Principles of Equity in Indian Law

Saji Koduvath, Advocate, Kottayam.

Introduction

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

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

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

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

When an Indian Court Invokes Equitable Jurisdiction

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

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

Courts of Equity Proceed on First Principles

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

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

Where No Positive Law, Equity Invoked to Fill the Gaps

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

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

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

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

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

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

CPC, CrPC and Constitution of India & Source of Law

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

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

Indian Courts are governed by principle of equity

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

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

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

Rule of Equity & No Perpetration of a legal fraud

Black’s Law Dictionary reads follows:

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

Legal fraud which a Court of Equity must prevent

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

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

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

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

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

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

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

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

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

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

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

Perpetration of a legal fraud

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

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

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

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

Mere false description not vitiate, if sufficient legal certainty

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

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

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

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An Instance of Invoking Equity Jurisdiction in Easement

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

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

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

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

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

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

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

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

Saji Koduvath, Advocate, Kottayam

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

Answer: Yes.

Examples:

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

Mutually Granted Ways – Irrevocable, on principles of Estoppel

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

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

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

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

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

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

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

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

The Kerala High Court found –

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

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

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

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

It may be –

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

Can it be a ‘Grant’ or an Easement

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

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

SECTION 4 of the Indian Easements Act defines Easements. It reads as under:

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

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

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

It can be a custom or customary easement

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

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

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

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

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

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

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

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

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

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Customary Easement – Not Necessarily be Annexed to Ownership of Land

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

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

Customary Easement – Not an easement – Enforced under common law

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

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Mutual way between adjoining landowners

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

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

Section 15 is not Exhaustive

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

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

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

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

Paragraphs 81 and 82 read thus:

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

As of Right User and Theory of Lost Grant

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

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

“Land Locking” and Claim of Easement

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

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

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Where No Positive Law, Equity Invoked to Fill the Gaps

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

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

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

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

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

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

Conclusion

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

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

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

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End Notes

Methods of Acquisition of Easements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rule of Equity

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

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

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

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

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

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

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

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

Perpetration of a legal fraud

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

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

Mere false description not vitiate, if sufficient legal certainty

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

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

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

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

Saji Koduvath, Advocate, Kottayam.

Abstract

Can a Christian Adopt?

  • Answer: Yes.

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

  • Answer: Yes.

Which is the law applicable for Christian adoption?

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

Pharez John Abraham v. Arul Jothi Sivasubramaniam

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

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

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

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

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

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

Codification of Adoption Laws

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

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

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

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

General Propositions as to Adoption – Kerala High Court

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

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

Inter-Country Adoption Apex Court Guidelines

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

Evidence of Adoption

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

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

Philips Alfred Malvin v. Y.J. Gonsalvis

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

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

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

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

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

Formalities and Evidence Essential

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

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

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

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

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

Guardian and Adoption

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

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

Secular law in India Providing for Adoption

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

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

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

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Will

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Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

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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Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Suit under Sec. 6, Specific Relief Act – Is it a ‘Summary Suit’ under Order XXXVII CPC?

No.

Saji Koduvath, Advocate, Kottayam.

Suit under Sec. 6 Sp. Rlf. Act is a ‘Summary’ one, for Three Reasons

A suit filed under Sec. 6 (Specific Relief Act) is said to be a ‘Summary Suit’. It is for three reasons:

  1. No adjudication on title.
  2. Only issue germane is whether ‘illegal dispossession’.
  3. No Appeal or Review from the Judgment thereon.

It is noteworthy that it is not a suit that falls under Order XXXVII CPC (‘Summary Procedure’).

Sec. 6, Specific Relief Act

Sec. 6, Specific Relief Act, reads as under:

  • “6. Suit by person dispossessed of immovable property.—(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
  • (2) No suit under this section shall be brought— (a) after the expiry of six months from the date of dispossession; or (b) against the Government.
  • (3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.
  • (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”

What is Section 6 of the Specific Relief Act, 1963

When attracted?

  • A person (in actual possession) has been dispossessed.
  • From an immovable property.
  • Without his consent and.
  • Otherwise than in due course of law. 

Who can file a suit?

  • Person who has been dispossessed or
  • Any person through whom he has been in possession or
  • Any person claiming through him

What should be the suit for?

  • Recover possession of the immoveable property.

What are the characteristics of such a suit?

  • It is a special remedy, notwithstanding any other title the plaintiff may have, or he could set up.
  • The must be brought within the six months of dispossession.
  • No appeal shall lie from any order or decree passed; there will be no review also.
  • This section does not bar the person dispossessed (etc.) to file a suit to establish his title and to recover possession thereof.
  • No suit can be filed against the Government under this section.
  • Sec. 6(4) of the Sp. Relief Act will not preclude the defendant from recovering the property based on title.
  • A suit under Sec. 6 is maintainable even against the true owner of the property.

Read Blog: SUIT on TITLE: Landlord can Recover Property on GENERAL TITLE (though Tenancy Not Proved) if Defendant Falsely Claimed Independent Title

Sec. 6 – Only Issue – Whether Plaintiff Illegally Dispossessed

In I.T.C.  Limited v. Adarsh Co-op.  Housing Soc.  Ltd., 2013-10 SCC 169, it is observed that “illegal dispossession” is the only issue germane to a suit under Sec. 6.  It is held as under:

  • “In fact, in a suit under Section 6, the only question that has to be determined by the Court is whether the plaintiff was in possession of the disputed property and he had been illegally dispossessed therefrom on any date within six months prior to the filing of the suit. … As the question of possession and illegal dispossession therefrom is the only issue germane to a suit under Section 6, a proceeding thereunder, naturally, would partake the character of a summary proceeding against which the remedy by way of appeal or review has been specifically excluded by sub-Section 3 of Section 6. … (The Court referred to: Lallu Yashwant Singh v. Rao Jagdish Singh,  AIR 1968 SC 620, Krishna Ram Mahale v.  Shobha Venkat Rao, AIR 1989 SC 2097 and Sanjay Kumar Pandey v. Gulabahar Sheikh, 2004-4 SCC 664).

Why Called “Summary Suit” – No Adjudication on Title and No Appeal

In Sanjay Kumar Pandey v. Gulabahar Sheikh, 2004-4 SCC 664, it is explained as under:

  • “4. A suit under Section 6 of the Act is often called a summary suit inasmuch as the enquiry in the suit under Section 6 is confined to finding out the possession and dispossession within a period of six months from the date of the institution of the suit ignoring the question of title. Sub-Section (3) of Section 6 provides that no appeal shall lie from any order or decree passed in any suit instituted under this section. No review of any such order or decree is permitted. The remedy of a person unsuccessful in a suit under Section 6 of the Act is to file a regular suit establishing his title to the suit property and in the event of his succeeding he will be entitled to recover possession of the property notwithstanding the adverse decision under Section 6 of the Act. Thus, as against a decision under Section 6 of the Act, the remedy of unsuccessful party is to file a suit based on title. The remedy of filing a revision is available but that is only by way of an exception; for the High Court would not interfere with a decree or order under Section 6 of the Act except on a case for interference being made out within the well-settled parameters of the exercise of revisional jurisdiction under Section 115 of the Code.” (Quoted in: I. T. C.  Limited v. Adarsh Co-op.  Housing Soc.  Ltd., 2013-10 SCC 169.)

“Unjustly Denied by an Illegal Act of dispossession”

The Supreme Court, in Sanjay Kumar Pandey v. Gulbahar Sheikh, (2004) 4 SCC 664, held that Sec. 6 is to give immediate relief to the person who has been illegally dispossessed from the property. The Court held as under:

  • “A proceeding under Section 6 of the Specific Relief Act, 1963 is intended to be a summary proceeding the object of which is to afford an immediate remedy to an aggrieved party to reclaim possession of which he may have been unjustly denied by an illegal act of dispossession.” (Same words in Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 (9) SCC 221, also. Quoted in: P.  Thankamma v. Sajitha G.  Nair, 2014-2 KHC 151; 2014-2 KLT 110)

Title or better possession not arise for Adjudication

In I. T. C.  Limited v. Adarsh Co-op.  Housing Soc.  Ltd., 2013-10 SCC 169, it is observed by our Apex Court that Sec. 6 requires adjudication as to illegal dispossession of immovable property, independently of the question of title that may be set up by the defendant in such a suit.

