‘Nemo Dat Quod Non Habet’

Saji Koduvath, Advocate, Kottayam

Abstract

•➧ Literally translated, Nemo dat quod non habet means: “No one gives what they do not have.”Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., 2021-3 SCC 4010.
•➧ It is a fundamental principle of the law of Transfer of Property.
•➧ Exceptions to this Rule – (i) Negotiable Instruments (ii)  Transfer in Good Faith for Value (It is subject to conditions).
•➧ If Excess Given, Confine to the Right Held.
•➧ Sale by a Sharer in a Partition Suit – courts will, on equity, allot his share to favour the purchaser.
•➧ By Proving a Deed, the Title of the Executing Person is Not Automatically Confirmed.

Introduction

In Rusoday Securities Ltd. v. National Stock Exchange of India Ltd., 2021-3 SCC 401, it is pointed out that if literally translated, Nemo dat quod non habet means –

  • “No one gives what they do not have.”

It is explained to be: “No one can confer a better title than what he himself has.”

  • Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705
  • P. Kishore Kumar v. Vittal K. Patkar, 2023-14 SCR 796,
  • Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022- 7 SCC 90,
  • Kavita Kanwar v. Pamela Mehta, AIR 2020 SC 2614; 2021-11 SCC 209,
  • Union of India v. Vijay Krishna Uniyal, 2018-11 SCC 382,
  • V.  Chandrasekaran v. Administrative Officer, 2012 12 SCC 133,
  • Standard Chartered Bank v. Andhra Bank Financial Services LTD. 2006 AIR SC 3626; 2006-6 SCC 94,
  • State Bank of India v. Rajendra Kumar Singh & Ors., AIR 1969 SC 401
  • Morvi Bank v. Union of India, 1965 (3) SCR 254,

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

Applying this principle, our Apex Court held in Venkatesha v. K.M. Venkatamuniyappa, 2026 INSC 705, 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.”

It is a fundamental principle of the law of Transfer of Property

In Umadevi Nambiar v. Thamarasseri Roman Catholic Diocese, AIR 2022 SC 1640; 2022-7 SCC 90, it is held as under:

  • “19. It is a fundamental principle of the law of transfer of property that “No one can confer a better title than what he himself has” (Nemo dat quod non habet). The appellant’s sister did not have the power to sell the property to the vendors of the respondent. Therefore, the vendors of the respondent could not have derived any valid title to the property. If the vendors of the respondent themselves did not have any title, they had nothing to convey to the respondent, except perhaps the litigation.”

P. Kishore Kumar v. Vittal K Patkar (2023 SCC Online SC 1483; 2024-1 CTC 547; 2023-4 CurCC(SC) 278) is a latest decision (Dipankar Datta, Bela M. Trivedi, JJ.) in this matter which held as under:

  • “18. It is settled law that a vendor cannot transfer a title to the vendee better than he himself possesses, the principle arising from the maxim nemo dat quod non habet, i.e., “no one can confer a better title than what he himself has”.

If Excess Given, Confine to the Right Held

In Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao, (2013) 9 SCC 425, it is held that the bequest has to be treated only to the extent of the share held by the testatrix, where the testatrix had bequeathed property in excess of her share.

This principle is followed in Kavita Kanwar v. Pamela Mehta, AIR 2020 SC 2614; 2021-11 SCC 209, holding as under:

  • “30.6. It remains trite that no one can convey a better title than what he had; as expressed in the maxim: ‘Nemo dat quod non habet’. *
  • [*See, for example, Narinder Singh Rao v. Air Vice-Marshal Mahinder Singh Rao & Ors., (2013) 9 SCC 425, where the testatrix had bequeathed property in excess to her share and this Court held that the bequest has to be treated only to the extent of the share held by the testatrix.]
  • The testatrix never had any right over the property belonging to the appellant and could not have conveyed to the respondent No.1 any property which was of the ownership of the appellant or which might be acquired or raised by the appellant in future by her own funds. On this ground alone, the Will in question is required to be considered void as per Section 89 of the Succession Act, when the principal bequeathing stipulation in the Will suffers from uncertainty to the hilt.”

S.27 of the Sale of Goods Act Incorporates this Rule

S.27 Sale of Goods Act reads as under:

  • “Sale by person not the owner.- Subject to the provisions of this Act and of any other law for the time being in force, where goods are sold by a person who is not the owner thereof and who does not sell them under the authority or with the consent of the owner the buyer, acquires no better title to the goods than the seller had, unless the owner of the goods is by his conduct precluded from denying the seller’s authority to sell;
  • Provided that where a mercantile agent is, with the consent of the owner, in possession of the goods or of a document of title to the goods, any sale made by him, when acting in the ordinary course of business of a mercantile agent, shall be as valid as if he were expressly authorised by the owner of the goods to make the same.
  • Provided that the buyer acts in the good faith and has not at the time of the contract of sale notice that the seller has no authority to sell.”

The Kerala High Court observed in Vishnu & Co.  v. Abdulkhadar Haji, 1990-1 KLJ 358; 1990-1 KLT 519, as under:

  • S. 27 of the Sale of Goods Act incorporates partially the general rule of English law that no one can transfer a better title to goods than he himself possesses. This rule is often expressed in terms of the Latin maxim “Nemo dat quod non babet”.
  • The principle underlying the Section is that prima facie the right of the legal owner should be protected unless he has done something to induce innocent purchasers or pledgees to believe that the immediate possessor of the goods is the true owner.
  • Two exceptions to the strict general rule are provided in the above Section itself. Some others are contained in S.28 to 30 and 54 of the Act itself. S.27 itself makes the rule subject to other exceptions provided by other laws. By providing exceptions to the general rule which protects the true owner absolutely, the law had tried to make provision to protect cases where goods are sold by persons who are not really entitled to sell them. This is an attempt to strike a balance between competing claims put forward by the true owners on the one hand and the bona fide purchaser on the other hand. This is required in the interest of trade and commerce. Thus, under the Indian Law, a purchaser from a seller who has no title or authority to sell the goods can get a valid title to goods only in case he establishes that he comes under one or the other exceptions provided by law as indicated above. The exception relevant for the purpose of this case is the first exception provided in S.27 itself. To bring the case within the first exception to S.27 a person has to establish that he is a bona fide purchaser for value without notice of any defect in title and for that he has to prove that he had purchased the goods after proper enquiry into the right of the person in possession to make the sale. So, an honest purchase made carelessly without making proper enquiries cannot be said to have been made in good faith to convey good title capable of defeating the title of the true owner. Again a bona fide purchaser for value without notice should further show that the true owner is in the circumstances of the case “precluded from denying the seller’s authority to sell”.
  • This exception is based on the principle of estoppel. Such an estoppel may arise either (I) by reason of a representation made by the true owner that the seller is the owner of the goods or (II) by negligence on the part of the true owner which enables the seller to create an appearance of ownership. Where negligence is relied upon as raising estoppel, it is necessary to show that the true owner owed the buyer a duty to be careful, that in breach of that duty the true owner was negligent and that this negligence was the proximate or real cause of the buyer being induced to part with the purchase price of the goods to the seller. Mere carelessness on the part of the owner to guard his goods does not however create an estoppel. Mere delivery by the true owner to another person of the possession of the goods or documents of title to goods does not estop him from asserting his title as against one who has purchased the goods from that person. A reference to a few passages from Benjamin’s Sale of Goods, Second Edn. at pages 465 and 470 would show that these principles are well settled principles governing acquisition of title by estoppel:
    • “Where the true owner of goods, by words or conduct, represents or permits it to be represented that another person is the owner of the goods, any sale of the goods by that person is as valid against the true owner as if the seller were actually the owner thereof, with respect to any one buying the goods in reliance on the representation. Although the representation may be by words or conduct, it must be clear and unequivocal. It is therefore well established that the mere parting with possession of goods is not conduct which estops the true owner from setting up his title. Parting with possession alone is not a representation of ownership, even if the person receiving the goods has the authority of the true owner to deliver them to third parties. If the rule were otherwise, any bailor would be estopped from denying his bailee’s right to sell the goods, and there would be no necessity at all for the Factors Acts. There must be something more. The true owner must have so acted as to mislead the buyer into the belief that the seller was entitled to sell the goods”
    • “The circumstances in which negligence on the part of the true owner can raise such an estoppel are narrowly circumscribed. It is necessary for the buyer to show, first that the true owner owed him a duty to be careful; secondly, that in breach of that duty the true owner was negligent; and, thirdly that this negligence was the proximate or real cause of the buyer being induced to part with the purchase price of the goods to the seller.”
  • That these are the principles applicable in cases where title is claimed by a bona fide purchaser for value without notice relying upon the principle of title by estoppel, can be seen from important decisions rendered by both English and Indian Courts. Thus in the decision reported in Central Newbury etc. Ltd. v. Unity Finance, (1956) 3 A11.E.R. 905 while dealing with a claim based on title by estoppel two of the three learned Judges Lord Justice Hodson and Morris Q. observed thus:
    • “Hodson, L.J: by delivering the car registration book, as well as the car itself, to C the plaintiffs had not given him the means of appearing to be the owner or of having apparent authority to sell the car, since the registration book was not a document of title to the car, and since delivery of the car without more would not have amounted to giving C. apparent authority to sell it; and therefore the plaintiffs, who were the true owners of the car, were not estopped from denying the title of the third parties to sell the car to the first defendants, and were entitled to recover damages for its conversion.
    • Per Morris, L.J.: it cannot be assumed that the person in possession of a car and its registration book is the owner of the car. The absence of a registration book when a car is being sold will naturally give rise to much inquiry. The existence of one in the hands of a seller does not remove all occasion for inquiry and does not prove legal ownership.”
  • Denning L.J. who dissented from the majority view upheld the claim of the bona fide purchase in a very forceful judgment in the following manner:
    • “It is said, however, that the original owner owed no duty to the innocent purchaser. I do not agree. When the original owner handed over the car and log-book to a complete stranger, intending to part with the property in them, he ought to have foreseen the possibility that the stranger might try to dispose of them for his own benefit to someone or other. That is what does happen when you hand over goods to a stranger reserving no right to yourself. The original owner owed a duty to any person to whom the stranger might try to dispose of them. The case comes within the words of Lord Wright in Mercantile Bank of India Ltd. v. Central Bank of India Ltd. (4) (1938) 1 All E.R. at p.62): ‘The duty may be, in the words of Blackburn, J., ‘to the general public of whom the person is one’ His identity may be ascertainable only by the event, in the sense that he had turned out to be the member of the general public actually reached and affected by the conduct, negligence, representation or ostensible authority”.
  • In the decision reported in Moorgate Mercantile Co. Ltd. v. Twitchings (1977) A.C.890 it was again held by the House of Lords that in the case of motor vehicles, delivery to another of possession of the vehicle with the vehicle registration book (or registration certificates) does not constitute a representation that the bailee has authority to sell the vehicle. It is interesting to note that the said decision was also a majority decision and two of the law Lords dissented from the majority and upheld the claim of the bona fide purchaser.”

If Formal-Defective-Title Conferred, Nemo dat quod non habet may Not Apply

In the case of a defect in the vendor’s title, the common law rule, is that no person can give a better title than he had — nemo dat quod non habet. But, there are accepted exceptions to this rule apart from a bona fide purchaser for value without notice of the prior right of third parties. If the vendor’s title had an indefeasible title, but with some formal defects, it cannot harm the bonafide purchaser. This principle is laid down in Section 43, 44, etc. of the TP Act.

In a case where the vendor’s title is good but the document is defective, it can be got cured by the transferee — see Gibbs v. Messer [1891] AC 248.

Transfer of a Motor Vehicle

The Kerala High Court continued in Vishnu & Co.  v. Abdulkhadar Haji, 1990-1 KLJ 358; 1990-1 KLT 519, as under:

  •        “26. Further it is necessary to refer to some of the relevant provisions of the Motor Vehicles Act, 1939 (Act IV of 1939) and to understand the exact scope and effect of the registration of the vehicles under the said Act and the nature and implications of the certificate of registration issued under the Act. S.24(2) provides that the registering authority shall issue the owner of a motor vehicle registered by it in accordance with S.21 and 22 of the Motor Vehicles Act; a certificate of registration in the prescribed form. It has been further provided in S.31 of the said Act that whenever a transfer of ownership takes place the transferor as well as the transferee are bound to inform the registering authority of such transfer of ownership and on complying with the requirements of that Section the registering authority shall register the transfer reported to it. Provision is also made as to what should be done when the transfer is omitted to be reported by the transferor and transferee. Relevant portions of S.31 are in the following terms:
  •        “Transfer of ownership. (1) Where the ownership of any motor vehicle registered under this Chapter is transferred,
  •        (a) the transfer-or shall
  •        (i) within fourteen days of the transfer, report the fact of transfer to the registering authority within whose jurisdiction the transfer is to be effected and shall simultaneously send a copy of the said report to the transferee;
  •        (ii) within forty-five days of the transfer, forward to the registering authority referred to in sub-clause (i) –
  •        (A) a no objection certificate obtained under S.29-A;
  •        (B) in a case where no such certificate has been obtained,-
  •        (I) a receipt obtained under sub-section (2) of S.29-A; or
  •        (II) a postal acknowledgment received by the transferor if he has sent an application in this behalf by registered post acknowledgment due to the registering authority referred to in S.29-A, together with a declaration that he has not received any communication from such authority refusing to grant such certificate or requiring him to comply with any direction subject to which such certificate may be granted;
  •        (b) the transferee shall, within thirty days of the transfer, report the transfer to the registering authority within whose jurisdiction he resides, and shall forward the certificate of registration to that registering authority together with the prescribed fee and a copy of the report received by him from the transferor in order that particulars of the transfer of ownership may be entered in the certificate of registration.
  •        (1-A)
  •        (1-B)
  •        (1-C)
  •        (2) A registering authority other than the original registering authority making any such entry shall communicate the transfer of ownership to the original registering authority.”
  •        27. From the above provisions it is evident that registering of the transfer of ownership is an act to be done by the statutory registering authority on the basis of the actual transfer of ownership already effected. It is only a record of the fact of change of ownership or title to a motor vehicle and cannot be equated to an act necessary for transfer of ownership or title. Under S.31 the statutory authority is bound to record what has been intimated to it and the authority has no option to refuse registration if the requirements of the Section are complied with. That this is the legal position can be seen from the decision reported in Santakumari v. R.T.O., Kozhikode, 1975 K.L.T. 580 wherein it has been observed as follows:
    •        “From this it is clear that once the transferee reports the fact of transfer within 30 days to the registering authority and certificate of registration is also submitted in order that particulars of the transfer of ownership may be entered in the certificate of registration together with the prescribed fee and a copy of the report received by him from the transferor, and the transferor also makes a report of the transfer to the registering authority, the registering authority has no option but to make the necessary entries in the registration certificate.”
  •        The following observation in the decision reported in P.K. Panda v. Premalata Choudhury, AIR 1980 Orissa 102 is also worth noting in this connection:
    •        “There is no provision of law that the registration of a motor vehicle with the registering authority is a sine qua non for transfer of ownership or that transfer without registration would be void or ineffective. The provisions of S.22, 24 and 31 contemplate a completed transfer of ownership of a motor vehicle. The provisions of the Act regarding registration of vehicles have nothing to do with ownership. They only provide for regulation of the use of the motor vehicles in public places. The certificate of registration issued under S.24(2) of the Act is not a document of title, but it is a piece of evidence to show the owner of the vehicle

Exception to this Rule – Negotiable Instruments

In State Bank of India v. Rajendra Kumar Singh, AIR 1969 SC 401, it is observed as under:

  • “The property in coins and currency notes passes by mere delivery and it is the clearest exception to the rule Nemo dat quod non habat. This exception was engrafted in the interest of commercial necessity. But the exception only applies if the transferee of the coin. or currency notes takes in good faith for value and without notice of a defect in the title of the transferor. The rule is stated by Wills J. in Whistler v. Forster as follows :
    • `The general rule of law is undoubted, that no one can transfer a better title than he himself possesses: Nemo dat quod non habat. To this there ,are some exceptions; one of which arises out of the rule of the law merchant as to negotiable instruments. These, being part of the currency, are subject to. the same rule as money: and if such an instrument be transferred in good faith, for value, before it is overdue, it becomes available in the hands of the holder, notwithstanding fraud which would render it unavailable in the hands of a previous holder.`

Transfer in Good Faith for Value: Exception to the Rule – Nemo dat quod non habet

It is applied if the following conditions are also satisfied –

  • No misrepresentation or fraud, which would render the transactions as void,
  • the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer the said land, and
  • the parties have acted in good faith.

