he relies.

(iv). Krishna Janardhan Bhat v. Dattatraya G. Hegde, (2008) 4 SCC 54.

  • An accused for discharging the burden need not examine himself.
  • He can rely on the materials already brought on record. And, also by reference to the circumstances upon which he relies.
  • An accused has a constitutional right to maintain silence.
  • Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.
  • Prosecution must prove the guilt of an accused beyond all reasonable doubt, the standard of proof so as to prove a defence on the part of an accused is “preponderance of probabilities“.

(v). Kumar Exports v. Sharma Carpets, (2009) 2 SCC 513

  • Under Sec. 138 of the NI Act, as soon as the complainant discharges the burden to prove that the instrument was executed by the accused, the rules of presumptions under Sections 118 and 139 help him shift the burden on the accused.
  • A presumption is not in itself evidence, but only makes a prima facie case for a party for whose benefit it exists.
  • The phrase “until the contrary is proved” in Section 118 and use of the words “unless the contrary is proved” in Section 139 of the Act read with definitions of “may presume” and “shall presume” as given in Section 4 of the Evidence Act, makes it clear that presumptions to be raised under both the provisions are rebuttable.
  • When a presumption is rebuttable, it only points out that the party on whom lies the duty of going forward with evidence, on the fact presumed.
  • And when that party has produced evidence fairly and reasonably tending to show that the real fact is not as presumed, the purpose of the presumption is over.
  • The court need not insist in every case that the accused should disprove the non-existence of consideration and debt by leading direct evidence because the existence of negative evidence is neither possible nor contemplated.
  • But, the bare denial of consideration and debt, apparently would not serve the purpose. Something which is probable has to be brought on record to shift  the burden to the complainant.
  • The accused should bring facts and circumstances, which, the court may either believe that the consideration and debt did not exist or their non-existence was so probable that a prudent man would under the circumstances of the case, act upon the plea that they did not exist.

(vi) Rangappa v. Sri Mohan, (2010) 11 SCC 441 (Three-Judge Bench)

  • It was a case under Sec. 138 and 139 where the accused had admitted signatures on the cheque.
  • It gives only an initial presumption which favours the complainant.
  • This Court held that the presumption as to a legally enforceable debt or liability could be rebutted and the onus is then on the accused to raise a probable defence. It is an example of ‘reverse onus’.
  • The defendant-accused cannot be expected to discharge an unduly high standard of proof.
  • The accused need not adduce evidence of his/her own.

Principles Formulated in Basalingappa

Finally, in Basalingappa v. Mudibasappa, 2019(5) SCC 418, the Court summarised the principles as under:

  • “23. We having noticed the ratio laid down by this Court in above cases on Sections 118(a) and 139, we now summarise the principles enumerated by this Court in following manner:-
  • .(i) Once the execution of cheque is admitted Section 139 of the Act mandates a presumption that the cheque was for the discharge of any debt or other liability.
  • (ii) The presumption under Section 139 is a rebuttable presumption and the onus is on the accused to raise the probable defence. The standard of proof for rebutting the presumption is that of preponderance of probabilities.
  • (iii) To rebut the presumption, it is open for the accused to rely on evidence led by him or accused can also rely on the materials submitted by the complainant in order to raise a probable defence. Inference of preponderance of probabilities can be drawn not only from the materials brought on record by the parties but also by reference to the circumstances upon which they rely.
  • (iv) That it is not necessary for the accused to come in the witness box in support of his defence, Section 139 imposed an evidentiary burden and not a persuasive burden,
  • (v) It is not necessary for the accused to come in the witness box to support his defence.”

It is for the Accused to rebut the Presumptions under S. 139

In Ajitsinh Chehuji Rathod v. State of Gujarat, 2024 SCC OnLine SC 77, it is held that the Certified copy of a document issued by a Bank is itself admissible under the Bankers’ Books Evidence Act, 1891 without any formal proof thereof. Hence, in an appropriate case, the certified copy of the specimen signature maintained by the Bank can be procured with a request to the Court to compare the same with the signature appearing on the cheque by exercising powers under Section 73 of the Evidence Act, 1872. Further, it is held, it is for the accused to rebut such presumptions by leading appropriate defence evidence and the Court cannot be expected to assist the accused to collect evidence on his behalf.

