Saji Koduvath Associates

Right to Property: A Constitutional and Human Right That Cannot Be Taken Away on Mere Technical Grounds of Delay or on the Fault of Public Authorities

Saji Koduvath, Advocate, Kottayam.

Contents in a Nutshell

1. Article 300A is a constitutional safeguard against unlawful State action against Right to Property of citizens. That is, Article 300A is a limitation on the State’s power of Eminent Domain.
- The Supreme Court of India also declared the Right to Property a ‘Human Right’ and applied it in private disputes.
2. There being a Constitutional Guarantee protecting property against arbitrary State action, there will be –
- (i) No limitation for seeking corrections to revenue entries (unless specific statutory bar).
- (ii) Right to property cannot be taken away on technical grounds of delay, especially when the fault lies with the authorities.

The March of Law

Right to property was a Fundamental Right till 1978.
Its status is reduced to a Constitutional right.
It was done by the 44th Constitutional Amendment (1978).
Article 300A reads – ‘No person shall be deprived of his property save by authority of law’.
Article 300A is held to be an effective constitutional safeguard against arbitrary deprivation of property by State action.
Through judicial interpretation, the Supreme Court has recognised the right to property as a human right.
Thus, today, the right to property in India is simultaneously a constitutional right and a human right, though no longer a fundamental right.
No Limitation for Seeking Corrections To Revenue Entries (unless specific statutory bar**) for the following:
- Article 300A ensures an effective constitutional safeguard.
- Mutation does not establish title.
- The power to expunge forged or manipulated revenue entries is not subject to general limitation periods.
- Mutation is for fiscal purposes; ‘title’ is a matter for the determination of the civil court.
  - **Note: 1. Only a few States in India enacted provisions in the ‘revenue legislation’ prescribing ‘limitation’ in this regard.
  - 2. Even if there are jurisdictional or otherwise limitation for the Revenue Authorities to order correction of revenue entries, proper civil courts have jurisdiction to adjudicate the suit regarding the declaration of rights, there being a constitutional guarantee to the property (Article 300A) one legally holds.
  - In such a case, a declaration of title may not be necessary, and even if it is sought, it may not deter the court from giving relief on the ground of delay – under Article 58 of the Limitation Act.

The Constitution as Enacted in 1950

Under the Constitution as originally enacted in 1950, the right to property was guaranteed by two provisions.

Article 19(1)(f) conferred upon every citizen the fundamental right to acquire, hold and dispose of property.
Article 31 protected persons against deprivation of property except by authority of law and, in specified circumstances, upon payment of compensation.

These provisions enabled citizens to approach the Supreme Court directly under Article 32 for enforcement of their property rights.

Right To Property – Subject of Constitutional and Political Debate

However, the right to property soon became the subject of intense constitutional and political debate. Land reform legislation enacted by the States, intended to abolish intermediaries and redistribute agricultural land, frequently came into conflict with these constitutional guarantees. A series of constitutional amendments and judicial decisions followed, reflecting the continuing tension between individual property rights and the State’s socio-economic objectives.

The matter was finally settled by the Constitution (Forty-fourth Amendment) Act, 1978. This Amendment repealed Articles 19(1)(f) and 31, thereby removing the right to property from the list of Fundamental Rights. Simultaneously, a new provision—Article 300A—(No person shall be deprived of his property save by authority of law) was inserted into Part XII of the Constitution.

Consequence of New Provision—Article 300A

The consequence is significant. The right to property is no longer enforceable as a Fundamental Right under Article 32. Instead, the challenge lies before the High Courts under Article 226 or before other competent civil or revenue courts.

The expression “authority of law” in Article 300A is not an empty formality. The law authorising deprivation must itself satisfy constitutional requirements. It must be validly enacted by a competent legislature, must not be arbitrary or illusory, and must conform to other constitutional limitations, particularly Articles 14 and 21.

The Supreme Court has repeatedly emphasised – though Article 300A does not restore the status of property as a Fundamental Right, it nevertheless embodies an important constitutional guarantee.

“Constitutional Balance cannot be Upset“

In State of Punjab v. Gurdial Singh, (1980) 2 SCC 471, it is laid down as follows:

“8. First, what are the facts? A grain market was the public purpose for which government wanted land to be acquired. Perfectly valid. Which land was to be taken? This power to select is left to the responsible discretion of government under the Act, subject to Articles 14, 19 and 31 (then). The court is handcuffed in this jurisdiction and cannot raise its hand against what it thinks is a foolish choice. Wisdom in administrative action is the property of the executive and judicial circumspection keeps the court lock-jawed save where power has been polluted by oblique ends or is otherwise void on well-established grounds. The constitutional balance cannot be upset.”

No doubt, this “constitutional balance” continues under Article 300A.

Art. 300A Ensures – State Acts Only under Authority of Law

Accordingly, while the constitutional status of the right to property has been downgraded since 1978, its protection has not been abolished. Article 300A continues to ensure that the State acts only under the authority of law and within the limits imposed by the Constitution whenever it seeks to deprive a person of property.

The following are the most important decisions on Article 300A:

1. Jilubhai Nanbhai Khachar v. State of Gujarat, (1995) Supp (1) SCC 596	One of the earliest leading cases. The Court held that Article 300A protects property from deprivation except by authority of law. Executive action alone cannot deprive a person of property.
2. Bishambhar Dayal Chandra Mohan v. State of Uttar Pradesh, (1982) 1 SCC 39	Even after deletion of Article 31, the State cannot interfere with private property without legal authority. Every deprivation must be supported by law.
3. Hindustan Petroleum Corporation Ltd. v. Darius Shapur Chenai, (2005) 7 SCC 627	Though concerning land acquisition, the Court stressed that deprivation of property must strictly comply with statutory procedure and constitutional safeguards.
4. Delhi Airtech Services Pvt. Ltd. v. State of Uttar Pradesh, (2011) 9 SCC 354	Property is still a constitutional and human right. The State must strictly comply with statutory requirements before depriving a person of property.
5. K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1	The leading Constitution Bench decision on Article 300A. The Court held that Article 300A is not a mere formality. The law authorising deprivation must be just, non-arbitrary and serve a public purpose. Though compensation is not expressly guaranteed, wholly illusory compensation may render the law unconstitutional.
6. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404	The Court described the right to property as a human right as well as a constitutional right and strongly criticised arbitrary attempts by the State to appropriate private property through adverse possession.
7. Tukaram Kana Joshi v. Maharashtra Industrial Development Corporation, (2013) 1 SCC 353	The State cannot occupy private land for decades without acquisition or compensation. Such conduct violates Article 300A.
8. Vidya Devi v. State of Himachal Pradesh, (2020) 2 SCC 569	One of the strongest modern decisions. The Court held that forcible possession of private land without acquisition proceedings or compensation is unconstitutional and violates Article 300A. Property remains both a constitutional and a human right.
9. Hari Krishna Mandir Trust v. State of Maharashtra, (2020) 9 SCC 356	The Government cannot simply record private land as public property in revenue records without following due process. Article 300A requires authority of law.
10. B.K. Ravichandra v. Union of India, (2021) 2 SCC 401	The Court reaffirmed that Article 300A protects individuals against arbitrary deprivation of property and that due process prescribed by law must be observed.
11. Dharnidhar Mishra v. State of Bihar, (2024) 10 SCC 605.	Although the right to property is ceased to be a fundamental right, it continues to be a human right in a welfare state, and a constitutional right under Article 300-A of the Constitution. Accordingly, the State cannot dispossess a citizen of his property except in accordance with the procedure established by law.
12. Kolkata Municipal Corporation v. Bimal Kumar Shah, (2024) 10 SCC 533	Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448; Vidya Devi v. State of Himachal Pradesh, (2020) 2 SCC 569: Referred to.
13. The Deputy Commissioner and Special Land Acquisition Officer v. S.V. Global Mill Limited. (2026) INSC 138.	Article 300A of the Constitution reflects the constitutional commitment to the rule of law by ensuring that deprivation of property cannot occur arbitrarily and must be backed by valid law.

Right to Property, a Human Right – Also Applied in Private Civil Disputes

The Supreme Court has not confined the Constitutional and Human Right status of the right to property to cases of State acquisition under Article 300A. It has also invoked those principles while adjudicating private civil disputes where one private party seeks to defeat or diminish another’s proprietary (adverse possession and pre-emption) rights through a statutory or common-law claim. Lachhman Dass v. Jagat Ram is the clearest illustration of this principle. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404, extends the same approach in the context of adverse possession.

In Lachhman Dass v. Jagat Ram, (2007) 10 SCC 448, the Supreme Court considered the impact of the Constitutional and Human Right status of the right to property on a private claim of pre-emption. The Court observed as under:

“…. To hold property is a constitutional right in terms of Article 300-A of the Constitution of India. It is also a human right. Right to hold property, therefore, cannot be taken away except in accordance with the provisions of a statute. If a superior right to hold a property is claimed, the procedures therefor must be complied with. The conditions precedent therefor must be satisfied. Even otherwise, the right of pre-emption is a very weak right, although it is a statutory right. The Court, while granting a relief in favour of a preemptor, must bear it in mind about the character of the right, vis-à-vis the Constitutional and human right of the owner thereof.

Thus, the Supreme Court applied the constitutional and human-right character of the right to property even in resolving competing claims between private parties.

CBI has No Authority to issue directions on Immovable Property of Accused

In Shaibin Kaippenchery @ Shaibin Ashraf v. Inspector of Police, Central Bureau of Investigation (CBI) a question came before the High Court of Kerala, 2026 KER 39440 (P. V. Balakrishnan, J.) – whether the CBI possesses the legal authority to issue directions preventing all transactions relating to the immovable properties of an accused person to prevent them from escaping the law. The court found that the respondent failed to place any provision of law authorising such a restriction, and the court observed that even if an individual is considered a hardcore criminal, it does not justify denying the constitutional right to enjoy property under Article 300A of the Constitution of India. (See also: Haris v. Union of India, 2026 KER 3787.)

Inaction of Employer Cannot Defeat a Constitutional Right

In Bhikhani Devi v. Union of India, 2026 3 BBCJ(SC) 71; 2026 4 BLJ(SC) 29; 2026 INSC 612, it is found that the pension is a hard-earned benefit amassed by an employee by virtue of long and continuous service and is in the nature of “property” within the meaning of Article 300A of the Constitution. Once pension is recognised as a constitutional right in the nature of property, it cannot be taken away except by authority of law. A statutory right cannot be rendered illusory on account of inaction of the employer, and such inaction cannot defeat or deny a constitutional right.

The Following Decisions Say – the Govt. has Similar Rights over Public Properrty

1. State of Haryana v. Mukesh Kumar, (2011) 10 SCC 404 —	This is a strong judgment on the protection of Government property. Government property cannot be grabbed. The Court emphasised that public property belongs to the people and Government officials are under a constitutional duty to preserve it. The Court said that public property is held by the Government as a trustee for the people, and it must protect such property against encroachers. However, the Court also made it equally important – “The Government, including all instrumentalities of the State, cannot be permitted to perfect title over private property by invoking the doctrine of adverse possession.” This case is often cited both: to protect private property against the State; and to emphasise the Government’s duty to safeguard public property.
2. Jagpal Singh v. State of Punjab, (2011) 11 SCC 396 —	Protection of village common and Government land This is a landmark judgment. The Supreme Court directed all State Governments to remove encroachments from Gram Sabha, Panchayat, and other public lands. The Court observed – public lands belong to the community; courts should not encourage regularisation of illegal occupations; Government authorities are under a legal duty to recover public lands from encroachers. The Court remarked that such lands are meant for the benefit of the entire village community and Public land cannot be allowed to be appropriated by private persons.
3. Intellectuals Forum, Tirupathi v. State of Andhra Pradesh, (2006) 3 SCC 549	Public trust doctrine, imposes a fiduciary obligation oon the Government to preserve it. The Court reiterated that: lakes, parks, Government lands, public resources are held by the State as trustee for the public. Government has an affirmative constitutional duty to preserve such properties and cannot permit their illegal occupation.
4. Hinch Lal Tiwari v. Kamala Devi, (2001) 6 SCC 496	The Court ordered restoration of village pond land illegally allotted to private persons. It held that community lands must be protected and restored because they serve public purposes.
5. M.I. Builders Pvt. Ltd. v. Radhey Shyam Sahu, (1999) 6 SCC 464	The Court held that public property cannot be diverted or alienated contrary to law. Municipal authorities hold public property in trust for the public and cannot deal with it as if it were private property. This decision applies the public trust doctrine to Government-owned land.

Public Trust Doctrine imposes Limits and Obligations

In Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571, our Apex Court held as under:

“53. The public trust doctrine enjoins upon the Government to protect the resources for the enjoyment of the general public rather than to permit their use for private ownership or commercial purposes. This doctrine puts an implicit embargo on the right of the State to transfer public properties to private party if such transfer affects public interest, mandates affirmative State action for effective management of natural resources and empowers the citizens to question ineffective management thereof.
54. The heart of the public trust doctrine is that it imposes limits and obligations upon government agencies and their administrators on behalf of all the people and especially future generations….”

Erroneous Revenue Entries will not defeat rights under Art. 300-A

The Bombay High Court (Siddheshwar S. Thombre, J.), Aurangabad Bench, in Rama S/o Gunda Malkapure v. The State of Maharashtra, 2026:BHC-AUG:20436, quashed and set aside the Order of the Minister upholding the property rights of the landowners, under Article 300A of the Constitution. It held to the following effect:

Erroneous revenue entries that led to a reduction in area will not defeat the rights of the landowners, under Article 300-A of the Constitution of India.
The revenue authorities, being custodians of the record, are required to explain how such reduction occurred. The petitioner cannot be blamed for incorrect entries maintained by the authorities.
A legal-constitutional right cannot be taken away on technical grounds of delay when the fault lies with the authorities.
There will be no specific period of limitation for seeking corrections to such wrong entries. (The failure of authorities to issue statutory notices often prevents landowners from discovering errors in real-time.)

Tharammel Peethambaran v. T. Ushakrishnan (2026): A Classic Decision on Secondary Evidence

Also Read: Marking Secondary Evidence Without Objection: Two Apparently Divergent Views on Waiver and the Mode of Proof

Saji Koduvath, Advocate, Kottayam.

Two (Diametrically Opposite) Views on Raising Objection to Mode of Proof of Documents

First: Objection as to irregular or insufficient mode of proof of a document (such as secondary evidence) should be raised at the time while it is marked as an exhibit; and its failure amounts to waiver. Such objection cannot be allowed to be raised at any subsequent stage.
- (Classic Decision on this view is – R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752, R.C. Lahoti, Ashok Bhan, JJ.)
Second: Secondary evidence is NOT admissible until the non-production of the original is accounted for – that is, until the foundational facts of Section 65 are established. The court has also an obligation to decide the question of admissibility before making it as a secondary evidence. That is, mere marking, or marking on admission, does not automatically prove its contents.
- (Latest decision on this view is – Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938, Pankaj Mithal, S.V.N. Bhatti, JJ.)

Crux of Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938

1. Secondary evidence is NOT admissible –

until the non-production of the original is accounted for –
that is, until the foundational facts or the conditions of Section 65, Evidence Act are established.
The court relied on –
- H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
- Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
- Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
- Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
This view is also found in:
- LIC v. Ram Pal Singh Bisen [(2010) 4 SCC 491
- Yeshoda v. Shoba Ram AIR 2007 SC 1721
- State of Rajasthan v. Khemraj [(2000) 9 SCC 241 : AIR 2000 SC 1759] ,
- Mal Singhvi v. Anand Purohith 1988 (Supp) SCC 604.
- Roman Catholic Mission v. State of Madras [AIR 1966 SC 1457].

2. The court has an obligation to decide the question of admissibility before making it as a secondary evidence.

That is, mere admission of a document, or
- marking it on admission,
does not dispense with the requirement of proving it in accordance with the law or
mere marking, or marking on admission, does not automatically prove its contents.

Facts in a Nutshell

Following are the facts of the decision in Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938:

Plaint schedule property was alienated by the defendant.
Plaintiff claimed it to be joint family property.
The plaintiff challenged the authority of the defendant to alienate.
The plaintiff contended that there was no valid Power of Attorney in favour of the defendant.
Only a notarised photocopy of the alleged Power of Attorney was produced.
The original document was not placed on record.
No foundational evidence was given for leading secondary evidence.

The Trial Court decreed the suit finding that the the Power of Attorney was not proved.

The Trial Court found:

If the procedure under Sections 65 and 66 of the Evidence Act is not followed, a photostat copy does not satisfy the requirements of secondary evidence.
The non-marking of the original of the PoA, coupled with non-compliance with Sections 65 and 66 of the Evidence Act, would render the assertions on the document untenable.

The First Appellate Court reversed the Trial Court’s findings, accepting the PoA.

The High Court restored the findings of the Trial Court.

The Supreme Court of India accepted the views of the High Court and dismissed the Appeal.

Important Findings by the Apex Court

“19. The crux of the matter depends on whether Exh. B-2 can be treated as documentary evidence warranting interpretation of the clauses and the alleged contradictions with Exh. A-3 and A-4. Exh. B-2 is a photocopy, or a mechanical copy, of the purported PoA. This, therefore, implies that Exh. B-2 is, at best, secondary evidence. Secondary evidence is evidence that proves the contents of an original document through a medium that is one step removed from the source. Section 63 of the Indian Evidence Act provides an exhaustive list of what constitutes secondary evidence. This includes certified copies, copies made from the original by mechanical processes ensuring accuracy, copies compared with such copies, counterparts of documents against parties who did not execute them, and oral accounts of the contents given by a person who has seen the document.
20. The broad parameters summarising the procedure to be followed for introducing secondary evidence are reiterated and read thus:
20.1 The fundamental principle of the Indian Evidence Act is that facts have to be established by primary evidence.
- Jagmail Singh v. Karamjit Singh, (2020) 5 SCC 178. (Para 14)
Section 64 mandates that documents must be proved by primary evidence, which is considered the “best evidence”.
Primary evidence is the rule, while secondary evidence is an exception admissible only in the absence of primary evidence. A party is generally required to produce the best evidence available; so long as the superior evidence (the original) is within a party’s possession or reach, they cannot introduce inferior proof (secondary evidence).
- Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.2 Before secondary evidence can be admitted, the party relying on it must lay a factual foundation.
This involves two steps:
- First, the party must prove that the original document actually existed and was executed.
- Secondly, the party must establish valid reasons as to why the original cannot be furnished.
- Kaliya v. State of Madhya Pradesh, (2013) 10 SCC 758
20.3 Secondary evidence is inadmissible until the non-production of the original is accounted for in a manner that brings the case within the specific exceptions provided in Section 65.
- H. Siddiqui (D) By Lrs. v. A. Ramalingam AIR (2011) SC 1492
If the original itself is found to be inadmissible through failure of the party who files it to prove it to be valid, the same party is not entitled to introduce secondary evidence of its contents. Smt. J. Yashoda v. K. Shobha Rani (2007) 5 SCC 730
20.4 Section 65 of the Evidence Act is exhaustive and states the specific circumstances under which secondary evidence is permissible.
To introduce secondary evidence, a party must satisfy the conditions of one of the clauses (a) through (g) of Section 65.
20.5 Further, admitting a document as secondary evidence does not automatically prove its contents.
The secondary evidence must be authenticated by foundational evidence showing that the alleged copy is, in fact, a true copy of the original. For instance, if a party wishes to introduce a photostat copy, they must explain the circumstances under which the copy was prepared and who possessed the original at the time the photograph was taken.
- Ashok Dulichand v. Madahavlal Dube and Another (1975) 4 SCC 664;
- Chandra v. M. Thangamuthu, (2010) 9 SCC 712.
20.6 Mere admission of a document or making it an exhibit does not dispense with the requirement of proving it in accordance with the law. The court has an obligation to examine the probative value of the document and decide the question of admissibility before making an endorsement on the secondary evidence.
If the foundational facts, such as the loss of the original or the explanation for its non-production, are not established, the court cannot legally allow the party to adduce secondary evidence.
- Rakesh Mohindra v. Anita Beri, (2016) 16 SCC 483.
20.7 There is no requirement that an application must be filed to lead secondary evidence. While a party may choose to file such an application, secondary evidence cannot be ousted solely because no application was filed. It is sufficient if the party lays the necessary factual foundation for leading secondary evidence either in the pleadings or during the course of evidence
- Dhanpat v. Sheo Ram 2020 (16) SCC 209

Condition for Secondary Evidence# Statutory Clause #Type of Secondary Evidence Allowed
Adversary Possession                            Section 65(a)      Any secondary evidence (after notice).
Written Admission                                 Section 65(b)      The written admission itself.
Loss or Destruction                                 Section 65(c)       Any secondary evidence.
Immovable Original                                Section 65(d)      Any secondary evidence.
Public Document                                      Section 65(e)      Only a certified copy.
Law-Specified Document                     Section 65(f)       Only a certified copy.
Voluminous Records                              Section 65(g)      Testimony of a skilled examiner.

21. Therefore, the introduction of secondary evidence is a two-step process, wherein,
- first, the party must establish the legal right to lead secondary evidence, and
- second, they must prove the contents of the documents through that evidence.
- The twin requirements are conjunctive.
22. The High Court recorded a finding which is not challenged, that the PoA produced by the 1st Defendant is a notarised photocopy, and not the original document. The 1st Defendant is obligated to follow the procedure for adducing secondary evidence, and thereafter, claim presumption, if any, available to a document so adduced in evidence. It is axiomatic that secondary evidence is permissibleonly as an exception to the requirement of adducing primary evidence.
23. ….. In our considered view, neither Section 33 of the Registration Act nor Section 85 of the Evidence Act would come into application if the primary requirement of adducing secondary evidence is discharged by the party relying on the document. Section 85 of the Evidence Act falls under Chapter V, titled Documentary Evidence. In the absence of an original or at least a secondary evidence, it is impermissible to apply Section 85 of the Indian Evidence Act to conclude the execution and extent of authority given by the plaintiff to the 1st defendant. No order is brought to our notice through which secondary evidence is brought on record before the Trial Court. A photocopy of a document is no evidence unless the same is proved by following the procedure set out. Relying on Exh. B-2, the First Appellate Court acted on inadmissible evidence and accepted the existence of power to alienate. Exh. B-2/photocopy is no evidence, and the incorrect reliance on no evidence has been rightly corrected by the High Court through the impugned judgment. The High Court has considered the misreading of evidence by the Appellate Court and, by applying the correct principles of law, allowed the second appeal.”

End Notes

Legal Findings (Tharammel Peethambaran v. T. Ushakrishnan, AIR 2026 SC 938) Summarised

The FACTS have to be established by primary evidence.
DOCUMENTS must be proved by primary evidence.
Primary evidence is the rule, while secondary evidence is an exception.
A factual foundation must be laid before admitting secondary evidence
This involves two steps:
- First, prove that the original document actually existed and was executed.
- Secondly, establish valid reasons as to why the original cannot be furnished.
Secondary evidence is inadmissible until the non-production of the original is accounted.
Section 65 of the Evidence Act is exhaustive
The introduction of secondary evidence is a two-step process.
- First, the party must establish the legal right to lead secondary evidence, and
- Second, they must prove the contents of the documents through that evidence.
- The twin requirements are conjunctive.
Admitting a secondary evidence does not prove its contents.
The secondary evidence must be shown to be, in fact, a true copy.
Section 63 provides an exhaustive list of what constitutes secondary evidence.
Mere admission of a document as an exhibit does not dispense with proof.
The court has an obligation to examine the probative value of the document and decide the question of admissibility before making the secondary evidence.
If the foundational facts (loss of the original) are not established, the court cannot legally allow the party to adduce secondary evidence.
There is no requirement that an application must be filed to lead secondary evidence.

