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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Should Power of Attorney for Sale Must have been Registered under Sec. 17(1)(b) Regn. Act – Channegowda v. NS Vishwanath Analysed

Saji Koduvath & James Joseph, Advocates, Kottayam.

Did Karnataka High Court hold in Channegowda v. NS Vishwanath that (all) ‘power of attorneys for sale’ must have been registered, under Sec. 17(1)(b) Registration Act?

  • No.

The learned Judge, on a precise and perfect Judgment, held that the General Power of Attorney “coupled with interest” required registration.

The court arrived at the legal attribute, “coupled with interest” in the the facts of that case (presented by the plaintiff himself), which included the following –

  • (i) the power of attorney issued (made after obtaining entire sale consideration) in favour of the second plaintiff had (in fact) set-forth or effected a “sale of property” itself.
  • (ii) it conferred power on the second plaintiff (as owner) to make a (further) sale to first plaintiff, and
  • (iii) on this (professed) capacity as “owner”, the second defendant executed an agreement for sale in favour of the first plaintiff.

Claim of the plaintiffs

The claim of the plaintiffs in this case was –

  • i. The defendants 1 to 3 were the original owners of the suit property.
  • ii. They made a  “sale transaction” (or sold the property) in favour of the second plaintiff on 01.03.1991, without a sale deed (due to the Fragmentation Act), through the following documents –  
    • (a) an affidavit sworn on 01.03.1991 before the Notary stating receipt of consideration and “transfer of their vested right” with possession. The affidavit made it clear that defendants 1 to 3 received the full sale consideration; and they undertook that at no point of time, they would sell the property to any third party. It was also agreed that they would come and execute the sale deed in favour of the  second plaintiff.
    • (b) an irrevocable General Power of Attorney in favour of the second plaintiff (executed on 01.03.1991) wherein liberty was given to the second plaintiff to “deal with the property as per her will and wish, either to sell or to develop the same”.
  • iii. Second plaintiff (who got the power of attorney and affidavit) entered into an “agreement of sale” in favour of the first plaintiff on 05.04.1991 and hence she requested defendants 1 to 3 to execute the absolute sale deed in her favour.

The judgement places the argument of the plaintiff, in this regard, as under:

  • “Secondly, he argued by saying that based on the General Power of Attorney coupled with interest, the second plaintiff sold the property in favor of the first plaintiff.”
    • Note: 1. The concept of power of attorney is that the ‘owner’ (principal) himself is ‘getting done’ the specified acts enumerated in the Power of Attorney (in his name and on his behalf) through the power of attorney holder (agent).
    • 2. Taking a could-shoulder, property law (in some cases) recognised the ‘General-Power-of-Attorney-Sale’. But it desires all formalities of a ‘sale’ including registration .

Court Referred a Supreme Court Decision

It is pointed out that the Apex Court decision in Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656, held –

  • .(i) that the General-Power-of-Attorney-Sale, or Sale-Agreements  will/do not convey title and they do not amount to transfer, and
  • (ii) they cannot be considered as valid modes of transfer of immovable property.

Why the Power of Attorney was Found – that it Required Registration

The General Power of Attorney considered in this case was held to be one required registration under Sec. 17 of the Registration Act, for it was “coupled with interest“.

That is, the power of attorney required registration in view of the contention of the plaintiffs that –

  • (i) the Power of Attorney was a deed that (indirectly) set forth a “sale” (itself) made after obtaining entire sale consideration, and
  • (ii) by virtue of the same the second plaintiff could make a further alienation (i.e., with “power of alienation”).

The Crucial Findings of the Well-Versed Judgment

In view of the contention of the plaintiffs that the Power of Attorney was a deed that set-forth a “sale” (itself) made after obtaining entire sale consideration, and by virtue of the same the second plaintiff could make a further alienation, it is held as under:

  • “However, if a power has been created empowering the attorney to sell the property i.e., if a document that gives a right to the attorney holder to sell the immovable property, then it would be a document creating an interest in immovable property, which would require compulsory registration.”

In the High Court, the plaintiff’s advocate placed an alternative argument (that the second plaintiff was not as a title holder), changing his earlier stand (that there was a sale and the second plaintiff became the title holder). The High Court dealt with the argument as under:

  • “An attempt is made on behalf of the plaintiffs to contend that the second plaintiff has sold the property as a General Power of Attorney Holder and not as a title holder. It is argued that the Power of attorney is not compulsorily registrable.”
  • “The submission is noted with care.”
  • “Suffice it to note that a deed of power of attorney is not one of the instruments specified under Section 17 of the Registration Act compulsorily registrable.”

Conclusion in the Judgment

The plaintiffs claimed that the power of attorney had effected or set-forth a “sale”. Therefore, the High Court concluded that it was “inadmissible in evidence”. It is held as under-

  • “Therefore, it can be safely concluded that the declaration of facts/statement of facts (affidavit) and General Power of Attorney do not convey title”.

End Notes:

Power of Attorney, Concepts in Law

In State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, our Apex Court made clear the Concepts on a Power of Attorney. They are the following –

  • It is governed by Chapter X of the Contract Act. It is also governed by the the Powers-of-Attorney Act.
  • A power of attorney is, as is well known, a document of convenience.
  • By a power of attorney, an agent is formally appointed to act for the principal.
  • It is an authority upon another person; but, subject to the limitations contained in the said deed.
  • The agent derives a right to use the principal’s name. The donee (agent) only acts in place of the donor .
  • All acts, deeds and things done by done by the agent shall be read as if done by the donor.
  • Except in cases where power of attorney is coupled with interest, it is revocable.
  • The agent cannot use the power of attorney for his own benefit.
  • He acts in a fiduciary capacity.
  • Any act of infidelity or breach of trust is a matter between the donor and the donee.

State of Rajasthan v. Basant Nehata, 2005-12 SCC 77, laid down as under”

  • “A grant of power of attorney is essentially governed by Chapter X of the Contract Act. By reason of a deed of power of attorney, an agent is formally appointed to act for the principal in one transaction or a series of transactions or to manage the affairs of the principal generally conferring necessary authority upon another person. A deed of power of attorney is executed by the principal in favour of the agent. The agent derives a right to use his name and all acts, deeds and things done by him and subject to the limitations contained in the said deed, the same shall be read as if done by the donor. A power of attorney is, as is well known, a document of convenience. Execution of a power of attorney in terms of the provisions of the Contract Act as also the Powers-of-Attorney Act is valid. A power of attorney, we have noticed hereinbefore, is executed by the donor so as to enable the donee to act on his behalf. Except in cases where power of attorney is coupled with interest, it is revocable. The donee in exercise of his power under such power of attorney only acts in place of the donor subject of course to the powers granted to him by reason thereof. He cannot use the power of attorney for his own benefit. He acts in a fiduciary capacity. Any act of infidelity or breach of trust is a matter between the donor and the donee.”

Should a Power of Attorney be Compulsorily Registered

Those Power of Attorneys that fall under clause (b) of Sec. 17(1) Registration Act alone requires registration. Sec. 17(1)(b) reads as under:

  • “(b) other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any
    • right,
    • title or
    • interest,
  • whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property”

Power of Attorney creates only an ‘Obligation’ on the agent

It is no doubt, true that a power of attorney does not create, declare, assign, limit or extinguish any right, title or interest; it only creates an ‘obligation‘ on the agent. The agent acts in a fiduciary capacity.

Power of Attorney, “coupled with interest”

A Power of Attorney, “coupled with interest”, requires registration.

  • E.g., if the power of attorney is issued by the owner after obtaining entire sale consideration from the holder of power of attorney, and if (in fact) it set-forth a “sale of property”, it falls under the category ‘power of attorney coupled with interest’. (See as to ‘General-Power-of-Attorney-sale’: Suraj Lamp and Industries P. Limited v. State of Haryana, (2012) 1 SCC 656).