Part IV

Standard of Proof for Rebutting Presumption in Criminal Law

In Rajaram v.  Maruthachalam, AIR 2023 SC 471 (B.R. Gavai, M.M. Sundresh, JJ.), it is held as under:

  • “24. It can thus be seen that in the facts of the said case, this Court found that the defence raised by the appellants/accused did not inspire confidence or meet the standard of ‘preponderance of probability’.
  • 25. In the present case, we are of the considered opinion that the defence raised by the appellant satisfies the standard of ‘preponderance of probability’.”

Rajaram v.  Maruthachalam, AIR 2023 SC 471, stands as an authority that emphasises the law that the standard of proof for rebutting the presumption in criminal law (as regards cheque-bounce cases also) is that of ‘benefit of doubt‘ and ‘preponderance of probabilities‘. It is held as under:

  • “After taking into consideration the defence witnesses and the attending circumstances, the learned Trial Court found that the defence was a possible defence and as such, the accused was entitled to benefit of doubt. The standard of proof for rebutting the presumption is that of preponderance of probabilities.“

Proposition on cogent evidence to rebut the presumption is found not applicable in this case. It was observed as under:

  • “26. Insofar as the reliance on the judgment of this Court in the case of Rohitbhai Jivanlal Patel v. State of Gujarat and Anr. (AIR 2019 SC 1876; 2019-18 SCC 106) is concerned, in the said case, the learned Trial Court had acquitted the accused, the High Court, in appeal, reversed the acquittal and convicted the accused for the offence punishable under Section 138 of the N.I. Act.
  • Affirming the order of the High Court, this Court held that merely by denial or merely by creation of doubt, the accused cannot be said to have rebutted the presumption as envisaged under Section 139 of the N.I. Act. This Court held that unless cogent evidence was led on behalf of the accused in defence of his case, the presumption under Section 139 of the N.I. Act could not be rebutted. As such, the said judgment also would not be applicable to the facts of the present case.”

Part V

Apparent Conflict between “Cogent Evidence” and “Preponderance of Probabilities“

It is observed in Bir Singh v. Mukesh Kumar, 2019-4 SCC 197, Two-Judge Bench decision, as to the ‘rebuttal evidence’ on presumption under Section 139, as under:

  • “38. If a signed blank cheque is voluntarily presented to a payee, towards some payment, the payee may fill up the amount and other particulars.”
  • “40. Even a blank cheque leaf, voluntarily signed and handed over by the accused, which is towards some payment, would attract presumption under Section 139 of the Negotiable Instruments Act, in the absence of any cogent evidence to show that the cheque was not issued in discharge of a debt.”
  • “42. In the absence of any finding that the cheque in question was not signed by the respondent-accused or not voluntarily made over to the payee and in the absence of any evidence with regard to the circumstances in which a blank signed cheque had been given to the appellant-complainant, it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent–accused being the drawer, at his request and/or with his acquiescence. The subsequent filling in of an unfilled signed cheque is not an alteration. There was no change in the amount of the cheque, its date or the name of the payee. The High Court ought not to have acquitted the respondent-accused of the charge under Section 138 of the Negotiable Instruments Act.”
  • Note: 1. Bir Singh v. Mukesh Kumar (R. Banumathi, Indira Banerjee, JJ.) , 2019-4 SCC 197, is an odd decision, as regards ‘consideration’.
  • 2. On a close reading of this decision, the following emerges:
    • i. The words “towards some payment” cast “some” ‘strong‘ onus on the claimant.
    • ii. The presumption invoked in this matter is not one from NI Act; but from Section 114 of the Evidence Act.
    • iii. The presumption must be one that can be invoked in the circumstances of the case – that is, there must have ‘something’ to take:
      • “it may reasonably be presumed that the cheque was filled in by the appellant-complainant being the payee in the presence of the respondent–accused being the drawer, at his request and/or with his acquiescence“.
  • 3. In K. Ramesh v. K. Kothandaraman (B.V. Nagarathna, Augustine George Masih, JJ.), 2024-1 KCCR 693; 2024-1 LawHerald(SC) 475, followed Bir Singh v. Mukesh Kumar, 2019-4 SCC 197, (it appears) without noticing the above two points.
  • 4. The view in Bir Singh (on cogent evidence) is reiterated (obiter) by a three-Judge Bench in Kalamani Tex v. P. Balasubramanian, 2021-5 SCC 283.
  • Read: Presumptions Regarding Consideration in Cheque Cases under the NI Act
  • An Inchoate Cheque (Signed Blank Cheque or Incomplete Cheque) Cannot be Enforced Through a Court of Law Invoking Presumptions under the NI Act