R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy

In R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.), held as under:

“Ordinarily an objection to the admissibility of evidence should be taken when it is tendered and not subsequently.
The objections as to admissibility of documents in evidence may be classified into two classes:-
- .(i) an objection that the document which is sought to be proved is itself inadmissible in evidence; and
- (ii) where the objection does not dispute the admissibility of the document in evidence but is directed towards the mode of proof alleging the same to be irregular or insufficient.
In the first case, merely because a document has been marked as ‘an exhibit’, an objection as to its admissibility is not excluded and is available to be raised even at a later stage or even in appeal or revision.
In the latter case, the objection should be taken before the evidence is tendered and once the document has been admitted in evidence and marked as an exhibit, the objection that it should not have been admitted in evidence or that the mode adopted for proving the document is irregular cannot be allowed to be raised at any stage subsequent to the marking of the document as an exhibit. The later proposition is a rule of fair play. The crucial test is whether an objection, if taken at the appropriate point of time, would have enabled the party tendering the evidence to cure the defect and resort to such mode of proof as would be regular. The omission to object becomes fatal because by his failure the party entitled to object allows the party tendering the evidence to act on an assumption that the opposite party is not serious about the mode of proof. On the other hand, a prompt objection does not prejudice the party tendering the evidence, for two reasons: firstly, it enables the Court to apply its mind and pronounce its decision on the question of admissibility then and there; and secondly, in the event of finding of the Court on the mode of proof sought to be adopted going against the party tendering the evidence, the opportunity of seeking indulgence of the Court for permitting a regular mode or method of proof and thereby removing the objection raised by the opposite party, is available to the party leading the evidence. Such practice and procedure is fair to both the parties. Out of the two types of objections, referred to hereinabove, in the later case, failure to raise a prompt and timely objection amounts to waiver of the necessity for insisting on formal proof of a document, the document itself which is sought to be proved being admissible in evidence.
In the first case, acquiescence would be no bar to raising the objection in superior Court.”
This view is also found in
- Neeraj Dutta v. State (Govt. of Delhi) [2023] 4 SCC 731: five-Judge Bench
- Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
- Iqbal Basith v. N Subbalakshmi, (2021) 2 SCC 718;
- PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239
- Oriental Insurance Co v. Premlata: 2007-8 SCC 575
- Thimmappa Rai v. Ramanna Rai,(2007) 14 SCC 63
- Narbada Devi v. Birendra Kumar: 2003-8 SCC 745.

Chapter V of the Evidence Act deals with Documentary Evidence

Sections 61 to 65 deal generally with Preliminary Aspects as to Admissibility. It can be summarised as under:

Section 61. The contents of documents may be proved either by primary or by secondary evidence.
Section 62. Primary evidence means the document itself
Section 63. Secondary evidence. Secondary evidence means and includes–
- .(1) certified copies
- (2) copies made by mechanical processes
- (3) copies compared with the original
- (4) counterparts of documents
- (5) oral accounts
Section 64 Documents must be proved by primary evidence.
Section 65. Cases in which secondary evidence may be given.
- .(a) when the original is in the possession of the person against whom…
- (b) when the existence, condition or contents admitted in writing
- (c) when the original has been destroyed or lost,
- (d) when the original is not to be easily movable
- (e) when the original is a public document
- (f) when a certified copy is permitted to be given in evidence
- (g) when the originals consist of numerous accounts …

Proof on Documents- General Provisions

1. Section 91 expressly bars oral evidence to prove the terms of a contract if they are reduced to writing.

2. Sec. 22 and 144 of the Evidence Act postulate that the oral assertions as to contents of documents are not.

Modes of Proof of Documents

Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:

Admission (Sec. 17, 21, 58, 67, 70).
Evidence of a person who has seen – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of one who is acquainted with the writing (Sec. 47).
Admission in judicial proceedings (Sec. 32, 33).
Handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of one in the ordinary course of his business or official duty (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

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

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Jaspal Singh v. Ashwani Kumar: Earnest Money Refund Clause Does Not Bar Specific Performance unless it is a Substitute for Sale

Contents in a Nutshell

Suit for Specific Performance – if co-owner’s share is a marketable one; it will not be a suspicious circumstance.
Evidence of fraud could not substitute omission to plead collateral transaction.
High Court ought not to have revisited findings of facts.
Clause for refund – If, only a consequence it will not curtail right of sp. performance.
Mere naming a sum as penalty – not defeat specific performance.
High Court not to interfere findings of fact (ready and willing) given by first appellate court.
Effect of no express clause in the agreement for specific performance through court.

Jaspal Singh v. Ashwani Kumar, 2026 INSC 700

The Supreme Court, in Jaspal Singh v. Ashwani Kumar, 2026 INSC 700 (Justice K.V. Viswanathan and Justice Alok Aradhe), held that existence of a clause for refund of earnest money does not, by itself, bar specific performance, unless the contract clearly shows an option to the defaulting party to pay money instead of performing the contract – as provided in Section 23 of the Specific Relief Act, 1963.

Section 23 of the Specific Relief Act, 1963

23. Liquidation of damages not a bar to specific performance — (1)A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.
(2)When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract.

Effect of No Express Clause for Specific Performance Through Court

The Supreme Court did not agree with the view of the High Court that the purchaser was not entitled to the relief, for the agreement did not contain an express clause enabling specific performance through the court.

The Apex Court observed as under:

“The High Court construed this clause as conferring upon the respondent an option to walk away from the bargain upon refund of the earnest money, holding that the absence of an express stipulation enabling the appellant to enforce the Agreement through court rendered the remedy of specific performance unavailable to him. In our opinion, such a construction cannot be sustained, either on the plain terms of the clause or on the settled position of law.”

HC Not to Interfere Findings of Fact (Ready and Willing) Given by First Appellate Court

The Supreme Court observed as under:

“It is trite law that First Appellate Court is the final court of fact and the High Court, in a Second Appeal cannot interfere with findings of fact merely because it would have arrived at a different conclusion on the appreciation of the same evidence; interference is permissible only where the findings are recorded without evidence, or by ignoring material evidence, or are otherwise vitiated by perversity. This test finds its origin in a decision of this Court rendered in 1962 and was reaffirmed later. Subsequently, the aforesaid principles have been reiterated in recent years to state that a finding of fact will not be disturbed unless it is vitiated for want of perversity.”

The Court referred to

Sir Chunilal v. Mehta & Sons Ltd. v. Century Spinning & Manufacturing Co. Ltd. (1962),
Kondiba Dagadu Kadam v. Savitribai Sopan Gujar (1999),
Jaichand v. Sahnulal (2024), and
Russi Fisheries P. Ltd. v. Bhavna Seth (2026).

Mere Naming a Sum as Penalty – Not Defeat Specific Performance

Relying on M.L. Devender Singh v. Syed Khaja (1973), the Apex Court approved the principle that the mere naming of a sum as damages or penalty is not sufficient to defeat a claim for specific performance. The Court observed as under:

“The said principles have been referred to with approval by this Court wherein this Court held that Section 23 of the 1963 Act contains a comprehensive statement of the principles governing construction of such clauses and if mere naming of a sum of damages or penalty were by itself sufficient to defeat the claim for specific performance of a contract for transfer of immovable property, the provision would be rendered wholly meaningless. It was reiterated that the mere naming of an amount which may sound in damages is not, by itself, sufficient to defeat a claim for specific performance unless it is clear on the facts that the sum was named in lieu of performance, and that a party in breach cannot resist specific performance merely on the ground that the agreement contains no express stipulation for that relief.”

Clause for Refund – Says only Consequence; Not Curtail Right of Sp. Performance

Applying the principle to the agreement under consideration, the Bench stated:

“Tested on this touchstone, the clause in question does no more than provide that, in case the Sale Deed could not be executed for any reason, the respondent would be bound to refund the earnest money. There is neither any language of election, nor any stipulation entitling the respondent to discharge the bargain, at his option, by payment of any sum in lieu of executing the Sale Deed. The clause records no more than bare consequence flowing from non-execution of the Sale Deed; the stipulation for refund operates as a deterrent reinforcing the obligation to perform, and not as a substitute for it. It protects the purchaser’s minimum entitlement in the event of default, without in any manner curtailing his right to insist upon performance”.

HC Ought Not to have Revisited Findings of Facts

The Apex Court took note of the following facts:

Trial Court and First Appellate Court had rejected the defence of the defendant that the agreement was fabricated from blank signed papers.
The defendant had admitted signatures on the documents.
The defendant did not produce expert evidence to support the allegation of fabrication.
The High Court permitted the very suspicion underlying the discarded defence – “an aspect it ought not to have revisited.”

Evidence of Fraud Could Not Substitute Omission to Plead Collateral Transaction

The Court held it as under:

“Suppression of a collateral financial dealing between parties who admittedly had continuing dealings with one another may reflect on the completeness of the plaint and go to the credibility of the appellant on that peripheral matter, but it does not, without more, establish that the Agreement to Sell, itself proved through the unimpeached testimony of the scribe and the attesting witnesses, was a fabrication superimposed on blank signatures. An omission bearing on a collateral transaction cannot be permitted to do the work of positive proof of fraud that the respondent himself failed to discharge, particularly where the cheque relied upon was not shown to correspond to the structured terms of the very arrangement he had pleaded, and the High Court erred in allowing this circumstance to colour its view of the genuineness of the Agreement.”

Co-Owner’s Share is a Marketable Subject Matter; Not a Suspicious Circumstance

The Supreme Court rejected the view of the High Court saying as under:

“Nor could the mere fact that the subject matter of the Agreement was an undivided half share in a jointly owned property support an inference that the transaction was not genuine. A co-owner’s undivided share in immovable property is a valid and marketable subject matter of transfer, and an Agreement to Sell such a share cannot be viewed with suspicion merely because the vendor’s co-sharer brother was not made a signatory. It is well settled that a transfer of an undivided share is a legally recognised and enforceable transaction in its own right, the only consequence being that the transferee’s remedy for actual enjoyment of the property lies in a suit for partition, and a consequence bearing upon the mode of enjoyment following the decree; has no bearing whatsoever on the genuineness or enforceability of the underlying Agreement to Sell.”

The Apex Court relied on the following decisions –

Sidheshwar Mukherjee v. Bhubneshwar Prasad Narain Singh (1953),
M.V.S. Manikayala Rao v. M. Narasimhaswami (1966), and
Ramdas v. Sitabai (2009).

Time Gap for Execution of Deed, and Extensions Granted – Not to Doubt Genuineness

The Court also rejected the views of the High Court on ‘time gap’ and extensions as under:

“Equally unsustainable is the interference that the time gap between the Agreement and the stipulated date for execution of Sale Deed, and the two extensions granted, indicated that the transaction was not genuine. In any event, the delay was not unreasonable: the date originally fixed as 22.06.2004 was extended, with the consent of parties, only to 22.01.2005 – a total period of barely seven months from the original date. There was, moreover, no material on record to substantiate the respondent’s plea that the parties had entered into a separate transaction relating to his travel to the USA. Extensions of time granted by consent, without more, are wholly consistent with the genuineness of the transaction cannot, by themselves, found an interference to the contrary.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

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

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Venkatesha v. KM Venkatamuniyappa: A Rectification Deed Cannot, in the Guise of Correcting an Error, Substitute the Very Subject Matter

Saji Koduvath, Advocate, Kottayam.

Findings of the Apex Court in a Nutshell

The Supreme Court (Justice Dipankar Datta and Justice Vipul M. Pancholi) held in Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705, held the following:

1. Rectification Deed: Intention must be to correct clerical mistake
2. By Rectification Deed One Cannot Alter Subject Matter
3. Survey Records or Commissioner’s Report to Establish Identity
4. S. 26 of the SR Act is not meant to substitute one property for another
5. Nemo Dat Quod Non Habet – No Person Can Convey a Better Title
6. Plaintiff Seeking Declaration of Title Must Establish His Own Case
7. Second Appeal: Substantial Question of Law must be Framed
8. Plaintiff’s Conduct: No Effort was made to Change the Revenue Entries

Fact-Summary of the Case

Thimmadasappa had property in Sy. No. ¼. By a series of registered sale deeds it was handed down from one person to another. The plaintiff (Venkatamuniyappa) got it in 1973. In all deeds the property was consistently described as one in Sy. No. 1/4.
In 1982, Thimmadasappa obtained (as government re-granted) another property, in Sy. No. 162.
In 1997 a rectification deed was executed between the defendant No.4 (plaintiff’s vendor) and the plaintiff, purportedly correcting the survey number (in the 1973 sale deed) from Sy. No. 1/4 to Sy. No. 162. Thimmadasappa, the original owner, was not a party to this rectification deed.
In 2005, Thimmadasappa executed a partition deed for Sy. No. 162 among his sons, the appellants.
The plaintiff filed the suit in 2007, challenging this partition. He sought a declaration of title, possession, an injunction, claiming ownership over Survey No. 162 on the strength of the 1997 rectification deed, so also another declaration that the 2005 partition deed executed in favour of the defendants was not binding.
The plaintiff admitted in cross-examination that the two survey numbers were distinct properties.

The trial court dismissed the suit, holding that the plaintiff had failed to prove that Survey Nos. 1/4 and 162 referred to the same property.
The first appellate court reversed this finding after comparing property boundaries recorded in the documents.
The High Court affirmed the first appellate court’s decree. It invoked Section 43 of the Transfer of Property Act, 1882 (Transfer by unauthorised person who subsequently acquires interest in property transferred – Doctrine of Feeding the Grant by Estoppel), to support its decision.
Thimmadasappa’s sons filed the SLP.

Legal Principles Applied by the Apex Court

1. Rectification Deed: Intention must be to correct a clerical mistake

The Court held in Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705, as under:

“A rectification deed cannot, in the guise of correcting an error, substitute the very subject matter of a prior conveyance without participation of the original transferor. What was sought to be achieved through the rectification deed was not correction of a clerical mistake simpliciter but substitution of one property having a specific survey number by another altogether distinct property. Such unilateral alteration could not divest the appellants of the rights flowing from the subsequent grant and partition.”

2. By Rectification Deed One Cannot Alter Subject Matter

The Apex Court held as under:

“If the very fulcrum of rectification is the common intention of the parties to the original transaction, the participation of the original executant assumes obvious importance. A transferee deriving title under an instrument cannot, together with his successor, lawfully alter the subject matter of a conveyance executed by another person. To hold otherwise would permit derivative holders of title to enlarge the estate conveyed by their predecessor without the predecessor’s concurrence.”

No relief can be granted on a Case not Pleaded

Relying on Trojan & Co. Ltd. v. Nagappa Chettiar (1953-1 SCC 456) and Bachhaj Nahar v. Nilima Mandal (2008-17 SCC 491), the Court held that relief cannot be granted on a case not pleaded. The Court observed as under:

“The first appellate court …. had, in fact, proceeded on the footing that there had been an interchange of northern and southern boundaries, although no amendment in this regard was effected in the plaint. A relief, which is premised on a case not pleaded, cannot be sustained in law.”

3. Survey Records or Commissioner’s Report to Establish Identity

The Court observed as under:

“The High Court, by proceeding directly to apply those principles without first returning a clear finding on identity, in effect, placed the legal cart before the factual horse.”

4. S. 26 of the SR Act is not meant to substitute one property for another

The Court explained it as under:

“Does Section 26 of the Specific Relief Act, 196314 have any application here? The said provision embodies a limited equitable jurisdiction. The provision kicks into operation on the assumption that the parties to an instrument had arrived at a common intention which, by reason of fraud or mutual mistake, was inaccurately reflected in the document executed between them. Rectification, therefore, rectifies the expression of a concluded bargain; it does not substitute one bargain for another. The provision is intended to remove an error in recording the transaction and not to alter the essential subject matter of the transaction itself.”

5. Nemo Dat Quod Non Habet – No Person Can Convey a Better Title

Applying this principle, the Court held as under:

“The matter may also be examined from another perspective. The principle embodied in the maxim nemo dat quod non habet admits of no exception in the present case. No person can convey a better title than he himself possesses. If Thimmadasappa never conveyed Sy. No.162, the defendant No.3 acquired no title thereto. The defendant No.4 too could not, therefore, acquire any such title. It necessarily follows that the defendant no.4 could not convey Sy. No.162 to the plaintiff merely by executing a rectification deed. A derivative title cannot outvalue the title from which it is derived.”

6. Plaintiff Seeking Declaration of Title Must Establish His Own Case

The Court expressed it as under:

“Even as the very preliminary step, the plaintiff’s title over Sy. No.162 is nebulous. A plaintiff seeking declaration of title must succeed on the strength of his own case and not on the perceived weakness of the defence. It is trite that title cannot rest on surmises or probabilities. The burden squarely rested on the plaintiff to establish that the property conveyed under Sale Deeds I, II and III, though described throughout as Sy. No.1/4, was in reality Sy. No.162. Such burden remained undischarged.”

7. Second Appeal: Substantial Question of Law must be Framed

The Court observed:

“First, the substantial question of law framed at the threshold required the High Court to examine whether the judgment of the first appellate court, reversing the well-reasoned findings of the trial court, did not suffer from any perversity. However, instead of testing the legality of the reversal, the High Court too proceeded to re-affirm findings founded upon assumptions and conjectures. In doing so, the High Court overlooked that the first appellate court had travelled beyond the pleadings and had discarded material admissions without assigning cogent reasons.”

The Bench further held:

“Secondly, the High Court also introduced an entirely new legal edifice by invoking Section 43 of the ToP Act, although the plaintiff never pleaded the ingredients thereof nor premised any of his reliefs on the said provision. A fortiori, neither the trial court nor the first appellate court had anchored their conclusions on the said provision. A conclusion based on a contention never advanced, in our considered opinion, renders itself perverse.”

8. Plaintiff’s Conduct: No Effort was made to Change the Revenue Entries

The Apex Court pointed out as under:

“The conduct of the plaintiff is equally relevant. Although the rectification deed is of the year 1997, admittedly no effort was made to have the revenue entries changed in his favour. Even until the institution of the suit in 2007, the revenue entries consistently stood in the name of Thimmadasappa and, thereafter, in the names of the appellants. While it is trite that revenue entries themselves do not confer title, they may be seen as evidence regarding possession. A total absence of any contemporaneous assertion of right by the plaintiff over Sy. No.162 for nearly a decade after the alleged rectification deed is a circumstance which the first appellate court failed to accord due weight.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Specific Relief Act

Venkatesha v. KM Venkatamuniyappa: A Rectification Deed Cannot, in the Guise of Correcting an Error, Substitute the Very Subject Matter

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

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

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

“Notwithstanding Anything Contained in this Adhiniyam” in Section 63(1) of the BSA—Do Indian Courts Fail to Properly Read and Interpret this Non Obstante Clause?

A Debate.

PART I

Saji Koduvath, Advocate, Kottayam.

(The View of the Supreme Court of India)

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, holds the field on Law on Electronic Evidence. It was rendered on a reference to a three-Judge Bench

History of Reference

The history of reference can be seen from para 2 of the Judgment.

“2. These Civil Appeals have been referred to a Bench of three honourable Judges of this Court by a Division Bench reference order dated 26.07.2019, dealing with the interpretation of Section 65B of the Indian Evidence Act, 1872 (“Evidence Act”) by two judgments of this Court. In the reference order, after quoting from Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473 (a three Judge Bench decision of this Court), it was found that a Division Bench judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801 may need reconsideration by a Bench of a larger strength.”

The March of Law

State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600, two- judge bench decision.

It is held:

“Irrespective of the compliance with the requirements of Section 65B, which is a provision dealing with admissibility of electronic records, there is no bar to adducing secondary evidence under the other provisions of the Evidence Act, namely, Sections 63 and 65. It may be that the certificate containing the details in sub-section (4) of Section 65-B is 26 not filed in the instant case, but that does not mean that secondary evidence cannot be given even if the law permits such evidence to be given in the circumstances mentioned in the relevant provisions, namely, Sections 63 and 65.”

Anvar PV v. PK Basheer, (2014-10 SCC 473), three- judge bench decision.

It is held that the new provisions (Sections 65A & 65B) make a complete code in itself holding as under:

“Being a special law, the general law under Sections 63 and 65 has to yield.”

But finally held:

“It is clarified that notwithstanding what we have stated herein in the preceding paragraphs on the secondary evidence of electronic record with reference to Sections 59, 65A and 65B of the Evidence Act, if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act, the same is admissible in evidence, without compliance with the conditions in Section 65-B of the Evidence Act.”

Tomaso Bruno v. State of UP, (2015-7 SCC 178), three-bench decision.

It is held, as to make CCTV footage admissible, as under:

“Secondary evidence of contents of document can also be led under Section 65 of the Evidence Act”.

Sonu v. State of Haryana (2017-8 SCC 570) two- judge bench decision.

It is held:

“The crucial test, as affirmed by this Court, is whether the defect could have been cured at the stage of marking the document. Applying this test to the present case, if an objection was taken to the CDRs being marked without a certificate, the court could have given the prosecution an opportunity to rectify the deficiency.”

Shafhi Muhammed v. State of HP, (2018-2 SCC 801 ) two- judge bench decision.

Tomaso Bruno (2015) was followed in. It was held as under:

“(11) The applicability of procedural requirement under Section 65B(4) of the Evidence Act of furnishing certificate is to be applied only when such electronic evidence is produced by a person who is in a position to produce such certificate being in control of the said device and not of the opposite party. In a case where electronic evidence is produced by a party who is not in possession of a device, applicability of Sections 63 and 65 of the Evidence Act cannot be held to be excluded. In such case, procedure under the said Sections can certainly be invoked. If this is not so permitted, it will be denial of justice to the person who is in possession of authentic evidence/witness but on account of manner of proving, such document is kept out of consideration by the court in absence of certificate under Section 65B(4) of the Evidence Act, which party producing cannot possibly secure. Thus, requirement of certificate under Section 65B(h) [sic-65B(4)] is not always mandatory.
- (12) Accordingly, we clarify the legal position on the subject on the admissibility of the electronic evidence, especially by a party who is not in possession of device from which the document is produced. Such party cannot be required to produce certificate under Section 65B(4) of the Evidence Act. The applicability of requirement of certificate being procedural can be relaxed by Court wherever interest of justice so justifies.”

Arjun Panditrao v. Kailash Kushanrao, (2020) 7 SCC 1, three-judge bench decision.

It substantially followed PV Anwar (2014) with a ‘clarification’.

Because it is held in Anver PV v. PK Basheer that Section 62, 63 and 65 are not applied for electronic evidence – for 65A & B are ‘complete code’ – the further observation that ‘if an electronic record as such is used as primary evidence under Section 62’ stood incongruent and contradictory. Therefore, it is “clarified” and directed to “read” Anver “without the words – ‘under Section 62 of the Evidence Act’ ”.

It is further found – Tomaso Bruno v. State of UP is per-incurium. It is held as under:

“What is clear from this judgment is that the judgment of Anvar P.V. (supra) was not referred to at all. In fact, the judgment in State v. Navjot Sandhu (2005) 11 SCC 600 was adverted to, which was a judgment specifically overruled by Anvar P.V. (supra). It may also be stated that Section 65B(4) was also not at all adverted to by this judgment. Hence, the declaration of law in Tomaso Bruno (supra), following Navjot Sandhu (supra) that secondary evidence of the contents of a document can also be led under Section 65 of the Evidence Act to make CCTV footage admissible, would be in the teeth of Anvar P.V., (supra) and cannot be said to be a correct statement of the law. The said view is accordingly overruled.”

