Government of Kerala v. Joseph – Law on Adverse Possession Against Government

Taken from: How to Plead Adverse Possession?Adverse Possession: An Evolving Concept

Saji Koduvath Advocate, Kottayam

PART I

Introduction

In Govt. of Kerala v. Joseph, AIR 2023 SC 3988, our Apex Court has emphasised (August 9, 2023), that the Courts have to consider the question of adverse possession “more seriously” when it is claimed on a land that belongs to the Government.

In this case, the judgment of the first appellate court which observed that ‘the title of the Government on land cannot be lost by placing reliance on “casual advertence” or on the basis of “scanty material” ’ was restored by the Apex Court. The Apex Court further held –

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

Adverse Possession – Basic Ingredients

The Apex Court also alluded to the following often repeated the basic ingredients to attract the adverse possession, with reference to various previous earlier decisions including the Privy Council –

  • i. the possession must be open, clear, continuous and hostile to the claim or possession of the other party;
  • ii. all three classic requirements must coexist – nec vi (i.e., adequate in continuity); nec clam (i.e., adequate in publicity); and nec precario (i.e., adverse to a competitor), in denial of title and knowledge.

Plea of Title and Adverse Possession – Contradictory Pleas

In Government of Kerala v. Joseph, AIR 2023 SC 3988, the Supreme Court has affirmed the law as under:

  • “49. Claim of independent title and adverse possession at the same time amount to contradictory pleas. …… ..”

Decisions referred to in Govt. of Kerala v. Joseph

The decisions referred in this case (Govt. of Kerala v. Joseph) include the following –

  • 1.  Privy Council in Radhamoni Debi v. Collector of Khulna, ILR 27 Cal. 944; (1900) 27 Ind App 136 (PC); 1900 SCC OnLine PC 4 – The possession required must be adequate in continuity, in publicity, and in extent.
  • 2.  Privy Council in Perry v. Clissold, [1907] A.C. 73 – peaceably possessed land; rightful owner did not come forward and assert his title within the period of Limitation.
  • 3. Privy Council in Secy. of State for India in Council v. Debendra Lal Khan, (1933) 61 IA 78 : 1934 All LJ 153 (PC) – the possession must be overt and without any attempt at concealment so that the person against whom time is running, ought if he exercises due vigilance, to be aware of what is happening and if the rights of the Crown have been openly usurped it cannot be heard to plead that the fact was not brought to its notice.
  • 4. Privy Council in Council Maharaja Sri Chandra Nandi v. Baijnath Jugal Kishore, AIR 1935 PC 36 – possession should be overt and without any attempt at concealment, so that the person against whom time is running ought, if he exercises due vigilance, to be aware of what is happening.
  • 5. P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, adverse possession should be nec vi, nec clam, nec precario — that is the possession must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. It must be with the required animus also.
  • 6. Gaya Prasad Dikshit v. Dr. Nirmal Chander (1984) 2 SCC 286 – on termination of licence there must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than 12 years is not enough. (also Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591; Mallikarjunaiah v. Nanjaiah (2019) 15 SCC 756).
  • 7 .Parsinni v. Sukhi (1993) 4 SCC 375 – possession must be ‘nec vi, nec clam, nec precario’ i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.
  • 8. Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 – possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.
  • 9. Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543 : AIR 1995 SC 895 – “15. Where possession can be referred to a lawful title, it will not be considered to be adverse. The reason being that a person whose possession can be referred to a lawful title will not be permitted to show that his possession was hostile to another’s title. One who holds possession on behalf of another, does not by mere denial of that other’s title make his possession adverse so as to give himself the benefit of the statute of limitation. Therefore, a person who enters into possession having a lawful title, cannot divest another of that title by pretending that he had no title at all.”
  • 10. Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639  – “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”
  • 11. State of Rajasthan v. Harphool Singh  (2000) 5 SCC 652 –  “12. So far as the question of perfection of title by adverse possession and that too in respect of public property is concerned, the question requires to be considered more seriously and effectively for the reason that it ultimately involves destruction of right/title of the State to immovable property and conferring upon a third-party encroacher title where he had none.”  “When the property was a vacant land before the alleged construction was put up, to show open and hostile possession which could alone in law constitute adverse to the State, in this case, some concrete details of the nature of occupation with proper proof thereof would be absolutely necessary and mere vague assertions cannot by themselves be a substitute for such concrete proof required of open and hostile possession.”
  • 12.  Balkrishna v. Satyaprakash (2001) 2 SCC 498  – Mere passing of an order of ejectment neither causes his dispossession nor discontinuation of his possession.
  • 13. V. Rajeshwari v. T.C. Saravanabava, (2004) 1 SCC 551 – “…A plea not properly raised in the pleadings or in issues at the stage of the trial, would not be permitted to be raised for the first time at the stage of appeal…” 
  • 14.  Karnataka Board of Wakf v. Govt. of India  (2004) 10 SCC 779  – there must be exclusive possession and the animus possidendi;  possession must be  “nec vi, nec clam, nec precario”, that is, peaceful, open and continuous. It must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful dispossession of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (This case was relied on in M. Venkatesh v. Bangalore Development Authority (2015) 17 SCC 1 ;  Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729 .
  • 15.  Annakili v. A. Vedanayagam  (2007) 14 SCC 308 – Possessor must have animus possidendi at the commencement of the possession and hold the land adverse to the title of the true owner and  continued for 12 years. Mere possession would not ripen into possessory title.
  • 16. P.T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59   – “34. The law in this behalf has undergone a change. In terms of Articles 142 and 144 of the Limitation Act, 1908, the burden of proof was on the plaintiff to show within 12 years from the date of institution of the suit that he had title and possession of the land, whereas in terms of Articles 64 and 65 of the Limitation Act, 1963, the legal position has underwent complete change insofar as the onus is concerned : once a party proves its title, the onus of proof would be on the other party to prove claims of title by adverse possession….”
  • 17. Des Raj and Others v. Bhagat Ram (2007) 9 SCC 641 (two- Judge Bench) this Court observed – possession must be in hostile declaration of his title vis-à-vis his co-owners and they were in know thereof.
  • 18.  L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229 – permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
  • 19.  Chatti Konati Rao v. Palle Venkata Subba Rao, (2010) 14 SCC 316 – Animus possidendi is a requisite ingredient of adverse possession. Mere possession does not ripen into possessory title until the possessor holds the property adverse to the title of the true owner. The date on which he came in possession, nature of possession, the factum of possession, knowledge to the true owner, duration of possession and that possession was open and undisturbed – must be established. (Referred to in: Brijesh Kumar v. Shardabai, (2019) 9 SCC 369).
  • 20. Mandal Revenue Officer v. Goundla Venkaiah  (2010) 2 SCC 461 – “…It is our considered view that where an encroacher, illegal occupant or land grabber of public property raises a plea that he has perfected title by adverse possession, the court is duty-bound to act with greater seriousness, care and circumspection. Any laxity in this regard may result in destruction of right/title of the State to immovable property and give an upper hand to the encroachers, unauthorised occupants or land grabbers.”
  • 21. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 – The State cannot claim the land of its citizens by way of adverse possession.
  • 22.  Janata Dal Party v. Indian National Congress, (2014) 16 SCC 731 – “…the entire burden of proving that the possession is adverse to that of the plaintiffs, is on the defendant…”
  • 23.  State of Uttrakhand v. Mandir Sri Laxman Sidh Maharaj  (2017) 9 SCC 579 – “…The courts below also should have seen that courts can grant only that relief which is claimed by the plaintiff in the plaint and such relief can be granted only on the pleadings but not beyond it. In other words, courts cannot travel beyond the pleadings for granting any relief…” (Relied on in Dharampal (Dead) v. Punjab Wakf Board, (2018) 11 SCC 449)
  • 24.  M Siddiq (D) through LRs v. Mahant Suresh Das   (2020) 1 SCC 1 – possession must be peaceful, open and continuous; it must meet the requirement of being ‘nec vi nec claim and nec precario’. possession must be adequate in continuity and in the public because the possession has to be to the knowledge of the true owner in order for it to be adverse. There must be adequate pleadings and sufficient evidence.
  • 25. Narasamma v. A. Krishnappa, (2020) 15 SCC 21 (three-Judge Bench) – plea of adverse possession can be used not only as a shield by the defendant, but it can be used as a sword by the plaintiff. (Followed Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729).

PART II

Adverse Possession according to the Limitation Act of 1963 and of 1908

  • Under the (present) Limitation Act, 1963 (Article 65),  adverse possession arises, only ‘by the positive and hostile acts’ of the trespasser; and, the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years. Therefore, mere 12 years’ possession by trespasser is insufficient to bring home adverse possession.
  • The true owner, therefore, can bring the suit based on title even after 12 years (of losing possession), for recovery, and he will lose property only if the trespasser proves ‘adverse‘ possession.
    • Article 142 of the (repealed) Limitation Act, 1908, which dealt with Adverse Possession, did not put down the term ‘adverse’. Therefore, the true owners lost title, under this (1908) Act, if they failed to prove possession for 12 years; and they had the burden to show possession within 12 years.
    • Under the old Act of 1908, a true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).
    • Under the old Act of 1908, the trespasser was not required to bring the specific knowledge of the owner (knowing him). Such a requirement was insisted only where an ouster of title was needed (against co-owner or person in permissive possession).
  • The present Act of 1963 casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing the true owner and bringing his attention to the ‘trespass’, making specific and required pleadings).
  • If no adverse possession, mere possession, of trespasser, howsoever long, will not lose the right of the true owner to recover property on the basis of his title. See:
    • Government of Kerala v. Joseph, AIR 2023 SC 3988;
    • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 461,
    • Ram Nagina Rai v. Deo Kumar Rai, 2019-13 SCC 324,
    • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756,  
    • T. Anjanappa v. Somalingappa, 2006-7 SCC 570,
    • Chatti Konati Rao v. Palle Venkata Subba  Rao, 2010-14 SCC 316;
    • Gaya Prasad Dikshit v. Dr. Nirmal Chander, 1984-2 SCC 286.

PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, is an authoritative decision of the Supreme Court that discussed various views on adverse possession, in the light of Limitation Act, 1963. It is observed in this decision as under:

  • “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned# the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”
  • “Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object.“

Period of Limitation against Government is 30 years

The limitation period for acquiring adverse possession against Government is 30 years. See Article 112 of the Limitation Act. Under the old Act of 1908 it was 60 years.

How to Plead Adverse Possession 

It is really a troublesome matter for the advocates. Karnataka Board of Wakaf v. Govt of India – AIR 2004 SC 2096; T. Anjanappa v. Somalingappa – [(2006) 7 SCC 570]; and PT Munichikkanna Reddy v. Revamma – AIR 2007 SC 1753, guide us in this field. It may be necessary to plead the following modules.

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

And, it is appropriate to plead ‘hostile and open’ possession as under:

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

Modern propositions as to Adverse Possession

The 3 important modern propositions as to adverse possession (in India) are:

  • 1.  Mere ‘animus possidendi’, not enough; there must have animus to dispossess.
    • Note: ‘Wilful neglect element’ (that is, the owner has abandoned the property) is not given a go bye. Thus, there is a two-pronged enquiry – (i) animus to dispossess by the trespasser (ii) wilful neglect element by the true owner.
  • 2. Trespasser must know who the true owner is.
  • 3. Burden to plead and prove adverse possession is upon the defendant (trespasser).

Permissive Possession will not bring-forth Adverse Possession

Permissive possession, including that of a co-owner or of a licensee or of an agent, will not constitute the claim of adverse possession unless, the trespasser pleads and prove “ouster” (of title of true owner) with cogent evidence in a high degree and great vigor.

Our Apex Court, in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314, following Debendra Lal Khan case, (1933-34) 61 IA 78 : AIR 1934 PC 23], observed as under :

  • “4. … But it is well-settled that in order to establish adverse possession of one coheir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. … the burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.” (Quoted in: Hemaji Waghaji Jat v. Bhikabhai Khengarbhai Harijan, (2009) 16 SCC 517).
  • L.N. Aswathama v. P. Prakash  (2009) 13 SCC 229 – permissive possession or possession in the absence of Animus possidendi would not constitute the claim of adverse possession.
  • Thakur Kishan Singh v. Arvind Kumar (1994) 6 SCC 591 – possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.

Plea of Title and Adverse Possession Mutually Destructive

In Rattan Lal v. Ragunath, 18 Aug 2023, 2023 Supreme (Del) 3938, quoting Government of Kerala v. Joseph, 2023 SCC OnLine SC 961, it is held as under:

  • “11.2. Therefore, the plea of adverse possession raised by the Appellants as a new plea in first appeal is inconsistent with the case setup in the written statement and the trial. In law, the Appellants are precluded from taking the said plea in view of the decision of the Coordinate Bench of this Court in Bharat Bhushan Jain & Anr. v. UOI & Ors., 2014 SCC OnLine Del 3577, wherein this Court has held that the plea of ownership by title and adverse ownership cannot be raised together being inconsistent and mutually destructive. The plea of adverse possession is a question of fact and cannot be raised in appeal only on the basis of prolonged possession of suit property in the absence of the proof of the other ingredients necessary for proving the said defence including the fact that the possession was hostile to the true owner of the property.”

In Rama Kanta Jain v. M.S. Jain, AIR 1999 (Del) 281, it was held as under:

  • “18. There is another aspect of the matter. The mere fact that the defendants have come forward with a plea of adverse possession, means that they admit the plaintiff to be the true owner. For a plea of ownership on the basis of adverse possession, the first and the foremost condition is, that the property must belong to someone else other than the person pleading his title on the basis of adverse possession, In the instant case the defendants have put forward defences which are irreconcilable’ and mutually destructive and inconsistent with one another.’” (Quoted in: Anu Gupta VS Vijay Gupta, 08 Aug 2022, 2022 Supreme(Del) 1198).

Dispossession and Ouster

Dispossession implies ouster; and, ouster implies dispossession. It is definite that “dispossession” is an important element in the 1963 Limitation Act to attract Adverse Possession.

In the old Act the requirement of ouster needed only in case of permissive possession (in other cases, the true owner lost right to recover property if he did not come forward within 12 years – See: Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707)).

Read Blog: Ouster & Dispossession in Adverse Possession

Degree of Proof on Title in a Civil Case is ‘High Degree of Probability‘

In R.V.E. Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: (2003) 8 SCC 752, the law is stated in the following terms :

  • “Being a civil case, the plaintiff cannot be expected to proof his title beyond any reasonable doubt; a high degree of probability lending assurance of the availability of title with him would be enough to shift the onus on the defendant and if the defendant does not succeed in shifting back the onus, the plaintiff’s burden of proof can safely be deemed to have been discharged. …”

Is declaration necessary for claiming Adverse Possession by a Plaintiff?

Yes. Declaration is needed in the following circumstances:

  1. As Introductory/preliminary to grant (1) Injunction or (2) Recovery (Unnikrishnan v. Ponnu Ammal: AIR 1999 Ker 405
  2. When serious denial or cloud on title (or right): Anathula Sudahakar v. Buchi Reddi: AIR 2008 SC 2033
  3. Asserted title or civil right is not clear, simple and straight-forward; or, not well-established (lawful possession). (Eg. inchoate rights – started; but, not full-blown, until the such title is upheld by a competent court; like title on adverse possession.)
  4. Complicated or complex questions of fact and law to be ‘adjudicated’ (Anathula: 2008 SC 2033)
  5. Insurmountable obstacle – Md. Noorul Hoda v. Bibi Raifunnisa : (1996) 7 SCC 767
  6. Make clear what is doubtful – as to legal character and title. ILR 1970-2 (Del) 433: Eg. Suit by trespasser claiming adverse possession: Darshan Kumari v. Kaushalya Devi: 1990 JKLR 208; 1991 Kash LJ 1 (R.P. Sethi, J) for dispelling cloud: AIR 1953 (Gau) 162.

It appears, from the thrust of decisions, that such a declaration is not necessary when a defendant claims the right.

Title dispute on Forest Land

When title dispute was arisen as to title of land (Forest land or private land) and plantation produce, in  Aliakutty Paul v. State of Kerala, 1995-2 Ker LT 93, it is held as under:

  • “It is open to the petitioner to approach the civil court and claim a declaration of her title to the plantation produce kept stored in the godowns and stores of the Rosary Estate. As and when her title is declared, the petitioner would be entitled to take it away. Until then, it has necessarily to be preserved in safe custody.”

Should the person who claims adverse possession necessarily know the true owner?

There is difference of opinion.

It can be said – “The person who claims adverse possession must necessarily know the true owner, (for) then only it becomes ‘adverse’ as stated in Art. 65 of the Limitation Act.

In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895  (two-Judge Bench) our Apex Court held as under:

  • “A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed.”

But, in the Report of the 22nd Law Commission (From 21st February, 2020 to 31st August, 2024) it is stated as under:

  • “7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).”

The Consultation Paper-cum-Questionnaire prepared by the 19th Law Commission is attached to the Report of the 22nd Law Commission, as “Annexure – 1”. Para 2.6 of the same reads as under:

  • “2.6 It was clarified by a three-Judge Bench of the Supreme Court in Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707,
    • “All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not the case here. “
  • “It was also clarified in a series of decisions that while possession shall be open and exclusive and in assertion of one’s own right, the fact that the possessor did not know who the real owner was, will not make his possession any the less adverse. There are certain passing observations in some judgments of the Supreme Court rendered by two learned Judges that the plea of adverse possession is not available if the adverse possessor does not know who the true owner is; but, the law declared by the larger Bench decisions of the Supreme Court obviously prevails.“

It appears that the Law Commission inappropriately relied on the Three Judge Bench decision. On a careful reading of this decision, Kshithish Chandra Bose, it can be seen that this decision arose from a matter that emerged prior to 1963 Limitation Act, and when the 1908 Limitation Act reigned the field.

Under the 1908 Act, the true owner was bound to file suit for recovery within 12 years of losing possession. Therefore, it was immaterial – whether the trespasser ‘acquired’ right of ‘adverse‘ possession against the true owner; knowing him and bringing his attention to the ‘trespass’, or not (as required in 1963 Act). 

While narrating the facts, it is observed in Kshithish Chandra Bose, as under:

  • “In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. I of Ranchi Municipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912 which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even if the land belonged to the defendant municipality, he had acquired title by prescription by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.“

From the above, it comes out that the person who claims adverse possession must necessarily know the true owner; and that Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, cannot be used to support  the plea that adverse possession is available even if the adverse possessor does not know who the true owner is.

Kerala High Court went wrong in K.T. Kurungottukandi Rarichakutty v. Aranda Rarichan, 2018-5 KHC 599

Kerala High Court also inappropriately relied on the Three Judge Bench decision of the Supreme Court which held in Kshitish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, that the person who claims adverse possession adverse possession need not know the true owner.

Adverse Possession Against Government

  • There is presumption available in favour of the government – that is, all lands which are not the property of any person or which are not vested in a local authority, belong to the government.
  • All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land.

In R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203, it was observed that that the Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects. The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government.

The Apex Court held as under:

  • “15. Suits for declaration of title against the government, though similar to suits for declaration of title against private individuals differ significantly in some aspects.
  • The first difference is in regard to the presumption available in favour of the government. All lands which are not the property of any person or which are not vested in a local authority, belong to the government. All unoccupied lands are the property of the government, unless any person can establish his right or title to any such land. This presumption available to the government, is not available to any person or individual.
  • The second difference is in regard to the period for which title and/or possession have to be established by a person suing for declaration of title. Establishing title/possession for a period exceeding twelve years may be adequate to establish title in a declaratory suit against any individual. On the other hand, title/possession for a period exceeding thirty years will have to be established to succeed in a declaratory suit for title against government. This follows from Article 112 of Limitation Act, 1963, which prescribes a longer period of thirty years as limitation in regard to suits by government as against the period of 12 years for suits by private individuals. The reason is obvious. Government properties are spread over the entire state and it is not always possible for the government to protect or safeguard its properties from encroachments. Many a time, its own officers who are expected to protect its properties and maintain proper records, either due to negligence or collusion, create entries in records to help private parties, to lay claim of ownership or possession against the government.
  • Any loss of government property is ultimately the loss to the community. Courts owe a duty to be vigilant to ensure that public property is not converted into private property by unscrupulous elements.
  • 16. Many civil courts deal with suits for declaration of title and injunction against government, in a casual manner, ignoring or overlooking the special features relating to government properties. Instances of such suits against government being routinely decreed, either ex parte or for want of proper contest, merely acting upon the oral assertions of plaintiffs or stray revenue entries are common. Whether the government contests the suit or not, before a suit for declaration of title against a government is decreed, the plaintiff should establish, either his title by producing the title deeds which satisfactorily trace title for a minimum period of thirty years prior to the date of the suit (except where title is claimed with reference to a grant or transfer by the government or a statutory development authority), or by establishing adverse possession for a period of more than thirty years.
  • In such suits, courts cannot, ignoring the presumptions available in favour of the government, grant declaratory or injunctive decrees against the government by relying upon one of the principles underlying pleadings that plaint averments which are not denied or traversed are deemed to have been accepted or admitted.
  • A court should necessarily seek an answer to the following question, before it grants a decree declaring title against the government :
    • whether the plaintiff has produced title deeds tracing the title for a period of more than thirty years; or
    • whether the plaintiff has established his adverse possession to the knowledge of the government for a period of more than thirty years, so as to convert his possession into title.
    • Incidental to that question, the court should also find out whether the plaintiff is recorded to be the owner or holder or occupant of the property in the revenue records or municipal records, for more than thirty years, and
    • what is the nature of possession claimed by the plaintiff, if he is in possession – authorized or unauthorized; permissive; casual and occasional; furtive and clandestine; open, continuous and hostile; deemed or implied (following a title).
  • 17. Mere temporary use or occupation without the animus to claim ownership or mere use at sufferance will not be sufficient to create any right adverse to the Government. In order to oust or defeat the title of the government, a claimant has to establish a clear title which is superior to or better than the title of the government or establish perfection of title by adverse possession for a period of more than thirty years with the knowledge of the government.
  • To claim adverse possession, the possession of the claimant must be actual, open and visible, hostile to the owner (and therefore necessarily with the knowledge of the owner) and continued during the entire period necessary to create a bar under the law of limitation. In short, it should be adequate in continuity, publicity and in extent. Mere vague or doubtful assertions that the claimant has been in adverse possession will not be sufficient. Unexplained stray or sporadic entries for a year or for a few years will not be sufficient and should be ignored.
  • As noticed above, many a time it is possible for a private citizen to get his name entered as the occupant of government land, with the help of collusive government servants. Only entries based on appropriate documents like grants, title deeds etc. or based upon actual verification of physical possession by an authority authorized to recognize such possession and make appropriate entries can be used against the government. By its very nature, a claim based on adverse possession requires clear and categorical pleadings and evidence, much more so, if it is against the government. Be that as it may.” (Quoted in: Bhagi Ram v. State of H P (2023 April 10), Nathu Ram v. D D A (2022 February 1.)

End Notes:

How to deal with Govt. property upon which title is claimed by plaintiffs is dealt with in Union of India v. Ibrahim Uddin: (2012) 8 SCC 148.

Facts, in a nutshell, were this –

  • Plaintiff Ibrahim Uddin filed the Suit for declaration that he was the owner of the suit property originally remained with the Maratha Government.
  • The ancestors of the plaintiff having close association with the Maratha Government, were made a grant in respect of the suit land in the year 1800.
  • The land was partitioned between the ancestors in 1819.
  • The Union of India claimed title over the suit land, thus the suit.
  • UoI averred that the land belonged to it, a part of which has been leased out to several persons for agriculture work and their lease has been renewed from time to time.
  • As they became unauthorised occupants, proceedings had been initiated in accordance with law and eviction order had been passed against the occupants/tenants.
  • The trial Court came to the conclusion that the plaintiff could not prove any kind of grant by the Maratha Government to his ancestors in 1800.
  • Plaintiff failed to prove the partition between his ancestors in 1819.
  • The lease deed alleged to have been executed in favour of the Military Estate Officer under the Union of India, was not successfully proved.
  • In view of the above, the suit was dismissed.

The Appeals –

  • The First Appeal was allowed on conclusion that Maratha Government had made the gift of land in favour of plaintiff’s forefathers which was subsequently partitioned.
  • The appellant UoI did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn under Section 114 clause(g) of the Indian Evidence Act, 1872.
  • The registered partition deed stood duly proved and it was the proof of the title of the plaintiff.
  • In the appeal the Will executed by his maternal grandfather dated 1 . 3 . 1929 in his favour bequeathing the suit property was marked, under Order XLI Rule 27 CPC .
  • The First Appeal was allowed and the Second Appeal was dismissed. Hence, the appeal before the Supreme Court.

The Apex Court Findings –

  • It is not permissible to claim the relief of declaration without seeking consequential relief by virtue of the proviso of Section 34 of Specific Relief Act, 1963  (Relying on: Ram Saran v. Ganga Devi, AIR 1972 SC 2685, Vinay Krishna v. Keshav Chandra, AIR 1993 SC 957, Gian Kaur v. Raghubir Singh, (2011) 4 SCC 567).
  • There was nothing on record to prove the grant/gift by the Maratha Government in favour of ancestors of plaintiff/respondent No.1 in the year 1800.
  • A case not specifically pleaded can be considered by the court. The pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In absence of pleadings, the court cannot make out a case not pleaded, suo motu (Bachhaj Nahar v. Nilima Mandal, AIR 2009 SC 1103 relied on). Hence the claim of title by virtue of the Will cannot be taken note of being not based on pleadings.
  • The Will had been executed prior to the birth of the plaintiff.  it could not have been taken into consideration without proper scrutiny of facts and, that too, without any pleading.
  • The alleged partition in the year 1819 even if had taken place, cannot be a proof of title.
  • Presumption under Section 90 of the Evidence Act in respect of 30 years’ old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it.
  • The rent note produced by the UoI (allegedly executed by the forefathers of the plaintiff) did not prove anything. It could not be linked to prove the title. It was rejected observing as under:
    • “The rent note produced by the appellant/defendant No.1 before the court below does not prove anything in favour of the plaintiff/respondent. The same being a vague document is incapable of furnishing any information and, thus, is liable to be rejected. The said document does not make it clear as who has executed it and in whose favour the same stood executed. It does not bear any date as it cannot be ascertained when it was executed. The lease deed cannot be executed without the signature/thumb impression of the lessee. The said lease does not contain any signature/thumb impression of any lessee and also the tenure of the lease has not been mentioned therein. The rent has been mentioned as Rs.22/- without giving any detail as to whether it was per day, fortnightly, monthly, quarterly or yearly or for ever. More so, there is no reference to the said rent note in the pleadings contained in the plaint, therefore, it is just to be ignored.”
  • UoI produced the certified copies of the Extract from General Land Register prepared on 15.3.1948 in support of its case and denying title of the plaintiff.
  • The High Court rejected the same on the ground that the partition among the ancestors of the plaintiff had taken place prior to enactment of the Cantonment Land Administration Rules, 1925, though there is nothing on record to prove the said partition.
  • The General Land Register maintained under the Cantonment Act, 1924 and the Rules made thereunder are public documents and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act.
  • It is settled legal position that the entries made in General Land Register maintained under Cantonment Land Administration Rules is conclusive evidence of title.
    • (Vide: Chief Executive Officer v. Surendra Kumar Vakil, AIR 1999 SC 2294; and 
    • Union of India v. Kamla Verma, (2010) 13 SCC 511).
  • If the Will was ignored, there was nothing on record to show as how the plaintiff  could claim the title. The truth of contents of a document have to be proved like any other fact.
  • The Will in absence of any pleading could not be taken on record. More so, the Will was not proved in accordance with law i.e. Section 68 of the Evidence Act.
  • The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored.
  • “The appellate courts (first appellate court as well as the High Court) examined the title of government instead of the plaintiff/respondent no.1. Such a course was not warranted. The title of government cannot be disputed. In any event possession of government for decades is not disputed. The plaintiff shifted the case from time to time but failed to prove his title.”
  • “The first appellate court as well as the High Court recorded a finding that the Union of India failed to prove its title over the suit land. The said courts did not realise that this was not the issue to be determined, rather the issue had been as to whether the plaintiff was the owner of the suit land.”

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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

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Contract Act

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Negotiable Instruments Act

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Pleadings in Defamation Suits

Taken from: Law on Damages in Defamation Cases

Jojy George Koduvath

PART I

Key Takeaways

The ingredients of Defamation are –

  1. defamatory statement (harming reputation)
  2. refer to the plaintiff
  3. published before a third party.

Available defences are –

  • (i) Justification by truth,  
  • (ii) Fair and bonafide comment,   
  • (iii) Privilege,
  • (iv) Consent,
  • (v) Apology.

Following Publications are exempted (S. 499 IPC)

  • 1. Truth for public good
  • 2. Public conduct of public servants – in good faith 
  • 3. Matter touching any public question – in good faith 
  • 4. True reports of proceedings of courts
  • 5. Expressing opinion, on merits of case decided in Court – in good faith 
  • 6. Expressing opinion on character of the author – in good faith
  • 7. Censure passed in good faith by person having lawful authority 
  • 8. Accusation preferred in good faith who have lawful authority 
  • 9. Imputation in good faith for protection of his or other’s interests
  • 10. Caution intended for good of person to whom conveyed or for public good.

No absolute privilege to defamatory statements in the pleadings

  • There is difference of opinion.
  • The modern trend is to see that it is ‘qualified privilege’. That is, liability is casted upon the defendant if the defamatory statement is quite unconnected with and irrelevant to the main statement.

The court awards following types of damages.

  • .1. Exemplary/punitive damages 
  • 2. Aggravated damages 
  • 3. Compensatory damages 
  • 4. Contemptuous damage   
  • 5. Nominal damages

PART II

Pleadings – No Strict ‘Denial’ warranted in ‘Damages’

Order VI, rule 1 and 2 of Code of Civil Procedure 1908 lay down the basics of pleading. They read as under:

  • Rule 1: Pleading: “Pleading” shall mean plaint or written statement.
  • Rule 2: Pleading to state material facts and not evidence:
  • (1) Every pleading shall contain, and contain only a statement in a concise form of the material facts on which the party pleading relies for his claim or defence as the case may be, but not the evidence by which they are to be proved.
  • (2) Every pleading shall, when necessary, be divided into paragraphs, numbered consecutively, each allegation being, so far as is convenient, contained in a separate paragraph.
  • (3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in words.

Order 6 rule 4 of the Civil Procedure Code stipulates guidelines for precise pleadings. Order 6 Rule 4 CPC reads as under:

  • “Rule 4. Particulars to be given where necessary: In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleading.”

Order VIII Rule 3, 4 and 5 CPC reads as under:

  • Rule 3: Denial to be specific: It shall not be sufficient for a defendant in his written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact of which he does not admit the truth, except damages.
  • Rule 4: Evasive denial: Where a defendant denies an allegation of fact in the plaint, he must not do so evasively, but answer the point of substance. Thus, if it is alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum or any part thereof, or else set out how much he received. And if an allegation is made with diverse circumstances, it shall not be sufficient to deny it along with those circumstances.
  • Rule 5: Specific denial: (1) Every allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability :
  • Provided that the Court may in it discretion require any fact so admitted to be proved otherwise than by such admission.
  • (2) Where the defendant has not filed a pleading, it shall be lawful for the Court to pronounce judgment on the basis of the facts contained in the plaint, except as against a person under a disability, but the Court may, in its discretion, require any such fact to be proved.
  • (3) In exercising its discretion under the proviso to sub-rule (1) or under sub-rule (2), the Court shall have due regard to the fact whether the defendant could have, or has, engaged a pleader.
  • (4) Whenever a judgment is pronounced under this rule, a decree shall be drawn up in accordance with such judgment and such decree shall bear the date on which the judgment was pronounced.

Under Order 6 rule 4, CPC, vague or general allegations are insufficient in pleading with respect to the matters laid down in this rule and it requires ‘full‘ particulars of such matters in pleadings.