In Mohd. Mehtab Khan v. Khushnuma Ibrahim Khan, 2013 (9) SCC 221, it is held as under:

  • “…. Questions of title or better rights of possession does not arise for adjudication in a suit under Section 6 where the only issue required to be decided is as to whether the plaintiff was in possession at any time 6 months prior to the date of filing of the suit. The legislative concern underlying Section 6 of the Specific Relief Act is to provide a quick remedy in cases of illegal dispossession so as to discourage litigants from seeking remedies outside the arena of law. The same is evident from the provisions of Section 6(3) which bars the remedy of an appeal or even a review against a decree passed in such a suit.” (Quoted in: P.  Thankamma v. Sajitha G.  Nair, 2014-2 KHC 151; 2014-2 KLT 110)

“Dispossessed otherwise than in due course of law”

In Sukhjeet Singh v. Sirajunnisa (Dipak Misra, J.), AIR 2001 MP 59, the tenant handed over the premises to the landlord for the marriage of the landlord’s son. The landlord did not return possession. It is held that possession under Section 6 is not attracted inasmuch as the possession was voluntarily transferred.

Issue is Not Validity of Transaction; But Whether Dispossessed ‘Without His Consent’

In Onama Glass Works Lid. v. Shri Ram Harak Panday, AIR 1966 Madh Pra 282, the Board of Directors of a Company by resolution transferred the companies property, but there was no resolution by the General Body. The Court, on considering the scope of Sec. 6, Sp. Relief Act, held as under:

  • “8. …. .This section becomes applicable only when the plaintiff is dispossessed ‘without his consent.’ The matter in issue is not whether the transaction was valid but whether the plaintiff was dispossessed ‘without his consent’. . . . .” (Quoted in: Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

If “An Iota of Consent”- Cannot Complain of Dispossession

In Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59, the learned Judge (as he then was) pointed out the facs of Neyveli Lignite Corporation Ltd. v. K.S. Narayan Iyer, AIR 1965 Madras 122, to establish that “there should not have been an iota of consent in handing over the possession”.

In the said case (Neyveli Lignite Corporation Ltd. v. K.S. Narayan Iyer) certain property was leased by the Corporation for running of a canteen. The lease was originally for one year. It was renewed thereafter; but declined any further. After the expiry of the notice period the authorities accompanied by Police took possession. The respondents did not protest. Later on he issued a notice to the Corporation calling upon it to pay damages failing which he threatened to take steps for recovery. There was no demand for restoration of possession. The High Court held that the respondent did not intend to hold the possession, and hence, he cannot complain of dispossession and claim relief under Section 9 (Section 6 of New Act) of the Specific Relief Act.

Not to declare evicted person was in Lawful Possession

In M.C. Chockalingam v. Manickavasagam, AIR 1974 SC 104, the Apex Court observed as follows:–

  • “13. … . All that Section 6 (new) of the Specific Relief Act provides is that a person, even if he is a landlord, cannot take the law into his own hands and forcibly evict a tenant after expiry of the lease. This section has relevance only to the wrongful act of a person, if it be by the landlord, in forcibly recovering possession of the property without recourse to law. Section 6 frowns upon forcible dispossession without recourse to law but does not at the same time declare that the possession of the evicted person is a lawful possession. . . .” (Quoted in: Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

Discretionary Revisional Jurisdiction

In Sobhabati v. Lakshmi Chand, AIR 1984 Ori. 171, held that the High Court should not interfere in its discretionary revisional jurisdiction with a decision given under Section 6 of the Specific Relief Act as parties have effective remedy by way of suit for declaration of title and possession. (Referred to in Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

Can Sec. 6 suit be dismissed without trial?

No.

Such a view would be a misapprehension of scope of the section. In such a situation the decision can be interfered in Revision. (Ajodhiya Prasad v. Ghasiram, AIR 1937 Nag. 326. Referred to in Sukhjeet Singh v. Sirajunnisa, AIR 2001 MP 59)

Counter Claim to Set Aside Gift Deed in Sec. 6 Suit – Possible

In P. Thankamma v. Sajitha G.  Nair, 2014-2 KHC 151; 2014-2 KLT 110, it is held that the court below had not erred in allowing I.A. for amending the written stat ement in order to set up by way of counter claim in the suit filed under Section 6 of the Act. It is observed as under:

  • “…. The enquiry in the suit under Section 6 of the Act and in the counter claim to set aside the Gift Deed vastly differs in its nature and scope. Also the decree in the suit is only open to challenge in a Civil Revision Petition whereas the decree in the counter claim is open to an appeal. But does it mean that a counter claim for setting aside the Gift Deed cannot be permitted to be set up in a suit for possession under Section 6 of the Act? I am afraid not since there is no such limitation to set up by way of counter claim under Order VIII Rule 6-A of the Code of Civil Procedure, 1908.”

Doctrine of clean hands in claiming an equitable relief

Halsbury’s Laws of England Fourth Edition Vol.-16 pages 874-876, lays down the legal position on the doctrine of clean hands in claiming an equitable relief as under:

  • 1305. He who comes into equity must come with clean hands. A court of equity refuses relief to a plaintiff whose conduct in regard to the subject matter of the litigation has been improper. This was formerly expressed by the maxim “he who has committed iniquity shall not have equity”, and relief was refused where a transaction was based on the plaintiff’s fraud or misrepresentation, or where the plaintiff sought to enforce a security improperly obtained, or where he claimed a remedy for a breach of trust which he had himself procured and whereby he had obtained money. Later it was said that the plaintiff in equity must come with perfect propriety of conduct, or with clean hands. In application of the principle a person will not be allowed to assert his title to property which he has dealt with so as to defeat his creditors or evade tax, for he may not maintain an action by setting up his own fraudulent design.
  • The maxim does not, however, mean that equity strikes at depravity in a general way; the cleanliness required is to be judged in relation to the relief sought, and the conduct complained of must have an immediate and necessary relation to the equity sued for; it must be depravity in a legal as well as in a moral sense. Thus, fraud on the part of a minor deprives him of his right to equitable relief notwithstanding his disability. Where the transaction is itself unlawful it is not necessary to have recourse to this principle. In equity, just as at law, no suit lies in general in respect of an illegal transaction, but this is on the ground of its illegality, not by reason of the plaintiff’s demerits.” (Quoted in: A. S.  Motors Pvt.  Ltd.  v. Union of India, 2013-10 SCC 114.)

No Party Can Take Advantage Of His Own Wrong

(i.e. ex injuria sua nemo habere debet)

Our Supreme Court, in Machhindranath v. Ramchandra Gangadhar Dhamne (Sudhanshu Dhulia, Ahsanuddin Amanullah, JJ.), 2025 INSC 795, observed as under:          

“32. Undoubtedly, the present case comes under a unique category where a person on the one hand comes before a Court seeking that his own actions be nullified on the ground that it was void and on the other hand wants relief in his favour, which is consequential to and traceable to 26 of 29 his own wrong. It would not be proper for a Court of law to assist or aid such person who states that the wrong he committed be set aside and a relief be granted de hors the wrong committed, after condoning the same. In the present case, the plaintiff cannot be allowed to benefit from his own wrong and the Court will not be a party to a perpetuation of illegality. In Ram Pyare v Ram Narain, (1985) 2 SCC 162, a 3-Judge Bench of this Court, in the circumstances therein, did not void a transaction even though the transaction was void being prohibited by law. The principle that no party can take advantage of his/her own wrong i.e. ex injuria sua nemo habere debet is squarely attracted. In Kusheshwar Prasad Singh v State of Bihar, (2007) 11 SCC 447, it was held:

  • ‘13. The appellant is also right in contending before this Court that the power under Section 32-B of the Act to initiate fresh proceedings could not have been exercised. Admittedly, Section 32-B came on the statute book by Bihar Act 55 of 1982. The case of the appellant was over much prior to the amendment of the Act and insertion of Section 32-B. The appellant, therefore, is right in contending that the authorities cannot be allowed to take undue advantage of their own default in failure to act in accordance with law and initiate fresh proceedings.
  • 14. In this connection, our attention has been invited by the learned counsel for the appellant to a decision of this Court in Mrutunjay Pani v. Narmada Bala Sasmal [AIR 1961 SC 1353] wherein it was held by this Court that where an obligation is cast on a party and he commits a breach of such obligation, he cannot be permitted to take advantage of such situation. This is based on the Latin maxim commodum ex injuria sua nemo habere debet (no party can take undue advantage of his own wrong).
  • 15. In Union of India v. Major General Madan Lal Yadav [(1996) 4 SCC 127: 1996 SCC (Cri) 592] the accused 27 of 29 army personnel himself was responsible for delay as he escaped from detention. Then he raised an objection against initiation of proceedings on the ground that such proceedings ought to have been initiated within six months under the Army Act, 1950. Referring to the above maxim, this Court held that the accused could not take undue advantage of his own wrong. Considering the relevant provisions of the Act, the Court held that presence of the accused was an essential condition for the commencement of trial and when the accused did not make himself available, he could not be allowed to raise a contention that proceedings were time- barred. This Court (at SCC p. 142, para 28) referred to Broom’s Legal Maxims (10th Edn.), p. 191 wherein it was stated:
  • “It is a maxim of law, recognised and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognised in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure.”
  • 16. It is settled principle of law that a man cannot be permitted to take undue and unfair advantage of his own wrong to gain favourable interpretation of law. It is sound principle that he who prevents a thing from being done shall not avail himself of the non-performance he has occasioned.
  • To put it differently, ‘a wrongdoer ought not to be permitted to make a profit out of his own wrong’.”

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Charitable and Religious Trusts Act, 1920: Provisions as regards opinion, advice or direction of the Court.

Saji Koduvath, Advocate, Kottayam.

Charitable and Religious Trusts Act, 1920 – Object

The object of the Act is shown to be ‘to provide more effectual control over the administration of Charitable and Religious Trusts’; and it is made to provide facilities for the obtaining of information regarding trusts created for public purposes of a charitable or religious nature, and to enable the trustees of such trusts to obtain the directions of a Court on certain matters, and to make special provision for the payment of the expenditure incurred in certain suits against the trustees of such trusts’.

Provisions as regards opinion, advice or direction of the Court.

Following are the important provisions of the Act as regards opinion, advice or direction of the Court.

  • “Sec. 2. Interpretation. — In this Act, unless there is anything repugnant in the subject or context, ‘the Court’ means the Court of the District Judge or any other Court empowered in that behalf by the State Government and includes the High Court in the exercise of its ordinary original civil jurisdiction.
  • Sec. 7. Powers of trustee to apply for directions.—
  • .(1) Save as hereinafter provided in this Act, any trustee of an express or constructive trust created or existing for public purpose of a charitable or religious nature may apply by petition to the Court, within the local limits of whose jurisdiction any substantial part of the subject-matter of the trust is situate, for the opinion, advice or direction of the Court on any question affecting the management or administration of the trust property, and the Court shall give its opinion, advice or direction, as the case may be, thereon:
  • Provided that the Court shall not be bound to give such opinion, advice or direction on any question which it considers to be a question not proper for summary disposal.
  • (2) The Court on a petition under sub-section (1), may either give its opinion, advice or direction hereon forthwith, or fix a date for the hearing of the petition, and may direct a copy thereof, together with notice of the date so fixed, to be served on such of the person interested in the trust, or to be published for information in such manner, as it thinks fit.
  • (3) On any date fixed under sub-section (2) or on any subsequent date to which the hearing may be adjourned, the Court, before giving any opinion, advice or direction, shall afford a reasonable opportunity of being heard to all persons appearing in connection with the petition.
  • (4) A trustee stating in good faith the facts of any matter relating to the trust in a petition under sub-section (1), and acting upon the opinion, advice or direction of the Court given thereon, shall be deemed, as far as his own responsibility is concerned, to have discharged his duty as such trustee in the matter in respect of which the petition was made.
  • Sec. 9. Savings.— No petition under the foregoing provisions of this Act in relation to any trust shall be entertained in any of the following circumstances, namely:—
  • .(a) if a suit instituted in accordance with the provisions of section 92 of the Code of Civil Procedure 1908 (5 of 1908), is pending in respect of the trust in question;
  • (b) if the trust property is vested in the Treasurer of Charitable Endowments, the Administrator General, the Official Trustee, or any Society registered under the Societies Registration Act, 1860 (21 of 1860); or
  • (c) if a scheme for the administration of the trust property has been settled or approved by any Court of competent jurisdiction, or by any other authority acting under the provisions of any enactment.
  • Sec. 12. Barring of appeals.— No appeal shall lie from any order passed or against any opinion, advice or direction given under this Act.”

The purport of the Act can be analysed as under:

  • Court gives opinion, advice or direction to trustees alone.
  • The advice or direction is given only on any question affecting the management or administration of the trust property.
  • It is on the principle – Court is Guardian or Protector of All Public Trusts.
  • It envisages a ‘summary disposal’ (No need to invite pleads, frame issues, take evidence etc.).
  • Court exercises a discretionary jurisdiction in this matter.
  • Court is not bound to give opinion if the question not susceptible to a summary disposal.
  • The opinion is not given in matters which are seriously disputed or contested.
  • There will not be adjudication on questions of fact or law.
  • Operation of this section is subject to Sections 9 and 12 (given above).

Court is Protector of All Public Trusts – Cannot Refuse Opinion

Referring Sec. 7 of the  Charitable and Religious Trusts Act, 1920, it is observed in Sennimalai Swamy Madam Trust, Palani v. NIL, 1999-3 CTC 390, as under:

  • “10. In view of these decisions, it has to be held that petitioner is competent to file an application before lower court seeking opinion. Unless Court finds that the opinion cannot be given since there are complicated facts or question of law is to be decided, it may not be proper on its part to refuse to give opinion.  After all, Court is guardian or Protector of all public trusts and it cannot refuse to give its opinion, when the same is sought for by a Trustee.” (Avoch Thevar v. Chummar, AIR 1957 Ker 171, In Re Birla Jankalyan Trust, AIR 1971 Cal. 290, In Re Dhanalat, AIR 1975 Cal. 67, referred to)

Courts desist if Complicated Facts or Question of Law

In Avoch Thevar v. Chummar, AIR 1957 Ker 171, it is observed that serious questions of res judicata, estoppel, good faith etc. could not be adjudicated under Sec. 7 of the  Charitable and Religious Trusts Act, 1920. It is said as under:

  • “6. …. “The Court under the section exercises what might be called its consultative jurisdiction, giving guidance to the trustee. The court is not, however, to grant sanction merely because it is applied for. The limitation is that the court will refuse to consider the matter if in its opinion the question is one not capable of summary disposal e.g. if it is one of the detail or difficulty. In any event the court will consider judicially the matters placed before it before disposing of the matter.”

This Kerala decision is followed in Hasan Bin Mubarak v. Chief Judge, City Civil Court, Hyderabad AIR 1999 AP 11, observing as under:

  • “Section 34 of the Act contemplates only a summary disposal on non-controversial issues. The mental condition of a person being an important personal problem, the Court cannot dispose of the same in a summary manner. What the Court below has done was to examine 3rd respondent, who is alleged to be an insane person and give the opinion on the basis of her statement. Though Ex.R-1, certificate, alleged to have been given by a psychiatrist, was marked, the Court made no effort to examine the said doctor. Obviously, this could not have been done because the matter has to be disposed of in a summary manner. Thus, it is evident that the advice that was sought for by the trustee required a determination on contentious facts and the jurisdiction of the Court under section 34 being only in the nature of giving guidelines or directions without entering into the merits, the application ought not to have been entertained by the Court. The trustee might have got a valid and satisfactory opinion had he approached a qualified medical man or the Court in a properly instituted suit.
  • 23. In Avoch Thevar case (supra) following the decision in Armugan Chetty vs. Raja Jagaveera ILR 28 Madras 444, it was clearly held that while providing the trustees a right to apply to the Court for opinion to the Management and the Members, Section 34 embodied at the same time, a limitation governing the questions to be asked viz. that there should not be hypothetical and any questions of details or difficulty or importance, not proper in the opinion of the Court for summary disposal……” (quoted in Ashok Kumar Kapur VS Ashok Khanna, AIR 2007 SC  6; 2007-5 SCC 189).