Kerala Amendment to Sec. 17(1)(g)

Registration Act, Kerala Amendment, Sec. 17(1)(g), requires registration for development, transfer etc. relating to immovable property, except for exempted categories. (It is introduced because it is not a general rule that all power of attorneys for ‘transfer‘ must have been registered.) Sec. 17(1)(g) reads as under:

  • (g) Power of attorney creating any power or right of management, administration, development, transfer or any other transaction relating to immovable property of the value of one hundred rupees and upwards other than those executed in favour of father, mother, wife, husband, son, adopted son, daughter, adopted daughter, brother, sister, son-in-law or daughter-in-law of the executant.
  • See: Cherryl Ann Joy v. Sub Registrar, Udumbanchola, Idukki District, ILR 2018-3 Ker 540.

But, in Lachchhiram v Imrati, 2017-2 RN 117, it is held that for registration of a deed, registered power of attorney is needed (relying on – obiter – Manjunath Anandappa Urf Shivappa Hanasi v. Tammanasa, (2003)10 SCC 390).

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Seesaw of Supreme Court in NN Global Mercantile v. Indo Unique Flame

Stamp Act v. Arbitration Act

Saji Koduvath, Advocate, Kottayam

Abstract

•➧ In NN Global Mercantile v Indo Unique Flame, (2023) 7 SCC 1, Five Judge Bench of the Supreme Court, held (on 25. 4. 2023) – if an arbitration agreement was not sufficiently stamped it could not be sent for Arbitration (by a court).
•➧  Seven Judge Bench of the Apex Court, in a ‘curative petition‘, on December 13, 2023, held – sufficiency of stamp could not be a subject for the Court.
•➧  It was laid down – the objections as to insufficiency of stamp lies in the domain or ambit of the Arbitral Tribunal.

The Seven Judge Bench of the Supreme Court held-

  • Defect on non-stamping of a document is curable.
  • Such a document is not void (though “inadmissible” under Sec. 35 of the Stamp Act)
  • The courts, only examine whether the arbitration agreement “prima facie exists” (under Sec. 8 and 11 of the Arbitration Act)
  • The objection as to non-stamping fall within the ambit of the arbitral tribunal (Sec. 16) 

Reference to Seven-Judge Bench

The Five Judge Bench decision in NN Global Mercantile v Indo Unique Flame, (2023) 7 SCC 1,  was placed before the  Seven Judge Bench, in a ‘curative petition’, considering the “larger ramifications and consequences” (within the shortest time?).

Findings of the Seven-Judge Bench – on Stamp Act, in Nutshell

  • The Stamp Act is a fiscal statute only.
  • The Act itself provided for curing defects on non-stamping.
  • Hence such unstamped agreements are not void.

Findings of the Seven-Judge Bench – on Arbitration Act, in Nutshell

  • The Arbitration Act provided for minimum judicial interference.
  • Arbitration Act is a self-contained code.
  • It provides for the separability of the arbitration agreement from the main contract.
  • Arbitral tribunals had jurisdiction to determine the limits of their own jurisdiction. Thereby, the Arbitral Tribunal can decide “the existence and validity of an arbitration agreement“.
  • Harmonious interpretation of  Stamp Act and Arbitration Act is needed, for-
    • The Arbitration Act, a comprehensive legal code.
    • It is a “special” statute.
    • It did not specify stamping as a pre-condition of a valid arbitration agreement.
    • It requires courts to confine at the referral stage to examination of the existence of arbitration agreement.

The Seven Judge Bench highly relied on Section 16 of the Arbitration and Conciliation Act, 1996, which declares the competence of arbitration tribunal to determine the existence or validity of the arbitration agreement .

The Supreme Court has overruled Earlier Decisions

  • NN Global Mercantile v. Indo Unique Flame, (2023) 7 SCC 1
  • SMS Tea Estates v. Chandmari Tea Co, (2011) 14 SCC 66
  • Garware Wall Ropes v. Coastal Marine Constructions, (2019) 9 SCC 209

These (earlier) decisions held –

  • Existence of a valid arbitration agreement (with sufficient stamp) was necessary, for ‘reference to arbitrator’ under Sec. 8 of the Arbitration and Conciliation Act, 1996.
  • These decisions relied, mainly, on Sec. 8(1) which reads as under:
    • “A judicial authority …. shall … refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.”

FINDINGS OF THE APEX COURT

Non-Stamping Does Not Render a Document Invalid or Nonexistent.

  • “194. The interpretation accorded to the Stamp Act by this Court in the present judgment does not allow the law to be flouted. The arbitral tribunal continues to be bound by the provisions of the Stamp Act, including those relating to its impounding and admissibility. The interpretation of the law in this judgment ensures that the provisions of the Arbitration Act are given effect to while not detracting from the purpose of the Stamp Act. 195. The interests of revenue are not jeopardised in any manner because the duty chargeable must be paid before the agreement in question is rendered admissible and the lis between the parties adjudicated. The question is at which stage the agreement would be impounded and not whether it would be impounded at all. The courts are not abdicating their duty but are instead giving effect to:
    • a. The principle of minimal judicial intervention in Section 5 of the Arbitration Act;
    • b. The prima facie standard applicable to Sections 8 and 11 of the Arbitration Act; and
    • c. The purpose of the Stamp Act which is to protect the interests of revenue and not arm litigants with a weapon of technicality by which they delay the adjudication of the lis.
    • d. The interpretation of the law must give effect to the purpose of the Arbitration Act in addition to the Stamp Act.” (emphasis in original).

Referral Court Not to Impound Unstamped Instrument

The Apex Court held as under:

  • “218. The discussion in preceding segments indicates that the referral court at Section 11 stage should not examine or impound an unstamped or insufficiently stamped instrument, but rather leave it for the determination by the arbitral tribunal. When a party produces an arbitration agreement or its certified copy, the referral court only has to examine whether an arbitration agreement exists in terms of Section 7 of the Arbitration Act. The referral court under Section 11 is not required to examine whether a certified copy of the agreement/ instrument/ contract discloses the fact of payment of stamp duty on the original. Accordingly, we hold that the holding of this Court in SMS Tea Estate (supra), as reiterated in N N Global 2 (supra), is no longer valid in law.”

Conclusions of the Apex Court

The Apex Court held further as under:

“224. The conclusions reached in this judgment are summarised below:

  • Agreements which are not stamped or are inadequately stamped are inadmissible in evidence under Section 35 of the Stamp Act. Such agreements are not rendered void or void ab initio or unenforceable;
  • b. Non-stamping or inadequate stamping is a curable defect;
  • c. An objection as to stamping does not fall for determination under Sections 8 or 11 of the Arbitration Act. The concerned court must examine whether the arbitration agreement prima facie exists;
  • d. Any objections in relation to the stamping of the agreement fall within the ambit of the arbitral tribunal; and
  • e. The decision in NN Global 2 (supra) and SMS Tea Estates (supra) are overruled. Paragraphs 22 and 29 of Garware Wall Ropes (supra) are overruled to that extent.”