It is, no doubt, stands in conflict to the principles formulated in Basalingappa v. Mudibasappa, 2019(5) SCC 418, and various other cases – which say as to preponderance of probabilities, probable defence, sufficient evidence to Create Doubts, evidence which may be reasonably be true etc.

In Oriental Bank of Commerce v. Prabodh Kumar Tewari, 2022-7 SCR 72 (Dhananjaya Y Chandrachud, A S Bopanna, JJ.) after quoting the aforesaid portion in para 36 of Bir Singh v. Mukesh Kumar, the court observed as under:

  • “16. In Anss Rajashekar v. Augustus Jeba Ananth, (2020) 15 SCC 348 a two Judge Bench of this Court, of which one of us (D.Y. Chandrachud J.) was a part, reiterated the decision of the three-Judge Bench of this Court in Rangappa v. Sri Mohan, (2010) 11 SCC 441 on the presumption under Section 139 of the NI Act. The court held:
    • “12. Section 139 of the Act mandates that it shall be presumed, unless the contrary is proved, that the holder of a cheque received it, in discharge, in whole or in part, of a debt, or liability. The expression “unless the contrary is proved” indicates that the presumption under Section 139 of the Act is rebuttable. Terming this as an example of a “reverse onus clause” the three-Judge Bench of this Court in Rangappa held that in determining whether the presumption has been rebutted, the test of proportionality must guide the determination. The standard of proof for rebuttal of the presumption under Section 139 of the Act is guided by a preponderance of probabilities. This Court held thus:
    • “28. In the absence of compelling justifications, reverse onus clauses usually impose an evidentiary burden and not a persuasive burden. Keeping this in view, it is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. As clarified in the citations, the accused can rely on the materials submitted by the complainant in order to raise such a defence and it is conceivable that in some cases the accused may not need to adduce evidence of his/her own.”(emphasis supplied)”

The ‘apparent conflict’ stands resolved by Oriental Bank of Commerce v. Prabodh Kumar Tewari. It is pointed out –

  • 1. Three-Judge Bench decision in Rangappa v. Sri Mohan holds the field.
  • 2. It is held in Rangappa v. Sri Mohan – ‘It is a settled position that when an accused has to rebut the presumption under Section 139, the standard of proof for doing so is that of “preponderance of probabilities”. Therefore, if the accused is able to raise a probable defence which creates doubts about the existence of a legally enforceable debt or liability, the prosecution can fail. ‘

It is pity to see that several High Courts in India misapply the law in this matter without giving due notice to the well-reasoned analysis in Oriental Bank of Commerce v. Prabodh Kumar Tewari, 2022-7 SCR 72.

Inchoate Stamped Instruments – Sec. 20, NI Act

The complainant can fill in the blank-portion of a signed cheque, by virtue of Sec. 20 NI Act (Bir Singh v. Mukesh Kumar, 2019-4 SCC 197)

Sec. 20, NI Act reads as under:

  • “20. Inchoate Stamped Instruments —Where one person signs and delivers to another a paper STAMPED in accordance with the law relating to negotiable instruments then in force in  India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the STAMP. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount:
  • Provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder.”

Still, the courts in India hold that the complainant can fill in the blank-portion of a signed cheque (though a cheque requires no stamp), by virtue of Sec. 20 NI Act.

See the discussion of law in this regard in the following decisions –

  • Raj Kumar v. Ram Krishan, 2016 ACD 689; ILR 2016-3 HP 416;
  • S. Gopal v. D. Balachandran, 2008-1 CTC 491;
  • C.T. Joseph v. I.V. Philip, AIR 2001 Ker 300;  
  • A.R. Dower v. Sohan Lal, AIR 1937 Lah 816.