Avoch Thevar v. Chummar, AIR 1957 Ker 171, is followed in P. D. Jaiswal v. Dwarikadhish Temple Trust, 2006 2 ADJ 680; 2006 3 AllLR 21; 2006 3 AWC 2823 saying as under:

  • “39. The last strand of Mr. Ravi Kant’s arguments was a Kerala Division Bench decision given in the case of Avoch Thevar v. Chummar, A.I.R. 1957 Ker 171, which was delivered for the Court by Hon’ble Mr. Justice Varadaraja lyengar. With the greatest of respect, it is a beautiful learned judgment which should be read by any reader of this judgment and we do not set out the materials collected therein simply because we cannot do it better or in a briefer way. We respectfully referred the reader to paragraph-6, 7, 8 and 9 of the said judgment.
  • 40. Following the said judgment and the authorities quoted there, which are fully persuasive in our respectful opinion, we must opine that a decision under Section 7 of the 1920 Act is not to be given at all by the District Court in matters which are seriously disputed or contested, or which required difficult decisions on questions of fact or law,”

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Read in this cluster (Click on the topic):

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

How to Execute an Injunction Decree

Saji Koduvath, Advocate, Kottayam.

Abstract – Methods of Execution of Injunction Decree

  • detention in civil prison
  • attachment of property
  • compensation
  • act to be done, be done by the decree-holder
  • or be done by some other person appointed by the court.

Order XXI rule 32, CPC is the Relevant Provision

It reads as under:

  • 32. Decree for specific performance for restitution of conjugal rights, or for an injunction.
  • (1) Where the party against whom a decree for the specific performance of a contract, or for restitution of conjugal rights, or for an injunction, has been passed, has had an opportunity of obeying the decree and has wilfully failed to obey it,
  • the decree may be enforced
    • in the case of a decree for restitution of conjugal rights 
      • by the attachment of his property or,
      • in the case of a decree for the specific performance of a contract or
    • for an injunction  
      • by his detention in the civil prison, or
      • by the attachment of his property, or by both.
  • (2) ….. …..
  • (3) Where any attachment under sub-rule (1) or sub- rule (2) has remained in force for six months if the judgment-debtor has not obeyed the decree and the decree-holder has applied to have the attached property sold, such property may be sold; and
    • out of the proceeds the Court may award to the decree-holder such compensation as it thinks fit, and
    • shall pay the balance (if any) to the judgment- debtor on his application.
  • (4) Where the judgment-debtor has obeyed the decree and paid all costs of executing the same which he is bound to pay, or where, at the end of six months from the date of attachment, no application to have the property sold has been made, or if made has been refused, the attachment shall cease.
  • (5) Where a decree for the specific performance of a contract or for an injunction has not been obeyed, the Court may, in lieu of or in addition to all or any of the processes aforesaid,
  • direct that the act required to be done may be done
    • so far as practicable
  • by the decree-holder or
  • some other person  appointed by the Court,
    • at the cost of the judgment-debtor, and
  • upon the act being done the expenses incurred may be ascertained in such manner as the Court may direct and may be recovered as if they were included in the decree.
  • Explanation:- For the removal of doubts, it is hereby declared that the expression “the act required to be done” covers prohibitory as well as mandatory injunctions.”

Execution Petition – Form

Order XXI rule 11 of the Code of Civil Procedure provides the form for the Execution Petition (See End Notes) . Civil Rules of Practice of various States may also provide for Forms thereof. In all forms, for execution of the Decree for Injunction, the Decree Holder has to specifically seek one or more of the following methods; viz. –

  • detention of the Judgment Debtor in civil prison
  • attachment of his property
  • realisation of compensation
  • if any act to be (got) done, be done by the decree-holder
  • or be done by some other person appointed by the court.

Important Rulings

Not by Contempt Proceedings

1. Kanwar Singh Saini v. High Court of Delhi, 2011(4) KHC SN I

  • If violation of permanent injunction, it can be set right in executing the proceedings and not the contempt proceedings.

Police Protection invoking inherent powers

2. Sujit Pal v. Prabir Kumar Sun, AIR 1986 Cal 220

  • No technicality can prevent justice in exercise of its inherent powers (Police Protection).  (Referred in: Johnson Kuriakose v. Fr.  Thomas Paul Ramban, 2019 1 ILR(Ker) 174; 2019 1 KLT 6).

In Raja Venkateswarlu v. Mada Venkata Subbaiah, 2017-15 SCC 659, it is observed as under:

  • But merely because an application for police protection was filed only under Section 151 CPC invoking the inherent jurisdiction, it cannot be a reason for the High Court to reject it and hold that the application should have been filed under Order XXI, Rule 32 CPC. The crucial question is whether the Execution Court has jurisdiction. That is not disputed.
  • The only thing is that an exact provision was not invoked. That by itself shall not be a reason for rejecting the application (See: Municipal Corporation of the City of Ahmedabad v. Ben Hiraben Manilal, (1983) 2 SCC 422 and T. Nagappa v. Y.R. Muralidhar, (2008) 5 SCC 633). 

Awarding Compensation – reasonable and pragmatic (Not Arrest)

3. Gopinathan Pillai v. Rajappan, (2011(1) KLT 59)

  • O21 r. 32 (3) and (5) expressly authorizes courts to award compensation. Hence, before ordering arrest,  an opportunity to compensate the decree holder, and obey the decree be done, by the court in a more reasonable and pragmatic way. (Referred in: Valsamma v. Abraham, 2013 1 ILR(Ker) 278; 2013 1 KHC 139; 2013 1 KLT 228)

Consequence Would Be Grave

4. Gopinathan Pillai v. Rajappan, (2011(1) KLT 59)

  • Even if the violation is not so grave, the consequence would be grave, since the court would be bound to sell the property after six months in such a case as the judgment debtor would be incapable of undoing the mischief which was done already. (Referred in: Valsamma v. Abraham, 2013 1 ILR(Ker) 278; 2013 1 KHC 139; 2013 1 KLT 228)

End Notes:

Order XXI rule 11 of the Code of Civil Procedure reads as under:

  • 1. Oral application.-
  • (1) Where a decree is for the payment of money the court may, on the oral application of the decree holder at the time of the passing of the decree, order immediate execution thereof by the arrest of the judgment debtor, prior to the preparation of a warrant if he is within the precincts of the court.
  • (2) Written application—
  • Save as otherwise provided by sub-rule (1), every application for the execution of a decree shall be in writing, signed and verified by the applicant or by some other person proved to the satisfaction of the court to be acquainted with the facts of the case, and shall contain in a tabular form the following particulars, namely:—
  • (a) the number of the suit;
  • (b) the names of the parties;
  • (c) the date of the decree;
  • (d) whether any appeal has been preferred from the decree;
  • (e) whether any, and (if any) what, payment or other adjustment of the matter in controversy has been made between the parties subsequently to the decree;
  • (f) whether any, and (if any) what, previous applications have been made for the execution of the decree, the dates of such applications and their results;
  • (g) the amount with interest (if any) due upon the decree, or other relief granted thereby, together with particulars of any cross decree, whether passed before or after the date of the decree sought to be executed;
  • (h) the amount of the costs (if any) awarded;
  • (i) the name of the person against whom execution of the decree is sought; and the mode in which the assistance of the court is required, whether—
  • (i) by the delivery of any property specifically decreed;
  • (ii) by the attachment, or by the attachment and sale, or by the sale without attachment, of any property;
  • (iii) by the arrest and detention in prison of any person;
  • (iv) by the appointment of a receiver;
  • (v) .otherwise, as the nature of the relief granted may require.
  • (3) The court to which an application is made under sub-rule (2) may require the applicant to produce a certified copy of the decree.
  • HIGH COURT AMENDMENTS
  • Allahabad.- (1) For clause (f) of sub-rule (2), substitute the following:
  • “(f) The date of the last application if any.”
  • (2) Add the following proviso to sub-rule (2):
  • “Provided that when the application files with his application a certified copy of the decree, the particulars specified in clauses (b), (c) and (h), need not be given in the application.” (24.7.1926).
  • (3) Add the following as sub-rule (4);
  • “(4) Where a decree for money is sought to be executed under sub-rule (2) by the arrest and detention in prison of the judgment-debtor, the application shall also state on which of the grounds mentioned in the proviso to Section 51, detention is claimed,” (19.5,1956).
  • Andhra Pradesh.- Same as in Madras.
  • Karnataka.- (I) after clause (f) insert clause (ft) as in Madras with the omission of the words “original” before “decree-holder”.
  • (ii) after clause (j), (v) insert para as in Madras. (30.3.1967)
  • Kerala.- (i) after clause (f) insert clause (ff) as in Madras.
  • (ii) Clause (j) is substituted. The effect of substitution is that after sub-clause (v) a paragraph is added as in Madras. (9.6.1959).
  • Madhya Pradesh.- Add the following proviso to sub-rule (2):—
  • “Provided that, when the applicant files with his application a certified copy of the decree the particular specified in clauses (b), (c) and (h) need not be given in the application.” (16.9.1960).
  • Madras and Andhra Pradesh.- (P. Dis. No. 776 to 1929) – (a) In sub-rule (2) of rule 11 between clauses (I) and (g) insert the following new clause:-
  • ‘(ff) whether the original decree-holder has transferred any part of his interest in the decree and if so, the date of the transfer and the name and address of the parties to the transfer”.
  • (G.O Ms. No. 2084-Home of 2.9.1936) – H.G.P. Dis. No. 691 of 13.10.1936) – (b) Add the following to sub-rule (2) (j) after clause (v):
  • “In an execution petition praying for relief by way of attachment of a decree of the nature specified in sub-rule (1) of Rule 53 of this Order, there shall not be included any other relief mentioned in this clause.”
  • (c) Add the following proviso at the end of sub-rule (2);
  • “Provided that when the applicant files with his application a certified copy of the decree, the particulars specified in clauses (b), (C) and (h) need not be given in the application.”
  • Orissa.- (Amend. deleted 14.5.19841.
  • Patna.- (a) Add the following as sub-rule (1-A) to rule I
  • “(1-A) Where an order has been made under Section 39 for the transfer of a decree for the payment of money for execution to a Court within the local limit 1 r jurisdiction of which the judgment-debtor resides, such Court may, on the production by the decree-holder of a certified copy of the decree and an affidavit of non-satisfaction forthwith order immediate execution of the decree by the arrest of the judgment-debtor.”
  • (b) Substitute the words and figures “sub-rules (1) and (I-A)” for the words and figure “sub-rule (1)” in line 1 of sub-rule (2) of rule 11.
  • (c) Delete clauses (b), (c), (d), (1) and (h) of sub-rule (2). (5.4.1961).

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Major Changes Made in the Bharatia Sakshya Act, 2023, as regards Documents

Taken From: Major Changes in the Evidence Act by Bhartiya Sakshya Adhiniyam, 2023

Saji Koduvath, Advocate, Kottayam.

Following are the Major changes made in the new Bharatia Sakshya Adhiniyam, 2023, as regards ‘Documents’(compared to Indian Evidence Act, 1872).

1. Changes in the Definition

Abstract:

  • It is made clear – ‘Electronic Evidence’ is included in the category of ‘Documentary Evidence’.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
Sec. 3. Interpretation-clause. “Document”. ––
“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.
Illustrations
A writing is a document;
Words printed lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.		Sec. 2(1). In this Adhiniyam, unless the context otherwise requires,—
(d) “document” means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.
Illustrations.
(i) A writing is a document.
(ii) Words printed, lithographed or photographed are documents.
(iii) A map or plan is a document.
(iv) An inscription on a metal plate or stone is a document.
(v) A caricature is a document.
(vi) An electronic record on emails, server logs, documents on computers, laptop or smartphone, messages, websites, locational evidence and voice mail messages stored on digital devices are documents;
Sec. 3. Interpretation-clause. “Evidence”. ––
“Evidence” means and includes –
(1) all statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence;
(2) all documents including electronic records produced for the inspection of the Court; such documents are called documentary evidence.		Sec. 2(1) In this Adhiniyam, unless the context otherwise requires,—
(e) “evidence” means and includes—
(i) all statements including statements given electronically which the Court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry and such statements are called oral evidence;
(ii) all documents including electronic or digital records produced for the inspection of the Court and such documents are called documentary evidence;

Under the Indian Evidence Act, electronic evidence could have been taken as a third category of ‘evidence’, other than ‘oral’ and ‘documentary’ evidences. It is more so in view of the interpretation given to Sec. 65B by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216. In this decision it was said that Electronic Evidence is (specially) dealt with “notwithstanding anything contained” in the Act.

By virtue of the definitions in the new act, Electronic Evidence is included in the ‘Documentary Evidence’. It is definite that it is with a view to expand the scope of the application of Electronic Records in evidence.

2. Changes on Primary Evidence – Electronic Records are also Included in the category, Primary Evidence

Abstract:

  • ‘Primary Evidence’ includes-
    • (i) electronic record that is stored in another electronic devise along with that in the ‘creating’ devise; and
    • (ii) video recordings (a) simultaneously stored in electronic form and (b) broadcasted.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
62. Primary evidence. –– Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1. ––Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. –– Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.		57. Primary evidence Primary evidence means the document itself produced for the inspection of the Court.
Explanation 1.—Where a document is executed in several parts, each part is primary evidence of the document.
Explanation 2.—Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 3.—Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Explanation 4.—Where an electronic or digital record is created or stored, and such storage occurs simultaneously or sequentially in multiple files, each such file is primary evidence.
Explanation 5.—Where an electronic or digital record is produced from proper custody, such electronic and digital record is primary evidence unless it is disputed.
Explanation 6.—Where a video recording is simultaneously stored in electronic form and transmitted or broadcast or transferred to another, each of the stored recordings is primary evidence.
Explanation 7.—Where an electronic or digital record is stored in multiple storage spaces in a computer resource, each such automated storage, including temporary files, is primary evidence.

The scope of application of Electronic Records in evidence is further expanded by the Additional Explanations 4 to 7 in Sec. 57 (as to ‘Primary Evidence’). Major changes having practical importance are the following:

  • Under Explanation 4, electronic or digital record that is stored in an electronic devise, simultaneously(or sequentially in multiple files) with that in the ‘creating’ devise, is also taken as ‘primary evidence’.
    • Core-computer system in Banks and storing in ‘iCloud’ etc. are good examples for such storage.
  • Sixth explanation has also wider application. As is clear from the explanation, video recordings (a) simultaneously stored in electronic form and (b) transmitted or broadcasted can also be taken as primary evidence.
  • Explanation 5 renders a rider. Production of electronic or digital record from proper custody (unless it is disputed) is necessary to treat it as ‘primary evidence’.
    • Admission of electronic record contained in a stolen devise seized from an accused is a good example for it.

3. Scope of Secondary Evidence also Expanded

Abstract:

  • Oral and written admissions, as well as the evidence of ‘skilled persons’, are added in the list of Secondary Evidence.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
63. Secondary evidence. –– Secondary evidence means and includes ––
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.		58. Secondary evidence Secondary evidence includes—
(i) certified copies given under the provisions hereinafter contained;
(ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(iii) copies made from or compared with the original;
(iv) counterparts of documents as against the parties who did not execute them;
(v) oral accounts of the contents of a document given by some person who has himself seen it;
(vi) oral admissions;
(vii) written admissions;
(viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.

The new clauses in Sec. 58, that speaks about Secondary Evidence, also show the legislative intent of liberalization in evidence in legal proceedings. Certificates and Reports of ‘skilled persons’ (as regards the documents which cannot conveniently be examined in Court) are added in the list of Secondary Evidence.

4. Sec. 61, a New Provision

Abstract

  • It widened the scope of admissibility of Computer output. It permits to invoke other provisions of the Act also to prove secondary evidence of Electronic Record (other than Sec. 63, old 65B).
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
    (No specific provision in the Act)61. Electronic or digital record Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.