End Notes

Arbitration and Conciliation Act, Sec. 7, 8 and 16

7. Arbitration agreement.

  • In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
  • An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.
  • An arbitration agreement shall be in writing.
  • An arbitration agreement is in writing if it is contained in
    • (a) a document signed by the parties;
    • (b) an exchange of letters, telex, telegrams or other means of telecommunication including communication through electronic means which provide a record of the agreement; or
    • (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
  • The reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

8. Power to refer parties to arbitration where there is an arbitration agreement.

  • (1) A judicial authority, before which an action is brought in a matter which is the subject of an arbitration agreement shall, if a party to the arbitration agreement or any person claiming through or under him, so applies not later than the date of submitting his first statement on the substance of the dispute, then, notwithstanding any judgment, decree or order of the Supreme Court or any Court, refer the parties to arbitration unless it finds that prima facie no valid arbitration agreement exists.
  • (2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof:
    • Provided that where the original arbitration agreement or a certified copy thereof is not available with the party applying for reference to arbitration under sub-section (1), and the said agreement or certified copy is retained by the other party to that agreement, then, the party so applying shall file such application along with a copy of the arbitration agreement and a petition praying the Court to call upon the other party to produce the original arbitration agreement or its duly certified copy before that Court.
  • (3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, an arbitration may be commenced or continued and an arbitral award made.

16. Competence of arbitral tribunal to rule on its jurisdiction

  • (1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose,–
  • an arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and
  • a decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.

(2) Where an award is remitted under sub- section (1) the Court shall fix the time within which the arbitrator or umpire shall submit his decision to the Court: Provided that any time so fixed may be extended by subsequent order of the Court.

(3) An award remitted under sub- section (1) shall become void on the failure of the arbitrator or umpire to reconsider it and submit his decision within the time fixed.

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Major Changes in the Evidence Act by Bharatiya Sakshya Adhiniyam, 2023

Saji Koduvath, Advocate, Kottayam.

Major Changes are made in Three Facets

They are in –

  • (i) Status of Documents and Electronic Evidence
  • (ii) Sec. 65B (Electronic Records) of the Evidence Act.
  • (iii) Sec. 27 (Recovery/Discovery on confession by accused before Police) of the Evidence Act and
Read – BNSS – Major Changes from CrPC
Bharatiya Nyaya Sanhita, 2023: Important Changes from the Indian Penal Code

Part I

Documents and Electronic Evidence

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

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, it is made clear – 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.

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

Abstract:

  • (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 to be treated as ‘primary evidence’.
    • Admission of electronic record contained in a stolen devise seized from the custody of accused is a good example for it.

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.

Part II

Changes made to Sec. 65A & 65B (Electronic Records) in Evidence Act

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 (‘notwithstanding anything contained in the Act’) 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 interpretation given to Sec. 65B that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65B,  ‘notwithstanding anything contained in the Act’(the view taken in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216), is not accepted by the legislature.
    •  “Nothing in this Adhiniyam shall apply to deny the admissibility” applies to Sec. 63 also. Therefore, the interpretation given in Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, will not remain in force.
  • “Subject to Section 63”
    • The words, “subject to section 63” (BSA), in Section 61 (BSA), denotes two things-
    • 1. Sec. 61 covers Sec. 63 also. That is, Sec. 61 is not confined to (original) ‘electronic record’; but it covers ‘computer output’ (copy) also.
    • 2. To avoid a misinterpretation – that Sec. 61 is independent of Sec. 63 which directs to comply with certain requirements to accept ‘computer output’ (copy) (that is production of Sec. 63(4) certificate and HASH certificate etc.) one opts to prove ‘computer output’ (copy) 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).

Note: 3. Invoking Sec. 61, a copy taken in a CD or pen-drive (which is obviously ‘made by mechanical processes which in itself insure the accuracy’) can be given in evidence, with the oral evidence to the effect that it is the copy taken from the Electronic Record (original). Now, because of Arjun Panditrao v. Kailash Kushanrao, 2023 SCC 216, we cannot give evidence in this manner; for, according to Arjun Panditrao ‘computer output (copy) can be proved only’ under the provisions of Sec. 65B, that is with the “Sec. 65B Certificate” (‘notwithstanding anything contained in the Act’).

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 changes 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).

Changes made to Sec. 65B

The proposed Bhartiya Sakshya Act, 2023 introduces significant changes in Sec. 65B of the Indian Evidence Act, 1872. It updates Sec. 65B, as under:

  • 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.

A Discordant Note

The Certificate required in Sec. 63(4)(c) of the new Act must be “in the form specified in the Schedule”. It appears that this certificate is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated therein; or the Certificate should contain (additionally) the matters enumerated in sub-section (4).

The Form in the Schedule directs to state as under:

  • “I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
  • SHA1:
  • SHA256:
  • MD5:
  • Other …….. …….. …….. (Legally acceptable standard)
  • (Hash report to be enclosed with the certificate)”

The requirement for this certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out). It may be more feasible for many litigants to bring the original device, such as a computer, laptop, or mobile phone, to court than to get the HASH value fixed through an expert.

  • Note: Hash value is needed/possible in electronic evidence alone.

What is HASH value (in simplest terms)?

  • HASH value is a string of unique characters, usually represented by letters and numbers.
  • It is a scientific method (algorithm) commonly used to find out tampering, if any, on an electronic record.
  • HASH value of every electronic record can be fixed.
  • Any modification or change made thereto – no matter how small, even addition of a comma (,) – will result in a completely different hash value.

Part III

Changes made in Sec. 27 (Recovery/Discovery)

Abstract:

  • Sec. 25, 26 and 27 of IEA are consolidated to one section.
  • The word “thereby” in Sec. 27 is removed.
Section 25, 26 and 27, Indian Evidence ActSection 23, Bhartiya Sakshya Act
25. Confession to police officer not to be proved. –– No confession made to a police-officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. –– No confession made by any person whilst he is in the custody of a policeofficer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation.––In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 18827 (10 of 1882).
27. How much of information received from accused may be proved. –– Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.		23. Confession to police officer.  
(1) No confession made to a police officer shall be proved as against a person accused of any offence.  

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:  

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved

The proposed Bhartiya Sakshya Act, 2023 introduces two significant changes in Sec. 27 of the Indian Evidence Act, 1872.

Changes in the New Act (Made to Sec. 27, IEA)

First –

  • Now, from the words of Sec. 27 of the Indian Evidence Act, it is clear (i) what is to be proved by Sec. 27 is the fact deposed by the Investigating Officer in court; and (ii) it must be as to the ‘discovery’ on ‘information’ (or disclosure) from the accused.
  • From the words of Sec. 27 of the Evidence Act, it could be shown or argued (though not correct) that the fact ‘discovered’ embraces (a) the “recovery” (b) of the “object” (c) in the immediate presence of the accused – to have it “in consequence of (his) information”.
  • The possibility of these (incorrect) arguments are averted by removing the word “thereby” in Section 27 (in the proviso to Section 23 of the new Bhartiya Sakshya Act).

Second –

  • Now, the Sec. 27 of the Indian Evidence Act begins with a ‘Proviso’.
  • This impropriety is removed by clubbing Section 25, 26 and 27 (of the Indian Evidence Act) in the new  Bhartiya Sakshya Act (in Sec. 23).

A Discordant Note

  • Now, under Sec. 25 of the Indian Evidence Act, no confession made to a police officer shall be proved as against a person accused of any offence. But, if it falls under Sec. 27 (that is, if it leads to a discovery as provided in Sec. 27), it can be proved.
  • Though Section 25 is retained in the new Bhartiya Sakshya Act, 2023, under Sec. 23(1), the proviso is not made applicable to the Section, 23(1).
  • Note: 1. The proviso is limited (or made applicable) to subsection (2) of Section 23 of the Bhartiya Sakshya Act (alone) – See the colon (:) at the end of subsection (2).
  • Note: 2. It appears to be a mistake in drafting the section; because,
    • (i) Sec. 25 of the Indian Evidence Act is a general provision which governs Sec. 26 also; and Sec. 27 applies to both Sec. 25 and 26;
    • (ii) but, the proviso in Sec. 23 of the Bhartiya Sakshya Act is made applicable to Sec. 23(2) alone, and not to Sec. 23(1); thereby the vigor of Sec. 23(1) prevails – without being governed by the Proviso to Section 23(2);
    • (iii) and, in such a case, Section 23(2) of the Bhartiya Sakshya Act, cannot work at all, inasmuch as Sec. 23(1) makes a total bar – “No confession made to a police officer shall be proved as against a person accused of any offence”.  

