RTI replies or information (other than certified copies) are not substantive evidence in law. Therefore, they are not admissible in evidence as public documents, or as secondary evidence.
Where copy of a Public Documentis issued under the RTI Act, recording it to be a certified copy [under Section 2 (j)(ii)], it is admissible in evidence (to prove the contents of the public documents) under Sec. 77of the Evidence Act.
Where the copy of a document, which is not a Public Document, is issued under the RTI Act, recording it to be a certified copy [under Section 2 (j)(ii)], it is admissible in evidence, only with further evidence as to the non-production of the original (as required under Sec. 65, Evidence Act).
Notwithstanding anything stated above, in a proper case, the court can invoke presumptions as regards official acts, under Sec. 114, Evd. Act (The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case).
Illustration (e) of Sec. 114, Evd. Act specifically states that ‘regularity’ can be presumed on Judicial and official acts. Presumptions may include genuineness or truth also.
Law on this Point
Evidence Act
Section 65 of Evidence Act reads as under:
““65. Cases in which secondary evidence relating to documents may be given – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases –
(a) … (e) …
(f). when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India, to be given in evidence**;
(g) …
…. …
In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible.”
**“to be given in evidence ” denotes – giving copy in evidence without reference to “original”.
By virtue of the above provisions in Sec. 65, it is often debated that ‘a certified copy’ of the Sale Deed alone, and “no other kind of secondary evidence, is admissible”. It is not well-founded; because,
(1) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a public document within the meaning of section 74” – referred to in clauses (e) of Sec. 65,and
(2) the copy of the deeds in the Books in the Sub Registrar’s Office is not “a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence” – referred to in clauses (f) of Sec. 65.
No (procedural) law permits production of ‘certified copy’ of a sale deed, in the court, without saying where the original is or it is lost (i.e., without laying the foundational evidence for the non production of the original).
Note: Sec. 57 of the Registration Act reads as under:
“57. Registering officers to allow inspection of certain books and indexes, and to give certified copies of entries —
(1)… (2) … (3) … (4) …
(5) All copies given under this section shall be signed and sealed by the registering officer, and shall be admissible for the purpose of proving the contents of the original documents.”
It is definite – the words, “shall be admissible for the purpose of proving the contents of the original” cannot be read as (or equated to): “certified copy … permitted by this Act, or by any other law in force in India to be given in evidence” (Because, the words in Sec. 57 do not authorise to give (certified) copy in evidence without reference to “original”).
Therefore, it appears that any kind of (admissible) secondary evidence of a sale deed can be given in evidence; and production of certified copy cannot be insisted. (If it falls under clause (e) or (f) of Sec. 65, certified copy alone can be given – as secondary evidence.)
Following decisions considered both Sec. 57 of the Registration Act and Sec. 65 (e) & (f) Evidence Act and found that in the absence of a registered sale deed, a certified copy could be filed as secondary evidence; but, they did not ponder on the point whether “a certified copy alone can be filed”.
Puspa Dey v. Sukanta Dey, 2019-3 CalLT 206
Upendra Rao v. M. K. Ammini, ILR 2017-1 (Ker) 466;
Om Parkash v. Ram Gopal, 2011-4 PLR 364;
Ismail Gafurbhai Vohra v. Kirit Bhagvatprasad Vyas, 2013-2 GLR 1230;
Sandeep v. State of Haryana, 2011-4 LawHerald 3507,
Kalyan Singh v. Smt. Chhoti, AIR 1990 SC 306,
Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706,
Sec. 74. reads as under:
74. ‘Public documents‘: The following documents are public documents :-
(1) documents forming the acts, or records of the acts
(i) of the sovereign authority,
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth or of a foreign country;
(2) Public records kept in any State of private documents.
77. Proof of documents by production of certified copies. Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies.
RTI – Act
Section 2 (j) of the Right to Information Act, 2005 defines “Right to Information” as under:
“(j). “right to information” means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to –
(i) …. ……
(ii) taking notes, extracts, orcertified copiesof documents or records.
Import of “To be Given in Evidence” in Sec. 65(f)
Sec. 65 Evidence Act deals with “Cases in which secondary evidence relating to documents may be given”. Sec. 65 (f) lays down two conditions:
When the original is a document of which a certified copy is permitted, by the Evidence Act, to be given in evidence.
If certified copy is permitted, by any other law in force in India, to be given in evidence.
RTI-Certified-Copy, other than Public Document, Can be received in evidence only on showing reason for non production of Original
The RTI Act, though allows certified copy, it does not permit the same “to be given in evidence“. Therefore, the ‘certified copy’ obtained under the RTI Act can be received in evidence either (i) it is a public document (of which a certified copy is permitted by the Evidence Act) or (ii) it is permitted to be produced on showing reason for non production of original etc. (under Sec. 65 Evidence Act).
In Narayan Singh v. Kallaram, AIR 2015 MP 186, it was observed that RTI documents can be admitted as secondary evidence. The MP High Court held as under:
“Clause (f) of Section 65 of Evidence Act makes it crystal clear that a certified copy permitted under the Evidence Act or by any other law in force can be treated as secondary evidence. Right to Information Act, in my view, falls within the ambit of “by any other law in force in India”. The definition of “right to information” makes it clear that certified copies of documents are given to the citizens under their right to obtain information. In my view, the court below has rightly opined that the documents can be admitted as secondary evidence. I do not see any merit in the contention that the documents obtained under the Act of 2005 are either true copies or attested copies. The definition aforesaid shows that the same are certified copies.”
It appears that the High Court did not give effect to the words “permitted … to be given in evidence”.
PRESUMPTIONunder Sec. 114, Evid. Act read with Sec. 35.
Sec. 35 Evd. Act lays down that ‘an entry in any public or other official book, register or record or an electronic record‘ will be a relevant fact.
Sec. 35 of the Evidence Act reads as under:
“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
Note: Relevancy engrafted to Sec. 35 Evd. Act is “entryin” any public or official book, register etc.; it is not attached to the certificates or information given under the RTI Act.
Besides direct evidence, or admission, the contents of a document can also be proved by circumstantial evidence or by invoking presumption. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, can be used to prove the existence and genuineness/truth of a document.
Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases. ‘Regularity’ in Illustration (e) is not exactly the presumption as to ‘correctness or truth’. For such presumption, we have to resort the main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’, etc..
Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held by our Apex Court in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:
“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”
In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under
“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).
As shown above, relevancy attached to Sec. 35 Evidence Act is “entryin” any public or official book made by a public servant in the discharge of his official duty; it is not engrafted to the certificates or information given under the RTI Act.
The usual method to prove documents (both, existence and truth of contents) is giving oral evidence or furnishing affidavit. A certificate, in most cases, is an opinion, and prepared on the basis of other documents or evidences. In such cases, when it is an assumption or inference, it by itself, is not admissible, as it will only be, at the most, a secondary evidence. A Wound Certificate is not a substantive evidence. It has to be proved by a competent witness. If presumption cannot be invoked under Clause (e) of Sec. 114 Evidence Act (that judicial and official acts have been regularly performed), especially in the light of ‘best evidence rule’, no certificate or report can be taken as proved unless its contents are proved in a formal manner. (This is why Order XXVI rule 10 CPC specifically says – Commission Report shall ‘form part of the record’.)
Our Apex Court held in Dharmarajan v. Valliammal, 2008 (2) SCC 741, that ‘a certificate issued by the Tahsildar cannot be relied on without examining the Tahsildar who issued the same’. It is referred to in Pankajakshan Nair v. Shylaja, ILR 2017-1 Ker 951.
Our Apex Court observed in State of Himachal Pradesh v. Jai Lal, (1999) 7 SCC 280, as regards expert opinion that falls under Sec. 45 Evidence Act, as under as under:
“An expert is a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and material furnished which form the basis of his conclusions.”
The information collected from the records of an office by an RTI Officer, or that furnished in RTI Reply, cannot be placed in a higher pedestal than the ‘opinion’ of an expert under Sec. 45 of the Evidence Act. In short, the RTI Reply, by itself, will not be a substantive evidence.
Note:
Following Decisions State theViews of our Courts
Kumarpal N. Shah v. Universal Mechanical Works, AIR 2019 Bom 290.
Under RTI, usually the applicant gets Photostat copies of the documents which are certified as true copies. They cannot be equated with certified copies mentioned in the Evidence Act. In other words, if the official under RTI certifies and supplies a private document, it still remains a private document. Thus, the RTI Act does not affect the nature of a document (Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112 referred to).
Datti Kameswari v. Singam Rao Sarath Chandra, AIR 2016 AP 112.
The Xerox copy certified by the designated Public Information Officer under Right to Information Act of the private documents are not certified copies within the meaning of the provisions of Section 65 of the Evidence Act. They are merely true copies of the private documents available in the records of the particular Department. The production and marking of such copies is permissible only after laying a foundation for acceptance of secondary evidence under clauses (a) (b) or (c) of Section 65 of the Act. The condition prescribed under the above cases (a), (b) or (c) of Section 65 of the Act have to be fulfilled before marking the true copies obtained under the Right to Information Act. However, the true copies of public documents certified by the designated Information Officer can be taken as certified copies of the public documents.
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Following are the two important decisions of the Constitution Bench of our Apex Court that articulated and verbalized the law on Article 25 and 26 of the Constitution of India:
(i) The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt(AIR 1954 SC 282) – Seven Judge Bench – MC Mahajan, CJ, BK Mukherjea, , SR Das, Vivian Bose, Ghulam Hasan, NH Bhagwati, TL Venkatarama Aiyyar.
(ii)Durgah Committee, Ajmer v. Syed Hussain Ali (AIR 1961 SC 1402). Five Judge Bench – Gajendragadkar, CJ., Sarkar, Das Gupta, Rajagopala Ayyangar, KN Wanchoo.
In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, it was held as under:
Protection under Article 25(1) of the Constitution extends to (all) religious ‘acts’.
‘Organizations‘, ‘Sects, Sub-sects‘, etc. have the “right to manage its own affairs ” under Article 25(2).
“What constitutes the essential part of a religion is primarily to be ascertained WITH REFERENCE TO the doctrines of that religion itself.“
In Durgah Committee, Ajmer v. Syed Hussain Ali, it was held as under
The ‘essential practices’ of RELIGION alone is considered.
The religious practices ‘that may have sprung from merely superstitious beliefs’ and ‘unessential accretions to religion’ may have to be carefully SCRUTINISED BY theCOURT.
Note: All five judges in Durgah Committee changed their views, in two subsequent decisions, as to the ‘ROLE FOR THE COURT‘ in determining the essential religious practice; and observed that what was regardedby the COMMUNITY on essential religious practice was important.)
Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, as to the enquiry on integral part of religion, in a subsequent Five Judge Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638 (consisted also of two Judges in Dargah Committee Case, other than Gajendragadkar, J.), that
In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is REGARDED as such by the COMMUNITY following the religion or not.
This question (as to essential religious practice) will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the CONSCIENCE of the COMMUNITYand the tenets of its religion.
In Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay,AIR 1962 SC 853, it was held by a Constitution Bench (Sinha, C. J. dissenting) of five Judges (consisted of three Judges in Dargah Committee Case)
that the protection is extend to acts done in pursuance of religion and it contains a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion; and
that what constitutes an essential part of a religion or religious practice has to be decided by the courtswith reference to the doctrine of a particular religion and include practices which are REGARDED by the COMMUNITYas a part of its religion.
In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is pointed out that there is apparent conflict between the Shirur Mutt Case and Durgah Committee Case.
It is observed –
Seven Judges bench of the Apex Court, in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt), held that what were essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION itself.
The subsequent Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carved out a ROLE FOR THE COURT in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.
Both these decisions ‘seem to be in apparent conflict‘.
It requires consideration by a larger Bench.
Introduction
Sabarimala Case (pertaining to right of entry of women in Sabarimala Temple) is placed before a nine-judge-bench of the Supreme Court of India for considering the Review-Reference. Following matters are also pending before the nine-judge-bench:
(i) Right of entry of Muslim women in durgahs/mosques,
(ii) Right of entry of Parsi women, married to non-Parsis, into the holy fire place of Agyari and
(iii) The challenge to the practice of female genital mutilation in Dawoodi Bohra Community.
Cardinal Questions before the Nine-Judge-Sabarimala-Review-ReferenceBench
Important Constitutional issues in this matter placed before the nine judge bench are, substantially, the following:
Article 25 (1) allows – Subject to public order, morality and health, all persons are entitled to the right freely to profess, practiseand propagate religion.
Whether ‘Organizations’, ‘Sects, Sub-sects’, Community, Groupfollowers of Ayyappa, Dawoodi Bohra Community etc.have the “right to manage its own affairs “. Or, whether confined to ‘essential practices’ of RELIGION alone?
Article 25 (2) allows the State to make any law regulating or restricting any “other secular activity” which may be associated with (essential)religious practices. Should such essential religious practices (subject to public order, health and morality) be
left to be determined by the denomination or any section thereofitself?
Or, whether the determination of ‘essential religious practices’ remains in the field of COURTS?
Do the words in Article 26, “every religious denomination or any section thereof shall have the right to manage its own affairs in matters of religion” give
a fundamental right to the denomination or any section thereof to (i) ‘manage its own affairs’ which no legislature can take away and (ii) enjoy complete autonomy so that no outside authority has any jurisdiction.
Or, whether all the afore-stated rights and protections are confined to such practices as are an essential and an integral part of RELIGION and NO OTHER ?
Art. 25 & 26 of the Constitution is the heart and soul of Religious Freedom
The framers of the Constitution placed the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India. They are the Fundamental Rights relating to the Freedom of Religion.
Article 25 and 26 read as under:
25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
Following important findings are rendered in the first decision, Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt:
(i) Right tomanage the affairs of religion is a fundamental right which cannot be taken away by legislature.
(ii) The right and guarantee given to administer property being ‘in accordance with law’, the law, ‘must leave the right of administration to the religious denomination itself’ subject to such restrictions and regulations imposed by laws by legislature.
Following important finding is rendered in the second decision, Durgah Committee, Ajmer v. Syed Hussain Ali (Justice Gajendragadkar):
“Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
It is held further in Dargah Committee case as under:
“If these practises were found to be purely secular practices or mere practices sprung from‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“
Observation in Dargah Committee Case only an Obiter according to Seervai
The observation in Dargah Committee case as to “…practices though religious may have sprung from merely superstitious beliefs and may in that sense is extraneous and unessential accretions to religion itself” is criticised by Seervai in his treatise ‘Constitutional Law of India’ and observed that it was only an obiter. From this decision, it may appear that these are matters that dwell within the domain of Courts. (That is, the yardstick would be the consciousness of Court.)
Gajendragadkar J., Subsequently, Affirmed- ‘Enquiry on Tenets of Religion’
But, Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, as to enquiry on integral part of religion, in a subsequent Constitution Bench [BP Sinha, CJ, Gajendragadkar, Wanchoo, Das Gupta, JC Shah JJ.] decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638, as under:
“In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practice in question is religious in character and if it is, whether it can beregarded as an integral or essential partof the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion.”
CONFLICT between SHIRUR MUTT CASE and DURGAH CASE
The law handed down by the Supreme Court in these two rulings are divergent in certain material particulars. They are:
Whether ‘religious Denomination or any section thereof‘ extends to religious ‘Organization’, ‘Sect, Sub-sect’ etc.? (Shirur)
Or, whether protections in Article 25 and 26 are limited to practices that are essential and integral part of RELIGIONand no other? (Durgah)
Who determines –what constitutes the essential part of a religion? Is it left to be determined by the Denomination or Section; and whether a religion or any section thereof holds the fundamental right to ‘manage its own affairs‘ (which no legislature can take away) and enjoys complete autonomy (so that no outside authority has any jurisdiction); and whether it is primarily to be ascertained with reference to the doctrines of that religion itself? (Shirur)
Is it determinedby the COURT? (Durgah)
Whether the freedom to ‘practice religion’, protect ‘(all) acts done in pursuance of a religion; and whether freedom of religion is guaranteed to all religious practices, except that which run counter to public order, health and morality. (Shirur)
Or, whether protections in Article 25 and 26 are limited to practices that are ESSENTIAL and INTEGRAL part of Religion and no other? (Durgah)
The findings of the Apex Court, in these cases, on Article 25 and 26, can be summarised as under:
Durgah Committee (1961) Five Judge Bench. (Author: Gajendragadkar, J.)
Shirur Mutt (1954) Seven Judge Bench. (Author: BK Mukherjea, J.)
1. The rights protected are limited topractices of ‘RELIGION’ in a strict sense. “Unless such practices arefound to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“ “If these practises were found to be purely secular practices or mere practices sprung from‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“
Extends to religious DENOMINATION or a SECTION THEREOF, and includes ‘Organization‘, ‘Sects,Sub-sects‘, etc. “After Sankara, … religious teachers … founded the different sects and sub-sects …. Each one of such sects or sub-sects can certainly be called a religious denomination …” “The word ‘’denomination’ … mean … a religious sect or body ….” “If the tenets of any religious sect of the Hindus prescribe that offerings of food … be regarded as parts of religion. “A religious denomination or organization enjoys complete autonomy …” “There could be other affairs of .. denomination or a section thereof .. not matters of religion … guarantee given ….” [In Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay, AIR 1962 SC 853, “Community” is considered.]
2. COURTdetermines “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (That is, court determines and ‘carefully scrutinises’. That is, there is scope for the court to apply its own conscience.) Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963AIR SC 1638, authored by Gajendragadkar, J himself; (ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853, Authored by BP Sinha.
It is found in this decision: “What are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself” (So observed in Sabarimala Reference decision). What rites and ceremonies are essential –No outside authority has any jurisdiction. “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” “A religious denomination or organization enjoys COMPLETE AUTONOMYin the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” “The ‘right to manage its own affairs in matters’ of religion “is a fundamental right which no legislature can take away“.