Arjun Panditrao: Findings on Reference

“72. The reference is thus answered by stating that:
(a) Anvar P.V. (Anvar P.V. v. P.K. Basheer & Ors. (2014) 10 SCC 473), as clarified by us hereinabove, is the law declared by this Court on Section 65B of the Evidence Act. The judgment in Tomaso Bruno (Tomaso Bruno and Anr. v. State of Uttar Pradesh (2015) 7 SCC 178), being per incuriam, does not lay down the law correctly. Also, the judgment in SLP (Crl.) No. 9431 of 2011 reported as Shafhi Mohammad (Shafhi Mohammad v. State of Himachal Pradesh (2018) 2 SCC 801) and the judgment dated 03.04.2018 reported as (2018) 5 SCC 311, do not lay down the law correctly and are therefore overruled.
(b) The clarification referred to above is that the required certificate under Section 65B(4) is unnecessary if the original document itself is produced. This can be done by the owner of a laptop computer, computer tablet or even a mobile phone, by stepping into the witness box and proving that the concerned device, on which the original information is first stored, is owned and/or operated by him. In cases where the “computer” happens to be a part of a “computer system” or “computer network” and it becomes impossible to physically bring such system or network to the Court, then the only means of providing information contained in such electronic record can be in accordance with Section 65B(1), together with the requisite certificate under Section 65B(4). The last sentence in Anvar P.V. (supra) which reads as “…if an electronic record as such is used as primary evidence under Section 62 of the Evidence Act…” is thus clarified; it is to be read without the words “under Section 62 of the Evidence Act,…” With this clarification, the law stated in paragraph 24 of Anvar P.V. (supra) does not need to be revisited.
(c) The general directions issued in paragraph 62 (supra) shall hereafter be followed by courts that deal with electronic evidence, to ensure their preservation, and production of certificate at the appropriate stage. These directions shall apply in all proceedings, till rules and directions under Section 67C of the Information Technology Act and data retention conditions are formulated for compliance by telecom and internet service providers.
(d) Appropriate rules and directions should be framed in exercise of the Information Technology Act, by exercising powers such as in Section 67C, and also framing suitable rules for the retention of data involved in trial of offences, their segregation, rules of chain of custody, stamping and record maintenance, for the entire duration of trials and appeals, and also in regard to preservation of the meta data to avoid corruption. Likewise, appropriate rules for preservation, retrieval and production of electronic record, should be framed as indicated earlier, after considering the report of the Committee constituted by the Chief Justice’s Conference in April, 2016.
These appeals are dismissed with costs of INR One Lakh each to be paid by Shri Arjun Panditrao Khotkar (i.e. the Appellant in C.A. Nos. 20825-20826 of 2017) to both Shri Kailash Kushanrao Gorantyal and Shri Vijay Chaudhary.”

Arjun Panditrao: Authoritative Exposition of the Law

The decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1, came in the backdrop of the judicial evolution or ‘march of law’ outlined above. It represents the culmination of that line of judicial reasoning and presently constitutes the authoritative exposition of the law governing the proof and admissibility of electronic evidence in India. The decision has been consistently followed and accepted by courts across the country as the binding declaration of law under Article 141 of the Constitution.

…

PART II

(The Author’s view on S. 63 BSA is presented, Strictly on First Principles)

Contents in a Nutshell

Question 1.
What exactly does the Non Obstante Clause Override – Deeming Provision alone, or the Entire Law relating to Computer Outputs?

•• • Is the non obstante clause in sub-section (1) of Section 63 (“Notwithstanding anything contained in this Adhiniyam”) confined to the statutory deeming provision alone—namely, that a computer output (copy) shall be deemed to be an electronic record (original document) and shall be admissible?

•• • Or, does it override the entire law relating to computer outputs, so that a computer output (copy) can be proved only in the manner prescribed by Section 63—namely, by producing the certificate under Section 63(4)—to the exclusion of every other mode of proof recognised by the Adhiniyam as was held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908?

•• • Answer

•• • The non obstante clause in Section 63(1) overrides (only) the deeming provision (the ‘copy’ shall be DEEMED to be ‘original‘, and it shall be admissible without FURTHER proof, as evidence).

Question 2.
Is it legitimate to deny the computer output(copy), for the ‘conditions’ cannot be satisfied?

•• • “Computer output (copy) shall be deemed to be also a document“, if only the conditions mentioned in Section 63(2) are satisfied. Where, in a given case, the conditions cannot be satisfied, does it follow that such a computer output is incapable of proof?

•• • Answer

•• • It is reasonable to allow (and the Adhiniyam permits) — the computer output to be proved by any other lawful mode.

Question 3.
Can Photographs and Videos be Proved with S. 63(4) Certificate? Is Hash Value Certificate Necessary for CCTV footages, CDs & Videos?

•• • Answer

•• • Sub-section (4) of Section 63 prescribes an enabling mode, using the certificate and Hash Value, for proving the ‘STATEMENTS’ alone, and not photographs, CCTV footages, CDs and videos.

•• • The mode of evidence under Section 63(4), by way of certificate, itself is optional — for it is permitted to be invoked only when it is “desired to give a statement in evidence by virtue of this section“.

The Non Obstante Clause is Confined to the Statutory Deeming Provision

The non obstante clause in Section 63(1), Bharatiya Sakshya Adhiniyam, 2023, is the following –

“Notwithstanding anything contained in this Adhiniyam …… the computer output shall be DEEMED to be ALSO a document …… and shall be ADMISSIBLE without FURTHER proof ….. as evidence …..“

Both grammatically and contextually, the non obstante clause is confined to the ‘deeming provision‘ and its consequence only. The following are the ‘deeming provision’ and the ‘consequence’ –

(i) a computer output (copy) shall be DEEMED to be an (original) document and
(ii) its consequence—that the computer output (copy) shall be ADMISSIBLE without FURTHER proof ….. as evidence.

“Shall be ADMISSIBLE without FURTHER proof” — Dependent Upon ‘Deeming Clause’

There are several strong contextual and grammatical reasons to say that the second part _{(“the computer output shall be deemed to be also a document…”)} is not an independent provision, but is dependent upon the first part _{(“and shall be admissible without further proof…”).}

They are as follows:

1. The conjunction “and” and the expression “without FURTHER proof“ affirm the relation.

The non obstante clause introduces one integrated statutory mechanism. Read as a whole, Section 63(1) confers a single evidentiary benefit: the computer output is first treated as though it were the original electronic record, and, because it is so treated, it becomes admissible without FURTHER proof.
If detached from the deeming provision, the words “without FURTHER proof“ become contextually incomplete and lose their statutory foundation.

2. The adjective “FURTHER” presupposes antecedent proof.

The expression “without FURTHER proof“ necessarily assumes that some proof has already been supplied. What is that proof? It is the statutory proof created by the legal fiction. Once the computer output is deemed to be the document itself, no further proof of the original electronic record is required.

3. The rider, “if the CONDITIONS mentioned in this section are satisfied” stands attached to the deeming clause — “and shall be deemed to be ALSO a document”.

Had it been intended that the admissibility clause — _{“shall be admissible … without further proof …. of the original”} — in the second limb should operate independently, the ‘conditional clause‘ would have been linked to that limb alone; on the contrary, the two limbs are joined together with the words “and shall be” _{(repeating the words} _{shall be)}.

4. The admissibility clause is the legal consequence of the deeming fiction.

In the words (‘predicates’) “…shall be deemed to be also a document” and “shall be admissible without further proof“, grammatically, share a single ‘subject’ — “the computer output.” It indicates that the admissibility is not an independent rule.
Note: The admissibility provision is not enacted as a separate sentence, such as: “It shall also be admissible without further proof.”

5. The statutory sequence is significant, and it affirms — ‘admissibility’ is not an independent rule.

This subsection first elevates the computer output to the status of a document (original) by providing that it “shall be deemed” to be original (document). Only thereafter does it declare that it “shall be admissible without further proof.” The latter is thus the legal consequence of the former.

S. 63, Bharatiya Sakshya Adhiniyam

Section 63, Bharatiya Sakshya Adhiniyam, 2023 reads as under:

“63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be ALSO a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without FURTHER proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.”

Proof Invoking the Deeming Provision in S. 63 is only an Optional Mode

As shown above, the non obstante clause is confined to the statutory deeming provision (shall be deemed to be also a document if the conditions in sub-section (2) are satisfied). Consequently, resorting to that deeming fiction will be optional. It will not be mandatory. A party may therefore prove a computer output either by invoking Section 63 or by any other legally recognised mode of proof under the Bharatiya Sakshya Adhiniyam, 2023.

Note: Section 63(2) prescribes the conditions under which Section 63(1) operates. Thus, Section 63(1) has a direct nexus with sub-section (2). Such a nexus is not with sub-section (4), which deals with ‘statement’ and ‘Certificate’.

Proof by Certificate u/S. 63(4) is (Independent and Optional) Enabling Mode

The certificate contemplated by Section 63(4) is an enabling (optional) mode of proof; that too for proving a STATEMENT alone. It is not the exclusive mode. Section 63(4) does not control Section 63(1) and 63(2). To that extent, it is independent. Sub section (4) of Section 63 begins as under:

“(4) In any proceeding where it is desired to give a STATEMENT in evidence by virtue of this section, a certificate doing any (?) of the following things shall be submitted along with the electronic record (computer output?) at each instance…“

S. 63 Deals with Admissibility; Not Truth of Contents

S. 63 Deals with admissibility of ‘computer output’ (copy), and it does not affect the truth of the contents of the original.

Read Article : Proof on ‘Truth of Contents’ of Documents, in Indian Evidence Act

S. 63 Does Not Override Every Other Provision of the Adhiniyam

For the above, Section 63(1) cannot be construed as a provision that overrides every other provision of the Adhiniyam relating to the proof and admissibility of electronic evidence (including Sections 58 and 60 dealing with secondary evidence), as was held in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908.

Other Provisions that deal with the Proof of ‘Computer Output’

Other provisions of the Adhiniyam that deal with the proof of ‘computer output’ (if Section 63 is not in the Act) are the following –

First, Section 58: Secondary evidence: Secondary evidence includes—
(i)….
(ii) copies made from the original by mechanical processes which in themselves
ensure the accuracy of the copy, and copies compared with such copies ……
Second Section 60: Cases in which secondary evidence relating to documents may be given: Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: —
(a) ….
(b) ….
(c) ….
(d) when the original is of such a nature as not to be easily movable……

When Section 58 or Section 60 is invoked, it may become necessary (particularly when it is objected to or questioned) to give evidence as to the fact that (i) the copy is made from the original by mechanical processes which in themselves ensure the accuracy and (ii) the original is of such a nature as not to be easily movable.

Section 63 does not Constitute an Exhaustive Code.

A computer output can be proved under Section 63, only if the conditions prescribed in Section 63(1), read with Section 63(2), are satisfied. In such a case, the statutory deeming fiction is attracted, and the computer output (being a copy) is deemed to be an electronic record (original document) and is admissible without further proof or production of the original.

If the strict interpretation adopted in Arjun Panditrao is accepted, then whenever the conditions prescribed by Section 63 cannot be satisfied—or are impossible to satisfy—the computer output would become incapable of being received in evidence. Such a consequence is both harsh and illogical. The inability to invoke the statutory deeming fiction should not render an otherwise relevant and reliable computer output inadmissible or incapable of proof.

On the contrary, if the non obstante clause is confined to the statutory deeming provision, Section 63 merely provides a special statutory mode of proof. Where its conditions are not satisfied, a party remains free to prove the computer output by any other lawful mode of proof recognised under the Bharatiya Sakshya Adhiniyam, 2023.

Accordingly –

Section 63 does not constitute an exhaustive code governing the proof of computer outputs or electronic evidence. It merely provides one statutory method of proof by conferring the benefit of a legal fiction upon a computer output that satisfies the requirements of the section.

CCTV footages, CDs & Trap Videos: Cannot be Proved with a Certificate

Following are the conditions for admissibility of a computer output under Section 63(2)—

(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities.

Copied Item	Section	Why not attracted
CCTV Footage	63(2)(a)	The device is NOT used regularly … for … any activity regularly carried on …. by (any) person having lawful control.
Photograph, Trap-Video or CDs of speech Videograph of the scene of the crime.	63(2)(b)	NOT *regularly fed* into the device in the *ordinary course.*
	63(2)(d)	NOT derived from such information fed in the ordinary course.

Settled Principles Governing Non Obstante Clauses

The following are the settled principles governing non obstante clauses –

1. In a non-obstante clause, the court applies a harmonious interpretation giving a restricted meaning, and the purport will be to avoid conflict with other provisions of the Act and the intention of the legislation.
- See: • Bihar Industrial Area Development Authority v. Rama Kant Singh, 2022-4 SCC 489 (Ajay Rastogi, Abhay S. Oka, JJ).
- Geeta v. State of U.P., AIR 2011 SC 414 ; 2010-13 SCC 678, (G.S. Singhvi and Asok Kumar Ganguly, JJ.),
- Central Bank of India v. State of Kerala, , (2009) 4 SCC 94.
- ICICI Bank Ltd. v. SIDCO Leathers Ltd., , (2006) 10 SCC 452,
- A.G. Varadarajulu v. State of Tamil Nadu, , (1998) 4 SCC 231,
- Chandavarkar Sita Ratna Rao v. Ashalata S. Guram, , (1986) 4 SCC 447,
- Aswini Kumar Ghose v. Arabinda Bose, , AIR 1952 SC 369,
2. A non obstante clause overrides only to the extent of inconsistency. It should not be given a wider operation than the legislative purpose requires. Once Parliament creates a legal fiction, courts must give full effect to it, but not extend it beyond its purpose.
- See: East End Dwellings Co., Ltd. v. Finsbury Borough Council, (HL) Lord Asquith, J., (1952) A.C. 109; (1951) 2 All.E.R 587.
- Referred to in:
- Dineshchand Surana v. UCO Bank, 2026 KLT(Online) 4261 ; 2026 KHC(Online) 6425 (J.B. Pardiwala, K. V. Viswanathan, JJ.)
- Nirmiti Developers v. The State Of Maharashtra, AIR 2025 SC 1495 ; 2025 KLT(Online) 1446 (J.B. Pardiwala, R Mahadevan, JJ.)
- Union of India v. Rajeev Bansal 2024 KLT(Online) 2422; 2024-10 SCR 1633 (DY Chandrachud, CJI, J.B. Pardiwala, Manoj Misra, JJ.)
- Canara Bank v. D.R.P. Sundharam, 2016-1 Scale 525 ; 2016-1 SCT 803 ; 2016 KHC 6932, (Ranjan Gogoi, Arun Mishra, Prafulla C. Pant, JJ.)
- Oswal Agro Furane Ltd. v. Oswal Agro Furane Workers Union, AIR 2005 SC 1555; 2005-3 SCC 224 (N. Santosh Hegde & S.B. Sinha, JJ.)

Why the Non Obstante Clause in Section 63(1)?

Under the ordinary law of evidence, a computer output represents a copy or reproduction of information. Section 63(1) creates a legal fiction by treating such a computer output (copy) as an electronic record (original document) for evidentiary purposes. The legal effect of this deeming provision is twofold:

1. The non obstante clause is confined to enabling the statutory deeming fiction to operate notwithstanding anything contained elsewhere in the Act, particularly the provisions relating to secondary evidence in Sections 58 and 60.
- Consequently, a computer output need not satisfy the ordinary requirements applicable to secondary evidence—for example, it need not be a “compared copy” within Section 58, nor is it necessary to establish the conditions prescribed by Section 60 for leading secondary evidence, such as proving that the original is in the possession of the opposite party.
2. Although Section 63(1) elevates a computer output (a copy) to the status of an electronic record (original document), the deeming fiction goes no further. It does not override the general law of evidence or dispense with the ordinary requirements governing admissibility, including relevance, authenticity, reliability, and proof.

Section 63(4) – Only One Mode of Proving the Computer Output

The Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, had established a strict interpretation. It laid down — for admitting all categories of computer outputs (copies), “the only means” can be the requisite certificate under Section 65B(4).

But, sub-section (4) of Section 63 prescribes evidence by the mode of certificate, only for proving the ‘STATEMENTS’ (and not photographs or videos). This mode itself is optional — for it is permitted to be invoked only when it is “desired to give a statement in evidence by virtue of this section“. Section 63(4) reads as under:

“(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission ….”

It is plain — Section 63(4) is not the exclusive route for proving all categories of computer outputs, as was held in Arjun Panditrao.

No Hash Certificate is Needed for CCTV footages, CDs & Videos

As shown above, sub-section (4) of Section 63 prescribes an enabling mode, using the certificate and Hash Value, for proving the ‘STATEMENTS’ alone (and not photographs or videos).

S. 61 BSA is to Override Arjun Panditrao

The above interpretation is reinforced by Section 61. If Section 63, actually constituted a complete overriding code governing the admissibility of computer output, there would have been little necessity for Parliament to enact Section 61. The existence of Section 61 indicates that Section 63 performs a narrower function.

It is also clear — Section 61 is a provision intended to ensure alternative routes for admitting computer outputs (copies of electronic records), that is, other than through the certificate contemplated under Section 63. It is the harmonious interpretation. If Section 61 is not read as stated above, it becomes redundant.
Section 61 of the BSA, was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam reads as under:
- “61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
- Note: The words “subject to section 63” connote — if Section 63 is invoked, all requirements and conditions therein must be complied with.

Drastic Legislative Change to Arjun Panditrao

Section 61, Adhiniyam made a drastic legislative change to the deliberation placed by Arjun Panditrao Khotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.

In any event, Section 61 is worded with the definite view that it must be understood as a provision intended to secure alternative routes for admitting computer outputs (copies of electronic records); that is, otherwise than through the certificate contemplated under Section 63(4).

It is time to consider – Whether the Courts in India Failed to Read and Understand: “Notwithstanding Anything Contained in this Adhiniyam”, the Non Obstante Clause in Section 63(1), Bharatiya Sakshya Adhiniyam, 2023.

Conclusion

The opening words of Section 63(1) of the Adhiniyam —”Notwithstanding anything contained in this Adhiniyam” do not establish a general overriding code governing electronic evidence, as interprets by the courts in India. These words merely ensure that, notwithstanding anything elsewhere in the Act, the statutory deeming fiction created by Section 63(1)—namely, that a computer output (a copy) shall be deemed to be an electronic record (an original document)—prevails.

Whether the reasoning in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, is ultimately found to be correct or requires reconsideration (especially in view of the new provision in Section 61 of the Adhiniyam), is a matter for the Supreme Court. Until it is reconsidered, clarified, or overruled by a Bench of coequal or larger strength, it continues to hold the field and must be faithfully applied by all courts and tribunals in India.

Read Also
_• _{Law on Electronic Evidence In India under S. 61 – 63 of the BSA}
_• _{“Notwithstanding Anything Contained in this Adhiniyam” – The Non Obstante Clause in Section 63(1) BSA is Confined to the Deeming Fiction.}
_• _{Is a Section 63(4) Certificate an Essential Prerequisite for the Admission of a Photograph in  Evidence?
• Admissibility of Electronic Evidence: Does Section 61 of the BSA Permit Oral Proof (Overriding Arjun  Panditrao)
• Law on Electronic Evidence in India: A Comparative Analysis with Other  Jurisdictions
• Hash Value Certificate – Mandatory or  Directory
• Sakshya Adhiniyam (Literally) Mandates Hashing the Original. But the Established Jurisprudence Requires Hashing the  Copy.
• Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam,  2023
• Sec. 65B, Evidence Act: Arjun Paditrao  Criticised.
• Sec. 65B Evidence Act  Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,   Evidence Act: Certificate forms
• “Nothing  In This Adhiniyam Shall Apply To Deny The Admissibility” – New Provision (Sec. 61, BSA) to ensure that Sec. 65B (Sec. 63, BSA) is an enabling} _{provision
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao  Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in  Courts?}

End Notes

Sections 61, 62, 63 of the BSA deal with electronic or digital evidence. They read as under:

61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.
62. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of section 63.
63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
- (a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
- (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities;
- (c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
- (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
- (a) in stand-alone mode; or
- (b) on a computer system; or
- (c) on a computer network; or
- (d) on a computer resource enabling information creation or providing information processing and storage; or
- (e) through an intermediary,
all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.
(4) In any proceeding where it is desired to give a STATEMENT in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
- (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
- (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.
(5) For the purposes of this section,—
- (a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
- (b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

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Law on Electronic Evidence In India under S. 61 – 63 of the BSA

Saji Koduvath, Advocate, Kottayam.

Contents in a Nutshell
_{•_• _•1. Sec. 63 BSA: Status of Copy (computer output) is raised to Original}
_{_{•_• _•}2. Thereby, the admissibility of such a copy is not subject to S}._{58 (recognised forms of secondary evidence) & S. 60 (when secondary evidence is admissible).
_{•_• _•}3. S. 63 Certificate – an Enabling Provision (See words: ALSO  &  DESIRED)
_{•_• _•}4. S. 63 Certificate – confined to “STATEMENTS”  (Not  “computer output“)
_{•_• _•}5. S. 61 BSA is a New Provision; It is to Override  Arjun Panditrao
_{•_• _•}6. Arjun Panditrao:  ‘Statements’ Embrace even Video and Photograph
_{•_• _•}7. Drastic Legislative Change to  Arjun Panditrao – (to secure alternative routes)
_{•_• _•}8. S. 63 Applies only “If the Conditions ….   Are Satisfied”
_{•_• _•}9.  Contents of Section 63(4) Certificate
_{•_• _•}10. The words “Subject to S. 63” in S. 61 do not Suggest Certificate Compulsory.
_{•_• _•} 11. HASH Value Certificate – Logic requires hash values (of copy) at the time of ‘copying’}_.

1. Sec. 63 BSA: Status of Copy (computer output) is raised to Original

Section 63, Bharatiya Sakshya Adhiniyam, 2023, speaks as to copy (computer output) as under –

“ (1) Notwithstanding anything contained in the Act … any information contained in an electronic record which is printed on paper…. or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document …..”

Three important legal effects of Section 63(1)

1. The opening words, “Notwithstanding anything contained in this Act,” in Section 63(1) are directed only to the statutory fiction that a computer output shall be deemed to be an electronic record (i.e., the original document). The non- obstante clause is confined to this deeming provision. It should not be construed as overriding every provision of the Act relating to the proof or admissibility of electronic evidence. Its function is only to support the legal fiction created by Section 63(1), not to govern the admissibility of electronic evidence generally.
2. Under Section 63(1), a ‘computer output‘ (copy) is deemed to be a document. The computer output is raised to the status of an electronic record (original) for the purposes of admissibility.
3. The effect of sub-section (4) is that the admissibility of a ‘computer output’ (copy) is not subject to the requirements of Section 58 (which defines the recognised forms of secondary evidence), or Section 60 (which specifies the circumstances in which secondary evidence is admissible).
- Note: When the document is defined in Section 2(1)(d), it is laid down as under: ”
  - ” ‘document’ means any matter expressed or described or otherwise recorded upon any substance by means of letters, figures or marks or any other means or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter and includes electronic and digital records.”

2. S. 63 Certificate – an Enabling Provision

Section 63, Certificate is not mandatory; it is only an enabling provision for the following:
1. Section 62, BSA says –
- The contents of electronic records MAY be proved (not shall be proved) in accordance with the provisions of section 63.
2. Section 63(1), BSA reads –
- … “the computer output shall be deemed to be ALSO a document”
3. Section 63(4) lays down:
- “where it is desired to give a statement in evidence, by virtue of this section”, it can be had by a “certificate”.
Note: Though there is a contradiction in terms on “Notwithstanding anything” on one hand and “also” and “desire” in another, on a harmonious reading, it is definite that it is an enabling provision. (If the strict interpretation is applied, admission by the other side will also not enable marking an electronic document.)
Therefore, an electronic document can be dealt with in accordance with the general principles applicable to documentary evidence in other provisions of the Evidence Act/ Adhiniyam. The certificate requirement (marking a document otherwise than through a witness) operates as an enabling or facilitative provision.