Sec. 27 Indian Evidence Act (Proviso to Sec. 23 Bhartiya Sakshya Act) Analysed

Who has to “depose” – It is by the police officer, and before the court. 

What is to be Deposed – It is the fact he discovered as disclosed by the accused.

“As Discovered” (in consequence of information from accused)

  • It is the fact deposed to (as disclosed by the accused) by the police officer before the court. It should have been ‘discovered’ from the “Place of Concealment”.

‘Fact discovered‘ embraces Place of Concealment and Knowledge of Accused

The classic Privy Council verdict, Pulukuri Kotayya v. King ­Emperor, AIR 1947 PC 67, consistently followed by the courts in India, made it clear, as regards the concealment of a knife, as under-

  • “In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If the statement of the accused contains the words ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

‘Fact Discovered’ is the “Place to the Knowledge of the Accused”

From Pulukuri Kotayya v. King ­Emperor it is clear –

  • Even if the knife was discovered many years ago,
  • if the fact that the knife was concealed in a place (to the knowledge of the accused) is discovered,
  • it is relelvent and admissible under Sec. 27 Evd. Act.

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Sec. 27 Recovery/Discovery in Evidence Act and Bhartiya Sakshya Adhiniyam, 2023

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

Saji Koduvath & James Joseph, Advocates, Kottayam.

Section 25, 26 and 27, Indian Evidence ActSection 23, Bhartiya Sakshya Act
25. Confession to police officer not to be proved. –– No confession made to a police-officer, shall be proved as against a person accused of any offence.
26. Confession by accused while in custody of police not to be proved against him. –– No confession made by any person whilst he is in the custody of a policeofficer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.
Explanation.––In this section “Magistrate” does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure, 18827 (10 of 1882).
27. How much of information received from accused may be proved. –– Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.		23. Confession to police officer.  
(1) No confession made to a police officer shall be proved as against a person accused of any offence.  

(2) No confession made by any person while he is in the custody of a police officer, unless it is made in the immediate presence of a Magistrate shall be proved against him:  

Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact discovered, may be proved

Introduction

The proposed Bhartiya Sakshya Act, 2023 introduces two significant changes in Sec. 27 of the Indian Evidence Act, 1872.

Changes in the New Act (Made to Sec. 27, IEA)

First –

  • Now, from the words of Sec. 27 of the Indian Evidence Act, it is clear (i) what is to be proved by Sec. 27 is the fact deposed by the Investigating Officer in court; and (ii) it must be as to the ‘discovery’ on ‘information’ (or disclosure) from the accused.
  • From the words of Sec. 27 of the Evidence Act, it could be shown or argued (though not correct) that the fact ‘discovered’ embraces (a) the “recovery” (b) of the “object” (c) in the immediate presence of the accused – to have it “in consequence of (his) information”.
  • The possibility of these (incorrect) arguments are averted by removing the word “thereby” in Section 27 (in the proviso to Section 23 of the new Bhartiya Sakshya Act).

Second –

  • Now, the Sec. 27 of the Indian Evidence Act begins with a ‘Proviso’.
  • This impropriety is removed by clubbing Section 25, 26 and 27 (of the Indian Evidence Act) in the new  Bhartiya Sakshya Act (in Sec. 23).

A Discordant Note

  • Now, under Sec. 25 of the Indian Evidence Act, no confession made to a police officer shall be proved as against a person accused of any offence. But, if it falls under Sec. 27 (that is, if it leads to a discovery as provided in Sec. 27), it can be proved.
  • Though Section 25 is retained in the new Bhartiya Sakshya Act, 2023, under Sec. 23(1), the proviso is not made applicable to the Section, 23(1).
  • Note: 1. The proviso is limited (or made applicable) to subsection (2) of Section 23 of the Bhartiya Sakshya Act (alone) – See the colon (:) at the end of subsection (2).
  • Note: 2. It appears to be a mistake in drafting the section; because,
    • (i) Sec. 25 of the Indian Evidence Act is a general provision which governs Sec. 26 also; and Sec. 27 applies to both Sec. 25 and 26;
    • (ii) but, the proviso in Sec. 23 of the Bhartiya Sakshya Act is made applicable to Sec. 23(2) alone, and not to Sec. 23(1); thereby the vigor of Sec. 23(1) prevails – without being governed by the Proviso to Section 23(2);
    • (iii) and, in such a case, Section 23(2) of the Bhartiya Sakshya Act, cannot work at all, inasmuch as Sec. 23(1) makes a total bar – “No confession made to a police officer shall be proved as against a person accused of any offence”.  

End Notes

Sec. 27 Indian Evidence Act (Proviso to Sec. 23 Bhartiya Sakshya Act) Analysed

Who has to “depose” – It is by the police officer, and before the court. 

What is to be Deposed – It is the fact he discovered as disclosed by the accused.

“As Discovered” (in consequence of information from accused)

  • It is the fact deposed to (as disclosed by the accused) by the police officer before the court. It should have been ‘discovered’ from the “Place of Concealment”.

‘Fact discovered‘ embraces Place of Concealment and Knowledge of Accused

The classic Privy Council verdict, Pulukuri Kotayya v. King ­Emperor, AIR 1947 PC 67, consistently followed by the courts in India, made it clear, as regards the concealment of a knife, as under-

  • “In their Lordships’ view it is fallacious to treat the “fact discovered” within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that “I will produce a knife concealed in the roof of my house” does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge; and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. If the statement of the accused contains the words ‘with which I stabbed A’, these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant.”

‘Fact Discovered’ is the “Place to the Knowledge of the Accused”

From Pulukuri Kotayya v. King ­Emperor it is clear –

  • Even if the knife was discovered many years ago,
  • if the fact that the knife was concealed in a place (to the knowledge of the accused) is discovered,
  • it is relelvent and admissible under Sec. 27 Evd. Act.

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Evidence Act – General

Sec. 65B

Law on Documents

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Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023

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

Jojy George Koduvath & Saji Koduvath, Advocate, Kottayam.

Section 65B, Indian Evidence ActSection 63, Bhartiya Sakshya Act
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).

Abstract

The proposed Bhartiya Sakshya Act, 2023 introduces significant changes as regards ‘Electronic Evidence’. It updates Sec. 65B .

One of the key requirements of the new Act is the production of a ‘HASH’ certificate to prove the copy or print-out (computer output). It is seen as introduced with a view to avert tampering. But it appears that this requirement is harsh and unwanted.

What are the Major Changes made in Section? 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).  
  • The proposed Bhartiya Sakshya Act, 2023, 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 an electronic record is sought to be proved invoking Sec. 63, Bhartiya Sakshya Act, 2023, “the certificate specified in the Schedule” is necessary. It is to be produced “along with the electronic record”.

Other Major Changes in this regard, in the New Act

First – The existing Evidence Act contains three explanations alone while escribing ‘Primary Evidence’ in Sec. 62.

Explanation 4, 5, 6 and 7 are added in the new Sakshya Act, in the Sec. 57. It reads as under:

  • “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.”

From Explanations 4, 5, 6 and 7 it is clear that the scope of primary evidence is widened.

Second – A new provision is made – Sec. 61, which stipulates that –

  • “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.”