Damages: Issue will be framed, without denial

As shown above, Order VIII Rule 3 gives an exemption to strict ‘denial’ with regard to the claim of ‘damages’. Why? J. B. Ross v. C. R. Screven, AIR 1917 Cal 269 explained as under:

  • “(O. 8, R 3, CPC) puts the burden on the plaintiff, whether or not the defendant denies in such a case an issue is necessary.” (Quoted in – Indore Malwa United Mills Ltd.  Vs Ramkaran Ghisslal, AIR 1963 MP197. Also see: W.  Jaya-raghavan v. The Leo Films, 1948 61 LW 173; 1948 1 MLJ 209)

In Fateh Chand Vs. Balkishan, AIR 1963 SC 1405, it was observed that the ‘Legislature has sought to cut across the web of rules and presumptions under the English common law’ with regard to the compensation to be awarded in case of breach of contract. Section 74 speaks as to ‘reasonable’ compensation. It is pointed out that this proposition as to ‘reasonable’ compensation, and thereby the intervention of court to fix the reasonable amount, laid down in Section 74, is a deliberate deviation from the English Common Law which allows forfeiture of genuine pre-estimated damages, by the affected party.

Damages (in general) are of three kinds

  • First, nominal
  • Second, general damages
  • Third, special damages.

General Damages can be Awarded if failed to prove Special Damages

Court may, in proper cases, award ‘general damages’ even if the plaintiff failed to prove Special Damages; because, general damages need not be pleaded specifically, inasmuch as law will presume, without direct proof, the natural or probable consequence of an illegal or improper act. (Minor Veeran Vs. T. V. Krishna-moorthy, AIR 1966 Ker 172. Quoted with approval a passage from Law of Pleadings by Mogha.)

It was held by the Supreme Court of India in Maula Bux Vs. Union of India AIR 1970 SC 1955, that ‘forfeiture of earnest money under a contract for sale of property, if the amount is reasonable, does not fall within Section 74’. That is, when the forfeiture clause in a contract refers to a nominal (thereby reasonable) sum alone, as earnest money, it does not provide for an ‘amount to be paid in case of such breach’, or amount to imposing a penalty.  In such cases of forfeiture of reasonable (nominal) earnest money, it is immaterial ‘whether or not actual damage or loss is proved’.

Pleadings on Defamation – requirements

  • Defamatory words must be set out in the plaint. (M.J. Zakharia Sait v. T.M. Mohammed, (1990) 3 SCC 396; R. Rajagopal v. J. Jayalalitha: AIR 2006 Mad 312 (DB))
  • When the defamatory sense is not apparent , the defamatory meaning must also be set out.
  • Where particular context is to be set out, for showing defamation, it shod be stated.

In M.J. Zakharia Sait v. T.M. Mohammed, (1990) 3 SCC 396, the Supreme Court held as under:

  • 30. In W. Hay and Ors. v. Aswini Kumar Samanta, AIR 1958 Cal 269 a Division Bench of the Calcutta High Court held that it is well-settled that in a “libel action” the ordinary defamatory words must be set out in the plaint. Where the words are per se or prima facie defamatory only the words need be set out. Wherever the defamatory sense is not apparent on the face of the words, the defamatory meaning or as it is technically known in law, the innuendo must also be set out and stated in clear and specific terms. Where again the offending words would be defamatory onlyin the particular context in which they were used, uttered or published, it is necessary also to set out except where as in England, the law is or has been made expressly otherwise, the offending context (colloquium) in the plaint, and to state or ever further that this context or the circumstances constituting the same, were known to the persons to whom the words were published, or, at least, that they understood the words in the defamatory sense. In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.
  • 31. What exactly should be pleaded in an action for defamation has been stated also in Halsbury’s Laws of England [Vol. 28 – 4th ed.].
  • In paragraphs 174, 175, 176, 177 and 178 of the said Volume, we have discussion with regard to natural and ordinary meaning of the words complained of, and about the innuendo and the facts and matters supporting innuendo which should be pleaded and proved. It is stated there that in drafting a statement of claim in libel or slander, it is necessary to distinguish between cases in which the words complained of are alleged to be defamatory in their natural and ordinary meaning, whether the literal or the inferential meaning, and those in which the defamatory meaning is a secondary meaning derived from extrinsic or special facts or matters, so that a legal or true innuendo must be pleaded. If it is claimed that the words are defamatory in their natural and ordinary meaning and the words bear only one literal meaning, which is clear and explicit, it is not necessary to plead the meaning in the statement of claim. However, if the words are reasonably capable of bearing more than one literal meaning or if the defamatory meaning relied on is inferential (a “false or popular” innuendo), it is desirable and may even be necessary to plead the defamatory meaning or meanings. Where the plaintiff wishes to claim that the words complained of were understood to be defamatory in a secondary or extended meaning by those persons having knowledge of some special facts or matters, such a meaning constitutes a separate cause of action and the same should be pleaded expressly in a separate paragraph in the statement of claim (emphasis supplied). Particulars must be given of the facts and matters on which the plaintiff relies in support of any secondary or extended defamatory meaning which it is decided to plead. These special facts or matters may be extrinsic to the words used or there may be some special meaning of the words themselves. The plaintiff should plead that particular words bore the innuendo meaning.
  • Paragraph 172 of the Halsbury’s Laws of England, Vol-28. Paragraph 172 is extracted as under :-
  • “172. Pleading and proof of words – In an action for defamation, the actual words complained of, and not merely their substance, must be set out verbatim in the statement of claim. A libel action cannot be brought in respect of a document the contents of which the plaintiff is unaware; but in a slander action interrogatories may, in an exceptional case, be permitted, prior to the statement of claim, to ascertain the precise words spoken. It is no longer necessary to prove at trial the precise words pleaded; it will suffice to prove words substantially the same and the jury should be invited to consider whether the words are defamatory in the version it has accepted. Where the plaintiff complains of a book or long article, he must specify the passages which he alleges to be defamatory rather than merely plead the whole book or article.” (Quoted in: Essel Infraprojects Ltd vs Devendra Prakash Mishra, 2015-1 AIR BomR 482, 2015-1 BCR 340)

In W.Hay and others vs. Aswini Kumar Samanta AIR 1958 Cal 269 it was held as under:

  • “11. It is well settled that, in a libel action, the defamatory words must be set out in the plaint. Where the words are per se or prima facie defamatory only the words need be set out. Where, however, the defamatory sense is not apparent on the face of the words, the defamatory meaning, or as it is technically known in law, the “innuendo” must also be set out and set out in clear and specific terms. These are universally accepted propositions. Where again the offending words would be defamatory only in the particular context, in which they were used, uttered or published, it seems to us that it is necessary also to set out, except where, as in England, the law is or has been made expressly otherwise, the offending context (Colloquium) in the plaint and to state or aver further that this context or the circumstances, constituting the same, were known to the persons, to whom the words were published, or, at least, that they understood the words in the defamatory sense. In the absence of these necessary averments, the plaint would be liable to be rejected on the ground that it does not disclose any cause of action.” (Quoted in: Essel Infraprojects Ltd vs Devendra Prakash Mishra, 2015-1 AIR BomR 482, 2015-1 BCR 340)

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Easement

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Pictorial Testimony Theory and Silent Witnesses Theory in Law of Evidence

Taken from : Visual and Audio Evidence

Saji Koduvath, Advocate, Kottayam.

Introspection

  • 1. Photographs, videos etc. are ‘documents ‘. 
  • 2. There is difference between using a photograph (or a video) in evidence (i) for explaining matters or refreshing memory of a witness and (ii) using the same as a substantive evidence in court.
  • 3. The requirement of ‘proving the authenticity’, through proper witnesses, will be greater in the latter class (that is, for using the photographs or videos as a substantive evidence) .
  • 4. Depend upon the requirement of ‘proving the authenticity’, such evidences are divided into two divisions. The first category is: Pictorial Testimony Theory and the latter class is Silent Witnesses Theory.
  • 5. There is a change in the approach of the UK and US courts, as regards the nature of evidence to be adduced when a photograph or video is produced in court. The earlier decisions stood by the stand that ‘there should be some witness’. Now, the UK and US jurisprudence allows high degree of discretion to the courts to determine whether a document stands proved.

Definition of Evidence

According to the Indian Evidence Act, 1872, Section 3 –

  • ‘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.

Definition of Document

Section 3 of the Indian Evidence Act, 1872 defines ‘document’ as under:

  • “ ‘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.

As could be seen from the illustration, ‘Document’ takes-in photographs.

By virtue of Section 65B of the Indian Evidence 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 (computer output) shall be ‘deemed to be also a document’.

Besides the Evidence Act, term document has been defined in the General Clauses Act, 1897, and Indian Penal Code, 1860.  

Section 3(18), General Clauses Act defines document as under:

  • “Document shall include any matter written, expressed, or described upon any substances by means of letters, figures or marks, or by more than one of those means which is intended to be used, or which may be used for the purpose of recording that matter.”

Section 29, Indian Penal Code explains that the word document denotes 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, as evidence of that matter.

In Explanation 1, it is stated:

  • “It is immaterial by what means or upon what substance the letters, figures or marks are formed, or whether the evidence is intended for, or may be used in a court of justice, or not.”

Going by the definitions, ‘document ‘ includes not only all materials or substance upon which thoughts of a man are represented by writing or any other specious of conventional mark or symbol, but also records of information of some sort.

In P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1, it is observed that tape records of speeches [1] and audio/video cassettes [2]  including compact disc [3] were “documents” under Section 3 of the 1872 Act, which stand on no different footing than photographs and were held admissible in evidence. It is by now well established that the electronic record produced for the inspection of the Court is documentary evidence under Section 3 of the Evidence Act [4].

  • [1] (Also: Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 )
  • [2] (See: Burhanuddin Bukhari v. Brijmohan Ramdas Mehra, 1976-2 SCC 17)
  • [3] (See: Singh Verma v. State of Haryana, 2016-15 SCC 485)
  • [4] (See: Anwar PV v. PK Basheer, 2014-10 SCC 473).

Photographs, Audio and Video Cassettes, CCTV footage, Electronic Documents etc.

It is clear that a document means something which conveys or affords information, notwithstanding the matter or medium on which it is exhibited, inscribed or contained.[1] Apart from a writing, picture, caricature, map or plan printed, lithographed or photographed on a piece of paper, document includes an inscription on a metal plate or stone. It also comprises:[2] Photographs including photographs of tombstones and houses,[3] Video recordings,[4] Audio and video[5] cassettes[6] or tape-recordings,[7] Moving cinematograph[8] film,[9 Electronic documents such as floppies, CCTV footages, CDs, DVDs, Chips, Hard discs, Pen drives,[10] e-mails[11]; Facebook messages[12]; Whatsapp messages[13].

  • [1] P. Gopalakrishnan @ Dileep Vs. State Of Kerala: KERLT 2018 4 1159, KERLJ 2018 4 189, KHC 2018 4 437
  • [2] P. Gopalakrishnan @ Dileep Vs. State Of Kerala: KERLT 2018 4 1159, KERLJ 2018 4 189, KHC 2018 4 437
  • [3] Lyell v. Kennedy (No.3) (1884) 50 L.T. 730
  • [4] State of Maharashtra v. Praful B. Desai, AIR 2003 SC 2053
  • [5] State of Maharashtra v. Praful B. Desai, AIR 2003 SC 2053; Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31; Taylor v. Chief Constable Cheshire:1987(1) All.ER 225
  • [6] Tukaram S. Dighole v. Manik Rao Shivaji Kokate (2010)4 SCC 329
  • [7] P. Gopalakrishnan v. State of Kerala, AIR 2020 SC 1; Tukaram S. Dighole v. Manikrao Shivaji Kokate, 2010-4 SCC 329; Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31; Ziyauddin Burhanuddin Bukhari v. Brij Mohan Ramdas Mehra:  (1976) 2 SCC 17; Also See: Grand v. Southwestern and County Properties Ltd. (1975)Ch.185, (1974)2 All.E.R. 465; Rex v. Daye : (1908)2 K.B. 333, 340.  
  • [9] Senior v. Holdsworth, Ex parte Independant Television New Ltd. (1976) Q.B. 23)
  • [10] Rex v. Daye ((1908)2 K.B. 333, 340)
  • [11] Ambalal Sarabhai Enterprise v. KS Infraspace LLP Limited (AIR 2020 SC 307); Sailendra Kumar Goswami v. State of Assam, 2022 CrLJ 4694, 2022-237 AIC 506
  • [12] Sanjib Sarkar v. Rajasree Roy, AIR  2022 Cal- 12
  • [13] Rakesh Kumar Singla v. Union Of India, 2021-1 RCR(CRI) 704, 2021-3 Cri CC 452; Priyanka Singh v. State of Maharashtra, 2021 All MR(Cri)  1276, 2021-3 Cri CC 110, 2021-4 BCR(Cri) 393 etc..

Photo Identification (in Court)

Photo identification has been held to be valid in Umar Abdul Sakoor Sorathia v. Narcotic Control Bureau, (2000) 1 SCC 138, and Vasudevan v. The State, 1993 CrLJ 3151 (Ker). But in Sahadevan Sagadevan v. State by Inspector of Police, Chennai, AIR  2003  SC 215, the Apex Court did not accept  the identification through the photograph, after nearly 7 years. Similarly, in State (NCT of Delhi) v. Navjot Sandhu @ Afsal Guru, AIR 2005  SC 3820, ‘in regard to the identification of the photograph of deceased terrorist’, the  evidence was not accepted because it did ‘not inspire confidence, in view of the time lag of 8 months’.

In the case, Ponnappan v. State of Kerala, ILR 1994(3) Ker 370, a greedy man, SK., employed in Abu Dabi, took insurance policy for a large amount.  With a view to claim that amount, SK. and his fellows killed an innocent man, Chacko, while SK. was in Kerala, and blazed him in the car owned by SK. Police investigation revealed the conspiracy. SK. being absconded, he could not be tried.  The Kerala High Court (Ponnappan v. State of Kerala), in appeal, confirmed the conviction holding that Chacko was the person who was killed. It was on a photo identification (Pictorial testimony). The Court held as under:

  • “PW I identified the person in M.O. 9 photo as the person who was killed. There is no doubt that M.O. 9 is the photograph of Chacko, the film representative. It was contended that since P. W. I himself admitted that he had not observed the features or facial peculiarities of the person when he was inside the car, the identification made by him with the help of the photo is not of any use. We are of the view that even without noticing any translatable mark or feature of a person it could be possible to identify him later.”

Relevancy and Admissibility of Photo and Video Evidence

Photo or video evidence may be the most valuable evidence in the facts of certain cases. Under the ‘Best Evidence Rule’ it may have great importance, as stated in the following decisions:

  • Mohammed Rafiq Vs. Madhan, 2018-1 Mad LJ(CRI) 641;
  • Moti Rabidas Vs. The State of Bihar, 2015-145 AIC 435;
  • Vaman Narain Ghiya Vs. State of Rajasthan 2014-1 Raj Cri C 31;
  • State of MP Vs. Shankarlal, ILR 2010 MP 717;
  • P Rajagopal Vs. Inspector of police 2009-2 Mad LJ(Cri) 161;
  • Santhosh Baccharam Patil Vs. State of Maharashtra, 2002 All MR (Cri)997, 2003 BCR (Cri) 120.

Pictorial Testimony Theory and Silent Witnesses Theory

Photographs, audio and video cassettes etc. are, as shown above, ‘documents ‘.  Depend upon the requirement of proving the authenticity, as shown in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31, they are divided into two categories. They are:

  • (i)  aid a witness in explaining his testimony (Pictorial testimony theory) – (E.g. a doctor explains injury with the help of a photograph; identification of a deceased with photo.);
  • (ii) probative evidence of what those evidence depict (Silent witness theory) – (E.g. X-ray film showing a fracture; a photograph showing accused – in a crowd – armed with weapon, though the photographer did not see him; photograph of a scene of occurrence of a crime – which speaks for itself.)

Witnesses may, with their personal knowledge, state that a photograph is a fair and accurate representation of the fundamental facts appear therein. (E.g. a doctor explains injury with the help of a photograph.) In such a case, the evidence of the witness will be the primary matter rather than what is depicted in the photograph; and the photographer need not be examined in court, inasmuch as the photograph is admitted merely to aid a witness in explaining his testimony. They are, explained by Wigmore as, ‘nothing more than the illustrated testimony of that witness’. This principle gives rise to Pictorial testimony theory or communication theory.

But, when a photograph itself is taken as probative and substantial evidence of the matters appear therein, it acquires the glorified status of independent ‘silent witnesses’. In such cases, there should be cogent evidence before the court, to admit the photograph in evidence. (E.g. X-ray film showing a fracture; a photograph showing accused – in a crowd – armed with weapon, though the photographer did not see him.)

Silent Witness Theory – Which Speaks for Itself 

In Black’s Law Dictionary, 9th Edition, at page 1508, ‘Silent Witness Theory’ is mentioned as under:

  • “A method of authenticating and admitting evidence (such as a photograph), without the need for a witness to verify its authenticity, upon a sufficient showing of the reliability of the process of producing the evidence, including proof that the evidence has not been altered.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

In Halsbury’s Laws of England, Fourth Edition, Vol. 1 7, at page 158, it is noticed as follows:

  • “224. Photographs. Photographs properly verified on oath by a person able to speak to their accuracy are generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task, or radar echoes or the contents of a lost document. In the High Court a photograph is receivable in evidence at the trial only when certain provisions have been complied with.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

In Halsbury’s Laws of England, Fifth Edition,Vol.11, at page 723, it is stated as follows:

  • “958.  Photographs, films, records, tape recordings and video recordings. At common law, photographs properly verified on oath by a person able to speak to their accuracy were generally admissible to prove the identity of persons, or the configuration of land as it existed at a particular moment (scientific deductions from them being made by a witness both skilled and experienced in such a task), or radar echoes or the contents of a lost document. For the purpose of Civil Evidence Act 1995, ‘document ‘means anything in which information of any description is recorded and a similarly wide definition applies for the purposes of disclosure under the Civil Procedure Rules.  Thus photographs, films, records, tape recordings and video recordings are all admissible in evidence, subject, if appropriate, to the statutory safeguards with regard to hearsay evidence. Prior notice must be given of a party’s intention to put photographs and certain other items in evidence.
  • The court has power to order the photographing of property which is, or may become, the subject matter of proceedings.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

Wigmore on Evidence, Chgadbourn Revision, Vol. III at page 220, it is observed as follows:

  • “Given an adequate foundation assuring the accuracy of the process producing it, the photograph should then be received as a so-called silent witness or as a witness which speaks for itself.” (Quoted in: Santhosh Madhavan @ Swami Amritha Chaithanya v. State :2014 KHC 31)

Proper Witness should be examined  to invoke ‘Silent Witness‘ Theory

When a photograph or video (as such) is used, a proper witness (not necessarily the photographer) must be examined to show that the photograph (or CCTV, film, CD, e-mails etc.) accurately represent what is depicted; and when, where, and under what circumstances the photograph was taken.

  • (See: State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961); State v. Newman, 4 Wn. App. 588, 484 P.2d 473 (1971), Wigmore on Evidence, Chgadbourn Revision, Vol.III at page 220; Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31.)

In such cases the the photo or video stands as an independent and substantive piece of evidence which speaks for itself, e.g. photo of scene of occurrence of a crime.

In Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31, the Kerala High Court examined the quantum of authentication required. It is held as under:

  • “It is simply this – that some witness (not necessarily the photographer) be able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portray the subject or subjects illustrated.  The photograph need only be sufficiently accurate to be helpful to the court and the jury.
  • In Taylor v. Chief Constable Cheshire, (1987)1 All.E.R.225, it was held as under: “The next case to which I would refer is the case of RV Fowden and White [1982] Crim LR 588. There two persons, the appellants, were alleged to have been photographed on a video film carrying out acts of theft. At their trial the Crown sought to call evidence from a police officer and a store detective who knew Fowden and While to say that the persons on the film were the accused.  The judge admitted that evidence of identity, against the contention for the defence that it was purely a matter for the jury, looking at the film, to determine the question of identity. 
  • On appeal it was held as under: ‘There was no difference in principle between a video film and a photograph or tape recording.  Although it was not strictly necessary to decide the point the Court was of the opinion there was no reason in principle why the Crown should not be able to call a witness who knows someone to look at a photograph and give evidence to the effect that he knows the person, and it is the accused.
  • However, in the circumstances of that particular case the court held: ‘ … the evidence should not have been admitted as the prejudicial value outweighed its probative effect, because the identifying witnesses knew the accused for a similar shoplifting case a week later, and accordingly the defence were deprived from testing the accuracy of the identification without causing prejudice and embarrassment ‘”

‘Pictorial Testimony’ Theory – Photographer Need Not be Testified

As shown above, ‘pictorial testimony’ theory is applied in matters like explanation by a doctor as regards injury on a victim with the help of a photograph, or identification of a deceased with photo. In such cases, the substantive evidence is not the photo; but it is the evidence of the witness.

It is explained in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31, that the photographer need not be examined under the ‘pictorial testimony’ theory. It is observed as under:

  • “Pictorial testimony theory or communication theory is based on the notion that any witness with knowledge that a photograph is a fair and accurate representation may testify to the fundamental facts. There is no requirement that the person who took the photograph should testify in order to authenticate the photograph.  It is enough that the individual testifying recognises the subject that is depicted in the photograph. Authenticity of the photograph is to be established like in the case of any other document. It must be noticed that documentary testimony theory only covers the admissibility of evidence and it does not refer to the evidence of the photographer as a fact finder. Under the silent witness theory, the following factors will have to be established:
    • “Under “silent witness” theory, testimony, establishing authenticity, integrity, and competency of video recording.
    • Photograph expert’s determination that video recording was not altered in any way, built-up or faked.
    • Continuous chain of custody established. Video camera or camcorder was checked and property operating.
    • Video recording is same as what witness saw on playback immediately after recording.
    • No material alteration, surreptitious editing, or fabrications have taken place.”

Pictorial Testimony Theory and Silent Witness Theory Compared

Pictorial testimony theorySilent witness theory
The photo or video is not taken as probative evidence. The photo or video is Probative & substantial evidence.
It is used as an Aid by a witness to explain his testimony (E.g. a doctor explains injury with the help of a photograph; identification of a deceased with photo.)It speaks for itself. (E.g. X-ray film showing a fracture; a photograph showing accused armed with weapon, though the photographer did not see him; photograph of a scene of occurrence of a crime).
No detailed enquiry on photo or video (Photographer need not be examined). A proper witness (not necessarily the photographer) must be examined.
Photo or video not stand as independent or substantive evidence.Photo or video stands as independent and substantive evidence.

Does Sec. 65B Evid. Act Make any Change as to Nature of Evidence to be adduced
No.
It is for Two reasons:

  • (i) Sec. 65A and 65B deal with ‘Admissibility’ (alone) of a Computer Output/Copy. If ‘truth’ is in question, it must be proved according to other provisions of the Evidence Act. Sec. 65A and 65B lay down –
    • “Sec. 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.”
    • “Sec. 65B: Admissibility of electronic records:
    • (1) … any information contained in an electronic record which is printed ….. or copied ….. shall be ADMISSIBLE in any proceedings ….. as evidence of any contents of the original … of which direct evidence would be admissible.”
  • (ii) Sec. 65B Evid. Act deals with ‘Computer Output’ (copy) and not ‘Electronic Record’ (original). Sec.65B lays down –
    • “Sec. 65B. Admissibility of electronic records:
    • (1) … any information contained in an electronic record which is PRINTED ….. or COPIED ….. (hereinafter referred to as the computer output) shall be admissible ….. as evidence of any contents of the original ….”

Silent Witness Theory as applied in UK

The law in UK, as to admission of a video (or any other ‘electronic evidence’), can be understood from the decision, State v. Stangle, 166 N.H. 407, 97 A.3d 634 (The State of New Hampshire v. Stephen Stangle, 2014). It allows the trial court ample discretion as to admission of such evidence and to play or show such evidence before the jury.

In this decision, State v. Stangle, it is pointed out that, in past, courts admitted videos, in evidence, when it was introduced to illustrate the testimony of a witness who observed the same scene viewed by the recording equipment.  The “foundational requirements” should have been complied with for admitting such videos. But, where there was no first-hand witness, courts had adopted the ‘silent witness’ theory (which speaks for itself) to admit video recordings. This theory allowed “the introduction of the recording as primary, substantive evidence of the events depicted”.

It was further pointed out in this decision –

  • Under this theory, “a witness need not testify to the accuracy of the image depicted in the photographic or videotape evidence if the accuracy of the process that produced the evidence is established with an adequate foundation.’’ (People v. Taylor, 353 Ill.Dec. 569, 956 N.E.2d 431, 438 (Ill.2011).
  • It was not “wise to establish specific foundational requirements for the admissibility of photographic [or video] evidence under the ‘silent witness’ theory, since the context in which the … evidence was obtained and its intended use at trial will be different in virtually every case.” Fisher v. State, 7 Ark. App. 1, 643 S.W.2d 571, 575 (Ark.Ct.App.1982).
  • It was enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims.

The law in US on Silent Witness Theory

In State v. Reeves, 2021 S.D. 64; 967 N.W.2d 144 (Supreme Court of South Dakota, US) observed, referring State v. Stangle (supra) as under:

  • “[16] Although we have not yet had occasion to analyze the foundational rules for authenticating automatic video distinctly from a video recorded by a human actor, many courts across the nation have implemented the silent witness theory to hold that photographs and videos may be admitted into evidence without foundation from a witness who took the photograph or video. See, e.g., U.S. v. Rengifo, 789 F.2d 975 (1st Cir. 1986); State v. Stangle, 166 N.H. 407, 97 A.3d 634 (N.H. 2014); State v. Luke, 464 P.3d 914 (Haw. Ct. App. 2020). However, “jurisdictions differ on what evidentiary showing is required to satisfy the ‘silent witness’ standard.” Stangle, 97 A.3d at 637. Generally, there are two categories of approaches employed. Some states implement a flexible, fact-based approach to allow a judge to tailor the authentication process to the individual case; in contrast, others use various “multi-factor test[s] for determining the admissibility of photographs or videos.”
  • [17] The New Hampshire Supreme Court addressed the silent witness theory in State v. Stangle, 166 N.H. 407, 97 A.3d 634 (N.H. 2014) and declined to adopt a formulaic, factor-based approach to authentication. The Court reasoned that: ‘it is not wise to establish specific foundational requirements for the admissibility of photographic (or video) evidence under the ‘silent witness’ theory, since the context in which the evidence was obtained and its intended use at trial will be different in virtually every case. It is enough to say, that adequate foundational facts must be presented to the trial court, so that the trial court can determine that the trier of fact can reasonably infer that the subject matter is what its proponent claims. This allows the trial court to consider the unique facts and circumstances in each case—and the purpose for which the evidence is being offered—in deciding whether the evidence has been properly authenticated.”

Conclusion

From the aforesaid UK and US decisions it is clear that the ground for invoking ‘silent witness’ theory, in UK and US, is – ‘no first-hand witness available’; and therefore, such evidence is allowed to be given ‘without foundation from a witness who took the photograph or video’.

It is obvious that there is a change in the approach of the UK and US courts, as regards the nature of evidence to be adduced when a photograph or video is produced in court. The earlier decisions [State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961); State v. Newman, 4 Wn. App. 588, 484 P.2d 473 (1971) ] stood by the stand that ‘there should be some witness, not necessarily the photographer, who was able to give some indication as to when, where, and under what circumstances the photograph was taken, and that the photograph accurately portrayed the subject illustrated’. The Kerala High Court substantially adhered to these principles in Santhosh Madhavan @ Swami Amritha Chaithanya v. State: 2014 KHC 31.

In this juncture, it is apposite to point out that the UK and US jurisprudence allows high degree of discretion to the courts to determine whether a document stands proved (to the satisfaction of the judicial mind), in the facts and circumstance of a case. But, in India, we are (more) circumscribed by the ‘Evidence-Laws’ and precedents.

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Art. 370, Pertaining to J&K -Turns the Constitution on Its Head

Saji Koduvath, Advocate, Kottayam.

PART I

Introduction

Special status had been given to Jammu & Kashmir by Article 370 of the Constitution of India.

Now, because of the changes made to the Constitution in 2019, the Special Status conferred on Jammu & Kashmir had been wiped out. The changes are brought-in by the following historic documents:

The Presidential Order

  • (i) On August 5, 2019, by the Presidential Order [CO 272 – The Constitution (Application to Jammu & Kashmir) Order, 2019], amended Article 367 (the interpretation clause). Thereby the ‘Constituent Assembly’ under Article 370(3) was amended as ‘Legislative Assembly’. (The Constituent Assembly had been dissolved 60 years back.) Consequently, the requirement of approval of the presidential order became the approval of the ‘legislative assembly’. Jammu and Kashmir was being under President’s Rule, the need for the consent of the ‘legislative assembly’ was not specifically needed, and satisfaction of the Parliament was enough.

Parliament Resolutions

  • (ii) Adoption of the said Presidential Order by the Parliament, by a Resolution, introduced  by the Union Minister for Home Affairs, Amit Shah, in Lok Sabha on August 6, 2019.
  • (iii) Adoption of the Resolution by the Parliament, for Repealing Article 370 of the Constitution of India, introduced  by the Minister Amit Shah, in Lok Sabha on August 6, 2019, and

The Jammu & Kashmir (Reorganisation) Act, 2019

  • (iv) The Jammu & Kashmir (Reorganisation) Act, 2019 was passed, the Bill of which was introduced  by the Home Minister, Amit Shah, in Lok Sabha on August 6, 2019.

Changes made to “Constituent Assembly” of the J&K

By virtue of the aforesaid enactments, Clause 1 of Article 370 that states that the Constitution of India will operate in the State of Jammu and Kashmir alone continued in the Constitution and the special status granted to Jammu and Kashmir was ceased.

Jammu and Kashmir: Status Changed

By the aforementioned documents, the Constitution of India was made applicable to the State of Jammu and Kashmir, in its entirety.  Further, the status of Jammu and Kashmir was changed by bifurcating the State, forming two separate union territories; namely, Union Territory of Jammu and Kashmir and Union Territory of Ladakh. The Union Territory of Jammu and Kashmir was proposed to have a legislature; but,the union territory of Ladakh didn’t have one.

These developments triggered high controversy in the legal paddock. Some speak that the highest assurance of historical importance recognised by the nation, through its Constitution, to a constituent state, is betrayed. The Government says – it is a mark of national integration.

Crucial Legal Challenge

  • Article 370(3) provided that the President of India had the powers to amend or repeal the article by issuing a notification, based on a recommendation of Constituent Assembly of J&K.
  • But no change was recommended by the Constituent Assembly of the J & K State till it was dissolved in 1957.
    • Therefore the one crucial question would be – Can J&K Constituent Assembly (in Article 370) be read as J&K Legislative Assembly?
  • Even if it is assumed that the ‘recommendation’ can be given by the J & K State Legislature (by virtue of the present changes pursuant to the presidential Order), by a resolution, it remains a sheer fact that no Assembly was existing when the 2019 changes were made to the Article 370 (and the concurrence of the Governor was obtained, instead).
    • Therefore, the second crucial question would be – Can J&K Constituent Assembly (in Article 370) be read as recommendation of the Governor?
  • During 2019, Jammu and Kashmir was under ‘President’s Rule’. It was imposed when the Chief Minister, Mehbooba Mufti, resigned on June 19, 2018. (Mehbooba Mufti was leading a coalition and she had to resign since the BJP, a coalition partner, had withdrawn its support.)

The Government of India says that it is well within its rights to bring-in the changes it made, with the concurrence of Governor; and that similar decisions had been taken in the past.

Another point arises for consideration is the following –

  • Because no Constituent Assembly in J & K, can it be said – Art. 370 stands permanent and unamendable?

There had been fights and struggles since 1989. India blames Pakistan. Pakistan raises claim on the whole Kashmir.