3. The rights protected are limited to such RELIGIOUS PRACTICES as are ESSENTIAL and INTEGRAL part of religion and no other. “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
Note: This proposition is not followed in (i) Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan, 1963 AIR SC 1638 [Held: The Court may have to enquire whether the practice in question is religious in character and if it is, whether it can be regarded as an integral or essential part of the religion];
(ii) Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay, AIR 1962 SC 853 [Held: Include practices which are regarded by the COMMUNITY as a part of its religion].
The rights protected are extended to (ALL) ACTS DONE IN PURSUANCE OF A RELIGION. “Our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ‘practice of religion‘. “The contention in broad terms that all secular activities (which may be associated with religion) which do not really constitute an essential part of it, are amenable to State regulation cannot be supported.” “If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or ablations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of article 26(b).”
4. Not refer to public order, health and morality “Unless such practices are foundto constitute an ESSENTIAL and INTEGRAL part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised.”
(That is, emphasis is given to (i) ESSENTIAL and integral part of a RELIGION and (ii) assigns serious ROLE FOR THE COURT.)
Extends to (ALL) PRACTICES except when they do not run counter to public order, health and morality “What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” “There could be other affairs ofa religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”
Sardar Syedna Taher Saifuddin Saheb Vs. The State of Bombay
(AIR 1962 SC 853 – BP Sinha, CJ., AK Sarkar, Das Gupta, N. Rajagopala Ayyangar, Mudholkar, J.J.)
Note: 1. Sarkar, Das Gupta , Rajagopala Ayyangar were also judges in Durgah Committee, Ajmer Vs. Syed Hussain Ali. [Other Judges in Durgah Committee were – Gajendragadkar, and KN Wanchoo.]
Note: 2. This decision is stand referred to a larger bench by Central Board of Dawoodi Bohra Community v. State of Maharashtra (2005) 2 SCC 673.
The Bombay Prevention of Excommunication Act, 1949 was challenged in Sardar Syedna Taher Saiffuddin Saheb Vs. State of Bombay. This Act made act of “ex-communication” illegal under Sec. 3, which reads as under:
“3. Notwithstanding anything contained in any law, custom or usage for the time being in force to the contrary, no excommunication of a member of any community shall be valid and shall be of any effect.”
Sec. 4 made excommunication, a punishable offence. The Act was challenged by the head of the Dawoodi Bohras, as:
being impinging upon the right of the Dawoodi Bohras to freely practice their religion according to their own faith and practice, a right guaranteed under Articles 25 and 26 of the Constitution.
It was contended that the right of the head of the Dawoodi Bohra community to ex-communicate is an essential part of the creed of the Dawoodi Bohra sect as it is a necessary measure of discipline for maintenance of integrity of the community, to hold together the community, so that the community faith, belief and practice can be preserved and hence protected by Article 26(b).
The Supreme Court, by majority (4 : 1), accepted the argument and struck down the Act as violative of Article 26(b) of the Constitution. It is pointed out in this decision as under:
“The content of Arts. 25 and 26 of the Constitution came up for consideration before this Court in:
The Commissioner, Hindu Religious Endowments Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt;
Mahant Jagannath Ramanuj Das Vs. The State of Orissa;
Sri Venkatamana Devaru Vs. The State of Mysore;
Durgah Committee, Ajmer Vs. Syed Hussain Ali and several other cases
and the main principles underlying these provisions have by these decisions been placed beyond controversy.
The first is that the protection of these articles is not limited to matters of doctrine or belief, they extendalso to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral partsof religion.
The second is that what constitutes an essential part of a religious or religious practice has to be decided by the courts with reference to the doctrine of a particular religion andinclude practices which are regarded by the COMMUNITY as a part of its religion.” (This part is referred to in Most Rev. P.M.A. Metropolitan Vs. Moran Mar Marthoma, AIR 1995 SC 2001)
It is also held as under:
“It is clear however that apart from these limitations the Constitution has not imposed any limit on the right of a religious community to manage its own affairs in matters of religion. The fact that civil rights of a person are affected by the exercise of this fundamental right under Art. 26(b) is therefore of no consequence. Nor is it possible to say that excommunication is prejudicial to public order, morality and health.”
In this decision the Constitution Bench of our Apex Court:
observed that the exercise of the power of ex-communication by the religious head on religious ground form part of the management of its affairs in matters of religion and
held that it was difficult to agree that court was not a forum for vindication of such right.
The Chief Justice , SB Sinha (minority) observed as under:
“That conclusion is further strengthened by the consideration that the effect of the excommunication or expulsion from the community is that the expelled person is excluded from the exercise of rights in connection not only with places of worship but also from burying the dead in the community burial ground and other rights to property belonging to the community, which are all disputes of a civil nature and are not purely religious matters.”
“Religious Denomination or Any Section Thereof“
In Adi Saiva Sivachariyargal Nala Sangam Vs. Govt. of TN (2016)[113] the Apex Court (Ranjan Gogoi & NV Ramana JJ), 2016- 2 SCC 725 considered the ‘religious practice’ of a GROUP or denomination. In Sri Venkataramana Devaru Vs. The State of Mysore (1958),[114] (Venkatarama Aiyar, J.), AIR 1958 SC 255, observed that it was settled that matters of religion in Art. 26(b) include even practices which are regarded by the COMMUNITY as part of its religion.
Commissioner of Police v. Acharya Jagadishwarananda Avadhuta (2004)
It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaranand Avadhuta v. Commr. of Police, AIR 1984 SC 51), the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case, Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, AIR 2004 SC 2984, the majority rendered its verdict following Durgah Committee, Ajmer v. Syed Hussain Ali, which observed that ‘the protection must be confined to such religious practices as are an essential and integral part of it and no other‘.
The minority view in this decision is rendered by AR Lakshmanan, J. It is laid down as under:
“This observation of this Court (in Durgah Committee, Ajmer v. Syed Hussain Ali), in our view, runs counter to the observation of Mukherjee, J. in The Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are –
“We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others….
….If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire all these would be regarded as parts of religion…”
In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami etc. v. The State of Tamil Nadu [AIR 1972 SC 1586], this Court has held that –
‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and theNational Anthem case(Bijoe Emmanuel v. State of Kerala) reported in [AIR 1987 SC 748] and Sri Venkataramana Devaru& Ors. v. State of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”
In the Sabarimala review-reference (to higher Bench) Judgment, Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-2 SCC 1, it is observed that there is conflict between the Shirur Mutt Case and Durgah Committee Case. In the aforesaid review-reference-judgment the Court said as under:
“7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the DENOMINATION ITSELF and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer v. Syed Hussain Ali & Ors. carving out a ROLE FOR THE COURT in this regard to exclude what thecourts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”
The issues placed before the nine-judge-bench are reframed in Kantaru Rajeevaru v. Indian Young Lawyers Association, 2020-3 SCC 52, as under:
1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent ofjudicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression “Sections of Hindus” occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?
Inter-play between the Rights under Article 25 and Article 26
Art. 25 refers to rights of personsfreely to profess, practiceand propagatereligion. Art, 26 says as to the rights of every religious denomination or any section thereof to manage its own affairs in matters of religion.
From the above, the following questions emerge:
Do religious denomination or any section thereof have a right to freely to profess, practiceand propagatereligion
Do personshave a right to manage his own affairs in matters of religion.
Prohibition of Entry of Muslim Women in Mosques in India: Points Placed in Challenge
The petitioners in the Writ Petition, Yasmeen Zuber Ahmad Peerzade v. Union of India, filed before the Supreme Court under Article 32 of the Constitution of India, sought the declaration that the practices of prohibition of entry of Muslim Women in Mosques in India is illegal and unconstitutional for being violative of the fundamental rights to equality, life and liberty and freedom of religion, proclaimed under Articles 14, 15, 21, 25 and 29 of the Constitution. They placed the following points for the consideration of the Apex Court:
The prohibition is void and unconstitutional as such practices are repugnant to the basic dignity of a woman as an individual.
The arbitrary prohibition imposed on women is violate of Article 14 of the Constitution of India – to be treated equally – and Article 15 of the Constitution which clearly prohibits discrimination by the government on the basis of sex.
The prohibition imposed is violative of fundamental rights under Articles 25and 29 also of the Constitution of India.
Preventing the females from entering mosque is violative of Article 44 of the Constitution of India which directs the State to endeavour to secure uniform civil code.
The exclusion of women is, nonetheless, not supported by reasons of “public order”, “health”, “morality” (in Article 25), and, in any case, Article 25(1) will not take precedence over other articles.
A woman’s entry to a masjid or eidgah (a place where Muslims congregate for Eid-ul-Fitr and Eid-ul-Azha celebrations) does not create fitna (distress).
In the Hajj pilgrimage and Umrah (a lesser Hajj) thousands of Muslim women gather and perform Hajj rituals such as tawaf (walking around the Ka’ba) and sa’I (running between the hills of Safa and Marwa) and ramye zamrat (stoning of the devil ceremony) along with their male counterparts.
Religious bodies ask for and receive taxpayers’ money from the government are also subject to the conditions imposed by our Constitution.
The historical sources also show that Prophet Muhammad had himself encouraged women to actively participate in mosque congregations and prayer.
The most sacred mosque in the world for Muslims, Masjid-al-Haram in Mecca, embraces both men and women and there is complete unanimity in the Muslim community on the Masjid-al-Haram in Mecca – to all Muslims in the world.
The Apex Court, in Khursheed Ahmad Khan v. State of Uttar Pradesh and Others, (2015) 8 SCC 439, has taken the view that practices permitted or not prohibited by a religion do not become a religious practice or a positive tenet of the religion, since a practice does not acquire the sanction of religion merely because it is permitted.
The petitioners also argued that there is nothing in the Quran and the Hadith that ‘requires gender segregation’and that the Legislature has failed to ensure the dignity and equality of women in general and Muslim women in particular.
Stance of the contesting respondents
The contesting respondents have not filed their response in Court. Their stance, as appears from the counter affidavit filed by the All India Muslim Personal Law Board, would be, mainly, the following:
The issues do not pertain to any statute.
The alleged rights cannot be enforced against non-state entities like Mosques.
Friday Namaz in congregation is not obligatory for women, though it is so, on Muslim men. As per doctrines of Islam, a woman is entitled to the same religious reward (Sawab) for praying as per her option either in Masjid or at home.
The matters involved are religious practicesbased upon beliefs of the religion.
They are not matters ‘merely concern’ the management of a religious place.
They are not the activities ‘only concern’ regulating the activities connected with religious practice.
The matters involved are matters concern of Masjids, purely private bodies regulated by Muttawalis.
It is not appropriate for the Court to enter into or interpret the religious principles/beliefsand tenets, invoking Articles 14, 15, 21, 25 and 29 of Constitution of India.
It is not appropriate for the Court to attempt to answer issues that are matters of faith alone, when there is no ‘threat to life and liberty’.
It is not appropriate for the Court to interfere in religious beliefs and the practice of the essential features of any religion protected underArticle 26.
In the absence of any state action, it is not appropriate for the Court to judicially determine or interfere in, or to seek resolution of, various aspects on ‘faith and belief’, and essential religious practices of faith, through judicial process. It should be left to be resolved through the processes of social transformation within the religious denomination itself.
During the pendency of the present petition, a five Judge Bench judgment in Kantaru Rajeevaru Vs. Indian Young Lawyers Association [Sabarimala-Case-Review from 2019-1 SCC 1] has referred matters involving Articles 14, 25 and 26 to larger bench. The matters involved in that case are much relevant in this case also.
Excommunication of Parsi Women for Marrying a Non-Parsi
A Parsi woman will lose her religious identity if she marries a Non-Parsi. Unlike a woman, a Parsi man will not face such a predicament. Can this anomaly be saved as an ‘essential religious practice’? Is it an ‘integral practice’ touching upon the right to profess, practice and propagate one’s own religion? These were the main questions placed before the Gujarat High Court in the writ petition in Ms. Goolrokh Gupta v. Burjor Pardiwala, AIR 2012 CC 3266. The petitioner contended as under:
No tenet of Zorastrianism denied a born Parsi woman, rights to her religious identity on marriage to a non-Parsi.
It was violative of the right to equality under Articles 14 of the Constitution of India.
It was pointed out that this excommunication is a matter of social and constitutional concern.
Excommunication could be equated to the practice of untouchability, as the effect of both was the deprivation of human dignity and civil rights.
The matter involved issues of the right to individual’s right to faith and practice religion under Article 25.
Though there should be a need to balance the rights of individuals as well that of the denomination under Article 26 to manage internal affairs, it was argued that the fundamental rights being primarily concerned with rights of individuals and protect individuality and choices, due importance should be given to the same.
The Parsi Trust opposed the petition and contended as under:
A Parsi woman, upon marriage with a non-Parsi, ceases to be a Parsi.
Denial of entry to non-Parsis to Parsi institutions was an essential practice of the religion.
Under Article 26, the Parsi Trust was entitled to regulate entry.
Zorastrianism directed renunciation of Parsi religion if a Parsi woman undergoes the inter-faith marriage.
The petition was dismissed by 2:1 majority. It accepted the argument of the Parsi Trust that a Parsi woman, upon marriage with a non-Parsi under the Special Marriage Act, ceased to be a Parsi.
Majority Decision
The High Court (majority) did not address the fundamental question as to whether Ms. Gupta could be denied entry into Parsi institutions as an essential religious practice. It pointed out
that the English common law doctrine was that, in the absence of a specific statutory protection, the personality, known by religion, of a woman would merge into that of her husband.
that a married woman is identified by her husband’s family name superseding that of her father’s, although such a principle of merger was not recognised by any of the religions in India.
that it is of ‘general acceptance throughout the world’.
that the merger was essential to determine the religion of children born out of the marriage.
that, to obtain reliefs from courts, countering this presumption, there should be a judicial declaration pursuant to a fact-finding inquiry. Since no such inquiry was conducted in the present case, the petitioner was deemed to have acquired the religious status of her Hindu husband.
Minority Decision
J. Akil Kureshi, minority, ruled:
that the petitioner retained her Parsi identity in spite of solemnisation of her marriage under the Special Marriage Act.
that there was no automatic conversion on marriage.
that Special Marriage Act, 1954 speaks of a special form of marriage in which both parties can retain their birth-religion insofar as the other conditions under Section 4 of the Act of 1954 were satisfied.
that there is legislative commitment toward a secular state.
The jurisprudential importance of the ensuing Sabarimala-Nine-Judge-Bench decision is not limited as to whether the decision in Shirur Mutt Case will prevail over the decision in Durgah Committee case; because, the enquiries of the Court will not end there; but, it has to go beyond and record findings on the newly framed issues. The issues are couched in a manner that they definitely embrace, whether the decision in Shirur Mutt requires reconsideration, mainly on two points:
First, whether the ‘religious denomination or any section thereof‘ in Article 26 be liberally construed (or, whether ‘such religious practices as are an essential and an integral part’ of RELIGIONalone, and no other, is to be considered, as held in Durgah Committee decision)?
Second, whether the ‘essential religious practices’ are matters that are left to be determined by the ‘denomination’ (or whether it should remain in the realm of Court, as held in Durgah Committee decision)?
One thing is definite: the march of law in this topic has reached a breaking point, whereby the answers of the Apex Court will be from a practical and solutional perspective; rather than that in a pure ‘ideological’ view-point.
mandatory, for establishing right in a court, as to properties in wills
pertaining to property of Hindu, Buddhist, Sikh or Jaina within Bengal, Bombay and Madras – as stated in Sec. 213 read with Sec. 57 of the Indian Succession Act, 1925.
not required to establish right in a court as to wills made by
Muhammadans, Parsi, Christians in Kerala and also pertaining to Property of Hindu, Buddhist, Sikh or Jaina beyond the provinces of Bengal, Bombay and Madras – as stated in Sec. 213 read with Sec. 57.
Letters of administration is
mandatory to establish right in a court pertaining to property of an intestate person(Note: contradistict to – Letters of administration ‘with the will annexed’): as stated in Sec. 212 –
It is required for persons other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi (Eg. Anglo-Indians, rationalists or non-religious persons).
Letters of administration‘with the will annexed‘ is
mandatory to establish right in a court:as stated in Sec. 213
(pertaining to wills as to property of Hindu, Buddhist, Sikh or Jaina within the provinces of Bengal, Bombay and Madras) read with Sec. 234(where no executor or executor refuses etc).
In short, Probate or Letters of Administration is :
Needed pertaining to wills as to property of Hindu, Buddhist, Sikh or Jaina within the provinces of Bengal, Bombay and Madras.
Not needed pertaining to wills as to property of
Muhammadans,
Parsi,
Christians in Kerala
Property of Hindu, Buddhist, Sikh or Jaina beyond the provinces of Bengal, Bombay and Madras
An executor derives his title from the Will and not from probate.
An unprobated Will can be admitted in evidence (in court)
for purposes other than establishment of rightas executor or legatee.
in evidence for collateral purposes.
It is clear from Sec. 273 that probate can be issued as to Movable Property also.
Succession Certificate –
Object is Collection of Particular Debts (Sec. 372);
No General Power.
What is Probate according to Indian Succession Act?
Where an executor is named in the will (to execute or give effect to the will), under Sec. 222, the court of competent jurisdiction may issue Probate to the executor. It is granted on application by the executor or executors.
Probate is, copy of the will certified under the seal of a court “with a” (certificate or order as to) “grant of administration to the estate”.
The executor or executors nominated in the will have to file the application for getting the Probate.
Sec. 2 (f) of the Indian Succession Act, 1925 defines probate as under:
” ‘Probate’ means the copy of a will certified under the seal of a Court of competent jurisdiction with a grant of administration to the estate of the testator.”