The words “nothing in this Adhiniyam shall apply to deny the admissibility” in Sec. 61 are also made to expand the scope of admissibility of Electronic Evidence. The non-obstante clause in Sec. 65B is capable of giving two (divergent) interpretations –

  • First, Sec. 65B 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 Section 61, “Nothing in this Adhiniyam shall apply to deny the admissibility” has great significance. It is an emphatic delineation of the legislative intent on the following two matters –

  • 1. Sec. 65B is an enabling provision to admit ‘computer output’ (copy)  as a ‘document’ itself, in a simpler manner, by the deeming provision ‘notwithstanding anything contained in the Act’, as stated above.
  • 2. The interpretation given to Sec. 65B that a ‘computer output (copy) can be proved only’ under the provisions of Sec. 65 B,  ‘notwithstanding anything contained in the Act’, is not accepted by the legislature (that is the view taken by the Supreme Court in Arjun Panditrao v. Kailash Kushanrao, (2020)3 SCC 216.)
    • The the words, “subject to section 63” in Section 61, only directs to undergo the requirements in Sec. 65B (that is production of Sec. 65B(4) certificate, and HASH certificate) to prove the Computer output, in case (or, only when) one opts to prove it under the provisions of Sec. 65B.

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

Methods to Prove Secondary Evidence (copy) in the BSA

“HASH value/s of the electronic/digital record/s”

The Certificate required in Sec. 63(4)(c) of the new Act must be “in the form specified in the Schedule”. It appears that this certificate is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated therein; or the Certificate should contain (additionally) the matters enumerated in sub-section (4).

The Form in the Schedule directs to state as under:

  • “I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
  • SHA1:
  • SHA256:
  • MD5:
  • Other …….. …….. …….. (Legally acceptable standard)
  • (Hash report to be enclosed with the certificate)”

A Discordant Note

The requirement for this certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out). It may be more feasible for many litigants to bring the original device, such as a computer, laptop, or mobile phone, to court than to get the HASH value fixed through an expert.

It is not clear –

  • (i) What is the precise purpose of ascertaining the hash value(s) of the (original) electronic or digital record?
    • Note: It appears that the hash value(s) of the original record are expected to be stated, rather than that of the copy (or “computer output”) actually produced before the court. This raises the question: how is the court to verify the authenticity of the copy, if only the original’s HASH is referenced?
  • (ii) Why does the requirement of including hash value(s) appear only in the Schedule (certificate format) and not in the main body of Section 63 itself?

The lack of explicit mention in the section text also creates uncertainty about whether hash values are mandatory or merely illustrative of best practices.

END NOTE – 1

What is HASH value (in simplest terms)?

  • HASH value is a string of unique characters, usually represented by letters and numbers.
  • It is a scientific method (algorithm) commonly used to find out tampering, if any, on an electronic record.
  • HASH value of every electronic record can be fixed.
  • Any modification or change made thereto – no matter how small, even addition of a comma (,) – will result in a completely different hash value.

END NOTE – 2

Sections 58 to 63 of BSA read as under:

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.
  • Illustrations.
    • .(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.
    • (b) A copy compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
    • (c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
    • (d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.

59. Proof of documents by primary evidence – Documents shall be proved by primary evidence except in the cases hereinafter mentioned

60. Cases in which secondary evidence relating to documents maybe given.

Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely:–

  • .(a) when the original is shown or appears to be in the possession or power–
  • .(i) of the person against whom the document is sought to be proved; or
  • (ii) of any person out of reach of, or not subject to, the process of the Court; or
  • (iii) of any person legally bound to produce it,
  • and when, after the notice mentioned in section 64 such person does not produce it;
  • (b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
  • (c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
  • (d) when the original is of such a nature as not to be easily movable;
  • (e) when the original is a public document within the meaning of section 74;
  • (f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;
  • (g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.

Explanation.–For the purposes of–

  • clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
  • clause (b), the written admission is admissible;
  • clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;

61. Admissibility of 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

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.

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 or Communication device 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 or Communication device 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 or Communication device 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 or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device 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) and an expert 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).

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Tenant at Sufferance in Indian Law

Saji Koduvath, Advocate, Kottayam.

Key Takeaways

  • What is Tenancy at Sufferance? – Tenancy at Sufferance is continuance of tenant after expiry of lease without the landlord’s permission or approval. (If it is with permission of landlord, it is ‘holding over’).
    • Possession of a ‘tenant at sufferance’ is unlawful, as it is after the extinction of a lawful title - as tenant (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
    • Still, it is recognised as juridical possession; and it is protected by Common law (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
    • For such protection the the tenant must have accepted the title of the landlord; and he must not have asserted title hostile to landlord (Sheo Dulare Lal Sah v. Anant Ram, AIR 1954 All. 475).
  • Is Tenant at Sufferance a Trespasser? Though the possession of ‘tenant at sufferance’ is unlawful, and possession of such a tenant is akin to that of a trespasser, there is little difference between the two.
    • Tenant at Sufferance can remain in possession until he is ejected in due course (in the suit filed by the landlord (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
    • His possession cannot be considered to be ‘settled possession‘ (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
    • Tenancy at sufferance is litigious – liable to ejectment in due course of law (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698).
    • ‘Tenant at Sufferance’ is recognised in law as a device to avoid the term ‘trespasser’ (MEC India Pvt. Ltd. v. Lt. Col. Inder Maira, 80 (1999) DLT 679).
  • Can Tenancy at sufferance be converted into a ‘holding over’? Yes. Tenancy at sufferance can be converted into a ‘holding over’ (by accepting rent by the landlord). Sec. 116, TP Act statutorily recognises holding over. (Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698)
  • Has the Tenant got a right to transfer his right of continuance? No. A tenant who becomes a tenant at sufferance, he has no right to transfer (Indian Oil Corporation Ltd. v. Sudera Realty Private Limited, 2022 SCC OnLine SC 1161).
  • Whether the possession of such a tenant would be Adverse to the landlord? No.

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

Bhupal Prasad v. State of Andhra Pradesh

These principles are laid down by the Supreme Court of India in Bhupal Prasad v. State of Andhra Pradesh, AIR 1996 SC 140, 1995 -5 SCC 698, as under:

  • “8. Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mulla’s Transfer of Property Act [7th End.] at page 633, the position of tenancy at sufferance has been stated thus:
    • A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A Tenancy at sufferance does not create the relationship of landlord and tenant.
  • At page 769, it is stated regarding the right of a tenant holding over thus:
    • The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remaining in possession after the determination of the term, the common law rule is that he is a tenant on sufferance.
  • The expression “holding over” is used in the sense of retaining possession. A distinction should be drawn between a tenant continuing in possession after the determination of the lease, without the consent of the landlord and a tenant doing so with the landlord’s consent. The former is called a tenant by sufferance in the language of the English law and the latter class of tenants is called a tenant holding over or a tenant at will. The lessee holding over with the consent of the lessor is in a better position than a mere tenant at will. The tenancy on sufferance is converted into a tenancy at will by the assent of the landlord, but the relationship of the landlord and tenant is not established until the rent was paid and accepted. The assent of the landlord to the continuance of the tenancy after the determination of the tenancy would create a new tenancy. The possession of a tenant who has ceased to be a tenant is protected by law. Although he may not have a right to continue in possession after the termination of the tenancy, his possession is juridical.
  • “13. In view of the settled position of law, the possession of the appellant is as tenant at sufferance and is liable to ejectment in due course of law. But his possession is not legal nor lawful. In other words, his possession of the the- atre is unlawful or litigious possession. The appellant may remain in possession until he is ejected in due course in execution of the decree in the suit filed by the respon- dent. His possession cannot be considered to be settled possession. He is akin to a trespasser, though initially he had lawful entry.”
  • (Quoted in Kewal Chand Mimani v.  S.K. Sem, 2001-6 SCC 512, AIR 2001 SC 2569; Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393)