What Kashmiris Fear 

Kashmir is a Muslim-majority Territory. It is said that Kashmiris fear that the unique privileges, including property rights, coherent culture out of Muslim population etc. will be eroded; and a change in the law will affect the state’s demographics. Already tensions were high in this region. Apart from enjoying the benefits, the situation prevailed permitted a separate flag and independence over all matters except foreign affairs, defence and communications. The article 370 allowed the state a certain amount of autonomy – and freedom to make laws. It was possible to restrain Indians from purchasing property or settle there. And, they were proud of own Constitution and special status.

Kashmiris suspect that by the advent of Constitutional changes, Hindus would migrate to the state. This would sound well among Kashmiris. Former Jammu and Kashmir Chief Minister and leader of Peoples Democratic Party (PDP), Mehbooba Mufti, has responded that the change in law would alter the demography of Kashmir, where Muslims were majority and it would further alienate Kashmiris. AG Noorani (a lawyer, historian and author) says that the Presidential Orders which made the Constitution of India applicable to the State of Jammu and Kashmir in its entirety, was ‘an illegal decision, akin to committing fraud’. The leader of National Conference party, Omar Abdullah, said the move was unilateral and a total “betrayal of trust” of the people of Jammu and Kashmir.

Political Criticism

A senior leader in the opposition (Congress Party), Ghulam Nabi Azad said, in parliament, that the government had “wiped out Jammu and Kashmir’s identity”. Another Congress leader, P Chidambaram, a prominent lawyer, described the decision as a “catastrophic step” and warned, in Parliament discussions, that it may lead to serious consequences. He said:

  • “You may think you have scored a victory, but you are wrong and history will prove you to be wrong. Future generations will realise what a grave mistake this house is making today”.

Stand of the Govt – It is a Historic step to Correct a Historic Blunder.

The Home Minister, Amit Shah, who introduced Jammu & Kashmir (Reorganisation) Bill, 2019 said in the Lok Sabha, on August 6, 2019, as under:

  • “I want to state that J&K is an inalienable part of India. There are no two versions about that”.
  • “Repealing article 370 is not a historic blunder, rather it is historic step to correct this historic blunder.”
  • Article 370(3) provides President of India has the powers to amend or repeal the article by issuing a notification, based on a recommendation of Constituent Assembly of J&K. J&K constituent assembly would be read as J&K Legislative Assembly. Similar changes to article 370 have been done in the past as well.
  • Now since President’s rule was in force in the state, implementation of article 370 would cease to exist when President of India issued the notification in this regard, after the Lok Sabha passed the resolution.
  • Parliament is the highest and fully competent body to make laws and bring resolutions regarding a state of India including J&K. There can be no question to this power of the Parliament.
  • For 70 years, people of India have harboured this aspiration in their hearts that Kashmir must be an integral part of India. Article 370 was the only roadblock to realize this goal.
  • The opposition in a way has questioned the competence of the Parliament by raising the point – how the Centre can take this step unilaterally when Kashmir is a bilateral issue between India and Pakistan and when the matter is pending in UN. “How can patriots of India who can sacrifice their lives for the country not get perturbed by such a question?”
  • In India, things do not function on whims and fancies but on laws.
  • The question of a referendum ended with the Pakistani aggression in 1965. Hence, the Government of India has full rights to take any decision regarding its territorial integrity. This was even agreed to by the UN.
  • “Had our forces given a free hand to deal with the situation, PoK would have been a part of India today”.
  • “I want to assure the people of J&K that the status of State would be restored once the situation normalises. Secondly, PoK and Aksai Chin are an inalienable part of JK and the seats are still part of the legislature.
  • J&K would have a Legislative Assembly with elected representatives and it is a misnomer that the administration would be run by the Centre.
  • Article 370 was originally a temporary provision. Because of article 370, the laws of Union of India did not apply to J&K, corruption and terrorism flourished there.
  • Removing article 370 has no communal agenda as a number of communities and religious groups are resident of J&K that are affected equally. Article 370 has perpetuated discrimination against the minorities including Sikhs, Buddhists admin others.
  • In the past 70 years over 41500 people have been killed. “Should we continue on the same path and let people die. Who is responsible for this state of affairs? Are not the youth of J&K and Ladakh require development. For how long would we deprive them only for vote bank politics.”
  • Such bold steps are not taken for vote bank but for the betterment of people of J&K and for three Nation.
  • Those who favour article 370 are in opposition to the Prevention of Child Marriage Act which could not be applied to J&K due to article 370. Similarly other laws like Right to Education, Land Accusation Act, Multiple Disability Act, Senior Citizens act, Delimitation act, Whistle Blower Protection act, laws enacted for empowerment of tribal, National Commission for Minorities, National Council for Teacher Education, among others, could not be applied to J&K.
  • The reason is simply that after President’s rule was applied in J&K, all corruption cases were opened and those who were at the receiving end are opposing the repealing of article 370.
  • Democracy was strangulated by the use of article 370 for 70 years. Today, after this government came to power, over 40000 panch and sarpanches are taking the democratic process forward and development has started.
  • Pakistan has misused the presence of article 370 to sow the seeds of separatism and terrorism in J&K.
  • “I appeal to all those who favour article 370, to ponder what benefits did the provision bring to the state. It only prevented development and facilitated terrorism there.”
  • Only by repealing this provision, we can bring the people to the mainstream and embrace them with open arms.
  • “J&K is the heaven on earth and I assure everyone that it would continue to remain so when all the laws of Union of India become applicable to the state.”

Two Earlier Court Decisions

In Prem Nath Kaul v. State of J & K (AIR 1959 SC 749) the Constitution Bench of the Supreme Court held that after the dissolution of the J & K Constituent Assembly, the President and Parliament cannot invoke Art. 370. But, Sampat Prakash v. State of J & K (AIR 1970 SC 1118) upheld the argument that Presidential Orders can be passed under Art. 370 even after the dissolution of the J & K Constituent Assembly.

According to Prem Nath Kaul v. State of J & K (AIR 1959 SC 749) the Article 370 was a temporary provision. But in Sampat Prakash v. State of J & K (AIR 1970 SC 1118) the Apex Court refused to accept Article 370 as a temporary provision; the five-judge Bench said that ‘Article 370 has never ceased to be operative’; and that it was a permanent provision.

No ‘Conflict’ between the Two Judgments

The Amendments made to Article 35A and 370 were questioned before the Supreme Court in Manohar Lal Sharma v. Union of India. The Advocates argued that the Supreme Court had given its earlier decision in Sampat Prakash, without taking into account the law laid down in Prem Nath Kaul. Thereon they called for a ‘reference’ to a larger bench since the present bench was of the same strength as Sampath Prakash and Prem Nath Kaul. 

The 5-judge bench of the Supreme Court, on 2nd March 2020, rejected the request to refer these petitions to a larger bench holding that there was no such ‘oversight’ or ‘conflict’ between these judgments, as argued. It was pointed out that the issues and circumstances in those decisions were different. (The earlier decision was in a Land Reform issue arose from a 1950 Act and the later one was in a criminal case.) One thing is definite from the above – that is, even though it may appear from Sampat Prakash v. State of J & K (AIR 1970 SC 1118) that this decision may stand in favour of the Government (and the changes made in 2019), it will not be binding on the five judge bench that hears the present challenge.

PART II

Arguments of the Petitioners, before the Apex Court, in a Nutshell

Several petitions were filed before the Apex Court, challenging the presidential order and the Jammu and Kashmir Reorganisation Act, 2019. The argument of the petitioners were over, after 10 days’ hearing, on August 23, 2023. The arguments of the petitioners can be summarises as under:

1. Article 370 could not have been revoked by Presidential Orders

  • Article 370 could not be revoked without the recommendation of the Constituent Assembly of the J&K. It is a condition precedent. This Constituent Assembly ceased to exist in 1957. It has already been made clear in Prem Nath Kaul judgement.
  • In any case, concurrence of the J & K legislature was necessary. Now, Parliament assumed the role of J & K’s Constituent Assembly. (When J&K was under President’s Rule, the powers of the Jammu and Kashmir Legislative Assembly were vested in the Union Parliament.)
  • It destroyed the federal system and autonomy guaranteed to J & K under the mandatory provisions of the Constitution.
  • Both the Union and J & K lost their opportunity to change the provision. (So, at present no valid mechanism for the abrogation of Art. 370.)
  • Present attempts are unilateral in nature.              

2. Article 370 was a Temporary Provision

  • Article 370 was a temporary provision since the J & K Constituent Assembly was a temporary body. Its persuasiveness ceased to exist after the J & K Constitution came into force. Therefore, the situation resulted from dissolution of J & K Constituent Assembly made Article 370, ‘permanent’ (in the sense, it cannot be invoked to make changes as done in 2019).

3. Parliament could not have assumed the role of J&K’s Constituent Assembly

  • If anybody has any power to take a decision on abrogation of Art. 370, it is the J & K Constituent Assembly; or in any case, it is the Legislative Assembly of the J & K. Anyhow, the role cannot be taken over by the Parliament.

4. Splitting of J&K into two union territories, unconstitutional

  • The State did not surrender, under the Instrument of Accession (IoA), its internal sovereignty; only external sovereignty (Foreign Affairs, Defence & Communication) is surrendered toto the Union of India. The abrogation of 370 and the internal sovereignty are unconstitutional.
  • Art. 3 of the Constitution of India requires the consent of the legislative assembly of the States before the state boundaries are altered.
  • The reorganisation and reduction of J&K, a State, into a Union Territory took place without the concurrence of the legislative assembly of J&K. It is against Article 3.
  • Art. 3 did not provide for the abolition of states. It will be violate Art. 1 which articulates the idea of a “Union of States”.
  • The present actions are violation of basic structure doctrine.

5. Art. 367, the interpretation clause, could not have been invoked to alter the meaning of “Constituent Assembly” and indirectly amended Art. 370

  • By C.O. 272 the President replaced “Constituent Assembly” with “Legislative Assembly”. It was made by invoking interpretation clause, Art. 367. It is unconstitutional. Art. 367, the interpretation clause, could not have been invoked to alter the meaning of “Constituent Assembly” and indirectly amended Article 370. Art. 370 could have been revoked only with the ‘recommendation’ of the Constituent Assembly of the J&K (when it existed).

Arguments for Union of India, in a Nutshell

Attorney General R. Venkataramani and Solicitor General Tushar Mehta started the arguments for Union of India on August 24, 2023.

Their arguments can be summarised as under:

  • Attorney General Shri. R. Venkataramani submitted that the changes made to Article 370 were following the “due process” of law; and that by the Instrument of Accession J & K surrendered sovereignty to India.
  • Solicitor General Shri. Tushar Mehta argued that Article 370 did not confer special status to J & K.
  • The Solicitor General argued that the “duality” had been made use by “forces against India.”
  • According to the Mountbatten Plan, the princely states had the option to join India or Pakistan, and there was no option to stand independent. There was the Instrument of Accession when the document made. Shri Mehta pointed out that the Constitution of J & K was an Act for internal governance alone.
  • Mehta further stressed that the ‘autonomy’ attached to J & K was only that recognising the ‘federal structure‘; and affirmed that it was a part of India. It was similar to that vest with other states through List II (State List) of the Seventh Schedule of Constitution of India, the “Union of States”.
  • Mehta then read Proclamation for the State of J & K, made by the ruler Yuvraj Karan Singh in November 1949 which read as under:
    • “That the provisions of the said (Indian) Constitution shall, as from the date of its commencement, supersede and abrogate all other constitutional provisions inconsistent therewith which are at present in force in this State.”
  • Mehta claimed that the Abrogation of Article 370 was meant for providing the people of J & K rights which people of the rest of the country enjoyed. The present situation deprived the people of J & K the welfare schemes of Union of India.
  • Article 370 was actually a “temporary” provision. According to Mehta,  the words “constituent assembly” can be read interchanged with “legislative assembly”. On dissolution of the J&K Constituent Assembly, the provision became invalid or inoperative; the power of abrogation of Art. 360 became vested with the President. And, now the President has ‘plenary power’.
  • President had invoked Article 367, earlier, to replace “Sadar-i-Riyasat” with “Governor” in Article 370. “Constituent Assembly” and “Legislative Assembly” have been used interchanged, in several occasions and purposes.
  • Mehta  also maintained that Abrogation of Article 370 was with a view to rectify the previous mistakes.  He pointed out that the Presidential Order of 1954 diluted various provisions of the Constitution, including the fundamental rights, when the Constitution was made applicable to J & K.  He buttressed that “the Government has the right to correct its mistakes”
  • The statehood of the J&K will be restored as soon as the law and order situation comes to “normalcy”. The Union has the power to reorganise a State as done now.
  • The sovereignty was completely surrendered to India by the Instrument of Accession (IoA).

Senior Advocate Harish Salve

Senior Advocate Harish Salve, pointing out the difference between ‘concurrence’ and ‘recommendation’ in Art. 370, placed the following forceful argument-

  • When ‘concurrence’ is given in Article 370(1) and (2) of the Constitution, the word ‘recommendation‘ is used in Proviso to Article 370(3).
  • Article 370(3) reads as under:
    • “(3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
    • Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification.”
  • It has great significance. They are –
    • (i) For abrogating the Article 370(3), nothing more than a mere ‘recommendation‘ from the Constituent Assembly of Jammu &Kashmir was required. (Amendment procedure of Constitution was not to be complied with.)
    • (ii) That recommendation was required as long as the Constituent Assembly of Jammu & Kashmir existed. Thereafter, the President (himself) can do it (of his own) – without ‘recommendation’.
    • (iii) It was the result of the political compromise arrived at between India and J&K at that time.
    • (iv) If the power under the proviso can be exercised in this way, then the presidential order 2023 is a valid one.
  • The historical materials would show that Article 370(3) was a safety valve. “That, if the political compromise in Sub-Article 1 fails to achieve the purpose, at any time it might become necessary to pull the plug.”
  • Salve emphasised – “Now, if one looks at it that way, the whole thing falls in place. We kept, the framers of the Constitution kept, with the President the power to do away with this special arrangement.”

The arguments of both sides were over by September5, 2023; and the case is taken for Judgment.

End Notes – I

BRIEF HISTORY

British Restored 600 Princely States

The British, when left India, through the Indian Independence Act, 1947, restored sovereignty of about 600 princely states, including Kashmir. The princely states had three options: First, to remain as an independent country; Second, to join Dominion of India; and the Third, to join Dominion of Pakistan. The joining with India or Pakistan had to be through a mutual agreement – the Instrument of Accession (IoA).  

Instrument of Accession by J&K

The Maharaja of Kashmir, Raja Hari Singh, had initially decided to take an independent stand and to sign standstill agreements with India and Pakistan. But following an invasion of tribesmen and Army men in plainclothes from Pakistan, he sought the help of India, which in turn led to the accession of Kashmir to India.

Raja Hari Singh signed the IoA on October 26, 1947 and Governor General of India, Lord Mountbatten, accepted it on October 27, 1947.

The Schedule appended to the IoA between India and Kashmir gave the Parliament of India the power to legislate on Defence, External Affairs and Communications, with respect to J&K.

Article 370 and the Constituent Assembly of J & K.

The declared policy of India was that the disputes on accession should be settled in accordance with the wishes of people rather than a unilateral decision of the ruler of the princely state.

India regarded accession of J & K as purely temporary and provisional, as stated in the Government of India’s White Paper on J&K in 1948. In a letter to J&K Prime Minister Sheikh Abdullah dated May 17, 1949, Prime Minister Jawaharlal Nehru wrote: “The Constitution of Jammu and Kashmir is a matter for determination by the people of the state represented in a Constituent Assembly convened for the purpose.”

Article 370 – Subject to Plebiscite

The original draft of Article 370 was presented by the Government of J&K.

Following modifications and negotiations, on the draft placed by J & K, Article 306A (now 370) was passed in the Constituent Assembly on May 27, 1949. It was moved in the Constitution Assembly by Shri. Gopalaswami Ayyangar

Moving the motion, Ayyangar said that though accession was complete, India had offered to a plebiscite taken when the conditions were created, and if accession was not ratified then “we shall not stand in the way of Kashmir separating herself away from India”.

On October 17, 1949, when Article 370 was finally included in the Constitution by India’s Constituent Assembly, Ayyangar reiterated India’s commitment to plebiscite and drafting of a separate constitution by J & K’s Constituent Assembly.

Presidential Order of 1954 & Article 35A

Article 35A of the Constitution has been introduced through a Presidential Order in 1954 invoking Article 370. Article 35A empowered the J&K legislature to define the state’s permanent residents; and their special rights and privileges to Indian-administered Kashmir, including Jammu and Ladakh.

The Maharaja of Kashmir, Hari Singh, had passed a law in 1927 to stop the influx of people from Punjab. Reports say that it was done as urged by Kashmiri Hindus. The same law was re-introduced in 1954. It was made part of Article 35A, and thus granted Kashmir special status to J&K within India.

After enacting Article 35A, all identified residents were issued a permanent resident certificate, which entitled them to special benefits related to employment, scholarships and other privileges.  The biggest advantage considered by the permanent residents was that they alone had the right to own, buy, or sell immovable property in the state.

By the 1954 Presidential Order, almost the entire Constitution was extended to J&K. Besides 260 of 395 Articles, 94 out of 97 entries in the Union List were made applicable to J & K by this Order; 26 out of 47 items of the Concurrent List have been brought-in. Seven out of 12 Schedules were also extended to the state.

J & K Constitution

It is very important that Article 3 of the J & K Constitution declared J & K to be an integral part of India. In the Preamble to the Constitution, there was a categorical acknowledgement about the object of the J & K Constitution – “to further define the existing relationship of the state with the Union of India as its integral part thereof.” Moreover people of state were referred as ‘permanent residents’; not ‘citizens’. It is noteworthy that there was no claim as to ‘sovereignty’ of J & K in their Constitution. One of the main reasons for enacting a special Constitution for J & K is said to be to bring the provisions of the laws relating to J & K out of the clutches of the fundamental rights. Various fundamental rights (under Article 14, 19, 21 etc.) made it ‘difficult’ to provide special rights to J & K people and J & K situations.

Special Status given to J & K under  Article 370

Article 370 itself exempted operation of other provisions of the Constitution except Article 1 and Article 370, to J & K. By virtue of Article 1, J & K was included in the list of states. It further permitted the J & K to draft its own Constitution.

With respect to the legislative powers of the Parliament, Article 370 restricted Centre to make laws on the subjects included in the IoA, only on “consultation” with the state government.  But, if the concurrence of the Government of the State was to be given, or obtained, before the convening of the Constituent Assembly, it was provided to place the same before such Assembly (when it is convened.)

Similar Special Provisions in Other States also

Article 370 is captioned as ‘Temporary Provisions with respect to the State of Jammu and Kashmir’.  Article 371 and 371-A to 371-I speak of certain types of privileges or restrictions including purchase of land, in the Himachal Pradesh, Nagaland, Manipur, AP, Sikkim, Misoram, Arunachal Pradesh and Goa. Domicile-based reservation in admissions and even jobs is also allowed.

Why Article 370 was ‘Temporary’

Article 370 was ‘Temporary’ in the sense that the J&K Constituent Assembly had a right to modify/ delete/ retain it. It was temporary, for the validity of this provision depended upon the plebiscite to be held in the State of Jammu and Kashmir.

Does Article 370 Become a Permanent Provision?

Three views are propounded.

First, Article 370 became permanent when the Constituent Assembly of J&K was dissolved (on January 26, 1957). Article 370(3) permits deletion of Article 370 by a Presidential Order, preceded by the ‘concurrence’ of J&K’s Constituent Assembly. It was not happened by a decision of the Constituent Assembly of J&K.

Second view is that Article 370 continues to operate with obtaining the ‘concurrence’ from the State Assembly which stepped into the shoes of the Constituent Assembly.

And the third view is that on dispersal of the Constituent Assembly of Jammu and Kashmir (on January 27, 1957) after adopting the state’s constitution, ‘there vanished also the president’s powers – under Article 370 – to add more legislative powers to the Centre in respect of J & K or extend to the state any other provision of the constitution of India’. (Constitutional expert, AG Noorani, supports this view.)

Rajendra Prasad on ‘Temporary’ Nature of 370

AG Noorani pointed out in an essay that ‘President Rajendra Prasad, himself a distinguished lawyer’, wrote on September 6, 1952 as under:

  • “… under clause 1(b)(ii) and the second proviso to clause 1(d) of Article 370, it excludes altogether the parliament of India from having any say regarding the constitution of Jammu and Kashmir……The abrogation of Article 370 abrogates along with it application of Article 1 to the state, with the result that the state ceases to be part of the territory of India…”

Alleged aggressions of Centre by the Presidential Orders

  • The Centre has used Article 370 to amend J & K’s Constitution, though that power was not given (to the President) under Article 370.
  • Despite a similar provision that of Article 356 of the Indian Constitution (President’s Rule) is in an Article 92 of the J&K Constitution, Article 356 itself was extended to J&K.
  • The J&K Constitution provides for election of Governor by the Assembly. Article 370 was used to convert it into a nominee of the President.
  • To extend President’s rule beyond one year in other states, the government made Constitutional amendments one after the other. But, in J&K Article 370 was invoked without this Constitutional Amendment.
  • Article 249 (power of Parliament to make laws on State List entries) was extended to J&K without a resolution by the Assembly and just by a recommendation of the Governor. It is utter violation of Art. 370.

End Notes – II

Changes made to the Constitution

The Changes made to the Constitution, by the Presidential Order on 5th August, 2019, led to a legal battle in the Supreme Court of India trading following events-

  • On August 5, 2019 itself, the Rajya Sabha passed a Statutory Resolution under Article 370(3) for abrogation of Article 370, except Clause 1.
  • On August 9, 2019, the Parliament passed the Jammu and Kashmir Reorganisation Act, 2019.  This Act bifurcated the State of Jammu and Kashmir into two Union Territories – J & K and Ladakh. The presidential order and the Jammu and Kashmir Reorganisation Act, 2019 diluted Article 370 and revoked J & K’s special status.
  • The presidential order and Reorganisation Act, 2019 are challenged, by various petitions, before the Supreme Court of India. On August 28, 2019, the then Chief Justice of India, Rajan Gogoi, J. referred the matter to a five-Judge Constitution Bench.
  • Now, from August 2, 2023, the Constitution Bench, headed by the Chief Justice of India, considers this matter under the Caption “In Re: Article 370 of the Constitution”.
  • The argument of the Petitioners were over, after 10 days’ hearing, on August 23, 2023. Arguments for Union of India began on August 24, 2023, and continued on August 28, 2023.

Important list of dates

August 5, 2019

  • President Ram Nath Kovind issued presidential order CO 272 and allowed the Union to amend Article 370.
  • Rajya Sabha passed a Statutory Resolution under Article 370(3) for abrogation of Article 370, except Clause 1.
  • This Order allowed the Union to amend Article 370 and split the state into two Union territories.

August 6, 2019  

  • Presidential Proclamation, CO 273, putting the Rajya Sabha’s recommendation.
  • It removed the special status awarded to Jammu and Kashmir & diluted Article 370

August 9, 2019  

  • Parliament passed the Jammu and Kashmir Reorganisation Act, 2019.
  • This Act bifurcated the State of Jammu and Kashmir into two Union Territories—J&K and Ladakh

August 28, 2019,

  • A 3-Judge Bench led by former CJI Rajan Gogoi referred the case to a 5-Judge Constitution Bench.

October 1, 2019,             

  • 5-Judge Constitution Bench of the Court comprising Justice N.V. Ramana, S.K. Kaul, R. Subhash Reddy, B.R. Gavai and Surya Kant decided to hear the case from November 14th, 2013.

March 2, 2020,

  • The Bench refused to refer it to a larger Bench.

July 3, 2023,

  • The Supreme Court listed the matter to a Constitution Bench led by Chief Justice D.Y. Chandrachud.

July 11, 2023

  • The Bench listed the matter for hearing from August 2, 2023.

End Notes – III

Art. 370 of the Constitution of India

370. Temporary provisions with respect to the State of Jammu and Kashmir

  • (1) Notwithstanding anything in this Constitution,
    • (a) the provisions of Article 238 shall not apply in relation to the State of Jammu and Kashmir;
    • (b) the power of Parliament to make laws for the said State shall be limited to
    • (i) those matters in the Union List and the Concurrent List which, in consultation with the Government of the State, are declared by the President to correspond to matters specified in the Instrument of Accession governing the accession of the State to the Dominion of India as the matters with respect to which the Dominion Legislature may make laws for that State; and
    • (ii) such other matters in the said Lists as, with the concurrence of the Government of the State, the President may by order specify Explanation For the purposes of this article, the Government of the State means the person for the time being recognised by the President as the Maharaja of Jammu and Kashmir acting on the advice of the Council of Ministers for the time being in office under the Maharajas Proclamation dated the fifth day of March, 1948 ;
    • (c) the provisions of Article 1 and of this article shall apply in relation to that State;
    • (d) such of the other provisions of this Constitution shall apply in relation to that State subject to such exceptions and modifications as the President may by order specify: Provided that no such order which relates to the matters specified in the Instrument of Accession of the State referred to in paragraph (i) of sub clause (b) shall be issued except in consultation with the Government of the State: Provided further that no such order which relates to matters other than those referred to in the last preceding proviso shall be issued except with the concurrence of that Government
  • (2) If the concurrence of the Government of the State referred to in paragraph (ii) of sub clause (b) of clause ( 1 ) or in the second proviso to sub clause (d) of that clause be given before the Constituent Assembly for the purpose of framing the Constitution of the State is convened, it shall be placed before such Assembly for such decision as it may take thereon
  • (3) Notwithstanding anything in the foregoing provisions of this article, the President may, by public notification, declare that this article shall cease to be operative or shall be operative only with such exceptions and modifications and from such date as he may specify:
  • Provided that the recommendation of the Constituent Assembly of the State referred to in clause ( 2 ) shall be necessary before the President issues such a notification.

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Cheque Dishonour Case against a Company, Firm or Society

Jojy George Koduvath

From Sec. 141 of the NI Act, it comes out –

  • Company, Firm and Society are treated alike for the purpose of cheque-bounce-cases.
  • A partner in a firm or Governing Body member in a Society is treated like a director in a Company.
  • Every person (director, partner or Governing Body member) who, at the time the offence was committed, was in charge of, and was responsible (to the company, firm or society for the conduct of its business), shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
  • Apart from the director, partner or Governing Body member, the company, firm or society shall be guilty of the offence and shall be liable to be proceeded against and punished accordingly.
  • The company, firm or society shall be a necessary party.
  • If the director, partner or Governing Body member proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence, such person will not be liable to punishment.
  • The nominated Director of a Government  company or a financial corporation shall not be liable for prosecution.
  • If the offence has been committed by a company, firm or society and it is proved that the offence has been committed with the consent or connivance of any any director, manager, secretary or other officer, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished.

Sec. 141 of the NI Act reads as under:

  • 141 Offences by companies — (1) If the person committing an offence under section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
  • Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he had exercised all due diligence to prevent the commission of such offence:
  • Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this Chapter.
  • (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
  • Explanation.— For the purposes of this section,—
  • (a) “company” means any body corporate and includes a firm or other association of individuals; and
  • (b) “director”, in relation to a firm, means a partner in the firm.

Relevant Decisions in these matters

  • Pawan Kumar Goel v. State of U.P., (2022) SCC OnLine SC 1598,
  • Sunita Palita v. Panchami Stone Quarry, 2022 SC OnLine SCC 945,
  • Secretary to Govt of Kerala v. james Varghese, (2022) 9 SCC 593,
  • S.P. Mani v. Dr. Snehalatha Elangovan, (2022) SCC Online SC 1238,
  • Sunita Palita v. Panchami Stone Quarry, (2022) 10 SCC 152
  • P. Saravana Kumar v. S.P. Vijaya Kumar, (2022) SCC Online Mad 1387,
  • P. Mohanraj v. Shah Brothers Ispat Pvt. Ltd. (2021) 6 SCC 258,
  • Dr. Shah Faesal v. Union of India, (2020) 4 SCC 1,
  • Peerless General Finance v. Commissioner of IT, (2020) 18 SCC 625,
  • Surinder Singh Deswal v. Virender Gandhi (2020) 2 SCC 514,
  • G.J. Raja v. Tejraj Surana (2019) 19 SCC 469,
  • Surinder Singh Deswal v. Virender Gandhi (2019) 11 SCC 341,
  • Nandkishor Prallhad Vyvhare v. Mangala, (2018) 3 MhLJ 913,
  • Rodger Shashoua v. Mukesh Sharma, (2017) 14 SCC 1,
  • Eerra Through Dr. Manjula v. State (NCT of Delhi), (2017) 15 SCC 133,
  • South Central Railway Employees Coop. Credit Society v. B. Yashodabai (2015) 2 SCC 727,
  • Rathod v. State of Maharashtra, (2014) 9 SCC 129,
  • Pooja Ravinder Devidsani v. State of Maharashtra, (2014) 16 SCC 1,
  • Sundeep Kumar Bafna v. State of Maharashtra, (2014) 16 SCC 623,
  • Aneeta Hada v. Godfather Travels and Tours Pvt. Ltd., (2012) 5 SCC 661,
  • Hada v. Godfather Travels & Tours, 2012-5 SCC 661,
  • National Small-Scale Industries v. Harmeet Singh, (2010) 3 SCC 330,
  • K.K. Ahuja v. V.K. Vora, (2009) 10 SCC 48,
  • N. Harihara v. J Thomas, (2008) 13 SCC 663,
  • S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2007) 4 SCC 70,
  • Oriental Insurance Co. Ltd v. Meena Variyal, (2007) 5 SCC 428,
  • Maruti Udyog Ltd. v. Ram Lal, (2005) 2 SCC 638,
  • S.M.S. Pharmaceuticals Ltd. v. Neeta Bhalla, (2005) SCC 89,
  • Steel Authority of India v. National Union Waterfront, (2001) 7 SCC 1,
  • Special Officer , Urban Land Ceilings v. P.S. Rao, (2000) 2 SCC 451,
  • Nedungadi Bank Ltd. v. K.P. Madhavankutty, (2000) 2 SCC 455.

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Interpretation of Documents – Literal Rule, Mischief Rule and Golden Rule

Saji Koduvath, Advocate, Kottayam.

Abstract

•➧  Three rules of Interpretation of Statutes and Documents.
               ••   1. Literal rule – words are taken in its plain meaning.
               ••   2. Mischief rule – gives effect to its intention.
               ••   3. Golden rule – when lack of clarity, apt meaning given by interpretation.
•➧  Oral admissions as to contents of documents are not relevant (Sec. 22)
•➧  The law requires production of Document itself (Sec. 91); . 
No oral evidence can be given –
              •(i) for varying, adding to, etc. its terms (S. 92).
              •(ii) to explain a document, on its face, ambiguous (S. 93).
              •(iii) to show a plain document not meant to apply such facts (S. 94).
Evidence can be given when –
              •(i) language of a document, plain in itself, but it is unmeaning in reference to existing facts – evidence may be given to show that it was used in a peculiar sense (S. 95).
              •(ii) language used – meant to apply to more – evidence may be given to show which of those persons or things was intended (S. 96).
              •(iii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
              •(iv) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets  (S. 97).
              •(v) Evidence can be given to show meaning of illegible or technical words -used in a peculiar sense (S. 98).

PART I

THREE RULES OF INTERPRETATION

There are three rules of Interpretation of Statutes and Documents. They are:

  • Literal rule,
  • Mischief rule, and
  • Golden rule. 

The Literal rule

According to this rule, the words in the statute or the document are taken in its literal or plain meaning. It is also called the ‘plain meaning rule or Grammatical Rule’.

  • This rule can be applied only when the language in the statute or the document renders only one meaning, and the intention of the legislature or author is unambiguous and completely clear. When a court has to give effect to the statute or document, it has to simply give effect to the language of the statute or document and it need not look into the consequences that may be arisen therefrom.