What is Letters of Administration
Letters of Administration – Two Kinds:
Referred to in Sec. 212, with respect to ‘Right to intestate’s property’ (no question of Will comes-in).
Referred to in Sec. 213, with respect to ‘Letters of Administration with the Will Annexed‘, read with Sec. 234 (Grant of administration where no executor, nor residuary legatee nor representative of such legatee; or executor refuses etc.).
Letters of Administration with the will annexed
Letter of Administration with the will annexed is the ‘copy of the will certified under the seal of a Court with grant of administrative rights to the beneficiaries’ – similar to probate that is given to the executor.
The competent court issues Letter of Administration when the will does not mention an executor or when the executor declines, etc. In such cases it is given to the beneficiaries. The beneficiaries of the deceased have to apply for the Letters of Administration.
Letters of Administration (other than the will annexed): To whom granted
Sec. 218 reads as under:
218. To whom administration may be granted, where deceased is a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.
(1) If the deceased has died intestate and was a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, administration of his estate may be granted to any person who, according to the rules for the distribution of the estate applicable in the case of such deceased, would be entitled to the whole or any part of such deceased’s estate.
(2) When several such persons apply for such administration, it shall be in the discretion of the Court to grant it to any one or more of them.
(3) When no such person applies, it may be granted to a creditor of the deceased.
Where deceased is Not a Hindu, Muhammadan, etc.
Section 219 reads:
219. Where deceased is not a Hindu, Muhammadan, Buddhist, Sikh, Jaina or exempted person.
If the deceased has died intestate and was not a person belonging to any of the classes referred to in section 218, those who are connected with him, either by marriage or by consanguinity, are entitled to obtain letters of administration of his estate and effects in the order and according to the rules hereinafter stated, namely:–
(a) If the deceased has left a widow, administration shall be granted to the widow, unless the Court sees cause to exclude her, either on the ground of some personal disqualification, or because she has no interest in the estate of the deceased.
(b) If the Judge thinks proper, he may associate any person or persons with the widow in the administration who would be entitled solely to the administration if there were no widow.
(c) If there is no widow, or if the Court sees cause to exclude the widow, it shall commit the administration to the person or persons who would be beneficially entitled to the estate according to the rules for the distribution of an intestate’s estate:
Provided that, when the mother of the deceased is one of the class of persons so entitled, she shall be solely entitled to administration.
(d) Those who stand in equal degree of kindred to the deceased are equally entitled to administration.
(e) The husband surviving his wife has the same right of administration of her estate as the widow has in respect of the estate of her husband.
(f) When there is no person connected with the deceased by marriage or consanguinity who is entitled to letters of administration and willing to act, they may be granted to a creditor.
(g) Where the deceased has left property in [India], letters of administration shall be granted according to the foregoing rules, notwithstanding that he had his domicile in a country in which the law relating to testate and intestate succession differs from the law of [India].
Grant of Administration – where no executor, nor residuary legateeetc.
Sec. 234 reads:
234. Grant of administration where no executor, nor residuary legatee nor representative of such legatee.-When there is
no executor and no residuary legatee or representative of a residuary legatee,
or he declines or is incapable to act,
or cannot be found,
the person or persons who would be entitled to the administration of the estate of the deceased if he had died intestate,
or any other legatee having a beneficial interest, or a creditor,
may be admitted to prove the will and letters of administration may be granted to him or them accordingly.
Letters of Administration Mandatory to establish ‘right in a court’ as to property of Intestate(other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi)
Sec. 212 of the Indian Succession Act states as under:
212. Right to intestate’s property.-(1) No right to any part of the property of a person who has died intestate can be established in any Court of Justice, unless letters of administration have first been granted by a Court of competent jurisdiction.
(2) This section shall not apply in the case of the intestacy of a Hindu, Muhammadan, Buddhist, Sikh, Jaina, [Indian Christian or Parsi].
Effect of Letters of Administration
Under Sec. 220 of the Indian Succession Act states that the Letters of administration gives the administrator “all rights belonging to the intestate” to effectively administer as if the administration had been granted at the moment after his death. It reads:
“220. Effect of letters of administration. Letters of administration entitle the administrator to all rights belonging to the intestate as effectually as if the administration had been granted at the moment after his death.”
Note – The clause, “as effectually as if the administration had been granted at the moment after his death” is not stated when the Act deals with ‘Probate’. Because, it is evident that the provisions and directions in the will govern all these matters. It is further clear from the definition of administrator, in Sec. 2(a). It reads: ” ‘administrator’ means a person appointed by competent authority to administer the estate of a deceased person when there is no executor”.
To whom Letter of Administration can be granted
Sec. 236 lays down that the Letters of administration cannot be granted to:
a minor
or is of unsound mind,
nor to any association of individuals unless it is a company which satisfies the conditions prescribed by rules to be made by notification in the Official Gazette, by the State Government in this behalf.
Court interfere for protection property at the instance of any person interested
Sec. 269 reads as under:
269. When and how District Judge to interfere for protection of property.-(1) Until probate is granted of the will of a deceased person, or an administrator of his estate is constituted, the District Judge, within whose jurisdiction any part of the property of the deceased person is situate, is authorised and required to interfere for the protection of such property at the instance of any person claiming to be interested therein, and in all other cases where the Judge considers that the property incurs any risk of loss or damage; and for that purpose, if he thinks fit, to appoint an officer to take and keep possession of the property.
(2) This section shall not apply when the deceased is a Hindu, Muhammadan, Buddhist, Sikh or Jaina or an exempted person, nor shall it apply to any part of the property of an Indian Christian who has died intestate.
When probate or administration may be granted
Sec. 270 reads as under:
270. When probate or administration may be granted by District Judge.-Probate of the will or letters of administration to the estate of a deceased person may be granted by a District Judge under the seal of his Court, if it appears by a petition, verified as hereinafter provided, of the person applying for the same that the testator or intestate, as the case may be, at the time of his decease had a fixed place of abode, or any property, moveable or immoveable, within the jurisdiction of the Judge.
Property vests in the executors by virtue of the Will; and not by virtue of the probate
In Commissioner v. Mohan Krishan Abrol, (2004)7 SCC 505, the Apex Court observed that a bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate.
Sec. 211 reads as under:
211. Character and property of executor or administrator as such. (1) The executor or administrator, as the case may be, of a deceased person is his legal representative for all purposes, and all the property of the deceased person vests in him as such.
(2) ….
Is ‘Probate’ or ‘Letters of Administration’ mandatory?
Sections 57, 212 and 213 of the Indian Succession Act are the relevant provisions.
Sections 57
Sections 57 says as to application of the PART that deals with WILLS.
The Section reads as under:
57. Application of certain provisions of Part to a class of wills made by Hindus, etc. The provisions of this Part which are set out in Schedule III shall, subject to the restrictions and modifications specified therein, apply
(a) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina, on or after the first day of September, 1870, within the territories which at the said date were subject to the Lieutenant-Governor of Bengal or within the local limits of the ordinary original civil jurisdiction of the High Courts of Judicature at Madras and Bombay; and
(b) to all such wills and codicils made outside those territories and limits so far as relates to immoveable property situate within those territories or limits; and
(c) to all wills and codicils made by any Hindu, Buddhist, Sikh or Jaina on or after the first day of January, 1927, to which those provisions are not applied by clauses (a) and (b):
Provided that marriage shall not revoke any such will or codicil.
In Clarence Pais v. Union of India, AIR 2001 SC 115 the Supreme Court held that if a Will is executed by a Hindu in respect of properties situate out side the provinces of Bengal, Bombay and Madras then probate is not necessary in accordance with Section 57. (Mrs. H. N. Judah v. I. S. Bose, AIR 1962 SC 1471 referred)
Section 212
As stated above, this section deals with letters of administration with respect to property of a person died intestate
Under Sec. 212, to establish right in a court as to any property of a person (other than Hindu, Muhammadan, Buddhist, Sikh, Jaina, Indian Christian or Parsi) who has died intestate, letters of administration should be produced.
In Debi Sankar Bhattacharjee v. Irene David, 1968-1 Cal LT 16, the question came for consideration was as to an intestate Anglo-Indian deceased. Court observed as under:
“After considering Section 211 and Section 212 and the aforesaid other provisions of the Indian Succession Act, I see no reason why such representation was not necessary to be obtained in this case. The tenancy right is undoubtedly a property within the meaning of the said provisions of the Indian Succession Act. Again, it is clearly provided therein that such property cannot vest on anybody else excepting an administrator in case the deceased Anglo-Indian died intestate as was the case here. The defendant has been sued as a trespasser. The defendant seeks to establish her right that she is an heir of the deceased on whom the tenancy right was vested after the death of the tenant. Under Section 212 of the Indian Succession Act she is debarred from establishing such right in any Court without obtaining a grant of the letter of administration. The tenancy right which is a property left by the deceased could not have vested in her as an heir immediately upon the death of the deceased. She could at best be a person interested to succeed in the tenancy right and in that capacity she could take steps under Section 269 of the Indian Succession Act to protect her tenancy right from anybody who might have interested with it until the grant would be made. By doing so she could get an administrator appointed so that such administrator after administering the estate could have the tenancy right vested in her.The language of Sections 211 and 212, read with Section 269, would clearly indicate the same. The language of sec. 212 makes it imperative to take out representations to the estate of the deceased. It is further clear that the tenancy right is a property and the vesting takes place only when the appointment is made and not earlier. The function of the administrator after he would be so appointed would be to transfer the monthly tenancy right left by the deceased to the proper heir or heirs as on intestacy and such function would be performed by him in course of his administering the estate of the deceased. Until that would be done the landlord would not be in a position to ascertain who would be the proper tenant under the circumstances in a case governed by the Indian Succession Act.”
Section 213 –Requirement of Probate
Section 213 reads as under:
213. Right as executor or legatee when established.-
(1) No right as executor or legatee can be established in any Court of Justice, unless a Court of competent jurisdiction in India has granted probateof the will under which the right is claimed, or has granted letters of administration with the will or with a copy of an authenticated copy of the will annexed.
(2) This section shall not apply in the case of wills made by Muhammadans, and shall only apply—
(i) in the case of wills made by any Hindu, Buddhist, Sikh or Jaina where such wills are of the classes specified in clauses (a) and (b) of section 57; and
(ii) in the case of wills made by any Parsi dying, after the commencement of the Indian Succession (Amendment) Act, 1962, (16 of 1962.) where such wills are made within the local limits of the ordinary original civil jurisdiction] of the High Courts at Calcutta, Madras and Bombay, and where such wills are made outside those limits, in so far as they relate to immovable property situate within those limits.
[Kerala Amendment – In sub-section (2), after the word ‘Muhammadans’, the words ‘or Indian Christians‘ is inserted, in 1997.]
Sec. 2 (d) defines Indian Christian as under:
” ‘Indian Christian’ means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion”
Section 213 only says – No Right can be ‘Established in Court‘ with Unprobated Will
The section does not prohibit the use of unprobated Will for purposes other than establishment of right as executor or legatee.
The Supreme Court pointed out in Hem Nolini v. Isolyne Sarojbashini, AIR 1962 SC 1471, that the section does not say that no person can claim as a legatee or as an executor unless he obtains probate or letters of administration. It is held as under:
“The words of S.213 are not restricted only to those cases where the claim is made by a person directly claiming as a legatee. of the will under which he claims. What it says is that no rightas an executor or legatee can be established in any Court of Justice, unless probate or letters of administration have been obtained of the will under which the right is claimed, and therefore it is immaterial who wishes to establish the right as a legatee or an executor. Whosoever wishes to establish that right, whether it be a legatee or an executor himself or somebody else who might find it necessary in order to establish his right to establish the right of some legatee or executor from whom he might have derived title, he cannot do so unless the will under which the right as a legatee or executor is claimed has resulted in the grant of a probate or letters of administration.”
Division Bench of Kerala High Court in Cherichi v. Ittianam, AIR 2001 Ker 184, held as under:
“The prohibition under Section 213 of the Act is regarding establishing any right under the Will without getting probate or letters of administration and that section cannot be understood as one by which the vesting of right as per the provisions of the Will is postponed until the obtaining of probate or letters of administration. The Will will take effect on the death of the executant of the Will and what Section 213 of the Act says is that the right as executor or legatee can beestablished in any Court of justice only if probate or letters of administration is obtained. ….. The necessity to obtain probate or letters of administration as provided in Section 213(1) of the Act arises only when right as executor or legatee is sought to be established in a Court and hence that section does not prohibit the use of Will which is unprobated as evidence for purposes other than establishment of rightas executor or legatee. So, the requirement of obtaining probate becomes relevant at the time when the establishment or right as executor or legatee on the strength of a Will is sought to be made in a Court of justice…”
Unprobated Will can be used in Collateral Purpose in Court
In Commissioner v. Mohan Krishan Abrol, (2004)7 SCC 505, it is observed as under:
“A bare reading of Section 211 shows that the property vests in the executors by virtue of the Will and not by virtue of the probate. Will gives property to the executor; the grant of probate is only a method by which the law provides for establishing the Will. In the case of Kulwanta Bewa v Karam Chand Soni [AIR 1938 Cal 714] it has been held that Section 211 provides that the estate of the deceased vests in the executor; that the vesting is not of the beneficial interest in the property; but only for the purposes of representation. In the case of Meyappa Chetty v. Supramanian Chetty [43 Indian Appeals 113] the Privy Council has held that an executor derives his title from the Will and not from probate. The personal property of the testator (including right of action) vests in the executor(s) on the death of the testator. For purposes of deciding this matter, Section 336 of the Act is also relevant as it provides for assent of the executor to the legacy after the death of the testator. It provides that an executor gets divested of his interest as an executor from the death of the testator when he assents to a specific legacy. Section 213 acts as a bar to the establishment of rights under the Will by an executor or a legatee unless probate or letters of administration have been obtained. This bar comes into play only when a right as an executor or a legatee under Will is sought to be established. However, an unprobated Will can be admitted in evidence for collateral purposes in any other proceedings apart from probate proceedings.”
Can Probate or Letters of Administrationbe issued to Movable Property
It is clear from Sec. 273 that probate can be issued as to Movable Property also. It reads:
273. Conclusiveness of probate or letters of administration. Probate or letters of administration shall have effect over all the property and estate, moveable or immoveable, of the deceased, throughout the State in which the same is or are granted, and shall be conclusive as to the representative title against all debtors of the deceased, and all persons holding property which belongs to him, and shall afford full indemnity to all debtors, paying their debts and all persons delivering up such property to the person to whom such probate or letters of administration have been granted.
Succession Certificate – Object is Collection of Particular Debts; No General Power
As can be seen from the Sec. 372, the main object of a Succession Certificate is to facilitate collection of particular debt or debts due to the deceased creditor. This section reads as under:
372. Application for certificate. (1) Application for such a certificate shall be made to the District Judge by a petition signed and verified by or on behalf of the applicant in the manner prescribed by the Code of Civil Procedure, 1908, (5 of 1908.) for the signing and verification of a plaint by or on behalf of a plaintiff, and setting forth the following particulars, namely:
(a) … to (e) ….
(f) the debts and securities in respect of which the certificate is applied for.
(2) …. …. …..
(3) Application for such a certificate may be made in respect of any debt or debts due to the deceased creditor or in respect of portions thereof.
The Supreme Court explained the object in Shri Banarsi Dass v. Mrs. Teeku Dutta, 2005(4) SCC 449, as under:
“The main object of a Succession Certificate is to facilitate collection of debts on succession and afford protection to parties paying debts to representatives of deceased persons. All that the Succession Certificate purports to do is to facilitate the collection of debts, to regulate the administration of succession and to protect persons who deal with the alleged representatives of the deceased persons.
Such a certificate does not give any general power of administration on the estate of the deceased. The grant of a certificate does not establish title of the grantee as the heir of the deceased.
A Succession Certificate is intended as noted above to protect the debtors, which means that where a debtor of a deceased person either voluntarily pays his debt to a person holding a Certificate under the Act, or is compelled by the decree of a Court to pay it to the person, he is lawfully discharged.
The grant of a certificate does not establish a title of the grantee as the heir of the deceased, but only furnishes him with authority to collect his debts and allows the debtors to make payments to him without incurring any risk. In order to succeed in the succession application the applicant has to adduce cogent and credible evidence in support of the application. The respondents, if they so chooses, can also adduce evidence to oppose grant of succession certificate.”
Probate Operates as a Judgment in Rem
The grant of a Probate by Court of competent jurisdiction is in the nature of a judgment in rem and conclusive and binds not only the parties but also the entire world. The principle is laid down by the Supreme Court in the following cases:
Lynette Fernandes v. Gertie Mathias, (2018) 1 SCC 271,
Virendra Kumar Jain v. Asha Goel, 2019-4 All.WC 4033,
Ishwardeo Narain Singh v. Smt. Kanta Devi, 1954 AIR SC 280,
Chiranjilal Shrilal Goenka v. Jasjit Singh, (1993) 2 SCC 507.
Probate Court is not competent to determine the question of title
The Supreme Court consistently held (Ishwardeo Narain Singh v. Smt Kamta Devi, AIR 1954 SC 280, Chiranjilal Shrilal Goenka , v. Jasjit Singh, (1993) 2 SCC 507, and Kanwarjit Singh Dhillon v. Hardyal Singh Dhillon 2008 (1) CTC 80) that the probate Court is not competent to determine the question of title to the suit properties. (See: P. Dhanakoti v. Devikarani, 2011 4 CTC 593; 2011 3 LW 633)
FERA, 1973 directed foreign citizens to obtain prior permission from RBI for transfers of property.
FERA, 1973 has been repealed by FEMA, 1999 and transfers by foreigners are not prohibited under the new Act.
Saji Koduvath, Advocate, Kottayam.
Abstract
Section 31 of FERA, 1973 directed foreign citizens to obtainprior permission from RBI to ‘acquire or hold or transfer or dispose of‘ Immovable Property in India.