Indian Oil Corporation Ltd. v. Sudera Realty Private Limited

In Indian Oil Corporation Ltd. v. Sudera Realty Private Limited, 2022 SCC OnLine SC 1161, it is observed by our Apex Court as under:

  • “60. A tenant continuing in possession after the expiry of the lease may be treated as a tenant at sufferance, which status is a shade higher than that of a mere trespasser, as in the case of a tenant continuing after the expiry of the lease, his original entry was lawful. But a tenant at sufferance is not a tenant by holding over. While a tenant at sufferance cannot be forcibly dispossessed, that does not detract from the possession of the erstwhile tenant turning unlawful on the expiry of the lease. Thus, the appellant while continuing in possession after the expiry of the lease became liable to pay mesne profits.”
  • “83. Once the lease comes to an end, the erstwhile tenant becomes a tenant at sufferance. He cannot be dispossessed, except in accordance with law. But he cannot, in law, have any right or interest anymore. Even though, under Section 108 of the Transfer of Property Act, if there is no contract to the contrary, the tenant may have the right, under Section 108(j), to transfer his interest absolutely or even by sub-lease or mortgage, when the lease expires by afflux of time, his interest as lessee would come to an end. In this context, we may notice the following statement of the law in Bhawanji Lakhamshi and Others v. Himatlal Jammnadas Dani and Others, (1972) 1 SCC 388:
    • “9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance…”
  • Thus, on the expiry of a lease, the erstwhile tenant, who remains a tenant at sufferance, would have no right to transfer.”

Our Apex Court held in Bhawanji Lakhamshi v. Himatlal Jamnadas Dani , (1972) 1 SCC 388, as under:

  • “9. The act of holding over after the expiration of the term does not create a tenancy of any kind. If a tenant remains in possession after the determination of the lease, the common law rule is that he is a tenant on sufferance. A distinction should be drawn between a tenant continuing in possession after the determination of the term with the consent of the landlord and a tenant doing so without his consent. The former is a tenant at sufferance in English Law and the latter a tenant holding over or a tenant at will. In view of the concluding words of Section 116 of the Transfer of Property Act, a lessee holding over is in a better position than a tenant at will. The assent of the land- lord to the continuance of possession after the determina- tion of the tenancy will create a new tenancy. What the section contemplates is that on one side there should be an offer of taking a new lease evidenced by the lessee or sub-lessee remaining in possession of the property after his term was over and on the other side there must be a definite consent to the continuance of possession by the landlord expressed by acceptance of rent or otherwise. ….” (Quoted in Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393)

Tenant at Sufferance – Owners Entitled Recovery under Art. 65 Limit. Act

In Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Company Ltd. (2020) 11 SCC 782, the respondent continued in possession after the expiry of lease period. A suit for possession was filed without serving a notice under Section 106 of the TP Act. The stand of the defendant was that he was a tenant holding over. Such argument was not accepted and it was held that after the expiry of lease period in terms of unregistered document of lease, the possession of the respondent was that of a tenant at sufferance. In view thereof, as owners, the appellants were entitled to possession of the land in terms of Article 65 of the Limitation Act as the possession of respondent was that of a tenant at sufferance. (Referred to in Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393)

  • (Note: Article 67 deals with right of the “landlord” to claim possession after determination of tenancy; and Article 65 deals with recovery on “title”. Unless there is no adverse-possession-claim from the tenant such a suit under Art. 65, on title, will not be barred. In sum, a “landlord” can recover under Art. 67 on the basis of determination of tenancy; but, “title” holder alone can recover under Art. 65.)

In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, it is observed as under:

  • “After the expiry of lease period, and in the absence of payment of rent by the lessee, the status of the lessee will be that of tenant at sufferance and not a tenant holding over. Section 116 of the TP Act confers the status of a tenant holding over on a yearly or monthly basis keeping in view the purpose of the lease, only if the lessor accepts the payment of lease money. If the lessor does not accept the lease money, the status of the lessee would be that of tenant at sufferance.”

The court referred the  following decisions in this regard:

  • Bhawanji Lakhamshi and Others v. Himatlal Jamnadas Dani and Others , (1972) 1 SCC 388
  • Badrilal v. Municipal Corpn. of Indore  (1973) 2 SCC 388
  • R.V. Bhupal Prasad v. State of A.P and Others 15 (1995) 5 SCC 698
  • Sevoke Properties Ltd. v. West Bengal State Electricity Distribution Company Ltd. (2020) 11 SCC 782

Possession as a Tenant at Sufferance – should be without asserting Hostile Title

In Sheo Dulare Lal Sah v. Anant Ram, AIR 1954 All. 475, it was held that in order to create a tenancy at sufferance the tenant should have lawfully entered into possession in recognition of the landlord’s superior title and should have continued to remain in possession in the same right after the termination of the tenancy without asserting any title hostile to that of the landlord. The Court held as under:

  • “12. In order to create a tenancy at sufferance the tenant should have lawfully entered into possession in recognition of the landlord’s superior title and should have continued to remain in possession in the same right after the termination of the tenancy without asserting any title hostile to that of the landlord and without his assent or dissent. The continuance in possession should be due to the laches of the owner in not asking for payment of the rent or vacation of the premises or taking over possession of the property. In Corpus Juris Secundum, Vol. 51, p. 780,  175, it is pointed out that:
    • “The holding of a tenant at sufferance is the most shadowy estate recognized at common law, and practically the only distinction between such a tenant’s holding and the possession of a trespasser is that the land-owner may, by his acquiescence, at any time base on the tenancy at sufferance the relation of landlord and tenant, which he cannot establish at law against a mere trespasser, and that the tenant cannot be subjected to an action in trespass before entry or demand for possession.”
  • The law thus enunciated is in line with the provisions of Section 116 of the Transfer of Property Act (No. 4 of 1882) which pointed out that:
    • “If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased as specified in S. 106.”
  • (Quoted in Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393)

Whether Possession of the Tenant could be Adverse to Landlord

S. 116 (holding-over) of the TP Act

To the question – whether the possession of the tenant would become adverse to the landlord, upon the expiration of the tenancy period, merely because the tenant has not paid rent is considered by the Bombay High Court in Sidram Lachmaya v. Mallaya Lingaya Chilaka, ILR 1949 Bom 135 (FB) with reference to S. 116 (holding-over) of the Transfer of Property Act.

S. 108(q) of the TP Act (possession remains permissive till restored to landlord)

The Delhi High Court considered the matter in MEC India Pvt. Ltd. v. Lt. Col. Inder Maira 80 (1999) DLT 679, in terms of Section 108(q) of the TP Act (unless the landlord is actually put into possession, the premises remain under a tenancy; that is, a semblance of relationship subsists) and his continuing in possession is expressive of his continuing stand that the tenancy, in whatever form, continues and not adversely to the landlord till he has unequivocally renounced his status as a tenant and asserted hostile title, but even that appears to be doubtful, for in law his possession remains permissive till it has been actually restored to the landlord.