Several Courts in India (mistakenly) consider and use the Golden Rule of interpretation in place of Literal Rule of interpretation.

THE GOLDEN RULE

It is a deviation from the literal rule, and requires modification of the ‘ordinary sense’ of the words used in a statute or a document.

  • This rule is applied when literal rule fails for the words used by the author of a document or legislature could not be given their natural meaning for, its lack of clarity, or it renders another meaning also.
  • In such cases the apt meaning is given by interpretation, modifying  the meaning of the absurd term, or choosing one meaning from more than one meaning.

Thus the Golden Rule of Interpretation desires (minimum) modification of the ‘ordinary sense’ of the words used in a statute or a document so as to avoid the ‘absurdity and inconsistency’ convey by those words and to give effect to the meaning of the words (actually) intended in those statutes or documents. 

  • But, in certain decisions, it is observed that the Golden Rule of Interpretation is “the interpretation in conformity with the plain language” of the statute. (See: M/S Patil Automation Private Ltd. v. Rakheja Engineers Private Ltd., AIR 2022 SC 3848, 2022-10 SCC 1). In this view of the matter, this rule essentially gives effect to the literal or ordinary meaning of the words choosing one meaning from more than one meaning or modifying (slightly) the meaning of the absurd term.

Grey v. Pearson, 1857

  • The golden rule of interpretation was propounded for the first time by Lord Wensleydale, in Grey v. Pearson, 1857 (6) HLC 61, while interpreting a Will. (See: Ms. Eera Through Dr. Manjula v.  State  (Govt. of NCT of Delhi), (2017) 15 SCC 133).

In Grey v. Pearson, 1857 (6) HLC 61, Lord Wensleydale declared as under:

  • “I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in the case of Warburton v. Loveland.”

The Mischief Rule (Purposive Construction Rule)

It applies basically to the interpretation of Statutes; and usually not to (private) documents. The aim of this rule is to cure or prevent the mischief of the language in a statute, and give effect to its intention or purpose. Therefore, it is called purposive construction rule.

The Mischief Rule (Purposive Construction Rule) is applied when the court finds ambiguity in the language of the statute, and determines it necessary to give effect to the “intention” of the legislature. Thus, this rule of interpretation is broader in its application when compared to the ‘Golden Rule’.

Heydon’s case, (1584)

The mischief rule is also called Heydon’s rule, as it is originated by Lord Poke in Heydon’s case, (1584) 3 Co Rep 7a: (1584) 76 ER 637. As per this rule, the meaning and purport of the statute or document is explored and interpreted in that way.  The rule of purposive interpretation was articulated in this case  in the following terms:

  • “for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
    • 1st. What was the common law before the making of the Act.
    • 2nd. What was the mischief and defect for which the common law did not provide.
    • 3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth.
    • And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi, AIR 2022 SC 4917)

Smith v. Huges, 1960 WLR 830

  • In 1959, the Street Offences Act was enacted in the UK with a view to prohibit prostitutes from soliciting public passing on the roads. Thereon, the prostitutes started soliciting from balconies and windows of the buildings by the side of the roads. The prostitutes were charged under the Act. The courts applied the mischief rule of interpretation and gave effect to the intention of the Act.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871

  • Facts of the case were as follows-  Delhi Corporation Act, 1902 authorised the corporation to round up the abandoned cattle grazing on the government land. The MCD rounded up the cattle belonging to Kanwar Singh. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned. The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned.

Golden Rule of Interpretation Covers Wills, Statutes and Instruments

After quoting Grey v. Pearson, 1857 (6) HLC 61, it is observed in Ms. Eera Through Dr. Manjula v.  State (Govt. Of NCT of Delhi), AIR 2017 SC 34577, as under:

  • “This celebrated passage has since come to represent what has been described as the ‘Golden Rule’ of interpretation of statutes. The construction of a clause in a will was before the House of Lords and not the construction of a statute. Nevertheless, the “Golden Rule” was held to cover the construction of wills, statutes and all other written instruments.”

In Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609, a three-judge Bench of our Apex Court held as under:

  • “Before I come to consider the arguments put forward by each side, I venture to refer to some general observations by way of approach to the questions of construction of statutes. In the past, the Judges and lawyers spoke of a ‘golden rule’ by which statutes were to be interpreted according to grammatical and ordinary sense of the word. They took the grammatical or literal meaning unmindful of the consequences. Even if such a meaning gave rise to unjust results which legislature never intended, the grammatical meaning alone was kept to prevail. They said that it would be for the legislature to amend the Act and not for the Court to intervene by its innovation. 
  • During the last several years, the “golden rule” has been given a go-by. We now look for the “intention” of the legislature or the “purpose” of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi, AIR 2022 SC 4917; Indian Handicrafts Emporium v. Union of India, 2003-7 SCC 589, National Insurance Co.  Ltd.  v. Laxmi Narain Dhut,  2007-3 SCC 700)

Lee v. Knapp, (1967) 2 QB 442. 

  • In this case, it was required to interpret the world ‘stop’. Under the relevant Act, a driver causing an accident had to ‘stop’ after the accident. But, the driver in this case stopped the vehicle for a moment after causing the accident and then moved away. Applying the golden rule the Court held that requirement of the section had not been followed for the driver did not ‘stop for a reasonable period of time’ and made an attempt to look for the interested persons to make necessary inquiries for him about the accident.

U. P. Bhoodan Yagna Samiti v. Brij Kishore, AIR 1988 SC 2239

  • In this case Section 14 of the U.P Bhoodan Yagna Act, 1953 had to be interpreted. This Section provided land for “landless person”. It was interpreted as the “landless agricultural labourers” though the Section did not specify that such landless persons should be agricultural labourers or whose source of livelihood should be agriculture; and source of livelihood of those persons should not be trade and business.

Our Apex Court, in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67, held as under:

  • “67. While interpreting any statutory provision, it has always been accepted as a Golden rule of Interpretation that the words used by the legislature should be given their natural meaning. Normally, the courts should be hesitant to add words or subtract words from the statutory provision. An effort should always be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.” Quoted in: V. Senthil Balaji Vs. The State represented by Deputy Director (2023)

Advantages of Golden rule

  • This rule simply puts the words in the statute or deed work. It is destined to operate in between ‘literal interpretation’ and ‘mischief-rule interpretation’.
  • It gives effect to the words used by the legislature or author, in its ordinary meaning; but, picking up the most sensible and apt meaning to the words used the statute or deed – susceptible to more than one meaning.
  • Applying the Golden Rule, one can deviate from the meaning of words given previously, if it is susceptible to more than one meaning.
  • Drafting errors in status and documents can be corrected without much effort.

Disadvantage of Golden Rule

  • There is no definite frame-work or guidelines.
  • It is susceptible for change according to the interpreter or court, if it is accommodative of more than one meaning.

PART II

Interpretation of documents involves questions of law

In Sir Chunilal V. Mehta v. The Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314, it is observed as under:

  • “Indeed it is well settled that the construction of a document of title or of a document which is the foundation of the rights of parties necessarily raises a question of law.”

In Hero Vinoth Minor v. Seshammal, AIR 2006 SC 2234, it is observed as under:

  • “It is now well settled that an inference of fact from a document is a question of fact. But the legal effect of the terms or a term of a document is a question of law. Construction of a document involving the application of a principle of law, is a question of law. Therefore, when there is a misconstruction of a document or wrong application of a principle of law while interpreting a document, it is open to interference under Section 100 CPC. If a document creating an easement by grant is construed as an ‘easement of necessity’ thereby materially affecting the decision in the case, certainly it gives rise to a substantial question of law.”

In Bhikan Sk. Noor Mohd v. Mehamoodabee Sk. Afzal,  (2017) 5 SCC 127 : AIR 2017 SC 1243, it is laid down as under:

  • “When the Court is called upon to interpret the documents and examine its effect, it involves questions of law. It is, therefore, obligatory upon the High Court to decide such questions on merits. In this case, the High Court could do so after framing substantial questions of law as required under Section 100 of the Code.”

Interpretation of Documents – as provided under Evidence Act

Odgers’ “Construction of Deeds and Statutes” (5th ed. 1967) states the following as the First General Rule of Interpretation:

  • “The meaning of the document or of a particular part of it is therefore to be sought for in the document itself”.

Referring the above, it is held in Delhi Development Authority v. Durga Chand Kaushish, AIR 1973 SC 2609, as under:

  • “That is, undoubtedly, the primary rule of construction to which Sections 90 to 94 of the Indian providence Act give statutory recognition and effect with certain exceptions contained in Sections 95 to 98 of the Act. Of course, “the document” means “the document” read as a whole and not piecemeal.”

Produce Document itself

  • (i)  Oral admissions as to contents of documents are not relevant (Sec. 22); The law requires production of Document itself (Sec. 91); . 

No oral evidence can be given –

  • (ii) for varying, adding to, etc. its terms (S. 92).
  • (iii) to explain a document, on its face, ambiguous (S. 93).
  • (iv) to show a plain document not meant to apply such facts (S. 94).

Evidence can be given when –

  • (v) language of a document, plain in itself, but it is unmeaning in reference to existing facts – evidence may be given to show that it was used in a peculiar sense (S. 95).
  • (vi) language used – meant to apply to more – evidence may be given to show which of those persons or things was intended (S. 96).
  • (vii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets (S. 97).
  • (viii) language used – applies partly to one set facts and partly to another set – evidence may be given to show which of the two sets  (S. 97).
  • (ix) Evidence can be given to show meaning of illegible or technical words -used in a peculiar sense (S. 98).

Interpretation of Will – Provisions of Law

  • (i) Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
  • (ii) Sec. 74 of the Indian Succession Act, 1925, contains the armchair rule. It conveys – intention of the testator is important.

Odgers Rules

Odgers Rules, supra, (known as golden rules of interpretation) are the following:

  • 1. The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.
  • 2. The intention may prevail over the words used
  • 3. words are to be taken in their literal meaning
  • 4. literal meaning depends on the circumstances of the parties
  • 5. When is extrinsic evidence admissible to translate the language?
  • 6. Technical legal terms will have their legal meaning.
  • 7. Therefore the deed is to be construed as a whole. Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:
  • 8. Same words to be given the same meaning in the same contract.
  • 9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
  • 10. Contra Proferendum Rule-If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
  • 11. If two interpretation of a contract are possible the one which helps to make the contract operative to be preferred to the other which tends to make it inoperative.
  • 12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred.
  • 13. the special will exclude the general.
  • 14. Rule of expression unius est exclusion alterius.
  • 15. Rule of noscitus a souciss.
  • 16. Ejusdem generic rule will apply both the contract and statute.
  • 17. place of Punctuation in interpretation of documents.

No statutory rules to interpret any document

In P. Madhusudhan Rao v.  Lt. Col. Ravi Manan, 2015-4 ALD 409, it was observed as under as to interpretation of a document-

  • Intention of the executant of a document has to be ascertained by reference to the words used to express it.
  • Unexpressed intention has not to be considered, but courts can consider presumed intention while interpreting a document.
  • The Court has to ascertain the intention of the parties based on the language used in the document.
  • There are no statutory rules to interpret any document.

Primary rule of construction in Evidence Act

The Supreme Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609,  has noticed Odgers Rules, in “Construction of Deeds and Statutes”, and quoted the First General Rule of Interpretation which reads as under:

  • “The meaning of the document or of a particular part of it is therefore to be sought for in the document itself”.

Give effect to words used, and Not to the presumed intention

Our Apex Court, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, further pointed out that ‘the primary rule of construction to which Sections 90 to 94 of the Indian Evidence Act give statutory recognition and effect’ and with certain exceptions contained in Sections 95 to 98 of the Act, “the document” means “the document” ‘read as a whole and not piecemeal’. Then the Apex Court observed as under:

  • “The rule stated above follows logically, from the Literal Rule of Construction which, unless its application produces absurd results must be resorted to first. This is clear from the following passages cited in Odgers’ short book under the First Rule of Interpretation set out above: Lord Wensleydale in Monypenny v. Monypenny(1) said: “the question is not what the parties to a deed may have intended to do by entering into that deed, but what is the meaning of the words used in that deed: a most important distinction in all cases of construction and the disregards of which often leads to erroneous conclusions.”
  • Brett, L.J., in Re Meredith, ex p. Chick ([1879] 11 Ch. D. 731) observed: “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke… They said that in construing instruments you must have, regard not to the presumed intention of the parties, but to the meaning of the words which they have used.”

Earlier words of deed, or main purpose accepted (rejecting uncertain words)

It is further laid down in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:

  • “Assuming, however, that there is some conflict between an earlier part of the deed containing a demise of land clearly for a period of 90 years on an annual rent of Rs. 365, and the proviso of covenant No. 9, annexed to the demise, in a later part of the deed, which cannot be resolved without discarding or disregarding some word or words, the respondent’s counsel contended that the earlier words of demise, consistently supported by the contents of other parts of the deed, should prevail over the inconsistency found in the proviso to one of the conditions in the later part of the deed. He relied for this proposition on : Sahebzada Mohd. Kamgar Shah v. Jagdish Chandra Rao Dhabel Deo  [1960] 3 SCR 604); Ramkishore Lal v. Kamal Narian([1963] Supp. 2 SCR v. 417); Forbes v. Git ([1922] 1 AC 256).
  • We think that the proviso to covenant No. 9 could be said to suffer from the vice of an uncertainty which can only be removed by ignoring the words creating this uncertainty. We think that, in such a case, the ambiguous words can be disregarded so that the terms of the earlier operative part of the demise, which are clear, must prevail. Learned Counsel for the respondent also relied on the following passsage from Glyn and Ors. v. Margetson & Co.( [1893] A. C. p. 351) in the judgment of Lords Halsbury :
  • “Looking at the whole of the instrument, and seeing that one must regard, for a reason which I will give in a moment, as its main purpose, one must reject words, indeed whole provisions, if they are inconsistent with what one assumes to be the main purpose of the contract.“

Gant to be construed in favour of the grantee

In Smt. Bina Das Gupta and Others v. Sachindra Mohan Das Gunta, AIR 1968 SC 39, the following statement of law in Stavill Eros., Ltd. v. Bethell ([1902]-2 Ch. 523) , by Sterling L.J., was cited with approval (as observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609) –

  • “It is a settled rule of construction that where there is a grant and an exception out of it, the exception is to be taken as inserted for the benefit of the garntor and to be construed in favour of the grantee. If then the grant be clear, but the exception be so framed as to be, bad for uncertainty, it appears to us that on this principle the grant is operative and the exception fails.”

The construction which give effect to all the clauses be adopted

It is further observed in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, as under:

  • Another rule which seems to us to be applicable here was thus stated by this Court in Radha Sunder Dutta v. Mohd. Jahadur Rahim (AI R 1959 SC 24): “Now, it is a settled rule of interpretation that if there be admissible two constructions of a document, one of which will give effect to all the clauses therein while the other will render one or more of them nugatory, it is the former that should be adopted on the principle expressed in the maxim ut res magis valeat quam pereat”

In P. Madhusudhan Rao v.  Lt. Col. Ravi Manan, 2015-4 ALD 409, after referring the Supreme Court decision, in Delhi Development Authority v. Durga Chand, AIR 1973 SC 2609, it is observed as under:

  • “As the observation of the Supreme Court (Delhi Development Authority v. Durga Chand) have the force of law of the land, it may be taken Odgers Rules (known as golden rules of interpretation) have been judicially recognized and may be adopted as Rules for interpretation of the documents in India.
  • These Rules are listed hereunder:
  • 1. The meaning of the document or of a particular part of it is therefore to be sought for in the document itself.
  • 2. The intention may prevail over the words used
  • 3. words are to be taken in their literal meaning
  • 4. literal meaning depends on the circumstances of the parties
  • 5. When is extrinsic evidence admissible to translate the language?
  • 6. Technical legal terms will have their legal meaning.
  • 7. Therefore the deed is to be construed as a whole.

Apart from the said seven rules listed by Odger, it would be convenient to list the following rules for the sake of convenience are called additional rules and given number in continuation:

  • 8. Same words to be given the same meaning in the same contract.
  • 9. Harmonious construction must be placed on the contract as far as possible. However, in case of conflict between earlier or later clauses in a contract, later clauses are to be preferred to the earlier; while in a will, earlier clause is to be preferred to the later.
  • 10. Contra Proferendum Rule- If two interpretations are possible, the one favourable to the party who has drafted the contract and the other against him, the interpretation against that party has to be preferred.
  • 11. If two interpretation of a contract are possible the one which helps to make the contract operative to be preferred to the other which tends to make it inoperative
  • 12. In case of conflict between printed clauses and typed clauses, type clauses are to be preferred. Similarly, in conflict between printed and hand written clauses, hand written clauses are to be preferred and in the event of conflict between typed and hand written clauses, the hand written calluses are to be preferred
  • 13. the special will exclude the general
  • 14. Rule of expression unius est exclusion alterius
  • 15. Rule of noscitur a sociis
  • 16. Ejusdem generis rule will apply both the contract and statute
  • 17. place of Punctuation in interpretation of documents”.

Ejusdem Generis & Noscitur a Sociis

Ejusdem Generis is the principle of interpretation of applying meaning to a doubtful word or words taken from the associated words. Usually this principle is applied when doubts are arisen whether the word or words fall within the general words like – other articles, etc., such things, similar acts, etc.

The ejusdem generis is explained in Halsbury’s Laws of England as under:

  • “As a rule, where in a statute there are general words following particular and specific words, the general words must be confined to things of the same kind as those specified, although this, as a rule of construction; must be applied with caution, and subject to the primary rule that statutes are to be construed in accordance with the intention of Parliament. For the ejusdem rule to apply, the specific words must constitute a category, class or genus; if they do constitute such a category, class or genus, then only things which belong to that category, class or genus fall within the general words.”

Our Apex Court, in DN Singh v. Commissioner of Income Tax (2023), the question came for consideration was whether ‘bitumen’ (used for tarring roads) would fall under “other valuable article” stated in “any money, bullion, jewellery or other valuable article” in Section 69A of the Income Tax. Section 69A reads as under:

  • “69A. Unexplained money, etc. – Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and … not recorded in the books of account, …  may be deemed to be the income of the assessee for such financial year.”

It was held in DN Singh v. Commissioner of Income Tax (2023) that ‘bitumen is not a valuable article’ when the Principle of Ejusdem Generis is applied.

Noscitur a Sociis is a rule is broader than the maxim ejusdem generis.  It contains the basic philosophy that the meaning of a doubtful word is ascertained by reference to the meaning of words associated with it. [In practice, it is seen that ‘ejusdem generis’ is applied when words like – other articles, etc., such things, similar acts, etc. are used; and ‘Noscitur a Sociis‘ is used even if those words are not used.]

Intention of the parties looked into When there is ambiguity

In P. Madhusudhan Rao v.  Lt. Col. Ravi Manan, 2015-4 ALD 409 after quoting the above rules, it is observed as under:

  • “From the Rules stated above, when the language used in a document is unambiguous conveying clear meaning, the Court has to interpret the document or any condition therein taking into consideration of the literal meaning of the words in the document. When there is ambiguity, the intention of the parties has to be looked into. Ordinarily the parties use apt words to express their intention but often they do not. The cardinal rule again is that, clear and unambiguous words prevail over the intention. But if the words used are not clear or ambiguous, intention will prevail. The most essential thing is to collect the intention of the parties from the expressions they have used in the deed itself. What if, the intention is so collected will not secure with the words used. The answer is the intention prevails. Therefore, if the language used in the document is unambiguous, the words used in the document itself will prevail but not the intention.”

Words in the Instruments Matters; Not to the Presumed Intention

Brett L.J. in Re Meredith, ex parte Chick, (1879) 11 Ch D 731, observed as under:

  • “I am disposed to follow the rule of construction which was laid down by Lord Denman and Baron Parke ……. They said that in construing instruments you must have regard not to the presumed intention of the parties, but to the meaning of the words which they have used.” (Quoted in: VS Talwar v. Prem Chandra Sharma, AIR 1984 SC 664; Damodaram Pillai v. Dhanalakshmi Ammal, (1981) 1 MLJ 171; Thomas v. AA Henry, 2008(2) KLT 63.)

Vague and uncertain descriptions rejected; definite and certain, preferred

The Kerala High Court held in Velu v. Padmavathy Amma (1983 KLN 38 Case No.39), as under:

  • “According to learned counsel for the appellants, when there is conflict in description by measurements and boundaries, measurements prevail over boundaries while according to learned counsel for the respondents, the contrary is the correct position. I have been referred in this connection to the following decisions : Zamindar of Pahipenta vs. Maharajah of Jeypore (XXIII M.L.J. 97) Subbayya Chakkiliyan vs. Manjan Muthia Goundan and another (A.I.R. 1924 Mad. 493), Durga Prasad Singh vs. Rajendra Narain Bagehi (I.L.R. 37 Cal. 293), Kumara Krishnan vs. Ulahannan Mathai (1957 K.L.T. 42), Chacko Joseph vs. Varghese Markose (1957 K.L.T. 485), Savarimuthu Nadar Chellayyan Nadar vs. Kanakku Rali Pillai Padmanabha Pillai (1957 K.L.T.825) and Krishnamurthy Iyer vs. Janaki Amma (1957 K.L.T. 886).
  • A golden thread runs through all the decisions referred to above. A piece of land may be described in the document or decree correctly or wrongly. Description may be given by reference to village, locality, survey number, lekhom number, extent, measurements or boundaries. At times, descriptions may tally pointing unerringly to a particular plot of land in which case there will be no difficulty in locating the plot. Sometimes the various descriptions given in a document or decree may be in conflict with each other. In such a case, the court is called upon to adjudicate on the identity of the exact plot intended to be dealt with in the document or decree. No doubt, the court will at first try to reconcile the various descriptions. If that be not possible, one or more of the descriptions may have to be rejected and the other decision rested only on the other description or descriptions. When one of the descriptions is vague and uncertain and another description is definite and certain, the latter may be preferred. If none of the descriptions is vague or uncertain, that description which is more certain and stable and least likely to have been mistaken or inserted inadvertently must be preferred if it sufficiently identified the subject matter of the transaction and the other descriptions must be rejected as erroneous or inaccurate. This is not a rule of law and therefore is not inflexible in character; it is a mere rule of construction which appears to be safe and almost an infallible guide.” (Quoted in Chandrakumar vs Narayana Bahuleyan, 2011(3) KLT 185.)

Court cannot look intention when document applies squarely to existing facts

Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, dealt with the interpretation of a surety bond. The Court relied upon Sec. 94 of the Indian Evidence Act and found no reason to look for the intention of the parties, since the clear and express words in the bond applied squarely to the existing facts. The Court held as under:

  • “Sometimes when it is said that a Court should look into all the circumstances to find an author’s intention, it is only for the purpose of finding out whether the words apply accurately to existing facts. But if the words are clear in the context of the surrounding circumstances, the Court cannot rely on them to attribute to the author an intention contrary to the plain meaning of the words used in the document.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

Sec. 91 and 92 – Best Evidence Rule

Sec. 91 and 92 provides that when terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, their terms alone are taken to be the sources of what the parties wished to state; and oral evidence to the contrary, are excluded.

Both Sec. 91 and 92 are based on “best evidence rule”. (Roop Kumar v. Mohan Thadani AIR 2003 SC. 2418: 2003-6  SCC 595; S. Saktivel v. M. Venugopal Pillai 2007-7  SCC 104; Mumbai International Airport v. Golden Chariot Airport, (2012) 10 SCC 422; Tulsi v. Chandrika Prasad, AIR 2006 SC 3359).

The Supreme Court held in Roop Kumar v. Mohan Thedani, AIR 2003 SC 2418, as under:

  • “The grounds of exclusion of extrinsic evidence are
  • (i) to admit inferior evidence when law requires superior would amount to nullifying the law,
  • (ii) when parties have deliberately put their agreement into writing, it is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be placed beyond the reach of future controversy, bad faith and treacherous memory.”

In Bhima Tima Dhotre  v. The Pioneer Chemical Co. (1968) 70 Bom LR 683, it is observed as under:

  • “Documentary evidence becomes meaningless if the writer has to be called in every case to give oral evidence of its contents. If that were the position, it would mean that, in the ultimate analysis, all evidence must be oral and that oral evidence would virtually be the only kind of evidence recognised by law. That, however, is not the position under the Evidence Act. … Section 59 of the said Act enacts that all facts, except the “contents” of documents, may be proved by oral evidence. This provision would clearly indicate that to prove the contents of a document by means of oral evidence would be a violation of that section.”

However, oral evidence can be given on a matter (adoption) which is not required by law to be in writing and it is not barred for the mere reason it was contained in a document (Taburi Sahai v. Jhunjhunwala, AIR 1967 SC 106).

The word ‘disposition’ is not a ‘term of law’

It is observed in Pushpalatha NV v.  V Padma, AIR 2010 Kant 124, that the word ‘disposition’ is not a ‘term of law’.  It is said as under:

  • “The term ‘disposition’ has been defined in Stroud’s Judicial Dictionary as a devise ‘intended to comprehend a mode by which property can pass, whether by act of parties or by an act of the law’ and ‘includes transfer and change of property. The word ‘disposition’ means giving away or giving up by a person of something which was his own. It is not a term of law. In has no precise meaning. Its meaning has to be gathered from the context in which it is used. The word ‘disposition’ in relation to property means disposition made by deed or will and also disposition made by or under a decree of a court. The word ‘disposition’ would ordinarily be used in reference to a written document and not to the effect of that document. The removal of a thing from one’s self is involved in a disposal. The disposition is the provision creating the interest, not the interest itself. Therefore, disposition means a plan or arrangement for the disposal, distribution of something; definite settlement with regard to some matter.”

Patent ambiguity and latent ambiguity

Patent ambiguity is that inherent in the words. Extrinsic evidence is inadmissible in such cases.

 Sec. 93 and 94 of the Evidence Act deal with cases of patent ambiguity and Sec. 95 to 98 deal with cases of latent ambiguity.

Patent AmbiguityLatent Ambiguity
  Ambiguity On the FaceHidden Ambiguity. Words of the instrument clear, but their application to the circumstances doubtful.
S. 93 and 94S. 95 to 98
  No oral evidence permittedOral evidence permitted Ambiguity is disclosed only when explored with extrinsic evidence. Therefore, the ambiguity is allowed to be removed by same means.
Makes the document useless. Ambiguity cannot be removed by legal construction or evidence.  Can remove its ambiguity by Oral evidence.  
# Sell a horse to B for “Rs. 1,000 or Rs. 1,500” (Illustration- Sec. 93).
# Deed contains blanks (Illus. – Sec. 93).
# Sells estate at Rampur. No evidence another place (Illustration- Sec. 94).		# Sells house in Calcutta. No house in Calcutta.  Can show at Howrah (Illus. – Sec. 95).
# Sells white horse. Two white horses. Can show which (Illus. – Sec. 96).
# Evidence be given Hayatabad in Dekkhan or Sind (Illus. – Sec. 96).
# Sells B land at X occupation of Y. A has land at X, but not in occupation of Y, and he has land in occupation of Y not at X. Evidence be given which he meant to sell (Illus. – Sec. 97).
# A sells “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell (Illus. – Sec. 98).

“Patent Ambiguity”

After referring Smt. Kamala Devi v. Takhatmal, (1964) 2 SCR 152, it is observed in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308 that the principle contained in Sec. 94 of the Evidence Act is that extrinsic evidence is inadmissible in cases of “patent ambiguity”, and that this principle is “fundamental to Indian jurisprudence.”

A “patent ambiguity” is explained in Starkie on Evidence as under:

  • “By patent ambiguity must be understood an ambiguity inherent in the words, and incapable of being dispelled, either by any legal rules of construction applied to the instrument itself, or by evidence showing that terms in themselves unmeaning or unintelligible are capable of receiving a known conventional meaning, the great principle on which the rule is founded is that the intention of parties, should be construed, not by vague evidence of their intentions independently of the expressions which they have thought fit to use, but by the expression themselves. … By patent ambiguity, therefore, must be understood an inherent ambiguity, which cannot be removed, either by the ordinary rules of legal construction or by the application of extrinsic and explanatory evidence, showing that expressions, prima facie, unintelligible, are yet capable of conveying a certain and definite meaning.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

“Latent Ambiguity”

On the other hand, a “latent ambiguity” is described in Woodroffe and Ali’s Law of Evidence, as follows:

  • “Latent ambiguity, in the more ordinary application, arises from the existence of facts external to the instrument, and the creation by these facts of a question not solved by the document itself. A latent ambiguity arises when the words of the instrument are clear, but their application to the circumstances is doubtful; here the ambiguity, being raised solely by extrinsic evidence, is allowed to be removed by the same means. In strictness of definition, such cases, as those in which peculiar usage may afford a construction to a term different from its natural one as can be seen in s 98, would be instances of latent ambiguity, since the double use of the term would leave it open to the doubt in which of its two senses it was to be taken. It is not, however, to this class of cases that reference is now made, but to those in which the ambiguity is rather that of description, either equivocal itself from the existence of two subject matter, or two persons, both falling within its terms as can be seen in s 96, or imperfect when brought to bear on any given person or thing as per ss 95 and 97.” (Quoted in – Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308)

No mention of Price in Contract, but “crucial” emails – Whether Sec. 94 Bar Applies?

Though Sec. 94 applies only when a document applies accurately to existing facts, which includes how a particular word is used in a particular sense. Where no mention of the price at which coal was to be supplied, and there were three “crucial” emails, in Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308, it was held as under:

  • “These emails must be read as part of the entirety of the correspondence between the parties, which would then make the so-called “admissions” in the aforementioned emails apply to existing facts. Once this is done, it is clear that there is no scope for the further application of the “patent ambiguity” principle contained in section 94 of the Evidence Act, to the facts of the present case.”
  • In Anglo American Metallurgical v. MMTC Ltd., 2021-3 SCC 308t it was held to be a latent ambiguity comes under Sec. 95 of the Evidence Act, read with proviso (6) and illustration (f) to Sec. 92; and therefore, evidence can be led to show the peculiar sense of such language. It is pointed out that this approach is reflected in a recent judgment of this Court in Transmission Corpn. of Andhra Pradesh Ltd. v. GMR Vemagiri Power Generation Ltd., (2018) 3 SCC 716, where it was observed as under:
  • “21. In the event of any ambiguity arising, the terms of the contract will have to be interpreted by taking into consideration all surrounding facts and circumstances, including correspondence exchanged, to arrive at the real intendment of the parties, and not what one of the parties may contend subsequently to have been the intendment or to say as included afterwards, as observed in Bank of India v. K. Mohandas [Bank of India v. K. Mohandas, (2009) 5 SCC 313] : (SCC p. 328, para 28)
  • “28. The true construction of a contract must depend upon the import of the words used and not upon what the parties choose to say afterwards. Nor does subsequent conduct of the parties in the performance of the contract affect the true effect of the clear and unambiguous words used in the contract. The intention of the parties must be ascertained from the language they have used, considered in the light of the surrounding circumstances and the object of the contract. The nature and purpose of the contract is an important guide in ascertaining the intention of the parties.”” (page 727).

Admission of Contents of Document in Pleadings

In Perumal Chettiar v. Kamakshi Ammal, AIR 1938 Mad 785, (1938) 2 MLJ 189, it is observed, as to pleadings, as under:

  • “The result, in India, is that if by reason of the document being unstamped, no evidence of its contents whether primary or secondary is admissible, evidence of admissions by the defendant is equally inadmissible. The position may be different where admissions are made in the pleadings themselves (cf. Huddleston v, Briscoe (1805) 11 Ves. 583 (596) : 32 E.R. 1215 (1220) and Thynne v. Protheroe (1814) 2 M. & S. 553 : 105 E.R. 488), because by reason of Section 58 of the Evidence Act, it may not be necessary to prove admitted facts and the objection under Section 91 will not arise unless the plaintiff is called upon to go into evidence. (Mallappa v. Mat an Naga Chetty (1918) 35 M.L.J. 555 : I.L.R. 42 Mad. 41 (F.B.))
  • This was the position in Pramatha Nath Sandal v. Dwarka Nath Dey (1896) I.L.R. 23 Cal. 851; cf. however Chenbasappa v. Lakshman Ramchandra (1893) I.L.R. 18 Bom. 369, where it was suggested that in a suit on an unstamped promissory note, even an admission in the written statement may not avail the plaintiff, as the Court when giving a decree on such admission may be “acting on” the document within the meaning of Section 35 of the Stamp Act; see also Ankur Chunder Roy Chowdhry v. Madhub Chunder Gkose (1873) 21 W.R. 1.”