Several High Courts held that Section 31 was only directory.
Supreme Court, held that it was mandatory in Asha John v. Vikram Malhotra (2021).
FERA, 1973 has been repealed by FEMA, 1999.
FEMA does not prohibit such transfers.
By virtue of the decision in Asha John v. Vikram Malhotra, the transfers made by foreigners, violating FERA, 1973, till 1999, stands void.
In Asha John v. Vikram Malhotra, the Supreme Court held that the competent court decisions that attained finality, on the supposition that Sec. 31 of FERA was only directory, should not be reopened.
Introduction
Section 31 of the Foreign Exchange Regulation Act, 1973 (FERA) stipulates that when a foreign citizen ‘acquire or hold or transfer or dispose of‘ Immovable Property in India, he must have obtained the prior permission for the same from the Reserve Bank of India.
Very valuable properties are involved, in several cases, including large plantations.
Several High Courts held that it was not a mandatory requirement; but, only a mere directory provision.
Contra view was also taken by certain High Courts.
The matter was finally placed before the Apex Court in Asha John v. Vikram Malhotra (AIR 2021 SC 2932).
The Supreme Court of India (JJ. Khanwilkar, Indu Malhotra and Ajay Rastogi) held in the landmark decision, Asha John v. Vikram Malhotra (AIR 2021 SC 2932), that the requirement in Sec. 31 was mandatory; and, therefore, the transfer of Immovable property made in India, by foreigners, without prior permission of RBI was void.
Note:
FERA, 1973 has been repealed by Foreign Exchange Management Act, 1999 (FEMA) and such transfers are not prohibited under the new Act.
But, it is important for it is held by the Apex Court that such acquisition and transfers are ‘void‘.
“31. Restriction on acquisition, holding, etc., of immovable property in India.—
(1) No person who is not a citizen of India and no company (other than a banking company) which is not incorporated under any law in force in India shall, except with the previous general or special permission of the Reserve Bank, acquire or hold or transfer or dispose of by sale, mortgage, lease, gift, settlement or otherwise any immovable property situate in India:
Provided that …”
Decisions of High Courts – Sec. 31 was not Mandatory
Several High Courts held that Sec. 31 was not mandatory; but, only directory. It includes the following:
Piara Singh v. Jagtar Singh (AIR 1987 P&H 93),
Ajith Prashad Jain v. N.K. Widhani (AIR 1990 Del. 42),
Tufanu vs. Muhammed Abdul Rahman ((1993) 1 Gau LR 306),
Harrisons Malayalam Ltd. v. State of Kerala, 2018(2) KLT 369.
The Supreme Court Verdict – Asha John v. Vikram Malhotra
Our Apex Court held in Asha John v. Vikram Malhotra (AIR 2021 SC 2932) as under:
“The condition predicated in Section 31 of the 1973 Act of obtaining ‘previous’ general or special permission of the RBI for transfer or disposal of immovable property situated in India by sale or mortgage by a person, who is not a citizen of India, is mandatory.”
“The decisions of concerned High Courts taking the view that Section 31 of the 1973 (FERA) Act is not mandatory and the transaction in contravention thereof is not void or unenforceable, is not a good law.”
Not to Reopen Cases Became Final by Competent Court Decisions
In this verdict (Asha John v. Vikram Malhotra) it is held that, the ‘transactions which have already become final‘, and the competent court decisions attained finality on the premises that Sec. 31 of FERA was only directory, should not be reopened. It is rendered as under:
“However, transactions which have already become final including by virtue of the decision of the court of competent jurisdiction, need not be reopened or disturbed in any manner because of this pronouncement.”
Ambiguity Broods
The words in the decision, ‘transactions which have already become final‘, is ambiguous; and it requires clarification, especially since it is definitely held in this case (Asha John v. Vikram Malhotra) that ‘the transaction (specified in Section 31 of the 1973 Act) entered into in contravention of that provision is void‘. And, also, observed as under:
” ‘A priori, we conclude that the decisions of concerned High Courts taking the view that Section 31 of the 1973 Act is not mandatory and the transaction in contravention thereof is not void or unenforceable, is not a good law“.
Brief History of the case (Asha John v. Vikram Malhotra):
A foreigner, Raitte, gifted property to Vikram Malhotra without obtaining permission from RBI under S. 31 of FERA 1973.
Before executing the gift deed she entered into a sale agreement with David, predecessor of Asha John.
The foreigner obtained formal permission of RBI under S. 31 on 2-4-1983.
The foreigner executed registered sale deed in favour of David on 9-4-1983.
David (Plaintiff), predecessor of Asha John, filed suit against Vikram Malhotra (Defendant) to declare the gift deed null and void.
Trial Court dismissed the suit.
The High Court, in appeal, held that there was no violation of S. 31; and dismissed the appeal, against the plaintiff.
The Supreme Court allowed the appeal, finding:
Gift to Vikram Malhotra (Defendant) was without permission from RBI under S. 31 of FERA. Hence it was void, and
Sale to David (Plaintiff), predecessor of Asha John, was after permission from RBI; and hence it was valid.
Argument of appellant in the Supreme Court (Accepted by the Supreme Court).
Transfer to the defendant was void, for the reasons:
Transfer to the defendant was violative of S. 31; as prior permission of RBI was mandatory.
Further, S. 47 directed – “no person shall enter into” such contract; and S. 50 made violation punishable.
Object of 1973 Act was stopping capital repatriation (removal).
A contract is void if prohibited by a statute under a penalty (even if no express declaration in the Act that it is void).
Argument of Respondents:
S. 31 is a directory provision.
It does not prohibit transfer.
No provision say, violation is void.
No consequence provided for violation.
Provision for penalty does not make the deed invalid.
Penalties are provided in Section 50, no action has been taken RBI.
At the most, it would be voidable; and subject to discretion of the RBI.
RBI is exclusively responsible for determining the permissibility of the transaction.
FERA has been repealed and impugned violation is not void under the preset Act (FEMA).
Consistent view of High Courts should not be interfered, as held in Waman Rao v. Union of India, (1981) 2 SCC 362.
The Supreme Court upheld the Contentions of the Appellant, relying on the following earlier Decisions
Mannalal Khetan v. Kedar Nath Khetan, AIR 1977 SC 536; (1977) 2 SCC 424
Prohibition and negative words can rarely be directory. Under Section 31 read with Sections 47, 50 and 63 of the Act, it is in the nature of prohibition. When penalty is imposedby statute for the purpose of preventing something from being done on some ground of public policy, the thing prohibited, if done, will be treated as void, even though the penalty if imposed is not enforceable.
Union of India & Ors. v. A.K. Pandey, (2009) 10 SCC 552
Where a contract, express or implied, is expressly or by implication forbidden by statute, no court will lend its assistance to give it effect. A contract is void if prohibited by a statute under a penalty, even without express declaration that the contract is void, because such a penalty implies a prohibition.
Union of India v. Colonel L.S.N. Murthy & Anr. (2012) 1 SCC 71
The contract would be lawful, unless theconsideration and object thereof is of such a nature that, if permitted, it would defeat the provisions of law. And, in such a case the consideration or object is unlawful and would become void and that unless the effect of an agreement results in performance of an unlawful act, an agreement which is otherwise legal cannot be held to be void. Further, if the effect of an agreement did not result in performance of an unlawful act, as a matter of public policy, the court should refuse to declare the contract void with a view to save the bargain entered into by the parties and the solemn promises made thereunder. The Court adverted to the exposition in the earlier decision in Shri Lachoo Mal v. Shri Radhey Shyam, AIR 1971 SC 221 as to what makes an agreement, which is otherwise legal, void is that its performance is impossible except by disobedience of law.
Re: Argument (Propounded in Waman Rao v. Union of India)– Not to Disturb the Consistent View of various Courts
The Supreme Court held as under:
“It is not possible to countenance the argument – not to disturb the consistent view of different High Courts on the principle of stare decisis by invoking the dictum in Waman Rao, in reference to Section 31 of the 1973 Act. For, there is conflict of opinion and is not a case of consistent view of all High Courts, having occasion to deal with interpretation of Section 31 of the 1973 Act.”
Following are the decisions cited by the Apex Court – that are in line with the view of the Apex Court:
Joaquim Mascarenhas Fiuza v. Jaime Rebello, 1986 SCC OnLine Bom 234 : 1986 Mah LJ 1031, Bombay High Court (Goa Bench).
Sahruvan Nachair v. V.S. Mohammed Hussain Maracair, (2001) 1 Mad LJ 188 : 2000 SCC OnLine Mad 737, Madras High Court.
William Babu & Anr. v. Helma Roy Alias Emily Carmel, (2018) 1 Ker LJ 525 : 2017 SCC OnLine Ker 25269, Kerala High Court.
Mrs. Shoba Viswanatha v. D.P. Kingsley, 1996 (I) CTC 620 : 1996 SCC Online Mad 319 Madras High Court.,
Courts in India apply the doctrine of ‘Right to be Forgotten’:
(i) basing on the foundational principles enshrined in Article 21 of the Constitution (right to life) ,
(ii) following the land mark decision, K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1 (wherein it is held: “Privacy postulates the reservation of a private space for the individual, described as the right to be let alone“) and
(iii) under the provisions of Information Technology Rules, 2021.
Personal Data Protection Bill, 2019, that upholds the doctrine of ‘Right to be Forgotten‘, is not passed, though introduced in Parliament in 2019.
Now this doctrine is used for removing private information from internet.
Part I
What is ‘Right to be Forgotten‘
It is human nature to forget things. The right of an individual not to be injured, out of another’s acts of constant recalling-of-past-deeds, is recognized in law – as the doctrine of “Right to be Forgotten”.
Now used for removing private information from internet
Now-a-days it is applied to uphold reputation of a person, by removing the private information about him from internet sites and services.
Right to Righteous Life and Reputation
Article 21 (right to life)of the Constitution of India reads:
“Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.”
Right to righteous life is an inalienable human right.
Shakespeare (Othello: Act II, Scene iii) says through IAGO as under:
“Good name in man and woman, dear my lord,
Is the immediate jewel of their souls:
Who steals my purse steals trash; ’tis something, nothing;
‘Twas mine, ’tis his, and has been slave to thousands:
But he that filches from me my good name
Robs me of that which not enriches him
And makes me poor indeed.”
Shakespeare made it clear – a good name, or reputation, is valuable for its owner. Stealing the reputation of one, does not make another rich. But he who loses reputation, suffers damage.
First Statute which recognized ‘right to be forgotten‘
The European Union systematized the right to be forgotten in a statute, first time, in the year 2018, by ‘General Data Protection Regulation’.
First case where ‘right to be forgotten’ recognized
Google Spain SL v Agencia Española de Protección de Datos (AEPD), ( [2014] QB 1022, may be the first case wherein the ‘right to be forgotten’ was recognized as a legal right. It is sprouted out from ‘right to privacy’.
Part II
Codification of the Law on Reputation in India.
Personal Data Protection Bill, 2019.
Personal Data Protection Bill presented in the Indian Parliament by the Ministry of Law and Justice, based on the recommendations of V.N. Sreekrishna Committee, in 2019, legally accepted the ‘right to be forgotten’ as a recognizable right. Unfortunately, the bill had not been passed by the Parliament, so far.
Information Technology Rules, 2021.
Rule 3(2) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 directs as under:
“(2) Grievance redressal mechanism of intermediary:
(a)The intermediary shall prominently publish on its website, mobile based application or both, as the case may be, the name of the Grievance Officer and his contact details as well as mechanism by which a user or a victim may make complaint against violation of the provisions of this rule or any other matters pertaining to the computer resources made available by it, and the Grievance Officer shall –
(i) acknowledge the complaint within twenty four hours and dispose off such complaint within a period of fifteen days from the date of its receipt;
(ii) receive and acknowledge any order, notice or direction issued by the Appropriate Government, any competent authority or a court of competent jurisdiction.
(b) The intermediary shall, within twenty-four hours from the receipt of a complaint made by an individual or any person on his behalf under this sub-rule, in relation to any content which is prima facie in the nature of any material which
exposes the private area of such individual,
shows such individual in full or partial nudity or
shows or depicts such individual in any sexual act or conduct, or
is in the nature of impersonation in an electronic form,
including artificially morphed images of such individual,
take all reasonable and practicable measures to remove or disable access to such content which is hosted, stored, published or transmitted by it:
(c) The intermediary shall implement a mechanism for the receipt of complaints under clause (b) of this sub-rule which may enable the individual or person to provide details, as may be necessary, in relation to such content or communication link.”
High Court Decisions in India, on ‘Right to be Forgotten’
Despite the non-delivery of the proposed Personal Data Protection Bill by the Parliament, various High Courts in India pronounced judgments accepting the doctrine, ‘right to be forgotten’, as an inalienable human right. It is founded upon Art. 21, ‘Right to Life’, the most valuable fundamental rights in the Constitution of India.
After the decision on ‘Right to Privacy’ rendered by the Supreme Court of India in J. KS Puttaswami v. Union of India, (2017) 10 SCC 1, various High Courts upheld the rights arising from ‘right to be forgotten’, based on the dogma on ‘Right to Privacy’.
The following are the land-mark decisions on the doctrine of the ‘right to be forgotten’ (after the verdict in Puttaswami).
Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd.(Delhi HC, 2019) 2019 SCC OnLine Del. 8494.
Sri Vasunathan v. The Registrar General (Karnataka HC) (2020)
Subhranshu Rout Gugul v. State of Odisha, 2020 (Orissa HC), 2020 SCC OnLIne Ori. 878.
X v. YouTube (2021):
Jorawer Singh Mundy v. Union of India & Ors [Delhi HC, 2021), 2021 SCC OnLine De. 2306.
Prior to the Supreme Court decision in Puttaswami, the Courts in India did not accept the ‘right to be forgotten’ as a right recognizable in the Jurisprudence available in India. It was on the premises that no enacted law spoke specifically as to such a right. The said earlier decisions include the following:
Naresh Sridhar Mirajkar v State of Maharashtra, AIR 1967 SC 1;
Dharamraj Bhanushankar Dave v. State of Gujarat, 2017 SCC OnLine Guj. 2493.
Anchit Chawla v. Google India, 2018
Even after Puttaswami, finding it ‘moreappropriate to await‘ till the Parliament opens its eyes or expounds its wisdom, the TN High Court held in Karthick Theodre v. The Registrar General, 2021 SCC OnLine Mad. 2755, as under:
“This Court honestly feels that our criminal justice system is yet to reach such standards where courts can venture to pass orders for redaction of name of an accused person on certain objective criteria prescribed by rules or regulations. It will be more appropriate to await the enactment of the Data Protection Act and Rules thereunder, which may provide an objective criterion while dealing with the plea of redaction of names of accused persons who are acquitted from criminal proceedings. If such uniform standards are not followed across the country, the constitutional courts will be riding an unruly horse which will prove to be counterproductive to the existing system.”
Part III
Decisions Upheld, ‘Right to be Forgotten’
1. X v. YouTube (Delhi HC, 2021)
The plaintiff in that case was a well-known actor in TV and Film world of India. She participated in the creation of Video made mention of in the suit (suit video). The project was later on dropped. But the plaintiff found that the producer of the suit video uploaded it in YouTube channel and website. On the request of the plaintiff the producer removed the videos. Without plaintiff’s consent the defendants in the suit uploaded the suit videos in various websites.
The plaintiff applied for anonymity and filed the suit against the publication, streaming, or other broadcasting, on the ground that the suit videos infringed her privacy, negatively affected her reputation and it prejudiced her career.
The contesting defendant (Google) argued the following:
they were unaware of the agreement as to the videos;
the plaintiff being consented filming the videos defendants were not under an obligation to prevent the publication of the videos;
the plaintiff had no statutory protection to enforce the ‘right to be forgotten’.
the plaintiff had not required the authorized representative who complied to the Intermediary as provided under Rule 3(2)(b) of the Information Technology (Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021
S. 67 & 67A of the Information Technology Act, 2000 excluded matters published in the interest of Science, Literature, Art, etc.
The defendants (Google) relied, mainly, on:
Karthick Theodre v. Registrar General, 2021 SCC OnLine Mad. 2755
Dharamraj Bhanushankar Dave v. State of Gujarat, 2017 SCC OnLine Guj. 2493,
Anchit Chawla v. Google India , 2018.
Finding the suit to be maintainable, the Court held that the suit videos were of the kind that comes in Rule 3(2)(b) of the I.T. Rules, 2021. The Court pointed out:
Even if plaintiff allowed to videograph voluntarily, the suit videos were not agreed to be published or transmitted by the defendants.
She did not license for any of the URLS, Websites or Search engines to publish of transmit the same to YouTube.
The defendants published or circulated the videos ‘for obvious monitory and other prurient benefits’.
Even if the producer would have claimed protection on the consent of the plaintiff, the defendant had ‘no such consent’.
‘Right to be forgotten’ and the ‘right to be left alone’ are ‘inherent aspects’ of the ‘right to privacy’.
The claim raised by the plaintiff against the circulation of videos against her will was accepted by the court.
2. Jorawer Singh Mundy v. Union of India & Ors (Delhi HC, 2021)
The Delhi High Court (Prathiba M. Singh, J.) upheld the doctrine of ‘right to be forgotten’ in this decision.
The petitioner, an American citizen of Indian origin, travelled in India during 2009. A criminal case under the NDPS Act, 1985 was lodged against him. He was acquitted from all the charges. The appeal filed by the Customs was also dismissed. After his return to US, the petitioner had to face disadvantages due to the availability of his case on a Google search. Hence employment to his expectations was denied to him. The petitioner issued notice to Google India Pvt. Ltd., Google LLC, Indian Canon, etc. Even after notice the respondents in the case did not remove the judgment. Hence the petitioner filed the petition to recognize his right to privacy under Art. 21 of the Constitution of India.