Read the Article: Bona Fide Purchaser for Value Deserves Stronger Equity than a Prior Contract Holder

In V.  Chandrasekaran v. Administrative Officer, 2012 12 SCC 133, it is laid down as under:

  • “23. The general rule of law is undoubted, that no one can transfer a better title than he himself possesses; Nemo dat quod non habet.
  • However, this Rule has certain exceptions and one of them is, that the transfer must be in good faith for value, and there must be no misrepresentation or fraud, which would render the transactions as void and also that the property is purchased after taking reasonable care to ascertain that the transferee has the requisite power to transfer the said land, and finally that, the parties have acted in good faith, as is required under Section 41 of the Transfer of Property Act, 1882. (Vide: Asa Ram & Anr. v. Mst. Ram Kali & Anr., AIR 1958 SC 183; State Bank of India v. Rajendra Kumar Singh & Ors., AIR 1969 SC 401, Controller of Estate Duty, Lucknow v. Aloke Mitra, AIR 1981 SC 102; Hanumant Kumar Talesara v. Mohal Lal, AIR 1988 SC 299; and State of Punjab v. Surjit Kaur (Dead) through LRs., JT (2001) 10 SC 42).”

Bill of Lading and a Negotiable Instrument

In Morvi Bank v. Union of India, 1965 (3) SCR 254, it was observed as under:

  • “The law on the subject, as we conceive it may be stated thus: An owner of goods can make valid pledge of them by transferring the railway receipt representing the said goods. The general rule is expressed by the maxim nemo dat quod non habet, i.e., no one can convey a better title than what he had. To this maxim, to facilitate mercantile transactions, the Indian law has grafted some exceptions, in favour of bona fide pledgees by transfer of documents of title from persons, whether owners of goods or their mercantile agents who do not possess the full bundle of rights of ownership at the time the pledges are made. To confer a right to effect a valid pledge by transfer of documents of title relating to goods on owners of the goods with defects in title and mercantile agents and to deny it to the full owners thereof is to introduce an incongruity into the act by construction. On the other hand, the real intention of the legislature will be carried out if the said right is conceded to the full owner of goods and extended by construction to owners with defects in title or their mercantile agents.” (Quoted in: Union of India VS Federal Bank, ILR 1982-1 Ker 561)

In Law and Practice of Banking by Milnes Holden observed at page 269 as under:

  • “The Act did not make bills of lading negotiable instruments. The essential characteristics of a negotiable instrument are (i) the property therein is capable of being transferred by delivery (either with or without endorsement according as to whether the instrument is in favour of order or bearer), (ii) a bona fide transferee for value obtains a title free from equities, and (iii) the holder can sue on the instrument in his own name. The second characteristic implies that a transferee who gives value in good faith may be able to obtain a better title then his transferor had for example, a bona fide transferee for value of a bill of exchange can obtain a good title from a thief. It is this quality that is lacking in the case of a bill of lading. A transferee takes it subject to any defects in the title of prior parties.” (Quoted in: Union of India VS Federal Bank, ILR 1982-1 Ker 561)

What is said of bills of lading applies to a railway receipt also. Anson in the Law of Contract, 24th Edition at page 448 expresses as under:

  • “But a bill of lading differs from the negotiable instrument with which we have just been dealing: In the first place, its endorsement transfers a remedy in rem, the right to claim specific goods, whereas a negotiable instrument confers only a remedy in personam, the right to be paid a certain sum money.. ….
  • A bill of lading, then, is a contract assignable without notice; it so far resembles a conveyance that it gives a title to property, but it cannot give a better title, whether proprietary or contractual, than is possessed by the consignee.” (Quoted in: Union of India VS Federal Bank, ILR 1982-1 Ker 561)

In Union of India v. Federal Bank, ILR 1982-1 Ker 561, it was observed as under:

  • “An endorsee of a document of title (which a railway receipt is – see S.137 of the Transfer of Property Act) does not confer on a transferee better rights than a transferor and even if he might have taken the transfer bona fide for value he cannot claim rights which his transferor did not have. Therefore, if in this case we find that the goods had not been booked and the railway receipts therefore are really not documents of title transferring property or operating as pledges of the property, merely because the Bank took the receipts on payment of value and without knowing the real facts the Bank may not be entitled to a decree. So, the crucial question in this case is whether the railway receipts have been issued without receiving the goods for consignment.
  • 12. In the circumstances of the case the consideration of the question of burden of proof becomes relevant. In this case on whom does the burden lie to show that goods had not been received by the railway administration notwithstanding the admitted issue of railway receipts? The learned counsel Sri Shenoi does not seriously contend that despite the issue of the railway receipts the burden is on the plaintiff. But he submits that such burden on the Railway authorities has been discharged by the evidence in the case. The railway receipt, as we have already indicated, is evidence, so far as third parties are concerned, of entrustment of goods at the stations mentioned therein for the purpose of consigning them. It contains an admission of the receipt of the goods by the railway. An admission is not conclusive evidence. It is open to the party to prove that notwithstanding the admission the facts are otherwise. But in the face of such admission the burden would necessarily be on the railway administration to show that the goods were not received. The court below seems to have made the same approach.”

Sale by some Sharers in Partition Suits & nemo dat quod non habet

Our Apex Court held in Dhanalakshmi v. P. Mohan, 2007-10 SCC 719, that purchasers of undivided shares of the coparceners were entitled to come on record in preliminary decree proceedings so that they may claim an equitable set off in the final decree proceedings as regards their purchase transaction. Hence, the plaintiffs’ omission to array purchasers of undivided share prior to institution of the suit necessitates reconsideration of the matter after affording an opportunity to the purchasers.

The Supreme Court in T. Ravi v. B. Chinna Narasimha, 2017- 7 SCC 342, dealt with a similar situation as under:

  • “Purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and it cannot be reopened and whatever equity could have been claimed in the final decree proceedings to the extent of the vendor’s share has already been extended to the purchasers.”

In Sardar Surjeet Singh v. Juguna Bai, 2018-1 ICC 591; 2017-4 RCR(Civ) 695 (SC), it is observed as under:

  • “Thus the determination of shares as per preliminary decree has attained finality, shares of the parties had been crystalised in each and every property. Purchaser pendente lite is bound by the preliminary decree with respect to the shares so determined and it cannot be re-opened and whatever equity could have been claimed in the final decree proceedings to the extent of vendor’s share has already been extended to the purchasers.”

In Marirudraiah v. B. Sarojamma, 2009-12 SCC 710 also ou Apex Court accepted the direction (of the High Court) to the trial court to work out the equity in favour of the purchasers and compensate the plaintiffs and other sharers who are not parties to the sale deed.

In S.  Sugunamma v B.  Padmamma, 2017-5 ALD 403; 2017-4 ALT 757, the Andhra High Court followed the general principle adopted by our courts. It reads as under:

  • “35. Therefore, in fine, the appellant is entitled to a preliminary decree for partition and separate possession of her one-fifth share in the suit schedule properties. It may be open to the alienees to seek the allotment of the properties purchased by them to the share of the 1st defendant in the final decree proceedings.”

Karnataka High Court in Nagarathnamma v.  B.  Rudriah, 2012 4 AIR Kar R 424; ILR 2012  (Kar) 4129, in a suit for partition directed the plaintiffs to implead the alinees (of some sharers) in the final decr

This equity principle is consistently followed by the courts in India. See:

  • Narayana Naicker v. Kannusamy Naicker, 2019 3 LW 19,
  • Domegunta Venkatasesha Reddy v. Gowramma, 2019-2 AIR Kar R 401; ILR 2019  (Kar).

By Proving a Deed, Title of the Executing Person is Not Automatically Confirmed

The Supreme Court held in Kizhakke Vattakandiyil Madhavan v. Thiyyurkunnath Meethal Janaki (Aniruddha Bose & Sudhanshu DhuliaJJ.) 9.4.2024, also held as under:

  • “18. … It would be trite to repeat that even if subsistence of a deed is proved in evidence, the title of the executing person (in this case Chiruthey) does not automatically stand confirmed. ….. Chiruthey could not convey any property over which she did not have any right or title. Her right, if any, would stem from the second deed of lease (Exhibit A-1, Verumpattam Kuzhikkanam dt.14th July 1910). We are conscious of the fact that no claim was made before any forum for invalidating the deed dated 14th July 1910 .… But in absence of proper title over the subject property, that lease deed even if she was its sole lessor would not have had been legally valid or enforceable. If right, title or interest in certain property is sought conveyed by a person by an instrument who herself does not possess any such form of entitlement on the subject being conveyed, even with a subsisting deed of conveyance on such property, the grantee on her successors-in-interest will not have legal right to enforce the right the latter may have derived from such an instrument.”

Registration of Title deed Insignificant, If inherent Defect in Title

The inherent defects in the title of a party to a suit will not stand cured by the existence of a lawfully registered sale deed (P.  Kishore Kumar v. Vittal K.  Patkar, 2023  INSC 1009; 2023 14 SCR 796). The title of the executant does not automatically stand confirmed, even if the subsistence of a deed is proved. It is also a trite law that if the vendor had no pre-existing rights, a document could not convey any interest (Neelakantan Damodaran Namboothiri v. Velayudhan Pillai Narayana Pillai, AIR 1958 SC 832; K. Vattakandiyil Madhavan v. Janaki, 2024(2) KLT 789 (SC).

If the vendors had ex facie no ownership rights (under any prior document) to convey the same to the transferee, the doctrine Nemo Dat Qod Non Habet applies (Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209; Rusoday Securities v. National St. Exchange 2021-3 SCC 4017; Umadevi Nambiar v. Thamarasseri Diocese, AIR 2022 SC 1640; P. Kishore Kumar v. Vittal K Patkar, 2024-1 CTC 547; Chandra Gopiv. U. K. Gopalakrishnan, 2013-1 KHC 174, Sarojini v. Santha Trading Co., 1969 KLT 412).

No Rule Against Perpetuity in Public Law;

The Government cannot assign land on their whims and fancies

Section 11 of the TP Act says – where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.

But, in Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978, it is held as under:

  • “6. In private law, any restriction repugnant to the interest created is void except to the extent of securing the beneficial enjoyment of another piece of property belonged to the transferor. (See Section 11 of Transfer of Property Act, 1882). The transferee, therefore, in such cases is free to enjoy property absolutely as if there were no stipulations.
  • 7. In public law, the transfer of an interest or assignment of Government land stands on a different footing. The Government is only a public trustee of the land belonging to the State. The Government cannot assign land on their whims and fancies. The land is a natural resource of utmost importance. Therefore, the Government can distribute the natural resources only adhering to the principles of public trust. No land can be assigned ignoring the public interest and detrimental to the public interest.
  • 8. The subsequent incorporation of Rule 8(3) of the Rules for cancellation of patta cannot be relied upon in this matter as the assignment was prior to the amendment. In the absence of any specific condition for cancellation of assignment in the patta or in the statutory provisions at the relevant time, this Court needs to examine the decision taken to cancel the assignment in the light of the public trust doctrine.
  • 9. In Illinois Cent Co. v. State of Illinois City of Chicago [146 US 387 (1892)], principles relating to public trust doctrine were expounded. It is appropriate to refer the opinion in that judgment which reads as follows:
    • ‘The trust devolving upon the state for the public, and which can only be discharged by the management and control of property in which the public has an interest, cannot be relinquished by a transfer of the property. The control of the state for the purposes of the trust can never be lost, except as to such parcels as are used in promoting the interests of the public therein’.
  • 10. In M.C.Mehta v. Kamal Nath and others [(1997) 1 SCC 388], the Apex Court observed that the State is the natural trustees of all resources, which are by nature meant for public use and enjoyment, and the State is a trustee under a legal duty to protect the natural resources.
  • 11. In Fomento Resorts & Hotels Ltd. v. Minguel Martins, (2009) 3 SCC 571], the Apex Court held as follows:
    • “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….”
  • 12. Reliance Natural Resources Ltd. v. Reliance Industries Ltd., (2010) 7 SCC 1] at para.114 it was observed as follows:
    • “114. It must be noted that the constitutional mandate is that the natural resources belong to the people of this country. The nature of the word “vest” must be seen in the context of the public trust doctrine (PTD). Even though this doctrine has been applied in cases dealing with environmental jurisprudence, it has its broader application.”
  • 13. In the Centre for Public Interest Litigation v. Union of India, (2012) 3 SCC 1] at para.75, it was held as follows:
    • “75. The State is empowered to distribute natural resources. However, as they constitute public property/national asset, while distributing natural resources the State is bound to act in consonance with the principles of equality and public trust and ensure that no action is taken which may be detrimental to public interest. Like any other State action, constitutionalism must be reflected at every stage of the distribution of natural resources. In Article 39(b) of the Constitution it has been provided that the ownership and control of the material resources of the community should be so distributed so as to best subserve the common good, but no comprehensive legislation has been enacted to generally define natural resources and a framework for their protection. Of course, environment laws enacted by Parliament and State Legislatures deal with specific natural resources i.e. forest, air, water, coastal zones, etc.””
  • Note: Appeal to Division Bench (from Mahindra Holidays & Resorts India Limited v. State of Kerala) is dismissed in Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679.

Original Patta for Personal Cultivation; Assignee cannot have a Better Title

In Mahindra Holidays & Resorts India Limited v. State of Kerala, 2019-2 ILR(Ker) 828; 2019 3 KHC 233; 2019-2 KLT 978 (A. Muhamed Mustaque, J.), it is held further as under:

  • “17. Admittedly, the present use of land is for commercial purposes. It is for personal gain and to subserve the private interest. Commercial purpose is not one on which the land can be assigned. The Government being a trustee is answerable to the public. The public can question if the Government had failed in its duties when it is found that the land is used for other purposes other than for it was assigned. The beneficiary of cultivation is public. That interest of the public is superadded in such assignment. Thus, even in the absence of statutory provisions or conditions in the patta, anyone can question such use of land for commercial purposes.
  • 18. This Court, in fact, had considered use of land for commercial purposes by the assignee of a patta holder, who was assigned land for personal cultivation in Haridas v. State of Kerala [2016 (4) KLT 707] and held that the assignee of original pattadhar cannot have any better claim conferred on him other than the one conveyed to the pattadhar by the assignment. The use of land for commercial purposes is a fraud on the State. The pattadhar or his assignee has a legal obligation to use the land for cultivation.
  • 19. The learned Senior Counsel argued that the Government authorities have issued certificates to run the resort and, therefore, they are estopped from urging that the petitioner had violated the patta conditions. It was also argued that the Government have waived their right to proceed against the petitioner by acknowledging the acceptance of basic tax and conferring certificates relating to tourism.      
  • 20. The equitable principles relating to estoppel and waiver cannot have a bearing when the Government is acting as a trustee. This action to protect the interest of the State. No wrong can give rise to a right. The land belongs to the State. If the Government had failed in its duty to check illegal use of land that will not give rise to an equitable right to a wrongdoer. The principles of estoppel cannot be advanced to promote one’s own wrong. This is not a case between the Government and the holder of the land. It is a matter between public interest and breach of trust by a person, who was in relation with the Government to promote the public interest. The principles of estoppel and waiver cannot be pressed against an action of the Government based on public policy. No action of the Government would bind them if it was against the public policy of the State.”

If Land Assigned for Specific Purposes, it Cannot be used for Other Purposes

Kerala High Court, in Haridas v. State of Kerala, 2016 (5) KHC 615 (K. Vinodchandran, J.), had taken a view that when land is assigned for specific purposes, it cannot be said that if there is no prohibition in using it for any other purpose then, an assignee or a subsequent owner could use it for any purpose to which a land is normally put to. Among others, it was further observed therein that the essence is in the assignment made, for a specific purpose, which survives time and tide. (Referred to in: Raphy John v. Land Revenue Commissioner, Thiruvananthapuram (DB), 2022-3 KLT 679).

Subsequent Assignees of Pattaadar Cannot Claim More Rights

In R.  Haridas v. State of Kerala, 2016-5 KHC 615; 2016-4 KLT 707, held further as under:

  • “8. … The title acquired of the property, which, admittedly, were Government lands assigned under a statute. The petitioners are assignees of the original pattaadar and cannot have any rights over and above that possessed by the original assignee.
  • 9. The Assignment Rules, by Rule 4, as has been pointed out by the learned Additional Advocate General, has three specific purposes; for which alone land may be assigned. These are – personal cultivation, house-sites and beneficial enjoyment of adjoining registered holdings. ….  The original assignment made, as evidenced by Exhibit P2 in both the writ petitions, admittedly, is not for house-site or for beneficial enjoyment. Such an extent could have been assigned only under Rule 5 for the purpose of personal cultivation. The assignment having been specifically made under a statute and the Rules framed thereunder, none can have a legitimate expectation of enjoyment of the property over and above the purpose for which the same has been assigned.
  • 10. The subsequent assignees of the original pattaadar cannot claim any right other than that conferred on the original assignee, which Assignment on Registry was specifically for the purpose of personal cultivation. …. The prohibition has to be read into the terms of assessment when by virtue of a statutory provision the assignment is made for a specific purpose. The passage of time would not change the character of the assignment ….. . These conditions are also incorporated as ‘Conditions’ in the Patta and the respective Pattas produced are incomplete copies as will be presently noticed.
  • 13. …  It is a matter of concern and quiet a surprise that the revenue authorities in the district have been issuing recommendations like Exhibit P6; for carrying out construction activities without noticing the embargo created insofar as the constructions intended at promoting commercial activity.
  • 14. … The prescription for a permit to be obtained from the local authority is only so far as complying with any master plan for development applicable to the area and compliance of the building rules applicable to the panchayats and municipalities, as brought out under the respective statutes. This cannot create a carte blanche in favour of a permit holder to make a construction in an assigned land which would go specifically against the prescriptions laid down in the statute for such assignment. ….
  • 16. …. Hence any time it is found that the purpose for assignment is diverted from, the State could definitely take proceedings for cancellation of the assignment and either vest the lands back with the Government or assign it to others for the purpose of cultivation.
  • 17. … The assignee would have a right to hold the land and enjoy it under the terms of assignment and any violation thereat would be a reason for cancellation of the assignment made. …
  •  20. … The Revenue authorities, a law unto themselves, have been violating the provisions and colluding with the assignees causing gross damage to the ecology and environment. Be that as it may; the petitioners herein were quite aware of the conditions of assignment; though their ignorance, if at all, would have been of little consequence in the teeth of the statutory prescriptions. ….