Section 63 does not Constitute an Exhaustive Code. Why?

Where the conditions prescribed in Section 63(1), read with Section 63(2), are not satisfied, or the deeming provisions cannot be invoked, the consequence is only that the benefit of the statutory deeming fiction (admissible without further proof or production of the original) cannot be invoked.

The inability to prove a computer output, invoking the statutory deeming provision, does not render the computer output inadmissible or incapable of proof.

It can still be proved by any other lawful mode of proof recognised by the Bharatiya Sakshya Adhiniyam, 2023, if the facts of the case permit.

Accordingly, Section 63 does not constitute an exhaustive code governing the proof of computer outputs or electronic evidence. It merely provides one statutory method of proof by conferring the benefit of a legal fiction upon a computer output that satisfies the requirements of the section.

S. 63 Certificate – Confined to “STATEMENTS” (Not “computer output“)

It is definite from the very statute – Section 63(4), BSA Certificate is confined to “STATEMENTS”.
It reads as under:
- “In any proceeding where it is desired to give a STATEMENT in evidence, by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record”.
Note: 1. What is stated is NOT – where it is desired to give a ‘computer output‘ in evidence. Instead, it speaks of giving a “statement”.
Note: 2. Nevertheless, the Supreme Court (Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908) does not accept this view. It is held –
- “The drill of Section 65A and 65B alone be followed when it comes to admissibility of information contained in electronic records.”
Note: 3. “STATEMENT” according to BSA is –
- that which can be expressed in the form of ‘oral evidence’. It is clear from the following
- “STATEMENT” according to BSA is – expressed in ‘oral evidence’.
  - Sec: 2(1)(e) – Evidence is statements of witnesses
  - 15 -19 – Admission is statement of witness
  - 26 – Statement of a dead person
  - 28 – Entries in books of account
  - 30 – Statements in maps, plans
  - 31 – Statements in Acts Notification
  - 32 – Statements in law books
  - 33 – If longer statements
  - 79 – Statement of accused
  - Also See Sections: 89, 94, 95, 125, 147,
  - Also See Sections: 148, 158, 160, 161.

CCTV footage, CDs & Trap Video: Cannot be Proved with a Certificate

Following are the conditions for admissibility of a computer output under Section 63(2) —
- (a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
- (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities;
- (c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
- (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities.

Item	Section	Why not attracted
CCTV Footage	63(2)(a)	Device was NOT *used* regularly for any *activity regularly carried on* *by the person* having lawful control.
Photograph, Trap-Video or CDs of speech Videograph of the scene of the crime,	63(2)(b)	NOT *regularly fed* into the device in the *ordinary course.*
	63(2)(d)	NOT derived from such information fed in the ordinary course.

Arjun Panditrao: ‘STATEMENT’ Embrace even Video and Photograph

In Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, the Supreme Court adopted an expansive interpretation of the expression “statements.” It pressed the requirement of a certificate under Section 65B as a general condition for the admissibility of all forms of computer output (copies).
In other words, the term “statement” was construed to embrace all forms of computer output, regardless of their nature—whether a video, a photograph, or any other digital record. However, such an expansive construction does not appear to be supported either by the text of the provision or by its underlying rationale and intended scope.
Section 63, Adhiniyam, now requires expert opinion or hash value certification over and above the Certificate laid down in the former provision under Section 65B of the Indian Evidence Act.

Read :Sec. 65B, Evidence Act: Arjun Paditrao Criticised.

S. 61 BSA is a New Provision; it is to Override Arjun Panditrao

Section 61 of the BSA, is a new provision. It was not in the Indian Evidence Act, 1872. Section 61, Adhiniyam says as under:
- “61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
It is plain — Section 61 is a provision intended to secure alternative routes for admitting computer outputs (copies of electronic records), that is, otherwise than through the certificate contemplated under Section 63.
The Supreme Court decision in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1: AIR 2020 SC 4908, had established a strict interpretation. It laid down that the proof by the certificate under Section 65B (Section 63, Adhiniyam) was mandatory for admitting a computer output (copy) in evidence. Thus, it is clear – S. 61 BSA is to override Arjun Panditrao.

Drastic Legislative Change to Arjun Panditrao

Section 61, Adhiniyam made a drastic legislative change to the deliberation placed by Arjun Panditrao Khotkar. By virtue of Section 61, a computer output (i.e., a copy of an electronic record) is capable of being proved by any mode of proof recognised under the Adhiniyam, and is not restricted to proof solely through the certificate.
In any event, Section 61 is worded with a view that it must be understood as a provision intended to secure alternative routes for admitting computer outputs (copies of electronic records); that is, otherwise than through the certificate contemplated under Section 63.

Section 63(4) Certificate

Section 63(4) BSA reads as under:

“(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
.(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);

_{The following are the clauses (a) to (e) of sub-section (3)}
_{.(a) in stand-alone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource ….; or
(e) through an intermediary.}

_{The conditions in sub-section (2)—
.(a) …. during the period …. used regularly …;
(b) …. information ….. regularly fed;
(c) …. operating properly ….; and
(d) information …. fed … in the ordinary course …}

and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.”

Do the words “Subject to S. 63” in S. 61 Suggest Certificate Compulsory?

Section 61 reads as under:
- “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.”
Do the words “subject to Section 63” in Section 61 suggest that the admissibility of a computer output depends upon the compulsory production of the certificate under Section 63?
This argument can be responded as under:
1. The above interpretation (based on the words “subject to Section 63”) would defeat the very purpose of introducing the new provision (Section 61), which expressly states – “Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record”.
2. If the certificate under Section 63 were to remain as an inflexible rule, Section 61 would be rendered surplusage or otiose.
3. The harmonious construction would therefore be the following-
4. Section 61 seeks to mitigate the rigidity of the earlier position (as reflected in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal), which was understood to require that a computer output be proved only through a certificate under Section 63(4). And, Section 61 permits proof through any recognised mode, while retaining Section 63 as one of the available methods of proof.

HASH Value Certificate – Logic Requires Hash Values (of copy) at the time of ‘Copying’

The Certificate required in Sec. 63(4)(c) of the Sakshya Adhiniyam (BSA) must be:

(i) “purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate” and
(ii) “in the form specified in the Schedule”.
Note:
- Sec. 63(4)(c) of the BSA does not specifically mandate hashing of copy, and it must be done at the time of copying.
- But logic and the judicial precedents strongly support recording the hash values (of copy) at the time of ‘copying’.

Conclusion

Section 61 of the Bharatiya Sakshya Adhiniyam, 2023, restores flexibility by recognising alternative modes of proof, while reserving Section 63 for a specific, certificate-based method of admissibility.

Section 61 has been introduced with the following clear and purposeful objectives:

1. To clarify that a computer output (i.e., a copy of an electronic record) can be proved by examining a competent witness, and not exclusively by producing a certificate under Section 63(4).
2. To make it clear that the procedural requirements under Section 63(4), such as furnishing a certificate and hash value apply only when a party opts to rely on that mode of proof (without examining a witness).

Viewed in this light, Section 61 can be seen –

(i) as a legislative response to the strict and mandatory approach adopted in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, and
(ii) as an attempt to ensure flexibility in the law relating to electronic evidence to align with global trends in jurisdictions such as the United Kingdom, the United States and Canada.

Read Also
_• _{Law on Electronic Evidence In India under S. 61 – 63 of the BSA}
_• _{“Notwithstanding Anything Contained in this Adhiniyam” – The Non Obstante Clause in Section 63(1) BSA is Confined to the Deeming Fiction.}
_• _{Is a Section 63(4) Certificate an Essential Prerequisite for the Admission of a Photograph in  Evidence?
• Admissibility of Electronic Evidence: Does Section 61 of the BSA Permit Oral Proof (Overriding Arjun  Panditrao)
• Law on Electronic Evidence in India: A Comparative Analysis with Other  Jurisdictions
• Hash Value Certificate – Mandatory or  Directory
• Sakshya Adhiniyam (Literally) Mandates Hashing the Original. But the Established Jurisprudence Requires Hashing the  Copy.
• Law on Electronic Evidence under S. 61 – 63 of the BSA
• Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam,  2023
• Sec. 65B, Evidence Act: Arjun Paditrao  Criticised.
• Sec. 65B Evidence Act  Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,   Evidence Act: Certificate forms
• “Nothing  In This Adhiniyam Shall Apply To Deny The Admissibility” – New Provision (Sec. 61, BSA) to ensure that Sec. 65B (Sec. 63, BSA) is an enabling&nbs p;provision
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao  Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in  Courts?}

End Notes:

Sections 56 to 60 of the Bharatiya Sakshya Adhiniyam, 2023, deal generally with law on documents. They read as under:

56. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
57. Proof of documents by primary evidence. Documents shall be proved by primary evidence except in the cases hereinafter mentioned.
58. Secondary evidence. Secondary evidence includes—
- (i) certified copies given under the provisions hereinafter contained;
- (ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
- (iii) copies made from or compared with the original;
- (iv) counterparts of documents as against the parties who did not execute them;
- (v) oral accounts of the contents of a document given by some person who has himself seen it;
- (vi) oral admissions;
- (vii) written admissions;
- (viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.”
59. Primary evidence. Primary evidence means the document itself produced for the inspection of the Court.
60. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely:
- (a) when the original is shown or appears to be in the possession or power-(i) of the person against whom the document is sought to be proved; or(ii) of any person out of reach of, or not subject to, the process of the Court; or(iii) of any person legally bound to produce it, and when, after the notice mentioned in section 64 such person does not produce it;

_{Section 64. Rules as to notice to produce. Secondary evidence …. in clause (a) of section 60, shall not be given unless …. previously given …. such notice to produce it:
Provided that such notice shall not be required
.(a) (b) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(c) …(d) …..
(e) when the adverse party or his agent has}_{admitted the loss}_{of the document;
(f) …..}
_{“Adverse Party Must Know that He Will Be Required To Produce It”
Some instances:
1. A photocopy of a document was produced before the court by him.
2. The owner of a goods vehicle was questioned as to the contents of a permit to suggest that it did not contain a permit to take passengers.
3. When a witness “is about to make any statement as to the contents of a document, the opposite party objected it”, under Section 147 of the BSA.}

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when the original is of such a nature as not to be easily movable;
(e) when the original is a public document within the meaning of section 74;
(f) when the original is a document of which a certified copy is permitted by this Adhiniyam, or by any other law in force in India to be given in evidence;
(g) when the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.
Explanation. – For the purposes of-
- (i) clauses (a), (c) and (d), any secondary evidence of the contents of the document is admissible;
- (ii) clause (b), the written admission is admissible;
- (iii) clause (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible;
- (iv) clause (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.

Sections 61, 62, 63 of the BSA deal with electronic or digital evidence. They read as under:

61. Electronic or digital record. Nothing in this Adhiniyam shall apply to deny the admissibility of an electronic or digital record in the evidence on the ground that it is an electronic or digital record and such record shall, subject to section 63, have the same legal effect, validity and enforceability as other document.
62. Special provisions as to evidence relating to electronic record. The contents of electronic records may be proved in accordance with the provisions of section 63.
63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
- (a) the computer output containing the information was produced by the computer or communication device during the period over which the computer or communication device was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
- (b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer or communication device in the ordinary course of the said activities;
- (c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
- (d) the information contained in the electronic record reproduces or is derived from such information fed into the computer or communication device in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
- (a) in stand-alone mode; or
- (b) on a computer system; or
- (c) on a computer network; or
- (d) on a computer resource enabling information creation or providing information processing and storage; or
- (e) through an intermediary,
all the computers or communication devices used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer or communication device; and references in this section to a computer or communication device shall be construed accordingly.
(4) In any proceeding where it is desired to give a STATEMENT in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
- (a) identifying the electronic record containing the statement and describing the manner in which it was produced;
- (b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
- (c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate,
and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) and an expert shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.
(5) For the purposes of this section,—
- (a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
- (b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

Section 63 deals with Admissibility, Not Relevancy or Truth

Section 63 reads as under:

63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, …. computer output shall be deemed to be also a document, … and shall be admissible in any proceedings….

S. 63 deals with Method of Proving a Computer Output (Copy); Not Original

Section 63 reads as under:

63. Admissibility of electronic records. (1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media … (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied …..

If one produces original computer, mobile phone, Digital Video Recorder (DVR) or Network Video Recorder of a CCTV, or a chip/card to which a photo or video is captured, it does not need a Section 63(4) certificate – because, original is produced.

Time for Giving the Certificate – ‘along with the electronic record‘

Section 63(4) reads as under:

“(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record** at each instance where it is being submitted for admission ……”

The Expression “Electronic Record” in Section 63(4): Another Drafting Anomaly

** Or should it read: “along with the computer output (copy)“?
The expression “electronic record“ in Section 63(4) can be justified only on the basis that: (i) the opening words, “Notwithstanding anything contained in this Act,” in Section 63(1) are confined to the statutory deeming fiction contained in that sub-section; and (ii) by virtue of that deeming fiction, a computer output is “deemed to be also a document“—that is, it is treated as the original document, namely, an electronic record, for the purposes of Section 63.

End Notes:

The schedule in the Bharatiya Sakshya Adhiniyam, 2023

THE SCHEDULE

[See section 63(4)(c)]

CERTIFICATE

PART A

(To be filled by the Party)

I, _____________________ (Name), Son/daughter/spouse of ___________________ residing/employed at __________________________ do hereby solemnly affirm and sincerely state and submit as follows:—

I have produced electronic record/output of the digital record taken from the following device/digital record source (tick mark):—

Computer / Storage Media # DVR # Mobile # Flash Drive # CD/DVD # Server # Cloud # Other #

Other: ________________________________________ Make & Model: _______________ Color: _______________ Serial Number: _______________ IMEI/UIN/UID/MAC/Cloud ID _____________________ (as applicable) and any other relevant information, if any, about the device/digital record ____ (specify).

The digital device or the digital record source was under the lawful control for regularly creating, storing or processing information for the purposes of carrying out regular activities and during this period, the computer or the communication device was working properly and the relevant information was regularly fed into the computer during the ordinary course of business. If the computer/digital device at any point of time was not working properly or out of operation, then it has not affected the electronic/digital record or its accuracy. The digital device or the source of the digital record is:—

Owned # Maintained # Managed # Operated by me (select as applicable).

I state that the HASH value/s of the electronic/digital record/s is _________________, obtained through the following algorithm:—

# SHA1:

# SHA256:

# MD5:

# Other__________________ (Legally acceptable standard)

(Hash report to be enclosed with the certificate)

(Name and signature)

Date (DD/MM/YYYY): _____

Time (IST): ________ hours (In 24 hours format)

Place: ____________

PART B

(To be filled by the Expert)

I, ____________________ (Name), Son/daughter/spouse of _____________________ residing/employed at _________________________ do hereby solemnly affirm and sincerely state and submit as follows:—

The produced electronic record/output of the digital record are obtained from the following device/digital record source (tick mark):—

Computer / Storage Media # DVR # Mobile # Flash Drive # CD/DVD # Server Cloud # Other # Other: ________________________________________

Make & Model: _______________ Color: _______________

Serial Number: _______________

IMEI/UIN/UID/MAC/Cloud ID_____________________ (as applicable) and any other relevant information, if any, about the device/digital record _______ (specify).

I state that the HASH value/s of the electronic/digital record/s is _____________________, obtained through the following algorithm:—

# SHA1:

# SHA256:

# MD5:

# Other__________________ (Legally acceptable standard)

(Hash report to be enclosed with the certificate)

(Name, designation and signature)

Date (DD/MM/YYYY): _____

Time (IST): ________ hours (In 24 hours format)

Place: ____________

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A Defective Legislative Piece as regards Documents “Admitted in Writing” in S. 65(b) of the (Old) Evidence Act is Corrected in S. 58 of the BSA

Saji Koduvath, Advocate, Kottayam.

Abstract

The Bharatiya Sakshya Adhiniyam, 2023, removes the anomaly that existed under the Indian Evidence Act, 1872. By expressly recognising “written admissions” as a distinct category of secondary evidence in Section 58, it makes the written admission referred to in Section 60(b) itself (e.g., “copy enclosed”) admissible as secondary evidence. Accordingly, where Section 60(b) applies, there is no necessity to produce an independent copy falling under any other category of secondary evidence specified in Section 58.

S. 60 BSA Enumerates: “Cases in Which Secondary Evidence … May be Given“

Section 60 of the BSA [Section 65 of the Evidence Act] enumerates the “Cases in which secondary evidence relating to a document may be given”. Relevant part of Section 60 reads as under:

“60. Cases in which secondary evidence relating to documents may be given. Secondary evidence may be given of the existence, condition, or contents of a document in the following cases, namely: — (a) ……. “

S. 60(b): If Opposite Party Admits Document in Writing

Section 60(b) BSA is attracted where the opposite party has admitted in writing the existence, condition or contents of the original document. Section 60(b) reads as under:

“(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest.”
In Explanation (ii) of Section 60, it is stated as under — “For the purposes of- ……. clause (b), the written admission is admissible”

Defective Legislative Drafting in Old Evidence Act (Corrected in BSA)

Section 65(b) of the Indian Evidence Act, 1872, was susceptible to divergent judicial views. It was owing to

(i) the absence of any corresponding recognition of any such copy (like an un-compared 3^rd generation copy) as a form of secondary evidence under Section 63, Evidence Act, and
(ii) Section 65 was relating to the “Cases in which secondary evidence relating to documents may be given“.

The ambiguity was as to –

(a) whether any copy of a document admitted in writing could be received — even if it is an un-compared 3^rd generation copy, or
(b) whether it was confined to the ‘quoted‘ admission portion in the ‘admitted writing’ alone.

It can be demonstrated (referring to the provisions of the Evidence Act) as under:

First: Section 58 of the Indian Evidence Act embodied the general principle that facts admitted by the parties need not be proved. Section 65(b), however, operated in a narrower field, namely, where the existence, condition or contents of the original document had been admitted in writing. Nevertheless, because of the manner in which Section 65 was drafted, even where a legible copy of a document was admitted in writing, that very copy was not necessarily receivable in evidence unless it answered the description of one of the recognised forms of secondary evidence under Section 63. This difficulty arose because Section 65 opened with the controlling words, “Cases in which secondary evidence relating to documents may be given”, thereby making the forms of secondary evidence recognised by Section 63 applicable to every clause of Section 65.
Second: Although the Explanation to Section 65 also declared that, “for the purposes of clause (b), the written admission is admissible”, Section 63 did not recognise a written admission as a form of secondary evidence. The result was an apparent inconsistency, leaving room for divergent judicial approaches. Section 58 BSA removes that inconsistency by expressly recognising written admissions as a distinct form of secondary evidence.
Third: Consequently, where a copy that did not qualify as secondary evidence under Section 63—for example, an uncompared third or fourth generation copy—is expressly admitted in writing by a party as “a correct copy”, the admission does not, by itself, render that copy admissible. The statutory requirement under Section 63, requires production of the recognised classes of copies.
Fourth: Section 58 declared that admitted facts need not be proved. It may therefore be legitimately contended that, once the written admission (e.g., “copy enclosed”) falls within Section 65(b), formal proof of the existence, condition or contents of the original document stands dispensed with. If that construction is accepted, however, the opening words of Section 65— “Secondary evidence relating to documents may be given in the following cases”—are deprived of their full effect. The ambiguity thus arises from the difficulty in reconciling the general rule dispensing with proof of admitted facts and the statutory insistence that only recognised ‘secondary evidence’.

Important Legislative Change in BSA, from the Evidence Act

As shown above, Section 60(b) of the Bharatiya Sakshya Adhiniyam, 2023 [Section 65(b) of the Indian Evidence Act, 1872 also], applies where the opposite party has admitted in writing the existence, condition, or contents of the original document. However, Section 60 of the BSA [Section 65 of the Evidence Act] merely specifies the circumstances in which secondary evidence may be given. Hence, it can be argued that, notwithstanding the written admission in Section 60, the party relying on the document must still produce and prove an admissible copy answering the description of secondary evidence. The relevant provision in this regard is Section 58 of the BSA [Section 63 of the Evidence Act].

The Bharatiya Sakshya Adhiniyam, 2023 being include “written admissions” as an item in the list when enumerated legally acceptable copies or secondary evidence in Section 58, the “admission in writing” in Section 60(b) will enable the court to receive such (accepted/enclosed) copies in evidence.

As the (old) Evidence Act (Section 63) did not recognise “written admissions” as an item in the list enumerated as a legally acceptable copy or secondary evidence, it was necessary to produce a legally acceptable copy enumerated in the old Section 63 of the Evidence Act.

S. 58 BSA Says: What Constitutes Secondary Evidence

Section 60(b) does not, by itself, prescribe what constitutes secondary evidence. It is dealt with under Section 58 BSA [S. 63 of the Evidence Act]. The changed Section 58 BSA reads as under:

“58: Secondary evidence
Secondary evidence includes—
- (i) certified copies given under the provisions hereinafter contained;
- (ii) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
- (iii) copies made from or compared with the original;
- (iv) counterparts of documents as against the parties who did not execute them;
- (v) oral accounts of the contents of a document given by some person who has himself seen it;
- (vi) oral admissions;
- (vii) written admissions;
- (viii) evidence of a person who has examined a document, the original of which consists of numerous accounts or other documents which cannot conveniently be examined in Court, and who is skilled in the examination of such documents.”

Conclusion

Under the Indian Evidence Act, 1872, Section 63 did not recognise ‘written admissions‘ as a distinct category of secondary evidence. Consequently, even where the existence, condition or contents of the original document had been ‘admitted in writing’ under Section 65(b), a legally recognised copy falling within one of the classes enumerated in Section 63 (in the old Act) should have been produced.

The Bharatiya Sakshya Adhiniyam, 2023 has substantially removed this drafting anomaly. By expressly recognising ‘written admissions‘ as a species of secondary evidence under Section 58, the new Act (BSA) harmonises Sections 58 and 60(b). Accordingly, where the case falls within Section 60(b), the written admission itself makes the accepted/enclosed copy admissible as secondary evidence.

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Principles and Procedure

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Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

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Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

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Contract Act

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Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

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

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Can Transfer of Registry or Mutation and Payment of Tax be Denied, pointing out Revenue Recovery, Attachment or Bank Loan?

Jojy George Koduvath.

Abstract

Can Transfer of Registry or Mutation (and Payment of Tax) be Denied, pointing out Revenue Recovery, Attachment or Bank Loan?
No, is the answer.

Reasons

# Mutation is only for fiscal (tax) purposes alone.
# It is done not after a title enquiry.
# Only a summary enquiry is made.
# It is the duty of the Tahsildar to determine the person who has to pay tax.
# It is the duty of the Revenue Department to keep the accounts up to date.
# No case shall be rejected solely for the default of appearance of the parties.
# The decision does not affect the legal rights of any person.
# The question of legal rights is always subject to adjudication by civil courts.

Transfer of Registry Rules, 1966

In Kerala State, Rule 15 and 16 of the Transfer of Registry Rules determines Mutationor transfer of Registry. They read as under:

Rule 15 :
“With the help of the details furnished in the statement in Form ‘A’ prepared by the Village Officers and such further information as the Tahsildar may receive from parties and village officials at the time of enquiry regarding the fact of possession and enjoyment, payment of tax and other particulars, the Tahsildar shall determine the person in whose name the transfer of registry shall be made. No case shall be rejected solely for the default of appearance of the parties as it is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) upto date and bring into it the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.”
Rule 16 :
“The summary enquiry and the decision thereon is only an arrangement for fiscal purposes and does not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases. The question of legal rights is always subject to adjudication by civil courts and pattas will be revised from time to time in accordance with judicial decisions.”