The High Court referred the following judgments:
K.S. Puttaswami (2017) 10 SCC 1,
Zulfiqar Ahman Khan (supra) and
Subhranshu Rout Gugul (supra)
The High Court, by an interim order, directed Google India Pvt. Ltd. and Google LLC to remove the judgment from ‘search results’ sought for by the petitioner; and directed Indian Canon to block the said judgment from being accessed by using search engines such as Google/yahoo etc.
3. Subhranshu Rout Gugul v. State of Gujrat, 2017 SCC OnLine Guj. 2493
The petitioner was charged with various offences including rape of his classmate. While considering the bail application a question arose as to the recognition of the ‘Right to be forgotten’ in Indian Law since the video recording with the accused was alleged to be used to threaten and blackmail the victim. The court has to consider the impact of the publication of the videos in Facebook, and in this conduct the recognition of the ‘right to be forgotten in India’ came up. The court pointed out that the Rout removed the Facebook video it would still remain ‘in the public domain’. The High Court referred to
Sri Vasunathan v. The Registrar General (2017 SCC Online Kar. 424)
Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd. (2019 SCC OnLine Del. 8494), 2019(175) DRJ 660.
{Name Redacted} v. The Registrar General (Karnataka High Court)
It was pointed out that in {Name Redacted} v. The Registrar General (Karnataka High Court) recognized ‘right to be forgotten’ explicitly, though in a limited sense; and that the petitioner’s request (to remove his daughter’s name, from the judgment, involving claims of marriage and forgery) was upheld. In that decision it was held that recognizing ‘right to be forgotten’ would parallel initiatives by western countries which upheld this right when sensitive cases concerning the modesty or reputation of people, especially women, were involved.
The High Court also relied on Puttaswami v. Union of India to uphold the rights claimed in the matter.
4. Sri Vasunathan v. The Registrar General (Karnataka HC)
In this case it was observed that the ‘right to be forgotten’ is ‘keeping in line with the Trend in western countries where it is followed as a matter of rule’.
5. Zulfiqar Ahman Khan v. Quintillion Business Media (P) Ltd., 2019 SCC OnLine Del. 8494.
The suit was filed seeking permanent injunction against a digital/electronic platform (www), its editor and an author who had written articles against the Plaintiff on the basis of harassment complaints claimed to have been received by them, against the Plaintiff, as part of the #MeToo campaign. The three individuals, who made allegations against the Plaintiff, have remained anonymous and have not revealed their identity in the public domain.
The Defendants, while the matter is being heard submitted the court that they were willing to pull down the said two publications against the plaintiff and that the first article had already been pulled down.
It was pointed out by the Court that if re-publication is permitted to go on continuously, the Plaintiff’s rights would be severely jeopardised. The court observed:
“The original publisher having already agreed to pull down the same, this Court having directed that the same ought not to be republished, the Plaintiff, thus, has a right to ensure that the articles are not published on multiple electronic/digital platforms as that would create a permanent atmosphere of suspicion and animosity towards the Plaintiff and also severely prejudice his personal and professional life. The printouts of the articles from certain sites, which have been shown to the Court, leave no doubt in the mind of the Court that these are identical to the articles published on the first defendant’s site, which have already been pulled down.”
Then held as under:
“9. Accordingly, recognising the Plaintiff’s Right to privacy, of which
the ‘Right to be forgotten’ and
the ‘Right to be left alone’ are inherent aspects,
it is directed that any republication of the content of the originally impugned articles dated 12th October 2018 and 31st October 2018, or any extracts/ or excerpts thereof, as also modified versions thereof, on any print or digital/electronic platform shall stand restrained during the pendency of the present suit.
10. The Plaintiff is permitted to communicate this order to any print or electronic platform including various search engines in order to ensure that the articles or any excerpts/search results thereof are not republished in any manner whatsoever. The Plaintiff is permitted to approach the grievance officers of the electronic platforms and portals to ensure immediate compliance of this order.
11. If the said search engines do not take down/remove the objectionable content from their platforms within a period of 36 hours after receiving communication from the Plaintiff with a copy of this order, the Plaintiff is also permitted to communicate with the Defendants so that the Defendants can also cooperate in the said pulling down, if required. If the said platforms do not, after being served by a copy of this order, take down the objectionable content, the Plaintiff is given liberty to approach this court forthwith – apart from approaching the appropriate authorities under the Information Technology Act.”
Part IV
K.S. Puttaswami v. Union of India and the ‘Right to be Let Alone’
In the celebrated decision on ‘right to privacy’, K.S. Puttaswamy, (2017) 10 SCC 1 , our Supreme Court has held that the ‘right to be let alone‘ is a part of ‘essential nature of privacy‘ of an individual. It is held as under:
“Essential nature of privacy
297. What, then, does privacy postulate? Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.
402. “Privacy” is “[t]he condition or state of being free from public attention to intrusion into or interference with one’s acts or decisions” [Black’s Law Dictionary (Bryan Garner Edition) 3783 (2004)] . The right to be in this condition has been described as “the right to be let alone” [ Samuel D. Warren and Louis D. Brandeis, “The Right To Privacy“, 4 Harv L Rev 193 (1890)] . What seems to be essential to privacy is the power to seclude oneself and keep others from intruding it in any way. These intrusions may be physical or visual, and may take any of several forms including peeping over one’s shoulder to eavesdropping directly or through instruments, devices or technological aids.
479. Both the learned Attorney General and Shri Sundaram next argued that the right to privacy is so vague and amorphous a concept that it cannot be held to be a fundamental right. This again need not detain us. Mere absence of a definition which would encompass the many contours of the right to privacy need not deter us from recognising privacy interests when we see them. As this judgment will presently show, these interests are broadly classified into interests pertaining to the physical realm and interests pertaining to the mind. As case law, both in the US and India show, this concept has travelled far from the mereright to be let aloneto recognition of a large number of privacy interests, which apart from privacy of one’s home and protection from unreasonable searches and seizures have been extended to protecting an individual’s interests in making vital personal choices such as the right to abort a foetus; rights of same sex couples–including the right to marry; rights as to procreation, contraception, general family relationships, child- bearing, education, data protection, etc. This argument again need not detain us any further and is rejected.
560. The most popular meaning of “right to privacy” is–“the right to be let alone“. In Gobind v. State of M.P. [Gobind v. State of M.P., (1975) 2 SCC 148 : 1975 SCC (Cri) 468] , K.K. Mathew, J. noticed multiple facets of this right (paras 21-25) and then gave a rule of caution while examining the contours of such right on case-to-case basis.
636. Thus, the European Union Regulation of 2016 [Regulation No. (EU) 2016/679 of the European Parliament and of the Council of 27-4-2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive No. 95/46/EC (General Data Protection Regulation).] has recognised what has been termed as “the right to be forgotten“. This does not mean that all aspects of earlier existence are to be obliterated, as some may have a social ramification. If we were to recognise a similar right, it would only mean that an individual who is no longer desirous of his personal data to be processed or stored, should be able to remove it from the system where the personal data/information is no longer necessary, relevant, or is incorrect and serves no legitimate interest. Such a right cannot be exercised where the information/data is necessary, for exercising the right of freedom of expression and information, for compliance with legal obligations, for the performance of a task carried out in public interest, on the grounds of public interest in the area of public health, for archiving purposes in the public interest, scientific or historical research purposes or statistical purposes, or for the establishment, exercise or defence of legal claims. Such justifications would be valid in all cases of breach of privacy, including breaches of data privacy.”
(Quoted in: Subhranshu Rout Gugul v. State of Odisha, 2020 (Orissa HC), 2020 SCC OnLIne Ori. 878.)
Can an Unregistered Sale Agreement be Used for Specific Performance?
The Answer is, Yes.
Because, under proviso to Sec. 49 Registration Act, 1908, as held by our Apex Court, in S. Kaladevi v. V.R. Somasundaram, (2010) 5 SCC 401, a document required to be registered, if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. (Followed in: Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC 639.)
Relevant Provisions in the Registration Act
Sec. 17(1) (g) and 49 are the relevant provisions. They read as under:
“17. Documents of which registration is compulsory- (1) The following documents shall be registered, …, namely:
…
…
(State Amendment -AP) Agreement of sale of immovable property of the value of one hundred rupee and upwards.
(Similar State Amendment in Tamil Nadu and Kerala also)
“49. Effect of non-registration of documents required to be registered.– No document required by section 17 …. to be registered shall-
(c) be received as evidence of any transaction affecting such property or conferring such power, unless it has been registered:
Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registeredmay be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), or as evidence of any collateral transaction not required to be effected by registered instrument.”
Relevant Supreme Court Decisions:
S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401.
Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC 639.
Unregistered Agreemet can be used in Specific performance of Contract
In S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401, Our Apex Court held as under:
“11. The main provision in Section 49 provides that any document which is required to be registered, shall not affect any immovable property comprised therein nor such document shall be received as evidence of any transaction affecting such property. The proviso, however,would show that an unregistered document affecting immovable property and required by the 1908 Act or the Transfer of Property Act, 1882 to be registeredmay be received as an evidence to the contract in a suit for specific performance or as evidence of any collateral transaction not required to be affected by registered instrument. By virtue of the proviso, therefore, an unregistered sale deed of an immovable property of the value of Rs.100 and more could be admitted in evidence as evidence of a contract in a suit for specific performance of the contract. Such an unregistered sale deed can also be admitted in evidence as an evidence of any collateraltransaction not required to be effected by registered document. When an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received in evidence making an endorsement that it is received only as evidence of an oral agreement of saleunder the proviso to Section 49 of the 1908, Act.”
12. Recently in the case of K.B. Sahaand Sons Private Limited v. Development Consultant Limited ,(2008) 8 SCC 564, this Court noticed the following statement of Mulla in his Indian Registration Act, 7th Edition, at page 189:
“……The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioner’s Court at Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it……”
“This Court then culled out the following principles: (K.B. Saha case, SCC p.577, para 334)
“1. A document required to be registered, if unregistered is not admissible into evidence under Section 49 of the Registration Act.
2. Such unregistered document can however be used as an evidence of collateral purpose as provided in the proviso to Section 49 of the Registration Act.
3. A collateral transaction must be independent of, or divisible from, the transaction to effect which the law required registration.
4. A collateral transaction must be a transaction not itself required to be effected by a registered document, that is, a transaction creating, etc. any right, title or interest in immovable property of the value of one hundred rupees and upwards.
5. If a document is inadmissible in evidence for want of registration, none of its terms can be admitted in evidence and that to use a document for the purpose of proving an important clause would not be using it as a collateral purpose.
To the aforesaid principles, one more principle may be added, namely, that a document required to be registered, if unregistered, can be admitted in evidence as evidence of a contract in a suit for specific performance.”
It is held in Ameer Minhaj v. Dierdre Elizabeth (Wright) Issar, 2018 (7) SCC 639, after quoting Sec. 17 Registration Act, as under:
10. On a plain reading of this provision, it is amply clear that the document containing contract to transfer the right, title or interest in an immovable property for consideration is required to be registered, if the party wants to rely on the same for the purposes of Section 53A of the 1882 Act to protect its possession over the stated property. If it is not a registered document, the only consequence provided in this provision is to declare that such document shall have no effect for the purposes of the said Section 53A of the 1882 Act.
The issue, in our opinion, is no more res integra. In S. Kaladevi Vs. V.R. Somasundaram and Ors., (2010) 5 SCC 401, this Court has restated the legal position that when an unregistered sale deed is tendered in evidence, not as evidence of a completed sale, but as proof of an oral agreement of sale, the deed can be received as evidence making an endorsement that it is received only as evidence of an oral agreement of sale under the proviso to Section 49 of the 1908 Act.
After quoting Sec. 49 Registration Act it is observed by the Apex Court as under:
11. In the reported decision (i.e. S. Kaladevi Vs. V.R. Somasundaram, (2010) 5 SCC 401), this Court has adverted to the principles delineated in K.B. Saha and Sons Private Limited v. Development Consultant Limited, (2008) 8 SCC 564 and has added one more principle thereto that a document is required to be registered, but if unregistered, can still be admitted as evidence of a contract in a suit for specific performance. In view of this exposition, the conclusion recorded by the High Court in the impugned judgment that the sale agreement dated 9th July, 2003 is inadmissible in evidence, will have to be understood to mean that the document though exhibited, will bear an endorsement that it is admissible only as evidence of the agreement to sell under the proviso to Section 49 of the 1908 Act and shall not have any effect for the purposes of Section 53A of the 1882 Act. In that, it is received as evidence of a contract in a suit for specific performance and nothing more. The genuineness, validity and binding nature of the document or the fact that it is hit by the provisions of the 1882 Act or the 1899 Act, as the case may be, will have to be adjudicated at the appropriate stage as noted by the Trial Court after the parties adduce oral and documentary evidence.”
Basis of the Erudite Decision In S Kaladevi (as stated in Para 11 of the decision)
Proviso in Section 49:
“The proviso, however, would show that an unregistered document affecting immovable property and a document ‘required to be registered, but if unregistered’, may, still, be received as an evidence to the contract in a suit for specific performance …. “
Admitted as proof of an oral agreement of sale
“Such an unregistered sale deed … can be received in evidence ….. as evidence of an oral agreement of sale.”
Unregistered Agreemet can be used in Specific performance Even After the Amendment on Sec. 17
In C. Ramya Vs. C. Ganambal, 2020-5 Mad LJ 416 the Madras Court pointed out that the Madras and Andhra High Courts took the view that even after the amendment on Sec. 17 (Agreement of sale of immovable property is a compulsorily registrable document), non-registration of an agreement of sale does not operate as a total bar to look into the contract, since proviso to Section 49 has carved out two exceptions –
(i) a document ‘required to be registered, but if unregistered,’ may, still, be received as an evidence to the contract in a suit for specific performance, and
(ii) it can be used for any ‘collateral purpose‘.
The following are the cases referred to by the Madras High Court:
G. Veeramani Vs. N. Soundaramoorthy, 2019(6) CTC 580;
D. Devarajan v. Alphonsa Mary, 2019 (2) CTC 290;
Minor Ravi Bharathi Vs. P. Balasubramani, 2014(3) MWN (Civil) 578.
objections thereto can be raised ‘at a later stage’;
Admitted documents –
need not be proved.
The objection to mode of proof, and proof as to truth of its contents,
can be waived.
The objection to mode of proof, and proof as to truth, have to be raised
at the ‘earliest opportunity’.
Where ‘truth’ of a document is in issue, marking without objection
does not absolve the duty on the concerned party to prove the truth.
Probative value of a document
Mere marking a document as an exhibit
does not dispense with its proof.
Probative value of a document ‘marked without objection’ is
low or nil, for want of proper proof.
Even when a document is admitted, the probative value thereof will be
a matter for the court to determine.
Presumption as to truth of its contents can be invoked in proper cases.
Official record is taken as correct for the presumption that the entries thereof are made only after satisfying its truth.
PRODUCTION, ADMISSIBILITY & PROOF OF DOCUMENTS
A document to be used in court has to pass through three steps. They are:
Production of documents in court
Admittance and exhibition
Proof (formal proof and truth of contents).
Production and Admittance of evidence
Order VII rule 14, Order VIII rule 8A , Order XIII rule 1 say as to ‘Production‘ of documents in court. At this stage the opposite party may not have a role to object. But the Court or even the office of the court (registry) can raise and note objection on the ground of insufficiency of stamp by virtue of the provisions of the Stamp Act concerned.
Order XIII rule 4 requires following endorsements on every document which has been admitted in evidence in the Suit:
(a) the number and title of the suit,
(b) the name of the person producing the document,
(c) the date on which it was produced, and
(d) a statement of its having been so admitted.
Proof – Two Types:
First,Formal Proof: Proof as to existence of the document. The modes of proof of documents are governed under Sec. 64 to 73A of the Evd. Act.
Second, Substantive Proof: Proof as to truth of the contents document. Besides the formal proof, in most cases (excepting a few cases where signature, hand-writing etc. alone are considered), the court acts upon a document, only when ‘truth’ of the same is established. Generally speaking, proof as to truth is to be established-
(i) by oral evidence of one who can vouchsafe the same or
(ii) by circumstantial evidence or
(iii) by invoking ‘presumption’ or
(iv) by express admission by the other side.
Modes of Proof of Documents
Modes of Proof of Documents (as to, both, ‘formal proof’ and ‘truth of the contents’) include the following:
Admission of the person who wrote or signed the document (Sec. 17, 21, 58, 67, 70).
Evidence of a person in whose presence the document was signed or written – ocular evidence (Sec. 59).
An attesting witness (Sec. 59).
Opinion of a person who is acquainted with the writing of the person who signed or wrote (Sec. 47).
Admission made by the person who signed or wrote the document made in judicial proceedings (Sec. 32, 33).
Evidence of a handwriting expert-opinion evidence/scientific evidence (Sec.45).
Evidence of a person who in routine has been receiving the document; or a document signed by such a person in the ordinary course of his business or official duty, though he may have never seen the author signing the document (Sec. 32, 34, 35 or 114).
Invoking (specific) presumptions under Sec. 79 to 90A.
Presumptions (general) under Sec. 114.
Circumstantial evidence: on probability or inferences (Sec. 114).
Court-comparison (Sec. 73).
Facts judicially noticeable (Sec. 56 and 57).
A fact of common-knowledge. (It does not require proof. See: Union Of India Vs. Virendra Bharti: 2011-2 ACC 886, 2010 ACJ 2353; Rakhal Chakraborty Vs. Sanjib Kumar Roy: 1998-1 GauLR 253, 1997-2 GauLT 705)
Internal evidence afforded by the contents of the document; a link in a chain of correspondence; recipient of the document. (Mobarik Ali Ahmed Vs. State of Bombay, AIR 1957 SC 857)
Modes of Proof of Documents ‘Required By Law To Be Attested’
Section 68 of the Evd. Act provides that the documents required by law to be attested shall not be used in evidence until at least one attesting witness has been examined, if there be
(i) an attesting witness alive,
(ii) he is subject to the process of court and
(iii) he is capable of giving evidence.