21. In any event the loss caused to the petitioners would be of no consequence when weighed with the larger public interest of averting ecological imbalance and preserving pristine lands from haphazard development; which otherwise as studies reveal; would even affect the climate of the Indian peninsula. …”

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Book No. 4: Common Law of TRUSTS in India

Does a Cheque-Case under NI Act Lie Against a Trust?

Saji Koduvath, Advocate, Kottayam.

“Prana Educational and Charitable Trust” is overruled by the Supreme Court, in Sankar Padam Thapa  v. Vijaykumar Dineshchandra Agarwal (Ahsanuddin Amanullah, Prashant Kumar Mishra, JJ), 2025 INSC 1210 (October 09, 2025).
Read: Sankar Padam Thapa  v. Vijaykumar Dineshchandra Agarwal: Landmark Decision on Trust – A Trust Cannot Be Made as a Party to a Litigation

Read Also:

Abstract

1. A ‘trust’ is an obligation.
                •➧ It is not a legal entity.
                •➧ It cannot be an association of persons, also.
                •➧ The properties of the Trusts vest in the trustees.
By virtue of Sec. 5, TP Act property can be transferred to Trusts.
No such enabling provision to file Cheque-Cases, against Trusts, in NI Act.

2. Sec. 141 of the NI Act, says as to “Offences by Companies”.
                 •➧  In Explanation (a) to this section, it is stated as under:  
                 •➧ “ ‘Company’ means any body corporate and includes a firm
                  or other association of individuals.”
                •➧  A ‘firm’, in law, is a collection of partners;
                   and it is a compendious name for all the partners.
                •➧  But, Trust will not fall in “any body corporate and includes a firm
                  or other association of individuals.”.
Therefore, Cheque-Cases under Sec. 138, NI Act will not lie against Trusts. 

What is Trust, in Law?

Sec. 3 of the Indian Trusts Act, 1882 defines trust as under:

  • “Trust: 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.”

From the definition it is clear that ‘Trust’, in law, holds the following conceptions:

  • Trust is ‘an obligation’ upon the trustee.
  • It is to administer the endowed property.
  • The administration must be done by the trustee as if he is the owner of the trust property.
  • It must be done by him accepting the intents desired by the author.
  • And, the same must be for the benefit of the beneficiaries.

It is clear that the word ‘trust’ is used in law as an ‘abstract countable noun’, similar to ‘a concept’, ‘an idea’ or ‘a duty’.

‘A Trust’ is “An Obligation” and Not a Legal Entity

From the above, it is clear that, legally, a ‘trust’ –

  • (i)   cannot be a juristic person;
  • (ii) cannot be an association of persons; and
  • (iii) cannot be a tangible endowment or a corporeal property.

In Surya Kant Chunilal v. Mahesh Chand, AIR 1972 Del. 72 it is held as under:

  • “Further defendant No. 2 (Trust) is not a registered body or a juristic person. The properties of the Trust vest in the trustees.”

In Kansara Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmadabad,  AIR 1968 Guj 184, it is observed by the Gujarat High Court as under:

  • “The ‘trust property’ is nothing but the subject matter of the trust; that is, a property which is impressed with the obligation giving rise to a trust. When we speak of a trust, we speak merely of the requisite obligation which is annexed to the ownership of a property. This obligation is not a legal entity in any sense; as for example, the trust cannot own any property the property is owned by the trustee who is an entity by himself different from the trust, a trust cannot sue and a trust cannot be sued; it is only a trustee who can sue and who can be sued. It is only a trustee who can hold properties. A ‘trust’ cannot be a landlord since the trust properties vest in the legal ownership of the trustees. It is the trustee alone who can be a landlord. Since the trust is not a legal entity, no question of hardship suffered by the trust or accommodation required by the trust can arise for consideration.” (See also: Ramabai Govind v. Raghunath Vasudevo: AIR 1952 Bom 106).

Order 31 rule 1 CPC

Order 31 rule 1 of the Code of Civil Procedure spells out – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.

In Government of the Province of Bombay v. Pestonji Ardeshir Wadia, AIR 1949 PC  143, the Privy Council held as under:

  • “The trust is not the plaintiff, and there is no power under the Code for trustees to sue in the name of their trust, as members of a firm may sue in the name of the firm. The plaintiffs were, and were bound to be, the three trustees, and, as no notice was given specifying their names and addresses, the condition precedent to the filing of the suit was not fulfilled”.

The view taken by the Privy Council was accepted by our Apex Court in Ghanshyam Dass v. Dominion of India, AIR 1984 SC 1004, Penner JE, the Professor of Law at King’s College, London, in his Book, The Law of Trusts, has commented as under:

  • “The trust itself has no legal personality like a company, on behalf of which agents of the company make contracts which bind the company as a legal person itself. Having no legal personality, one cannot sue the trust itself for breach of contract; one sues the trustee for his own breach of contract, even though the breach was of contractual obligation he undertook to benefit the trust.”

Relying the Privy Council and Penner J E, the Kerala High Court held in KR Rajan v. Cherian K. Cherian, 2019-5 KHC 661; 2019-4 Ker LJ 981; 2019-4 Ker LT 1056, as under:

  • “Trust not being a legal person, and the Code of Civil Procedure not providing any enabling provision for the Trust to sue or for being sued in its name, there is no merit in the contention that the Trust is to be arrayed as an eo-nominee party. The arraying of the trust in its own name is otiose or redundant. It is the trustees who are to be impleaded to represent the trust.”

In M. V. Muthuramalingam v. D. Narayanaswamy, 1995-83 CC 77 it is held by the Madras High Court as under:

  • “Unlike a company registered under the Indian Companies Act, the trust is not a juristic person having a separate legal entity. It can act only through its trustees. So, when the petitioner came to issue the impugned cheques and that has resulted in his committing an offence under section 138 Of the Negotiable Instruments Act, he is liable to be proceeded against.”

The Madras High Court has held in Kishorelal Asera v. Haji Essa Abba Sait Endowments, 2003-3 Mad LW 372: 2003-3 CCC 367, and in Thiagesar Dharma Vanikam v.  CIT, AIR 1964 Mad 483; 1963- 50 ITR 798, that a trust not being a legal person is not entitled to sue in its own name (Referred to in: Thanthi Trust v. Wealth Tax Officer: 1989-78 CTR 54: 1989- 45 TAXMAN 121: 1989-178  ITR 28).

The Gujarat High Court has also held in Kansara Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmedabad,  AIR 1968 Guj 184, that ‘the trust is not a legal entity’ (See also: Ramabai Govind v. Raghunath Vasudevo, AIR 1952 Bom 106).

Following decisions do not present correct law (It is clear from the above)

(i) Pratheesh V v. State of Kerala, 2017-2 Ker HC 977. It is observed as under:

  • “It is the settled position of law that a registered trust is a legal entity and juristic person entitled to hold property by itself.”

(ii) Lal Chandra Jain v. Suparasdas Jain, 2016-11 All DJ 615. It is observed –

  • “It is also not in dispute that a registered Trust is a legal person/juristic person and can be sued or can sue in its own name, through the person responsible to manage it.”

Legal Persons, Arbitrary Creations of the Law

Salmond on Jurisprudence,  12th Edn., Page 305, reads:

  • “A legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality beyond the class of human beings is one of the most noteworthy feats of the legal imagination.”

Salmond reads further:

  • “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases. Those which are actually recognised by our own system, however, are of comparatively few types. Corporations are undoubtedly legal persons, and the better view is that registered trade unions and friendly societies are also legal persons though not verbally regarded as corporations. If, however, we take account of other systems than our own, we find that the conception of legal personality is not so limited in its application, and that there are several distinct varieties, of which three may be selected for special mention.
  • 1. The first class of legal persons consists of corporations, as already defined, namely, those which are constituted by the personification of groups or series of individuals. The individuals who thus form the corpus of the legal person are termed its members.
  • 2. The second class is that in which the corpus, or object selected for personification, is not a group or series of persons, but an institution. The law may, if it pleases, regard a church or a hospital, or a university, or a library, as a person. That is to say, it may attribute personality, not to any group of persons connected with the institution, but to the institution itself.
  • 3. The third kind of legal person is that in which the corpus is some fund or estate devoted to special uses a charitable fund, for example or a trust estate.”(Quoted in: Shriomani Gurudwara v. Shri Som Nath: AIR 2000 SC 1421).

In Manohar Ganesh v. Lakshmiram, (1888) ILR 12 Bom 247, the Division Bench of the Bombay High Court set out the rationale for and the process by which legal personality is conferred on a Hindu idol. Justice West observed:

  • “The Hindu law, like the Roman law and those derived from it, recognizes, not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also juridical persons or subjects called foundations. A Hindu, who wishes to establish a religious or charitable institution, may, according to his law, express his purpose and endow it, and the ruler will give effect to the bounty … A trust is not required for this purpose: the necessity of a trust in such a case is indeed a peculiarity and a modern peculiarity of the English law. In early times a gift placed, as it was expressed, “on the altar of God sufficed to convey to the church the lands thus dedicated.”(Quotted in M Siddiq v. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1).

Law Attributes Legal Personality

Roscoe Pound, Jurisprudence, Part IV, 1959 Edition, on “Jurisprudence”, reads as under:

  • “In civilised lands even in the modern world it has happened that all human beings were not legal persons. In Roman law down to the constitution of Antonius Pius the slave was not a person. He enjoyed neither rights of family nor rights of patrimony. He was a thing, and as such like animals, could be the object of rights of property. … In French colonies, before slavery was there abolished, slaves were put in the class of legal persons by the statute of April 23, 1833 and obtained a ‘somewhat extended juridical capacity’ by a statute of 1845. In the United States down to the Civil War, the free Negroes in many of the States were free human beings with no legal rights.”(Quoted in: Shiromani Gurdwara  v. ShriSom Nath: AIR 2000 SC 1421; M Siddiq v. Mahanth Suresh Das (Ayodhya Case):2020-1 SCC 1)

The Supreme Court in Som Prakash Rekhi v.  Union of India, AIR 1981 SC 212, held that ‘a legal person is any entity other than human being to which law attributes personality’. It held further as under: 

  • “Let us be clear that the jurisprudence bearing on corporations is not myth but reality. What we mean is that corporate personality is a reality and not an illusion or fictitious construction of the law. It is a legal person. Indeed, a legal person is any subject-matter other than a human being to which the law attributes personality. This extension, for good and sufficient reasons, of the conception of personality is one of the most noteworthy feats of the legal imagination. Corporations are one species of legal persons invented by the law and invested with a variety of attributes so as to achieve certain purposes sanctioned by the law.” (Quoted in: Shriomani Gurudwara Prabandhak v. Shri Som Nath  :AIR 2000 SC 1421. See also: Samatha Hyderabad Abrasives Minerals v. State of AP: AIR 1997 SC 3297)

In SGPC v. Som Nath Dass, AIR 2000 SC 1421, the Supreme Court held:

  • “The very words ‘Juristic Person’ connote recognition of an entity to be in law a person which otherwise it is not. In other words, it is not an individual natural person but an artificially created person which is to be recognized in law as such.”

It held further that Guru Granth Sahib revered in Gurudwara had all the qualities to be recognized as juristic person. Holding otherwise would mean giving too restrictive a meaning to a ‘juristic person’ and that would erase the very jurisprudence which gave birth to it.It is observed (obiter) in this case that ‘it is really the religious faith that leads to the installation of an idol in a temple. Once installed, it is recognised as a Juristic Person. The idol may be revered in homes but its Juristic Personality is only when it is installed in a public temple’.

Nevertheless, Dr. BK Mukherjea, J. in his treatise ‘On Hindu Law of Religious & Charitable Trusts’ the principles as to legal personality, rights emanating therefrom, etc. with respect to a family temple, are presented in the same manner as that of a public temple (KM Senthivel Pillai v. Kulandaivel Pillai: 1970-2 MADLJ 555; P. Jayader v. Thiruneelakanta Nadar: ILR 1966-2 Mad 92; Commissioner of Endowments v. Sri Radhakanta Deb: 1969-35 Cut LT 992).

Is Trust  a ‘Living Person’ under S. 5 of the TP Act 

Can transfer of property be made to or by Trusts/Associations

Sec. 5 of the TP Act reads as under:

  • 5. “Transfer of property” defined:  In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
  • In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

Existing Laws as to Transfer of Property, will Remain in Force

Two points are emphasised in the 2nd paragraph of Sec. 5 –

  • First, all unregistered associations, whether incorporated or not, are ‘living persons’, so that transfer of property can be made.
  • Second, the qualifying second limb – ‘nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals‘ – makes it clear:
    • if any law regulates transfer of property to (or by) companies, associations or bodies of individuals, it will remain in force.

Note: Order 31 rule 1 CPC spells out – a trust is not a legal person. It enables to file a suit by (or be sued) a trustee concerning ‘property vested in trustees’.

‘Law for the Time Being in Force’ Includes ‘Common Law’

‘Law for the time being in force’ in Sec. 5 TP Act includes “common law”.

It is a reality – the common law of our country accepts as valid the ‘transfer of property’ made to or effected by well-known institutions, organisations, and associations attached to reputed trusts, institutions etc., though they are not juristic-persons in its strict sense. Our courts sumptuously refer to such deeds as documents executed by or in favour of such entities, when they are referred to as exhibits. For example:

  • Settlement deed by Ashramam–Swayam  Prakash  Ashramam v. G Anandavally  Amma : AIR  2010 SC 622;
  • Settlement to trust – S N Mathur  v. Board of Revenue: 2009-13  SCC 301;
  • Lease deed by trust to school – TNP Mothoo  Natarajan v. PV Ravi: 2015-2 MLJ (Cri.) 656;
  • Settlement deed to private trust –Kolli  Venkata Raja Vv. Govt. of AP: 2014-1 ALT 155;
  • Lease deed to a public trust –Nadigar  Sangham Charitable Trust, rep. by its managing Trustee, R. Sarathkumar v. S. Murugan:2013-1 MLJ 433;
  • Sale deed to Board of Trustees – Commissioner of Income Tax v. Chemists and Druggists Association Building Trust: 1995-215 ITR(Mad) 741;

“Bodies of individuals” in Sec. 5, TP Act

It may also be pointed out that, “bodies of individuals” in Sec. 5, TP Act is wide in meaning; and it stands independent. It is broad enough to take-in Beneficiaries/ Trustees of a Trust.

Accordingly, the registration and revenue authorities, without objection, register deeds relating to such properties in the names of such institutions, associations etc.

Read Blog: Dedication of Property in Public Trusts

Dedication can be made in favour of a Tank

It was held by our Apex Court in Kamaraju  Venkata Krishna Rao v. Sub Collector,  Ongole, AIR 1969 SC 563, that, under Hindu Law, a tank can be an object of charity and when a dedication was made in favour of a tank, the same was considered as a charitable institution. Without deciding whether that institution can also be considered as a juristic person, it was held that the same had to be registered in its name (ie., in the name of the tank) in the Inam register though it had continue to be managed by its Manager.

It is also noteworthy that Salmond on Jurisprudence reads: “Legal persons, being the arbitrary creations of the law, may be of as many kinds as the law pleases.”

Trust IS NOT A JURISTIC PERSON to File a Complaint Under the NI Act

There is discernible difference between the expressions in Sec. 5, TP Act and Sec. 141, NI Act.

  • Sec. 5, TP Act reads – “nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals“.
  • Sec. 141, NI Act says as to “Offences by companies”. It reads – “  ‘Company’ means any body corporate and includes a firm or other association of individuals.”

It is noteworthy that the scope of the enabling provision in the NI Act is considerably limited by the words – “includes a firm or other association of individuals”.