Importance of this New Provision

The words in the new Sec. 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” has great significance. It is made to expand the scope of admissibility of Electronic Evidence.

The non-obstante clause in Sec. 65B (Sec. 63, BSA) is capable of giving two (divergent) interpretations –

  • First, Sec. 65B (Sec. 63, BSA) is an enabling provision to admit ‘computer output’ (derived from original)  as ‘document’ itself, in a simpler manner, by the deeming provision (“shall be deemed to be also a document”) ‘notwithstanding anything contained in the Act’. That is, computer output (copy) can also be proved by any other manner provided for proving any other document.
  • Second, a computer output (copy) can be proved only under the provisions of Sec. 65 B, ‘notwithstanding anything contained in the Act’. (It is the view taken By the Supreme Court in Arjun Panditrao v. Kailash Kushanrao,  2020-3 SCC 216.)

The words in the new Sec. 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” makes an emphatic delineation of the legislative intent on the following two matters –

  • 1. Sec. 65B (Sec. 63, BSA) is an enabling provision to admit ‘computer output’ (copy) by the  deeming provision ‘notwithstanding anything contained in the Act’. 
  • 2. The view taken in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, is that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65B,  ‘notwithstanding anything contained in the Act’. It is no more a good law in view of the change by Sec. 61.
  • Because,
    • “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic” record on the ground that it is an electronic record and “such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document” applies to Sec. 63 also. Therefore, the interpretation given in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, will not remain in force.
    • The words, “subject to section 63” (BSA), in Section 61 (BSA), only directs to undergo the requirements in Sec. 63 (that is production of Sec. 63(4) certificate and HASH certificate etc.) to prove the Computer output, in case (or, only when) one opts to prove it under the provisions of Sec. 63.

Note: 1. If this interpretation is not given, Sec. 61 stands meaningless.

Note: 2. This interpretation is also necessary to give effect to the legislative intent (liberalization of evidence).

5. Changes to Sec. 65A and 65B

Abstract:

  • No substantial change to Sec. 65A.
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
65A. Special provisions as to evidence relating to electronic record. –– The contents of electronic records may be proved in accordance with the provisions of section 65B.62. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of section 63.

No material change is made by this new provision which stands as an introductory provision to Sec. 63.

Abstract of change to Sec. 65B:

  • Sec. 63 read with Sec. 61 (BSA) allows to prove the copy or print-out of an electronic record invoking other provisions of the Sakshya Act, also.
  • Mandatory requirement of HASH certificate is introduced..
Indian Evidence Act, 1872Bharatia Sakshya Act, 2023
65B. Admissibility of electronic records – (1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:–
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether–
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say, —
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this subsection it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section,
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment; —
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Explanation. — For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process  		63. Admissibility of electronic records –
(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information-creation or providing information—processing and storage; or
(e) through an intermediary
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
 (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief  of the person stating it in the certificate specified in the Schedule.
 (5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

Major Changes made in Sec. 65B IEA

  • Now, under Sec. 65B of the Indian Evidence Act, copy or print-out of an electronic record can be proved only by producing the certificate provided under Sec. 65B(4), in view of the Supreme Court decision in Arjun Panditrao v. Kailash Kushanrao, 2020-3 SCC 216.  
  • The proposed Bhartiya Sakshya Act, 2023, (Sec. 63 read with Sec, 61) allows to prove the copy or print-out of an electronic record invoking other provisions of the Evidence Act (such as Sec. 63 and 65 IEA = Sec. 58 and 60 BSA) that permits to prove a secondary evidence (copy) of a document.
  • If  a computer output (copy) is sought to be proved invoking Sec. 63, Bhartiya Sakshya Act, 2023, the “certificate (HASH) specified in the Schedule” is necessary. It is to be produced “along with the electronic record” also.

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Evidence Act – General

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Law on Documents

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Contract Act

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Stamp Act & Registration

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

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Does Easement of Necessity and Prescriptive Easement Stand Mutually Destructive? Can Easement of Necessity and Implied Grant be Claimed Alternatively?

Saji Koduvath, Advocate, Kottayam.

PART   I – ABSTRACT

1. Courts in India consistently adhered to the following postulations-

  • Prescriptive Right of Easement (Grant also) stands destructive to claim of Easement of Necessity.
  • Easement of necessity is based on implied grant. That is, it is based on some sort of ‘consent or permission’. But, Easement by Prescription is acquired by prescriptive or hostile acts.
  • Therefore, both such rights cannot be claimed in the (same) suit even as an alternative remedy.
  • Theoretical basis of ‘Easement of Necessity’ and ‘Easement by Implied Grant’ are same. Therefore, such claims can be raised in the (same) suit as an alternative remedy.

2. Following is a matter of seminal importance-

  • A (Single) Judge of the Kerala High Court (in Achuthan Nair, v. Vasudevan, 2020-5 KHC 647) took the view that Easement of Necessity can be claimed as an alternative remedy (in a suit based on Prescriptive Rights), “in the event of rejection of claim of prescriptive easement“; for, easement of necessity is “co-extensive with the necessity”. It being stood against the earlier view of the High Court, in various cases, he referred the matter for the decision by a larger bench. The case is pending consideration by the larger Bench. 

Necessity and Prescription (Generally Followed) Propositions

  • Easement of Necessity and Prescriptive Right are ‘mutually destructive’
  • Both are antithetical to each other.
  • Both cannot be maintained in one suit.
  • The reason is that the origins of both are distinctive and divergent in law. Easement of necessity continues as long as necessity exists. Its origin is the presumption of law. It will not give rise to a prescriptive right. In other words, Easement of necessity is based on an implied grant – based on some sort of ‘consent, approval or permission’; and, Easement by Prescription is acquired by prescriptive or hostile acts.

Invariably it is so held by the Courts in India. See:

  • (i) P.  Sadayan v. Arumugam, 2020-1 LW 535
  • (vii) Lilly v. Wilson, (2018 (1) KLT 772 : 2018(1) KHC 623)
  • (vi) Kamala Devi Amma v. Rajan, (2017 (4) KLJ 700: 2017 KHC 876)
  • (ii) Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649
  • (v) Kallen Devi v. Kizhakkekoroth Raghavan, (2012 (3) KLT 142 : 2012(2) KHC 443)
  • (iv) Kochu Nadar v. Kunjan Nadar Gabriel, (2011 SCC OnLine Ker 2674)
  • (iii) Joy Joseph and Others v. Jose Jacob,  (2010 (4) KHC 167)
  • (viii) Ibrahimkutty v. Abdul Rahmankunju, (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468: ILR 1993(1) Ker.331 : AIR 1993 Ker.91)
  • Mohammed vs. Doomunhi Achari, 1987 (2) KLT 1037.

Necessity and Implied Grant – can Claim Alternatively; Theoretical Basis Same

  • Theoretically, easement of necessity and quasi-easement arise from implied approval of the servient owner; and, therefore, there is “implied grant” in both.
  • ‘Grant’ of easement may be express or implied. Implied grant is controlled by the (implied) terms and conditions of the grant.
  • Both easement of necessity and quasi easement have some common features; but, they are distinguishable and cannot go together.
  • Grant being controlled by the (implied) conditions, it is not akin to ‘quasi easement’, and a grant will not be defeated by the emergence of an alternative way.
  • It is obvious , the decision of Sree Swayam Prakash Ashramam v. G. Anandavally Amma , 2010 (2) SCC 689, proceeded on this principle – “theoretical basis of ‘Easement of Necessity’ and ‘Easement by (Implied) Grant’ are same”.

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

Easement by Prescription and  Easement of Necessity are Antithetical 

Easement by prescription is “acquired” by hostile and notorious acts; but user of it should be peaceable and open enjoyment, without interruption for twenty years. Therefore, “grant” is ‘presumed’ in easement by prescription.

Origin of Easements of necessity and Easement by prescription are different (Easement of necessity is based on implied grant. That is, it is based on some sort of ‘consent, approval or permission’. But, Easement by Prescription is acquired by prescriptive or hostile acts). Hence, both these rights are said to be antithetical to each other. In Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is observed as under:

  • “Implied grant and the concept easement by prescription are quite antithetical to each other. If a person is having an implied grant in his favour, then the question of prescription would not arise.” (Quoted in: Kalyan Spinning Mills v. M.  Chellappan, AIR  2023 Mad 8, P.  Sadayan v. Arumugam, 2020-1 Mad LW 535).