But, the proviso lays down that if its execution is not specifically denied by the person by whom it purports to have been executed, it shall not be necessary to call an attesting witness in proof of the execution of any document not being a Will if such document is registered in accordance with the provisions of Indian Registration Act, 1908. That is, for the purpose of proving the Will, the examination of the attesting witness is necessary.
Following documents are required by law to be attested by two or more attesting witnesses.
1. Will: section 63 of the Succession Act.
2. Mortgage deed: section 59 of the T P Act.
3. Gift deed: section 123 of the T P Act.
4. Bond: 2(5) of the Indian Stamp Act, 1899.
Presumption and Truth
St. of West Bengal Vs. Mir Mohammad Omar (AIR 2000 SC 2988) it is held by our Apex Court as under:
“Presumption of fact is an inference as to the existence of one fact from the existence of some other facts, unless the truth of such inference is disproved. Presumption of fact is a rule in law of evidence that a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position. The above principle has gained legislative recognition in India when Section 114 is incorporated in the Evidence Act. It empowers the Court to presume the existence of any fact which it thinks likely to have happened. In that process Court shall have regard to the common course of natural events, human conduct etc. in relation to the facts of the case.”
In Dalchand Mulchand v. Hasanbi AIR 1938 Nag 152 (Vivian Bose and Puranik JJ.) held as under:
“The initial burden of proving execution of a document when it is denied is upon the person alleging execution. But if nothing else is known the mere fact that a document is admitted to bear a certain signature and that it comes from proper custody ought to be enough to raise an inference that it was signed with the intention of execution. This inference arises in India directly from Sec. 114, Evidence Act. Persons do not ordinarily sign documents without intending to execute them: that is not the common course of human conduct, nor yet the common course their public or private business. Consequently if any person wants to rely on an exceptional circumstance, if he wants to show that in some particular instance the ordinary rule was abrogated surely he must prove it and thus the burden shifts on him”.
Evidence in Old Transaction – Vigor in RECENT TRANSACTIONS could Not be EXPECTED
In Muthialpet Benefit Fund Ltd. v. V. Devarajulu Chetty, AIR 1955 Mad 455, it is held as under:
“7. To my mind, neither of the first two points is convincing because the first is based on the rather over-optimistic and facile profession of faith made in every minors suit that he the minor is going to win and to which the statistics of our Courts do not unfortunately lend any support and especially so in this case and in the circumstances set out above, which make out prima facie that the mortgagee public institution made proper and bona fide enquiry as to the existence of necessity and did all that was reasonable to satisfy itself as to the existence of such necessity. In such a case even if there was no necessity in fact or even if the money borrowed was not applied to meet the necessity, the alienation will be upheld. The recitals of necessity in the deed are admissible in evidence as admissions of the Manager or father and also amount to representation ofnecessity though in the case of RECENT TRANSACTIONS evidence aliunde** would be NORMALLY EXPECTED. These elementary propositions require no buttressing by citations (See Mulla, Hindu Law, Edn.10, p.285; Raghavachari: Hindu Law, Edn.3, p.335 and following; Mayne: Hindu Law, Edn.11, Re-print pp.474-475). Secondly, it is in the best interest of the mortgagors themselves to prevent the deterioration of the value of the corpus and market it into cash and keep the sale proceeds in Court pending and abiding the result of the suit.”
Origin of ‘Probative’ is from ‘Probare’ (Latin), means to prove; and ‘Probatio’ (Latin), means experience, trial, proof, testing, probation etc. In law, the meaning of ‘probative value’ is –
Sufficiency of evidence which is useful to prove something in a trial.
Probability of proof or truth while appreciating a fact.
Value or weight of evidence, considered by the court, in proof of something.
Extent of evidentiary value that can be taken to prove a proffered proposition.
Whenever a document is admitted in court, the probative value thereof will be a matter for the court to determine.
State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684, it is observed:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
E.g. – (i) Photocopy of a deed: Certified copy of which is provided in law, ‘objectionable document’ – But marked without objection; (ii) un-cross-examined testimony of a witness etc.
Date of Birth – School Admission Register has More Probative Value Than Horoscope
If there is a dispute regarding age, the Supreme Court, in State of Punjab v. Mohinder Singh, AIR 2005 SC 1868, held that the date of birth available in the School Admission Register has more probative value than the horoscope. The probative value of FIR, Scene-Mahazar, Post-Mortem Report, Photocopy of a Registered Deed, etc., by itself, will be lesser. In such cases the court can refrain from acting upon such documents until substantive or regular evidence is offered by examining proper witness.
In Om Prakash v. State of Punjab, 1993(2) CLR 395, and in Jora Singh v. State of Punjab, 1984(2) Crimes 837, it has been held that an entry in the school leaving certificate regarding date of birth of a student is not a conclusive proof or high ‘probityevidence’because it is a matter of common knowledge that the date of birth given at the time of the admission of a boy or girl in a school is seldom correct and more often than not the age given is less than the actual age of the child. (See also: C. Doddanarayana Reddy v. C. Jayarama Reddy, AIR 2020 SC 1912; Commissioner of Central Excise And Service Tax v. M/S. Sanjivani Non-Ferrous Trading: AIR 2019 SC 203.)
Proof must be by persons who can vouchsafe for the truth
“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the “evidence of those persons who can vouchsafe for the truth of the facts in issue”.
If ‘truth’ is in issue, or in dispute, marking without objection by itself does not absolve the duty to prove the truth as to the contents of the documents. (Ramji Dayawala Vs. Invest Import, AIR 1981 SC 2085; Achuthan Pillai vs Marikar (Motors) Ltd., AIR 1983 Ker 81, 1976 Cr.LJ 1507; 2016 (1) Gau. LJ 88, 2012(1) CTC 53; 2013-1 KLT 293.)
Admission is a Mode of Proof; ‘Facts Admitted Need Not be Proved’
Usually, a document is proved through its author, or through a witness or a person acquainted with handwriting. Concession or admission by the opposite side is an acceptable form of proving documents in evidence (under Sec. 17, 21, 58, 59 Evidence Act). ‘Truth of the contents’ of documents can also be established by concession or admission from the other side (“at the hearing”). Sec. 58, Evidence Act reads as under:
“58. Facts admitted need not be proved: No fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings:
Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Sec. 58 says that no fact need be proved in any proceeding in three circumstances:
the parties or their agents agree to admit at the hearing
before the hearing, they agree to admit by any writing under their hands
by any rule of pleading they are deemed to have admitted by their pleadings.
Admissions are Substantive Evidence by themselves
In Bharat Singh v. Bhagirathi, AIR 1966 SC 405: [1966] 1 SCR 606, it was observed as under:
“Admissions are substantive evidence by themselves, in view of ss. 17 and 21 of the Indian Evidence Act, though they are not conclusive proof of the matters admitted. We are of opinion that the admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appeared as witness was confronted with those statements in case it made a statement contrary to those admissions. The purpose of contradicting the witness under s. 145 of the Evidence Act is very much different from the purpose of proving the admission. Admission is substantive evidence of the fact admitted while a previous statement used to contradict a witness does not become substantive evidence and merely serves the purpose of throwing doubt on the veracity of the witness. What weight is to be attached to an admission made by a party is a matter different from its use as admissible evidence.”
Bharat Singh v. Bhagirathi is Quoted/referred to in:
Dipakbhai Jagdishchandra Patel v. State Of Gujarat, AIR 2019 SC 3363; 2019-16 SCC 547.
Union Of India v. Moksh Builders And Financiers Ltd., 1977 AIR SC 409; 1977-1 SCC 60.
Bishwanath Prasad v. Dwarka Prasad AIR 1974 SC 117, 1974-1 SCC 78
Priya Bala Ghosh v. Suresh Chandra Ghosh, AIR 1971 SC 1153; 1971-1 SCC 864.
“Hearing” Partakes ‘recording evidence’
Legal implication of the term ‘hearing’ is clear from Rule 2 (1) of Order XVIII (Hearing of the suit and examination of witnesses) of the CPC – that is, hearing partakes ‘recording evidence’. Rule 2 (1) reads as under:
“2. Statement and production of evidence – (1) On the day fixed for the hearing of the suit or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.”
Judicial Admissions,Stand on a Higher Footing
Admissions in pleadings (in the same proceedings) are judicial admissions. They stand on a higher footing than evidentiary admissions.
They may give rise to ‘Foundation of Rights’.
They are fully binding on the party that makes them and constitute a waiver of proofs.
Evidentiary admissions (including that in the previous pleadings in the earlier proceedings) are not conclusive by themselves and they can be shown to be wrong.
In Nagindas Ramdas v. Dalpatram Iccharam, AIR 1974 SC 471, it was held by the Supreme Court as under:
“26. Admissions if true and clear are by far the best proof of the facts admitted. Admissions in pleadings or judicial admissions admissible under Section 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case, stand on a higher footing than evidentiary admission. The former class of admissions are fully binding on the party that makes them and constitute a waiver of proof. They by themselves can be made the foundation of the rights of the parties. On the other hand evidentiary admissions which are receivable at the rival as evidence are by themselves not conclusive. They can be shown to be wrong.” (Quoted in: Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad: AIR 2005 SC 809, 2005 (11) SCC 314.)
See also:
Biswanath Prasad v. Dwarka Prasad, AIR 1974 SC 117,
Steel Authority of India Ltd v. Union of India, AIR 2006 SC 3229, 2006 (12) SCC 233,
Union of India v. Pramod Gupta, (2005) 12 SCC 1.
Documents Marked Without Objection as to its MODE OF PROOF – Effect
The law prevails in India is the following –
If documents marked without objection as to its mode of proof, it is not open to the other side to object to their admissibility afterwards.
Following are the decisive decisions in this line.
P.C. Purushothama Reddiar v. S. Perumal,(1972) 1 SCC 9 (Three Judge Bench – A.N. Grover, K.S. Hegde, A.N. Ray, JJ.)
Admissibility of police reports without examining the Head Constables who covered those meetings. Those reports were marked without any objection. Hence it was not open to the respondent to object to their admissibility.
Relied on: Bhagat Ram v. Khetu Ram, AIR 1929 PC 110.
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752 (R.C. Lahoti, Ashok Bhan, JJ.)
Photo copies were admitted in evidence ‘without foundation‘ and without objection. They cannot be held inadmissible for originals were not produced.
Relied on: Padman v. Hanwanta, AIR 1915 PC 111 P.C. Purushothama Reddiar v. S.Perumal
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082
Objection to be taken at trial before document is marked as an ‘exhibit’.
Relied on: Gopal Das v. Sri Thakurji R.V.E. Venkatachala Gounder
Sarkar on Evidence .
If copies of the documents are admitted without objection in the trial Court, no objection can be taken in appeal
Referred to in: Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
Who Should Object FIRST – Court or Opposite Side?
There is divergence of judicial opinion as to saying ‘NO’ by court to marking a document with formal defect, beforehand it is objected by the other side. Eg. Tendering copy of a document without furnishing the ‘foundational evidence’ to admit secondary evidence.
First view Court is under an obligation to exclude inadmissible materials.
H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492 (Followed in: U. Sree v. U. Srinivas: AIR 2013 SC 415.) Yeshoda v. Shoba Ram: AIR 2007 SC 1721
Second view The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition or choice (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P. Temple, (2003) 8 SCC 752 Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082. (This view is generally followed in India.)
Controversy resolved
1. The court cannot object first. If no objection for other side, Court cannot refrain from marking a document on its own volition (on the ground of formal defect).
R.V.E. Venkatchalla Gounder v. Arulmighu Viswesaraswamy and V.P.Temple, (2003) 8 SCC 752;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082.
2. If the deficiency is pertaining to non-registration of a compulsory registrable document (as it falls under the head, inadmissible document) the court can desist the marking of the document.
3. By virtue of the decision, G. M. Shahul Hameed v. Jayanthi R. Hegde, AIR 2024 SC 3339, unless the court has not applied its mind to the insufficiency of stamp, and unless there is a ‘judicial determination‘, the objection thereof can be raised at any time.
Failure to Raise Objectionas to Irregularity of mode, Amounts to Waiver
In RVE Venkatachala Gounder v. Arulmigu Viswesaraswami, AIR 2003 SC 4548: 2003-8 SCC 752 it is held-
“failure to raise timely objection” as to the irregularity of mode adopted for proving a document “amounts to waiver“.
(Therefore it is clear that ‘objection’ is a matter that primarily remains in the realm of the opposite party; rather than the court).
Admission by the other side, Proves Contents – No Blindfold Application
Court has wide powers under Sec. 165 of Evidence Act to require evidence to prove a document marked on ‘admission’. Besides the powers under Sec. 165, the Procedural Acts show that the courts have jurisdiction to require the party concerned to prove admitted-documents. It is evident from the Provisos of –
Sec. 58 of Evidence Act
O. XII, r. 2A, CPC and
Sec. 294 of the CrPC.
The Courts are free to refrain from acting upon any document, in the particular nature of a case, especially when the Court feels that injustice will be resulted by the blindfold application of this principle (admission of a document by the other side, proves its contents also), for it falls under the caption, “appreciation of evidence”. It is the reason why the courts refuse to apply this principle in certain cases, saying –
(i) Contents are ‘not proved’ (Though signature Proved)
(ii) Truth of contents are ‘not proved’ (Though contents Proved)
(iii) Probative value of the document is small or nil (Though contents and truth Proved).
Proof must be by one who can Vouchsafe for Truth – Not Beseem in All Cases
The normal rule as to proof of execution is made clear in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745, under the following words –
“Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
Though it is the “normal principle” that proof must be by one who can vouchsafe for truth (Assistant Commissioner of Customs v. Edwin Andrew Minihan, ILR 2024-1 Ker 596; 2023-7 KHC 512; 2024-1 KLT 24), it may not be correct in all cases; because, (besides documents ‘admitted’ by the other side) there may be cases where proof as to ‘existence and contents’ of a document can be given by a witnesses who cannot vouchsafe truth – e.g., a letter or a deed obtained by a witness in ‘due/common course’. In such cases, if ‘truth’ as to the contents of the document is in dispute, it has to be proved by a competent person.
Effect of Marking Documents without Objection
Following two things are different processes –
(i) admission or exhibiting of a document in evidence; and
(ii) proving the ‘truth of its contents‘ (or veracity of the same).
But, in certain cases, as comes out from Sec. 56, 57 and 58 of the Evidence Act, when a document is admitted, or marked without objection separate proof as to ‘truth of contents’ may not be warranted.
Similarly, separate proof need not be required when presumptions (Sec. 114, Evidence Act) can be invoked (e.g. document in ordinary course of business, a letter obtained in reply or a public document).
What is the effect of marking documents without objection; do contents stand proved; does it bar raising objection afterwards?
Divergent views are taken by the Courts depending on the facts of each case.
First view (a) Proof (Contents) stands established. It cannot be questioned afterwards.
(b) Truth also: See: Rafia Sultan v. Oil And Natural Gas Commission, 1986 ACJ 616; 1985-2 GujLR 1315.
(c) Admission of contents – but, does not dispense with proof of truth of its contents.
(a)RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548; (b) Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1985-2 GujLR 1315: No objection about the truth of contents … before the trial Court. … It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal. Neeraj Dutta Vs. State (Govt. of Delhi) [2023] 4 SCC 731: If no objection as to mode of proof (secondary evidence) when marked, no such objection could be allowed to be raised at any later stage. (c) Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865; Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796.
Second View Even if no objection, it does not dispense with proof (as to, both, existence of the document and its truth). In such a case the document will not be taken as proved.
(Note: It may not be legitimate to apply this principle literatim. A close analysis of each case is essential.)
LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry); H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240 (Copy of a power of attorney alone was shown to the respondent during cross-examination and he admitted his signature thereon only, and not its contents); Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (date of birth).
Third view If truth is in issue, mere proof of contents, or marking without objection, is not proof of truth.
See: Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745; Ramji Dayawala Vs. Invest Import: AIR 1981 SC 2085.
Fourth view Admission of contents, and dispenses with proof and truth; but its probative value will be a matter for appreciation by court.
See: State of Bihar v. Radha Krishna Singh, AIR 1983 SC 684 (Admission and probative value – different); Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP: 2013-10 SCC 758; H. Siddiqui v. A. Ramalingam: AIR 2011 SC 1492; Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
Fifth view Admission of contents, and dispenses with proof and truth; but Court should require (in proper cases) the party producing the document to adduce proper evidence, and to cure formal defects, invoking – • Sec. 165 of Evidence Act • Sec. 58 of Evidence Act • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
See: Harkirat Singh v. Amrinder Singh, (2005) 13 SCC 511; Umesh Challiyil v. K.P. Rajendra, (2008) 11 SCC 740; KK Ramachandran Master v. MV Sreyamakumar, (2010) 7 SCC 428; AIR 2015 SC 3796.
1. Marked Without Objection – its ‘contents’ stand proved, as admission
(a) Proof of execution may be enough: Its‘Contents’ stand proved: Exhibiting of documents in evidence without objection amounts to ‘admission’ of its contents. Admission is taken in law as an important method of proof. In this premises, proof of execution may be enough; and no separate proof be needed.
Though it is the usual practice followed by all courts, whether the presumption attached to the same bestows ‘truth‘ of the contents of the document is, practically and theoretically, a matter to be deduced after ‘appreciating’ evidence (in each case).