Because,

  • (i). As shown above, “bodies of individuals” in Sec. 5, TP Act (transfer to – “living person”) is broad enough to take-in Beneficiaries/Trustees of a Trust.
  • (ii). A firm, in law, is a collection of partners; and it is a compendious name for all the partners.
    • But, ‘Trust’ will not fall in ‘Company’or ‘any body corporate’ or ‘Firm’ or that “includes a firm or other association of individuals”.
  • But, Sec. 141 of the NI Act, confines it to “a firm or other association of individuals.”

BUT, it is held – (For NI Act) Public Charitable Trusts have ‘Juristic Personality’

To the question whether a Public Charitable Trust has been recognised as a juristic person for the purpose of Negotiable Instrument Act, it had been held by the Madras High Court (S. Nagamuthu, J.) in Abraham Memorial v. C. Suresh Babu, 2013- 2 Bank Cases  133: 2012-5 CTC 203: 2012-175 CC 361, that a Public Charitable Trust being capable of contracting, and capable of making and issuing a cheque or Bill (Sec. 26), it is a juristic person for the purpose of the said Act; and that a Trust, either private or public/charitable or otherwise, is a juristic person liable for punishment for the offence punishable under Sec. 138 of the NI Act.

This decision is referred to in –

  • (1) Nava Education Trust Thro Shambhubhai v. Prakashbhai Dhulabhai Patel (Gujrat, 12 March, 2024)
  • (2) Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252; 2023-6 KHC 175; 2023-4 KLJ 453; 2023-6 KLT 231
  • (3) Margadarsi Financiers v. State of Andhra Pradesh,  2019-2 ALD(Cri) 941; 2019-2 ALT(Cri) 197
  • (4) Goshir Gyaltsab Rinpoche, Tibetan Monk v. Karmapa Charitable Trust, (Sikkim, 29 Oct. 2018)
  • (5) G. Ramakrishna Reddy v. State of Andhra Pradesh, 2018 3 ALT(Cri) 156
  • (6) Hakkimuddin Taherbhai Shakor (Trustee) v. State of Gujarat, 2017 4 Cri CC 748; 2017 CrLJ 3143; 2017-3 GLH 571; 2017-4 RCR(Cri) 458
  • (7) Shah Rajendrabhai Jayantilal v. D. Pranjivandas, 2017-2 GLH 328
  • (8) E. Damodharan v. Triplicane Annadhana Samajam,  2016-2 CTC 277; 2016-1 LW 608; 2016-3 MLJ 889
  • (9) Sanjeev Khajuria v. Ravinder Singh Pathania,  2016-2 Bankmann 261, 2015-4 JKJ 615; 2016-1 NIJ 667; 2017-1 RCR(Civ) 550; 2017-1 RCR(Cri) 453
  • (10) Battula Parameswara Reddy v. Charity International Trust,  2015-3 ALT(Cri) 141
  • (11) Jeppiar v. State of Tamil Nadu (29 Nov 2012)

Even if Partnership Firm is a Juristic Entity, it is Not Distinct from Partners

The Apex Court, in Dhanasingh Prabhu v. Chandrasekar, 2025 INSC 831, held as under:

  • “6.9  On considering the aforesaid judgments, we observe that even if we have to come to the conclusion that the juristic entity i.e., the partnership firm is the primary accused in the instant case it would be necessary for us to also state that such a juristic entity, namely, a partnership firm is not distinct from the partners who comprise the partnership. ….
  • 6.10 Alternatively, notice to the partners/accused could have been construed as notice to the partnership firm also. We say so for the reason that unlike a company which is a separate juristic entity from its directors thereof, a partnership firm comprises of its partners who are the persons directly liable on behalf of the partnership firm and by themselves. ….. The complainant herein has not arraigned the firm but has arraigned the partners of the firm as accused and has also issued notice to them; therefore, we find that the defect, if any, is not significant or incurable in these circumstances. Permission is therefore to be granted to the complainant to arraign the partnership firm also as an accused in the complaint.….”

Liability of Partners

The Court (Dhanasingh Prabhu v. Chandrasekar) held as under:

  • “7.19 The liability of partners for the debts of the business is unlimited and they are jointly and severally liable for all business obligations of the partnership firm. Sections 25 and 26 of the Partnership Act are relevant in this regard, which are reproduced as under:
    • “25. Liability of a partner for acts of the firm.—Every partner is liable, jointly with all the other partners and also severally, for all acts of the firm done while he is a partner.
    • 26. Liability of the firm for wrongful acts of a partner.—Where, by the wrongful act or omission of a partner acting in the ordinary course of the business of a firm, or with the authority of his partners, loss or injury is caused to any third party, or any penalty is incurred, the firm is liable therefor to the same extent as the partner.” 
  • 7.23 Moreover, since the firm by itself cannot transact any business, if a partner of the firm commits any breach, all the partners would become liable for the consequent penalties, just as the firm would be liable. Further, if a penalty is imposed on a partnership firm for contravention of a statute, it amounts to levy of penalty on the partners also and there is no separate or independent penalty on the partners for the said contravention.”

Dhanasingh Prabhu v. Chandrasekar, 2025 INSC 831

The controversy in Dhanasingh Prabhu v. Chandrasekar, 2025 INSC 831, revolved around the interpretation of Section 141 of the NI Act.

Section 141 of the NI Act envisages that:

  • (i) a company or firm may be deemed guilty of the offence under Section 138 of the NI Act; and
  • (ii) the company or firm, along with the persons in charge of and responsible for its conduct of business, may be subjected to punishment.

Without detracting from the legal propositions in Section 141, the Supreme Court proceeded (in the light of the Partnership Act, 1932) as under:

  • (a) the Partnership firm need not (necessarily) be an accused in a complaint filed under Section 138 (“The defect, if any, is not significant“); and
  • (b) when a complaint is filed ‘against a firm’, under Section 138, all the partners are required to be prosecuted.

Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252

The Supreme Court, in Sankar Padam Thapa  v. Vijaykumar Dineshchandra, Agarwal (Ahsanuddin Amanullah, Prashant Kumar Mishra, JJ), 2025 INSC 1210 (October 09, 2025), overruled “Prana Educational and Charitable Trust”

Contention of the accused

The main contention of the accused (revision petitioners) in Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252; 2023-6 KHC 175; 2023-4 KLJ 453; 2023-6 KLT 231, basing on the Explanation to Sec. 141, was the following:

  • Trust is not a juristic person as defined under Section 141 of the NI Act.
  • The 1st accused being a charitable Trust and the 2nd accused being the Managing Trustee and signatory of the cheque, prosecution against the Trust and the Managing Trustee is not legally sustainable.

The accused relied on K.P. Shibu v. State of Kerala, 2019 (3) KHC 1 (B. Sudheendra Kumar, J.). It was held in this decision (K.P. Shibu v. State of Kerala) that a Trust is not a body corporate or an association of individuals as provided in the explanation to Section 141 of the NI Act.

High Court accepted the Case of the complainant

The High Court accepted the contention of the complainant that a Trust fall under the expression “company” as used in subclause (a) of the Explanation to Section 141, as it was inclusive of “any body corporate” and “a firm or other association of individuals“.

The High Court followed the following decisions:

  • (1)  Madras High Court: Abraham Memorial v. C. Suresh Babu, 2013- 2 Bank Cases  133: 2012-5 CTC 203: 2012-175 CC 361. It was held that though there was compulsory sentence of imprisonment prescribed under Section 138 of the N.I. Act, a Trust (an Artificial Person) can be prosecuted – as a drawer – and a Trust can be imposed only with fine or compensation.
  • In the light of Ramanlal Bhailal Patel v. State of Gujarat, 2008 (5) SCC 449, it was further held that (i) A Trust, either private or public/charitable or otherwise, is a juristic person who is liable for punishment for the offence punishable under Section 138 of the Negotiable Instruments Act; (ii) A Trust, either private or public/charitable or otherwise, having either a single trustee or two or more trustees, is a company in terms of Section 141 of the Negotiable Instruments Act; and  (iii) For the offence under Section 138 of The Negotiable Instruments Act, committed by the Trust, every trustee, who was in-charge of the day-to-day affairs of the Trust shall also be liable for punishment besides the Trust.
  • (2) Bombay High Court (Aurangabad Bench) in The Dadasaheb Rawal Co-op. Bank of Dondaicha Ltd v. Ramesh and others (2009 CrLJ 67; 2009 2 MhLJ 58). It was opined that a plain reading of the expression “company” as used in sub-clause (a) of the Explanation is that it is inclusive of any body corporate or “other association of individuals”. The term “association of individuals” will include club, trust, HUF business, etc. It shall have to be construed ejusdem generis along with other expressions “company” or “firm”.
  • (3)  Gujarat High Court in Shah Rajendrabhai Jayantilal v. D. Pranjivandas, 2017-2 GLH 328. It was found that the term “association of individuals” would include club, trust, Hindu Undivided Family business. Prima facie, it shall have to be construed ejusdem generis along with other expression “company” or “firm”. Therefore, a joint family business must be deemed as a juristic person like a company or firm. The High Court followed Anita Handa v. M/s. Godfather Travels & Tours Pvt Ltd, 2007 (11) SCC 297 (wherein it was viewed that a complaint against a Director of the company would not be maintainable if the company is not impleaded as accused; and that a plain reading of the expression “company” as used in subclause (a) of the explanation appended to Section 141 is that it is inclusive of any body corporate or “other association of individual“.

The Kerala High Court (Prana Educational and Charitable Trust v. State of Kerala, ILR 2023-4 Ker 252) distinguished the earlier decision, K.P. Shibu v. State of Kerala, 2019 (3) KHC 1, stating the following:

  • “It is discernible that the said decision is not so elaborative and the interpretation of the term “association of individuals” not done by applying the ratio of ejusdem generis. The principle of ejusdem generis intended for the construction of constitutional and statutory provisions means “of the same kind” and this doctrine provides that the general words which follow the specified words will be restricts to the same class of the specified words. While applying this principle,
  • (1) the general words must follow the specific words and the specific words must necessarily constitute, a genus/class
  • (2) the legislative intention of the statute to be born in mind for restricting the general word to the genus/class of the specified words if follows and
  • (3) this principle has to be used by the Courts properly and apply where it is necessary and not use this principle where it is not necessary so as to defeat the purpose of the statute and to cause miscarriage of justice are the conditions to be satisfied.”

A Discordant Note

‘A trust’, according to the definition, being ‘an obligation’; and, it does not convey the idea that (i) it is a “body corporate” or (ii) “a firm or other association of individuals” (as stated in Sec. 141 NI Act), it appears that the following decisions are not correctly decided –

  • Abraham Memorial v. C. Suresh Babu, 2013-2 Bank Cases 133: 2012-5 CTC 203: CC 2012-175 361, and
  • Prana Educational and Charitable Trust v. State of Kerala, 2023-6 KHC 175.

Conclusion

A trust differs from a ‘firm’, as a firm is, in law, a collection of partners; and it is merely a compendious name for all the partners, or only an ‘association of persons’  (Firm Alwar Iron Syndicate v. Union of India, AIR 1970 Raj 86; Shanker Hoursing Corporation v. Mohan Devi, AIR 1978 Del 255, DB).

Though a Firm is allowed to sue, or be sued, under Rule 1 of Order 30 CPC, it is only an enabling method to sue, or be sued, partners of a firm (both Registered and Unregistered), in the name of the firm. Suit by or against a firm is, in truth, suit by or against its partners.

  • It may also be pointed out that a trustee can be proceeded against, in a proper case, if the cheque dishonoured is signed by him (in the capacity as trustee). Because, as stated above, ‘trustee, who is an entity by himself’, stands technically distinct from the trust, in legal parlance; and, a trust has to be sued through its trustee (Abdulrehman Sadruddin v. Trustees of the Maniar Jamat Ahmadabad,  AIR 1968 Guj 184).

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One Year Interruption or Obstruction will not affect Prescriptive Easement

Taken from the Blog: What is ‘Interruption’ and “Period ending within two years next before the institution of the suit”?

Saji Koduvath, Advocate, Kottayam.

Abstract

1. ‘Obstruction‘ up to One year is Not an ‘Interruption’, under Sec. 15
 In accordance with Explanation II to Sec. 15, Indian Easements Act, 1882 –
                •➧ an obstruction for a period up to One Year
               •➧ will not be counted, or considered, as a bar 
                •➧ for achieving the the completion of 20 years’
                •➧ peaceable enjoyment without interruption
                •➧ (even if the obstruction is acquiesced,
                •➧ or suffered silently, by the dominant owner).
               
Because, Explanation II says –
“Nothing is an interruption within the meaning of this section” (Sec. 15)
               •➧ “… unless such obstruction is submitted to or acquiesced in
               •➧ for one year after the claimant has notice thereof and
               •➧ of the person making or authorising the same to be made”.

2. Period Up To One Year (not counted) can be in the 20th year, or earlier
It is definite from Explanation II-
               •➧ The period of obstruction up to One Year (that will not stop
                •➧ the fulfilment of with 20 years’ peaceable enjoyment
                •➧ ‘without interruption’), can be –
                •➧ either in the end of 20th year, or in any period earlier thereto.
               
3. What does (20 + 2) years denote?
Para 5 of Sec. 15 of the Easements Act, refers to various easements
(such as, right to light or air, way, watercourse, use of water, etc. –
the period for prescription for each one is 20 years) and says:
               •➧ “Each of the said periods of twenty years shall be taken to be
               •➧ a period ending within two years next before
               •➧ the institution of the suit wherein
               •➧ the claim to which such period relates is contested.”  
It denotes two things:
               •➧ (1) Easement by prescription (with minimum 20 years’ user)
               •➧ must have been perfected, prior to the ‘obstruction’.
               •➧ (2) Suit must be filed within 2 years of obstruction (cause of action).
Therefore, a suit can be filed –
               •➧ on the next day of completing the ‘20-years-user’;
               •➧ but, within 2 years of obstruction (cause of action).

4. Why No Limitation of 3 years, as usually seen in Limitation Act?
‘Obstruction’ up to One Year being Not Counted
               •➧ (for the purpose of Sec. 15, as per Explanation II)
               •➧ in cases of acquiescence by the dominant owner,
              •➧ 2 years‘ limitation period (in Sec. 15 para 5) will begin
             •➧ only after the said period “for One Year“.
Therefore, where there is acquiescence for a period up to One Year,
               •➧ the period of ‘limitation’ will be 3 years.
But, it is obvious:
              •➧ If the dominant owner has made an attempt to remove the obstruction
             •➧ (or interfered, in contrast to acquiescence)
              •➧ the ‘limitation-period’ of 2 years will run from that date.

1. “Obstruction is submitted to or acquiesced in for One Year” (in Explanation II)

For the acquisition of easement by prescription on light, air, support, way etc., Sec. 15 Easement Act stipulates that it must have been enjoyed ‘without interruption’ for minimum 20 years.

While explaining what is ‘interruption’, 1st part of Explanation II explains that ‘interruption’ is actual cessation of the enjoyment.

The 2nd part of Explanation II to Sec. 15 lays down –

  • “Nothing is an interruption within the meaning of this section” (Sec. 15)
                   “… unless such obstruction is submitted to or acquiesced in
                       for one year after the claimant has notice thereof and
                   of the person making or authorising the same to be made    ”.

An Obstruction for a period up to One Year will Not be an ‘Interruption’

Analysing Explanation II, on first principles, it can be said –

  • An obstruction for a period up to one year will not be an ‘interruption’, or a bar to the ‘peaceable enjoyment’ (to claim easement by prescription).
  • The aforesaid legal proposition (that an obstruction for a period up to one year will not prevent the perfection of easement by prescription), will apply with full vigour even if it is acquiesced by the dominant owner.

2. ‘Obstruction‘ up to One year (in the 20th year, or earlier), Not Counted

It is also definite from the 2nd part of Explanation II to Sec. 15 –

  • The aforesaid period of obstruction up to one year, that will not stop the fulfilment of 20 years’ uninterrupted enjoyment (required for the perfection of easement by prescription), can be either in the end of 20th year, or in any period earlier thereto .

3. Explanation II is an enabling provision

2nd part of Explanation II (that is, an obstruction for a period up to One Year will not stand as an interruption) is an enabling provision that stands in favour of the dominant owner (claimant of the easement), for the following reasons –

  • (1) ‘interruption’ is a (negative) matter that stands against (perfection of) easement by prescription, and
  • (2) Explanation II lays down – if only the dominant owner acquiesced obstruction, for a period more than one year, then only it will operate as an ‘interruption’ against acquiring easement.
  • Note: 1. It is clear that the pleading as to ‘interruption, for more than one year‘ has to come (in most cases) from the servient owner (to show no perfection of easement by prescription). Therefore, the burden of proving obstruction, for more than one year, will be upon the servient owner.
  • 2. When this plea is raised by the servient owner-
  • (i) he has to admit the enjoyment of the right claimed up to the date of obstruction; and
  • (ii) if that plea is resisted by the dominant owner, saying that the period of obstruction is below one year, then it will be a question of fact.

4. Reckoning of one year period

Explanation II makes it clear –

  • the period of one year is reckoned (1) from the date of notice of the obstruction by the claimant and (2) after getting the knowledge of the person who made the obstruction, or the person who authorised the same to be made.