Irreconcilable inconsistency between two specific clauses

In case of documents like sale deeds, gift deeds, mortgage deeds also, if the apparently appearing inconsistency can be reconciled, the court will take that recourse. 

  • But, if the inconsistency is irreconcilable, the earlier or the subsequent part or specific clauses, the earlier part will prevail over the latter; but, in case of a Will, latter part will prevail, under Sec. 88 of the Succession Act. (Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321.)

Judgment Not be Read Like A Statute

The judgment is not required to be read like a statute. It cannot be construed like legislative enactments. (Dilip Kumar Pattnaik v. Himansu Pattnaik, 2019 CrLJ 2263; ILR 2019-2 Cut 21 8; 2019-1 OJR 337; 2019-1 OLR 519). For reading a judgment “the very words” found therein are to be referred to, i.e. ipsossima verba – “the very words”. In State of Rajasthan v. Ganeshi Lal, (2008) 2 SCC 533 it was observed as under:

  • “12. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid’s theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes. In London Graving Dock Co. Ltd. v. Horton, (1951) AC 737 at p.761), Lord Mac Dermot observed:
  • “The matter cannot, of course, be settled merely by treating the ipsissima vertra of Willes, J as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished judge.” (Quoted in: Dilip Kumar Pattnaik v. Himansu Pattnaik, 2019 CrLJ 2263; ILR 2019-2 Cut 21 8; 2019-1 OJR 337; 2019-1 OLR 519).

In Home Office v. Dorset Yacht Co., (1970) 2 AllER 294 Lord Reid stated as under:

  • “Lord Atkin’s speech…..is not to be treated as if it was a statute definition. It will require qualification in new circumstances.” Megarry, J in (1971) 1 WLR 1062 observed: “One must not, of course, construe even a reserved judgment of Russell L.J. as if it were an Act of Parliament.” And, in Herrington v. British Railways Board, (1972) 2 WLR 537 Lord Morris said:
  • “There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances made in the setting of the facts of a particular case.” (Quoted in: Dilip Kumar Pattnaik v. Himansu Pattnaik, 2019 CrLJ 2263; ILR 2019-2 Cut 21 8; 2019-1 OJR 337; 2019-1 OLR 519).

In Dilip Kumar Pattnaik v. Himansu Pattnaik, 2019 CrLJ 2263; ILR 2019-2 Cut 21 8; 2019-1 OJR 337; 2019-1 OLR 519, after quoting the aforestated English decisions it is observed as under:

  • “Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper.”
  • 15. The following words of Lord Denning in the matter of applying precedents have become locus classicus:
  • “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect, in deciding such cases, one should avoid the temptation to decide cases (as said by Cordozo) by matching the colour of one case against the colour of another. To decide therefore, on which side of the line a case falls, the broad resemblance to another case is not at all decisive.” ……
  • “Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the side branches else you will find yourself lost in thickets and branches. My plea is to keep the path to justice clear of obstructions which could impede it.”
  • 9-(a) In another decision reported in Goan Real Estate & Constrn. Ltd. Vrs. Union of India, (2010) 5 SCC 388 their Lordships have held that “A judgment, it is well settled, cannot be read as a statute. Construction of a judgment should be made in the light of the factual matrix involved therein. What is more important is to see the issues involved therein and the context wherein the observations were made. Observation made in a judgment, it is trite, should be read in isolation and out of context.”
  • 10. In the light of above principle, on reading of the Division Bench decision in Akapati Bhaskar Patro (supra), it is found that the later is applicable to the following category of persons while the earlier part refers that it shall not be applicable to the following cases. The dividing line between following category of persons and following cases is distinct and clear. Both are neither inconsistent nor intersecting. The very words ipsissima vertra dispels the doubt raised here.
  • 10-(a) Presently, for the facts unfolded by the parties, the legal embargo for the tenancy which was entered into by virtue of a lease is found not overcome. The case does not come under the four corners of the Section 441 of I.P.C. as amended by Orissa Act 22 of 1986. In view of the legal position clarified in the aforesaid Division Bench judgment, the cognizance order, on being tested suffers from illegality.”

Interpretation of Contracts

In Provash Chandra Dalui v. Biswanath Banerjee, 1989 Supp (1) SCC 487, it is observed as under:

  • ” ‘Ex praecedentibus et consequentibus optima fit inter-pretatio.’
  • The best interpretation is made from the context. Every contract is to be construed with reference to its object and the whole of its terms. The whole context must be considered to ascertain the intention of the parties. It is an accepted principle of construction that the sense and meaning of the parties in any particular part of instrument may be collected ‘ex antecedentibus et consequentibus;’ every part of it may be brought into action in order to collect from the whole one uniform and consistent sense, if that is possible.
  • As Lord Davey said in N.E. Railway v. Hastings, [1900] A.C. 260 (267),
  • “The deed must be read as a whole in order to ascertain the true meaning of its several clauses, and the words of each clause should be so interpreted as to bring them into harmony with the other provisions of the deed if that interpretation does no violence to the meaning of which they are naturally susceptible.”
  • In construing a contract the Court must look at the words used in the contract unless they are such that one may suspect that they do not convey the intention correctly. If the words are clear, there is very little the Court can do about it. In the construction of a written instrument it is legitimate in order to ascertain the true meaning of the words used and if that be doubtful it is legitimate to have regard to the circumstances surrounding their creation and the subject matter to which it was designed and intended they should apply.”

In Bharat Coking Coal Ltd. v. AMR Dev Prabha 2020 SCC OnLine SC 335, it is pointed out that ‘it must be noted that judicial interpretation of contracts in the sphere of commerce stands on a distinct footing than while interpreting statutes’. (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

  • Contractual interpretation ought not to have been grounds for the Constitutional Court (High Court) (See: Bharat Coking Coal Ltd. v. AMR Dev Prabha, 2020 SCC OnLine SC 335; Agmatel India Private Limited v. M/S Resoursys Telecom, AIR 2022 SC 1103)

Tender – If two interpretations possible, the interpretation of the author be accepted: In Silppi Constructions Contractors v. Union of India, 2019 SCC OnLine SC 1133, it is held as under:

  • “The authority floating the tender is the best judge of its requirements and, therefore, the court’s interference should be minimal. The authority which floats the contract or tender, and has authored the tender documents is the best judge as to how the documents have to be interpreted. If two interpretations are possible then the interpretation of the author must be accepted. The courts will only interfere to prevent arbitrariness, irrationality, bias, mala fides or perversity. With this approach in mind we shall deal with the present case.” . (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

Tenders or Award of Contracts

In Jagdish Mandal v. State of Orissa, (2007) 14 SCC 517, our Apex Court observed as under:

  • “22. Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made “lawfully” and not to check whether choice or decision is “sound”. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. .. A court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions:
  • (i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone; or Whether the process adopted or decision made is so arbitrary and irrational that the court can say:“the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached”;
  • (ii) Whether public interest is affected.
  • If the answers are in the negative, there should be no interference under Article 226. Cases involving blacklisting or imposition of penal consequences on a tenderer/contractor or distribution of State largesse (allotment of sites/shops, grant of licences, dealerships and franchises) stand on a different footing as they may require a higher degree of fairness in action.” (Quoted in: Agmatel India Private Limited v. M/S Resoursys Telecom AIR 2022 SC 1103)

Orbiter dicta of SC

Orbiter dicta of SC binding on High Courts in the absence of a direct pronouncement. The Supreme Court in Oriental Insurance Company Limited v. Meena Variyal ((2007) 5 SCC 428) emphasised as under:

  • “An obiter dictum of this Court may be binding only on the High Courts in the absence of a direct pronouncement on that question elsewhere by this Court. But as far as this Court is concerned, though not binding, it does have clear persuasive authority.”

Admission in pleading cannot be so Dissected

In Sainaba Umma v. Moideenkutty, ILR 1988-1 (Ker) 206; 1987-2 KLT 59, it is observed as under:

  • “The Privy Council in the decision in Motabhoy Mulla Essabhoy v. Mulji Haridas (42nd. App.103) observed:
    • “It is permissible for a tribunal to accept part and reject the rest of any witness’s testimony. But admission in pleading cannot be so dissected, and if it is made subject to a condition it must either be accepted subject to the condition or not accepted at all.”
  • The same view is expressed in the decision of the Calcutta High Court in Fateh Chand Murlidhar v. Juggilal Kamlapai (AIR 1955 Cal. 465). Following these decisions a Division Bench of the Calcutta High Court in J. Mc. Gaffin v. LIC of India (AIR 1978 Cal. 125) stated at page 127:
    • “These decisions, in our opinion, indicate that when a statement on admission is made in pleading together with further statement centering round, depending and standing on and conditional upon that admission, all the statements are to be taken and considered together in respect of such pleading.”
  • The Supreme Court in Hanumant v. State of M. P (AIR. 1952 SC. 343) stated at page 350:
    • “An admission must be used either as a whole or not at all.”

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End Notes

  • 93. Exclusion of evidence to explain or amend ambiguous document. –– When the language usedin a document is, on its face, ambiguous or defective, evidence may not be given of facts which wouldshow its meaning or supply its defects.
  • Illustrations
  • (a) A agrees, in writing, to sell a horse to B for “Rs. 1,000 or Rs. 1,500”. Evidence cannot be given to show which price was to be given.
  • (b) A deed contains blanks. Evidence cannot be given of facts which would show how they were meant to be filled.
  • 94. Exclusion of evidence against application of document to existing facts. –– When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.
  • Illustration
  • A sells to B, by deed, “my estate at Rampur containing 100 bighas”. A has an estate at Rampur containing100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.
  • 95. Evidence as to document unmeaning reference to existing facts. –– When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.
  • Illustration
  •  A sells to B, by deed, “my house in Calcutta”.
  • A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed.
  • These facts may be proved to show that the deed related to the house at Howrah.
  • 96. Evidence as to application of language which can apply to one only of several persons. –– When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one, of several persons or things, evidence may be given of facts which show which of those persons or things it was intended to apply to.
  • Illustrations
  • (a) A agrees to sell to B, for Rs. 1,000, “my white horse”. A has two white horses. Evidence may be give of facts which show which of them was meant.
  • (b) A agrees to accompany B to Haidarabad. Evidence may be given of facts showing whether Haidarabad in the Dekkhan or Haiderabad in Sind was meant.
  • 97. Evidence as to application of language to one of two sets of facts, to neither of which the whole correctly applies. –– When the language used applies partly to one set of existing facts, and partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.
  • Illustration
  • A agrees to sell to B “my land at X in the occupation of Y”. A has land at X, but not in the occupation of Y, and he has land in the occupation of Y but it is not at X. Evidence may be given of facts showing which he meant to sell.
  • 98. Evidence as to meaning of illegible characters, etc. –– Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense.
  • Illustration
  • A, sculptor, agrees to sell to B, “all my mods”. A has both models and modelling tools. Evidence may be given to show which he meant to sell.

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Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and 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

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

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

Interpretation of Statutes – Literal Rule, Mischief Rule and Golden Rule

Jojy George Koduvath

Purpose of Legislation – Curb Public Evil or to Effectuate Public Benefit

Justice G.P. Singh, in ‘Principles of Statutory Interpretation’, said:

  • “Legislation in modern State is actuated with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the problems before the Legislature based on information derived from past and present experience. It may also be designed by use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for, and, words chosen to communicate such indefinite ‘referents’ are bound to be, in many cases lacking in clarity and precision and thus giving rise to controversial questions of construction.” Quoted in: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

Interpretation and Construction

  • Interpretation is to ascertain or clarify the true meaning of the words, and explain the purpose of the legislation from the words of the statute.
  • Construction is a serious consideration of the statute than a mere interpretation. The purpose is to draw conclusions beyond the language of the statute. It is also used for clarifying inconsistencies or ambiguities in a serious way (beyond the language of the statute)  by considering the statute as a whole or by taking note of the purpose of legislation etc.

Cardinal principle of construction of statutes

  • Ordinarily, the language used by the legislature is indicative of legislative intent. In Kanailal Sur v. Paramnidhi Sadhu Khan, AIR 1957 SC 907,  Gajendragadkar, J. opined that “the first and primary rule of construction is that the intention of the Legislature must be found in the words used by the Legislature itself.”
  • But when the words are capable of bearing two or more constructions, they should be construed in light of the object and purpose of the enactment. The purposive construction of the provision must be “illumined by the goal, though guided by the word.” Kanta Goel v. BP Pathak, 1977 SCR (3) 412; X v. Principal Secretary, Health and Family Welfare Department, Govt.  of NCT of Delhi, AIR  2022 SC 4917.
  • The cardinal principle of the construction of statutes is to identify the intention of the legislature and the true legal meaning of the enactment.
  • The intention of the legislature is derived by considering the meaning of the words used in the statute, with a view to understanding the purpose or object of the enactment, the mischief, and its corresponding remedy that the enactment is designed to actualise. Justice G.P Singh, G.P. Singh: Principles Of Statutory Interpretation, (Lexis Nexis, 2016), at page 12; State of Himachal Pradesh v. Kailash Chand Mahajan, 1992 Supp (2) SCC 351; Union of India v. Elphinstone Spinning and Weaving Co. Ltd., (2001) 4 SCC 139; X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi, AIR  2022 SC 4917.  
  • See also: Ashoka Marketing Ltd. v. Punjab National Bank, AIR 1991 SC 855, 1990 (3) SCR 649. (New India Assurance Company Ltd. v. Nusli Neville Wadia, 2007 (14) SCALE 556, (2008) 3 SCC 279. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (SB Sinha, J.), (2008) 13 SCC 30).

Duty of Court – See Whether a Particular Case Falls Within the Law  Enacted

  •  An Act of Parliament/Legislature cannot foresee all types of situations and all types of consequences.  It is for the Court to see whether a particular case falls within the broad   principles   of   law   enacted   by   the   Legislature. Here, the principles of interpretation of statutes come in handy.   In spite of   the   fact   that experts in the   field assist   in drafting   the   Acts and   Rules, there are many occasions   where   the   language   used   and   the   phrases employed   in the   statute are not   perfect. Therefore, Judges and Courts need to interpret the words.  Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR 2018 SC 3606 (Five Judge Bench).

Interpretation – General Clauses Act:

  • If while interpreting a Statutory law, any doubt arises as to the meaning to be assigned to a word or a phrase or a clause used in an enactment and such word, phrase or clause is not specifically defined, it is legitimate and indeed mandatory to fall back on General Clauses Act. Notwithstanding this, we should remember that when there is repugnancy or conflict as to the subject or context between the General Clauses Act and a statutory provision which falls for interpretation, the Court must necessarily refer to the provisions of statute. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).

Interpretation – Internal aids and external aids:

  • The long title, the preamble, the heading, the marginal note, punctuation, illustrations, definitions or dictionary clause, a proviso to a section, explanation, examples, a schedule to the Act etc., are internal aids to construction. The external aids to construction are Parliamentary debates, history leading to the legislation, other statutes which have a bearing, dictionaries, and thesaurus. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).

Interpretation – Proviso to a Section in a Statute

The scope of the proviso in a Section in a Statute is to explain, modify or carve out an exception to the ‘main’ provision or section. The Supreme Court observed in Tribhovandas Haribhai Tamboli v. Gujarat Revenue Tribunal ((1991) 3 SCC 442) as under:

  • “It is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field, which is covered by the main provision, it carves out an exception to the main provision to which it has been enacted by the proviso and to no other. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is to confine to that case. Where the language of the main enactment is explicit and unambiguous, the proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it, by implication what clearly falls within its express terms. The scope of the proviso, therefore, is to carve out an exception to the main enactment and it excludes something which otherwise would have been within the rule. It has to operate in the same field and if the language of the main enactment is clear, the proviso cannot be torn apart from the main enactment nor can it be used to nullify by implication what the enactment clearly says nor set at naught the real object of the main enactment, unless the words of the proviso are such that it is its necessary effect.”

Ejusdem Generis and Noscitur a Sociis

Ejusdem Generis is the principle of interpretation of applying meaning to a doubtful word or words taken from the associated words. Usually this principle is applied when doubts are arisen whether the word or words fall within the general words like – other articles, etc., such things, similar acts, etc.

Our Apex Court, in DN Singh v. Commissioner of Income Tax (2023), the question came for consideration was whether ‘bitumen’ (used for tarring roads) would fall under “other valuable article” stated in “any money, bullion, jewellery or other valuable article” in Section 69A of the Income Tax. Section 69A reads as under:

  • “69A. Unexplained money, etc. – Where in any financial year the assessee is found to be the owner of any money, bullion, jewellery or other valuable article and … not recorded in the books of account, …  may be deemed to be the income of the assessee for such financial year.”

It was held in DN Singh v. Commissioner of Income Tax (2023) that ‘bitumen is not a valuable article’ when the Principle of Ejusdem Generis is applied.

Noscitur a Sociis is a rule is broader than the maxim ejusdem generis.  It contains the basic philosophy that the meaning of a doubtful word is ascertained by reference to the meaning of words associated with it.

Marginal Note – Prima Facie Furnishes Some Clue

  • It is undoubtedly true that the marginal note to a section cannot be referred to for the purpose of construing the section but it can certainly be relied upon as indicating the drift of the section or to show what the section is dealing with (Collins MR in Bushel v. Hammond Bushel v. Hammond, [1904] 2 KB 563).
  • It cannot control the interpretation of the words of a section particularly when the language of the section is clear and unambiguous (Bhinka & ors. v. Charan Singh [1959 Supp. (2) SCR 798) but, being part of the statute, it prima facie furnishes some clue as to the meaning and purpose of the section. (Bengal Immunty Company Limited v. State of Bihar, [1955] 2 SCR 603; K.P. Varghese v. Income-tax Officer, Ernakulam [(1981) 4 SCC 173; Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.)

Function of the Courts is only to Expound and Not to Legislate

  • The function of the Courts is only to expound and not to legislate. District Mining Officer vs. Tata Iron and Steel Co., (2001) 7 SCC 358. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

THREE RULES OF INTERPRETATION

There are three rules of Interpretation of Statutes and Documents.

  • They are:
  • LITERAL RULE,
  • MISCHIEF RULE, and
  • GOLDEN RULE. 

THE LITERAL RULE

  • According to this rule, the words in the statute or the document are taken in its literal or plain meaning. It is also called the ‘plain meaning rule or Grammatical Rule’. This rule can be applied only when the language in the statute or the document renders only one meaning, and the intention of the legislature or author is unambiguous and completely clear. When a court has to give effect to the statute or document, it has to simply give effect to the language of the statute or document and it need not look into the consequences that may be arisen therefrom.

If the words are plain and clear no need for any interpretation

  • The need to resort to any   interpretative   process   arises   only where the meaning is not manifest on the plain words of the statute.  If the words are plain   and   clear   and   directly   convey   the meaning,   there   is   no   need   for   any interpretation. Mangalore   Chemicals & Fertilizers Ltd.   v. Dy. Commissioner of Commercial Taxes, (1992) Supp. 1 SCC 21; Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).

Plain reading of the statute & strict interpretation

  • To say that strict interpretation involves plain reading of the statute, and to say that one has to utilize strict interpretation in the event of ambiguity is self-contradictory. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

Literal rules of construction

  • The literal rules of construction require the wording of the Act to be construed according to its literal and grammatical meaning whatever the result may be. Unless otherwise provided, the same word must normally be construed throughout the Act in the same sense, and in the case of old statutes regard must be had to its contemporary meaning if there has been no change with the passage of time. Punjab Land Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court Chandigarh, (1990) 3 SCC 682, (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • Literal interpretation would involve strict rule of interpretation, but strict rule may not necessarily involve the former, especially in the area of taxation. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

Strict interpretation & Literal or Plain Meaning Test

  • Strict interpretation of a statute certainly involves literal or plain meaning test. The other tools of interpretation, namely contextual or purposive interpretation cannot be applied nor any resort be made to look to other supporting material, especially in taxation statutes. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).
  • ‘Strict   interpretation’   does   not   encompass   such literalism, which lead to absurdity and go against the legislative intent. As noted above, if literalism is at the far   end   of   the   spectrum,   wherein   it   accepts   no implications   or   inferences,   then   ‘strict   interpretation’ can   be   implied   to   accept   some   form   of   essential inferences which literal rule may not accept. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).
  • Equity has no place in interpretation of a tax statute. Strictly one has to look to the   language   used;   there   is   no   room   for   searching intendment   nor   drawing   any   presumption. Furthermore, nothing has to be read into nor should anything   be   implied   other   than   essential   inferences while considering a taxation statute. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).
  • A taxing statute is to be strictly construed. …. There is no equity about a tax. There is no presumption as to tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used. Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).

‘Strict Interpretation’ – Black’s Law Dictionary (10th Edn.)

  • An interpretation according to the narrowest, most literal meaning of the words without regard for context and other permissible meanings.   An interpretation according to what the interpreter narrowly believes to have been the specific intentions or understandings of the text’s authors or ratifiers, and no more. Also termed strict construction, literal interpretation; literal construction; restricted interpretation; interpretatio stricta; interpretatio restricta; interpretatio verbalis. The philosophy underlying strict interpretation of statues. Also termed as close interpretation; interpretatio restrictive. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • Willam M. Lile et al., Brief Making and the Use of Law Books, 343 (Roger W. Cooley  & Charles Lesly Ames eds., 3d ed. 1914).
  • “Strict construction of a statute is that which refuses to expand the law by implications or equitable considerations, but confines its operation to cases which are clearly within the letter of the statute, as well as within its spirit or reason, not so as to defeat the manifest purpose of the legislature, but so as to resolve all reasonable doubts against the applicability of the statute to the particular case.’ (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

‘Strict Interpretation’ – Salmond, Jurisprudence  (Glanville L. Williams ed., 10th ed. 1947).

  • “Strict interpretation is an equivocal expression, for it means either literal or narrow. When a provision is ambiguous, one of its meaning may be wider than the other, and the strict (i.e., narrow) sense is not necessarily the strict (i.e., literal) sense.”
  • When the words in a statute are clear, plain and unambiguous and only one meaning can be inferred, the Courts are bound to give effect to the said meaning irrespective of consequences.
  • ‘The plain meaning rule’ suggests that when the language in the statute is plain and unambiguous, the Court has to read and understand the plain language as such, and there is no scope for any interpretation.
  • In applying rule of plain meaning any hardship and inconvenience cannot be the basis to alter the meaning to the language employed by the legislation. This is especially so in fiscal statutes and penal statutes.

Plain Construction

  • Nevertheless, if the plain language results in absurdity, the Court is entitled to determine the meaning of the word in the context in which it is used keeping in view the legislative purpose.
  • Not only that, if the plain construction leads to anomaly and absurdity, the court having regard to the hardship and consequences that flow from such a provision can even explain the true intention of the legislation. Assistant Commissioner v. Mathapathi Basavannewwa, (1995) 6 SCC 355: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • If the words in the statute are plain and unambiguous, it becomes necessary to expound those words in their natural and ordinary sense. The words used declare the intention of the Legislature. (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

Words capable of one construction only – Not be open to hypothetical construction

  • It is settled law that where the intention of statutory amendment is clear and expressive, words cannot be interpolated. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30
  • If the language is plain, clear and explicit, it must be given effect and the question of interpretation does not arise. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
  • If the words used are capable of one construction only then it would not be open to the Courts to adopt any other hypothetical construction on the ground that such construction is more consistent with the alleged object and policy of the Act. Kanai Lal Sur v. Paramnidhi Sadhukhan, AIR 1957 SC 907: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

THE MISCHIEF RULE

  • Heydon’s case, (1584)
  • This rule called Heydon’s rule, is originated, by Lord Poke in Heydon’s case, (1584) 3 Co Rep 7a: (1584) 76 ER 637. It is also called purposive construction rule, for the aim of this rule is to cure or prevent the mischief of the language of the statute or document, and give effect to its intention or purpose. As per this rule, the meaning and purport of the statute or document is explored and interpreted in that way.  The rule of purposive interpretation was articulated in Heydon’s case  in the following terms:
  • “for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law) four things are to be discerned and considered:
    • 1st. What was the common law before the making of the Act.
    • 2nd. What was the mischief and defect for which the common law did not provide.
    • 3rd. What remedy Parliament hath resolved and appointed to cure the disease of the commonwealth.
    • And, 4th. The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi, AIR 2022 SC 4917)
  • Smith v. Huges, 1960 WLR 830:
  • In 1959, the Street Offences Act was enacted in the UK with a view to prohibit prostitutes from soliciting public passing on the roads. Thereon, the prostitutes started soliciting from balconies and windows of the buildings by the side of the roads. The prostitutes were charged under the Act. The courts applied the mischief rule of interpretation and gave effect to the intention of the Act.
  • Kanwar Singh v. Delhi Administration, AIR 1965 SC 871:
  • Issues of the case were as follows-  Delhi Corporation Act, 1902 authorised the corporation to round up the abandoned cattle grazing on the government land. The MCD rounded up the cattle belonging to Kanwar Singh. It was contended by Kanwar Singh that the word abandoned means the loss of ownership and those cattle which were round up belonged to him and hence, was not abandoned. The court held that the mischief rule had to be applied and the word abandoned must be interpreted to mean let loose or left unattended and even the temporary loss of ownership would be covered as abandoned.
  • In Bengal Immunity Co. v. State of Bihar, (1955) 2 SCR 603 41 (1988) 3 SCC 60  the Constitution Bench applied the mischief rule in Heydon’s case in the construction of Article 286 of the Constitution.

Court gives effect to the intent of the statute

  • In X v. Principal Secretary, Health and Family Welfare Department, Govt.  of NCT of Delhi AIR 2022 SC 4917, it is observed as under: “While much of law’s benefits were (and indeed are) rooted in the institution of marriage, the law in modern times is shedding the notion that marriage is a precondition to the rights of individuals (alone or in relation to one another). Changing social mores must be borne in mind when interpreting the provisions of an enactment to further its object and purpose. Statutes are considered to be “always speaking.” (Dharni Sugars and Chemicals Ltd v. Union of India, (2019) 5 SCC 480)”.
  • Where the meaning of the Statute is neither clear nor sensible, and where a purposive construction is warranted and it is expedient to give effect to the intent of the statute, the court’s endeavour would be to give a meaning to the provisions and not render it otiose. Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30
  • If they (words) should be added, the statute would more than likely fail to carry out the legislative intent. The words are the skin of the language which the legislature intended to convey. Where the meaning of the statute is clear and sensible, either with or without omitting the words or adding one, interpolation is improper, since the primary purpose of the legislative intent is what the statute says to be so. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
  • A statute must be construed according to the intention of the Legislature and the Courts should act upon the true intention of the legislation while applying law and while interpreting law. District Mining Officer vs. Tata Iron and Steel Co., (2001) 7 SCC 358
  • If a statutory provision is open to more than one meaning, the Court has to choose the interpretation which represents the intention of the Legislature. District Mining Officer vs. Tata Iron and Steel Co., (2001) 7 SCC 358, (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

Courts to carry out Purpose of the Act -Look Text as a Whole

  • In Principles of Statutory Interpretation by Justice G.P. Singh, it is stated that a statute must be read in its context when attempting to interpret its purpose. Justice G.P Singh, G.P. Singh: Principles of Statutory Interpretation, (LexisNexis, 2016), at page 35 (See: X v. Principal Secretary, Health and Family Welfare Department, Govt.  of NCT of Delhi AIR 2022 SC 4917)
  • A court’s power to purposively interpret a statutory text does not imply that a judge can substitute legislative intent with their own individual notions. The alternative construction propounded by the judge must be within the ambit of the statute and should help carry out the purpose and object of the Act in question. (X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi AIR 2022 SC 4917)
  • Context includes reading the statute as a whole, referring to the previous state of law, the general scope of the statute, surrounding circumstances and the mischief that it was intended to remedy. (Union of India v. Sankalchand Himatlal Sheth, (1977) 4 SCC 193, Reserve Bank of India v. Peerless General Finance and Investment Co. Ltd., (1987) 1 SCC 424 ; X v. Principal Secretary, Health and Family Welfare Department, Govt.  of NCT of Delhi AIR 2022 SC 4917.)

The treatise, Principles of Statutory Interpretation by Justice G.P. Singh, explains –

  • “For ascertaining the purpose of a statute one is not restricted to the internal aid furnished by the statute itself, although the text of the statute taken as a whole is the most important material for ascertaining both the aspects of ‘intention’. Without intending to lay down a precise and exhaustive list of external aids, Lord Somervell has stated:
  • “The mischief against which the statute is directed and, perhaps though to an undefined extent the surrounding  circumstances can be considered. Other statutes in pari materia and the state of the law at the time are admissible.”
  • “These external aids are also brought in by widening the concept of ‘context’ “as including not only other enacting provisions of the same statute, but its preamble, the existing state of the law, other statutes in pari materia, and the mischief which the statute was intended to remedy.” In the words of Chinappa Reddy, J.: “Interpretation must depend on the text and the context. They are the bases of interpretation. One may well say if the text is the texture, context is what gives colour. Neither can be ignored. Both are important. That interpretation is best which makes the textual interpretation match the contextual. A statute is best interpreted when we know why it was enacted.” (X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi, AIR 2022 SC 4917.)

In Kehar Singh v. State (Delhi Admn.), a three-judge Bench of our Apex Court held:

  • “231. During the last several years, the “golden rule” has been given a go-by. We now look for the “intention” of the legislature or the “purpose” of the statute. First, we examine the words of the statute. If the words are precise and cover the situation in hand, we do not go further. We expound those words in the natural and ordinary sense of the words. But, if the words are ambiguous, uncertain or any doubt arises as to the terms employed, we deem it as our paramount duty to put upon the language of the legislature rational meaning. We then examine every word, every section and every provision. We examine the Act as a whole. We examine the necessity which gave rise to the Act. We look at the mischiefs which the legislature intended to redress. We look at the whole situation and not just one-to-one relation. We will not consider any provision out of the framework of the statute. We will not view the provisions as abstract principles separated from the motive force behind. We will consider the provisions in the circumstances to which they owe their origin. We will consider the provisions to ensure coherence and consistency within the law as a whole and to avoid undesirable consequences.…” (Quoted in: X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi AIR 2022 SC 4917; Indian Handicrafts Emporium v. Union of India, 2003-7 SCC 589, National Insurance Co.  Ltd.  v. Laxmi Narain Dhut,  2007-3 SCC 700)

Call in external and internal aids

In Kehar Singh v. State (Delhi Admn.), a three-judge Bench of the Apex Court further held:

  • “233. For this purpose, we call in external and internal aids:
  • “External aids are: the Statement of Objects and Reasons when the Bill was presented to Parliament, the reports of the Committee, if any, preceding the Bill, legislative history, other statutes in pari materia and legislation in other States which pertain to the same subject matter, persons, things or relations.
  • Internal aids are: Preamble, scheme, enacting parts of the statutes, rules of languages and other provisions in the statutes.” X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi AIR 2022 SC 4917.

Progressive legislation must be interpreted in favour of the beneficiaries

Progressive and beneficial legislation must be interpreted in favour of the beneficiaries when it is possible to take two views of a legal provision.