When a document is marked without objection, its ‘contents’ stand proved. See: RVE Venkatachala Gounder v. Arulmigu Viswesaraswami: AIR 2003 SC 4548. See also:
Narbada Devi v. Birendra Kumar: (2003) 8 SCC 745
Dayamati Bai v. K.M. Shaffi: AIR 2004 SC 4082
Oriental Insurance Co. v. Premlata: (2007) 8 SCC 575
Thimmappa Rai v. Ramanna Rai: (2007) 14 SCC 63.
Sk. Farid Hussinsab v. State of Maharashtra, 1983 CrLJ 487; (Quoted in Sonu @ Amar v. State of Haryana, AIR 2017 SC 3441; 2017-8 SCC 570)
Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 GujLH 27; 1985-2 GujLR 1315: (relied on: P. C. Purushottamman v. S. Perumal AIR 1972 SC 608;
Pandappa v. Shivlingappa 47 BLR. 962; and
Gopaldas v. ShriThakurli AIR 1943 PC 83).
See also:
Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873;
Sumita @ Lamta v. Devki, (Valmiki J. Mehta, J.), 25 Sep 2017 (indiakanoon);
When a document is marked without objection, our courts take two (divergent) views:
First, both Contents and ‘Truth of its Contents’ stand proved.
Second, contents alonestand proved; and, not ‘Truth’ of its Contents.
Effect of marking document without objection is laid down in the following two recent decisions of the Supreme Court. In both these cases, it is seen, the Apex Court has taken the view that the ‘truth’ is also stood proved.
The Constitution Bench in Neeraj Dutta v. State (Govt. of N. C. T. of Delhi), AIR 2023 SC 330; 2023 4 SCC 731, held as under:
“44. Section 64 of the Evidence Act states that documents must be proved by primary evidence except in certain cases mentioned above. ….. Thus, once a document has been properly admitted, the contents of the documents would stand admitted in evidence, and if no objection has been raised with regard to its mode of proof at the stage of tendering in evidence of such a document, no such objection could be allowed to be raised at any later stage of the case or in appeal vide Amarjit Singh v. State (Delhi Admn.) 1995 Cr LJ 1623 (Del) (“Amarjit Singh”). But the documents can be impeached in any other manner, though the admissibility cannot be challenged subsequently when the document is bound in evidence.”
In PC Thomas v. PM Ismail, AIR 2010 SC 905; 2009-10 SCC 239, it is observed as under:
“No objection on pleas of “inadmissibility” or “mode of proof” was raised at the time of their exhibition or any time later during trial, when most of the witnesses, produced by the parties were confronted with these, as duly exhibited, bearing stamp marking with particulars, prescribed under Order XIII Rule 4 of the Code of Civil Procedure, 1908 and duly signed as such.
In our opinion, it is too late in the day now to object to their exhibition on the ground of “prescribed procedure” i.e. mode of proof.
Moreover, we also find that it was nobody’s case that the said documents were got printed by John K or distributed amongst voters by him. Absence of proof of acknowledgment by him because of non production of John K as a witness, in the circumstances, in our view, is inconsequential.
Admittedly, John K was a well known leader of high stature, recognized as such by Christian/Catholic voters including those mentioned in Para 17 (supra) and, therefore, there is no question of drawing an adverse inference against the election petitioner for not examining him, as strenuously urged on behalf of the appellant, particularly when the printing and circulation of offending material (Exts.P1 and P2) has been proved by the election petitioner beyond reasonable doubt.”
(b) Document marked without objection – Contents (‘TRUTH also) proved
Objection as to Truth of Contents, First Time In Appeal – Effect – Too late in the day
In Rafia Sultan v. Oil And Natural Gas Commission (I.C. Bhatt, S.B. Majmudar, JJ.), 1986 ACJ 616; 1986 Guj LH 27; 1985-2 GujLR 1315 it is observed as under:
“It was never the case of the Commission that report which was submitted in a sealed cover was not the genuine and true report of the committee appointed by the Commission itself. Thus in short no objection about the truth of contents of Ex. 24/1 i. e. Ex. 32 was ever put forward before the trial Court and rightly so as that was the report of its own committee of experts appointed by the Commission for enlightening itself about the causes of the accident and about the future safety steps which were required to be taken to avoid such accidents. … Not only that but the witness of the defendant accepted the contents of the said document Ex. 32. Nothing was suggested by him or even whispered to the effect that the contents of the said report were in any way untrue. …. In fact both the sides have relied upon different parts of Ex. 32 in support of their rival contentions on the aspect of negligence and contributory negligence. It is therefore too late in the day for Miss Shah for the Commission to canvass for the first time before us in appeal that contents of Ex. 32 were not proved in accordance with law and hence the document was required to be taken off the record. It is now well settled that objection about mode of proof can be waived by a party and that such objection is raised by the party at the earliest opportunity in the trial Court such objection will be deemed to have been waived and cannot be permitted to be raised for the first time in appeal (vide P. C. Purushottamman v. S. Perumal AIR 1972 SC 608; Pandappa v. Shivlingappa 47 BLR. 962; and Gopaldas and another v. Shri Thakurli, AIR 1943 PC 83 at page 87 ). In view of this settled legal position the objection raised by Miss Shah against admissibility of Ex. 32 viz. that its contents were not proved in accordance with law has to be repelled.”
When a document is marked without objection, no doubt, the presumption in Sec. 114 of the Evidence Act is wide enough to presume that (i) the “contents” of the document and (ii) its ‘truth’ stand ‘proved’. Therefore, it is the duty of the other side to express its disapproval – that it does not accept the ‘contents’ and/or ‘truth’ (if it is so).
The dissent thereof can be placed by the opposite side by-
Raising ‘objection’ at the time of its marking, or
Placing the protest by way of ‘suggestion’ to the witness or by proper questions.
(c)TRUTH is left to Discretion (Sec. 3) & Presumption (Sec. 114) of Court
Sec. 67, Evidence Act lays down the fundamental principles as to the proof of documents. Sec. 67 reads as under:
“67. Proof of signature and handwriting of person alleged to have signed or written document produced—If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.”
Sec. 67 says as to ‘proof of signature and handwriting’ alone. Neither Sec. 67 nor any other section of the Evidence Act says about ‘proof as to truth‘ of contents of documents.
Inferences as to “TRUTH of contents
Evidence Act does not expressly proffer anything as to “TRUTH of contents” of documents.
It is left to the discretion (Sec. 3) of the court. In proper cases court can presume (Sec. 114) truth.
In most cases, ‘proof of execution’ leads the court to presume ‘proof of truth’.
It is more so, when a document is admitted (by the other side) without objection.
But, when proof as to ‘truth’ is in issue, or in dispute, the party in whom the burden thereof rests has to discharge it.
(d) Legal Position on ‘Waiver’ of Mode of Proof
It appears that the legal position can be summed-up as under –
If a document is marked without objection, the right of objection (vest with the other side) stands waived. And the entire contents of the document would be admissible in evidence.
However, if (i) there is any intrinsic infirmity to the document, or (ii) specific proof as to truth is required in the nature of the case of the parties, or it is marked through a witness who is incompetent to prove it (and the opposite party does not expressly or impliedly accepted it), the court can say – it is not ready to act upon it, for truth or correctness of contents is not established.
In Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is pointed out that (in such a situation) there must be some evidence to support the contents of such document.
It is apposite to note – in RVE Venkatachala Gounder v. Arumlmigu Viswesaraswami, AIR 2003 SC 4548, the question as to ‘truth’ of contents did not specifically come for consideration. It is dealt with as under:
“Since documents A30 and A34 were admitted in evidence without any objection, the High Court erred in holding that these documents were inadmissible being photo copies, the originals of which were not produced.”
2. MERE MARKING, DOES NOT PROVE THE CONTENTS – NOT AN UNQUALIFIED PROPOSITION
This Proposition is Not to be Applied “Literatim”
It is disgraceful that several courts in India apply this proposition (Mere Marking Does Not Prove the Contents) ineptly.
This proposition is not attracted–
when a document is marked on ‘admission’ by the opposite side.
This proposition is attracted–
when it is evident that the document is marked only for ‘identification‘, or
when the objection raised by the other side is sustained and the document is marked ‘subject to proof/objection’.
when the document is marked through an incompetent witness and not proved through a competent witness (in spite of the objection in this regard), afterwards;
when it has come out in cross examination of the witness through whom it is marked (by other evidence) that it is not proved ‘in accordance with law‘.
Each Case under this Head Requires Distinct Consideration
As this proposition (Mere Marking Does Not Prove the Contents) is not to be applied “literatim”, each case (which referred to this proposition) requires distinct consideration. (Some of these decisions mentioned this proposition, merely to show that such an argument was placed before it; but those decisions were quoted (subsequently) by some Courts as if those (earlier) decisions laid down a ‘ratio decidendi’.)
Following are the often-cited cases on this subject.
(a)Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745
[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – the rent receipts were taken as proved, for, it was ‘not disputed’ by the other side.]
It is held in Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745 as under:
“Reliance is heavily placed on behalf of the appellant on Ramji Dayawala v. Invest Import: AIR 1981 SC 2085.The legal position is not in dispute that mere production and marking of a document as exhibit by the court cannot be held to be a due proof of its contents. Its execution has to be proved by admissible evidence, that is, by the evidence of those persons who can vouchsafe for the truth of the facts in issue”.
Narbada Devi Gupta v. Birendra Kumar Jaiswal (supra) continued as under:
“The plaintiff did not dispute his signatures on the back of them. There was, therefore, no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution by the deceased landlady.”
Note:
In this case the rent receipts were taken as proved, for, it was ‘not disputed’. [Hence the ‘legal position’ stated in Ramji Dayawala v. Invest Import (that mere production and marking of a document cannot be held to be a due proof) was not attracted in this case.]
(b) Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758
[The proposition (Mere Marking Does Not Prove the Contents)was neither attracted nor applied in this case, for – the secondary evidence of dying declaration produced in this case (with foundational evidence) was accepted by the Court]
In this case the Courts upheld the acceptance of the secondary evidence (of the dying declaration). Our Apex Court held as under-
“In the instant case, the Trial Court had granted permission to lead secondary evidenceand the same had been adduced strictly in accordance with law and accepted by the courts below.”
It is only pointed out in this decision as under:
“However, the secondary evidence of an ordinary document is admissible only and only when the party desirous of admitting it has proved before the court that it was not in his possession or control of it and further, that he has done what could be done to procure the production of it. Thus, the party has to account for the non-production in one of the ways indicated in the section. The party further has to lay down the factual foundation to establish the right to give secondary evidence where the original document cannot be produced. When the party gives in evidence a certified copy/secondary evidence without proving the circumstances entitling him to give secondary evidence, the opposite party mustraise an objection at the time of admission. In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.Further,mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with the proof , which is otherwise required to be done in accordance with law.
(Vide: The Roman Catholic Mission v. The State, AIR 1966 SC 1457;
Marwari Khumhar v. Bhagwanpuri Guru Ganeshpuri, AIR 2000 SC 2629;
RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548;
Smt. Dayamathi Bai v. K.M. Shaffi, AIR 2004 SC 4082; and
LIC of India v. Rampal Singh Bisen,2010-4 SCC 491).”
(c)Ramji Dayawala v. Invest Import: AIR 1981 SC 2085
[The proposition (Mere Marking Does Not Prove the Contents) was neither attracted nor applied in this case, for – Truth of the facts in the document was “in issue“]
It is held as under:
“Obviously, in these circumstances the Privy Council observed that the fact that a letter and two telegrams were sent by itself would not prove the truth of the contents of the letter and, therefore, the contents of the letter bearing on the question of lack of testamentary capacity would not be substantive evidence. Undoubtedly, mere proof of the handwriting of a document would not tantamount to proof of all the contents or the facts stated in the document. If the truth of the facts stated in a document is in issuemere proof of the handwriting and execution of the document would not furnish evidenceof the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouch safe for the truth of the facts in issue.”
Note: The aforequoted portion itself will show that the proposition – mere proof of the handwriting would not tantamount to proof of contents – is not absolute. It is attracted to this case, because the truth of the facts was “in issue“.
(d) M. Chandra v. M. Thangamuthu, 2010-9 SCC 712
[The proposition (Mere Marking Does Not Prove the Contents) was attracted in this case, for – the Validity and Genuineness of the Photocopy (of the Caste Certificate) was very much in question]
In this decision it was held:
“The High Court while considering this issue has noticed that the appellant failed to produce the original certificate issued by Arya Samaj, Madurai and further has not examined Santnakumar, who was supposed to have received and retained the original certificate issued by the Arya Samaj and the original records have not been summoned from Arya Samaj and no steps have been taken to summon the responsible person from Arya Samaj to prove that the appellant underwent conversion. Therefore, the claim made by her about her reconversion cannot be accepted. We do not agree with the reasoning of the High Court. It is true that a party who wishes to rely upon the contents of a document must adduce primary evidence of the contents, and only in the exceptional cases will secondary evidence be admissible. However, if secondary evidence is admissible, it may be adduced in any form in which it may be available, whether by production of a copy, duplicate copy of a copy, by oral evidence of the contents or in another form. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original.”
Note: It was an appeal from an Election petition and the Supreme Court allowed the appeal. The validity and genuineness of the Certificate was very much in question. Therefore, the principles in RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548 (where the secondary evidence was marked without objection), was not attracted to this case (and it was not referred to also).
Principle of law laid down in M. Chandra v. M. Thangamuthu is followed in Rakesh Mohindra v. Anita Beri, 2016 -16 SCC 483.
(e)H. Siddiqui v. A. Ramalingam, (2011) 4 SCC 240
[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the Photocopy was shown to the witness during cross-examination alone, and Signature alone was admitted by the witness.]
It was held that the power of attorney was not proved in accordance with the terms of Sec. 65 of the Evidence Act, for the following –
The power of attorney had not been proved.
Original had never been filed before the Trial Court.
Only a photocopy of the same was shown to the respondent during cross-examination.
The respondent has only admitted his signature thereon.
He had never admitted its contents or genuineness.
It is held in H. Siddiqui v. A. Ramalingam, 2011-4 SCC 240, as under:
“In our humble opinion, the Trial Court could not proceed in such an unwarranted manner for the reason that the respondent had merely admitted his signature on the photocopy of the power of attorney and did not admit the contents thereof.”
It is added:
“More so, the court should have borne in mind that admissibility of a document or contents thereof may not necessary lead to drawing any inference unless the contents thereof have some probative value.”
(f) Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865.
[The proposition (Mere Marking Does Not Prove the Contents) was applied in this case, for – the accounts of the Plaintiff would not be proved by itself]
It is held that the documents do not prove themselves. It is also observed in this decision as under:
“15. The plaintiffs wanted to rely on Exs. A-12 and A-13, the day book and the ledger respectively. The plaintiffs did not prove these books. There is no reference to these books in the judgments. The mere marking of an exhibit does not dispense with the proof of documents. It is common place to say that the negative cannot be proved. The proof of the plaintiffs’ books of account became important because the plaintiffs’ accounts were impeached and falsified by the defendants’ case of larger payments than those admitted by the plaintiffs. The irresistible inference arises that the plaintiffs’ books would not have supported the plaintiffs.” (Quoted in: Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365.)
Other Important Decisions –
1. LIC v. Ram Pal Singh Bisen: 2010-4 SCC 491 (Filing of the Inquiry Report or the evidence adduced during the domestic enquiry);
2. Birad Mal Singhvi v. Anand Purohith: 1988 (Supp) SCC 604 (document on date of birth).
3. Nandkishore Lalbhai Mehta v. New Era Fabrics, AIR 2015 SC 3796 (It is observed that mere marking as exhibit and identification of executant’s signature by one of witnessesdoes not prove contents of a document).
4. Vinod Jaswantray Vyas v. State of Gujarat, 2024-7 SCR 365 (mere marking of exhibit – letter – without the expert deposing about the opinion given therein would not dispense with the proof of contents).
3. IF ‘TRUTH’ IS IN ISSUE – Mere Marking Not Amount to ‘Waiver’
The fundamental principles as to proof of execution a document is that the execution has to be proved by proper evidence, that is by the ‘evidence of those persons who can vouchsafe for the truth of the facts in issue’ (Narbada Devi Gupta v. Birendra Kumar Jaiswal, 2003-8 SCC 745).
Note: In the facts and circumstances of each case, the court is at liberty to invoke its wisdom and fill certain gaps in evidence by applying ‘presumption’ (as shown elsewhere in this article). But it is subject to the discretion of the court – to take presumption and evaluate probative value.
If ‘TRUTH’ is in issue, or in dispute,marking a document without objection, or mere proof of handwriting or execution, by itself, need not absolve the duty to prove the truth as to the contents of the documents. Court has a duty to see that the statement of a witness gets independent corroboration, direct or circumstantial, in proper cases (Ahalya Bariha v. Chhelia Padhan, 1992 Cri.LJ 493).
In Ramji Dayawala v. Invest Import: AIR 1981 SC 2085, it was held as under:
“If the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document. The truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence, i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.”
See also:
State of Bihar v. Radhaa Krishna Singh, AIR 1983 SC 684,
Narbada Devi Gupta v. Birendra Kumar Jaiswal, AIR 2004 SC 175,
Oriental Insurance Co.Ltd. v. Premlata Shukla, 2007-13 SCC 476,
Dharmarajan v. Valliammal, AIR 2008 SC 850,
Madan Mohan Singh v. Rajni Kant, AIR 2010 SC 2933,
Joseph John Peter Sandy v. Veronica Thomas Rajkumar, AIR 2013 SC 2028
Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81;
Suresh v. Tobin, 2013-1 KerLT 293.
4. Admission of Contents – May Dispense with Proof; But Probative Value may be Less or Nil
The discretion vested with the court to take presumption; and to evaluate probative value.
It is well settled that when a party leads secondary evidence, the Court is obliged to examine the probative value of the document and its contents, and to decide the question of admissibility of the same [Rakesh Mohindra v. Anita Beri: 2015 AIR(SCW) 6271; Kaliya v. State of MP, 2013-10 SCC 758 ].