This plea can be validly raised by the dominant owner (claimant of easement) in the following set of facts –

  • The servient owner interrupts/obstructs a way by constructing a wall, a few months prior to completion of 20-year-period (for acquiring easement by prescription).
  • Acquiescing the obstruction, the dominant owner (claimant of easement) purchases a nearby property and makes an (alternate) way.
  • After completion of 20-years-user (as regards the earlier way) and within one year of ‘acquiescing’ obstruction, the dominant owner can validly claim easement by prescription over that way, invoking this provision.

5. Why No Limitation of 3 years as usually seen in Limitation Act?

‘Obstruction’ up to One Year being not counted (for the purpose of Sec. 15, in accordance with Explanation II) in cases of acquiescence by the dominant owner (that is, in spite of notice of obstruction, no attempt made to remove it), 2 years‘ limitation period (in Sec. 15 para 5) will begin only after the said period “for One Year“.

  • That is, in cases where there is acquiescence to obstruction for a period up to one year, the period of ‘limitation’ will be 3 years.

Hence, in cases where there is acquiescence (up to one year) after perfection of the 20-year period, suit can be filed –

  • on the next day of completing the ‘20-years-user’;
  • or, within three years of obstruction.

But, it is obvious:

  • If the dominant owner has made an attempt to remove obstruction (or interfered, in contrast to acquiescence), the limitation of 2 years will run from that date.

6. No Legal Basis for the Proposition based on “Completion of 22 Years user”

Para 5 of Section 15 of the Indian Easements Act, 1882 is the relevant provision.

It reads as under:

  • “Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested..”  
  • (We see exactly similar wording in Sec. 25(2), Limitation Act also.)

“Each of the said periods of twenty years ” – Import

  • Section 15 and 25 refer to various easements – right to light or air, way, watercourse, use of water, way etc.
  • The period for prescription for each of the said easement is 20 years.

“Wherein the claim to which such period relates is contested”- Gist

  • It simply refers to ‘cause of action’.

“Ending within two years”– Purport

  • Para 5 of Sec. 15 lays down two essential conditions –
  • Firstly, the suit must have been filed after perfecting the right of easement by 20 years’ user, and
  • Secondly, the suit must have been filed within two years of cause of action; that is, obstruction.

On analysis, it can be seen that Para 5 of Section 15 is attracted in the following situation:

  1. The cause of action for a suit under Section 15 (interruption to the enjoyment or its threat), must be after perfecting the right of easement by 20 years user.
  2. Such cause of action can be one that arises on the next day of completion of 20 years. But, the suit must have been filed within 2 years of such cause of action.
  3. There is no legal basis at all for the proposition based on “the completion of 22 years user” inasmuch as:
    • the cause of action (interruption or threat) contemplated in Para 5 is that arises after perfection of easement after completion of 20 years, and
    • the suit could be brought on that day of cause of action itself, or any day within two years.
  4. In case, the suit is not filed within 2 years of the cause of action (interruption), by the person claiming the easement (dominant owner); his right thereon will stand barred.
  5. ‘Obstruction’ up to One Year being not counted, as explained above (for the purpose of Sec. 15, in accordance with Explanation II), 2 years‘ limitation period (in Sec. 15 para 5) will begin only after the said period “for One Year“; and thereby period of ‘limitation’ will be 3 years.

See:

  • Nachiparayan v. Narayana Goundan, AIR 1920 Madras 541,
  • Syed Manzoor Hussain v. Hakim Ali Ahmad, AIR 1980 All. 389,
  • Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216,
  • Badariya Madrassa Committee v. Antony Robert Breganza: 2006-2 Ker LT 636;  
  • Satya Devi Vs. Sansar Chand: 2007-50 AIC 678, CIVCC 2007-2 605, HLJ 2006-2 1392, 2007-5 RCR(CIVIL) 352, ShimLC 2006 2 431
  • Marthoma Syrian Church v. Jessie Thampi, ILR 2020-2 Ker 713; 2020-2 Ker LT 653.

7. Does Cessation of Enjoyment (out of Obstruction) alone mark ‘Interruption’?

The 1st part of Explanation II to Section 15 explains what is ‘interruption’. It reads as under:

  • “Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant ….”

According to this part, there will be interruption if it is suffered –

  • by actual cessation of the enjoyment,
    • by an obstruction,
    • by the act of some person other than the claimant.

See:

  • Eaton v. The Swansea Waterworks Co., [1851] EngR 559, 17 QB 267, 117 ER 1282.
  • Prasad v. Patna City Municipality, AIR 1938 Pat 423;
  • Anu Sundar v. Shiva Narain Jaiswal, AIR 1988 Pat 216.
  • Pankan Soman v. C.K. Manoharan, 2019-1 KHC 817,
  • See also: Neil J. Creado v. Shah Abbas Khan, 2020-1 Bom CR 160,
  • Kapilrai Brijbhukhandas v. Parsanben Dhirajlal, 1998-4 Guj CD 2941.

8. ‘Without Interruption’ in Section 15 is congruent to ‘Peaceable Enjoyment’

Explanation II to Section 15 explains ‘interruption’ as ‘actual cessation’ for ‘obstruction’. Therefore,

  • ‘Without interruption’ in Section 15 is congruent to ‘peaceable enjoyment’; and actual cessation by obstruction’ alone negatives ‘peaceable enjoyment’.
  • In other words, ‘peaceable enjoyment’ also stands on par with (similar to) the explanation to ‘interruption’ (that is, there must be actual obstruction, more than a verbal dispute, or legal proceedings).

See:

  • Muthu Goundan v. Anantha Goundan, AIR 1916 Mad. 1001: 31 Ind Cas 528
  • Varkey John v. Varkey Stanselose, AIR 1973 Ker 198,
  • Eaton v. The Swansea Waterworks Company, [1851] EngR 559, (1851) 17 QB 267, (1851) 117 ER 1282.

In Tagore Law Lectures delivered by Peacock deduces, from the cases, that “peaceable enjoyment” means “enjoyment without interruption or opposition of the servient owner sufficient to defeat the enjoyment”, and “that obstruction or opposition to enjoyment must find expression in something done on the servient tenement or the legal proceedings.” 

  • See: Bai Kurvarbai v. Jamsedji Rustamji Daruvala, 49 Ind Cas 963.

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End Notes

Sec. 15 Easement Act reads as under:

  • Acquisition by prescription. Where the access and use of light or air to and for any building have been peaceably enjoyed therewith, as an easement, without interruption, and for twenty years,
  • and where support from one person’s land, or things affixed thereto, has been peaceably received by another person’s land subjected to artificial pressure or by things affixed thereto, as an easement, without interruption, and for twenty years,
  • and where a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement, and as of right, without interruption, and for twenty years,
  • the right to such access and use of light or air, support or other easement shall be absolute.
  • Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.
  • Explanation I.–Nothing is an enjoyment within the meaning of this section when it has been had in pursuance of an agreement with the owner or occupier of the property over which the right is claimed, and it is apparent from the agreement that such right has not been granted as an easement, or, if granted as an easement, that it has been granted for a limited period, or subject to a condition on the fulfilment of which it is to cease.
  • Explanation II.–Nothing is an interruption within the meaning of this section unless where there is an actual cessation of the enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.
  • Explanation III.–Suspension of enjoyment in pursuance of a contract between the dominant and servient owners is not an interruption within the meaning of this section.
  • Explanation IV.–In the case of an easement to pollute water, the said period of twenty years begins when the pollution first prejudices perceptibly the servient heritage.
  • When the property over which a right is claimed under this section belongs to Government this section shall be read as if, for the words “twenty years”, the words “thirty years” were substituted.
  • Illustrations
  •  (a) A suit is brought in 1883 for obstructing a right of way. The defendant admits the obstruction, but denies the right of way. The plaintiff proves that the right was peaceably and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption, from 1st January, 1862 to 1st January, 1882. The plaintiff is entitled to judgment.
  • (b) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that for a year of that time the plaintiff was entitled to possession of the servient heritage as lessee thereof and enjoyed the right as such lessee. The suit shall be dismissed, for the right of way has not been enjoyed “as an easement” for twenty years.
  • (c) In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff on one occasion during the twenty years had admitted that the user was not of right and asked his leave to enjoyed the right. The suit shall be dismissed, for the right of way has not been enjoyed “as of right” for twenty years.

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Thangam v.  Navamani Ammal: Did the Supreme Court lay down – Written Statements with no “Para-Wise” Denial are Vitiated?

Saji Koduvath, Advocate, Kottayam.

Abstract

It appears, it may not be correct to say –
               In Thangam v.  Navamani Ammal
               the Supreme Court laid down the ‘law’ that
               the Written Statements would stand vitiated –
               if (or merely for) no “para-wise” denial of facts in the plaint;
               and,
               such Written Statements (without ‘para-wise’ denial)
               would be eschewed from consideration
               even if they do deal distinctly with each allegation of fact in the plaint.

Thangam v.  Navamani Ammal

In Thangam v.  Navamani Ammal (C.T. Ravikumar & Rajesh Bindal, JJ.), our Apex Court observed (AIR 2024 SC 1324) as under:

  • “15. In the absence of para-wise reply to the plaint, it becomes a roving inquiry for the Court to find out as to which line in some paragraph in the plaint is either admitted or denied in the written statement filed, as there is no specific admission or denial with reference to the allegation in different paras.”

Finally, the Court held as under:

  • “15.6.  We have made the aforesaid observations as regularly this Court is faced with the situation where there are no specific para-wise reply given in the written statement/ counter affidavit filed by the defendant(s)/ respondent(s). In our opinion, if the aforesaid correction is made, it may streamline the working.”

It appears, it may not be correct to say –

  • The Supreme Court laid down the ‘law’ that the Written Statements would stand vitiated – if (or merely for) no “para-wise” denial of facts in the plaint;
  • and,
  • such Written Statements (without ‘para-wise’ denial) would be eschewed from consideration even if they do deal distinctly with each allegation of fact in the plaint.

The Supreme Court pointed out as under –

  • “15.1 Order VIII Rules 3 and 5 CPC clearly provides for specific admission and denial of the pleadings in the plaint. A general or evasive denial is not treated as sufficient. Proviso to Order VIII Rule 5 CPC provides that even the admitted facts may not be treated to be admitted, still in its discretion the Court may require those facts to be proved. This is an exception to the general rule. General rule is that the facts admitted, are not required to be proved.
  • 15.2 The requirement of Order VIII Rules 3 and 5 CPC are specific admission and denial of the pleadings in the plaint. The same would necessarily mean dealing with the allegations in the plaint para-wise. In the absence thereof, the respondent can always try to read one line from one paragraph and another from different paragraph in the written statement to make out his case of denial of the allegations in the plaint resulting in utter confusion.”

The Apex Court relied on, and quoted from, the following two decisions:

  • Badat and Co. Bombay v. East India Trading Co AIR 1964 SC 538.
  • Lohia Properties (P) Ltd. v. Atmaram Kumar (1993) 4 SCC 6.

Badat and Co. Bombay v. East India Trading Co

In Badat and Co. Bombay v. East India Trading Co, AIR 1964 SC 538, it is held as under:

  •  “11. Order 7 of the Code of Civil Procedure prescribes, among others, that the plaintiff shall give in the plaint the facts constituting the cause of action and when it arose, and the facts showing the court has jurisdiction. The object is to enable the defendant to ascertain from the plaint the necessary facts so that he may admit or deny them. Order VIII provides for the filing of a written-statement, the particulars to be contained therein and the manner of doing so; XX XX XX These three rules form an integrated code dealing with the manner in which allegations of fact in the plaint should be traversed and the legal consequences flowing from its noncompliance. The written statement must deal specifically with each allegation of fact in the plaint and when a defendant denies any such fact, he must not do so evasively, but answer the point of substance. If his denial of a fact is not specific but evasive, the said fact shall be taken to be admitted. In such an event, the admission itself being proof, no other proof is necessary.”

Lohia Properties (P) Ltd., Tinsukia v. Atmaram Kumar

In Lohia Properties (P) Ltd., Tinsukia v. Atmaram Kumar, (1993) 4 SCC 6, it is held as under:

  • “14. What is stated in the above is, what amount to admit a fact on pleading while Rule 3 of Order 8 requires that the defendant must deal specifically with each allegation of fact of which he does not admit the truth.
  • 15. Rule 5 provides that every allegation of fact in the plaint, if not denied in the written statement shall be taken to be admitted by the defendant. What this rule says is, that any allegation of fact must either be denied specifically or by a necessary implication or there should be at least a statement that the fact is not admitted. If the plea is not taken in that manner, then the allegation shall be taken to be admitted.”

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

Book No. 4: Common Law of TRUSTS in India

Order IX Rule 9 CPC: Earlier Suit for Injunction; Subsequent Suit for Recovery & Injunction – No Bar

Jojy George Koduvath

Order IX Rule 9

  • Order 9 Rule 9 of the Civil Procedure Code provides that when the suit is wholly or partly dismissed under Rule 8 (dismissed for default) the plaintiff shall be precluded from bringing in a fresh suit in respect of the same cause of action.

Earlier suit for Injunction; present suit for Recovery & Injunction – No Bar

In Ghanchi Pirbhai Kala v. Meghamal Sirumal, 1989-1 Guj LH 539; 1989-1 Guj LR 183, it was held as under:

  • (24) …. The earlier suit was filed for injunction alone. … It was not a suit for recovery of possession and injunction…..
  • (25) The present suit is not filed on the same cause of action. In this suit the case of the plaintiff is that … possession of the plaintiff has been illegally taken away by the defendants and therefore the possession should be restored. Thus it is evident that cause of action in both the suits is entirely different. Hence the contention raised on the basis of the provisions of Order 9 Rule 9 of C. P. Code has no merits.

In Chelladurai v. Minor Aravind, 2008-4 LW 737 (Mad), the question arose was whether the subsequent suit for possession was not maintainable when the earlier suit for injunction has been dismissed for default.The court answered the question as under:

  • “The cause of action for the earlier suit was on account of the attempted trespass in respect of A schedule property. But the cause of action in the subsequent suit was entirely different and the relief was for a decree of recovery of possession. Therefore I am of the view that the subsequent suit in O.S.No.16 of 2003 was not barred under Order IX rule 9 in view of the dismissal of the earlier suit in O.S.No. 64/02. Therefore the first substantial question of law is answered against the defendant.”

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

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Newspaper Reports are ‘Hearsay Secondary Evidence’

Saji Koduvath, Advocate, Kottayam.

Abstract

A Newspaper Report is Not a “Legal Evidence”; it is ‘Hearsay Evidence’.

Newspaper Reports Become Primary Evidence when Reporter is Examined.

Presumption of Genuineness U/S. 81, of the Indian Evidence Act is Not ‘Proof of the Facts ’.

CDs of News Clipping Telecasted in TV are also Hearsay Evidence.

Courts cannot take judicial notice of facts in a news in a newspaper.

Introductory Muse

Our Apex Court (Hrishikesh Roy and Justice Pankaj Mithal, JJ) observed in Dinesh B.S. v. State of Karnataka, MANU/SCOR/113600/2023, as under:

  • “To show the error in the reasoning of the High Court on laying much credibility on the newspaper reports, the learned Senior Counsel Mr. D. Seshadri Naidu quoted Mark Twain who said,
    • “If you don’t read the newspaper, you’re uninformed. If you read the newspaper, you’re misinformed.”
  • In the facts of the present case, this Court is inclined to accept the submission of the learned Counsel that an extrajudicial confession cannot be given greater credibility only because it is published in a newspaper and is available to the public at large.”

Laxmi Raj Shetty v. State of TN, is the Locus Classicus Decision

Laxmi Raj Shetty v. State of Tamil Nadu, (1988) 3 SCC 319 at 346, is the locus classicus decision on the question of admissibility of a news in a newspaper. It is held as under:

  • “We cannot take judicial notice of the facts stated in a news item being in the nature of hearsay secondary evidence, unless proved by evidence aligned. A report in a newspaper is only hearsay evidence. A newspaper is not one of the documents referred to in S. 78(2) of the Evidence Act, 1872 which an allegation of fact can be proved. The presumption of genuineness attached u/ S. 81 of the Evidence Act to a newspaper report cannot be treated as proved of the facts reported therein.
  • It is now well settled that a statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence in the absence of the maker of the statement appearing in court and deposing to have perceived the fact reported.” (Quoted in: Quamarul Islam v. S. K. Kanta, AIR 1994  SC 1733; S. A. Khan v. Bhajan Lal, AIR 1993 SC 1348; 1993 3 SCC 151)
  • Note:
  • Sec. 78(2) of the Indian Evidence Act, 1872 speaks as to ‘proof of other official documents such as ‘the proceedings of the Legislatures – by the journals of those bodies respectively or by published Acts or abstracts; or by copies purporting to be printed by order of the Government concerned.
  • S. 81 speaks as to ‘presumption as to Gazettes, newspapers, private Acts of Parliament and other documents’.