Following propositions can be culled out from the very rules of The Transfer of Registry Rules made applicable in the State of Kerala (Rule 15 and 16):

It is the duty of the Tahsildar to determine the person in whose name the transfer of registry shall be made.
It is the immediate concern of the Land Revenue Department to keep the thandaper accounts (Chitta) up to date.
It is the immediate concern of the Land Revenue Department bring into the thandaper accounts (Chitta) the names of the real land-holders who shall be held liable for the payment of Government revenue due on the land.
No case shall be rejected solely for the default of appearance of the parties.
Only a summary enquiry is to be made by the Revenue authorities.
The summary enquiry and the decision thereon is only an arrangement for fiscal purposes.
The summary enquiry and the decision thereon do not affect the legal rights of any person in respect of the lands covered by the decisions in transfer of registry cases.
The question of legal rights is always subject to adjudication by civil courts.
And, pattas will be revised from time to time in accordance with judicial decisions.

‘Mutation’ Only (Mainly) for Fiscal Purposes; Legal Rights subject to civil court decision

In Sawarni v. Inder Kaur and Ors., (1996) 6 SCC 223, it was held that mutation in revenue records neither creates nor extinguishes title, nor does it have any presumptive value on title. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

In Balwant Singh v. Daulat Singh, (1997) 7 SCC 137 it was held that mere mutation of records would not divest the owners of a land of their right, title and interest in the land. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

In Jitendra Singh v. State of Madhya Pradesh, 2021 SCC OnLine SC 802, it was held as under:

“6. … mutation entry does not confer any right, title or interest in favour of the person and the mutation entry in the revenue record is only for the fiscal purpose.” (Quoted in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

In Sita Ram Bhau Patil v. Ramchandra Nago Patil, (1977) 2 SCC 49, it was held that there exists no universal principle that whatever will appear in the record of rights will be presumed to be correct, when there exists evidence to the contrary. (Referred to in: P. Kishore Kumar v. Vittal K. Patkar, 2023 4 CurCC(SC) 278)

Relevant Court Decisions

“Mutation of property and acceptance of land tax will not, by itself, either create or extinguish title”.

Sawarni v. Inderkaur, 1996 (6) SCC 223 (Quoted in: S. Rajkumar v. Tahsildar, Devikulam, ILR 2020-2 Ker 883; 2020-3 KHC 270; 2020-3 KLT 403)
John v. Village officer, Koottickal Village, 2026-3 KerLT 532.

Pendency of civil suits cannot be a ground for refusing land tax –

Rimmy v. State of Kerala, reported in 2012(4)KLT SN118; Sudan v. State of Kerala, 2013 (4) KLT 563; Vijayarajan v. Tahsildar, 2013 (2) KLT SN 93; (2013) KHC 2764, Nevin Raju v. S. Basheer, 2015-3 KLJ 197; 2015-3 KLT(SN); George Pothen v. State of Kerala, 2018-4 KHC 795; 2019-2 KLT(SN) 14; .

Pendency of civil suits cannot be a ground for refusing mutation –

Tulasibhai v. State of Kerala, 2010(4) KLT 215, Sudan v. State of Kerala, 2013 (4) KLT 563, Nevin Raju v. S. Basheer, 2015-3 KLJ 197; 2015-3 KLT(SN); Babu R v. State of Kerala, 2024-7 KHC (SN) 9; 2024-6 KLT 486; 2013 (4) KHC 201; Lodge & Hotel Mazdoor Sangh v. K. K. Sidharthan, 2017-1 LLJ 320.

There was a Bank Loan when the property was transferred. The bank had initiated revenue recovery proceedings. The revenue officials refused to effect mutation. The Court directed Mutation.

Tulasibhai v. State of Kerala: 2010 (4) KLT 215
(Referred to in Nevin Raju v. S. Basheer, 2015-3 KLJ 197; 2015-3 KLT(SN);
Laila v. Village Officer, Thrikkovilvattom Village, 2019-4 ILR(Ker) 51; 2019-4 KHC 799; 2019-3 KLT 1012.

“Irrespective of disputes pending, a landholder is liable to pay tax and the same is bound to be accepted by the officers.”

S. Rajkumar v. Tahsildar, Devikulam, ILR 2020-2 Ker 883; 2020-3 KHC 270; 2020-3 KLT 403

“This Court expresses its anguish in the revenue officials refusing to abide by the legal position laid down by this Court and the mechanical manner in which land tax is refused to be accepted.”

S. Rajkumar v. Tahsildar, Devikulam, ILR 2020-2 Ker 883; 2020-3 KHC 270; 2020-3 KLT 403

General Legal Principles on Revenue Records

Relevant Provisions in the Bharatiya Sakshya Adhiniyam, 2023
- S. 29, BSA: Entry in public record or an electronic record made in performance of duty are relevant.
- S. 82, BSA – Court shall presume maps or plans made by the Central Government or State Government are accurate.
Survey Would Not Confer Title; Survey Authorities Not to Decide Title
- The properties are identified by title deeds. The survey or resurvey would not confer title. Survey or resurvey records are not documents of proof of title.
- State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Survey authorities not to decide title: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
Entry in resurvey and revenue records (on subjective satisfaction) will not lose title
- Cochin Devaswom Board v. Union of India, 2023-6 KHC 328.
Simply because resurvey plan, no title conferred
- Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67 (N.K. Balakrishnan, J.).
Title and Possession Decided by Civil Court
- The title and possession are matters to be decided by a Civil Court. Resurvey under S. 13 has to yield to the adjudication by the Civil Court based on title: Sundaresan Nair v. Mallan Nadar, the Kerala High Court (2012 – K. Vinod Chandran, J.)
Title would prevail over Revenue/Survey records
- In title declaration suits, survey plan & revenue records are less significant; in suits involving title dispute, title would prevail over revenue records: Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
- Title to property has to be determined not with reference to the survey demarcation but based on other cogent materials, the primary of which is the title deed: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
- Reliefs are not denied merely on entries in revenue records/resurvey records – Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey Conclusive Proof on Boundaries
- Survey authorities determine the boundaries of the land: Cochin Devaswom Board v. Union of India, 2023-6 KHC 328; 2023-5 KLT 706.
- Survey conclusive proof, boundaries determined & recorded correctly; it will not affect the right and title: Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418.
Title to be Established by Title Deeds; Not with reference to the Survey demarcation
- A party to the suit has to establish the title to a property by producing its title deed. In Title declaration suits, survey plan & revenue records are less significant.
- Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418; Laxkshmi B. v. Suku (A. Badharudeen, J.), 2024-1 KerHC 380.
Survey and Revenue Records can be Relied on to show Boundary and Possession
- Survey Records shall be conclusive proof of boundaries and presume correctness. Therefore, one can rely on the presumption that the survey records establish possession and boundary.
- Elambilan Nani Amma v. Mulavana Antony (K. Babu, J.), 2023-7 KHC 418 (Vide: Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KHC 699, Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717), Karthyayani v. Balakrishnan [2014 (2) Suppl. 67 (Ker.)], Ibrahim v. Saythumuhammed (2013 (4) KLT 435) and Achama Alexander v. Assistant Director, Survey and Land Records (2022 (2) KHC 131); Thomas v. Philip,2022(4) KerHC 451;.
This view is fortified by the decisions of the Kerala High Court in:
- Kannan v. Kannan (1964 KLT 228), The Cheriyanad Grama Panchayath v. The State of Kerala (2019 (5) KerHC 699), Venugopalan Nair v. Saraswathy Amma (2013 (4) KLT 717); Karthyayani v. Balakrishnan (2014 (2) KLT Suppl. 67 (Ker.); Ibrahim v. Saythumuhammed, (2013 (4) KLT 435); Achama Alexander v. Asst. Director, Survey and Land Records (2022 (2) KerHC 131: 2022-3 KLT 198); Thomas v. Philip (2022(4) KerHC 451); Elambilan Nani Amma v. Mulavana Antony (2023-7 KHC 418).
Survey Raises Presumption of Possession
- When a person is holding a survey division, there is presumption of possession: Achuthan Unni v. Vally, 1962 KLT 1010. Damodara Panicker v. Ayyappan Kutty, 1962 KLT 637; 1962 KHC 153, (Quoted in: Susi v. Sujathan, 2022-1 KHC 671, K Babu, J. and in Kathirummal Chirammal Karthyayani v. Kunnool Balakrishnan, 2014-2 KHC 108; 2014-2 KLJ 289; 2014 Supp2 KLT 67)
- Survey authorities determine boundaries – Based on Possession, predominantly based on possession: Thomas v. Philip, 2022(4) KerHC 451 (K. Babu, J.) It is.
- Survey authority is empowered to determine the disputes regarding the fixation of boundary; not empowered the survey authority to change the ownership: Achama Alexander v. Assistant Director, Survey and Land Records (K. Babu, J.), 2022-2 KHC 131; 2022-3 KLT 198
Entries in Revenue Records or Jamabandi serve only a “fiscal purpose”
- Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation is for revenue or fiscal purposes
- Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; Sawarni v. Inder Kaur, (1996) 6 SCC 223.
Mutation not create or extinguish title; No presumptive value of Title
- Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Balwant Singh v. Daulat Singh (D) By Lrs., (1997) 7 SCC 137; Sawarni v. Inder Kaur, (1996) 6 SCC 223; Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191.
Title is Not Proved by Revenue Entries
- Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802.
- Jubin v. Village Officer, Koottickal Village – 2026(3) KLT 532 [Relied on: Santhosh Jacob v. Tahasildar, Muvattupuzha Taluk, 2024(2) KHC 665;Marunnoli Vijayalakshmi v. Tahasildar, Koyilandi, 2019(2) KLT 373, 2019(1) KHC 142]
Revenue Records can raise a presumption regarding possession.
- Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319.
Fabricated records in collusion – not defeat rights of Govt.
- Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh, 2026 INSC 450; Baleshwar Tewari v. Sheo Jatan Tiwary, (1997) 5 SCC 112 ; State of Punjab v. Sadhu Ram, (1997) 9 SCC 544; R. Hanumaiah v. Secretary to Government of Karnataka, Revenue Department, (2010) 5 SCC 203.

Can a Trust be Registered as a Society? Can a Society be Converted into a Trust?

Jojy George Koduvath

Abstract

A Trust cannot be registered as a Society; why?
Both are different legal conceptions.
A trust is an obligation, in law. A society is a collection of members.
The fundamental principles upon which a trust is founded cannot be varied.

A Society cannot be converted into a Trust; why?
Because, the fundamental rules of a society or a club cannot be altered even by a unanimous vote of the members.
There is no provision in the SR Act to change the character of the society to a trust. The only provision is for the amalgamation of societies.

A Trust and a Society Carry Distinct Legal Characters

A society is a compendium of persons. Concept of association of persons is not attached to a trust.
A trust is a legal concept alone. A society is a reality as it is a collection of its members.
Administration of a property is the sole aim of a trust. Existence of property is not a necessary component of society.
Trustees are determined or appointed as intended by the founder of the trust. The society itself determines its office bearers.
A trust is always for the administration of properties. A property need not be for a society.
A trust is administered by the trustees appointed by the person who founded the trust. A society functions according to the byelaws adopted (written or otherwise) by the founding members.
A trust is made for the benefit of one or more persons viewed by the founder. The aim and object of a society is determined by the byelaws adopted by the founding members.
Trust property automatically vest in the trustees. No such vesting in society.
Different enacted laws govern the trust and society.
Different procedure governs the administration and winding up of a trust and a society.

Difference Between a Trust and a Society

An association of persons, or a society, is formed with specific aims and objectives, by the joint effort of its founding members. It is governed under its byelaws. A trust is an obligation created by the author or founder of the trust, upon the trustee in whom burden is cast upon to administer the property for the benefit of the beneficiaries.
A society functions under its bye laws formulated by the founding members. The administration of a trust is carried on under the directions of the author (in the deed of foundation, or otherwise).
The byelaws of a society can be amended as provided under the bye laws and/or under the provisions of the Act under which it is registered. The edicts of the founderin the founding deed of a trust cannot be varied.
A society can be wound up following the procedures specified in the law. In trust, the principle is ‘once a trust always a trust’.
The property of a society vests with its members subject to its basic principles or trustupon which it is founded and to the Act, if any, under which it is registered. A trustee is the legal-owner of the trust property and the property vets in him as such.
A society functions under its bye laws which partake the character of a contract. The State and the Court protect the trust as ‘parens patreae’.
The administrators of a society can resign their office. But the trustees cannot renounce.
In terms of Section 5 of the Societies Registration Act, the property of a society could vest in the trustees; and only in the absence of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society. (Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: (2013) 15 SCC 394.)

What is Trust?

‘Trust’ is defined in Sec. 3 of the Indian Trusts Act, 1882 as under:

“A ‘trust’ is an obligation annexed to the ownership of property, and arising out of a confidence reposed in and accepted by the owner, or declared and accepted by him, for the benefit of another, or of another and the owner,”

Therefore, in law:

Trust is ‘an obligation’.
It arises when a property is endowed by its owner for the benefit of another.
Trust is created when a trustee is appointed.
The trustee administers the property as required by the author.
It has to be done by the trustee as if he is the owner of the property.

This obligation upon the trustee to administer the endowed property, as if he is its owner and as directed by the author, for the benefit of another, is ‘trust’ in law.

Essential elements for formation of a trust are the following:

(a) Intention to create a trust on the property, for the specified purpose, by the author,
(b) Reposing-in/declaring confidence in trustee by the author,
(c) Acceptance of the confidence (reposed in or declared by the author) by the trustee,
(d) Transfer of trust-property to the trustee,
(e) Obligation upon the trustee to administer the trust property, (i) as its ‘legal owner’, (ii) for the benefit of the beneficiaries.

Trust being an ‘obligation’* annexed to or enjoined upon the dedicated property, ‘trust’ cannot be an association of persons or a juristic person. In law, ‘trust’ is neither a tangible-endowment nor a corporal-institution.** Grammatically, it is an ‘abstract countable noun’, similar to ‘a business’, ‘an idea’ or ‘a duty’.

*Note: Specific Relief Act, 1963 [Sec. 2(a)] defines: “‘obligation’ includes every duty enforce by law’.
**Duli Chand Vs. Mahabir Pershad Trilok Chand Charitable Trust: AIR 1984 Del 144; Ramdass Trust Vs. Damodardas 1967 Raj LW 273;
It is referred to in
Sagar Sharma Vs. Additional Commissioner of Incometax: 2011-239 CTR 169: 2011-336 ITR 611.
See also:
Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483: [1963] 50 ITR 798 (Mad);
Kishorelal Asera Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC 367.
[It is quoted in Thanthi Trust Vs. Wealth Tax Officer: (1989) 78 CTR 54: (1989) 45 TAXMAN 121: (1989) 178 ITR 28;
Sambandam Died Vs. Nataraja Chettiar: 2012-1 Mad LW 530].

‘Trust’ is Personified, Even In Legal Parlance

Sec. 6 of the Indian Trusts Act, 1882, reads as under:

“Creation of trust: Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust-property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust-property to the trustee.”

Because, ‘a’ trust is ‘an’ obligation annexed to the trust property and has no existence without its trust property, generally, the endowment/institution, upon which the obligation of ‘trust’ is pervaded, is personified as ‘trust’, even in legal parlance. In any case, it has no corporate personality; and it is not a legal person.[Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483].

In Illustration (b) of Sec. 15 of the Trusts Act, the expression ‘trust’ is used an entity. The Illustration (b) of Sec. 15 reads: “(b) A, trustee of lease-hold property, directs the tenant to pay the rents on account of the trust to a banker, B, ….”

The term ‘trust’ is also used as a compendious expression taking in the trustees, the beneficiaries and the subject matter of the trust.[Thiagesar Dharma Vanikam Vs. CIT: AIR 1964 Mad 483. It is quoted in Thanthi Trust Vs. Wealth Tax Officer: (1989)78 CTR 54: (1989) 178 ITR 28. See also: Kishorelal Asera Vs. Haji Essa Abba Sait Endowments: 2003-3 Mad LW 372: 2003-3 CCC 367.]

Similarly, when ‘a trust’ is created under the auspices of an association, the terms ‘trust’ and ‘association’ are generally used as synonyms, in view of the underlying significant nexus between the members of the association and the ‘trust’. An association can be formed for the administration of a ‘trust’;[Tata Memorial Hospital Workers Union Vs. Tata Memorial Centre: AIR 2010 SC 2943] and an artificial (or legal) person can be a trustee.[Yogendra Nath NaskarVs. Commissioner of Income Tax, Calcutta: AIR 1969 SC 1089]

No beneficial-Interest or Enjoyment over Property of Society – Interest Created is that of Bare Trustees

The vesting of legal ownership of the property of a society in the governing body is merely a ‘method or mechanism permitted by the law’. [Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458] During the subsistence of a registered society, or on dissolution, the members do not have any proprietary-interest or right of beneficial-enjoyment _{[That is, ‘proprietary interest’ or interest pertaining to owner]} in the property of the society. [Board of Trustees, Ayurvedic & Unani Tibia College Vs. The State: AIR 1962 SC 458; Dharam Dutt Vs. Union of India: AIR 2004 SC 1295.]

In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh,[AIR 1958 A P 773: See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515.] it was observed – what was vested in the College Committee or its governing body was a ‘right of management’ simpliciter, and there was no question of the members of the society or the members of the governing body being ‘beneficially interested’ in its property. Then, it was held as under:

“The Societies Registration Act, therefore, does not create in the members of the registered society any interest other than that of bare trustees.”

Underhill, in his treatise, ‘Law of Trusts and Trustees’, explained:

“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the Association for the time being. The members for the time being cannot under the Association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the Association for the time being.” [Quoted in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001- Para 69.]

“A trust is primarily a legal concept”

‘Trust’ is essentially a legal concept attached to the endowed property. It arises by the appointment of a trustee. For creation of a trust, the trust-property must have been transferred to the trustee. (Maulavi Kamiruddin Khan Vs. BadrunNisa Bibi: AIR 1940 Pat 90; Chief Controlling Revenue Authority Vs. Banarsi Dass: AIR 1972 Del 128; Pankumari Kochar SmtVs. Controller of Estate Duty: 1969-73 ITR 373.) The Delhi High Court held in Birdhi Chand Jain Charitable Trust Vs. Kanhaiya Lal Sham Lal, ILR 1973-1 Del 144, as under:

“A trust is primarily a legal concept, a mode of transfer of property and of holding property. On the other hand, an institution is primarily a social concept. It is not a legal concept at all. For, there is established legal method by which an institution may come into being. It may be established by way of an organisation which may assume any or no legal form. It may be a trust or a company or a statutory corporation or a mere unincorporated association or a society registered or otherwise. It is its work and place in the society that is the hall-mark of an institution. As observed by Lord Macnaghten in Mayor, etc. of Manchester V. Mcadam,3 Tax Cases 491 at 497, ‘it is the body (so to speak) called into existence to translate the purpose as conceived in the mind of the founders into a living and active principle.’ In the present case, the founders of the trust may have transferred their property to a charitable purpose and thus created a public trust. But the body to translate the trust into a living and active principle has not yet come into existence. It is that body which will be entitled to be called an institution. It is not a mere legal arrangement like a trust but an active working body with a social impact which can be called an institution.”

Incidents of ‘Trust’ in Property of Clubs and Societies

Four views are possible.

(i) Positive view: The Common Law on Trust in India gives progressive and ‘wider’ or ‘general’ connotation to ‘trust’. Thereby, pointing-out that the governing body of a society or a club acquires and holds property for and on behalf of the members of the society or club, it is said that incidents of trust are impressed upon the property of the Society or Club.

Salmond on Jurisprudence [12^th Edition, Page 326] reads:

‘The Club property is the joint property of the members, though in fact, it is often held by trustees on behalf of the members.’

Halsbury’s Law of England reads:[IV Edition, Vol. 6, Para 205]

“Unincorporated Members’ Clubs. – An unincorporated members’ club is a society of persons each of whom contributes to the funds out of which the expenses of conducting the society are paid. ……. Subject to any rule to the contrary, the property and funds of the club belong to the members of the time being jointly in equal shares. “

The property of a registered Society cannot absolutely vest in its members. By registration of a society, its property ‘shall continue to exist in perpetuity’ [Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760. Followed in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: (2013) 15 SCC 394] or something in the nature of perpetual succession is conceded. The property shall pass to succeeding trustees or governing body without assignment or transfer. [Board of Trustees, Ayur. & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458; Pamula Pati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of A P: AIR 1958 A P 773]

If Valid Dedication, No Change of Character, On Regn. as Socieety

“Any addition to those properties must also have the same character.”

Sec. 5 of the Societies Registration Act reads:

“Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”

Section 5 of the Societies Registration Act speaks as to vesting of property ‘belonging to a society’ [Board of Trustees, Ayur & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458] in the trustees; and only in the absence of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society. [Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394.] Therefore, it can be legitimately concluded from Section 5 that general characteristics of ‘trust’ are impressed upon the property of a society and that the members of a registered Society are trustees for* the future members who have to continue the aim and objects of the Society as envisaged by the founders or as manifested in the Rules or Bylaws.

*[Pamula Pati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of A P: AIR 1958 A P 773. See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515.]

If there was a charitable trust created by the public, the fact of its subsequent transformation, or its registration, as a society could not change the already invested trust-character [Sukumaran Vs. Akamala Sree Dharma Sastha Idol: AIR 1992 Ker 406] and any addition to those properties must also have the same character. [Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86] In such a case, suit can be filed, as if it is a trust itself, under Sec. 92 of the CPC. [Amrithakumari Vs. VP Ramanathan 1999 (1) CCC 238 (Ker). Followed in ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233]

Property of a Society being maintained for the benefit of its future members also, and therefore encumbered with obligations attached to ‘trust’, it cannot be dealt with by the members or its administrators disregarding the objectives of foundation of the societies. When the property is in the hands of an agent for the principal, the agent stands in the fiduciary capacity as a trustee. He has a duty and responsibility to properly account for the profits or benefits he derived while acting as the agent. [Balram Chunnilal Vs. Durgalal Shivnarain : AIR1968 MP 81. RV Sankara Kurup Vs. Leelavathy Nambiar (AIR 1994 SC 2694]

(ii) Negative view: (a) A society or club is formed by a group of people joined together on the basis of bye laws. It has the characteristics of a contract. Therefore, principles of fiduciary obligations as arises in trust do not apply to the acts and deeds of the administrators or members of a society or a club; but they are guided only by contractual obligations, either express or implied.

(b) A trust is formed only when a property is dedicated by its owner for a specified religious or charitable purpose. For a valid dedication there should be proof for divesting of the title of the founder/author* or of the person who dedicated the property. Since the property of a society or club belongs to the members of the club or society (or it vests in the society or club) there will be no ‘trust’ at all.

*M R Goda Rao Sahib Vs. State of Madras: A. I. R. 1966 S. C. 653; Ram Charan Das Vs. Mst. Girjanandani Devi AIR 1959 All. 473. Shri Ram Kishan Mission Vs. Dogar Singh AIR 1984 All 72; See also: S. Shanmugam Pillai Vs. K. Shanmugam Pillai AIR 1972 SC 2069; Controller of Estate Duty WB Vs. Usha Kumar: AIR 1980 SC 312.

(c) Even if characteristics of a trust are adumbrated upon the property of a society, as stated above, it must be noticed that once the bylaws, the Societies Registration Act or the Common Law as to societies/clubs provide a particular procedure for a particular affair (such as management or dissolution), the same has to be carried on as per that procedure. [It is trite law that if a thing is prescribed to be done in a particular way, it can be done in that way alone, and by no other way.