  • Kerala Fishermen’s Welfare Fund Board v. Fancy Food, (1995) 4 SCC 341  
  • Bharat Singh v. Management of New Delhi Tuberculosis Centre, New Delhi, (1986) 2 SCC 614 
  • Bombay Anand Bhavan Restaurant v. ESI Corpn., (2009) 9 SCC 61
  • Union of India v. Prabhakaran Vijaya Kumar, (2008) 9 SCC 527 
  • X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi , AIR 2022 SC 4917

In KH Nazar v. Mathew K Jacob, (2020) 14 SCC 126, Nageshwar Rao, J. observed as under:

  • “11. Provisions of a beneficial legislation have to be construed with a purpose-oriented approach. The Act should receive a liberal construction to promote its objects. Also, literal construction of the provisions of a beneficial legislation has to be avoided. It is the court’s duty to discern the intention of the legislature in making the law. Once such an intention is ascertained, the statute should receive a purposeful or functional interpretation.” (Quoted in X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi , AIR 2022 SC 4917).

In S. Gopal Reddy v. State of A.P., (1996) 4 SCC 596 while interpreting the Dowry Prohibition Act 1961 (a beneficial legislation), this Court interpreted the meaning of “dowry” by adopting the purposive interpretation approach:

  • “12. It is a well-known rule of interpretation of statutes that the text and the context of the entire Act must be looked into while interpreting any of the expressions used in a statute. The courts must look to the object which the statute seeks to achieve while interpreting any of the provisions of the Act. A purposive approach for interpreting the Act is necessary. We are unable to persuade ourselves to agree with Mr Rao that it is only the property or valuable security given at the time of marriage which would bring the same within the definition of “dowry” punishable under the Act, as such an interpretation would be defeating the very object for which the Act was enacted. Keeping in view the object of the Act, “demand of dowry” as a consideration for a proposed marriage would also come within the meaning of the expression dowry under the Act. If we were to agree with Mr Rao that it is only the “demand” made at or after marriage which is punishable under Section 4 of the Act, some serious consequences, which the legislature wanted to avoid, are bound to follow.
  • Take for example a case where the bridegroom or his parents or other relatives make a “demand” of dowry during marriage negotiations and later on after bringing the bridal party to the bride’s house find that the bride or her parents or relatives have not met the earlier “demand” and call off the marriage and leave the bride’s house, should they escape the punishment under the Act. The answer has to be an emphatic “no”. It would be adding insult to injury if we were to countenance that their action would not attract the provisions of Section 4 of the Act. Such an interpretation would frustrate the very object of the Act and would also run contrary to the accepted principles relating to the interpretation of statutes.” (Quoted in X v. Principal Secretary, Health and Family Welfare Department, Govt.  of NCT of Delhi , AIR 2022 SC 4917).

Law be Interpreted in terms of Changing Needs

  • In Badshah v. Urmila Badshah Godse, (2014) 1 SCC 188 our Apex Court observed that the law should be interpreted in terms of the changing needs of the times and circumstances. AK Sikri, J. speaking for a two-judge Bench of this Court, said that it is the duty of courts to bridge the gap between law and society by advancing a purposive interpretation of statutes:
  • “16. The law regulates relationships between people. It prescribes patterns of behaviour. It reflects the values of society. The role of the court is to understand the purpose of law in society and to help the law achieve its purpose. But the law of a society is a living organism. It is based on a given factual and social reality that is constantly changing. Sometimes change in law precedes societal change and is even intended to stimulate it. In most cases, however, a change in law is the result of a change in social reality. Indeed, when social reality changes, the law must change too. Just as change in social reality is the law of life, responsiveness to change in social reality is the life of the law. It can be said that the history of law is the history of adapting the law to society’s changing needs. In both constitutional and statutory interpretation, the court is supposed to exercise discretion in determining the proper relationship between the subjective and objective purposes of the law.” (Quoted in X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi, AIR 2022 SC 4917).
  • In X v. Principal Secretary, Health and Family Welfare Department, Govt.  of NCT of Delhi , AIR 2022 SC 4917, it is observed as under: “As society changes and evolves, so must our mores and conventions. A changed social context demands a readjustment of our laws. Law must not remain static and its interpretation should keep in mind the changing social context and advance the cause of social justice.”

Subordinate legislation must be in consonance with legislative policy  and purpose

  • A subordinate legislation must be reasonable and in consonance with the legislative policy. It should be interpreted in a meaningful manner, so as to give effect to the purpose and object of the enabling Act. The interpretation which is in consonance with the statutory scheme and gives effect to the statute must be adopted. X v. Principal Secretary, Health And Family Welfare Department, Govt. of NCT of Delhi, AIR 2022 SC 4917.
  • The interpretation of a subordinate legislation should be consistent with the enabling Act. Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, AIR 1966 SC 12; Union of India v. Tulsiram Patel, (1986) 3 SCC 398; M.L. Kamra v. Chairman-cum-Managing Director, New India Assurance Co. Ltd. (1992) 1 SCR 220; St Johns Teachers Training Institute v. Regional Director National Council of Teacher Education, (2003) 3 SCC 321; X v. Principal Secretary, Health And Family Welfare Department, Govt.  of NCT of Delhi, AIR 2022 SC 4917

Armchair Rule

  • Interpreting a statute court will put itself in the armchair of the reasonable legislature. Entertainment Network v. Super Cassette Industries, (SB Sinha, J.), 2008-13 SCC 30, AIR  2009 SC 1150.

THE GOLDEN RULE

  • It is a deviation from the literal rule. It also applies to the interpretation of Statutes and all Instruments.
  • It applies when literal rule fails for the words used by the author of a document or legislature could not be given their natural meaning, or when it is unclear or renders more than one meaning.
  • In such cases the apt meaning is given by interpretation, modifying  the meaning of the absurd term, or choosing one meaning from more than one meaning.
  • But, in certain decisions it is observed that the Golden Rule of Interpretation is “the interpretation in conformity with the plain language” of the statute. (See: M/S Patil Automation Private Ltd. v. Rakheja Engineers Private Ltd., AIR 2022 SC 3848, 2022-10 SCC 1).

Grey v. Pearson, 1857

  • The golden rule of interpretation was propounded for the first time by Lord Wensleydale, in Grey v. Pearson, 1857 (6) HLC 61, in the construction of a Will. (See: Ms. Eera Through Dr. Manjula v.  State  (Govt. Of NCT of Delhi), , (2017) 15 SCC 133). It requires giving effect to the actual meaning of the words used in statutes and other documents.  This rule gives effect to the literal or ordinary meaning of the words used.
  • In Grey v. Pearson, 1857 (6) HLC 61, Lord Wensleydale declared as under:
  • “I have been long and deeply impressed with the wisdom of the rule, now, I believe, universally adopted, at least in the Courts of Law in Westminster Hall, that in construing wills and indeed statutes, and all written instruments, the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be modified, so as to avoid that absurdity and inconsistency, but no farther. This is laid down by Mr. Justice Burton, in a very excellent opinion, which is to be found in the case of Warburton v. Loveland.”

“Golden Rule” covers Wills, Statutes and all Instruments

After quoting the  above passage from Grey v. Pearson, 1857 (6) HLC 61, it is observed in Ms. Eera Through Dr. Manjula v.  State (Govt. Of NCT of Delhi), AIR 2017 SC 34577, as under:

  • “This celebrated passage has since come to represent what has been described as the ‘Golden Rule’ of interpretation of statutes. The construction of a clause in a will was before the House of Lords and not the construction of a statute. Nevertheless, the “Golden Rule” was held to cover the construction of wills, statutes and all other written instruments.”

Lee v. Knapp, (1967) 2 QB 442

  • In this case, it was required to interpret the world ‘stop’. Under the relevant Act, a driver causing an accident had to ‘stop’ after the accident. But, the driver in this case stopped the vehicle for a moment after causing the accident and then moved away. Applying the golden rule the Court held that requirement of the section had not been followed for the driver did not ‘stop for a reasonable period of time’ and made an attempt to look for the interested persons to make necessary inquiries for him about the accident.

U. P. Bhoodan Yagna Samiti v. Brij Kishore, AIR 1988 SC 2239

  • In this case Section 14 of the U.P Bhoodan Yagna Act, 1953 had to be interpreted. This Section provided land for “landless person”. It was interpreted as the “landless agricultural labourers” though the Section did not specify that such landless persons should be agricultural labourers or whose source of livelihood should be agriculture; and source of livelihood of those persons should not be trade and business.

Rakesh Kumar Paul v. State of Assam, (2017)

  • Our Apex Court in Rakesh Kumar Paul v. State of Assam, (2017) 15 SCC 67 held as under:
  • “67. While interpreting any statutory provision, it has always been accepted as a Golden rule of Interpretation that the words used by the legislature should be given their natural meaning. Normally, the courts should be hesitant to add words or subtract words from the statutory provision. An effort should always be made to read the legislative provision in such a way that there is no wastage of words and any construction which makes some words of the statute redundant should be avoided. No doubt, if the natural meaning of the words leads to an interpretation which is contrary to the objects of the Act or makes the provision unworkable or highly unreasonable and arbitrary, then the courts either add words or subtract words or read down the statute, but this should only be done when there is an ambiguity in the language used.” Quoted in: V. Senthil Balaji Vs. The State represented by Deputy Director (2023)

Advantages of Golden rule

  • This rule simply puts the words in the statute or deed work. It is destined to operate in between ‘literal interpretation’ and ‘mischief-rule interpretation’.
  • It gives effect to the words used by the legislature or author, in its ordinary meaning; but, picking up the most sensible and apt meaning to the words used the statute or deed – susceptible to more than one meaning.
  • Applying the Golden Rule, one can deviate from the meaning of words given previously, if it is susceptible to more than one meaning.
  • Drafting errors in status and documents can be corrected without much effort.

Disadvantage of Golden Rule

  • There is no definite frame-work or guidelines.
  • It is susceptible for change according to the interpreter or court, if it is accommodative of more than one meaning.

Ambiguous Statute, the court can at best iron out the creases

  • If found ambiguous or unintended, the court can at best iron out the creases. Any wrong order or defective legislation cannot be righted merely because it is wrong. At best the court can quash it, if it violates the fundamental rights or is ultra vires of the power or manifestly illegal vitiated by fundamental laws or gross miscarriage of justice. Indian Administrative Services (SCS) Association, U.P. v. Union of India [1993 Supp. (1) SCC 730], Entertainment Network (India) Ltd. v. Super Cassette Industries Ltd., (2008) 13 SCC 30.
  • If   the   words   used   are ambiguous   and   reasonable   open   to   two interpretations benefit of interpretation is given   to   the   subject   [Express   Mill   v. Municipal Committee, Wardha, AIR 1958 SC 341].  Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).

JUDICIAL REVIEW OF LEGISLATION

Judiciary Protector of Constitution as ultimate arbiter in interpretation of the Constitution

The right and authority to do the Judicial Review of enactments promulgated by Legislatures are vested with the High Courts and the Supreme Court. By Judicial Review, the Courts test the validity of enactments under the provisions of the Constitution.

In Binoy Viswam v. Union of India, (2017) 7 SCC 59, our Apex Court held as follows:

  • “88. Undoubtedly, we are in the era of liberalised democracy. In a democratic society governed by the Constitution, there is a strong trend towards the constitutionalisation of democratic politics, where the actions of democratically elected Government are judged in the light of the Constitution. In this context, judiciary assumes the role of protector of the Constitution and democracy, being the ultimate arbiter in all matters involving the interpretation of the Constitution.
  • 89. Having said so, when it comes to exercising the power of judicial review of legislation, the scope of such a power has to be kept in mind and the power is to be exercised within the limited sphere assigned to the judiciary to undertake the judicial review. This has already been mentioned above. Therefore, unless the petitioner demonstrates that Parliament, in enacting the impugned provision, has exceeded its power prescribed in the Constitution or this provision violates any of the provision, the argument predicated on “limited governance” will not succeed. One of the aforesaid ingredients needs to be established by the petitioners in order to succeed.” (Quoted in Dr. Jaya Thakur v. Union of India, 2023)

Judicial Review

The Apex Court held in this case (Dr. Jaya Thakur Vs. Union of India) as under –

  • “It could thus be seen that the role of the judiciary is to ensure that the aforesaid two organs of the State i.e. the Legislature and the Executive function within the constitutional limits. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The role of this Court is limited to examine as to whether the Legislature or the Executive has acted within the powers and functions assigned under the Constitution. However, while doing so, the court must remain within its self-imposed limits.”

The scope of the judicial review in examining the legislative functions of the Legislature with regard to validity of the Amendments were considered in the following decisions-

  • Asif Hameed v. State of Jammu and Kashmir, 1989 Supp (2) SCC 364
  • Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles [356 US 86]
  • Binoy Viswam v. Union of India and others2222 (2017) 7 SCC 59

The Apex Court (Dr. Jaya Thakur v. Union of India) elaborately quoted  Binoy Viswam v. Union of India, (2017) 7 SCC 59, to pointed out  the following –

a. Judicial Review – Grounds available (on the validity of a piece of legislation): The grounds of judicial review that are available to adjudge the validity of a piece of legislationare two and “there is no third ground.”  (State of A.P. v. McDowell & Co., 1996-3 SCC 709, State of M.P. v. Rakesh Kohli, 2012- 6 SCC; State of M.P. v. Rakesh Kohli, 2012-6 SCC 312). The grounds are:

  • First, Legislation, not within the competence of the legislature, and
  • Second, Legislation, in contravention of any of the fundamental rights stipulated in Part III of the Constitution or any other right/provision of the Constitution.

b. Arbitrariness and Unreasonableness By Itself Do Not Constitute A Ground For striking down a statute (though they are Grounds for Administrative Action): Pointing out that there are only two grounds, (1) lack of legislative competence and (2) violation of any of the fundamental rights, and no third ground to invalidate any piece of legislation, it was observed in State of A.P. v. McDowell & Co. 1996-3 SCC 709, as under:

  • “No enactment can be struck down by just saying that it is arbitrary [An expression used widely and rather indiscriminately – an expression of inherently imprecise import. The extensive use of this expression in India reminds one of what Frankfurter, J. said in Hattie Mae Tiller v. Atlantic Coast Line Railroad Co., 87 L Ed 610 : 318 US 54 (1943): “The phrase begins life as a literary expression; its felicity leads to its lazy repetition and repetition soon establishes it as a legal formula, undiscriminatingly used to express different and sometimes contradictory ideas”, said the learned Judge.] or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. An enactment cannot be struck down on the ground that court thinks it unjustified. Parliament and the legislatures, composed as they are of the representatives of the people, are supposed to know and be aware of the needs of the people and what is good and bad for them.
  • The court cannot sit in judgment over their wisdom. In this connection, it should be remembered that even in the case of administrative action, the scope of judicial review is limited to three grounds viz.
    • unreasonableness, which can more appropriately be called irrationality,
    • illegality, and
    • procedural impropriety
  • (see: Council of Civil Service Unions v. Minister for the Civil Service, 1984-3 All ER 935 (HL) which decision has been accepted by this Court as well).
  • The applicability of doctrine of proportionality even in administrative law sphere is yet a debatable issue.
  • (See the opinions of Lords Lowry and Ackner in R. v. Secy. of State for the Home Deptt., ex p Brind, (1991) 1 All ER 720 (HL).
  • It would be rather odd if an enactment were to be struck down by applying the said principle when its applicability even in administrative law sphere is not fully and finally settled.” (Quoted in State of M.P. v. Rakesh Kohli, 2012-6 SCC 312)
  • A legislation cannot be challenged simply on the ground of unreasonableness because that by itself does not constitute a ground. The validity of a constitutional amendment and the validity of plenary legislation have to be decided purely as questions of constitutional law. This Court in State of Rajasthan v. Union of India [State of Rajasthan v. Union of India, (1977) 3 SCC 592] said : (SCC p. 660, para 149)”
  • Also referred: State of WB v. EITA India Ltd., (2003) 5 SCC 239, Rajbala v. State of Haryana, (2016) 2 SCC 445 : AS Krishna v. State of Madras, AIR 1957 SC 297.
  • A fortiori, a law cannot be invalidated on the ground that the legislature did not apply its mind or it was prompted by some improper motive.
  • In K.T. Plantation (P) Ltd. v. State of Karnataka, (2011) 9 SCC 1, it was observed as under:
  • “205. Plea of
    • unreasonableness,
    • arbitrariness,
    • proportionality, etc.
  • always raises an element of subjectivity on which a court cannot strike down a statute or a statutory provision, especially when the right to property is no more a fundamental right. Otherwise the court will be substituting its wisdom to that of the legislature, which is impermissible in our constitutional democracy.”

c. Judicial Review – First Ground – Ultra Vires The Constitution: In Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, following pertinent observations were made –

  • “219. A legislation passed by Parliament can be challenged only on constitutionally recognised grounds. Ordinarily, grounds of attack of a legislation is whether the legislature has legislative competence or whether the legislation is ultra vires the provisions of the Constitution. If any of the provisions of the legislation violates fundamental rights or any other provisions of the Constitution, it could certainly be a valid ground to set aside the legislation by invoking the power of judicial review.

d. 2nd Ground – Violation of Fund. Rigt. – Presumption In Favour of Constitutionality

  • In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed as under:
  • ’15. The courts, it is accepted, must presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the need is deemed to be the clearest …” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
  • In Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731, it was observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it. It stated as under:
  • ’15. … and finally that in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge, matters of common report, the history of the times and may assume every state of facts which can be conceived existing at the time of legislation.” (reiterated in Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.)
  • In Hamdard Dawakhana v. Union of India, AIR 1960 SC 554, reiterated the principle that presumption was always in favour of constitutionality of an enactment and observed as under:
  • ‘8. Therefore, when the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject-matter, the area in which it is intended to operate, its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all the factors such as history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the true reason for the remedy.’ (referred Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942, Bengal Immunity Co. Ltd. v. State of Bihar, AIR 1955 SC 661, Charanjit Lal Chowdhury v. Union of India, 1950 SCC 833 : AIR 1951 SC 41, and State of Bombay v. F.N. Balsara,  1951 SCC 860 : AIR 1951 SC 318.)

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Interpretation of Penal and Taxation Statutes

In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation.

  • A taxing legislation should be interpreted wholly by the   language   of   the   notification. Hansraj Gordhandas v. H.H. Dave, Asst. Collector of  Central  Excise  &  Customs,  Surat  and  Ors., AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)    
  • The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocent might become victims of discretionary decision making. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • Insofar as taxation statutes are concerned, Article 265 of the Constitution prohibits the State from extracting tax from the citizens without authority of law. (Art. 265 – Taxes not to be imposed save by authority of law: No tax shall be levied or collected except by authority of law) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • In the matter of interpretation of charging section of a taxation statute, strict rule of interpretation is mandatory. Collector of Central Excise v. Parle Exports (P) Ltd., (1989) 1 SCC 345 Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • When two views are possible, in the matter of interpretation of a charging/taxation section, one favourable to the assessee has to be preferred, is unexceptionable. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

Exemption   clauses or exemption notifications

  • A person who claims an exemption has to establish his case. Mangalore   Chemicals  &  Fertilizers  Ltd.   vs.  Dy. Commissioner  of Commercial  Taxes, (1992) Supp. 1 SCC 21
  • The law is well settled that a person who claims exemption or concession has to establish   that   he   is   entitled   to   that exemption   or   concession.     A   provision providing for an exemption, concession or exception, as the case may be, has to be construed strictly with certain exceptions depending upon the settings on which the provision has been placed in the statute and the object and purpose to be achieved. Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236.
  • If exemption is available on complying with certain conditions, the conditions have to be   complied   with.   The   mandatory requirements of those conditions must be obeyed   or   fulfilled   exactly,   thought   at times, some latitude can be shown, if there is   failure   to   comply   with   some requirements   which   are   directory   in nature,   the   non¬compliance   of   which would not affect the essence or substance of the notification granting exemption. Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236.
  • This, however, did not in any manner tinker with the view that   an   ambiguous   exemption   clause   should   be interpreted   favouring   the   revenue.  Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1. But, exemption notification should be interpreted strictly. 
  • The burden of   proving applicability of Exemption clause or notification  would be on the assesse.  (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • In a taxing statute there is no room for any intendment but regard must be had to the clear meaning of the words.  The entire matter is governed wholly by the language of the notification.  If the tax¬payer is within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the exempting authority.   If such intention can be   gathered   from   the   construction   of   the words   of   the   notification   or   by   necessary implication therefrom, the matter is different, but   that   is   not   the   case   here. Hansraj Gordhandas v. H.H. Dave, Asst. Collector of  Central  Excise  &  Customs,  Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • Lord Watson in Salomon vs. Salomon & Co., (1897) AC 22) observed: ‘Intention of the Legislature is a common but very   slippery   phrase,   which,   popularly understood   may   signify   anything   from intention embodied in positive enactment to speculative opinion as to what the legislature probably would have meant, although there has been an omission to enact it.  In a Court of   Law   or   Equity,   what   the   Legislature intended to be done or not to be done can only   be   legitimately   ascertained   from   that which   it   has   chosen   to   enact,   either   in express   words   or   by   reasonable   and necessary implication.’ (See: Hansraj Gordhandas v. H.H. Dave, Asst. Collector of  Central  Excise  &  Customs,  Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • The   Privy   Council   in Crawford v. Spooner observed:  ‘… we cannot aid the Legislature’s defective phrasing   of   the   Act,   we   cannot   add,   and mend,   and,   by   construction,   make   up deficiencies which are left there.’ (See: Hansraj Gordhandas v. H.H. Dave, Asst. Collector of  Central  Excise  &  Customs,  Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)
  • The operation of the Tax-notifications   has   to   be   judged   not   by   the object which the rule making authority had in   mind   but   by   the   words   which   it   has employed to effectuate the legislative intent. (See: Hansraj Gordhandas v. H.H. Dave, Asst. Collector of  Central  Excise  &  Customs,  Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench); Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench)

Exemption notification – directory or mandatory

  • Some of the provisions of an exemption notification may be directory in nature and some are mandatory in nature. A   distinction   between   the   provisions   of   a statute  which are of substantive character and   were   built   in   with   certain   specific objectives of policy, on the one hand, and those   which   are   merely   procedural   and technical in there nature, on the other, must be kept clearly distinguished.  Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236.
  • The exemption being the creation of the statute itself, it should have to be construed strictly and the interpretation cannot be extended to sales to other departments. (The majority in Union of India v. The Commercial Tax Officer, West Bengal, AIR 1956 SC 202).
  • A   manufacturer   qualified   to   seek exemption   was   required   to   comply   with   the   preconditions for claiming exemption and therefore is not exempt   or   absolved   from   following   the   statutory requirements   as   contained   in   the   Rules.       Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236.

Doctrine of substantial compliance

  • The doctrine of substantial compliance is a judicial invention, equitable in nature, designed to avoid hardship in cases where a party   does   all   that   can   reasonably   be expected of it, but failed or faulted in some minor or inconsequent aspects which cannot be   described   as   the   “essence”   or   the “substance” of the requirements.  .       Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • Like the concept of “reasonableness”, the acceptance or   otherwise   of   a   plea   of   “substantial compliance”   depends   upon   the   facts   and circumstances of each case and the purpose  and object to be achieved and the context of the   prerequisites   which   are   essential   to achieve the object and purpose of the rule or the regulation. Such a defence cannot be pleased   if   a   clear   statutory   prerequisite which effectuates the object and the purpose of the statute has not been met.  Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236.  Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • Substantial   compliance   means   “actual compliance   in   respect   to   the   substance essential to every reasonable objective of the statute”   and   the   Court   should   determine whether   the   statute   has   been   followed sufficiently so as to carry out the intent of the statute and accomplish the reasonable objectives for which it was passed. .       Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • A   fiscal   statute   generally   seeks   to preserve   the   need   to   comply   strictly   with regulatory requirements that are important, especially when a party seeks the benefits of an   exemption   clause   that   are   important. The   doctrine   of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive noncompliance   for   either   unimportant   and tangential requirements or requirements that are so confusingly or incorrectly written that an   earnest   effort   at   compliance   should   be accepted. Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • But, in a situation where the tax exemption has to be interpreted, the benefit of doubt should go in favour of the revenue. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • An exemption from taxation is to be allowed based wholly by   the   language   of   the   notification   and   exemption cannot   be   gathered   by   necessary   implication   or   by construction of words; in other words, one has to look to the   language   alone   and   the   object   and   purpose   for granting exemption is irrelevant and immaterial.  Hansraj Gordhandas v. H.H. Dave, Asst. Collector of  Central  Excise  &  Customs,  Surat, AIR 1970 SC 755; (1969) 2 SCR 253 (Five Judge Bench) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.

Ambiguity in Tax Exemption Clauses and Notifications  

  • Every taxing statue including, charging, computation and exemption clause (at the threshold stage) should be interpreted strictly.  
  • Further,   in   case   of   ambiguity   in charging provisions, the benefit must necessarily go in favour of subject/assesse.
  • Vagueness in the exemption clauses must go to the benefit of the revenue.  See: Commissioner of Inland Revenue vs. James Forrest, (1890) 15 AC 334 (HL), State  of  West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC   201.
  • A person claiming exemption, therefore, has to establish that   his   case   squarely   falls   within   the   exemption notification, and while doing so, a notification should be construed against the subject in case of ambiguity. Mangalore   Chemicals  &  Fertilizers  Ltd.   vs.  Dy. Commissioner  of Commercial  Taxes, (1992) Supp. 1 SCC 21
  • But   for   an exemption notification wherein the benefit of ambiguity must   be   strictly   interpreted   in   favour   of   the Revenue/State; the burden of   proving applicability would be on the assessee to show that his case comes within the parameters of the exemption clause or exemption notification.  (See: Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).
  • When   the   question   is   whether a subject falls   in   the   notification   or   in   the exemption clause then it being in nature of   exception   is   to   be   construed   strictly and   against the subject,   but   once ambiguity or doubt about applicability is lifted   and   the   subject   falls   in   the notification then full play should be given to   it   and   it   calls   for   a wider   and   liberal construction. Union   of India   v.   Wood   Papers   Limited,   (1990)   4   SCC   256.
  • Even   with   regard   to   exemption   clauses or exemption notifications issued under a taxing statute, the ambiguity   in   an   exemption   notification   should   be construed   in   favour   of   the   subject.     In   subsequent cases, this   Court   diluted   the   principle   saying   that mandatory requirements of exemption clause should be interpreted strictly and the directory conditions of such exemption   notification   can   be   condoned   if   there   is sufficient compliance with the main requirements.  Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • It is the law that any ambiguity in a taxing statute should enure to the benefit of the subject/assessee, but any  ambiguity   in   the   exemption   clause   of   exemption notification must be conferred in favour of revenue – and such exemption should be allowed to be availed only to those subjects/assesses who demonstrate that a case for exemption squarely falls within the parameters enumerated in the notification and that the claimants satisfy   all   the   conditions   precedent   for   availing exemption.    Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • Presumably   for   this   reason   the   Bench which decided Surendra Cotton Oil Mills Case (supra) observed that there exists unsatisfactory state of law and   the   Bench   which   referred   the   matter   initially, seriously doubted the conclusion in  Sun Export Case (supra) that the ambiguity in an exemption notification should be interpreted in favour of the assessee. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • If   there   is   any ambiguity in understanding any of the components, no tax can be levied till the ambiguity or defect is removed by the legislature. See Mathuram Agrawal v. Sate of Madhya  Pradesh, (1999) 8 SCC 667;  Indian  Banks’ Association vs. Devkala Consultancy Service, (2004) 4 JT 587; AIR 2004 SC 2615; and Consumer Online Foundation vs. Union of India, (2011) 5 SCC 360. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1. 
  • Any ambiguity in a taxation provision, therefore,   is   interpreted   in   favour   of   the subject/assessee.  The statement of law that ambiguity in a taxation statute should be interpreted strictly and in the event of ambiguity the benefit should go to the subject/ assessee   may   warrant   visualizing   different situations.   For instance, if there is ambiguity in the subject of tax, that is to say, who are the persons or things liable to pay tax, and whether the revenue has established  conditions  before raising and  justifying a demand. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • Similar is the case in roping all persons within the tax net, in which event the State is to prove the liability of the persons, as may arise within the strict language   of   the   law.     There   cannot   be   any   implied concept either in identifying the subject of the tax or person liable to pay tax. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • It is only the letter of the law and not the spirit of the law to guide the interpreter to decide the liability to tax ignoring any amount of hardship and eschewing equity in taxation. 
  • Thus, we may emphatically reiterate that if in the event of ambiguity in a taxation liability statute, the benefit should go to the subject/assessee. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • A   fiscal   statute   generally   seeks   to preserve   the   need   to   comply   strictly   with regulatory requirements that are important, especially when a party seeks the benefits of an   exemption   clause   that   are   important. The   doctrine   of substantial compliance seeks to preserve the need to comply strictly with the conditions or requirements that are important to invoke a tax or duty exemption and to forgive noncompliance   for   either   unimportant   and tangential requirements or requirements that are so confusingly or incorrectly written that an   earnest   effort   at   compliance   should   be accepted. Commissioner   of   Central   Excise,   New Delhi  v.  Hari  Chand  Shri  Gopal, Constitution   Bench, (2011) 1 SCC 236. Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • The question whether a subject falls in the notification or in the exemption clause, has to be strictly construed.  When once the ambiguity or doubt is resolved by interpreting the applicability of exemption clause strictly, the Court may construe the notification by   giving   full   play   bestowing   wider   and   liberal construction.  The ratio of Parle Exports Case (supra) deduced as follows:  “Do not extend or widen the ambit at stage of applicability.  But once that hurdle is crossed, construe it liberally”.  Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.
  • In   case   of   ambiguity,   a taxing   statute   should   be   construed   in favour of the assessee – assuming that the said principle is good and sound – does not apply to the construction of an exception or an exempting provision, they have to be construed strictly.   In   case of   doubt   or ambiguity,   benefit of   it   must go to   the State. Mangalore   Chemicals  &  Fertilizers  Ltd. vs.  Dy. Commissioner of Commercial Taxes, (1992) Supp. 1 SCC 21; Novopan India Ltd. v. Collector of Central Excise and Customs, 1994 Supp (3) SCC 606; Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company, 2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).
  • The principle that in the event a provision of   fiscal   statute   is   obscure   such construction   which   favours   the   assessee may be adopted, would have no application to   construction   of   an   exemption notification, as in such a case it is for the assessee to show that he comes within the purview of exemption (See Novopan India Ltd v. CCE and Customs). Tata Iron & Steel Co. Ltd. v. State of Jharkhand, (2005) 4 SCC 272. Tata Iron & Steel Co. Ltd. v. State of Jharkhand, (2005) 4 SCC 272.

Obscure And Ambiguity

  • Where   there   is   ambiguity   in   an exemption notification or exemption clause, in which event the benefit of such ambiguity cannot be extended to the subject/assessee (by applying the principle that an obscure and/or ambiguity or doubtful fiscal statute must   receive   a   construction   favouring   the   assesse).
  • Both the situations (obscure and ambiguity) are different and while considering an   exemption   notification,   the   distinction   cannot   be ignored.

Taxing statute, equitable considerations are out of place

  • But   equitable considerations   are   not   relevant   in construing a taxing statute, [CIT, W.B. v. Central India Industries, AIR 1972 SC 397], and similarly logic or reason cannot be of much avail in interpreting a taxing statute [Azam Jha v. Expenditure Tax Officer, Hyderabad, AIR 1972 SC 2319]. 
  • It is well settled that in the field of taxation, hardship or equity has no role to play in determining eligibility to tax and it is for 37 the Legislature to   determine the same [Kapil Mohan v. Commr. of Income Tax, Delhi,   AIR   1999 SC 573].    
  • Similarly, hardship or equity is not relevant in interpreting   provisions   imposing   stamp duty, which is a tax, and the court should not concern itself with the intention of the Legislature when the language expressing such intention is plain and unambiguous [State of Madhya Pradesh v. Rakesh Kohli, (2012) 6 SCC 312].  
  • But just as reliance   upon   equity   does   not   avail   an assesse, so it does not avail the Revenue. Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879). Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).  Commissioner of Income Tax vs. Kasturi Sons Ltd., (1999) 3 SCC 346 and  State of  West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC 201.
  • In   interpreting   a   taxing   statute, equitable considerations are entirely out of place.     A taxing statute cannot be interpreted on any presumption or assumption.   A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any   deficiency. State  of  West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC 201, Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1.