Presumption of Genuineness Under Sec. 81 Is Not ‘Proof of the Facts Stated Therein’

In Ravinder Kumar Sharma v. State of Assam, (1999) 7 SCC 435, it was held that ‘the newspaper reports are merely hearsay and not proof of facts stated therein’. It is observed as under:

  • “…  (T)he presumption of genuineness attached under Section 81 to newspaper reports cannot be treated as proof of the facts stated therein. The statements of fact in newspapers are merely hearsay (Laxmi Raj Setty v. State of Tamil Nadu, 1988 (3) SCC 319).”

No Judicial Notice on News in a Newspaper

In Jacob Puliyel v. Union of India, 2022-7 Scale 256; 2022-3 SCR 471, it is held as under:

  • “It is settled law that courts cannot take judicial notice of facts stated in a news item published in a newspaper.”

Newspaper Report Cannot be Relied on Unless Proved by Evidence from another source

In RK Anand v. Registrar, Delhi High Court, 2009 8 SCC 106, it is held as under:

  • “SA Khan v. Bhajan Lal, (1993) 3 SCC 151, and in Quamarul Islam vs. S. K. Kanta, (1973) 1 SCC 471 relate to newspaper reports. In these two decisions it was held that newspaper report is hearsay secondary evidence which cannot be relied on unless proved by evidence aliunde.”

In Quamarul Islam v. SK Kanta, AIR 1994 SC 1733, 1994 Supp. (3) SCC 5, our Apex Court held as under:

  • “48. Newspaper reports by themselves are not evidence of the contents thereof. Those reports are only hearsay evidence. These have to be proved and the manner of proving a newspaper report is well settled.” (Quoted in: Borgaram Deuri v. Premodhar Bora, AIR 2004  SC 1386; 2004-2 SCC 227)

Newspaper Reports Becomes Primary Evidence when Reporter is Examined

The Supreme Court decision in Samant N. Balakrishna v. George Fernandez, (1969) 3 SCR 603 considered the question whether George Fernandez, had delivered a speech at Shivaji Park, Bombay as attributed in the report in the Maratha, a Marathi newspaper. Our Apex Court held as under:

  • “A newspaper item without any further proof of what had actually happened through witnesses is of no value. It is at best a second-hand secondary evidence. It is well known that reporters collect information and pass it on to the editor who edits the news item and then publishes it. In this process the truth might get perverted or garbled. Such news items cannot be said to prove themselves although they may be taken into account with other evidence if the other evidence is forcible.”

In Oommen Chandy v. State of Kerala, 2016 4 Cri CC 43; 2017 CrLJ 925; 2016 3 ILR(Ker) 326, the Kerala High Court held as under:

  • “10. It is trite law that newspaper reports regarding the incident can only be treated as merely ‘hearsay’ in the matter and nothing more. When a reporter has reported some thing, and if it is from his personal knowledge, definitely it can be primary evidence, provided, the said person is examined to prove those statements. If not, it attains only the status of ‘hearsay secondary evidence’.”

CDs of News Clipping Reports Telecasted in a TV Channel –  Hearsay Evidence

Mohet Hojai, Son of Shri Thangmai Hojai v. National Investigation Agency (11 Aug 2023, Gau) held as under:

  • “149. In the case of Jacob Puliyel v. Union of India & Ors., reported in (2022) 3 SCR 471, the Hon’ble Supreme Court held that Courts cannot take judicial notice of facts stated in a news item published in a newspaper. A statement of fact contained in a newspaper is merely hearsay and, therefore, inadmissible in evidence, unless proved by the maker of the statement appearing in the Court and deposing to have perceived the fact reported.
  • 150. We feel that the same analogy would apply to a report telecasted in a TV channel. Thus, the CDs of news clipping reports sought to be proved in the testimony of Hiteswar Medhi (PW-27) and Caushiq Kashyap Bezbaruah (PW-70) were inadmissible as the same tantamount to hearsay evidence. That apart, the CDs were in form of secondary evidence and absence of certificate under Section 65B of the Evidence Act ruled out their production in evidence.”

A Newspaper Report is Not a “Legal Evidence”

In Naval Kishor Sharma v. State of U.P. (Samit Gopal, J.), 2022-11 ADJ 127; 2022-6 All LJ 556; 2022 155 All LR 37619, it is held as under:

  • “In the case of Ghanshyam Upadhyay v. State of U.P. : (2020) 16 SCC 811, it has been held by the Apex Court in paragraphs 6, 7 and 8 as under:-
  • “6. As noted, the entire basis for making the allegations as contained in the miscellaneous petition is an article relied on by the petitioner said to have been published in the newspaper. There is no other material on record to confirm the truth or otherwise of the statement made in the newspaper. In our view this Court will have to be very circumspect while accepting such contentions based only on certain newspaper reports. This Court in a series of decisions has repeatedly held that the newspaper item without any further proof is of no evidentiary value. The said principle laid down has thereafter been taken note in several public interest litigations to reject the allegations contained in the petition supported by newspaper report.
  • 7. It would be appropriate to notice the decision  in Kushum Lata v. Union of India, (2006) 6 SCC 180, wherein it is observed thus : (SCC p. 186, para 17)
  • “17. … It is also noticed that the petitions are based on newspaper reports without any attempt to verify their authenticity. As observed by this Court in several cases, newspaper reports do not constitute evidence. A petition based on unconfirmed news reports, without verifying their authenticity should not normally be entertained. As noted above, such petitions do not provide any basis for verifying the correctness of statements made and information given in the petition.”
  • 8. This Court, in Rohit Pandey v. Union of India, (2005) 13 SCC 702, while considering the petition purporting to be in public interest filed by a member of the legal fraternity had come down heavily on the petitioner, since the said petition was based only on two newspaper reports without further verification.”
  • 20. From the above judgements it is clear that newspaper report by itself does not constitute an evidence of the contents of it. The reports are only hearsay evidence. They have to be proved either by production of the reporter who heard the said statements and sent them for reporting or by production of report sent by such reporter and production of the Editor of the newspaper or it’s publisher to prove the said report. It has been held by the Apex Court that newspaper reports are at best secondary evidence and not admissible in evidence without proper proof of its content under the Indian Evidence Act, 1872. It is thus clear that newspaper report is not a “legal evidence” which can be examined in support of the complainant.
  • 21. It is trite law that there has to be legal evidence in support of the allegations levelled against a person. In the present case the only evidence relied upon is the newspaper reporting and nothing else. For what has been stated above and as per the settled legal position, a newspaper report is not a “legal evidence“.

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Replication, Rejoinder, Subsequent Pleadings and Amendment of Pleadings

Saji Koduvath, Advocate, Kottayam

Abstract

1. Under Order VIII, Rule 9 CPC leave of the Court is necessary for filing a pleading, by the plaintiff or defendant, subsequent to the written statement of a defendant.

2. The terms ‘Replication’ and ‘Rejoinder’ (though judicially recognized) are not used in the CPC; it uses only ‘written statement’ and ‘subsequent pleadings’.

3. A replication is filed by the Plaintiff. It is the plaintiff’s answer or reply to the defendant’s plea or answer.

                •➧ Material averment made in the written statement is presumed to be denied by the plaintiff and for that purpose he need not file a replication.                 •➧Failure to file a replication cannot be treated as an admission.

4. A rejoinder is filed by the defendant. It is filed subsequent to (plaintiff’s) replication.

5. A new plea can be permitted by an amendment. But, additional pleadings must be confined to points or answers with regard to which it is made.

6. An amendment relates back to the date of filing; but, subsequent pleadings not.

7. While considering the propriety of subsequent pleadings the court takes into account subsequent events, after the filing of the suit, and to avoid multiplicity of suits.

8. It is doubtful whether fault can be found with a plaintiff or defendant – for he did not file a ‘replication’ or ‘rejoinder’, of his own (that is, when no direction from the court), whatever be the circumstance.

Pleadings in Nutshell

  • Order VI of the Code of Civil Procedure deals with pleadings generally.
  • Order VII deals with the plaint.
  • Order VIII deals with written statement.
  • Pleading shall mean plaint or written statement.
  • The pleadings are supposed to set out material facts.
  • They are to be verified.
  • Rule 3 of Order VIII enjoins the defendant to deny specifically such of the averments of the plaint which he does not admit.
  • An averment made in the plaint if not specifically denied or only evasively denied in the written statement would be deemed to have been admitted.
  • Rule 2 of Order VIII enjoins the defendant to specifically plead new facts.

Order 8, Rule 9 CPC (After the Amendment Act of 2002)

  • “9. Subsequent pleadings. No pleading subsequent to the written statement of a defendant other than by way of defence to a set-off or counter-claim shall be presented except by the leave of the Court and upon such terms as the Court thinks fit, but the Court may at any time require a written statement or additional written statement from any of the parties and fix a time for presenting the same.”
  • The words, “No pleading subsequent to the written statement” shows that there is no impropriety in using the ‘general’ terms, ‘Replication’ and ‘Rejoinder’.

Order VI, Rule 17 CPC (After the Amendment Act of 2002)

  • “17. Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
  • Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

Order VIII, Rule 9 CPC Analysed

  • Plaintiff has a right to file written statement by way of defence to a set-off or counter-claim.
  • For filing a pleading by the plaintiff or defendant, subsequent to the written statement of a defendant leave of the Court is necessary,.
  • Court can at any time require a written statement or additional written statement from any of the parties.
  • CPC does not use the term Rejoinder or Replication; it uses only a written statement or additional written statement.

Rejoinder and Replication

  • A replication is filed by the Plaintiff. It is the plaintiff’s answer or reply to the defendant’s plea or answer.
  • A rejoinder is filed by the defendant. It is filed subsequent to (plaintiff’s) replication.
  • In court proceedings, these terms – rejoinder and replication – are being loosely used as interchangeable terms or synonyms, which they are not. (See: Prime Properties v. Sana Lakshmi Devi (SC, 2022)
  • Pleadings by way of rejoinder/replication are not to be found statutorily contemplated by the Code of Civil Procedure.
  • Opportunity of filing rejoinder/replication is being exploited to avoid the necessity of amending the plaint, even if necessary.

Black’s Law Dictionary

  • Black’s Law Dictionary, 6th Edn, defines ‘replication‘ as pleading in common law made by the plaintiff in an answer to the defendant s plea; and a rejoinder as a second pleading in common law on the part of the defendant being his answer to the plaintiff s replication. (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

Wharton s Law Lexicon

  • Wharton s Law Lexicon (14th Edn) defines ‘replication‘ as a term for a plaintiff s answer to a defendant s plea; and rejoinder is defined as a defendant s answer to the plaintiff s reply.

Corpus Juris Secundum

Corpus Juris Secundum lays down as regards ‘replication’ as under:

  • “a reply or replication is purely a defensive pleading, the office or function of which is to deny, or allege facts in avoidance of, new matters alleged in the plea or answer and thereby join or make issue as to such new matters. (para 184)
  • No reply or replication is necessary where the issues are completed by, and no new matter is set up, in the plea or answer. (para 185 a.)
  • At common law a replication is necessary where a plea introduces new matter and concludes with a verification; but under the codes, practice acts, or rules of civil procedure of a number of states a reply to new defensive matter is not necessary or is necessary only when ordered by the court. A reply to a counterclaim is generally necessary; but under some code provisions no reply or replication is required in any case. (para 185 b. (i))
  • The discretion which the court possesses, under some codes or practice acts, to direct the plaintiff, on the defendant s application, to reply to new matter alleged as a defence by way of avoidance will be exercised in favour of granting the application where the new matter, if true, will constitute a defence to the action and granting the order will prevent surprise and be of substantial advantage to the defendant without prejudice to the plaintiff. [ para 185 b. (ii) ]” (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

When Replication Permitted

A replication is permissible only in three situations:

  • (1) when required by law;
  • (2) when a counter claim is raised by the defendant;
  • (3) when the Court directs or permits a replication being filed.

When Court directs a replication:

  • The Court may direct filing of a replication when the court having scrutinised the plaint and the written statement feels the necessity of asking the plaintiff to join specific pleadings to a case specifically and newly raised by the defendant in the written statement.

Plaintiff can seek the leave of the court for filing replication:

  • The plaintiff may also feel the necessity of joining additional pleading to put forth his positive case in reply to the defendant’s case but he shall have to seek the leave of the court by presenting the proposed replication along with an application seeking leave to file the same. (See: Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J.)

Requirement of Replication

It is doubtful whether fault can be found with a plaintiff or defendant – for he did not file a ‘replication’, of his own (that is, when no direction from the court) whatever be the circumstance. However, in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, RC Lahoti, J., authoritatively pointed out two circumstances where it is necessary to file ‘replication’.

1. The defendant denies plaintiffs title, and sets up a plea of gift.

  •  If the plaintiff merely denies the gift he need not file a replication.
  • If he admits the gift and pleads illegality, he has to file a replication.

2. The defendant pleads re-payment in a suit for money.

  • If the plaintiff merely denies it, he need not file a replication.
  • If the plaintiff admits the payment but proposes to plead that payment was towards some other loan, he has to file a replication.

Material averments in WS Presumed to be Denied – Need not file Replication.

In MSM Sharma v. Sri Krishna Sinha, AIR 1959 SC 395, it is held as under:

  • “A mere denial of defendant’s case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue.”
  • (Quoted in:  Sheikh Noorul Hassan v. Nahakpam Indrajit Singh, 2024  AIR SC 2360; 2024-9 SCC 353)

In Anant Construction (P) Ltd. v. Ram Niwas, 1994 (31) DRJ 205, ILR 1995 2 (Del) 76, discussed the matters in detail and it was held as under:

  • “9. It is basic concept of pleadings that a defendant has to deny specifically every averment made in the plaint if he choses to dispute the same. As already stated, a non-specific or evasive denial in written statement may be taken as an admission of plaint facts. A failure to file WS would enable the Court pronouncing judgment against the defaulting defendant. However, a plaintiff is not to be treated similarly. Every material averment made in the written statement is presumed to be denied by the plaintiff and for that purpose he need not file a replication.
  • (Quoted in: Sahana Pal v. U. K.  Samanta, 2015-222 DLT 81; Arun Jaitley v. Arvind Kejriwal, 2016-3 CivCC 771; 2016-230 DLT 771)

Failure to file a replication cannot be treated as an admission

Anant Construction v. Ram Niwas, ILR 1995 2 (Del) 76, continued –

  • 21.1 The law of pleadings does not require a plaintiff to file a replication merely denying the allegations made in the written statement. Failure to file a replication cannot be treated as an admission of the plea in the written statement. Veemsekhara v. Amirthavalliammal, AIR 1975 Mad 51, Laxmansing. v. Laxminarayan Deosthan. AIR 1948 Nag 127, Bank of Behar Ltd v. Madhusudan Lal, AIR 1937 Pat 4281.
  • 21.2 In Amarjeet Singh vs Bhagwati Devi 1982 (12) RLR 156, this Court has held a pleading to mean plaint and written statement only. A plaintiff can claim relief on the basis of pleas in the plaint and not on pleas in the replication.
  • 21.3 In Roshan Lal vs. Prem Prakash, AIR 1980 Pat 59, it was held :
  • “A subsequent pleading by way of defense to a set off or counter-claim can be filed by the plaintiff as a matter of right, but the provisions do contemplate the filing of other pleading as well but by the leave of the Court and invest the Court with the widest possible discretion. Either party may, with the leave of the Court file a supplementary written statement, but at the same time the law does not compel the plaintiff to file any rejoinder to the allegations made in the written statement and the failure of the plaintiff to file such a rejoinder, cannot be treated as an admission of the plea in the written statement. The plaintiff is entitled to join issues with the defendant with respect to all those allegations which are made in the written statement and may lead evidence in rebuttal of those allegations notwithstanding the fact that he does not file any rejoinder.”
  • 21.4 Moti Ram vs. Baldev Krishan 15 (1979) DLT 90 is a single bend decision of this Court. It only says replication permitted by the Court to be filed forms part of the pleading besides the plaint and the written statement, which strictly constitute pleading under Order 6 Rule I CPC. The High Court of Punjab has in Mateshwar Dayal Vs Amar Singh, 1983 P&H 197 and Jag Dutta V. Savitri Devi held that replication is a part of the pleadings and the plea raised therein cannot be overlooked. All these decisions were cited by the learned counsel for the petitioner. Suffice it to say that replication if allowed by the court becomes a part of the pleadings. To this extent there can be no dispute”.
  • x x x x x x x x x x
  • 24. To sum up:
  • x x x x x x x x x x
  • (7) A mere denial of defendant’s case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue”. (Emphasis supplied)
  • 53. In K. Laxmanan Vs. Thekkayil Padmini and Others, (2009) 1 SCC 354, the Supreme Court held that pleadings, under Order VI Rule 1 CPC consist of only the plaint and the written statement. The plaintiff could have filed a replication in respect of the plea raised in the written statement, which if allowed by the Court, would have become the part of the pleadings.
  • But mere non-filing of a replication does not and could not mean that there has been admission of the facts pleaded in the written statement.” (quoted in: Sahana Pal v. U. K.  Samanta, 2015-222 DLT 81)

Additional Written Statement

  • If the plaint is amended, the defendant would have a right of incorporating pleas by way of consequential amendment in his written statement or by filing additional written statement to the plea introduced in the plaint by way of amendment. The practice is that the courts allow to file additional written statement to be filed after the plaint is amended. (Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003)
  • The defendant does not have any opportunity of joining additional pleadings to the pleas introduced for the first time by the plaintiff in his replication.