See: Nazir Ahmed case: AIR 1936 PC 253; Indian National Congress (I) Vs. Institute of Social Welfare AIR 2002 SC 1258; Supreme Court Bar Association Vs. The Registrar of Societies ILR 2012-22-Dlh-1031; Patna Improvement Trust Vs. Smt. Lakshmi Devi: 1963 SCR Supp. 812; State of Bihar Vs. J.A.C. Saldanha (1980) 1 SCC 554: AIR 1980 SC 326; Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782; (2013) 15 SCC 394.

It will not be guided by general principles applicable to a trust. Thus, the intent of the Societies Registration Act is not to invest properties of the society with the character of trust property. [Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86. Followed G. Chikka Venkatappa Vs. D. Hanumandappa (1970(1) My. LJ]

If the property destined for religious or charitable purposes is acquired with money collected by way of contribution by the members of a society, and the society itself manages the same without dedication in favour of the public, there will be no divesting of ownership of property in favour of the trust or institution. [See: Comner. of HRE Board Vs. Vinayakar AT Sabha: AIR 1953 Mad 407.] In such a case, it may be possible to affirm – no trust is predicated. [G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196; Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86] The effect of the Societies Registration Act was not to invest the property ‘belonging to a society’* with the character of Trust property. [G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196] Even if the purpose for which the society was formed was charitable purpose the property acquired for this purpose will ‘belong’ to the society and there is no trust and no trust can be predicated. [Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86. Followed G. Chikka Venkatappa Vs. D. Hanumandappa: 1970(1) My. LJ 196]

*Sec. 5 reads: “Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”

(iii) Contract with express or implied fiduciary liabilities as are applicable to trusts: The members of a club or society, both registered and unregistered, are bound by the memorandum of association and its rules and regulations. The bye laws bind its members as a contract.

[Board of Trustees, Ayur. & Unani Tibia College Vs. The State of Delhi: AIR 1962 SC 458; Siddheshwar Sahkari Sakhar Karkhana Vs. Commr. of IT, Kolhapur: AIR 2004 SC 4716; Hyderabad Karnataka Education Society Vs. Registrar of Societies: AIR 2000 SC 301; Co- op. Central Bank Vs. Addl. Industrial Tribunal, Andhra Pradesh: AIR 1969 SC 245; Naresh Chandra Sanyal Vs. Calcutta Stock Exchange Assn Ltd. : AIR 1971 SC 422; Damyanti Naranga Vs. Union of India: AIR 1971 SC 966; Daman Singh Vs. State of Punjab AIR 1985 SC 973.]

Even the formation of a society itself is based on a contract. [Zoroastrian Co-op. Housing Society Ltd. Vs. District Registrar: AIR 2005 SC 2306; State Bank of India Staff Association Vs. Mohindra Bhattacharyya: AIR 1991 Cal 378] Salmond [12^th Edition, Page 326] reads:

“The rules of the club or society constitute the basic contract to which all the members are parties.”

Since the administrators of a club or a society manage its property for and on behalf of its members, there are fiduciary liabilities akin to ‘trust’ upon such administrators. When the property is in the hands of an agent for the principal, the agent stands in the fiduciary capacity as a trustee. He has a duty and responsibility to properly account for the profits or benefits he derived while acting as an agent or a trustee to the principal. [Balram Chunnilal Vs. Durgalal Shivnarain: AIR 1968 MP 81. RV Sankara Kurup Vs. Leelavathy Nambiar (AIR 1994 SC 2694]

(iv) It remains as academic alone – to explore, whether trust or contract: In case of a breach of fiduciary duty or mismanagement on the part of the administrators of the society, it gives rise to a cause for civil action under the principles of contract, or under the doctrines such as membership rights, ultra virus the bye laws, rule of majority, oppression of minority, etc.

Our law being dealt with these matters under a developed branch of law (club/society-law), one can justifiably argue that it remains as academic alone, or lingers as superfluous, to explore whether these doctrines are sprouted from express or implied trust. It is more so in view of Sec. 88 and 95 of the Indian Trusts Act.

No Trust upon the “Property Belonging to a Society”: Exceptions

A trust cannot be created upon the “property belonging to a society”. But this proposition is subject to certain qualifications.

That is, certain properties held by a Society may be that vest with the Society only for administration –

E.g., (i) a Society is formed by the beneficiaries or administrators for proper administration of a charitable institution (already) established by a valid ‘dedication‘ of property.;
(ii) a society formed with the object of dedicating property for a public charitable purpose.

In these cases, the beneficial ownership does not vest in the society; the society functions merely as the manager or trustee of the trust property. Or, the society itself acts only as the administrative vehicle through which the trust is administered.

The courts in India have developed a substantial body of case law distinguishing property owned by a society from property held by a society in trust.

1. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481
2. Church of North India v. Lavajibhai Ratanjibhai, (2005) 10 SCC 760
3. Raje Anandrao v. Shamrao, AIR 1961 SC 1206
4. Deoki Nandan v. Murlidhar, AIR 1957 SC 133
5. Shiromani Gurdwara Prabandhak Committee v. Som Nath Dass, (2000) 4 SCC 146
6. The Nair Service Society v. Jnana Ashram, 1992 (Kerala High Court)
7. Suburban Education Society v. Charity Commissioner, 2004 (2) Mh LJ 792
8. Kallal School case (Madras High Court, 1974)
9. M.M. Sundarar v. Mudaliar Educational Trust (Madras High Court)
10. A.R. Khan Construwell & Co. v. Youth Education and Welfare Society, 2006 (1) Bom CR 170

Fundamental Rules Cannot Not Be Altered

The trustees or the governing body administer the ‘property of the society’ as per its bye laws so as to fulfill or attain the ‘aim and objects’ the founders viewed.

The expressions in the Societies Registration Act, ‘property belonging to a society’ (Sec. 5) and ‘property of the society’ (Sec. 8 and 10), do not give the society a corporate status; it ‘merely describes the property which vests in trustees or Governing Body.’ [Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458: Para 11]

They acquire and hold the property for and on behalf of _{[See: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212]} the members of the society subject to the obligations imposed by law, the bye laws and the fundamental principles_{[Prasanna Venkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12: Milligan Vs. Mitchel: 40 ER 852; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See also: Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547)]} or trust* upon which it is founded. These propositions upheld by our courts also lead to the unerring conclusion that our law brings in principles of trust in the affairs of societies and clubs.

*See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544; Vinodkumar M. Malavia Vs. Maganlal Mangaldas: 2013 AIR (SCW) 5782; (2013) 15 SCC 394. See also: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212.

In Noel Frederick Barwell Vs. John Jackson AIR 1948 All 146 it was held as under:

“51. It has been argued by Mr. Pathak on the basis of this decision and the decision of the House of Lords in Hole v. Garnsey (1930) 1930 A.C. 472, already referred to, that the rules of every association may be divided into two classes – the rules relating to fundamentals and the ordinary rules. Learned Counsel went on to urge that the fundamental rules could not be altered even by a unanimous vote of the members, though, if the rules provided for amendments, the other rules could be ant ended. It is not necessary for me to go into this question as the point does not arise in this case, but if I may say so without meaning any disrespect, the cases cited above have entirely been misunderstood. All that their Lordships intended to say was that the rules of any club being framed for the purpose of carrying on the objects of the club, ordinarily any power to amend such rules must be limited to the contemplated scope of the original rules and that under the general powers of amendment the alteration should not affect the foundation of the club or should not be incompatible with its fundamental objects.
52. Dealing with this question Lord Han – worth, Master of the Bolls, in Doyle v. White City Stadium Ltd (1935) 1 K.B. 110 said:
‘When these rules as altered are still for the purpose of carrying out the original purpose of the society or body of persons, the altered rules are made binding on the plaintiff. If there was an attempt fundamentally to alter the purpose for which the rules had been originally drawn up, the prospective agreement to adhere to-fresh rules, or any alteration in the rules, would not apply. It is quite plain from the decision in Thelluson v. Viscount Valentia (1907) 2 Ch. 1 that if and so long as the rules are akin to the purpose for which a society exists, there is no inherent, objection to an alteration of those rules or to further rules being made for the same purpose’.”

Power to Amend the Rules of a Society or Club

The power to amend the rules of a society or club is not a power to destroy its identity. An amendment, even if passed by the requisite majority, cannot alter the fundamental objects, foundation, or basic character of the association. The amendment power is confined to changes that remain within the contemplated scope of the original constitution and are consistent with its essential purposes.

If Principles of Trust in a Club, It is in a Very Limited Sense

In Noel Frederick Barwell Vs. John Jackson (supra) it was held (majority) further as under:

“58. The next argument of learned Counsel is based on the law of trust. He has urged that the property of the club vests in the committee of management and the ordinary and temporary members are all beneficiaries and that under the law of trust all beneficiaries must join in the extinction of the trust. In a sense, “the office bearers of any public body or institution including a club, are trustees, but I am afraid this cannot be of much assistance to learned counsel. There is no question in this case of the right of the officers of the club to put an end to it and I have already said that if there is a trust it is in a very limited sense. This is a case where the members of the club have passed a resolution by a majority, that the club should be dissolved, and the decision must, therefore, to my mind, rest on the decision of two simple questions, firstly whether the rules of the club have made any provision with regard to its dissolution and, if so, whether the rules have been complied with, and secondly, if there is no such rule, whether the resolution is valid and should be given effect to.”

In this decision the minority judge pointed out, as to trust, as under:

“Finally it is said that the committee of the club are trustees of the club property and that the trust could only be extinguished with the consent of all the beneficiaries. But if a trust exists, it is created by the rules of the club and the trustees held the trust property subject to those rules; and if the rules permit of a dissolution at the will of the majority of the members then with the winding up of the club there is an extinguishments of the trust.”

Societies Registration Act Brings-forth ‘Fixity’ or Permanency.

A society or a club is a compendium of its members. Its property is the ‘joint property’ held by the members as ‘non-partiable’ or as ‘joint tenants’ (as differentiated to ‘tenants in common’) till a decision is taken for dissolution. If such property is maintained for the benefit of its future members also (and therefore encumbered with obligations as in a ‘trust’), it cannot be dealt with by the members disregarding this objectives of its foundation.

Registration of a society under the Societies Registration Act makes a sea-change with respect to the disposal of the property on dissolution; and a perpetual succession is conceded thereto. even if the property could have been distributed among its members on its dissolution, by virtue of registration, the dealings as to the property on its dissolution, is governed under the provisions of the Societies Registration Act alone. [ Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State: AIR 1962 SC 458. Dennis Lloyd, ‘Law relating to Unincorporated Associations’ (1938 Edn) quoted.]

The members of a registered Society are trustees for the future members of the Society. Registration of a Society brings-in permanency. The left-behind-property of a Society, on dissolution, goes to another Society as determined by the members of the Society or by the court (Sec. 14 of the So. Regn. Act ). Either during the subsistence of a Society or at the time of its dissolution, the members of a Society do not have any kind of beneficial-enjoyment over its property. [Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458– Para 23]. As shown above, in Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh, [AIR 1958 A P 773: See: also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515] it was observed that the Societies Registration Act did not create in the members of the registered society any interest other than that of ‘bare trustees‘.

Sec. 14 of the So. Regn. Act reads as under:

14. Upon a dissolution no member to receive profit: If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or in default thereof, by such court as aforesaid:

Sec. 14 of the So. Regn. Act is enacted footing on the following general principles of law:

once a trust, always a trust;[See Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma: AIR 1994 Ker. 107]
cypres doctrine; ie. the court will execute or accomplish the intention of the founder of a trust ‘as nearly as possible’ when it becomes impossible to carry out his intentions; and
the court is the protector of all charities. [C Chikka Venkatappa Vs. D Hanumanthappa: 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14: Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915]

Fiduciary Position of Governing Body Members

The term ‘fiduciary’ as an adjective means ‘in the nature of a trust, having the characteristics of a trust, analogues to a trust; relating to or founded upon a trust or confidence’. ‘Fiduciary relationship’ invariably involves dominion over property which is wholly lacking in the case of a contract of suretyship or guarantee, that the surety has not received anything nor has he been given dominion with money or property and that he has no liability to account. There is no fiduciary capacity involving liability to account in relation to another. Mere confidence also cannot result in a fiduciary relationship.

Black’s Law Dictionary defines ‘fiduciary relationship’ as under:

“A relationship in which one person is under a duty to act for the benefit of the other on matters within the scope of the relationship. Fiduciary relationships, such as trustee-beneficiary, guardian-ward, agent-principal, and attorney-client, require the highest duty of care. Fiduciary relationships usually arise in one of four situations : (1) when one person places trust in the faithful integrity of another, who as a result gains superiority or influence over the first, (2) when one person assumes control and responsibility over another, (3) when one person has a duty to act for or give advice to another on matters falling within the scope of the relationship, or (4) when there is a specific relationship that has traditionally been recognized as involving fiduciary duties, as with a lawyer and a client or a stockbroker and a customer.”

Directors of a company stand in a fiduciary[Biji Pothen Vs. Thankamma John: 2012(3) Ker LT 658] position and they are legally bound to exercise their powers for the company’s benefit. They have to protect the interest of the company and its shareholders. They cannot take part in any resolution under which they gain any benefit. If interested directors take part in such transactions there would be an irregularity and it renders the resolutions voidable at the instance of the company. [See: Narayandas Shreeram Somani Vs. Sangli Bank Ltd. AIR 1966 SC 170; See also: Seth Mohan Lal Vs. Grain Chambers Ltd., Muzaffarnagar: AIR 1968 SC 772; Shackleton on the Law and Practice of meetings, 7th edition (1983), Page 230]

The general principles as to the rights and responsibilities of the directors of a company apply to the governing body members of a society also.

Fiduciary Relationship Will Not be Allowed to be Varied

It is held by our Apex Court in Marcel Martins Vs. M Printer [AIR 2012 SC 1987. Relied on Central Board of Secondary Education Vs. Adiya Bandopadhyay: (2011) 8 SCC 497] as under:

“It is manifest that while the expression “fiduciary capacity” may not be capable of a precise definition, it implies a relationship that is analogous to the relationship between a trustee and the beneficiaries of the trust. The expression is in fact wider in its import for it extends to all such situations as place the parties in positions that are founded on confidence and trust on the one part and good faith on the other.”

Principles in Sec. 46 and 47 of the Indian Trusts Act (a trustee cannot renounce or delegate duties) are applied to various affairs of fiduciary relationship,[Bonnerji Vs. Sitanath: 49 IA 46: Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11.]by our Courts, as they contain the common law principles of the universal rules of equity, justice and good conscience upheld by the English judges.

S. 46 and 47 of the Indian Trusts Act reads:

46. A trustee who has accepted the trust cannot afterwards renounce it except (a).. (b)..(c)..
47. A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) … (b) … (c) … (d) ….

In State of Uttar Pradesh Vs. Bansi Dhar[49] it is held by VR Krishna Iyer J. –

“But while these provisions (of Indian Trusts Act) proprio vigore do not apply, certainly there is a common area of legal principles which covers all trusts, private and public, and merely because they find a place in the Trusts Act, they cannot become ‘untouchable’ where Public Trusts are involved. Case must certainly be exercised not to import by analogy what is not germane to the general law of trusts, but we need have no inhibitions in administering the law by invoking the universal rules of equity and good conscience upheld by the English Judges, though also sanctified by the statute relating to private trusts. The Courts below have drawn inspiration from Section 83 of the Trusts Act and we are not inclined to find fault with them on that score because the provision merely reflects a rule of good conscience and of general application.”

Sec. 46 and 47 of the Indian Trusts Act make it clear: a fiduciary relationship and duties attached thereto should not be unilaterally allowed to be terminated or varied [Bonnerji Vs. Sitanath: 49 IA 46: Referred to in Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11] as it would be against the interests of society in general. These principles would apply with equal force to servants and, in fact, to anybody who has entered on another’s property in a fiduciary capacity. [Balram Chunnilal Vs. Durgalal Shivnarain: AIR1968 MP 81]

‘If Not Vested in Trustees’: Property Management & Vesting may be Separate

Though the administrative affairs of the societies are carried on by its governing body, the properties of the same may be vested with (separate) trustees (like ecclesiastical authorities, in case of certain religious societies). It is obvious that this system of vesting-of-property in trustees and administration-of-affairs by governing body, is primarily viewed in the So. Regn. Act of 1860 when it refers – ‘if not vested in trustees, shall be deemed to be vested, for the time being, in the governing body’. It is obvious that our law accepts the ‘wider’ or ‘general’ expression as to ‘trust’ (used by the progressive jurists like Salmond and Halsbury) is adopted in the So. Regn. Act. The progressive jurists preferred investing principles of trust in the matters of various fiduciary relationships under which one holds property on behalf of, or for the benefit of, others.

Halsbury’s Laws of England defines ‘trust’ as a confidence reposed in a person with respect to property of which he has possession or over which he can exercise a power, to the intent, that he may hold the property or exercise the power for the benefit of some other person or object. Salmond brings-in principles of trust in the affairs of associations. Salmond reads [12^th Edition, page 257]:

“Thirdly, it is expedient that property in which large numbers of persons are interested in common should be vested in trustees.”

It is held by the Supreme Court in RV Sankara Kurup Vs. Leelavathy Nambiar[AIR 1994 SC 2694] that the property in the hands of the agent was for the principal and the agent stood in the fiduciary capacity for the beneficial interest he had in the property as a trustee. The petitioner had acted as an agent as a cestui que trust was a trustee and he held the property in trust for the respondent in his fiduciary capacity as an agent or trustee and he had a duty and responsibility to make over the unauthorised profits or benefits he derived while acting as an agent or a trustee and properly account for the same to the principal. Therefore, the High Court was right in its holding that the petitioner was an agent and trustee acted in the fiduciary capacity on behalf of the respondent-plaintiff as General power-of-attorney.

If a trust is created for the benefit of a religious society, such trust shall continue to exist and it would not cease to exist by the resolution of the society. Such ‘creation of trust’ is considered by our Apex Court in Vinodkumar M. MalaviaVs. Maganlal Mangaldas Gameti [2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394] and held:

^“The High Court has rightly observed that: ‘… the trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”

In Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 760.] it is held that in terms of Section 5 of the Societies Registration Act, the property would vest in the trustees, and that only in the absence of vesting of such properties in the trustees, the same would be deemed to have been vested for the time being in the governing body of such society. [Quoted in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394]

In Pamulapati Buchi Naidu College Committee, Nidubrolu Vs. Govt. of Andhra Pradesh,* holding what was vested in the College Committee or its governing body was a right of management simpliciter and there was no question of the members of the society or the members of the governing body being beneficially interested in its property, it was observed that the Societies Registration Act, therefore, did not create in the members of the registered society any interest other than that of bare trustees.

*AIR 1958 AP 773: See also: Raj Kumar Gaba Vs. State of UP: 2012-49 VST 252; Commissioner of Income Tax Vs. Merchant Navy Club: 1974-96 ITR 261; Gurdwara Prabandhak Committee Vs. Jagmonan Singh: ILR 1971-2 Del 515; Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392.

‘If not Vested in Trustees’: Principles of Trust , not Alien to Affairs of Societies

Sec. 5 SR Act reads:

“Property of Society how vested: The property movable and immovable, belonging to a society registered under this Act, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body…”

The principles of trust are not alien to the affairs of societies. Following propositions can be legitimately put forward from Sec. 5, SR Act. That is,

(a) The system of vesting-of-property in trustees is primarily viewed in the So. Regn. Act of 1860.
(b) a society can be formed by the beneficiaries of a trust, or by its administrators;
(c) one can ‘transfer’[Section 6 of the Indian Trust Act requires ‘transfer’ for formation of a trust] property to a society creating a trust; [See Note hereunder: “Can a Society or Corporation be a Trustee?”]
(d) a trust can be created on the property of a society for the benefit of its (present and future) members and/or outsiders; and
(e) a society can be formed simultaneously with creation of a trust over the property dedicated to, or set apart for the benefit of, the members of the society; or for the benefit of such members and outsiders.It is observed in Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 760] that the society and (public) trust can be ‘one entity’.

If a society is formed by the beneficiaries of a public trust the trust nature of the property continues; and the trust property remains vested in (separate) trustees (if the trustees are not the governing body of the society as per the bye laws of the society).

In terms of Section 5 of the Societies Registration Act, property of a society would vest in the trustees; and only in the absence [See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544. Followed in Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: (2013) 15 SCC 394] of vesting of such property in the trustees the same would be deemed to have been vested for the time being in the governing body of such society. [See note below: Apparent Incongruity in Sec. 5 and 16 Explained]

Governing body is defined in Sec. 16 as under:

The governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.

Such trust can also be a ‘public/religious trust’ like a church that came for consideration of our Apex Court in Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 7604] and Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti. [2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849; (2013) 15 SCC 394] In public trust, the beneficiaries will be the general public or a class thereof.

See: Deoki Nandan Vs. Murlidhar: AIR 1957 SC 133; Commissioner of Endowments Vs. Vittal Rao: AIR 2005 SC 454; Bala Shankar Maha Shanker Bhattjee Vs. Charity Comr Gujarat State: AIR 1995 SC 167, Jammi Raja Rao Vs. Anjaneya Swami Temple Valu: AIR 1992 SC 1110, Radhakanta Deb Vs. Comr of Hindu Religious Endowments Orissa: AIR 1981 SC 798, Commissioner For Hindu Religious And Charitable Endowments Mysore Vs. Ratnavarma Hegade: AIR 1977 SC 1848, Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithal Rukhamai Sansthan Vs. Charity Commissioner State of Bombay : AIR 1976 SC 871; Mahant Shri Srinivas Ramanuj Das Vs. Surajnarayan Das: AIR 1967 SC 256

The property of such a public/religious trust shall continue to exist in perpetuity, and it shall not cease to exist by the resolutions of the society. [Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544: 2005 (10) SCC 760]

The definition of ‘Member’ (in Sec.15)* in the So. Regn. Act, 1860 is not exhaustive as it is ‘for the purposes of this Act’ alone. It is confined to the activities enjoined to the ‘members’ in the So. Registration Act [ie. to make bye laws (S. 9), to take part in the meeting to amend the ‘purposes’ (S. 12), to take decision to ‘amalgamate’ with another society (S.12), dissolution (S. 13), etc.]. Non-fulfillment of requirements specified in the definition (payment of subscription and signature in the roll/list of members) does not bar a person -especially when it is a religious society – to be its ‘member’, if he is eligible to be a member as per the bye laws of the society. It also does not downbeat the propositions on ultimate ‘vesting of property’ in ‘members’ of a society.

*Sec. 15 reads: “Member defined: For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations….”

If the property is set apart for the benefit of its present members (or society) alone, there will not be any trust. The effect of the Societies Registration Act is not to invest properties of the society with the character of trust property. [Keshava Panicker Vs. Damodara Panicker: AIR 1976 Ker 86; See also: C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233.]

Apparent Incongruity in Sec. 5 and 16 Explained

A conjoint reading of Sec. 5 and 16 may raise an inappropriateness as to the position of trustees; that is, whether trustees stand independent of the governing body (Sec. 5) or whether they stand included in the governing body (Sec. 16).

Because,

Sec. 5 lays down that ‘the property, belonging to a society, if not vested in trustees shall be deemed to be vested, for the time being, in the governing body’; and
Sec. 15 lays down that ‘the governing body of the society shall be the governors, council, directors, committee, trustees, or other body to whom by the rules and regulations of the society the management of its affairs is entrusted’.

It can be explained by the following propositions.