In Tanba Nusaji Mahajan v, Pandhari Mahajan, 2004 (6) BomCR 782, 2004 (4) MhLJ 109, it is held as under:

  • “10.   …. 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.”

No Res judicata, Where suit dismissed on Technical Ground

It is trite law – there will not be res judicata if a suit is dismissed not on merit but on technical ground. (See: Niloufer Siddiqui v. Indian Oil Corporation Ltd., AIR 2008 Patna 5 upheld by the Supreme Court in Indian Oil Corporation Ltd.  v. Niloufer Siddiqui, 2015-16 SCC 125: Referred to in: P. Rajesh v. V. Shanthi, 2015-5 LW 27; 2015-7 MLJ 648)

Therefore, there may not be any bar on the ground of res judicata even if a suit is dismissed on the technical ground of claiming inconsistent pleas of easement.

See also:

  • Dismissal of earlier suits on a technical ground that they were for a mere declaration without seeking consequential relief: Inacia Martins v. Narayan Hari Naik AIR 1993 SC 756.
  • Dismissal of earlier suits and writs on technical ground or for want of parties: Ram Gobinda v. Bhaktabala, AIR 1971 SC 664; Shiromani Gurdwara Parbandhak Committee Vs Mahant Harman Singh AIR 2003 SC 3349.
  • Plaintiff non-suited on the ground of limitation, res judicata, mis-joinder, insufficient court fees on the plaint, jurisdiction or a like technical and preliminary grounds: Venkata-surya-narayana v. Siva-sankara-narayana, (1914) 17 M.L.T. 85.

A Discordant, but Intriguing, Note

Indicating forceful materials, the intricate legal principle as to ‘mutual destruction’ between Easement of Necessity and Prescriptive Right is doubted in Achuthan Nair v. Vasudevan, 2020-5 KHC 647; 2021-1 KLJ 24; 2020-6 KLT 104. It is found that a deeper examination and critical analysis are required, in light of the compelling circumstances. Hence the Single Bench of the Kerala High Court ordered a reference (to a larger bench), as shown above.

PART   II – EASEMENT OF NECESSITY and PRESCRIPTION – ACCEPTED POSITION

Antithetical to each other

As shown above, in Natesa Gounder v. Raja Gounder, 2012-5 Mad LW 649, it is held as under:

  • “Implied grant and the concept easement by prescription are quite antithetical to each other.”

Mutually Incongruous and Contradictory; Cannot Operate Together

Easement of Necessity and Prescriptive Right are ‘mutually destructive’. As shown above, both cannot be maintained in one suit. The reason is that the origins of both are distinctive and divergent in law. Easement of necessity continues as long as necessity exists. Its origin is the presumption of law. It will not give rise to a prescriptive right.

In Lilly v. Wilson, (2018 (1) KLT 772 : 2018(1) KHC 623), it is held thus:

  • “14. A mistake commonly committed by the draftsmen is to plead both easement by prescription and easement of necessity together in respect of a way, forgetting the fact that they are mutually incongruous to one another and contradictory in nature. S.15 of the Act deals with easement by prescription…………..”
  • 17. It is therefore clear from the above principles that easement of necessity and easement by prescription cannot operate together in respect of any immovable property. This proposition has been settled in a number of decisions (see Mohammed v. Doomunhi Achari, 1987 KHC 649 : 1987(2) KLT 1037 : 1988(1) KLJ 442 : AIR 1988 Ker.298 : 1988(1) Cur.CC 486, Joy Joseph and others v. Jose Jacob alias Thankachan, 2010(4) KHC 167 and Kallen Devi v. Raghavan, 2012 (2) KHC 443 : 2012(3)KLT 142).”

Will Not Go Together

In Kamala Devi Amma v. Rajan, (2017 (4) KLJ 700: 2017 KHC 876), the suit was dismissed finding, inter alia –

  • (i) ‘easement of necessity and prescription will not go together the plaintiff has to elect one among them in order to claim the relief’; and
  • (ii) ‘in order to claim easement of necessity, mere statement that at one point of time the properties were under common owner alone is not sufficient and it must be specifically mentioned as to when the severance has taken place and the origin of easement of necessity arose as well’.
  • (iii) “granting the relief of declaration of easement right of way by prescription in favour of the plaintiff that too for a lesser extent not for the extent claimed by the plaintiff in the plaint are unsustainable in law”.

Contradictory and Inconsistent in Each Other; Both cannot Co-Exist

As shown above, easement of Necessity and Prescriptive Right are ‘mutually destructive’. Both cannot be maintained in one suit. The reason is that the origins of both are distinctive and divergent in law. Easement of necessity continues as long as necessity exists. Its origin is the presumption of law. It will not give rise to a prescriptive right. In other words, Easement of necessity is based on an implied grant – based on some sort of ‘consent, approval or permission’; and Easement by Prescription is acquired by prescriptive or hostile acts. In Kallen Devi v. Raghavan, (2012 (3) KLT 142: 2012(2) KHC 443), it was held as under:

  • “First of all, the plea of prescriptive right of easement and easement of necessity are contradictory and inconsistent in each other. Both cannot co-exist.”

Prescriptive Easement & Necessity – to a Great Extent, Mutually Exclusive

In Ibrahimkutty v. Abdul Rahmankunju (1992 KHC 443 : 1992(2) KLT 775 : 1992(2) KLJ 468: ILR 1993(1) Ker.331 : AIR 1993 Ker.91) it is held as follows:

  • “The qualitative and quantitative requirement for the different kinds of easement are to a great extent mutually exclusive”.

ELECT ONE AMONG THEM

Elect From One Among Them

In Kallen Devi v. Raghavan, (2012 (3) KLT 142 : 2012(2) KHC 443), it was held as under:

  • “Even assuming that the plaintiff is entitled to take inconsistent plea, at the time of evidence he has to elect from one among them i.e. the prescriptive right of easement or easement by necessity and he cannot go on with both the pleas which are in fact contradictory. In the case on hand, the plaintiff pressed both the grounds and failed to establish prescriptive right of easement.”

Elect One Among Them

In Kamala Devi Amma v. Rajan, (2017 (4) KLJ 700 : 2017 KHC 876) it is held as under:

  • “… The plaintiff has to elect one among them in order to claim the relief”.

Opt One At the Time of Adducing Evidence

In Lilly v. Wilson, (2018 (1) KLT 772 : 2018(1) KHC 623) it is held thus:

  • “… Therefore, I have no hesitation to hold that claims based on easement by prescription and easement of necessity taken up together in the pleadings by the respondent are contradictory to one another and therefore the plaintiff should have opted to adhere to one at the time of adducing evidence.”

Essential Legal Attributes of Easement of Necessity & ‘Easement by Grant’

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, as regards ‘easement of necessity and Grant’. As regards easement of necessity it is laid down as under –

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

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, laid down, as regards ‘easement by grant’, as under–

  • Easement by grant will not amount to an easement of necessity under Sec. 13 of the Act eventhough it may also be an absolute necessity for the person in whose favour the grant is made.
  • Limit of the easement acquired by grant is controlled only by the terms of the contract. If the terms of the grant restrict its user subject to any condition the parties will be governed by those conditions. Any how the scope of the grant could be determined by the terms of the grant between the parties alone.
  • If it is a permanent arrangement uncontrolled by any condition, that permanency in user must be recognized and the servient tenement will be recognized and the servient tenement will be permanently burdened with that disability.
  • Such a right does not arise under the legal implication of Sec. 13.
  •  An easement by grant does not get extinguished under Sec. 41 of the Act which relates to an easement of necessity.
  • Where the parties clearly provided for a right of access to the backyard of the defendant’s house when the Partition deed was executed and shares were allotted to various sharers taking into account various factors, it is a matter of contractual arrangement between them.
  • In such a contract if a right of way is provided to a particular sharer, it cannot be extinguished merely because such sharer has other alternative way.