When Subsequent Pleadings Allowed

  • If the defendant introduces a new case, the plaintiff will be allowed to file subsequent pleading. (Shakoor v. Jaipur Development Authority, AIR 1987 Raj 19)
  • If the plaintiff amends the plaint the defendant will be allowed to file additional Written Statement (Salicharan v. Sukanti, AIR 1979 Orissa 78).
  • When it is necessary to take into account subsequent events, after the filing of the suit and to avoid multiplicity of suits. (Ramaswami Naidu v. Pethu Pillai, AIR 1965 Mad 9)
  • If a minor who attains majority is dissatisfied with the pleading filed by the guardian. Shiva Kumar Singh v. Kari Singh AIR 1962 Pat 159

Denial in Pleadings and Presumed Denial

  • It is basic concept of pleadings that a defendant has to deny specifically every averment made in the plaint if he choses to dispute the same.
  • A non specific or evasive denial in written statement may be taken as an admission of plaint facts.
  • A failure to file WS would enable the Court pronouncing judgment against the defaulting defendant. However, a plaintiff is not to be treated similarly.
  • Every material averment made in the written statement is presumed to be denied by the plaintiff and for that purpose he need not file a replication.

Amendment of Pleadings

In Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003; 2002-2 SCC 445, the Supreme Court observed as under:

  •  “A pleading, once filed, is a part of the record of the Court and cannot be touched, modified, substituted, amended or withdrawn except by the leave of the Court.
  • Order 8 Rule 9 of CPC prohibits any pleadings subsequent to the written statement of a defendant being filed other than by way of defence to a set-off or counter-claim except by the leave of the Court and upon such terms as the Court thinks fit.
  • Section 153 of CPC entitled “General power to amend” provides that the Court may at any time, and on such terms as to costs or otherwise as it may think fit, amend any defect or error in any proceeding in a suit; and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
  • Order 6 Rule 17 of the CPC confers a discretionary jurisdiction on the Court exercisable at any stage of the proceedings to allow either party to alter of amend his pleadings in such manner and on such terms as may be just.
  • The rule goes on to provide that all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.
  • Unless and until the Court is told how and in what manner the pleading originally submitted to the Court is proposed to be altered or amended, the Court cannot effectively exercise its power to permit amendment.
  • An amendment may involve withdrawal of an admission previously made, may attempt to introduce a plea or claim barred by limitation, or, may be so devised as to deprive the opposite party of a valuable right accrued to him by lapse of time and so on.
  • It is, therefore, necessary for an amendment applicant to set out specifically in his application, seeking leave of the Court for amendment in the pleadings, as to what is proposed to be omitted from or altered or substituted in or added to the original pleadings.”

Halsbury s Laws of England

The Apex Court further pointed out the English practice – how an amendment of pleadings allowed by the Court is effectuated – as stated in Halsbury s Laws of England (Fourth Edition, Vol. 36, para 63, at pages 48-49). It reads as under:

  • “63. Mode of amendment. A pleading may be amended by written alterations in a copy of the document which has been served, and by additions on paper to be interleaved with it if necessary. However, where the amendments are so numerous or of such nature or length that to make written alterations of the document so as to give effect to them would make it difficult or inconvenient to read, a fresh document must be prepared incorporating the amendments. If such extensive amendment is required to a writ it must be reissued. An amended writ or pleading must be indorsed with a statement that it has been amended, specifying the date on which it was amended, the name of the judge, master or registrar by whom any order authorizing the amendment was made and the date of the order: or, if no such order was made, the number of the rule in pursuance of which the amendment was made. The practice is to indicate any amendment in a different ink or type from the original, and the colour of the first amendment is usually red.

Amendment relates back to the date of Filing, Subsequent Pleadings Not

Our Apex Court, in P. A. Jayalakshmi v. H. Saradha,  2009-14 SCC 525 (SB Sinha, J.), observed as under:

  • “Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.”

No Inconsistent  Pleadings Possible in Subsequent Pleadings

In Mohammed Ali v. Khutejatul Kubra, ILR 2001 Kar 4580, 2002(1) KarLJ 596, the Karnataka High Court has held as under:

  • “6. A perusal of the aforesaid order makes it clear that if a party wants to plead a new ground of claim or a statement containing allegation of fact inconsistent with the previous pleadings of the party pleading the same shall be raised by way of amendment only. There is a total prohibition for pleading new claims and inconsistent statements by any other mode except by way of amendment to the existing pleadings. Though subsequent pleadings is permitted under Order 8, Rule 9 of CPC the same cannot be made use for raising pleas which are altogether new and inconsistent with the original pleadings in the written statement. Order 6, Rule 7 of the CPC deals with departure from the previous pleadings, Order 6, Rule 17 of the CPC deals with the amendment of pleadings and Order 8, Rule 9 of the CPC deals with subsequent pleadings. When they are read together distinction becomes apparent. Then it is clear by way of subsequent pleadings under Order 8, Rule 9 of the CPC new claims and inconsistent pleas cannot be raised and for raising such pleas one has to resort to Order 6, Rule 18 of the CPC only”.

Consequential Amendment – Judicially Recognized

In Gurdial Singh v. Raj Kumar Aneja, AIR 2002 SC 1003; 2002-2 SCC 445, the Court observed as regards ‘Consequential Amendment’ as under:

  • “18. When one of the parties has been permitted to amend his pleading, an opportunity has to be given to the opposite party to amend his pleading. The opposite party shall also have to make an application under Order 6 Rule 17 of the CPC which, of course, would ordinarily and liberally be allowed. Such amendments are known as a consequential amendments. The phrase “consequential amendment” finds mention in the decision of this Court in Bikram Singh & Ors. v. Ram Baboo & Ors. – AIR 1981 SC 2036. The expression is judicially recognized. While granting leave to amend a pleading by way of consequential amendment the Court shall see that the plea sought to be introduced is by way of an answer to the plea previously permitted to be incorporated by way of amendment by the opposite party.”

Amendment of Written Statement to Prejudice Plaintiff – Not Allowed

The Three Judge Bench of the Apex Court held in Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co., (1977) 1 SCR 728: AIR 1977 SC 680: 1976-4 SCC 320 – cannot be allowed to withdraw an amendment if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. In Heeralal v. Kalyan Mal,1998 (1) SCC 278, the Supreme Court followed the decision, Modi Spinning & Weaving Mills Co. Ltd. v. Ladha Ram & Co., observing as under:

  • “Even that apart the said decision of two learned judges of this Court Akshaya Restaurant v. P. Anjanappa, 1995 Supp. (2) SCC 303), runs counter to a decision of a Bench of three learned judges of this court in the case of Modi Spinning & Weaving Mills Co. Ltd. & Anr. v. Ladha Ram & Co., (1977) 1 SCR 728. In that case Ray, CJ., Speaking for the Bench had to consider the question whether the defendant can be allowed to amend his written statement by taking an inconsistent plea as compared to the earlier plea which contained an admission in favour of the plaintiff. It was held that such an inconsistent plea which would displace the plaintiff complete from the admissions made by the defendants in the written statements cannot be allowed. If such amendments are allowed in the written statement plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. In that case a suit was filed by the plaintiff for claiming a decree for Rs. 1,30,000/- against the defendants. The defendants in their written statement admitted that by virtue of an agreement date 07th April 1967 the plaintiff worked as their stockist-cum-distributor. After three years the defendants by application under order VI Rule 17 sought amendment of written statement by substituting paragraphs 25 and 26 with a new paragraph in which they took the fresh plea that plaintiff was mercantile agent cum-purchaser, meaning thereby they sought to go behind their earlier admission that plaintiff was stockist- cum-distributor. Such amendment was rejected by the Trial Court and the said rejection was affirmed by the High Court in Revision. The said decision of the High Court was upheld by this Court by observing as aforesaid. This decision of a Bench of three learned judges of this the written statement contains an admission in favour of the plaintiff, by amendment such admission of the defendants cannot be allowed to be withdrawn if such withdrawal would amount to totally displacing the case of the plaintiff and which would cause him irretrievable prejudice. Unfortunately the aforesaid decision of three member Bench of this Court was not brought to the notice of the Bench of two learned judges that decided the case in Akshaya Restaurant (supra). In the latter case it was observed by the Bench of two learned judges that it was settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. The aforesaid observations in the decision in Akshaya Restaurant (supra) proceed on an assumption tat it was the settled law that even the admission can be explained and even inconsistent pleas could be taken in the pleadings. However the aforesaid decision of the three member Bench of this Court in Modi Spinning (supra) is to the effect that while granting such amendments to written statement no inconsistent or alternative plea can be allowed which would displace the plaintiff’s case the cause him irretrievable prejudice.
  • … We were then taken to another decision of this Court in the case of Panchdeo Narain Srivastava v. Km. Jyoti Sahay and another [ 1984 (Supp.) SCC 594]. In that case the plaintiff was held entitled to amend his plaint by submitting that though earlier he stated that the defendant was uterine brother, the plaintiff by amendment in his plaint could submit that the defendant was his brother and the word ‘uterine’ could be dropped. Even in that case the main case put forward by the plaintiff did not get changed as the plaintiff wanted submit that the defendant was his brother. whether the was uterine brother or real brother was a question of decree and depended on the nature of evidence that may be led before the Court. Therefore, the deletion of word ‘uterine’ was not found to be displacing the earlier case of the plaintiff. On the facts of the present case also, therefore, the aid decision cannot be of any assistance to the learned counsel for respondents.
  • In our view, therefore, on the facts of this case and as discussed earlier, no case was made out by the respondents, contesting defendants, for amending the written statement and thus attempting to go behind their admission regarding 5 out of 7 remaining items out of 10 listed properties in Schedule-A of the plaint. However, so far as Schedule-B properties are concerned from the very inception the defendants’ case qua those properties was that plaintiff had no interest therein. By proposed amendment they wanted to introduce an event with reference to those very properties by submitting that they had been in possession of trespassers. Such amendment could not be said to have in any way adversely or prejudicially affected the case of the plaintiff or displaced any admission on their part qua Schedule-B properties which might have resulted into any legal right in favour of the plaintiff. Therefore, so far as Schedule-B properties were concerned, the amendment could not be found fault with. Hence exercising the powers under Article 136 of the Constitution of India we would not be inclined to interfere with that part of the decision of the High Court allowing the amendment in the written statement, even though strictly speaking High Court could not have interfered with even this part of the order under Section 115, CPC.

Erroneous Admissions & Earlier Findings -Effect

In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi, AIR 1960 SC 100, it was held further as under:

  • “In view of these admissions, the question of burden of proof, as we have already pointed out, is really academic, and if any burden lay upon any party, it was upon the appellant to displace by cogent and convincing evidence that these admissions were erroneous and need not be accepted in proof.”

Plea inconsistent with the case is not permitted in replication and rejoinder

RC Lahoti, J. pointed out in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, as under:

  • “A plea inconsistent with the case set out by the plaintiff in the plaint can never be permitted to be raised in replication.
  • So also a plea in rejoinder cannot be inconsistent with the case set out by the defendant in his written statement.
  • Any subsequent pleading inconsistent with the original pleading shall be refused to be taken on record and if taken shall be liable to be struck off and taken off the file.”

It is also added by Lahoti, J.

  • A plea which essentially constitutes the foundation of a claim made by the plaintiff or which is essentially a part of plaintiff s cause of action cannot be introduced through a replication.
  • A replication is always a defensive pleading in nature.

New Plea Permitted in Amendment; Not in Additional Pleading

RC Lahoti, J. held in Gurdial Singh v. Raj Kumar Aneja, 2002 AIR SC 1003; 2002-2 SCC 445, as under:

  • “A new plea cannot be permitted to be added in the garb of a consequential amendment, though it can be applied by way of an independent or primary amendment.
  • 19. Some of the High Courts permit, as a matter of practice, an additional pleading, by way of response to the amendment made in the pleadings by opposite party, being filed with the leave of the Court. Where it is permissible to do so, care has to be taken to see that the additional pleading is confined to an answer to the amendment made by the opposite party and is not misused for the purpose of setting up altogether new pleas springing a surprise on the opposite party and the Court. A reference to Order VI Rule 7 of the CPC is apposite which provides that no pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.”

Conclusion

The legal position on Replication and rejoinder is summed up by RC Lahoti, J. in Anant Construction (P) Ltd. v. Ram Niwas, 1994-4 AD (Del) 185; 1994-31 DRJ 205; 1995 2 ILR(Del) 76, as under::

  • “(1) Replication and rejoinder have well defined meanings. Replication is a pleading by plaintiff in answer to defendant s plea. Rejoinder is a second pleading by defendant in answer to plaintiff s reply i. e. replication.
  • (2) To reach the avowed goal of expeditious disposal, all interlocutory applications are supposed to be disposed of soon on their filing. A delivery of copy or the I. A. to the counsel for opposite party is a notice of application. Reply, if any, may be filed in between, if the time gap was reasonable enough enabling reply being filed.
  • (3) I. As. which do not involve adjudication of substantive righs of parties and/or which do not require investigation or inquiry into facts are not supposed to be contested by filing written reply and certainly not by filing replication.
  • (4) A replication to written statement is not to be filed nor permitted to be filed ordinarily, much less in routine. A replication is permissible in three situations. (i) when required by law; (ii) when a counter claim is raised or set off is pleaded by defendant (iii) when the court directs or permits a replication being filed.
  • (5) Court would direct or permit replication being filed when having scrutinised plaint and written statement the need of plaintiff joining specific pleading to a case specifically and newly raised in written statement is felt. Such a need arises for the plaintiff introducing a plea by way of confession and avoidance.
  • (6) A plaintiff seeking leave of the court has to present before it the proposed replication. On applying its mind the court may grant or refuse the leave.
  • (7) A mere denial of defendant s case by plaintiff needs no replication. The plaintiff can rely on rule of implied or assumed traverse and joinder of issue.
  • (8) Subsequent pleadings are not substitute for amendment in original pleadings.
  • (9) A plea inconsistent with the pleas taken in original pleadings cannot be permitted to be taken in subsequent pleadings.
  • (10) A plea which is foundation of plaintiff s case or essentially a part of causes of action of plaintiff, in absence whereof the suit will be liable to be dismissed or the plaint liable to be rejected cannot be introduced for the first time by way of replication.”

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Does Registration of a Document give Notice to the Whole World?

 Read also: Is Registration of a Deed, Notice to Govt. and Public so as to Attract Adverse Possession?

Jojy George Koduvath

Abstract

What is the Relevant provision of law that deals with the doctrine – “registration of a document give notice to the whole world”?
Sec. 3 (Explanation 1), TP Act. It lays down –
Registration of document is only a constructive notice; and, it applies only to those who subsequently acquired that property or fraction of interest thereof. (R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590)

Does ‘registration of a document‘ establish “notice in rem“?
No. It is not a notice in rem: Parganas Lawyers Clerks Association  v. State, AIR 1986  Cal. 205.
The registration of document is only a constructive notice to a person, who subsequently acquired that property or interest or any part thereof 

Does the (general) observation in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363 – that the ‘registration of a document give notice to the whole world’ – apply with full vigour in India?
No.
It is held in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana (2009) 7 SCC 363 as under:
“Registration provides information to people who may deal with a property.”

Does it work against true owner in suits on ‘Adverse Possession’ (if he has no notice as to registration of the deed )?
No.
(Arabia Bibi v. Sarbunnisa: 2011, Madras)

Does it apply, and help the accused, in a Criminal Case (cheating – for suppressing earlier mortgage)?
No.
(Kuldip Singh v. State, AIR 1954 P&H 31)

What is the object behind the Explanation to Sec. 3 TP Act?
The object of the Explanation to Section 3 is to safeguard the interests of a third party who has (already) acquired a good title under a previous registered instrument. (Kuldip Singh v. State, AIR 1954 P&H 31).
It enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability. (Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363).

Does the registration of a Private Document Binds State/ Government
No. Read the Article: Title Enquiry by the Sub Registrar is Illegal
Sub-Registrar has no Authority to Ascertain whether the Vendor has Title

Registration provides information to people who may deal with a property

It is observed in Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363, as under: 

  • “Registration of a document gives notice to the world that such a document has been executed. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property, as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete account of all transactions by which the title to the property may be affected and secure extracts/copies duly certified.”

Sec. 3 of the TP Act

Section 3 of the Transfer of Property Act defines the expression – “a person is said to have notice”.