Both are used ‘independently’.
The scheme of the Act provides that the ‘property belonging to a society’ can be vested in an ‘independent’ trust (the trustees of which can be persons other than members of the society). [See Notes Hereunder: Church of North India Vs. Lavajibhai Ratanjibhai]
The scheme of the Act provides that trustees of such trust (even though they are not members of the society) can be the governing body, if the bye laws so provide. (It is noteworthy that the So. Regn. Act does not expressly deal with election of Governing Body.)

No provision in the SR Act to change the character of the Society to a Trust

In Chief Controlling Revenue Authority Vs. H Narasimhaiah, AIR 1991 Kar 392 (S. Mohan, Shivaraj V. Patil, JJ.), it is found as under:

“Further, according to section 14 of the Karnataka Societies Registration Act, 1960, the property, movable and immovable, belonging to the society, shall, if not vested in the trustees, shall vest with the governing body. Secondly, there is no provision in the Act to change the character of the society to a trust. The only provision is section 21 which provides for amalgamation of societies. As there is no provision to convert a society into a trust, the transaction in effect amounts to a transfer of the property thereby attracting higher stamp duty as a settlement. The term ‘declaration of trust’ as provided in article 54 of the Act is not defined but recourse can be had to the Indian Trusts Act where the term ‘trust’ has been defined as a confidence reposed in a person regarding a property. As such, a declaration of trust involves vesting of property out of confidence reposed in him. Here, in this case, there is already a society owning properties which transfers the property to a trust or transforms itself into a trust.”

Founding Endowment by Subscriptions or Donations

In ancient times religious institutions were founded and managed by rulers, or wealthy persons or families. But, in modern times the trusts are mostly founded by associations of persons, and are administered by them, as trustees.

Where a person collects subscription from various persons and builds a choultry or a temple he has a right to direct in what manner the institution should be managed and what right the trustees should have in the management of that institution. This is recognised by the Hindu Law.

There is nothing illegal or improper in a person who builds a temple whether out of his own funds or out of the funds collected by subscriptions [Re St. Leonard (1884) 10 A.C. 304] or getting donations from people to create a trust and endow it, directing by the deed of endowment, in what manner and by whom it should be managed. [Settikara Venkatarama Chettiar Vs. Opdamodaram Chettiar: LAWS(PVC) 1925-11-220] If a number of persons provide the original endowment, they may apparently together constitute the founder. [Ananda Chandra Chuckerbutly Vs. Braja Lal Singh (1922) I.L.R. 50 C. 292; Re St. Leonard (1884) 10 A.C. 304; Settikara Venkatarama Chettiar Vs. Opdamodaram Chettiar: LAWS(PVC) 1925-11-220] Every donor contributing at the time of foundation of a trust may not be a founder of the trust. Whether a contributor would become a joint founder of the trust would depend not merely upon the fact of his contribution but also upon the surrounding circumstances and the subsequent conduct of the parties. [Thenappa Chettiar Vs. N S Kr Karuppan Chettiar: AIR 1968 SC 915]

In Attorney-General Vs. Clapham [(1855) 43 E.R. 638] Lord Cranworth, Lord Chancellor observed as under:

“Where a fund is raised for a charitable purpose like that of founding a chapel and the contributors are so numerous as to preclude the possibility of their all concurring in any instrument declaring the trusts, but such a declaration is made by the persons in whom the property is vested, at or about the time when the sums have been raised, that declaration may reasonably be taken prima facie as a true exposition of the minds of the contributors. The presumption is, that the trusts declared were those which the contributors intended. It would be open to them, if the trusts were not so framed as to effect the object they had in view, to take steps for getting any errors corrected. If no such steps are taken, it must be assumed that the instrument declaring the trusts fairly embodies the intentions of the contributors.” [Quoted in: Settikara Venkatarama ChettiarVs. OP Damodaram Chettiar: AIR 1926 Mad 1150: (1926) 51 MLJ 457]

Effect of Subsequent Transformation of a Trust as a Society

Section 2(13) of the Bombay Public Trusts Act reads:

” ‘Public trust’ means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, wakf, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act. 1860.”

The registration of the trust under the Societies Act would not alter the nature and character of its property. [Sukumaran Vs. Akamala Sree Dharma Sastha Idol: AIR 1992 Ker 406]In Amrithakumari Vs. VP Ramanathan, [1999 (1) CCC 238 (Ker.)] it has been held by the Kerala High Court that if there was a charitable trust created by the public, the fact of its subsequent transformation, or its registration, as a Society, could not change the trust-character of its property; and in such a case, suit could be filed under Sec. 92 CPC.

Even after formation of a society by the persons in management of an already existing trust/institution, the trust/ institution continues to hold its ‘trust-identity’. The same is the position even if the beneficiaries of a trust formed a society. In Rajan Devasahayam Vs. Hindustan Bible Institute of India, it was observed that a Trust can be registered under the Societies Registration Act. [1996 (1) L.W. 533. Referred to in Kishorelal Asera Vs. Haji Essa Abba Sait Endowments : 2003-3 Mad LW 372: 2003-3 CCC367]

Minority Status of an Educational Institution will not Lose on Registration

The majority in the seven-judge Constitution Bench in Aligarh Muslim University v. Naresh Agarwal, 2024 SCC Online SC 3213, ruled that AMU’s minority status will be lost on its registration as a Society.

Governing Body Administers Subject To Trust

The trustees or the governing body administer the ‘property of the society’ as per its bye laws so as to fulfill or attain the ‘aim and objects’ the founders viewed. Expressions in the Societies Registration Act, ‘property belonging to a society’ (Sec. 5) and ‘property of the society’ (Sec. 8 and 10), do not give the society a corporate status; it ‘merely describes the property which vests in trustees or Governing Body.’[Board of Trustees, Ayurvedic & Unani Tibia College, Delhi Vs. The State of Delhi: AIR 1962 SC 458: Para 11] They acquire and hold the property for and on behalf of [See: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212] the members of the society subject to the obligations imposed by law, the bye laws and the fundamental principles [Prasanna Venkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12: Milligan Vs. Mitchel: 40 ER 852; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See also: Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547)] or trust* upon which it is founded. These propositions upheld by our courts also lead to the unerring conclusion that our law brings-in principles of trust in the affairs of the societies and clubs.

*See: Church of North India Vs. Lavajibhai Ratanjibhai: AIR 2005 SC 2544; Vinodkumar M. Malavia Vs. Maganlal Mangaldas: 2013 AIR (SCW) 5782; (2013) 15 SCC 394. See also: Harbour Division II, Madras Vs. Young Men’s Indian Association: AIR 1970 SC 1212.

Effect of Unification of a Trust and a Registered Society

Trusts and societies can be dissolved only by adhering to the special procedures for the same. Unification of a registered society with a trust, under the resolutions, will not dissolve the society, automatically. Similarly, unless the properties vested in a trust are divested in accordance with law, a lawful merger cannot be claimed. Registered societies and trusts have to resort to the lawful modes for amalgamation. [Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti: 2013 AIR (SC)(CIV) 2849; 2013 AIR (SCW) 5782; (2013) 15 SCC 394]

No principle of law permits transfer of trust

Trust is a confidential relationship which involves a special duty of loyalty to the purpose or object of the trust. Our Apex Court has held that there is no principle of law or precedent which permits transfer of trust in favour of another body of persons. [Abdul Kayua Vs. Alibhai: AIR 1963 SC 309: Referred to in Arjan Singh Vs. Deputy Mal Jain ILR 1982-1 Del 11] The Karnataka High Court held that the documents as to conversion of the properties of a society into a trust property fall within the meaning of ‘settlement’ under the Stamp Act.[Chief Controlling Revenue Authority Vs. H Narasimhaiah: AIR 1991 Kar 392] _{(It may be noted that, in this case, the court did not consider whether ‘trust’ was an ‘institution’ and whether such a change amounts to dissolution of the society.)} In Shri Digambar Jain v. Sub Registrar, Stamps, Indore [AIR 1970 MadhPra 23(FB)] it is held in a similar situation that the documents would be ‘Declaration of Trust’ and not a ‘Conveyance’.

Duty of Courts to Protect Trusts

In AA Gopalakrishnan Vs. Cochin Devaswom Board [AIR 2007 SC 3162] while adverting to the need for protecting the properties of deities, temples and Devaswom Boards, our Apex Court observed that it is also the duty of Courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation. [It is referred to in Mandal Revenue Officer Vs. Goundla Venkaiah: AIR 2010 SC 744]

‘Breach of an Obligation’ in Sec. 38 of the Specific Relief Act

Under Sec. 38 of the Specific Relief Act the court is expressly authorised to grant injunctions to prevent breach of an obligation existing in favour of the plaintiff or where the defendant is trustee of the property for the plaintiff. Sec. 38 of the Sec. 38 of the Specific Relief Act reads:

“38. Perpetual injunction when granted.—(1) Subject to the other provisions contained in or referred to by this chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.
(2) When any such obligation arises from contract, the Court shall be guided by the Rules and provisions contained in Chapter II.
(3) When the defendant invades or threatens to invade the plaintiff’s right to, or enjoyment of property, the Court may grant a perpetual injunction in the following cases, namely;

(a) where the defendant is trustee of the property for the plaintiff;
(b) where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;
(c) where the invasion is such that compensation in money would not afford adequate relief;
(d) where the injunction is necessary to prevent a multiplicity of judicial proceedings.

The word obligation is defined in Sec. 2 of the Specific Relief Act with a wider meaning. It is so wide that it encompass obligations ‘whether expressly or by implication’. It also reads: ” ‘obligation’ includes every duty enforceable by law to include ‘every duty enforceable by law”. The word ‘trust’ is also used in a wider sense _{[Rotopacking Materials Industry Vs. Ravider Kumar Chopra: 2003(6) BCR 6; Smt. Parul Bala Roy Vs. Srinibash Chowmal: AIR 1952 Cal 364; Referred to in Arun Kumar Mitra Vs. Gorachand Saheb Sekh Abdul: AIR 2005 Cal 178.]} in this Act as under: ” ‘trust’ has the same meaning as in Section 3 of the Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act.” It is also noteworthy that ‘trust’ is not alien to the affairs of a society inasmuch as the administrators of societies can be ‘trustees’ as seen from Sec. 5 and 16 of the Societies Registration Act, 1860.

Court is the Ultimate Protector of All Charities

As in the case of English Law, Indian Law also accepts court as the ultimate protector of all charities. _{[Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; P. Mdhadevayya v. G. Mallikarjuniah: 53 Mys. HCR 167; Referred to in C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296]}Court is the guardian of the public charitable trust/institution._{[ChHoshiar Singh Mann Vs. Charan Singh 2009-162 DLT 208 : ILR 2009-19 Dlh 265]; See also: I Nel Son Vs. Kallayam Pastorate AIR 2007 SC 1337]}

The court has jurisdiction to enforce trusts.[See: CK Rajan Vs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179 – Appeal Judgment: AIR 2004 SC 561: (2003) 7 SCC 546; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915 ; Ch Hoshiar Singh Mann Vs. Charan Singh ILR 2009 (19) Dlh 265; I Nel Son Vs. Kallayam Pastorate: AIR 2007 SC 1337; Sk. Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309; Subramonia Pillai Chellam Pillai Vs. Subramonia Pillai Chathan Pillai: AIR 1953 TC 198; M.G. Narayanaswami Naidu Vs. M. Balasundaram Naidu: AIR 1953 Mad 750.]

Gift on Trust to a Society

If property is gifted to a registered society on condition tht the property should be used for public purposes and cast duties on the society to act as trustee a trust is brought home. [Swami Shivshankargiri Chella Swami Vs. SatyaGyan Nikethan: AIR 2017 SC 1221]

Church of North India Vs. Lavajibhai Ratanjibhai [AIR 2005 SC 2544: 2005 (10) SCC 760]

Brief facts: The Church, FCDB, was a registered religious society. This Church and the other 6 Churches resolved to dissolve and consolidate into a single entity, The Church of Northern India (CNI). The ‘CNI Trust Association’ was subsequently formed under the Companies Act and was appointed as the trustee of the CNI. Defendants 1 to 4 (though given consent to unification proceedings earlier) obstructed the functioning of the CNI and asserted their independent right to hold all the movable and immovable properties of their congregation (Valsad Brethren Church) and took the stand that there was no resolution for ‘dissolution’ as set out in the So. Regn. Act.

During the pendency of the suit, unification was ‘given effect to’ by the Charity Commr. under the BPT Act. The plaintiffs filed the suit to declare ‘that the former FDCB has ceased to exist’ and ‘that the CNI is the legal continuation and successor of the FDCB …’ etc. The Civil Court may have jurisdiction over a matter which is outside the purview of the Act, or over a question that arises in relation to a matter unconnected with the administration or possession of the trust property.

The effect of ‘dissolving’ a registered society (FDCB) by taking a resolution for unification with other associations (Churches) to form a single entity (CNI) was placed for consideration of our Apex Court several times. Besides, this decision (Lavajibhai Ratanjibhai), Vinodkumar M. Malavia Vs. Maganlal Mangaldas Gameti [(2013) 15 SCC 394; 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849] is important among them. The dismissal of the suit was upheld by our Apex Court, holding that the civil court has no jurisdiction where a bar is imposed in relation to a matter over which the statutory authorities (under BPT Act) have the requisite jurisdiction and that a society created under a statute must conform to its provisions, and the courts would interfere in case of its violation.[See also: The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282; Ratilal Panachand Gandhi Vs. State of Bombay AIR 1954 SC 388.]

It was observed, inter alia, in this land-mark decision (Church of North India Vs. Lavajibhai Ratanjibhai),rendered by SB Sinha, J:

“In terms of Section 5 of the Societies Registration Act, all properties would vest in the trustees and only in case in the absence of vesting of such properties in the trustees would the same be deemed to have been vested for the time being in the governing body of such property. In this case, it is clear that the properties have vested in the trustees and not in the governing body of the society.” (Para 60)
“Unless a suit is filed in terms of Section 13 of the Act, the society is not dissolved.” (Para 64)
“Concededly, the properties of the trust being properties of the religious trust had vested in such trust.” (Para 64)
“If the properties of the churches did not belong to the society, the appellant herein cannot claim the same as their successor.” (Para 64)
“Even if it is contended that the administration of the property would mean the properties of the Brethren church both as a trust and as a society, still then having regard to the legal position, as discussed supra, the property belonging exclusively to the trust, the suit will not be maintainable (by virtue of the provisions of the BPTA).” (Para 64)

It was observed in Vinodkumar M. MalaviaVs. Maganlal Mangaldas Gameti,[(2013) 15 SCC 394; 2013 AIR (SCW) 5782: AIR 2013 SC (CIV) 2849] inter alia:

“The argument that as per Article 254 of the Constitution, the Societies Registration Act overrides the BPTA or that the Societies Registration Act and BPTA are in conflict, does not stand either, since both the statutes are not in conflict with each other. On the contrary, they are in consonance with each other regarding the administration and regulation of public and religious trusts.”
“The High Court has rightly observed that: ‘… The trust which has been created as public trust for a specific object and the charitable or the religious nature or for the bonafide of the Society or any such institution managed by such trusts for charitable and religious purpose shall continue to exist in perpetuity and it would not cease to exist by any such process of thinking or deliberation or the Resolution, which does not have any force of law’.”

Effect of Dedication of Property (for Public) by Society

Can a Society or Corporation be a Trustee?

A corporation can be a trustee. Earlier notion that a corporation could not be a trustee, as the property held by the Company or Corporation as its ‘beneficial owner’ could not be subjected to a trust for the benefit of third parties is not accepted by modern jurists.

N. SuryanarayanaIyer, in the Indian Trusts Act, observed as under:

“Formerly the notion was that the relationship of a trustee being one of confidence involving a personal element, a corporation could not be a trustee as there could not be a question of confidence being reposed in a corporation and therefore that it could not be a trustee. This notion, however, has long ago been given up. Corporate bodies have been held to be amenable to the jurisdiction in Chancery and compellable to carry out the intentions of the settlor of property which has been vested in them…. Under the Indian law also a corporation, whether aggregate or sole, can be a trustee and there is ample jurisdiction in the court to enforce the performance of its duty by such trustee.” [Quoted in: B. Ramachandra Adityan Vs. Educational Trustee Co. (P.) Ltd.: 2003-113 Comp Cases 334.]

As shown above, generally, a Society acquires property to use the same for its objectives or purposes and for its own benefit; or in other words, ultimately for the benefit of the ascertainable members of the society. And, there will be neither public trust nor dedication of property, divesting the rights of the society, for any ‘public purpose of a charitable or religious nature’.

But, if a contra indication is manifested from the basic documents and assertions of a society (or a Non-Trading-Company) or from the very nature of an institution — that is, where the property is raised solely for the purpose of dedicating the same for establishing and maintaining a public trust/institution for the benefit of the general public or of an unascertainable section thereof as in the case of a church or temple(or, where the society and trust ‘is only one entity’ as the one considered in Church of North India Vs. Lavajibhai Ratanjibhai) [AIR 2005 SC 2544: 2005 (10) SCC 760] — no doubt, it cannot be treated as the property ‘exclusively’ belonging-to-the-society and not bound by Sec. 92 CPC. In other words, if a society is formed with the object of dedicating property for a public or charitable (including religious) purpose and the property procured by the society is validly dedicated, a trust will be predicated.

A Society May Be Subjectd To The Jurisdiction of Section 92 CPC

In Young Mens Christian Association of Ernakulam Vs. National Council YMCAs of India[101] the Delhi High Court considered whether the term “express or constructive trust” in Section 92 CPC was attracted when a society (National Council YMCAs of India) held ‘in trust’ property belonging to different organisations, and observed as under:

“In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but anybody or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”

The court found that the National Council YMCAs was in both ‘express’ and ‘constructive’ trust of the properties belonging to its member YMCAs. The mere fact that the defendant is a registered society did not take away its true character. The defendant is an organisation which worked for a public purpose and is subject to the jurisdiction of Section 92 of the CPC.

The defendant (National Council YMCAs of India) contended that it was not a trust but a society registered under the Societies Registration Act. There was a clear distinction between the nature of a trust and a society. If only it could be proved that the society could in fact be termed as a trust created for public purposes of a charitable or a religious character, leave under Section 92 of the CPC could be granted. The settled position on this issue was that if a society that was functioning in a fully democratic fashion, and there was no settler who had vested property in the society, leave could not be granted under Sec. 92. The defendant relied upon the following judgments:

K. Rajamanickam Vs. Periyar Self Respect Propaganda Institution, Tiruchirapalli: AIR 2007 Mad 25
S. Guhans Vs. Rukmani Devi Arundale: 1987-100 LW 182
Advocate General Vs. Bhartiya Adam Jati Sewak Sangh: 2001-3 ShimLC 319
Abhaya A Society Registered under the Travancore-Cochin Literary Vs. J.A. Raheem: AIR 2005 Ker 233
Kesava Panicker Vs. Damodara Panicker, AIR 1976 Ker 86
Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan: 2017-4 SCC 771

The High Court distinguished Abhaya A Society, Rukmini Devi Arundale and Bhartiya Adam Jati Sewak Sangh pointing out that these cases did not show that they held ‘in trust’ any property belonging to a different organisation. The property was owned by the Society concerned and it belonged to it. In other cases also, no express or implied trust emerged.

If Valid Dedication, No Change of Character, On Regn. as Socieety

As stated above, normally, the property acquired by a society does not part-take the character of ‘public purpose’ stated in Sec. 92 CPC.[102] But, if a charitable or religious institution of a public nature[103] is expressly or constructively founded by an ascertainable number of persons or an association, by valid dedication of properties acquired by the members or society, it will accomplish the character of ‘public purpose’ stated in Sec. 92 CPC.

Subsequent registration of an association involved in a trust, under the Societies Registration Act, will not make any change to the trust character of the properties dedicated. Kesava Panicker Vs. Damodara Panicker[104] was a case where the entire community in a particular area took an active interest and contributed funds for the purpose of creating ‘a trust fund’ for establishing a school. A committee was formed for collecting funds. Utilising that fund the school building was constructed. Subsequently a society was formed and registered under the Societies Registration Act for the purpose of management of the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench of the Kerala High Court held as under:

“If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character.”

A Society May Be Subjectd To The Jurisdiction of Section 92 CPC

“In this backdrop, a perusal of Section 92 of the CPC reveals that the term “express or constructive trust” does not relate to a trust constituted under the Indian Trusts Act, but anybody or entity which holds in trust any property and is created for public purposes of a charitable or religious nature. A society can also satisfy the test of express or constructive trust created for public purposes.”

K. Rajamanickam Vs. Periyar Self Respect Propaganda Institution, Tiruchirapalli: AIR 2007 Mad 25
S. Guhans Vs. Rukmani Devi Arundale: 1987-100 LW 182
Advocate General Vs. Bhartiya Adam Jati Sewak Sangh: 2001-3 ShimLC 319
Abhaya A Society Registered under the Travancore-Cochin Literary Vs. J.A. Raheem: AIR 2005 Ker 233
Kesava Panicker Vs. Damodara Panicker, AIR 1976 Ker 86
Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan: 2017-4 SCC 771

If Valid Dedication, No Change of Character, On Regn. as Socieety

As stated above, normally, the property acquired by a society does not part-take the character of ‘public purpose’ stated in Sec. 92 CPC [Keshava Panicker Vs. Damodara Panicker AIR 1976 Ker 86; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296]. But, if a charitable or religious institution of a public nature [Eg. A temple or a math or Guru Granth Sahib, revered in a Gurudwara] is expressly or constructively founded by an ascertainable number of persons or an association, by valid dedication of properties acquired by the members or society, it will accomplish the character of ‘public purpose’ stated in Sec. 92 CPC.

Subsequent registration of an association involved in a trust, under the Societies Registration Act, will not make any change to the trust character of the properties dedicated. Kesava Panicker Vs. Damodara Panicker [AIR 1976 Ker 86] was a case where the entire community in a particular area took an active interest and contributed funds for the purpose of creating ‘a trust fund’ for establishing a school. A committee was formed to collect funds. Utilising that fund, the school building was constructed. Subsequently, a society was formed and registered under the Societies Registration Act for the purpose of managing the school. A question arose whether the character of the properties would be changed by the formation of the society. The Full Bench of the Kerala High Court held as under:

“If there was a trust created by the public, for a public charitable purpose namely establishing, maintaining and running a school, the fact of the registration of a society could not change the character of the properties which had already been constituted as trust properties and impressed with the trust and any addition to those properties must also have the same character.”

Strict English Principles as to Trust, Not Accepted by Indian Law

According to strict English principles, there should be dual ownership upon a trust property; i.e., the legal ownership which is vested with the trustees; and the equitable or beneficial ownership, vested with the beneficiaries [Salmond on Jurisprudence: Eleventh Edition, page 307]. But, the Law on Trust in India, as expounded by judicial decisions, does not recognise legal and equitable ownership, in both public and private trusts. The courts in India confer beneficial interest [Note: Not the ‘proprietary interest’ or interest pertaining to owner; it is the interest pertaining to beneficiaries] alone upon the beneficiaries. [See: Chhatra Kumari Devi Vs. Mohan Bikram Shah: AIR 1931 PC 196; WO Holdsworth Vs. The State of Uttar Pradesh: AIR 1957 SC 887; Commissioner of Wealth Tax Vs. Kripashankar: AIR 1971 SC 2463, Bai Dosabai Vs. Mathuradas: AIR 1980 SC 1334; Bomi Munchershaw Mistry Vs. Kesharwani Co Op Housing Society: 1993-2-BCR-301; Hem Chandra Vs. SuradhamDebya: AIR 1940 PC 134].

Under the orthodox English view of trust, the trust property should be one which is capable of being transferred in favour of the beneficiaries. Since the property of a society does not go at par with the aforesaid English proposition, it can be demonstrated that properties of both registered and unregistered societies are not impressed with characteristics of ‘trust’ in its strict sense.