Read also: An Inchoate Cheque (Signed Blank Cheque or Incomplete Cheque) Cannot be Enforced Through a Court of Law Invoking Presumptions under the NI Act

Financial capacity of the Complainant

  • Financial capacity of the complainant can be a point in ‘probable defence’ (Rajaram v.  Maruthachalam, AIR 2023 SC 471).
    • That is, the respondent can also show – complainant had no financial capacity.
  • And, the respondent is so poor that the complainant did not have issued large amount by way of loan.
  • Or, the complainant inserted the amount to befit or match his income in Bank Account from some source, or withdrawal for some other purpose.

Complainant – May Have to Produce Bank-Statement

In K. Subramani v. K. Damodara Naidu, 2015 (1) SCC 99, it is held that on rebuttal, source of income of complainant may have to be proved by production of bank-statement.

Source of Money and Capacity – Can Be A Point

In Basalingappa v. Mudibasappa, 2019(5) SCC 418, it was held that the financial capacity can be a point if questioned; and that it was incumbent on complainant, and he has the burden, to explain his financial capacity.  In K.K. Divakaran v. State of Kerala 2016(4) KLJ 273,  it is found that the believability of source of money of the complainant and his capacity can be a point, on rebuttal of presumption on consideration.

Read Blogs:

End Notes:

Sec. 118(a) & 139 of the NI Act

Sec. 118(a) Negotiable Instrument Act, 1881, reads as follows:

  • “118. Presumptions as to negotiable instruments.—Until the contrary is proved, the following presumptions shall be made:—
  • (a) of consideration:—that every negotiable instrument was made or drawn for consideration, and that every such instrument, when it has been accepted, indorsed, negotiated or transferred, was accepted, indorsed, negotiated or transferred for consideration;…”

Sec. 138 of the NI Act reads as under:

  • 138. Dishonour of cheque for insufficiency, etc., of funds in the account.—Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may be extended to two years’, or with fine which may extend to twice the amount of the cheque, or with both:
  • Provided that nothing contained in this section shall apply unless—
  • ·        .(a) the cheque has been presented to the bank within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier;
  • ·        (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for
  • ·        the payment of the said amount of money by giving a notice; in writing, to the drawer of the cheque, [within thirty days] of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
  • ·        (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or, as the case may be, to the holder in due course of the cheque, within fifteen days of the receipt  of the said notice.
  • Explanation.—For the purposes of this section, “debt of other liability” means a legally enforceable debt or other liability.

Sec. 139 of the NI Act reads as under:

  • “139. Presumption in favour of holder –  It shall be presumed, unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in section 138 for the discharge, in whole or in part, of any debt or other liability.”

Legally recoverable debt (presupposed in S. 138) v. “Discharge of debt or liability” (S. 139)

  • Sec. 138 requires evidence on “legally enforceable debt“.
  • Sec. 139 provides for presumption – holder of the cheque received it for the discharge of debt or other liability.

A question arises on analysis of both these provisions – does Sec. 139 refers to “legally enforceable debt”.

The answer is ‘No’.

In Krishna Janardhan Bhat v. Dattatraya G. Hegde1 reported in [2008 (1) SCALE 421] it is held as under:

  • “19. Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act. Section 13(1) of the Act defines ‘negotiable instrument’ to mean “a promissory note, bill of exchange or cheque payable either to order or to bearer”.
  • Sec. 138 of the Act has three ingredients, viz.:
    • (i) that there is a legally enforceable debt;
    • (ii) that the cheque was drawn from the account of bank for discharge in whole or in part of any debt or other liability which presupposes a legally enforceable debt; and
    • (iii) that the cheque so issued had been returned due to insufficiency of funds.
  • 20. The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.
  • 21. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is not correct.
  • 22. An accused for discharging the burden of proof placed upon him under a statute need not examine himself. He may discharge his burden on the basis of the materials already brought on records. An accused has a constitutional right to maintain silence. Standard of proof on the part of an accused and that of the prosecution in a criminal case is different.” (Quoted in Vishnu Dutt Sharma v. Daya Sapra, 2009-13 SCC 729 : S.B. Sinha and Dr. Mukundakam Sharma, JJ.)

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