S. 3 of the Transfer of Property Act

The relevant portion of S. 3 of the Transfer of Property Act reads as under:

  • ” ‘a person is said to have notice‘ of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.
  • Explanation I – Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instruments, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or (where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-sec. (2) of Sec. 30 of the Indian Registration Act, 1908, from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share of interest is being acquired, is situated ).
  • Provided that- (1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908, and the rules made thereunder,
  • (2) the instrument (or memorandum) has been duly entered or filed, as the case may be, in books kept under S. 51 of that Act, and
  • (3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under S. 55 of that Act.

Explanation I to Section 3 of the TP Act is explained in Ranjit Singh v. Punjab State, 2014-4 LawHerald 3533; 2014-3 RCR(Civ) 766,  as under:

  • “19. Explanation I to Section 3 of the Transfer of Property Act clarifies that where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such party shall be deemed to have notice of such instrument as from the date of registration

The Privy Council applied this Doctrine with ‘Some Modification’

In Tilakdhari Lal v. Khedan Lal, AIR 1921 PC 112, while dealing with notice of registered mortgages, it was held that ‘it would not be reasonable to hold that registration was notice to the world of every deed which the register contained’ and that ‘the doctrine must be subject to some modification’.  The Privy Council further observed on the doctrine ‘registration as notice to the world’ as under:

  • “Their Lordships find it difficult to understand how such a difference can cause the register to be notice in the one case and not in the other. In either instance the doctrine of notice must necessarily depend upon the fact that there is a public register open for inspection, to which all persons having dealings with the property can have access; in each case they have before them the means of acquiring knowledge. In India that knowledge may afford complete protection even if notice be otherwise obtained of an unregistered deed. In England and Ireland that is not the case. But the completion of the register and the penal effect of non-registration do not appear to their Lordships to be any reason for causing the register to be notice in the one case and not in the other.
  • For these reasons their Lordships think that notice cannot in all cases be imputed from the mere fact that a document is to be found upon the register under the Indian Registration Act.”

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

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

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

Deems (only) ‘Constructive Notice’ of (earlier) Deed

That too to one who Subsequently Acquired the Property

In R. Ravichandran v. The State of Tamil Nadu, 2002-2-LW 590, it is held as under:

  • “37. The legal position is well settled in that every document affecting an immovable property as provided in section 17 has to be registered so that any person who wants to deal or desire to acquire interest with such property could find out encumbrances if any, the legal obligations, rights and ownership or claim over such property, and registration acts as constructive notice to a person who subsequently acquires such property or interest or any part thereof or interest or fraction of interest thereof”.

Proposition ‘as to Notice to entire world’ is Not accepted in Adv. Possn. Claim

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J.), the suit property was sold only within the family members. Therefore, the co-owner against whom adverse possession was claimed was not in a position to know about the sale. She knew only at a later point of time. Hence it was held – that the registration is only a constructive notice to the person who has subsequently acquired such property; and that if the proposition  that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers.

Read Also: Dispossession and Knowledge: Essential Requirements of Adverse Possession

Explanation I of Sec. 3 of the Transfer of Property Act is Explained in this decision as under:

  • “29. On going through the dictum laid down in the above judgments relied on either side, I am of the opinion that the registration of document is only a constructive notice to a person, who subsequently acquired that property or interest or any part thereof or interest or fraction of interest thereof. In this regard, it would be proper to refer Explanation I of Sec. 3 of the Transfer of Property Act, which reads as follows:
    • “Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, …..”
  • Thus, it is clear that the registration is only a constructive notice to the person who has subsequently acquired such property. If the submission of the learned counsel for defendants 1, 3, 5 and 7 that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers when the property was sold without their knowledge. Further, I find that the subject property was sold only within the family members and therefore, as contended by the learned counsel for the plaintiff, she might have been in a position to know about the same only at a later point of time. Moreover, the judgments relied upon by the appellants deal with the alienation of the property to the strangers. Further, I do not find any evidence in this case with regard to open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of other co-owner, namely, the plaintiff in this case so as to constitute ouster. Therefore, in my considered opinion, the principle of ouster cannot be applied in this case. The courts below have correctly appreciated the evidence and the documents adduced by the parties. The concurrent findings of the courts below reflect the evidence on record.”

In KS Natraj v. NIL, 2020-2 KarLJ 356 (B.V. Nagarathna, Suraj Govindaraj, JJ.) it is observed as under:

  • “20. The most important purpose of registration is to secure that persons dealing with the property, where such dealings require registration, may rely upon the statements contained in the register of the Registrar of Assurances with confidence that the full and complete account of all transactions relating to or affecting the property is covered in such register.”

Apply When Wilful Abstention from Making (expected) Enquiry

In Godhan Son of Pola v. Ram Bilas, AIR 1995 All. 357, it is observed as under:

  • (22) FROM the reading of this provision along with Explanation-I, it comes out that the person is said to have notice of a fact when he actually knows that fact, or when but for wilful abstention from making such enquiry which a person normally ought to have made he would have known it. In such cases the persons can also be deemed to have notice. According to Explanation-I, where law requires a transaction to be recorded or to be entered in, completed by registered deed then in respect of such transactions which satisfy two conditions i. e. a requirement of law that transaction is to be entered into by registered instrument only and the same has been completed by registered document, then persons shall be deemed to have knowledge of that instrument from the date of registration. The registration of the document has (sic) taken to complete notice to world at large. The agreement to sale immoveable property of value of more than Rupees One Hundred, under the Transfer of Property Act, is required to be entered into by the registered document.”

Sec. 3 TP Act Notice is on immovable property; & It is not a Notice In Rem

In truth, the proposition, ‘registration of a document gives notice to the world‘ is not followed in India. In  Parganas Lawyers Clerks Association  v. State, AIR 1986  Cal. 205, it is held as under:

  • “(30) THE notice contemplated under Explanation 1 of S. 3 of the Transfer of Property Act by registration of a document relates to transactions with regard to immovable property which is required by law to be and has been effected by a registered instrument and that also for a person acquiring such property or any part or share or interest in such property. It is not a notice in rem. Testamentary documents do not come within the purview of the notice as contemplated by the said section.

As regards the object of the Explanation to Section 3, it is observed as under:

  • It enables people to find out whether any particular property with which they are concerned, has been subjected to any legal obligation or liability. (Suraj Lamp & Industries Pvt. Ltd. v. State of Haryana, (2009) 7 SCC 363).
  • The object of the Explanation to Section 3 is to safeguard the interests of a third party who has (already) acquired a good title under a previous registered instrument. (Kuldip Singh v. State, AIR 1954 P&H 31).

Registration of Sale Deed Can’t be Refused for “No Ownership“

In Nilambur Rubber Company Ltd. v. State of Kerala, 2024-4 KLT 642 (C. Jayachandran, J.), it is held that the registration of a sale deed cannot be refused, on the premise that the executant has ‘no ownership’. The court relied on the following decisions:

  • i) Noble John v. State of Kerala [2010 (3) KLT 941].
  • ii) Divakaran v. State of Kerala and Others [2016 (5) KHC 49].
  • iii) Santhosh Antonio S.Netto v. Joshy Thomas and Others [2020 (3) KHC 278 (DB)].

The Court held as under:

No provision empowers Sub Registrar to satisfy himself as to the title

In Eshaque v. Sub Registrar, 2002 (1) KLT 330, it is held that there is no provision which empowers the Sub Registrar to satisfy himself as to the title; and that the Sub Registrar is not justified in requiring the executant of the deed to produce possession certificate from the competent authority to establish possession of property. It is followed in the following decisions:

  • Sumathi v. State of Kerala, ILR 2018-4 Ker 956; 2018-5 KHC 586; 2018-4 KLT 959
  • Nilambur Rubber Company Ltd. v. State of Kerala, 2024-4 KLT 642
  • Pankaj Kumar Harlalka v. State of Jharkhand, 2002-3 JCR 152; 2005-2 JLJR 118.

Is Registration of a Deed, Notice to Government?

No.

The law does not contemplate that the mere registration of a document constitutes notice to, or acknowledgement by, the Government of the rights asserted therein. Registration cannot be equated with service of notice on the State. Sub-Registrar does not receive any notice on behalf of the Government.

  • Registration is a statutory function. It is strictly governed by the provisions of the enactment and the rules framed thereunder.
  • The Sub-Registrar has no discretion beyond what is expressly conferred by statute.
  • He exercises no adjudicatory power.
  • The Sub-Registrar performs the act of registration in a purely ministerial and administrative capacity.
  • Sub-Registrar does not represent “the Government” for purposes of receiving legal notice.
  • It cannot be equated with service of notice on the State. Sub-Registrar does not receive any notice on behalf of the Government.
  • Neither the Act nor the Rules contemplate or confer any such duty or authority on the Sub Registrar.
  • As registration is a pure ministerial act for he has no discretion, he does not make any adjudication.
  • It is not a quasi-judicial function, either.
  • Registration of the documents does not vouch the title

Section 3 of the Transfer of Property Act, 1882 (Explanation I)

Registration is does not amount to notice to the public at large

  • It operates as constructive notice only to persons who subsequently acquire
    • .(i) the property, or
    • (ii) or any interest in any part, share, or interest in that property.
  • It is not “notice to the Government”. The doctrine of constructive notice is statutorily confined; it cannot be expanded by any implication.

Explanation to Section 3 TP Act in Criminal Matters

In a criminal matter, in Kuldip Singh v. State, AIR 1954 P&H 31, it was observed as under:

  • “(I)t was contended that the registration of a document which must under law be registered is constructive notice to the whole world and, therefore, Moti Parshad must be deemed to have had notice of the previous mortgages, and, therefore, it could not be said that Moti Parshad had been cheated since, in law, he already knew the factum of the previous charges.
  • My brother Soni thought that this point was of some importance and should be considered by a larger Bench and we have, therefore, heard arguments of counsel on this point and also the other points arising in the case.
  • 3. The argument of Mr. Sibal who appeared on behalf of the petitioner is based on the wording of Sections 3 and 55, T. P. Act.
  • Explanation I to Section 3 reads as follows :
    • “Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration.”
  • Section 55(1)(a) is in the following terms :
    • “The seller is bound to disclose to the buyer any material defect in the property or in the sellers title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover.”
  • Mr. Sibal contends that the previous, mortgages were effected by means of registered deeds and, therefore, by virtue of the explanation to Section 3, Moti Parshad must be deemed to have had notice of these mortgages. Further Moti Parshad could by exercising ordinary care have discovered that the property which he was purchasing formed part of a much larger estate which was already under mortgage. Therefore, Kuldip Singh was not bound to disclose to him the previous charges and Moti Parshad must be deemed in law to be aware of them, and, that being so, Moti Parshad was not cheated, for no representation was made to him.
  • 4. The Transfer of Property Act deals with the rights of individuals in the property which is the subject-matter of any transaction. It is not concerned with whether a person has been cheated or not. The object of the explanation to Section 3 is to safeguard the interests of a third party who has acquired a good title under a previous registered instrument but it does not in any way alter or modify the criminal liability of a person who deliberately suppresses certain facts or misstates certain facts. If A has sold some property to B by a registered deed and he then sells it again to C, C cannot acquire a good title in the property because he must be deemed to have had notice of the previous registered sale deed in favour of B but nevertheless he was made to part with money on a misrepresentation made by A and therefore A is guilty of the offence of cheating. This is the case which is mentioned in illst. (i) to Section 415, Penal Code. The doctrine of constructive notice cannot be imported into criminal law for the purpose of determining whether a person is guilty of the offence of cheating or not.”

End Notes

Registration of Title deed is insignificant, If inherent defect in Title

The inherent defects in the title of a party to a suit will not stand cured by the existence of a lawfully registered sale deed (P.  Kishore Kumar v. Vittal K.  Patkar, 2023  INSC 1009; 2023 14 SCR 796). The title of the executant does not automatically stand confirmed, even if the subsistence of a deed is proved. It is also a trite law that if the vendor had no pre-existing rights, a document could not convey any interest (NeelakantanDamodaranNamboothiri v. VelayudhanPillai NarayanaPillai, AIR 1958 SC 832; K. Vattakandiyil Madhavan v. Janaki, 2024(2) KLT 789 (SC).

If the vendors had ex facie no ownership rights (under any prior document) to convey the same to the transferee, the doctrine Nemo Dat Qod Non Habet applies (Kavita Kanwar v. Pamela Mehta, (2021) 11 SCC 209; Rusoday Securities v. National St. Exchange 2021-3 SCC 4017; Umadevi Nambiar v. Thamarasseri Diocese, AIR 2022 SC 1640; P. Kishore Kumar v. Vittal K Patkar, 2024-1 CTC 547; Chandra Gopiv. U. K. Gopalakrishnan, 2013-1 KHC 174, Sarojini v. Santha Trading Co., 1969 KLT 412).

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Justiniano Antao v. Bernadette B. Pereira: Easement – Should Date of Beginning of 20 Years be pleaded?

Saji Koduvath, Advocate, Kottayam

Abstract

  • It may not be legitimate to insist on to ‘specify the date of beginning’ in the claims on easement by prescription – in the same manner it is insisted in adverse possession claims.
  • The concept of easement is appreciated in law as a benevolent right for the beneficial enjoyment of the dominant tenement; whereas ‘adverse possession’ curtails the rights of a true owner applying strict legal principles.

There should be specific pleadings

In Justiniano Antao v. Bernadette B. Pereira, (2005) 1 SCC 471, it was pointed out as follows:

  • “In order to establish a right by way of prescription to the detriment of the other party, one has to show that the incumbent has been using the land as of right peacefully and openly and without any interruption for the last 20 years. There should be specific pleadings and categorical evidence in general and specifically that since what date to which date one is using the access for the last 20 years.”

Justiniano Antao v. Bernadette B. Pereira distinguished

Kerala High Court, in Soman Nair v. Manoj Kumar, 2014 (P. Bhavadasan, J.) distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

  • “12. A reading of the decision reported in Justiniano Antao’s case (cited supra) would reveal that the dictum has to be read in the context of facts of the case. That was a case where the Apex Court found that till 1984, the claimant was using another way and only thereafter the claim over the way through servient tenement was made. A vague assertion had been made in the said case that the pathway has been used for a long time. It was under those circumstances, the Apex Court had occasion to hold as mentioned above.
  • 13. In the case on hand, the definite pleading as could be culled out from the written statement and counter claim is that defendants as well as their predecessors-in-interest have been using the pathway in question for a long time in fact for more than 30 years and this is only means of access  to their property.”

Pappachan v. Alex, ILR 2023-3 Ker 523; 2023-5 KHC 10, distinguished the decision Justiniano Antao v. Bernadette B. Pereira, observing as under:

  • “24. In Justiniano Antao (supra) there was no pleading by the plaintiff that she used the pathway in question for a period of 20 years. Holding that in the absence of such a pleading which is elementary and essential to claim a prescriptive easement right, the Apex Court held that the date from which the right of way was started to use should have been pleaded.
  • The pleadings set forth by the appellants in this case certainly constitute sufficient pleadings to claim easement by prescription. It is true that they did not plead as to from which date they started using that pathway. They, however, pleaded that for the last more than 35 years they have been using that pathway. In the light of such a specific pleadings the law laid down in Justiniano Antao [(2005) 1 SCC 471] does not disentitle the appellants from claiming the relief.”

Importance of ‘Date of Beginning’ in Adverse Possession

Easement right is recognised in law for the ‘beneficial enjoyment’ of the dominant tenement; whereas ‘adverse possession’ curtails and defeats the rights of a true owner, applying strict legal principles. Therefore, the requirement to plead the “date of beginning” holds significant in the claim of adverse possession.

In Karnataka Board of Wakf v. Govt of India, (2004) 10 SCC 779, it was specifically held, as regards claims adverse possession, as under:

  • “Therefore, a person who claims adverse possession should show
    • (a) on what date he came into possession,
    • (b) what was the nature of his possession,
    • (c) whether the factum of possession was known to the other party,
    • (d) how long his possession has continued, and
    • (e) his possession was open and undisturbed.
  • A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.”

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Principles of Equity in Indian Law

Saji Koduvath, Advocate, Kottayam.

Introduction

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

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

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

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

When an Indian Court Invokes Equitable Jurisdiction

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

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

Courts of Equity Proceed on First Principles

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

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

Where No Positive Law, Equity Invoked to Fill the Gaps

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

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

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

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

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

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

CPC, CrPC and Constitution of India & Source of Law

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

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

Indian Courts are governed by principle of equity

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

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

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

Rule of Equity & No Perpetration of a legal fraud

Black’s Law Dictionary reads follows:

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

Legal fraud which a Court of Equity must prevent

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

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

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

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

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

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

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

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

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

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

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

Perpetration of a legal fraud

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

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

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

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

Mere false description not vitiate, if sufficient legal certainty

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

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

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

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An Instance of Invoking Equity Jurisdiction in Easement

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

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

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

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

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

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

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

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