Referring these decisions it is observed in MEC India Pvt. Ltd. v. Lt. Col. Inder Maira 80 (1999) DLT 679, that there is presumption, in law, in favour of the continuity of the tenancy and against the possession of the tenant becoming adverse. It is held in this decision as under:

  • “Furthermore, the doctrine of tenant estoppel, which continues to operate even after the termination of the tenancy, debars a tenant who had been let into possession by a landlord, from disputing the latter’s title or pleading adverse possession, without first openly and actually surrendering possession of the tenanted premises and restoring them to the landlord. 
  • 42. A tenant who upon determination of the tenancy does not deliver up possession to the landlord as required by Section 108(q), cannot be heard to say that he is not a tenant—be he one at sufferance or be he one from month-to-month. Therefore, unless the landlord is actually put into possession, the premises remain under a tenancy, which unless assented to by the landlord, has the character of one at sufferance.” (Quoted in: Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393)

Principle of ‘Tenant at Sufferance’ – Device to Avoid ‘Trespass’ and Adverse Possession

In MEC India Pvt. Ltd. v. Lt. Col. Inder Maira, 80 (1999) DLT 679, it is held further as under:

  • “43. Thus, a tenant at sufferance is one who wrongfully continues in possession after the extinction of a lawful title and that a tenancy at sufferance is merely a legal fiction or device to avoid continuance in possession from operating as a trespass. A tenant remaining in possession of the property after determination of the lease does not become a trespasser, but continues as a tenant at sufferance till possession is restored to the landlord. The possession of an erstwhile tenant is juridical and he is a protected from dispossession otherwise than in due course of law. Although, he is a tenant, but being one at sufferance as aforesaid, no rent can be paid since, if rent is accepted by the landlord he will be deemed to have consented and a tenancy from month-to-month will come into existence. Instead of rent, the tenant at sufferance and by his mere continuance in possession is deemed to acknowledge both the landlord’s title and his (tenant’s) liability to pay mesne profits for the use and occupation of the property.
  • 44. To sum up the legal position or status of a lessee whose lease has expired and whose continuance is not assented to by the landlord, is that of a tenant at sufferance. If, however, the holding over has been assented to in any manner, then it becomes that of a tenant from month-to-month. Similar, i.e. from month-tomonth, is the status of a lessee who comes into possession tinder a lease for a period exceeding one year but unregistered. He holds it not as a lessee for a fixed term, but as one from month-to-month or year-to-year depending on the purpose of the lease. If upon a tenant from month-to-month (or year-to-year) and in either of the aforesaid two contingencies, a notice to quit is served, 29 then on the expiry of the period, his status becomes of a tenant at sufferance. Waiver of that notice, or assent in any form to continuation restores to him his status as a tenant from month-to-month, but capable, of once again being terminated with the expiry of any ensuing tenancy month.” (Quoted in: Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393)

Claim of Adverse Possession by Tenant

In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, the claim of adverse possession by the tenant was negatived by the Apex Court on the following grounds:

  • The respondent-tenant had admitted the ownership of the landlord in earlier proceedings.
  • Such plea operates as estoppel. The subsequent claim of adverse possession of the tenant as owner is not sustainable.
  • The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner.
  • He has also not surrendered possession before asserting hostile, continuous and open title to the knowledge of the true owner. (In terms of Sec. 108(q) of the TP Act possession of tenant remains permissive till it has been actually restored to the landlord.)
  • The claim of adverse possession without admitting the title of the real owner is not tenable. (Such question has been examined by the Apex Court in  Uttam Chand v. Nathu Ram,  (2020) 11 SCC 263, AIR  2020 SC 461).

Acceptance of Rent, After Issuing Quit Notice is Not Waiver

In Sarup Singh Gupta v. S. Jagdish Singh, AIR 2006 SC 1734: (2006) 4 SCC 205, our Apex Court considered whether mere acceptance of rent, after issuing quit notice by itself constitute an act of the nature envisaged by Section 113, Transfer of Property Act showing an intention to treat the lease as subsisting. It was held as under:

  • “It cannot, therefore, be said that mere acceptance of rent amounts to waiver of notice to quit unless there be any other evidence to prove or establish that the landlord so intended.” (Quoted in: Sameerali v. Muhammed, 2024-1 KLT 20).

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

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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

Previous Owner (of Defendant) is Not a Necessary Party in a Recovery Suit

Taken From: Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits

Saji Koduvath, Advocate, Kottayam

Order 1 rule 10 CPC reads as under:

Rule 10. Suit in name of wrong plaintiff.

  • .(1) Where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted thought a bona fide mistake, and that it is necessary for the determination of the real matter in dispute so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just.
  • (2) Court may strike out or add parties– The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name, of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.
  • (3) No person shall be added as a plaintiff suing without a next friend or as the next friend of a plaintiff under any disability without his consent.

Plaintiff claims Ownership; Suit against Trespasser – Not Necessary to Implead ‘Previous Owners’ (Alleged by the Defendants)

R. K. S.  Builders v. Bhupinder Kumar , 2001-2 Punj LR 804, 2001-2 RCR (Civil) 497.

Facts of the Case

  • Plaintiff alleged that he is owner of the property and that the said property is in the illegal possession of the defendants.
  • The defendants contended that they have purchased the same from its rightful owners.
  • During the pendency of the suit, the defendants have further sold the property to various persons.
  • Application under Order 1 Rule 10 CPC read with Order 6 Rule 17 CPC was filed.

This application was resisted by the defendants, inter alia, on the ground that the plaintiff had not added the previous owners of the property from whom the defendants purchased it. The trial court allowed the Petition.

The High Court, dismissing the Revision Petition, held as under:

  • When the case of the plaintiff is that he is the owner of the property which has been illegally occupied by the defendants, it is not necessary to implead previous (rightful) owners (alleged by the defendants).

Land Reforms Act Conferred Title on Tenants: Previous Owners, Not Necessary Parties

Bir Singh v. Kishan Chand, AIR  2007 HP 24

  • Non-joinder of the previous owners, divested of their ownership by virtue of the Land Reforms Act, and the ownership rights stood conferred upon the tenants, are not necessary parties.

Original Owner Not Necessary Party, When Dispute is Solely Between Purchaser and another

Kaleem Pasha v. Chief Secretary, Government of Karnataka Vidhana, ICC 2018 4 810,

  • In the absence of the plaintiff claiming any relief against the previous owners of a vehicle nor their participation in the suit was in any manner of help in the proper adjudication of the matter and also the disputed fact was solely between the plaintiff and defendant in the original suit, the original owner and the auction purchaser were not necessary parties.

Agreement for sale – Prior owner Necessary Party

Pamujula Narayana v. Ramachandruni Malakondaiah,  2006-3 ALD 278, ALT 2006 4 247.

Facts of the case

  • Suit was for specific performance.
  • Agreement was executed by the defendant as Power of Attorney holder of the Owner.
  • Owner died even prior to the filing of the suit.
  • Plaint was silent about the owner; and read as if PoA was the owner.

Court held:

  • It is well known that the owner of the property agreed to be sold is a necessary party to the suit (and PoA not sufficient).

Suit dismissed if Prior owner, a Necessary Party, is not impleded within Limitation

In the above case, Pamujula Narayana v. Ramachandruni Malakondaiah,  2006-3 ALD 278, ALT 2006 4 247, it was further held –

  • The suit will be barred, in view of Sec. 21 of Limitation Act, if prior owner (or successor) is not  impleaded within time prescribed. 

Vendee Becomes the Sole Owner

In Hardeva v. Ismail, AIR 1970 Raj 167, it was held – if it is possible to determine the rights and interests of the parties, not to dismiss a suit. It was also observed as under:

  • “When the vendor has sold his property and has delivered the possession of the property to the vendee, the vendee becomes the sole owner of the property and it is upto the vendee to defend his title against any person who claims any right in the property. The vendor may be a proper party, but he is not a necessary party inasmuch as an effectual decree can be passed in favour of third person against the vendee.”