If taxpayer escapes or words of Statute are ambiguous, benefit given to the subject

  • If the Legislature fails to express itself clearly and the taxpayer escapes by not being brought within the letter of the law, no question of unjustness as such arises [CIT v. Jalgaon Electric Supply Co., AIR 1960 SC 1182].   Justice G.P. Singh, in his treatise ‘Principles of Statutory Interpretation’ (14th ed. 2016 p. – 879) Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1: AIR  2018 SC 3606 (Five Judge Bench).  
  • Before taxing any person, it   must be shown that he falls within the ambit of the charging section by clear words used in the section; and if the words are ambiguous and open to two interpretations,   the   benefit   of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of   the law fails to catch him on account   of   Legislature’s failure to express itself clearly.  State  of  West Bengal vs. Kesoram Industries Limited, (2004) 10 SCC 201, Commissioner of Customs (Import), Mumbai v. Dilip Kumar And Company,  2018-9 SCC 1. 

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and 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

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

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

Interpretation of Wills

Saji Koduvath, Advocate, Kottayam.

Relevant Provisions as to Interpretation of a Will

  • 1. Sec. 91 to 99 of the Evidence Act do not affect construction of wills (S. 100).
  • 2. Sec. 100 of the Evidence Act deals with interpretation of Will. It reads as under:
    • 100. Saving of provisions of Indian Succession Act relating to wills -Nothing in this Chapter contained shall be taken to affect any of the provisions of the Indian Succession Act, 1865 (10 of 1865) as to the construction of wills
  • 3. Section 74 of the Indian Succession Act, 1925, contains the armchair rule. It reads- ·       
    • 74. Wording of will— It is not necessary that any technical words or terms of art be used in a Will, but only that the wording be such that the intentions of the testator can be known therefrom.
  • Sec. 74 of the Indian Succession Act conveys – intention of the testator is important. Court ascertains it putting itself into the testator’s armchair.

Cardinal principles as to interpretation of a Will

Cardinal principles as to interpretation of a Will are laid down in the following decisions:

  • Ram Gopal v. Nand Lal (AIR 1951 SC 139), 
  • Gnambal Ammal v. Raju Ayyar (AIR 1951 SC 103), 
  • Raj Bajrang Bhadaur Singh v. Thakurain Bakhtraj Kher (AIR 1953 SC 7), 
  • Pearey Lal v. Rameshwar Das (AIR 1963 SC 1703),
  • Ramchandra v. Hilda Brite, (AIR 1964 SC 1323,
  • Navneet Lal v. Gokul (AIR 1976 SC 794),
  • Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321

The Principles recognised in these decisions are the following:

  • (1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered, but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Also: Narendra Gopal Vidyarthi vs Rajat Vidyarthi: (2009) 3 SCC 287)
  • (2) In construing the language of the Will the Court is entitled to put itself into the testator’s armchair and is bound to bear in mind also other matters than merely the words used. It must consider the surrounding circumstances, the position of the testator, his family relationship the probability that he would use words in a particular sense. But all this is solely as an aid to arriving at a right construction of the Will and to ascertain the meaning of its language when used by that particular testator in that document. (Also: Venkata Narasimha v. Parthasarthy, (1913) 41 IA 51: 15 Bom LR 1010; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287; Veerattalingam v. Rameth AIR 1990 SC 2201)
  • (3) The true intention of the testator has to be gathered not by attaching importance in isolated expressions, but by reading the Will as a whole with all its provisions and ignoring none of them as redundant or contradictory.(Also: Bajrang Factory Ltd. v. University of Calucutta (2007) 7 SCC 183)
  • (4) The Court must accept, if possible such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The Court will look at the circumstances under which the testator makes his Will, such as the state of his property of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus.
  • (5) To the extent that it is legally possible, effect should be given to every disposition contained in the Will unless the law prevents effect being given to it. Of course, if there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy so that effect could be given as far as possible to every testamentary intention contained in the Will.

Read Blog:

Construction of Wills – True shade of meaning

  • The meaning of every word in an Indian will must always depend upon the setting in which it is placed, the subject to which it is related, and the locality of the testator from which it may receive its true shade of meaning. (Sasiman Chowdhurain v. Shib Narayan Chowdhury,49 IA 25, 35 : 66 IC 193 : 24 Bom LR 576; Musammat Surajmani v. Rahi Nath Ojha, 35 IA 17 : ILR 30 All 84 : 10 Bom LR 59; Navneet Lal v. Gokul, AIR 1976 SC 794)

In Gnanambal Ammal v. T. Raju Aiyar, AIR 1951 SC 103, BK Mukherjea, J., held as under:

  • “The cardinal maxim to be observed by courts in construing a will is to endeavour to ascertain the intentions of the testator. This intention has to be gathered primarily from the language of the document which is to be read as a whole without indulging in any conjecture or speculation as to what the testator would have done if he had been better informed or better advised. (See also: Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321).
  • In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy, (1913) 42 I.A. 51 at p.70.
    • ‘The courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, ‘his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ‘The court is entitled to put itself into the testator’s armchair’ …… But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So, soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions…… In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.’ (See also: Navneet Lal v. Gokul, (1976) 1 SCC 630; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287)
  • A question is sometimes raised as to whether in construing a will the court should lean against intestacy. The desire to avoid intestacy was considered by the Privy Council in the case referred to above as a rule based on English necessity and English habits of thought which should not necessarily bind an Indian court. It seems that a presumption against intestacy may be raised if it is justified by the context of the document or the surrounding circumstances; But it can be invoked only when there is undoubted ambiguity in ascertainment of the intentions of the testator. As Lord Justice Romer observed in Re Edwards; Jones v. Jones, [1906]1 Ch. 570 at p. 574:
    • ‘It cannot be that merely with a view to avoiding intestacy you are to do otherwise than construe plain words according to their plain meaning’.”

It is pointed out in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon 2018-1 Ker HC 412, 2018-2 Ker LT 553, A. Hariprasad, J., as under:

  • “The ‘Arm Chair Rule’ was originally propounded in Boyes v. Cook ((1880) 14 Ch.D 53). The Rules reads thus:
  • “Armchair Rule.-Although, a will always speaks from the date of the death of the testator, in construing the will, the court of construction should determine the facts and circumstances respecting the testator’s property and his family and other persons and things as at the date of the will, in order to give effect to the words used in the will when the meaning and applications of his words cannot be ascertained without taking evidence of such facts and circumstances. For this purpose, evidence is received to enable the court to ascertain all the persons and facts known to the testator when he made the will. The court, it has been said, puts itself into the testator’s armchair.”

In construing the language of the will as the Privy Council observed in Venkata Narasimha v. Parthasarathy (1913) 41 Ind App 51, held as under:

  • “The courts are entitled and bound to bear in mind other matters than merely the words used. They must consider the surrounding circumstances, the position of the testator, his family relationship, the probability that he would use words in a particular sense, and many other things which are often summed up in the somewhat picturesque figure ’ The court is entitled to put itself into the testator’s armchair …… But all this is solely as an aid to arriving at a right construction of the will, and to ascertain the meaning of its language when used by that particular testator in that document. So soon as the construction is settled, the duty of the court is to carry out the intentions as expressed, and none other. The court is in no case justified in adding to testamentary dispositions…… In all cases it must loyally carry out the will as properly construed, and this duty is universal, and is true alike of wills of every nationality and every religion or rank of life.” (Quoted in Gnanambal Ammal  v. T. Raju Ayyar, AIR 1951 SC 103, B.K. Mukherjea, Fazal Ali, N. Chandrasekhara Aiyar, JJ.) (Referred to in: Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115, S.B. Sinha; Narendra Gopal Vidyarthi v. Rajat Vidyarthi, (2009) 3 SCC 287; Navneet Lal alias Rangi v. Gokul   (1976) 1 SCC 630.

Lakshmana Nadar v. R. Ramier, AIR 1953 SC 304, M C Mahajan, SR Das, JJ.

  • The Court’s primary duty when it considers a will is to ascertain from the language employed by the testator “what were his intentions” keeping in view the surrounding circumstance, his ordinary notions as a Hindu in respect to devolution of his property, his family relationships etc.; in other words, to ascertain his wishes by putting itself, so to say, in his armchair.

In Ramachandra Shenoy v. Mrs. Hilda Brite (1964) 2 SCR 722, our Apex Court held as under:

  • “It was common ground that under clause 3(c) the testatrix intended to confer an absolute and permanent interest on the male children of her daughter, though if the contentions urged by the appellants were accepted the legacy in their favour would be void because there could legally be no gift over after an absolute interest in favour of their mother. This is on the principle that where property is given to A absolutely, then whatever remains of A’s death must pass to his heirs or under his will and any attempt to sever the incidents from the absolute interest by prescribing a different destination must fail as being repugnant to the interest created. But the initial question for consideration is whether on a proper construction of the will an absolute interest in favour Severina is established. It is one of the cardinal principles of construction of wills that to the extent that it is legally possible effect should be given to every disposition contained in the will unless the law prevents effect being given to it.” (Quoted in: Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115).
  • See also: Bhura v. Kashi Ram, AIR 1994 SC 1202:  (1994) 2 SCC 111, Arunkumar v. Shriniwas, (2003) 6 SCC 98)

The said principle was reiterated in Navneet Lal alias Rangi v. Gokul   (1976-1 SCC 630) as under:

  • “8. From the earlier decisions of this Court the following principles, inter alia, are well established: (1) In construing a document whether in English or in vernacular the fundamental rule is to ascertain the intention from the words used; the surrounding circumstances are to be considered; but that is only for the purpose of finding out the intended meaning of the words which have actually been employed. (Ram Gopal v. Nand Lal, AIR 1951 SC 139).”  See also: Shyamal Kanti Guha (D) Through LRs. & Ors. v. Meena Bose [2008 (9) SCALE 363],

Golden rule of interpretation

It is interesting to note that the golden rule of interpretation was propounded for the first time by Lord Wensleydale, in Grey Vs. Pearson, 1857 (6) HLC 61, in the matter of construction of a Will. (See: Ms. Eera Through Dr. Manjula v.  State  (Govt. of NCT of Delhi), (2017) 15 SCC 133). It requires giving effect to the actual meaning of the words used in statutes and other documents.  This rule gives effect to the literal or ordinary meaning of the words used.

Construction of Will – Not by attaching importance to isolated expressions

The true intention of the testator has to be gathered not by attaching importance to isolated expressions but by reading the will as a whole with all its provisions and ignoring none of them as redundant or contradictory. (Raj Bajrang Bahadur Singh v. Thakurain Bakhtraj Kuer, 1953 SCR 232, 240 : AIR 1953 SC 7;  Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287; Navneet Lal v. Gokul [(1976) 1 SCC 630; Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183); Anil Kak v. Kumari Sharda Raje & Ors. [2008 (6) SCALE 597.

In Halsbury’s Laws of England, Fourth edition, Volume 50, page 332-33, it is stated :

  • ‘462. Leading principle of construction: The leading principle of construction which is applicable to all wills without qualification and overrides every other rule of construction is that the testator’s intention is collected from a consideration of the whole will taken in connection with any evidence properly admissible, and the meaning of the will and of every part of it is determined according to that intention’.”(Quoted in:  Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287)

The court must accept, if possible, such construction as would give to every expression some effect rather than that which would render any of the expressions inoperative. The court will look at the circumstances under which the testator makes his will, such as the state of his property, of his family and the like. Where apparently conflicting dispositions can be reconciled by giving full effect to every word used in a document, such a construction should be accepted instead of a construction which would have the effect of cutting down the clear meaning of the words used by the testator. Further, where one of the two reasonable constructions would lead to intestacy, that should be discarded in favour of a construction which does not create any such hiatus. (Pearey Lal v. Rameshwar Das, 1963 Supp. 2 SCR 834, 839, 842; Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Navneet Lal v. Gokul [(1976) 1 SCC 630; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

Two repugnant provisions

If there are two repugnant provisions conferring successive interests, if the first interest created is valid the subsequent interest cannot take effect but a Court of construction will proceed to the farthest extent to avoid repugnancy, so that effect could be given as far as possible to every testamentary intention contained in the will. Ramachandra Shenoy v. Mrs. Hilda Brite [(1964) 2 SCR 722, 735; Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

To ascertain terms of the Will and attendant circumstances may also consider

In Bajrang Factory Ltd. v. University of Calcutta, (SB Sinha, J.), 2007-7 SCC 183, it is held as under:

  • “43. With a view to ascertain the intention of the maker of the Will, not only the terms thereof are required to be taken into consideration but all also circumstances attending thereto. The Will as a whole must, thus, be considered for the said purpose and not merely the particular part thereof. As the Will if read in its entirety, can be given effect to, it is imperative that nothing should be read therein to invalidate the same.” (Quoted in: Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287.

The word ‘devise’ was read as ‘desire’

In Shyamal Kanti Guha  v. Meena Bose, (SB Sinha, J.), AIR  2009 SC 1194, 2008-8 SCC 115, referred to Bajrang Factory Ltd. v. University of Calcutta, 2007-7 SCC 183, (SB Sinha, J.), and pointed out as under:

  • “Therein the word ‘devise’ was read as ‘desire’. If this Court is to put itself into the testator’s armchair to ascertain his intention from the words used in the Will; it must take into consideration the surrounding circumstances, the position of the testator, his family relationships, and attach importance to isolated expressions so as to give effect to all the clauses in the Will rather than making some of it inoperative.”

Entire document need not be invalidated

The Supreme Court in Anil Kak v. Kumari Sharda Raje reported in 2008 (6) SCALE 597 held sa under:

  • “The testator’s intention is collected from a consideration of the whole Will and not from a part of it. If two parts of the same Will are wholly irreconcilable, the court of law would not be in a position to come to a finding that the Will dated 4.11.1992 could be given effect to irrespective of the appendices. In construing a Will, no doubt all possible contingencies are required to be taken into consideration. Even if a part is invalid, the entire document need not be invalidated, only if it forms a severable part.”   (Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Narendra Gopal Vidyarthi vs Rajat Vidyarthi, (2009) 3 SCC 287; Bajrang Factory Ltd. v. University of Calucutta [(2007) 7 SCC 183.)

Also Read:

Last Part of a Will prevails under Sec. 88

Sec. 88 of the Succession Act says that the last of two inconsistent clauses prevails.

Sec. 88 reads as under:

  • “88. The last of two inconsistent clauses prevails. – Where two clauses of gifts in a Will are irreconcilable, so that they cannot possibly stand together, the last shall prevail.
  • Illustrations
  • (i) the testator by the first clause of his Will leaves his estate of Ramnagar to “A”, and by the last clause of his Will leaves it to “B” and not to A”. B will have it.
  • (ii) if a man, at the commencement of his Will gives his house to A and at the close of it directs that his house shall be sold and the proceeds invested for the benefit of B, the latter disposition will prevail.

Sec. 88 (latter disposition will prevail) is applied in the following premises:

  • This rule of interpretation can be invoked only if different clauses cannot be reconciled. (See Rameshwar v. Balraj, AIR 1935 PC 187; Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321).
  • If the apparently appearing inconsistency can be reconciled, the court will take that recourse. (Shyamal Kanti Guha  v. Meena Bose, AIR  2009 SC 1194, 2008-8 SCC 115; Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321.)
  • In the event of irreconcilable inconsistency between two parts in the Will, the last shall prevail over the earlier clause.  (Kalvelikkal Ambunhi v. H. Ganesh Bhandary, AIR 1995 SC 2491; Uma Devi Nambiar v. T.C. Sidhan, (2004) 2 SCC 321.)

But, in case of documents like sale deeds, gift deeds, mortgage deeds, if the apparently appearing inconsistency can be reconciled, the court will take that recourse.  But, if the inconsistency is irreconcilable, the earlier or the subsequent part or specific clauses, the earlier part will prevail over the latter. (Uma Devi Nambiar v. T.C. Sidhan (2004) 2 SCC 321.)

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Book No, 1 – Civil Procedure Code

Power of attorney

Title, ownership and Possession

Principles and Procedure

Admission, Relevancy and Proof

Land Laws/ Transfer of Property Act

Evidence Act – General

Sec. 65B

Law on Documents

Contract Act

Easement

Stamp Act & Registration

Will

Arbitration

Divorce

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

22nd Law Commission  Report on ‘Law on Adverse Possession’

Saji Koduvath, Advocate, Kottayam & Jojy George Koduvath

Contents in Nutshell

The 22nd Law Commission, headed by former Chief Justice of Karnataka High Court, Ritu Raj Awasthi (Chairperson), and comprising of Justice (retired) K.T. Sankaran (Kerala High Court), Prof. (Dr.) Anand Paliwal, and Prof. D.P. Verma (Full-Time Members), observed in its 280th Report that the law relating to adverse possession should be continued in its present form and that there was no justification for making any change thereto. This Report, on the subject “The Law on Adverse Possession”, was placed on 24th May, 2023.

Background

The report of the Law Commission was called-for in the light of the Judgment of the Apex Court in Hemaji Waghaji  v. Bhikhabhai Khengarbhai, (2009) 16 SCC 517.

Hemaji Waghaji  v. Bhikhabhai Khengarbhai: It was held in this decision that the law of adverse possession was “irrational, illogical, and wholly disproportionate”. It was observed that the law should not place “a premium on dishonesty” and support the illegal action of a “rank trespasser” who had wrongfully taken possession of the true owner’s property and that there was a need to have a fresh look at the law of adverse possession, and required the Union of India to seriously consider the issue and make suitable changes, wherever necessary. The Supreme Court held as under:

  • “34. Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who has illegally taken possession of the property of the true owner. The law ought not to benefit or give seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
  • 35. We fail to comprehend why the law should place premium on dishonesty by legitimizing possession of a rank trespasser and compelling the owner to lose its possession only because of his inaction in taking back the possession within limitation.
  • 36. In our considered view, there is an urgent need of fresh look regarding the law on adverse possession. We recommend the Union of India to seriously consider and make suitable changes in the law of adverse possession. A copy of this judgment be sent to the Secretary, Ministry of Law and Justice, Department of Legal Affairs, Government of India for taking appropriate steps in accordance with law. “

Pursuant to this, a reference was made to the Law Commission by the Ministry of Law & Justice requesting the Commission to undertake a study in the matter and furnish a report on the same.

Read Blog: How to Plead Adverse Possession? Adverse Possession: An Evolving Concept.

Main Grounds of Recommendations of the Law Commission

The 22nd Law Commission did not pursue the observations in Hemaji Waghaji; on the contrary, upholding the law on adverse possession, it emphasised that the present law ensures that ‘there is always an owner or claimant to the contentious land, and that it is precisely the reason why the law validates the claim of adverse possession made by the squatter’.

The assertions and remarks of the Law Commission (no change is required to be brought in the existing law on adverse possession) came, inter alia, in the following premises:

  • 1. The concept of adverse possession is very old.
  • 2. It is rooted in the idea that land must not be left vacant and there should always someone in charge of that property in the eyes of the law.
  • 3. Burden of proof as to adverse possession is shifted (by the Limitation Act of 1963) on the person who claims it. The law on adverse possession underwent a significant change post the enactment of the Limitation Act of 1963. By virtue of the said change, the position of the true owner was fortified as he had to merely prove his title, while the burden of proof of adverse possession is shifted on the person claiming so.

Notable Observations of the Law Commission on Adverse Possession

The Law Commission made the following important and notable observations on adverse possession –

  • “6.12. The Limitation Act applies to courts and not to quasi-judicial bodies or Tribunals. (See L.S. Synthetics Ltd. v. Fairgrowlh Financial Semices Ltd., AIR 2005 SC 1209) (2004) 11 SCC 456; M.P. Steel Corporation v. Commission of Central Excise (2015) 7 SCC 582. Generally speaking, the Limitation Act only bars the remedy but doesn’t destroy the right to which the remedy relates to. The exception to the general rule is contained in Section 27 of the Limitation Act, 1963.
  • 6.13. Though the period of limitation prescribed in the Limitation Act precludes a plaintiff from bringing a suit which is barred by Limitation, there is no such limitation so far as any defence is concerned. The rationale behind the law of limitation is that it is founded on public policy. The concept of adverse possession is based on the legal maxim ‘Vigilantibus non dormientibus subvenit lex‘ which means that the law favours only the vigilant and not the sleepy – only the active citizen and not those who are dormant or in other words those who are not concerned about their rights.”
  • 7.1. The Limitation Act is an Act of repose. “Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aim at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.” (See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
  • 7.2. Possession and adverse possession are not the same thing. The classical requirement of Adverse Possession is that the possession must be nec vi nec clam nec precario, i.e to say, the possession required must be adequate in continuity, in publicity and in extent. However, it is sufficient that the possession be overt and without any attempt at concealment so that the person against whom time is running out, if he exercises due vigilance, can be aware of what is happening. (See: Lakshmi Reddy v. Lakshmi Reddy AIR 1957 SC 314; Secretary of State for India v. Debandra Lal Khan AIR 1934 PC 23, Karnataka Board of Wakf v. Government of India and ors. (2004) l0 SCC 779; Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729; S.M. Karim v. Bibi Sakina (1964) 6 SCR 780: AIR 1964 SC 1254; Balkrishan v. Satyaprakash (2001) 2 SCC 498).
  • 7.3. A person pleading adverse possession has no equities in his favour. “Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. “(See: PT Munichikkanna Reddy and others v. Revamma, (2007) 6 SCC 59: AIR 2007 SC 1753)
  • 7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).#
    • #See: Notes under Caption: “Should the person who claims adverse possession necessarily know the true owner?“
  • 7 .ll. Mere continuance of unauthorised possession, for a period of more than twelve years is not enough.
    • “…. that mere termination of a licence of a licensee does not enable the licensee to claim adverse possession, unless and until he sets up a title hostile to that of the licensor after termination of his licence. It is not merely unauthorised possession on termination of his licence that enables the licensee to claim title by adverse possession but there must be some overt act on the part of the licensee to show that he is claiming adverse title. It is possible that the licensor may not file an action for the purpose of recovering possession of the premises from the licensee after terminating his licence but that by itself cannot enable the licensee to claim title by adverse possession. There must be some overt act on the part of the licensee indicating assertion of hostile title. Mere continuance of unauthorised possession even for a period of more than I2 years is not enough.” (Gaya Prasad Dikshit v. Dr. Nirmal Chander AIR 1984 SC 930: (1984)2 SCC 286)
    • “It is well recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity  and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The  possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action. “(See T. Anjanappa  v. Somalingappa, (2006) 7 SCC 570.)”
  • 7.12. As against co-owners, the co-owner who claims adverse possession has to plead and prove ouster also. The co-heir/co-owner in possession cannot render his possession adverse to the other co-heir/ co-owner not in possession merely by any secret hostile animus. It is well settled that in order to establish adverse possession of one co-owner as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir’s title. It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. [See Coriea v. Appuhamy l9l2 AC 230; Lakshmi Reddy v. Lakshmi Reddy AIR 1957 SC 3 14; Maharajadhiraj of Burdwan Udaychand Mahatab Chand v. Subodh Gopal Bose and Others AIR 197l SC 376: (1970) 3 SCC 681; Shambhu Prasad Singh v. Phool Kumari and Others AIR l97l SC 1337: (1971) 2 SCC 28); Syed Shah Gulam Ghouse Mohiuddin and Others v. Syed Shah Ahmed Mohiuddin Qadri AlR 197l SC 2184:(1971) 1 SCC597; Bhubneshwar Prasad Narain Singh and Others v. Sidheshwar Mukherjee and Others AIR 1971 SC 2251: ( l97l ) I SCC 556; Mohd. Zainul Abudeen v. Syed Ahmed Mohideen and Others AIR 1990 SC 507: (1990) 1 SCC 345; Karbalai Begum v. Mohd Sayeed and Another AIR l98l SC 77: (1980) 4 SCC 396]
  • 7.13. Permissive possession does not constitute adverse possession. A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. See State Bank of Travancore v. Arvindan Kunju Panicker and Others AIR 197l SC 996: (1972) 4 SCC 274.
  • 7.14. Possession referable to a contract or to an agreement or to a mortgage cannot be adverse. When the commencement and continuance of possession is legal and proper, referable to a contract, it cannot be adverse. If a person has come into possession under colour of title, he can plead adverse possession only on disclaiming his title and pleading hostile claim to the knowledge of the title holder. See Padma Vithoba Chakkayya v. Mohd. Multani and Another AIR 1963 SC 70; Achal Reddy v. Ramakrtshna Reddiar and Others AIR 1990 SC 553: (1990) 4 SCC 706; Mool Chand Bakhru and Another v. Rohan and Others AIR 2002 SC 812: (2002) 2 SCC 612; Mohan Lal Kachru and Others v. Mirza Abdul Gaffar and Another AIR 1996 SC 910: (1996) I SCC 639; R. Chandevarappav. State of Karnataka (1995) 6 SCC 309
  • 7.15. A question arose whether a person who has perfected title by adverse possession can file a suit for declaration of title. The Supreme Court in Gurudwara Sahib v. Gram Panchayat Village Sirthala (2014)1 SCC 669, State of Uttarakhand v. Mandir Sri Laxman Sidh Maharaj, (2017) 9 SCC 579  and Dharampal v. Punjab Wakf Board (2018) 11 SCC 449, held that adverse possession cannot be used as a sword but it can be used as a defence, i.e., as a shield. A three judge bench of the Supreme Court in Ravinder Kaur Grewal v. Manjit Kaur overruled these decisions and held that adverse possession can be used as a sword and a suit for declaration can be filed by a person who perfected the title by adverse possession. The Supreme Court held:
    • “The plea of acquisition of title by adverse possession can be taken by the plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on the aforesaid basis in case of infringement of any rights of a plaintiff.”
  • 7.16. Once title is acquired by prescription under Article 65 read with Section 27 of the Limitation Act, 1963, the person who has perfected title by adverse possession would get all the rights which the title holder of a land has.
  • 7.17. The expression “title” would include the title acquired by the plaintiff by way of adverse possession. It was held in Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729 thus:
    • “58. ….Section 27 of the Limitation Act 1963 provides for extinguishment of right on the lapse of limitation fixed to institute a suit for possession of any property, the right to such property shall stand extinguished. The concept of adverse possession as evolved goes beyond it on completion of period and extinguishment of right confers the same right on the possessor, which has been extinguished and not more than that…. “
    • “Adverse possession is heritable and there can be tacking of adverse possession by two or more person as the right is transmissible. “In our opinion, it confers a perfected right which cannot be defeated on re-entry except as provided in Article 65 itself. Tacking is based on the fulfilment of certain conditions, tacking may be by possession by the purchaser, legatee or assignee, etc. so as to constitute continuity of possession, that person must be claiming through whom it is tacked, and would depend on the identity of the same property under the same right. Two distinct trespassers cannot tack their possession to constitute conferral of right by adverse possession for the prescribed period. “
  • 7. 18. Once a suit for recovery of possession is instituted against the defendant in adverse possession, his adverse possession does not continue thereafter. In other words, the running of time for acquiring title by adverse possession gets arrested. (See Babu Khan and others v. Nazim Khan (dead) by LRs. and others (2001) 5 SCC 375: AIR 2001 SC 1740.)
  • 8.7. The reasons for the change brought about by Articles 64 and 65 are seen in the 3rd Report of the Law Commission of India. The recommendation of the Law Commission was as follows:
    • “If the defendant want to defeat the right of the plaintiff he must establish the adverse possession for over twelve years which has the effect of extinguishing the title of the owner by operation of Section 28 of the Limitation Act (Section 27 of the 1963 Act), read with Art. 144. (Article 65 of the 1963 Act). If he fails to do so, there is no reason for non-suiting the plaintiff merely because he was not able to prove possession within twelve years….. In our opinion, Art. 142 must be restricted in its application only to suits based on possessory title. The plaintiff in such a suit seek protection of his previous possession which falls short of the statutory period of prescription, to recover possession from another trespasser. The plaintiff’s prior possession no doubt entitles him to protection against a trespasser though not against the true owner. The true owner’s entry would be a rightful entry and would interrupt adverse possession. But if the defendant trespasser is a person who wishes to oust the plaintiff who was himself a prior trespasser or a person who did not come into possession as a trespasser but continued to hold it as such, in order to enable the plaintiff to continue his wrongful possession without disturbance and to enable him to acquire a title by  adverse possession, the law must undoubtedly step in and give relief to the plaintiff. As against the true owner a person who is in possession for a length of time short of the statutory period is not entitled to any protection but the net result of the decisions under article 142 is that the true owner must prove that he has a subsisting title on the date of the suit. We, therefore, suggest that in order to avoid injustice and inequity to the true owner and to simplify the law, article 142 should be restricted to suits based on possessory title and the owner of the property should not lose his right to it unless the defendant in possession is able to establish adverse possession. Article 142, may, therefore, be amended as follows:
    • “For possession of immovable property based on possessory title when the plaintiff while in possession of the property has been dispossessed – l2 years from the date of dispossession. “ “
  • 8.8. Pursuant to the opinion expressed by the Law Commission, the Parliament appropriately enacted Articles 64 and 65 in the 1963 Act.”

Crux of the Law Commission Report

The crux of the Report of the Law Commission is the answer to the following question:

  • Why the law validates the claim of adverse possession made by a squatter?

It is answered by the Law Commission as under:

  • “If no one has effective authority over a property, there arises a vacancy in the position of owner of that property. Such a vacancy results in destabilizing the other peoples’ relations with respect to that property. In such a circumstance, the law of adverse possession ensures that there is always someone in charge of that property in the eyes of the law, and hence no unsettling vacancies. This is precisely the reason why the law validates the claim of adverse possession made by the squatter only when the owner can be shown to have lost effective authority. This is also the rationale behind the owner being able to defeat the adverse possessor’s claims by showing that he continues to be in charge of the property. Ultimately, the concept of adverse possession addresses the law’s most pressing concern which is not who is owner but rather that the office of owner is filled instead of lying vacant.”