Hero Vinoth v.  Seshammal, 2006-5 SCC 545, is the well accepted authority, to differentiate ‘easement of necessity and grant’. It is laid down–

  • Easement of necessity is depended upon absolute necessity.  Easement by grant does not depend upon absolute necessity of it. (It is the nature of the acquisition that is relevant.)
  • Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. Still, easement of grant is a matter of contract between the parties, and the parties are governed by the terms of the grant and not anything else; whereas easement of necessity is controlled under the legal implications of Sec. 13 and it is extinguished by the statutory provision under Sec. 41 (which is not applicable to easement by grant). The grant may be express or that arisen by necessary implication (therefore controlled by Sec. 8).
  • In either case (express grant or grant arisen by implication) it will not amount to an easement of necessity under Sec. 13 even when grant is an absolute necessity for the person in whose favour it is made.

Will Easement of Necessity Ripen into a Prescriptive Easement?

In other words-

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

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

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

PART   III – STAND-ALONE DECISION, ACHUTHAN NAIR v. VASUDEVAN

The Single Bench of the Kerala High Court, in the reference-judgment (Achuthan Nair, v. Vasudevan, 2020-5 KHC 647; 2021-1 KLJ 24; 2020-6 KLT 104), raises an important question – so long as there is no other means of access to the dominant tenement, can’t easement of necessity be raised as an alternative claim to right of prescriptive easement, Easement of Necessity being co-extensive with the necessity. It reads as under:

  • “It is quite permissible to plead and raise an alternative remedy along with the main relief sought. By its nature, an easement of necessity would always stand as an alternative remedy in the absence of a means of access to the dominant tenement. In short, the incident of easement of necessity is not contemporaneous with that of an easement by grant or easement by prescription, but would act as an alternative easement when absolute necessity comes out in the event of rejection of claim of prescriptive easement, easement by grant or easement by lost grant etc.”

The authoritative reasons pointed out by the Judge, for consideration of the larger Bench, can be summarised as under:  

  • 1. Easement of necessity continues as long as necessity exits (it is co-extensive with the necessity). Easement of necessity would act as an alternative easement when absolute necessity comes out in the event of rejection of claim of prescriptive easement, easement by grant etc.
  • 2. The easement of necessity will not extinguish except (as provided) under Sections 44, 45 and 46 of the Indian Easement Act (natural destruction, permanent alteration etc.)
  • 3. For the above, there will be no “mutual destruction” between ‘easement by grant’ and ‘easement of necessity’.
  • 4. From Sree Swayam Prakash Ashramam v. G. Anandavally Amma , 2010 (2) SCC 689, it can be “presumed” that “there cannot be any inconsistency or mutual destruction between an easement by grant or easement by implied grant with an easement of necessity”

1. Easement of Necessity is Co-Extensive With the Necessity

‘B.B Katiyar On Law Of Easement And Licences’ reads as under:

  • “An easement of necessity is co-existent and co-extensive with the necessity.”

Therefore, the reference order of Achuthan Nair, v. Vasudevan emphasised the important point – “in the event of rejection of claim of prescriptive easement“, Easement of Necessity can be claimed as an alternative claim, easement of necessity being co-extensive with the necessity. It is said as under-

  • “When there is no way available, virtually, the property would become incapable of enjoyment or to exercise any act of ownership over it. There lies the scope of an indefeasible incident annexed to the landed property as its integral part which would act as an alternative remedy when an absolute necessity comes out. It cannot be defeated or extinguished so long as, the tenements which were severed-dominant and servient, are in existence. It is not specified anywhere in the Indian Easement Act that an easement of necessity would remain inactive and inoperative when there is an alternative way and would revive when absolute necessity arises. But the very principle underlying easement of necessity giving rise an incident co-extensive with the land severed, on severance of tenements would show that it will not extinguish under Section 47 of the Indian Easement Act.”

2. No Extinction except under S. 44, 45 and 46, Indian Easement Act

Apart from the law that easement of necessity continues as long as necessity exits, it is not extinguished otherwise than as provided in the Easement Act (also). The relevant provision of law as to extinction of Easement is laid down in Sections 44, 45 and 46 of the Indian Easement Act (natural destruction, permanent alteration etc.).

Katiyar says as to the same as under:

  • “According to Section 47 of the Act there cannot be any extinction of easement, which has been used by way of necessity. There could not be any extinguishment of easement of necessity, merely because of the reason of non-mention of the same in the documents or an omission made. (R. Prabakaran v. Ambujathammal 2004 (3) LW 240)”

Quoting above passages of Katiyar, it is observed by the High Court (Achuthan Nair, v. Vasudevan, 2020-5 KHC 647; 2021-1 KLJ 24; 2020-6 KLT 104), as under:

  • “This would make the legal position crystal clear that a coextensive and coexistent incident – the easement of necessity – will not extinct or extinguish except under Sections 44, 45 and 46 of the Indian Easement Act …..”

3. No “Mutual Destruction” between ‘easement of necessity’ and ‘grant’

There will be no “mutual destruction” between ‘easement by grant’ and ‘easement of necessity’ for the above two reasons; that is –

  • 1. Easement of necessity continues as long as necessity exits.
  • 2. The easement of necessity will not extinguish except under Sections 44, 45 and 46 of the Indian Easement Act (natural destruction, permanent alteration etc.)

4. Sree Swayam Prakash Ashramam v. G. Anandavally Amma

The High Court (Achuthan Nair, v. Vasudevan, 2020-5 KHC 647; 2021-1 KLJ 24; 2020-6 KLT 104) then referred to Sree Swayam Prakash Ashramam v. G.Anandavally Amma, AIR 2010 SC 622: 2010 (2) SCC 689, observing as under:

  • “11. In Sree Swayam Prakash Ashramam and Ors. v. G. Anandavally Amma and Ors. (AIR 2010 SC 622: 2010 (2) SCC 689) both the claim of easement of necessity and easement of grant came up for consideration by way of a suit for declaration of easement of necessity or of grant and a permanent prohibitory injunction.”

The High Court splendidly pointed out the following from the Apex Court decision –

  • The Apex Court accepted the finding of the High Court regarding existence of implied grant and found that it would not be necessary to deal with the decision on easement of necessity which necessarily involves an absolute necessity.
  • Though the ingredients which would constitute easement of grant (or implied grant) and easement of necessity are different and cannot reconcile themselves,
  • and (there may be) embargo in maintaining a suit for easement by grant (or implied grant) along with a relief of easement of necessity
  • or inconsistency in maintaining both the claims at the same time
  • (they) were not taken up, “presumably on the reason that there cannot be any inconsistency or mutual destruction between an easement by grant or easement by implied grant with an easement of necessity.”

Swayam Prakash Case Did Not Consider the Doctrine – ‘Mutually Destructive‘

Sree Swayam Prakash Ashramam v. G.Anandavally Amma is a classic decision on ‘easement by implied grant’.

In that case, plaintiff claimed “easement of necessity or of grant”.

Though the plaintiff pleaded only ‘Grant’(and not Implied Grant), the Apex Court allowed ‘Implied Grant’, observing by the Apex Court as under:

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

As regards implied grant the Apex Court held as under:

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

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

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

Therefore, the Kerala High Court precisely observed – it can be “presumed” that ‘there cannot be any inconsistency or mutual destruction between an easement by grant or easement by implied grant with an easement of necessity’.

No Explicit Consideration Required for Easement by Grant

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

Sec. 8 of the Indian Easements Act reads:

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

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

In the case of Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court observed:

  • “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.”

Conclusion

Inasmuch as

  • (i) it is a fact that the courts in India consistently followed the principle that the easement of necessity and easement by prescription are mutually destructive claims (because, Easement of necessity is based on implied grant – based on some sort of ‘consent, approval or permission’; and, Easement by Prescription  is acquired by prescriptive or hostile acts); and
  • (ii) the Supreme Court, in Sree Swayam Prakash Ashramam v. G.Anandavally Amma , AIR 2010 SC 622, did not consider this point,

the ensuing decision (in the reference to larger bench made by the single judge) in Achuthan Nair, v. Vasudevan, 2020-5 KHC 647 is of seminal importance.

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