Two tests for determining who is a necessary party

It was laid down in the Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All 18 (FB), there were two tests –

  • Firstly, there must be a right to some relief against the defendant, and
  • Secondly, in the absence of such a party it could not be possible to pass an effective decree. (Approved in Deputy Commissioner, Hardoi v. Rama Krishna Narain, AIR 1953 SC 521)

It was further pointed out in the Benares Bank Ltd. v. Bhagwan Das, AIR 1947 All 18 (FB) – where the plaintiff files a suit against a defendant who is not the full owner of the property and has only a limited right, the owner is a necessary party as no effectual decree could be passed against the defendant (Subbaraya Sastri v. Seetha Rama-swami, AIR 1933 Mad 664; Rahima Bi v. Vellore Municipal Council, AIR 1954 Mad 495, Brojanath Bose v. Durga Prosad Singh. (1907) ILR 34 Cal 753, Narahari Mohanti v. Ghanshyam Bel, AIR 1963 Orissa 186, Chenthiperumal Pillai v. D. M. Devasa-hayam, AIR 1956 Trav-Co. 181 (FB), and Chandra Nath Sarma v. Guna Ram Kalita, AIR 1949 Assam 21).

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

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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

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Book No. 2: A Handbook on Constitutional Issues

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

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Is it Mandatory to Lift the Attachment on Dismissal of the Suit? Will the Attachment Orders Get Revived on Restoration of Suit?

Saji Koduvath, Advocate, Kottayam.

Is it Mandatory to Lift the Attachment (before judgment) on Dismissal of the Suit?

  • Yes (Order 38, Rule 9 directs so);
  • hence the attachment will not be (automatically) restored.

Interlocutory Applications Get Revived on Restoration of Suit

In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority found that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of dismissal to show to the contrary, and unless the order of restoration says otherwise. The Apex Court considered the following decisions:

  • .(i) Saranatha Ayyangar v. Muthiah Moopanar, AIR 1934 Mad 49
  • (ii) Bankim Chandra v. Chandi Prasad reported in AIR 1956 Pat 271.
  • (iii) Shivaraya v. Sharnappa reported in AIR 1968 Mysore 283.
  • (iv) Abdul Hamid v. Karim Bux, AIR 1973 All 67.
  • (v) Nandipati Rami Reddi v. Nandipati Padma Reddy, AIR 1978 AP 30.

Dismissal of the Suit in Default, Attachment before Judgment Automatically Ceases

It is pointed out in Vareed Jacob v. Sosamma Geevarghese –

  • Order 38, Rule 9 directs that the Court shall order withdrawal of attachment when the suit is dismissed.
  • Therefore, Rule 9 makes it mandatory for the Court to lift the attachment at the time of the dismissal of the suit.
  • Such a provision is not there under Order 39 or under Order 40.

It is Mandatory to Lift the Attachment on Dismissal of the Suit

In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority relied on the following decisions also:

(i) Raj Chandra Gupta v. Ramesh Kishore reported in AIR 1965 All 546. Relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, it was held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit.

(ii) Nancy John Lyndon v. Prabhati Lal Chowdhury reported in 1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57, C. P. C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. It was further pointed out that the scheme under Order 21, Rule 57 was similar to Order 38, Rule 11 and Rule 11-A, C P C and therefore, it cannot be applied to all interlocutory orders on the same basis.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Will Interlocutory Orders Get Revived on Restoration of Suit?

Saji Koduvath, Advocate, Kottayam.

Will Interlocutory Orders (automatically) Get Revived on Restoration of Suit?

  • Yes;
  • unless the order of dismissal, or of restoration, shows to the contrary.

Is it Mandatory to Lift the Attachment (before judgment) on Dismissal of the Suit?

  • Yes (Order 38, Rule 9 directs so);
  • hence the attachment will not be (automatically) restored.

The authority is -Vareed Jacob v. Sosamma Geevarghese,  (2004) 6 SCC 378.

  • Majority (V. N. Khare, CJ. & S. H. Kapadia, J.) held – if the suit is dismissed for default without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored.
  • But, S.B. Sinha, J. dissented observing –  “… the court cannot say that although such a sale (after the suit is dismissed for default and before the same is restored) shall be valid but the order of attachment shall revive. Such a conclusion by reason of a judge-made law may be an illogical one.”  Quoted in: T.  Ravi v. B.  Chinna Narasimha, 2017-7 SCC 342.

Interlocutory Orders Get Revived on Restoration of Suit

In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority considered the following decisions:

(i) Saranatha Ayyangar v. Muthiah Moopanar, AIR 1934 Mad 49. It was held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as the matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of the third party.

(ii) Bankim Chandra v. Chandi Prasad reported in AIR 1956 Pat 271. This case arose under Order 39. It was held that the orders of stay pending disposal of the suit were ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit and, therefore, when the suit, dismissed for default, is restored by the order of the Court all ancillary orders passed in the suit shall revive, unless there is any other factor on record or in the order of dismissal to show to the contrary.

(iii) Shivaraya v. Sharnappa reported in AIR 1968 Mysore 283. It was also a case under Order 39. The question arose whether the restoration of the suit revives ancillary orders passed before the dismissal of the suit. It was held that it depends upon the terms in which the order of dismissal is passed and the terms in which the suit is restored.

If the Court dismisses the suit for default, without any reference to the ancillary orders passed earlier, then the interim orders shall revive as and when the suit is restored. However, if the Court dismisses the suit specifically vacating the ancillary orders, then restoration will not revive such ancillary orders.

(iv) Abdul Hamid v. Karim Bux, AIR 1973 All 67. Relying again on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, the same view has been taken.

(v) Nandipati Rami Reddi v. Nandipati Padma Reddy, AIR 1978 AP 30. It was held that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the Court dismissed the suit for default.

Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the Court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.

Nagar Mahapalika v. Ved Prakash, AIR 1976 All. 264 – an Odd Decision

In Nagar Mahapalika v. Ved Prakash, AIR 1976 All. 264, it was observed with respect to interim injunction, relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, that the interim injunction would not automatically revive on restoration of the suit dismissed for default.

The Supreme Court (in Vareed Jacob v. Sosamma Geevarghese) did not approve this decision and observed –

  • “However, this is the only judgment which has equated order of temporary injunction with attachment before judgment as interlocutory orders without considering provisions of Order 38, Rule 9 and Rule 11.”

The Apex Court continued  –

  • “This has not been noticed by the Allahabad High Court in the case of Nagar Mahapalika v. Ved Prakash (supra). All the earlier judgments of the Allahabad High Court related to Order 38 and not to Order 39. Moreover as stated above, attachment is a part of execution process. It is granted to protect the decree. Under Order 38, Rule 11 it is further provided that when the suit is decreed the Courts will continue attachment before judgment and the plaintiff is not required to re-apply for attachment. The scheme of Order 38 is different from Order 39 or Order 40. Hence, we cannot compare attachment under Order 38 with power of the Court to grant temporary injunction under Order 39 as interlocutory orders. Similarly, Order 21, Rule 57 indicates the duty on the Courts to order whether the attachment shall continue or cease on the dismissal of the execution suit.”

Dismissal of the Suit in Default, Attachment before Judgment Automatically Ceases

It is pointed out in Vareed Jacob v. Sosamma Geevarghese –

  • Order 38, Rule 9 directs that the Court shall order withdrawal of attachment when the suit is dismissed.
  • Therefore, Rule 9 makes it mandatory for the Court to lift the attachment at the time of the dismissal of the suit.
  • Such a provision is not there under Order 39 or under Order 40.

It is Mandatory to Lift the Attachment on Dismissal of the Suit

In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority relied on the following decisions also:

(i) Raj Chandra Gupta v. Ramesh Kishore reported in AIR 1965 All 546. Relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, it was held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit.

(ii) Nancy John Lyndon v. Prabhati Lal Chowdhury reported in 1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57, C. P. C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. It was further pointed out that the scheme under Order 21, Rule 57 was similar to Order 38, Rule 11 and Rule 11-A, C P C and therefore, it cannot be applied to all interlocutory orders on the same basis.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Adverse Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Will

Arbitration

Divorce/Marriage

Negotiable Instruments Act

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India