In Incorporated Body or Club, Trustees Act as Agents

The Supreme Court in Young Men’s India Association case [Harbour Division II, Madras Vs. Young Men’s Indian Association, Madras: AIR 1970 SC 1212] it was observed:

“… The difficulty felt in the legal property ordinarily vesting in the trustees of the members’ club or in the incorporated body was surmounted by invoking the theory of agency, i.e., the club or the trustees acting as agents of the members. ….. What was essential was that the holding of the property by the agent or trustee must be a holding for and on behalf of and not a holding antagonistic to the members of the club. …. The final conclusion of the High Court in the judgment under appeal was that the case of each club was analogous to that of an agent or mandatory investing his own moneys for preparing things for consumption of the principal, and later recouping himself for the expenses incurred. As no transaction of sale was involved there could be no levy of tax under the provisions of the Act on the supply of refreshments and preparations by each one of the clubs to its members.”

Directors of a Company, to Some Extent Trustees

In Piercy Vs. S. Mills and Co. Ltd. [(1920) 1 Ch. 77.] their Lordships observed:

“I cannot look upon the Directors otherwise than as trustees for a public Company, and I must judge of the propriety of their conduct in this matter on the ordinary principle applicable to cases of trustee and cestuique trust. If shares are issued with indecent haste and scramble ………for a different purpose, I have no doubt that the Court will interfere to prevent so gross a breach of trust. If they were issued with the immediate object of controlling the holders of greater number of shares in the Company and of obtaining the necessary statutory majority for passing a special resolution, then it will not be valid or bona fide exercise of power.” (Quoted in Kalinga Tubes Ltd Vs. Shanti Prasad Jain: AIR 1963 Ori 189).

In V S RamaswamyIyer Vs. Brahmayya and Company Official Liquidators Hanuman Bank Limited [ 1966-36 Comp. Cases 270: 1966-1 Mad LJ 234] the Madras High Court referred to various English authorities and pointed out that the directors of a company are not, properly speaking, trustees; yet they have always been considered and treated as trustees of money which comes to their hands. The High Court observed that the law in India regarding the nature of the liability of directors has not been different.

The Court referred to:

Palmer’s Company Law: “Directors are not only agents, but they are in some sense and to some extent trustees or in the position of trustees, but their position differs considerably from that of ordinary trustees, and the strict rules applicable to such trustees do not apply in all respects to directors. “
Charitable Corporation Vs. Sutton:[ 1742-2 Atk. 400] “The directors are persons selected to manage the affairs of the company for the benefit of the shareholders it is an office of trust, which, if they undertake, it is their duty to perform fully and entirely. A resolution by shareholders therefore, that shares or any other species of property shall be at the disposal of directors, is a resolution that it shall be at the disposal of trustees in other words, that the persons entrusted with that property shall dispose of it, within the scope of the functions delegated to them, in the manner best suited to benefit their cestuique trust. “
York and North Midland Ry. Vs. Hudson [1853 16 Beav. 485]
G.E. Ry. Vs. Turner:[ 1872 L.R. 8 Ch. 149] “The directors are the mere trustees or the agents of the company: trustees of the company’s money and property agents in the transaction which they enter into on behalf of the company.”
In Re Forest of Dean Co.: “…….directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control…… For most purposes it is sufficient to say that directors occupy a fiduciary position and all the powers entrusted to them are only exercisable in this fiduciary capacity. ” [1878 (10) Ch(D) 450]
Buckley on the Companies Acts: “The directors of a company fill a double character. They are (i) agents of the company, and (ii) trustees for the shareholders of the powers committed to them. …. . The assets of the company are entrusted to the directors to be applied for certain defined objects, and they are responsible as for a breach of trust if they apply them to other objects.”
Halsbury’s Laws of England: “A director who has misapplied or retained or become liable or accountable for any money or property of the company, or who has been guilty of nay breach of trust in relation to the company must make restitution or compensate the company for the loss. Where the money of the company has been applied for purposes which the company cannot sanction, the directors must replace it, however honestly they may have acted. The estate of a deceased director has always been liable for his breaches of trust. “
Gore-Browne, Handbook of Joint Stock Companies: “In the case of the death of a director his estate remains liable for any breach of trust he may have committed (including any wrongful dealing with the company’s property, such as a payment of dividend out of capital or sale of its assets at an undervalue)…. ….. In regard to actions for deceit and other wrongs, the principle actiopersonalismoritur cum persona may be mentioned. Under this principle, with regard to actions for wrongs, independent of contract, done either to or by a deceased person in his lifetime, his legal personal representative could neither sue nor be sued. This is still so in some cases, e.g., defamation. Even at common law this principle is subject to the modification that where loss results to the estate of the extent of the loss or profit. “
Flitcroft’s case:[1882 (21) Ch(D) 519] “They are trustees for the company, nor for the individual shareholders. The liquidator represents the company, and is bound to discharge towards the creditors all the duties which the company owes them. It is therefore his duty when such a breach of trust as this is discovered to get a return of the assets improperly expended that they may be applied in payments of debts. The act of the directors is impeached as a breach of trust, not on the ground of tort or misfeasance. There are persons who may be made liable under section 165, without having been guilty of a breach of trust but where the person charged under that section is a trustee, the act which brings him within the section is a breach of trust”
Ramskill Vs. Edwards [1885 Ch(D) 100]
In Re Faure Electric Accumulator Company:[1889 L.R. 40 Ch(D) 141]“ With respect to the capital of the company which is under their management, it has been said that they are `quasi-trustees’ for the company: Flitcroft’s case 1882 L.R. 21 Ch(D) 519. In that and other respects they are, `to a certain extent, trustees’ (Lindley on Partnership). In the language of Lord Romilly, in York and North Midland Ry. Co. Vs. Hudson 1845 16 Beav.485, `The directors are persons selected to manage the affairs of the company, for the benefit of the shareholders it is an office of trust, which, if they undertake, it is their duty to perform fully and entirely.’ They certainly are not trustees in the sense of those words as used with reference to an instrument of trust, such as a marriage settlement or a will. One obvious distinction is that the property of the company is not legally vested in them. Another and perhaps still broader difference is that they are the managing agents of a trading association, and such control as they have over its property, and such powers as by the constitution of the company are vested in them, are confided to them for purposes widely different from those which exist in the case of such ordinary trusts as I have referred to, and which required that a larger discretion should be given to them. Perhaps the nearest analogy to their position would be that of the managing agent of a mercantile house to whom the control of its property and very large powers for the management of its business are confided but there is no analogy which is absolutely perfect. Their position is peculiar because of the very great extent of their powers and the absence of control, except the action of the shareholders of the company.”
Concha Vs. Murrieta:[1889 L.R. 40 Ch(D) 543] “It is true that no action for a tort can be revived or commenced against the representatives of the person who committed it but the case is quite different where the act is not a mere tort, but is a breach of a quasi-contract, where the claim is founded on breach of a fiduciary relation, or on failure to perform a duty. Here the father, though I do not call him a trustee, was in a position in which he owed duties of a fiduciary character to his daughter. In the very careful judgment of Lord Justice Bowen in Philips Vs. Homfray 1883 L.R. 24 Ch(D) 439, cases depending on breach of contract, express or implied, are excepted from the judgment. Here there is what we call a quasi-contract, the law implying a contract that a man will faithfully perform the duties which he has undertaken. Juan Jose Concha undertook a duty in consequence of his position, and losses arising from his breach of it can be followed up against his estate. “
In Re Lands Allotment Company:[1894 L.R. 1 Ch(D) 616] “Then, if it was an improper transaction, all those directors who were parties to this improper investment, for in this point of view it was improper, would naturally and obviously be liable to make good the money……We are asked to say that the directors are liable for these moneys upon the footing that they committed a breach of trust, but that they are not entitled to the benefit of the Statute of Limitations which was passed for the benefit of trustees. I cannot be a party to any decision so supremely absurd. Although directors are not properly speaking trustees, yet they have always been considered and treated as trustees of money which comes to their hands or which is actually under their control and ever since joint stock companies were invented directors have been held liable to make good moneys which they have misapplied upon the same footing as if they were trustees, and it has always been held that they are not entitled to the benefit of the old Statute of Limitations because they have committed breaches of trust and are in respect of such moneys to be treated as trustees.. …….. Now, case after case has decided that directors of trading companies are not for all purposes trustees or in the position of trustees, or quasi-trustees, or to be treated as trustees in every sense but if they deal with the funds of a company, although those funds are not absolutely vested in them but funds which are under their control, and deal with those funds in a manner which is beyond their powers, then as to that dealing they are treated as having committed a breach of trust. I do not believe that there has ever been any deviation from the language of the late Sir George Jessel in the case of In re Forest of Dean Coal Mining Company 1878 L.R. 10 Ch(D) 450. Sir George Jessel said this `Directors are called trustees. They are no doubt trustees of assets which have come into their hands, or which are under their control, but they are not trustees of a debt due to the company.’ So that, when they get assets of the company under their control, or into their hands, and deal with them in a way which is beyond the powers of the company, they are liable as for a breach of trust. “

Implied Trust in Sec. 82 & 94 Applied in a Proposed Society

In Ramchandra Krishna Yadav Vs. Sakharam Gangaram Mali [1996-1 All MR 338], it is observed that an elected Chairman of a proposed society, who admits that he was a leader of the villagers, collected various amounts from the proposed members and purchased the land out of that amount, was in the position as trustee qua the proposed members of the society and must hold the property for their benefit.

Applying Sec. 82 and 94 of the Indian Trusts Act, it was observed that implied trust is created though there was no express trust and no trust deed as such. Section 82 of the Act says that where property is transferred to one person for a consideration paid or provided by another person, and it appears that such other person did not intend to pay or provide such consideration for the benefit of the transferee he must hold the property for the benefit of the person paying or providing the consideration. What are called ‘express trusts’ in English Courts are called merely ‘trusts’ in the Indian Trusts Act and are dealt with therein under Sections 4 to 79; while what are called ‘constructive or implied trusts’ in English Law are called “obligations in the nature of trust” and are dealt with in Chapter IX containing Sections 80 to 96 of the Indian Trusts Act.

Church: Voluntary Association & Religious Trusts

The word ‘church’ is used to denote, generally, two ideas: voluntary association of Christians and place where persons regularly assemble for worship. Halbury’s Laws of England [4th Edition] gives the meaning of ‘Church’ as under:

“Church, when used in relation to a religious body, has two distinct meaning; it may mean either the aggregate of the individual members of thechurch or it may mean the quasi-corporate institution which carries on the religious work of the denomination whose name it bears.”

Blacks Law Dictionary defines church as under:

“Church. In its most general sense, the religious society founded and established by Jesus Christ, to receive, preserve, and propagate His doctrines and ordinances. It may also mean a body of communicants gathered into church order; body or community of Christians, united under one form of government by the profession of the same faith and the observance of the same ritual and ceremonies; place where persons regularly assemble for worship; congregation; organization for religious purposes; religious society or body; the clergy or officialdom of a religious body.”

It is observed in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma [AIR 1995 SC 2001] as under:

“A church is formed by the voluntary association of individuals. And the churches in the commonwealth are voluntary body organised on a consensual basis their rights apart from statutes will be protected by the courts and their discipline enforced exactly as in the case of any other voluntary body whose existence is legally recognized. ……”

Two (Kinds of) “Trusts” over the Parish or Branch Property

One Property, Several Trusts Possible

Trust is a general term used in wider sense in law. Therefore –

If a property is acquired by a branch of a larger body, or a parish of a Church, the entire members of the larger body, from time to time, will be presumed to be the owners, subject to (i) the byelaws of the (entire) association or trust and (ii) the purposes or objectives ‘aimed to achieve’ by that particular property.
If the bylaws (expressly or by necessary implication) provides for special beneficial enjoyment by the members of the branch or parish, over the branch/parish properties, definitely there will be two (kinds of) “trusts” over the same property – one, trust for the beneficial enjoyment of whole body; and the other, for the members of the branch/parish.

Are Shebait, Mahant, Mutawalli etc. Trustees in ‘True Sense’?

Can entre members put an end to the society?

The ownership of the property of a registered society vests in its members subject to the fundamental principles upon which it is founded [See Chapter: ‘Vesting of Property’] and the provisions of the Act under which it is registered.

It is not open for the majority of the members of a society to alter the fundamental principles upon which it is founded unless such a power is specifically reserved under the bye laws. [PrasannaVenkitesa Rao Vs. Srinivasa Rao: AIR 1931 Mad. 12 ; Milligan Vs. Mitchel: 40 ER 852 ; Free Church of England Vs. Overtoun: (1904) AC 515 referred to. See: also: Profulla Chorone RequitteVs. Satya Chorone Requitte: AIR 1979 SC 1682. Inderpal Singh Vs. Avtar Singh (2007-4 Raj LW 3547)] If a public or permanent trust is predicated by the founders or by the bye laws, the entire members of an unregistered society of a particular time cannot put an end to the society and appropriate its property.

Intention of Founders & Basic Principles, Paramount

Underhill, in his treatise, ‘Law of Trusts and Trustees’, explained it thus:

“However, the crucial difference surely is that no absolutely entitled members exist if the gift is on trust for future and existing members, always being for the members of the Association for the time being. The members for the time being cannot under the Association rules appropriate trust property for themselves for there would then be no property held on trust as intended by the testator for those persons who some years later happened to be the members of the Association for the time being”.[Quoted in Most Rev. PMA Metropolitan Vs. Moran Mar Marthoma: AIR 1995 SC 2001- Para 69]

Sec. 92 CPC is Not Attracted to Matters of a Society

Because, there will be no ‘dedication’ of “property belonging to a society”

Sec. 92 CPC envisages ‘express or constructive trust created for public purposes of a charitable or religious nature’. This requirement is brought home only when there is dedication of property. That is, unless there is an ‘express or constructive’ public trust founded by explicit ‘express or constructive’ dedication of the property divesting the rights of former owner over the same, ‘for public purposes of a charitable or religious nature’, Sec. 92 CPC is not attracted.

The characteristic distinguishing factor between a “Private Trust” and “Public Trust” is that in the former, beneficiaries are defined and ascertained individuals; but, in the latter, the beneficial interest must be vested in an uncertain and fluctuating body of persons, either the public at large or some considerable portion of it, answering particular description. Normally, there will be no explicit ‘express or constructive’ dedication of the ‘property belonging to a society’, divesting the rights of the society, ‘for public purposes of a charitable or religious nature’ (even if the society itself is formed for charitable and religious purposes); and therefore, Sec. 92 CPC will not be attracted to the ‘property belonging’ to the societies. A society has to use its property for its own purposes[‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233] and it will only be the property of the Society alone;[[128] Keshava Panicker Vs. Damodara Panicker:AIR 1976 Ker 86. See: also: C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296; ‘Abhaya’ a Society Vs. Raheem: AIR 2005 Ker 233] and it will not be a property in respect of which it is possible to predicate a public trust[See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762] as envisaged in Sec. 92 CPC.

[Section 6 of the Indian Trusts Act, 1882 reads as under: “6. Creation of trust. – Subject to the provisions of section 5, a trust is created when the author of the trust indicates with reasonable certainty by any words or acts (a) an intention on his part to create thereby a trust, (b) the purpose of the trust, (c) the beneficiary, and (d) the trust -property, and (unless the trust is declared by will or the author of the trust is himself to be the trustee) transfers the trust – property to the trustee.”]

The same will be the position of Non-Trading-Companies also. [See: Kripal Singh Bajwa Vs. Trust Manav Kendra: 2012-2 UAD 762]

In ‘Abhaya’ a Society Vs. Raheem,[AIR 2005 Ker 233] while dealing whether Sec. 92 CPC is attracted to the affairs of a registered society, it is pointed out that to constitute a trust there must be author, trustees, beneficiary, trust property and beneficial interest.

It is also clear from the wording of Sec. 92 CPC that express or constructive trust in its ‘strict sense’ is envisaged in Sec. 92; and not trust in its ‘wider or general sense’ so as to include all ‘fiduciary relationships’. [The ‘wider’ or ‘general’ expression as to ‘trust’, used by the progressive jurists, is adopted in the Societies Registration Act]

Section 92 CPC is held out on the principles of ‘parens patriae’, once a trust, always a trust [See Narayanan Vs. Nil: AIR 2005 Mad. 17; M Ashok Kumar Vs. N Janarthana: 2013(7) Mad. LJ 273; T C Chacko Vs. Annamma: AIR 1994 Ker. 107] and the court is the protector of all charities.[C Chikka Venkatappa Vs. D Hanumanthappa: 1970 (1) Mys LJ 296; Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14: Thenappa Chattier Vs. KuruppanChhietier AIR 1968 SC 915]

In Pragdasji Vs. Ishwarlalbhai [AIR 1952 SC 143. Also See: HarendraNathVs. Kali Ram Das: AIR 1972 SC 246], our Apex Court pointed out that a suit under Sec. 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character, and that it must pray for one or other of the reliefs that are specifically mentioned in the Section. It is only when these conditions are fulfilled that a suit could be brought under Sec. 92.

Section 92 CPC does not specifically make any provision to remove the persons in management of the society and to appoint new managing body.

Majority of an Association Cannot Alter Fundamental Principles

The fundamental principles upon which a trust is founded cannot be varied. Therefore, the courts cannot sanction any drastic amendment to the document of trust which would destroy the basic purpose for which the trust was created. The trust properties will not be allowed to be sold even to the members of their community for whose benefit the trust was created, and the properties were acquired.[Pragji Savji VajaVs. Chhotalal Narsidas Parmar: AIR 2014-3 Bom R 211: 2013-6 BCR 72. See also: AA Gopalakrishnan Vs. Cochin Devaswom Board: AIR 2007 SC 3162; Mandal Revenue Officer Vs. GoundlaVenkaiah: AIR 2010 SC 744; Doongarsee Shyamji Vs.Tribhuvan Das: AIR 1947 All 375; Lal Vs. Thakur Radha Ballabhji: AIR 1961 All 73; C Chikka Venkatappa Vs. D Hanumanthappa 1970 (1) Mys LJ 296: Narayan Krishnaji Vs. Anjuman E Islamia: AIR 1952 Kar 14; Thenappa Chattier Vs. Kuruppan Chhietier AIR 1968 SC 915; CK Rajan Vs. Guruvayoor Devaswom Managing Committee: AIR 1994 Ker 179 [Appeal Judgment: AIR 2004 SC 561: (2003) 7 SCC 546]

This principle in Milligan Vs. Mitchel [40 ER 852] Attorney General Vs. Anderson [(1888) 57 LJ Ch 543] and Free Church of England Vs. Overtoun [(1904) AC 515] is referred to in Prasanna Venkitesa Rao Vs. Srinivasa Rao.[AIR 1931 Mad. 12]

In Free Church of England Vs. Overtoun the House of Lords (by a majority of 5-2) found that the minority was entitled to the assets of the Free Church. It was observed that when men subscribe money for a particular object, and leave it behind them for the promotion of that object, their successors have no right to change the object endowed. It was held that, by adopting new standards of doctrine (and particularly by abandoning its commitment to ‘the establishment principle’, which was held to be fundamental to the Free Church), the majority had violated the conditions on which the property of the Free Church was held.

S. 88 & 95 of Trusts Act Encompass Govg. Bodies of Societies

Section 88 of the Indian Trusts Act expressly refers to director of a company. Though they are not express trustees, with respect to their duties, the Indian Trusts Act, 1882 takes the position of ‘executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person’ to that of trustees, in Chapter IX (Section 80 onwards) of the Indian Trusts Act. Their office is fiduciary in character.[V S Ramaswamy Iyer Vs. Brahmayya: 1966-36 Comp Cases 270, 1966-1 Mad LJ 234.] They are bound by the directives in Sec. 88.

Sec. 88 of the Indian Trusts Act, 1882 reads as under:

88. Advantage gained by fiduciary: Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person, and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.

It is legitimate to comprehend that the words ‘or other person’ in Sec. 88 of the Indian Trusts Act encompass the governing bodies of societies and clubs also. By virtue of Sec. 95 of the Indian Trusts Act it is further clear that the principles and incidents of ‘trust’ are impressed upon the property held by societies and clubs also.

Sec. 95 of the Indian Trusts Act reads as under:

95. Obligator’s duties, liabilities and disabilities: The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities as if he were a trustee of the property for the person for whose benefit he holds it ….. “

Also Read

Common Law of CLUBS and SOCIETIES in India

Common Law of TRUSTS in India

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

Documents Produced With the Plaint are Treated As ‘Part of The Plaint’

Jojy George Koduvath

Order 7 Rule 14 CPC Deals with the production of documents

Order 7 Rule 14 CPC reads as under:

“Production of document on which plaintiff sues or relies.-
.(1) Where a plaintiff sues upon a document or relies upon document in his possession or power in support of his claim, he shall enter such documents in a list, and shall produce it in Court when the plaint is presented by him and shall, at the same time deliver the document and a copy thereof, to be filed with the plaint.
(2)Where any such document is not in the possession or power of the plaintiff, he shall, wherever possible, state in whose possession or power it is.
(3)A document which ought to be produced in Court by the plaintiff when the plaint is presented, or to be entered in the list to be added or annexed to the plaint but is not produced or entered accordingly, shall not, without the leave of the Court, be received in evidence on his behalf at the hearing of the suit.
(4)Nothing in this rule shall apply to document produced for the cross examination of the plaintiff’s witnesses, or, handed over to a witness merely to refresh his memory.”

Documents Produced With the Plaint are Treated As ‘Part of The Plaint’

When deciding an application under Order VII, Rule 11 (i.e., for rejection of the plaint) the Supreme Court observed in Dahiben v. Arvindbhai Kalyanji Bhanusali, AIR 2020 SC 3310; (2020) 7 SCC 366, as under:

“23.8. Having regard to Order VII Rule 14 CPC, the documents filed along with the plaint, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.”(Followed in: Shri Mukund Bhavan Trust v. Shrimant Chhatrapati Udayan Raje Pratapsinh Maharaj Bhonsle, 2024 INSC 1025; 2024 KLT Online 3058).

Site-Plan Produced with the Petition was Considered

The site-plan attached to the petition was considered when an ambiguity arose as to pleadings in Kusum Lata Sharma v. Arvind Singh, AIR 2023 SC 3067. Our Apex Court explained the position as under:

“17. A comprehensive look at the pleadings taken by the appellant along with the site-plan attached to the petition makes it evident that the appellant gave out a detailed description of the extent of accommodation available in the suit property as also the accommodation presently in her occupation and the nature and extent of her requirement. In the pleadings, it was indeed specified that the appellant was residing on the property bearing No. “C-586/587”. The pleadings taken by the appellant in paragraph 18(a)(ii) of her petition, of course, begin with the expression “as stated above” and there had not been any earlier mention of property bearing No. “C-586/587” but, there had been detailed description in the preceding paragraphs and the site plan was also attached to the petition. The appellant further made the position clear in her cross-examination that the building in question was constructed on Plot Nos.586 and 587 jointly and she and her sister-in-law were residing in the same building as one family.
18. Taking the pleadings as a whole and reading the same with the evidence, it is clear that there had not been any such mis-description of the property which would amount to a material flaw in the case of the appellant or which could have caused prejudice to the respondents-tenants.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession:

Survey, Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Natural Justice/Disciplinary Action

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

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

General Principles
Dedication and Vesting
Trustees and Management
Breach of Trust
- Breach of Trust and Removal of Trustees
Suits by or against Trusts
Law on Hindu Religious Endowments
Temples, Gurudwaras, Churches and Mosques – General
- Legal Personality of Temples, Gurudwaras, Churches and Mosques
Constitutional Principles
Ayodhya and Sabarimala Disputes
General