Questions posed by the 19th Law Commission in the Consultation Paper

The 19th Law Commission prepared a ‘Consultation Paper-cum-Questionnaire’ and after receiving the responses to the same, the Commission opined that the ‘present provisions afforded sufficient protection to the true owner of land and there was no need to make any amendments in the law’. 22nd Law Commission pointed out that a final report on the subject could not be submitted the 19th Law Commission. Bearing in mind “the relevance and importance of the subject and the fact that this reference had been pending since 2008”, the 22nd Law Commission considered it expedient to deliberate afresh over the subject, under the Caption – “Regarding the Questions posed by the Law Commission in the Consultation Paper”. It reads as under:

  • “10.10. There cannot be any justification for taking the view that adverse possession should not be made available to those who dishonestly enter the land with full consciousness that they were trespassing into another’s land. It is also not just and proper to deny the plea of adverse possession to a naked trespasser entering the land without good faith. Articles 64 and 65 of the Limitation Act do not make a distinction between a trespasser and a person who got possession on the discontinuance of possession by the owner. Under Article 65 of the Limitation Act of 1963, the date of dispossession of the owner is not relevant. The date of dispossession is relevant only under Article 64 of the 1963 Act. Under Article 65 of the 1963 Act, the owner who was dispossessed need prove his title only and he need not prove dispossession or discontinuance of possession since the thrust is on the proof of adverse possession. This itself is a sufficient protection for the owner (when compared with the 1908 Act) when he sues on title. There cannot also be any distinction between a trespasser and  bonafide purchaser from such trespasser. If the nature of dispossession is made a subject of enquiry  in a case, the owner of the land would be put to much prejudice and the required object of protecting the owner of the land would not be achieved. Such an enquiry would be a boon to the persons claiming adverse possession. Even if the entry into the land by the person claiming adverse possession was bonafide, so long as the owner sues for possession under Article 65, the owner would not be deprived of his right and he would not be put to plead or defend any fact other than title; and the person claiming adverse possession would not get any benefit based on any bonafides.
  • 10.11. The Limitation Act, l963 does not contemplate any compensation being paid to a trespasser making improvements in the property. Making such a provision in the law would be detrimental to the interests of the owner. If a trespasser is to be paid compensation for the improvements made by him, that will result in depriving the legitimate rights of the true owner since he would be made liable to pay huge compensation for extensive improvements made by a powerful trespasser. That would result in defeating the legitimate rights of the owner to recover possession of his land.
  • 10.12. There cannot also be any distinction between an owner who did not evince interest in the land or the other way about, since an owner who did not take care of his land at one point of time may do otherwise at a later point of time. The owner can sell the land to a person interested in the land for a good price. Sometimes, the legal representatives of the owner may be inclined to properly take care of the land and improve it.
  • 10.13. It is also not advisable to make any provision for compensating the owner by the adverse possessor. After coming into wrongful possession, the adverse possessor may be interested to retain the land even after paying compensation to the owner. The process of fixing compensation may provide an opportunity to him to question the quantum of compensation and to protract the litigation to the prejudice of the owner who lost possession and who wants to recover possession of his land.
  • 10.14. There is also no justification to enlarge the period of 12 years under Articles 64, 65, 111 or 112. Under the 1908 Act also, the period of limitation was l2 years for a suit under Article 142 (Article 64 of the 1963 Act) and Article 144 (Article 65 of the 1963 Act). The period of limitation under the 1908 Act was 60 years under Article 146A.  (Article 111 of the 1963 Act) and Article 149 (Article 112 of the 1963 Act) and it was reduced to 30 years, consequent on the policy decision to reduce the maximum period of 60 years for several articles to 30 years for all of them. Under the 1963 Act, the maximum period for any suit is not more than 30 years. 10.15′ The well settled principle over decades is that there can be adverse possession even in respect of the property belonging to the Government. When a private individual gets a period of 12 years under Articles 64 or 65 to file a suit for possession, the Government would get 30 years, in view of Article 112. The Government, with its machinery, would be able to protect their property in a better manner than the private individual. The Government cannot be extended with any premium for their laxity, if any, in bringing a suit for possession even within the larger period of 30 years. There is also no justification for abolition of adverse possession in relation to Govemment property. There cannot be any greater leniency in favour of the Government than that is provided under Article 112 of the Limitation Act, 1963.
  • 10.15 …….
  • 10.16. In respect of Non-Resident Indians, no special safeguard is required in the matter of adverse possession, for filing a suit under Article 64 or Article 65. There are ways and means for Non-Resident Indians to protect their property. The technological development, to a great extent, would be a beneficial factor in favour of them too.
  • 10.17. Section I of the Limitation Act provides for the short title, extent and commencement. Sub section (2) of Section I of the Limitation Act was as follows: “It extends to the whole of India except, the State of Jammu and Kashmir.” The words “except the State of Jammu and Kashmir” were omitted by the Jammu and Kashmir Reorganisation Act, 2019 (34 of2019). Therefore, it is expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article 112.“

Recommendations of the Law Commission

Finally, the Law Commission recommended as under:

  • “RECOMMENDATIONS
  • 11.1. The Law Commission is of the considered view that there is no reason or justification to enlarge the period of limitation provided under Articles 64, 65, 111 or I12.
  • 11.2. However, it is expedient to delete the words “including the Government of the State of Jammu and Kashmir” from Article I12, in view of the omission of the words “except the State of Jammu and Kashmir” from sub-section (2) of section I of the Limitation Act, 1963 by the Jammu and Kashmir Reorganisation Act, 2019 (34 of 2019).
  • The commission recommends accordingly.”

Dissent Note

Ex-officio Members of the Commission,  Dr. Reeta Vasishta (Legislative Secretary) and Dr. Nitan Chandra (Law Secretary), placed a Dissent Note.

Consultation with other Ministries and Departments: The Ex-officio Members pointed out that the Commission has not consulted the relevant Ministries of the Government of India and States from where useful inputs could have been received; and they observed that it curtailed the benefit of broad-based deliberation.

Ground of Morality: The Ex-officio Members said that the report on adverse possession ‘formulated by Mr. Justice K.T. Sankaran of the Law Commission sought to justify adverse possession as a welfare law and on grounds of morality’. According to them, the morality ground propounded in the matter of adverse possession was not only contrary but ridiculous. The abolition of the law on adverse possession will neither hinder anybody’s right nor cause ‘negligence of land resources’. All the States have laws for providing land to the landless; and under these laws the poor could obtain proprietary rights in a manner authorised by law.

Adverse possession is Self-contradictory – For, it is to be ‘Peaceful & Hostile‘: It was pointed out that the law on adverse possession was riddled with self-contradictions – on requirements of the nature of possession, ‘to be peaceful as well as hostile and notorious‘.  It is successful only where it is peaceful, open and notorious. However, none of these characteristics is shared by coup d’etat because coup d’etat has to be necessarily violent and turbulent. The Supreme Court has underscored the contradictory nature of the law in certain cases and considered it irrational, illogical and disproportionate. The Ex-officio Members referred to the four judgements of Supreme Court that throw light on the tenuous, insidious and contradictory character of the claim of adverse possession:

  • 1. Hemaji Waghaji v. Bhikhabhai Khengarbhai, 2009-16  SCC  1073;
  • 2. Ram Nagina Rai v.  Deo Kumar Rai,  (2019) 13 SCC
  • 3. Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8  SCC729;
  • 4. State of Haryana v. Mukesh Kumar,  (2011l)10 SCC 404.

The Ex-officio Members further denoted –

  • Because of the mere existence of such a law the true owners have been subjected to avoidable and expensive litigation running over generations by unscrupulous persons who are not averse to fraud and forgery.
  • This has saddled the already over-burdened machinery of the courts with avoidable work to the misery of the litigants.
  • If the law of adverse possession is struck off from the Limitation Act it will not hinder anybody’s right nor will it cause any neglect of land resources as has been argued in the Report.
  • In an over-populous country like India where land is scarce, the law of adverse possession only promotes false claims under the colour of adverse possession which ultimately does not stand judicial scrutiny.
  • To argue that adverse possession helps the poor and protects their rights in a welfare State and therefore such law of adverse possession cannot be abolished, holds no water since every State has a law for the settlement of government land with the poor which is the proper welfare legislation for the poor.
  • To claim that adverse possession protects the rights of the poor ignores the abuse of the law by land mafias, builders and powerful interest groups who are not disqualified to claim adverse possession under the present law.
  • It can be concluded that law of adverse possession serves no useful purpose considering the enactment of land laws in all the States for the welfare of the poor and the possibility of fraudulent claim of adverse possession as is established by large number of cases where courts have declined the claim of adverse possession.
  • The sentiment of the Court needs to be appreciated when it took the unusual step of urging the Ministry of Law & Justice to review the Law of Adverse Possession considering its inherent contradictions and recognizing that the law places a premium on dishonesty.
  • In several other countries, this law has been modified or abrogated.
  • It therefore, needs to be appreciated that it is an appropriate moment to strike off this provision of adverse possession from the Law of Limitation.

‘Supplementary Note’ placed in response to the ‘Dissent-Note’

The Law Commission (Chairperson, the three Fulltime Members and the Member Secretary) affirmed its view in its ‘Report’ presented on 24th May, 2023, in the ‘Supplementary Note’ placed in response to the ‘Dissent-Note’ filed by the Ex-officio Members. The Supplementary Note, inter alia, contained the following:

  • The judgments of the Supreme Court in Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, (2009) 16 SCC 517, and State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404, were ‘based on an understanding of the concept of adverse possession that largely stems from the decision of the European Court of Human Rights (ECHR) in JA Pye (Oxford) Ltd. v. United Kingdom, (2005) 49 ERG 90’. However, in appeal, the Grand chamber of ECHR overruled this judgment.
  • Articles 111 and 112 of the Schedule to the Limitation Act, 1963 provide for a maximum period of limitation of 30 years in case of claims of adverse possession against Government land. The constitutional validity of providing a longer period of limitation in favour of the Government had been upheld by the Constitution Bench of the Supreme Court in Nav Rattanmal v. State of Rajasthan, AIR 1961 SC 1704.
  • The Supreme Court, in Ram Nagina Rai v. Deo Kumar Rai, (2019) 13 SCC 324, has taken into consideration the earlier judgments in the cases of Hemaji Waghaji  and Mukesh Kumar, but has not taken the view that the law of adverse possession requires review or re-examination.
  • The judgment in Ram Nagina Rai was delivered in 2O18 while Mukesh Kumar was delivered in 2011. “Hence, it is impossibility that the former judgment could be considered in the latter”.#
    • # It was observed in the “dissent note” as under: “The significance of this observation was also underscored by the Court in a subsequent judgment, State of Haryana v. Mukesh Kumar. ”
  • In Ravinder Kaur Grewal v. Manjit Kaur (2019) 8 SCC 729, a three-Judges Bench of the Supreme Court reaffirmed the long-standing right of adverse possession, meaning thereby that even a suit can be filed to claim title on the basis of adverse possession. Some decisions of the Supreme Court to the contrary were overruled by this judgment.
  • In the Report of the Commission, ‘Adverse Possession vis-a-vis Morality’ was included, for the Supreme Court, in Hemaji Waghaji, called the concept of adverse possession to be ‘immoral’. The Report sought to analyse and explain as to how, despite popular perception to the contrary, it can still be understood to be ‘moral’. Thus, the concept of adverse possession was not justified (independently) on the ground of morality.
  • The concept of adverse possession is very much prevalent in almost all foreign jurisdictions, with the exception of the Canadian province of Alberta, where the social and geographical conditions are altogether different from India.

Should the person who claims adverse possession necessarily know the true owner?

There is difference of opinion.

It can be said – “The person who claims adverse possession must necessarily know the true owner, (for) then only it becomes ‘adverse’ as stated in Art. 65 of the Limitation Act.”

In Annasaheb Bapusaheb Patil v. Balwant, (1995) 2 SCC 543: AIR 1995 SC 895  (two-Judge Bench) our Apex Court held as under:

  • “A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e possession was hostile to the real owner and amounted to a denial of his title to the property claimed. In deciding whether the acts, alleged by a person, constitute adverse possession, regard must be had to the animus of the person doing those acts which must be ascertained from the facts and circumstances of each case.”

Report of the 22nd Law Commission

But, in the Report of the 22nd Law Commission it is stated as under:

  • “7.5. Possession must be open and without any attempt at concealment. It is, however, not necessary that possession must be so effective as to bring it to the specific knowledge of the owner (except ouster).”

The Consultation Paper-cum-Questionnaire prepared by the 19th Law Commission is attached to the Report of the 22nd Law Commission, as “Annexure – 1”. Para 2.6 of the same reads as under:

  • “2.6 It was clarified by a three-Judge Bench of the Supreme Court in Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707,
    • “All that the law requires is that the possession must be open and without any attempt at concealment. It is not necessary that the possession must be so effective so as to bring it to the specific knowledge of the owner. Such a requirement may be insisted on where an ouster of title is pleaded, but that is not the case here. “
  • “It was also clarified in a series of decisions that while possession shall be open and exclusive and in assertion of one’s own right, the fact that the possessor did not know who the real owner was, will not make his possession any the less adverse. There are certain passing observations in some judgments of the Supreme Court rendered by two learned Judges that the plea of adverse possession is not available if the adverse possessor does not know who the true owner is; but, the law declared by the larger Bench decisions of the Supreme Court obviously prevails.“

Law Commission inappropriately relied on Kshithish Chandra Bose

It appears that the Law Commission inappropriately relied on the Three Judge Bench decision. On a careful reading of this decision, Kshithish Chandra Bose, it can be seen that this decision arose from a matter that emerged prior to 1963 Limitation Act, and when the 1908 Limitation Act reigned the field.

Under the 1908 Act, the true owner was bound to file suit for recovery within 12 years of losing possession; and it was immaterial – whether the trespasser ‘acquired’ right of ‘adverse‘ possession against the true owner, knowing him and bringing his attention to the ‘trespass’.

While narrating the facts, it is observed in Kshithish Chandra Bose, as under:

  • “In the suit the plaintiff based his claim in respect of plot No. 1735, Ward No. I of Ranchi Municipality on the ground that he had acquired title to the land by virtue of a Hukumnama granted to him by the landlord as far back as 17th April, 1912 which is Exhibit 18. Apart from the question of title, the plaintiff further pleaded that even if the land belonged to the defendant municipality, he had acquired title by prescription by being in possession of the land to the knowledge of the municipality for more than 30 years, that is to say, from 1912 to 1957.”

Lmitn. Act, 1963 Brought-in Major Changes in Adv. Possession on ‘onus of proof’

Old Act of 1908 – Backdrop

  • Under the old Act of 1908, the true owner was bound to file suit for recovery (from a trespasser) within 12 years of losing possession (to continue the property).
  • In other words, under the old Act, the true owner would lose his right to recover the property if he failed to file a suit within the period of 12 years.
  • Under the 1908 Act, it was immaterial – whether the trespasser ‘acquired’ right of adverse possession against the true owner; knowing him and bringing his attention to the ‘trespass’, or not (as required in 1963 Act).

New 1963 Act – Backdrop

  • Under the new Limitation Act, 1963, the true owner will lose title only if the trespasser proves ‘adverse‘ possession for 12 years (Article 65). Therefore the true owner has no burden to show possession within 12 years (as required under the old Act).
  • Under the 1963 Act, adverse possession arises, only ‘by the positive and hostile acts’ of the trespasser; and, mere possession is not sufficient (but, it must be ‘adverse’ to the true owner).
  • The new Act casts onus on the trespasser to prove claims of title by ‘adverse’ possession (knowing him and bringing his attention to the ‘trespass’).
  • If no adverse possession, mere possession of trespasser, however long, will not lose the right of the true owner (on the ground of limitation) to recover property, on the basis of his title [See: Government of Kerala v. Joseph, 2023 KHC OnLine 6764; Gaya Prasad Dikshit v. Dr. Nirmal Chander and Anr., (1984) 2 SCC 286, Thakur Kishan Singh v. Arvind Kumar, (1994) 6 SCC 591; Mallikarjunaiah v. Nanjaiah, (2019) 15 SCC 756].

From the above, it comes out that the person who claims adverse possession must necessarily know the true owner; and that the three-Judge Bench decision, Kshithish Chandra Bose v. Commissioner of Ranchi, AIR 1981 SC 707, cannot be used to support the plea that adverse possession is available even if the adverse possessor does not know who the true owner is.

Note: This article being an evaluation of the Law Commission Report, Dissent Note and Supplementary Note, the readers are requested to refer the original text of the Report, Dissent Note and Supplementary Note.

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“Implied Grant” in Law of Easements

Saji Koduvath, Advocate, Kottayam.

‘Implied Grant’ Recognised in Three Distinct Legal Connotations

  • 1. Theoretical Basis of Easement of Necessity. Implied from the necessity of enjoying the dominant tenement; arises by operation of law in the absence of any other access.
  • 2. Theoretical Basis of every Right of Easement  The origin of all easements is a grant by the servient owner; it may be expressed, as is mentioned in Sections 8 to 12, or implied from the circumstances as in Section 13, or presumed from long and continued user as in Section 15 of the Act.
  • 3. Judicially Acknowledged Sources of Easement. Common Law of India recognises following two modes of ‘easements’ –
    • (i) Village Pathways (falls under Sec. 18 Easements Act – Customary Easements): Easement inferred from a long and continued practice of user by a certain class of the public in certain locality. E.g.: a village pathway (See: Lachhi v. Ghansara Singh, AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325; Yohannan Vs. Mathai, 1991-1 Ker LJ 605, 1991 KHC 571).
    • (ii) Implied Grant of Pathways: A species of easement by grant, inferred from the conduct of parties or surrounding circumstances; a recognised source of easement based on presumed intention. (See: Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622; L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307).

“Implied Grant”: Inferred or Presumed from the Circumstances

The origin of all easements is, in theory, a grant by the servient owner. ‘Easement by grant’ is a well-recognised category of easement, which may be either express or implied. An implied grant may be inferred from the surrounding circumstances or the conduct of the parties.

  • Note: Traditionally, the term ‘implied easement’ was used by the conventional authorities only to denote ‘easement of necessity‘. However, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the same to refer to an easement of grant ‘arising by implication‘.

The right to an easement by way of implied grant was upheld by the Supreme Court in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622. In this decision, the Court observed that an ‘easement of grant is a matter of contract between the parties (and it may have its own consideration)‘; and that ‘the grant may be either express or even by necessary implication‘.

It is seen that the Supreme Court has only reaffirmed the legal position previously upheld by several High Courts.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307, the existence of a right of way was inferred from the words of the relevant documents. It was observed as under:

  • 8. From all these documents Thiru D. Ramaswami Iyengar stated, it is clear that there is an implied grant of easement over the 30-ft. road. He cited Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209, wherein a Bench of this Court has laid down the principles on which an implied grant can be inferred. The question whether a grant can be implied or not would only arise in a case where there is no express grant. To say the least the contention that the absence of an express grant would negative an implied grant is quite untenable. It is from attendant circumstances and other documentary evidence that an implied grant has to be inferred. It is pity that the lower appellate Court has not bestowed its attention before it disposed of the appeal, on the aspect of spelling out an implied grant, which is recognised by law.
  • 9. Annapurna v. Santosh Kumar, AIR 1937 Cal 661 also makes it clear that in law implied grant has to be inferred and lays down that grant can be presumed from the description of boundaries in the conveyance which mentions the same to be a common passage.

In L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR  1972 Mad 307, the High Court also referred Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834, where ‘a grant of an easement of way’ had been inferred from the words of the lease deed. 

It was held in R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, that the plaintiff could found his case on an implied grant of easement even if there was no express grant; and that the argument that the absence of an express grant would negative an implied grant was quite untenable.

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

Can an ‘Implied Grant‘ exist Independent of Sec. 13 Easement Act?

R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251, addressed the issue with clarity, holding as under:

  • Merely because the juristic basis of the easement of necessity (Section 13) is said to be an implied grant, the converse will not follow.
  • In other words, where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity.

K.S. Venkataraman, J., said it in the following words:

  • “43. In some of the decisions and text books it is observed that in the case of an easement of necessity, which is dealt within Section 13 of the Easements Act, the juristic basis is that the law implies a grant. I have already quoted from Peacock on Easements who calls this a presumed grant as distinguished from acquisition of grant by implication on a true construction of the deed. The further point to be noted is that, merely because the juristic basis of the easement of necessity, which is dealt with in Section 13, is said to be an implied grant, the converse will not follow. In other words where an easement is acquired by grant, either expressly or by necessary implication, it will not amount to an easement of necessity under Section 13 of the Act for the purpose of being liable to be extinguished under Section 41. Indeed, on principle it is clear that, if a person acquires a grant expressly or by necessary implication, it will usually be on payment and there is no reason why such an easement, which has been paid for, should be extinguished. In the case of an easement of necessity arising under Section 13, because the law raises it, it is understandable why it will come to an end when the necessity ceases, as enacted in Section 41. That reason cannot apply to an acquisition by grant.”

Following is the relevant portion of this Judgment where Peacock on Easements is referred:

  • “In Peacock on Easements (Third Edition), Chapter VI deals with acquisition of easements. Part II thereof deals with acquisition by express grant. Part III deals with acquisition by implied grant, and it is distinguished from acquisition by presumed grant or operation of law, which is dealt with in Part IV. Briefly speaking, it is pointed out that it would be acquisition by implied grant on the language of the document correctly construed, whereas acquisition by presumed grant or operation of law would arise under the provisions of law such as those contained in Section 13 of the Easements Act. Thus at page 326 it is observed as follows:
    • “An implied, grant, in the sense here used, is a grant which arises by implication from the language of the particular instrument construable according to the ordinary rules of construction, one of which is that the circumstances existing at the date of the grant may be looked at in order to ascertain the intention of the parties.”
  • This is repeated at page 336 as follows:
    • “Thus the question whether or not a way has passed under a grant or devise by the use of general words, still remains one of construction to be determined according to the intention of the parties as expressed in the instrument and ascertainable from the state of circumstances existing at the date of its execution.”

Methods of Acquisition of Easements

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

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

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

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, 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.”

Upholding the view of the Kerala High Court the Apex Court held as under:

  • “In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

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 Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held:

  • “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.”

Basis of every Right of Easement is Theoretically a Grant

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

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

Alternative Way – Not Defeat – Implied Grant (Grant by Implication)

The existence of alternative way will defeat easement of necessity and quasi easement. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court held – ‘alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant‘. It includes the claim of implied grant also. (See: John, S/o. Ulahannan v. P. Janaki, D/o. Late Vava, 2012, Kerala High Court.)

Easement by (Implied) grant and Quasi Easement can be pleaded alternatively

Easement by (implied) grant and quasi easement can be pleaded alternatively for, they are not mutually destructive, and it is permissible to raise inconsistent pleas (but  to confine either of the two at the time of evidence).

Easement of Necessity and Easement by Prescription are Antithetical (Easement of Necessity and of Implied-Grant are Analogous)

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.

Easement of Necessity and Implied grant

  • Both Easement of Necessity and of Implied grant (i.e. ‘Easement by grant’ on implication) are sprouted on Analogous principles; for the reason that, both are based on some sort of ‘consent or permission’.

Implied Grant and Easement by Prescription

  • Implied Grants [both as (i) theoretical basis of Easement of Necessity and (ii) ‘Easement by grant’ on implication] are Antithetical to Easement by Prescription, because implied grants are based on some sort of ‘consent, approval or permission’ and Easement by Prescription is arisen from prescriptive or hostile acts and it is to be ‘acquired’.

Quasi Easement and Implied grant

  • Quasi Easements arise usually on partition or bequeath (under a Will). It pertains to Apparent and Continuous rights. Sec. 5 of the Easements Act defines apparent and continuous easements. An apparent easement is defined as one, the existence of which is shown by some permanent sign which, upon careful inspection by a competent person, would be visible to him; and a continuous easement is one whose enjoyment is, or may be, continual without the act of man.
  • Quasi Easement (apparent and continuous easement) permits enjoyment of an easement as it was enjoyed when the transfer or bequest took effect.
  • But in case of Easement of Necessity the extent of easement will be restricted to absolute necessity, or that is ‘essentially necessary’ for the effective user of a property, in the ordinary course for its designed purpose.

Read Blog: Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant

Origin of Easements of necessity and Easement by prescription are different (Easements of necessity is based on implied grants. It is based on some sort of ‘consent, approval or permission’; but, Easement by Prescription is arisen from prescriptive or hostile acts). Hence, both these rights are 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)
  • See also: Joy Joseph v. Jose Jacob, 2010 (4) KHC 167; Kochu Nadar v. Kunjan Nadar Gabriel,2011 SCC OnLine Ker 2674;  Kallen Devi v. Kizhakkekoroth Raghavan, 2012 (3) KLT 142; Kamala Devi Amma v. Rajan, 2017 (4) KLJ 700;  Lilly v. Wilson, 2018 (1) KLT 772.

Easement is Acquired; Not Arise out of ‘Express Permission’

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

Note: A license is personal to an individual, whereas a ‘grant’ in an easement pertains to a right attached to the land.

Easement and Licence – Distinction

Division Bench of the Delhi High Court, in Chandu Lal v. Municipal Corporation of Delhi, AIR 1978 Del 174, distinguished easement and licence as under:

  • “26… A mere licensee has only a right to use the property. Such a right does not amount to an easement or an interest in the property but is only a personal privilege to the licensee. After the termination of the license, the licensor is entitled to deal with the property as he likes. This right he gets as an owner in possession of his property. He need not secure a decree of the Court to obtain the right. He is entitled to resist in defence of his property the attempts of a trespasser to come upon his property by exerting the necessary and reasonable force to expel a trespasser……..”

End Notes:

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

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

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

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

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

Easement by Prescription is ‘Acquired’ by ‘Prescriptive’ user.

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

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

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

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

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

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

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, or  
  • 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.”

Can Easement of Necessity and (Implied) Grant be Claimed Alternatively?

Yes.

It is held in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, Easement of Implied Grant can be granted in a suit even though “Grant” alone was Claimed (Alternatively to easement of necessity). Facts of the case, in a nutshell, are the following –

  • Plaintiff, owner of A-schedule property (dominant tenement), claimed “easement of necessity or of grant” in B-schedule property (servient tenement).
  • “Implied grant” was not specifically pleaded (only ‘grant’ was pleaded).
  • Dominant tenement had been separated from the servient tenement.
  • Plaintiff has been using the way in B-schedule property for a long period (about 50 years).
  • The trial court observed that the plaintiff claiming easement by grant or easement of necessity has only a primary burden to prove the absence of any alternate pathway (these findings were accepted by the Apex Court).
  • Defendant alleged that two alternate pathways existed. But, No evidence of any other way to A-schedule property (dominant tenement).
  • The High Court found that there was implied grant of ‘B’ schedule property as pathway.
  • The Supreme Court upheld the view of the High Court and the Trial Court and held as under:
  • “… the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that
    • (i) no other pathway was provided for access to ‘A’ schedule property of the plaint and
    • (ii) there was no objection also to the use of ‘B’ schedule property …”

It is observed in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, as under:

  • “17. The High Court limited itself to the issue whether the decree of the first appellate court granting the original plaintiff (since deceased) right of easement over ‘B’ schedule property by way of grant concurring with the findings of the trial court was sustainable.
  • 18. Before the High Court, the defendants pleaded that there had been no appeal or cross objection filed by the original plaintiff (since deceased) against the order of the Appellate Court which disallowed the claim of easement of necessity and, therefore, the finding that there existed no easement of necessity in favour of the original plaintiff (since deceased) over the ‘B’ schedule property stood confirmed. Further they contended that the alternative pathway on the western side of the ‘A’ schedule property was rendered inconvenient by the very act of the original plaintiff (since deceased) who sold that portion of the property to a third party who began digging that pathway resulting in the difference in level. The High Court, on consideration of these contentions, held that though the claim of right of easement by way of necessity over ‘B’ Schedule property may be affected by the subsequent sale of the said plot by the plaintiff in 1983, the claim of right of easement by way of grant over ‘B’ schedule property stood unaffected by the said conduct.
  • 21. The High Court relied on a number of observations in Katiyar’s Law of Easement and Licences (12th Edition) on law with respect to “implication of grant of an easement.” It may arise upon severance of a tenement by its owner into parts. The acquisition of easement by prescription may be classified under the head of implied grant for all prescription presupposes a grant. All that is necessary to create the easement is a manifestation or an unequivocal intention on the part of the servient owner to that effect.
  • 23. Applying these observations to the facts of the case, the High Court held that though the original grant was by Yogini Amma that grant could not perfect as an easement for the reason that Yogini Amma herself was the owner of both ‘A’ schedule and ‘B’ schedule properties and consequently there was no question of ‘B’ schedule property becoming the servient tenement and ‘A’ schedule property becoming the dominant tenement. However, it was the desire of Yogini Amma that was implemented by her disciples by virtue of the settlement deed. Therefore, the right of the plaintiff to have ‘B’ schedule property as a pathway could not have been taken away by the very same deed. In fact, there was implied grant of ‘B’ schedule property as pathway as can be inferred from the circumstances, namely,
    • i) no other pathway was provided for access to ‘A’ schedule property in the settlement deed and
    • ii) there was no objection to the use of ‘B’ schedule as pathway.
  • 25. We have heard Mr. T.L. Viswanatha Iyer, learned senior counsel for the appellants and Mr. Subramanium Prasad, learned senior counsel for the respondents. We have carefully examined the impugned judgment of the courts below and also the pleadings, evidence and the materials already on record. It is not in dispute that the trial court as well as the First Appellate Court concurrently found on a proper appreciation of the evidence adduced in the case that the ‘B’ Schedule Property of the plaint was being used by the original plaintiff (since deceased) and thereafter, by the respondents even after construction of the building in 1940 in ‘A’ Schedule property of the plaint. The appellants also did not dispute the case of the original plaintiff (since deceased) that he was in continuous occupation of the building even after its construction in the year 1940. It is also not in dispute that the appellants were not able to establish that the original plaintiff (since deceased) was using any other pathway for access to ‘A’ Schedule Property of the plaint and the building therein, which was in the occupation of the original plaintiff (since deceased). The case of the appellants that since there was no mention in the deed of settlement enabling the use of ‘B’ schedule pathway for access to ‘A’ schedule property and the building therein, cannot be the reason to hold that there was no grant as the grant could be by implication as well. It is not in dispute that the fact of the use of the ‘B’ schedule property as pathway even after execution of Exhibit A1, the settlement deed in the year 1982 by the original plaintiff (since deceased) would amply show that there was an implied grant in favour of the original plaintiff (since deceased) relating to ‘B’ schedule property of the plaint for its use as pathway to ‘A’ schedule property of the plaint in residential occupation of the original plaintiff (since deceased). In the absence of any evidence being adduced by the appellants to substantiate their contention that the original plaintiff (since deceased) had an alternative pathway for access to the ‘A’ schedule property, it is difficult to negative the contention of the respondent that since the original plaintiff (since deceased) has been continuously using the said pathway at least from the year 1940 the original plaintiff (since deceased) had acquired an easement right by way of an implied grant in respect of the ‘B’ Schedule property of the plaint. It is an admitted position that both ‘A’ schedule and ‘B’ schedule properties of the plaint belonged to Yogini Amma and her disciples and it was the desire of Yogini Amma that was really implemented by the disciples under the settlement deed executed in favour of the original plaintiff (since deceased). Therefore, the High Court was perfectly justified in holding that when it was the desire of Yogini Amma to Sree Swayam Prakash Ashramam & Anr vs G.Anandavally Amma & Ors grant easement right to the original plaintiff (since deceased) by way of an implied grant, the right of the original plaintiff (since deceased) to have ‘B’ schedule property of the plaint as a pathway could not have been taken away.
  • In Annapurna Dutta vs. Santosh Kumar Sett & Ors. [AIR 1937 Cal.661], B.K. Mukherjee, as His Lordship then was observed:
    • “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
  • 26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

In this decision our Apex Court has also quoted the following from Katiyar on Law of Easements and Licences –

  • “There are numerous cases in which an agreement to grant easement or some other rights has been inferred or more correctly has been imputed to the person who is in a position to make the grant, on account of some action or inaction on his part. These cases rest on the equitable doctrine of acquiescence, but they may be referred to, for the purpose of classification, as imputed or constructive grants. The party acquiescing is subsequently estopped from denying the existence of easement. It is as if such person had made an actual grant of the easement… … It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“.

Implied Grant and Quasi Easement in a ‘Formed’ Way

There could be no implied grant where the easements are not continuous and non-apparent. But, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, our Apex Court found quasi easement under Section 13(b) of the Indian Easements Act over a way in the following circumstances –

  • Though there could be no implied grant where the easements are not continuous and non-apparent, if there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, an exception can be inferred (Annapurna Dutta vs. Santosh Kumar Sett, AIR 1937 Cal.661, B.K. Mukherjee, referred to).
  • There was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to dominant property and there was no objection also to the use of disputed way by the plaintiff.
  • An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances.
  • A trace of the pathway could be presumed to be in existence from the time when the plaintiff acquired the properties by separation of tenements.
  • Only access to the property was through disputed pathway.
  • It was required for the reasonable and convenient use of the plaintiff’s property and that on severance of the tenements, plaintiff can be presumed to have got a right over disputed pathway by an implied grant and also an easement of necessity.
  • The user was not obstructed for very long time.
  • There was no reason to disbelieve the plaintiff’s version that disputed way was given as grant for his use as he was a close relative of the former.
  • There was an apparent and continuous use which was necessary for the enjoyment of the `A’ schedule property within the meaning of Section 13(b) of the Indian Easements Act.
  • The defendants have not entered the witness box to disprove the evidence led by the plaintiff.
  • Therefore, the plaintiff was entitled to easement right in respect of the pathway.

Pleaded ‘Grant’; Not, Implied Grant – Apex Court, allowed Implied Grant

Though the plaintiff pleaded only ‘Grant’, and not, Implied Grant,  our Apex Court, in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, allowed Implied Grant observing 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.”

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