Even when a document is technically admitted in court, the probative value thereof will always be a matter for the court to determine. That is, it is depended upon the nature of each case.
The probative value of Scene-Mahazar, Postmortem Report, Photocopy of a Registered Deed etc. without supporting legal evidence may be lesser. In such cases the court can refrain from acting upon such documents until regular evidence is tendered.
In Kaliya v. State of Madhya Pradesh, 2013-10 SCC 758, after holding – ‘Mere admission of a document in evidence does not amount to its proof’ – it is further held as under:
“The court is obliged to examine the probative value of documents produced in court or their contents and decide the question of admissibility of a document in secondary evidence.”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
In Kaliya v. State of MP: 2013-10 SCC 758 our Apex Court also referred to H. Siddiqui v. A. Ramalingam, AIR 2011 SC 1492, and Rasiklal Manikchand v. MSS Food Products: 2012-2 SCC 196.
In Rakesh Mohindra v. Anita Beri, 2015 AIR (SCW) 6271, as regards mere admittance of secondary evidence, it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
In Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491], it is observed as under:
“26. We are of the firm opinion that mere admission of document in evidence does amount to its proof. In other words, mere marking of exhibit on a document does dispense with its proof, which is required to be done in accordance with law. …..
27. It was the duty of the appellants to have proved documents Exh.-A-1 to Exh. A-10 in accordance with law. Filing of the Inquiry Report or the evidence adduced during the domestic enquiry would partake the character of admissible evidence in Court of law. That documentary evidence was also required to be proved by the appellants in accordance with the provisions of the Evidence Act, which they have failed to do.”
The Calcutta High Court quoting Life Insurance Corporation of India v. Ram Pal Singh Bisen [2010-4 SCC 491] it is observed in Bajaj Allianz General Insurance Company v. Smt. Santa (2019-2 ACC 36) that ‘even if the document had been marked as Exhibit-A without objection, without a formal proof thereof in accordance with the provisions of the Evidence Act, such document lost its credibility and is of no probative value’.
Best Evidence Rule and ‘Evidence of High Probative Value‘
Though various kinds of secondary evidences are provided under Sec. 63, the ‘probative value’ of one kind (say, a photograph/photostat of an original document, as stated in Illustration (a) of Sec. 63) will definitely be higher when compared with another (say, oral account). The best evidence rule insists for evidence bearing high ‘probative value’.
In State of Bihar v. Radha Krishna Singh (AIR 1983 SC 684) it is observed as under:
“Admissibility of a document is one thing and its probative value quite another—these two aspects cannot be combined. A document may be admissible and yet may not carry any conviction and weight or its probative value may be nil.”
Secondary Evidence would be Admissible only in Exceptional Cases
In Kalyan Singh v. Chhoti, AIR 1990 SC 396, it had been observed as under:
“A certified copy of a registered sale deed may be produced as secondary evidence in the absence of the original. But in the present case Ex. 3 is not certified copy. It is just an ordinary copy. There is also no evidence regarding content of the original sale deed. Ex.3 cannot therefore, be considered as secondary evidence. The appellate Court has a right and duty to exclude such evidence.”
5.Court should allow to adduce proper evidence to prove documents
Besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts shows that the court has jurisdiction to require the party concerned to prove that document. It is evident from –
• Sec. 58 of Evidence Act, • O. XII, r. 2A Proviso, CPC and • Sec. 294 of the CrPC.
Inasmuch as –
(a) mere marking of a document on admission will not amount to proof, or evidence of the contents of the document or its truth;
(b) the probative value of a document ‘marked without objection’ may be low or nil, for want of proper proof; and
(c) there may be a formal defect to the document for it is a secondary evidence and it is produced without adducing ‘foundational evidence’,
it is legitimate to say that before taking an adverse stance as to proof in these counts, the court should give an opportunity to the party who relies on the document to cure the deficiency.
Duty of the Court to Aid Fair Trial
As shown above, the Privy Council, in Padman v. Hanwanta, 1915 (17) BomLR 609: AIR 1915 PC 111, held, as regards objection as to the admissibility of a certified copy of a will without any objection, as under:
“11. … Had such objection been made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their Lordships think that there is no substance in the present contention.”
Defect for not producing a proper power of attorney being curable, in Haryana State Coop. Supply and Marketing Federation Ltd. v. Jayam Textiles, 2014 AIR SC 1926 (a case under Section 138 Negotiable instruments Act), the Apex Court gave opportunity to the petitioner to produce the authorization of Board of Directors. It is observed that the in Raj Narian v. Indira Nehru Gandhi, (1972) 3 SCC 850 it was held that the rules of pleadings are intended as aids for a fair trial and for reaching a just decision.
This principle is iterated in following cases also:
F.A. Sapa v. Singora, (1991) 3 SCC 375;
H.D. Revanna v. G. Puttaswamy Gowda, (1999) 2 SCC 217;
V.S. Achuthanandan v. P.J. Francis, (1999) 3 SCC 737;
Mahendra Pal v. Ram Dass Malanger, (2000) 1 SCC 261;
Virender Nath Gautam v. Satpal Singh, (2007) 3 SCC 617; (observed that facta probanda (material facts) are to be set out in the pleadings and facta probantia (particulars or evidence) need not be set out in the pleadings);
Objection Regarding Admissibility of Documents – 2 counts
Disputes on admissibility of documents arise on 2 domains. (See: Manakishore Lalbhai Vs. New Era Fabrics: AIR 2015 SC 3796)
document which is ab initio (or inherently) ‘inadmissible’
document liable to be objected on ‘mode or manner of proof’.
Even if an inherently-inadmissible document is marked, objections thereto can be raised ‘at a later stage’. Mode of proof (not inherent admissibility) falls within the realm of procedural law. Therefore, objection thereto can be waived.
Inherently-inadmissible documents
‘Inherent-inadmissibility of documents’ arises from the following:
Irrelevancy
Non-registration.
Section 5 of the Indian Evidence Act, 1872 deals with relevancy. It reads as under:
“5. Evidence may be given of facts in issue and relevant facts.—Evidence may be given in any suit or proceedings of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.
Explanation.—This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to Civil Procedure
Illustration s (a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A’s trial the following facts are in issue:— A’s beating B with the club; A’s causing B’s death by such beating; A’s intention to cause B’s death.
(b) A suitor does not bring with him, and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to produce the bond or prove its contents at a subsequent stage of the proceedings, otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.”
In Jainab Bibi Saheb v. Hyderally Saheb, (1920) 38 MLJ 532, it was pointed out that neither an omission by an advocate to object to giving of irrelevant and inadmissible evidence nor the failure of the tribunal to exclude it of its own motion would validate a decree based on material which the Evidence Act declares to be inherently and in substance irrelevant to the issue. It was also held in this decision that the primary rule to prove relevant facts by the evidence of witnesses is to call them before the trial Judge and examine them viva voce in the manner stated in Chapter 10 of the Evidence Act.
Document liable to be Objected on ‘Mode or Manner of Proof’
Following are improper modes (liable to objection):
Seeking exhibition through one who cannot vouchsafe veracity or truth.
Objectionable (mode of) secondary evidence. Eg:
Certified copy produced without proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
Secondary evidence other than that is recognised under Sec. 63.
Unstamped or insufficiently/improperly stamped document.
Objection to be Raised When document is admitted
It was observed by the Supreme Court in 2001 in Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158, that that ‘it is an archaic practice that during the evidence collecting stage, whenever any objection is raised regarding admissibility of any material in evidence the court does not proceed further without passing order on such objection’. And the Court directed as under:
“When so recast, the practice which can be a better substitute is this: Whenever an objection is raised during evidence taking stage regarding the admissibility of any material or item of oral evidence the trial court can make a note of such objection and mark the objected document tentatively as an exhibit in the case (or record the objected part of the oral evidence) subject to such objections to be decided at the last stage in the final judgment.”
But, the subsequent decisions in R.V.E. Venkatachala Gounder: AIR 2004 SC 4082; Dayamathi Bai (2004) 7 SCC 107 took a contra view. It was held that the objection as to ‘mode of proof’ should be taken at the time of marking of the document as an exhibit, so that the defect can be cured by the affected party.
In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State Of Andhra Pradesh, 2021-10 SCC 598, overruled (ruled – stood modified) Bipin Shantilal Panchal v. State of Gujarat, AIR 2001 SC 1158. It is directed as under:
“The presiding officer therefore, should decide objections to questions, during the course of the proceeding, or failing it at the end of the deposition of the concerned witness.”
It appears that the decision taken by a Magistrate to mark the document – “subject to objection” is improper; nevertheless, marking – “subject to proof” is a permissible action, for it is a “decision” ruled-down in In Re: To Issue Certain Guidelines Regarding Inadequacies And Deficiencies In Criminal Trials v. State of Andhra Pradesh, 2021-10 SCC 598.
Privy Council in Padman v. Hanwanta, AIR 1915 PC 111, held that the objection to marking of documents and its admissibility should have been taken in the trial court. It was observed as under:
“The defendants have now appeal to the Majesty in Council, and the case has been argued on their behalf in great detail. It was urged in the course of the argument that a registered copy of the will of 1898 was admitted in evidence without sufficient foundation being led for its admission. No objection, however, appears to have been taken in the first court against the copy obtained from the Registrar’s office being put in evidence. Had such objection being made at the time, the District Judge, who tried the case in the first instance, would probably have seen that the deficiency was supplied. Their lordships think that there is no substance in the present contention.”
In P.C. Purushothama Reddiar v. S Perumal, 1972 (2) SCR 646, it was observed as under:
“Counsel contended that the police reports referred to earlier are inadmissible in evidence as the Head-constables who covered those meetings have not been examined in the case. Those reports were marked without any objection. Hence it is not open to the respondent now to object to their admissibility.”
Our Apex Court held in Lachhmi Narain Singh v. Sarjug Singh, AIR 2021 SC 3873, as under:
“24. In view of the foregoing discussion, it is clear that plea regarding mode of proof cannot be permitted to be taken at the appellate stage for the first time, if not raised before the trial Court at the appropriate stage. This is to avoid prejudice to the party who produced the certified copy of an original document without protest by the other side. If such objection was raised before trial court, then the concerned party could have cured the mode of proof by summoning the original copy of document. But such opportunity may not be available or possible at a later stage. Therefore, allowing such objection to be raised during the appellate stage would put the party (who placed certified copy on record instead of original copy) in a jeopardy & would seriously prejudice interests of that party. It will also be inconsistent with the rule of fair play as propounded by Justice Ashok Bhan in the case of RVE Venkatachala Gounder v. Arulmigu, AIR 2003 SC 4548.”
Admissions in pleadings are judicial admissions. They stand on a higher footing than evidentiary admissions.
They may give rise to ‘Foundation of Rights’.
They are fully binding on the party that makes them and constitute a waiver of proofs.
Evidentiary admissions are not conclusive by themselves and they can be shown to be wrong.
In Nagindas Ramdas v. Dalpatram Icharam, AIR 1974 SC 471, held that admissions in pleadings are judicial admissions under Section 58 of the Evidence Act. They are made by parties or their agents at or before the hearing of a case and stand on a higher footing than evidentiary admissions. Former class of admissions are fully binding on the party that makes them and constitute a waiver of proofs. They by themselves can be made the foundation of the rights of parties. On the other hand evidentiary admissions which are receivable at the trial as evidence are by themselves not conclusive and they can be shown to be wrong.
Document Exhibited in the Writ Petition as a ‘True Copy’ – Whether Admission
Can a document exhibited in the writ petition as a ‘true copy’ be marked in a civil court as an ‘admission’ – producing the certified copy of the writ petition; for example:
(i) a letter written by the Petitioner in the Writ Petition
(ii) a letter or a private document obtained to him (apparently original of the same is with the Petitioner)
(iii) copy of a Public Document.
The Answer is:
Yes, it can be ‘marked’ on ‘admission’.
The existence of the contents of the first and third documents (letter written by the Petitioner and copy of a Public Document) can be ‘presumed’ by the court, in the civil suit between the same parties, under Sec. 114, Evidence Act (which lays down a rebuttable presumption).
Note:
1. Sec. 58, Evidence Act says – Admitted facts need not be proved.
2. Certified copy of a public document need not be proved by a witness – Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633.
Though the existence of the second class of documents (original of which are apparently with the Writ-Petitioner) can be presumed, if truth of contents of those documents is in question or denied the adverse party, it has to be proved independently .
Note: Proviso to Sec. 58 Evidence Act reads as under:
“Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
Also Note: Normally the documents relied of in the Writ petition will not be denied by the petitioner therein.
Certified copy of a public document need not be proved by a witness
In Madamanchi Ramappa v. Muthalur Bojjappa (P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta), AIR 1963 SC 1633, it is held as under:
“The document in question being a certified copy of a public document need not have been proved by calling a witness.”
This proposition in Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633, is referred to in the following decisions:
Sarojini Amma v. Palace Administration Board, 2024 Ker 75727; 2024 KLT(Online) 2545; 2024-6 KLT(SN) 36,
Shail v. Nasib Khan, 2018-3 CGLJ 450 (Chh)
State of Gujarat v. Ashokkumar Lavjiram Joshi (J.B. Pardiwala, J), 2018-2 Glh 166 (Guj)
Raj Moti Dal Mills v. Sales Tax Officer (B. S. Chauhan and D. P. Gupta, JJ.), 2004-136 STC 576 (All)
United India Insurance Co. Ltd. v. Hamu Ram, 2004 5 WLC 513 (Raj).
If Payment of Price is disputed, Some Oral Evidence is needed for ‘proof’.
In Suresh CV v. Tobin, ILR 2013(1) Ker. 30, the Kerala High Court held that if payment of price for sale was disputed, such fact would not be proved by mere production and marking of a registered sale deed which stated or narrated the payment, and that it was necessary to adduce oral evidence to prove such fact. The Court relied on Ramji Dayawala Vs. Invest Import (AIR 1981 SC 2085) which held that if the truth of the facts stated in a document is in issue mere proof of the handwriting and execution of the document would not furnish evidence of the truth of the facts or contents of the document and that the truth or otherwise of the facts or contents so stated would have to be proved by admissible evidence i.e. by the evidence of those persons who can vouchsafe for the truth of the facts in issue.
Courts to admit documents Without Proof
Section 163 of the Evidence Act, reads as under:
163. Giving, as evidence, of document called for and produced on notice: When a party calls for a document which he has given the other party notice to produce, and such document is produced and inspected by the party calling for its production, he is bound to give it as evidence if the party producing it requires him to do so.
It is observed in Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, with respect to a document used under Sec. 163, as under:
“The further contention is that if they are to be admitted, they cannot be put in or at any rate used without proof. But the section itself says that the party calling for it is bound to give it as evidence if required to do so, and that certainly means that it goes in as a record of the particular proceeding and that it can be looked at to see what it includes or omits.”
It is noteworthy that Order XI rule 15 and Order XII rule 8 are the provisions in the CPC to give notice to the other party to produce documents (for ‘inspection’ and ‘show court’, respectively). In Government of Bengal v. Santiram Mondal, AIR 1930 Cal 370, and R v. Makhan, AIR 1940 Cal 167, it was observed that Section 163 of the Evidence Act applies to Criminal Proceedings also.
Court’s Jurisdiction to Require to Prove an Admitted Document
In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can see it in Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC .
Section 294 of Code of Criminal Procedure reads as follows:
“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”
Admission of Documents in Evidence & Proof
In Baldeo Sahai v. Ram Chander, AIR 1931 Lahore 546, it is held as under:
“There are two stages relating to documents. One is the stage when all the documents on which the parties rely are filed by them in Court. The next stage is when the documents proved and formally tendered in evidence. The word “proved” has been used by the Division Bench in the sense of ‘proposed to be proved’ as is clear from its having been used along with the word ‘tendered’ or “admitted” in evidence. The word proved has been loosely used for describing the stage after fling of the documents, when the Court would decide only whether they should be admitted or rejected. The Division Bench cannot be read as holding that the document is not to be endorsed with an Exhibit number unless and until proved. As stated hereinabove, the stages of tendering/admitting/rejecting in evidence and holding a document proved – are two distinct and different stages, not one. They are respectively the second and third stages. Admission of a document in evidence is not to be confused with proof of a document.”
Mere marking– not dispense with proof(of truth of contents)
No doubt, presumption in Sec. 114 Evidence Act is wide enough, in the circumstance of a proper case, to presume ‘truth’ of contents of a ‘proved’ document.
In Sait Tarajee Khimchand v. Yelamarti Satyam, AIR 1971 SC 1865, the Supreme Court observed that mere marking of documents (day book and ledger) as exhibits do not dispense with the proof of documents. InNandkishore Lalbhai Mehta Vs. New Era Fabrics, AIR 2015 SC 3796, it is observed that mere marking as exhibit and identification of executor’s signature by one of witnesses do not prove contents of a document.
In Kaliya Vs. State of Madhya Pradesh (2013-10 SCC 758) it is held as under:
“Mere admission of a document in evidence does not amount to its proof. Nor, mere marking of exhibit on a document does not dispense with its proof, which is otherwise required to be done in accordance with law. (Vide: The Roman Catholic Mission Vs. The State, AIR 1966 SC 1457; Marwari Khumhar Vs. Bhagwanpuri Guru Ganeshpuri AIR 2000 SC 2629; RVE Venkatachala Gounder Vs. Arulmigu AIR 2003 SC 4548; Smt. Dayamathi Bai Vs. K.M. Shaffi, AIR 2004 SC 4082; and LIC of India Vs. Rampal Singh Bisen,2010-4 SCC 491).”
[Note: Further held: “In case, an objection is not raised at that point of time, it is precluded from being raised at a belated stage.”]
Dibakar Behera v. Padmabati Behera, AIR 2008 Ori 92, it is observed [referring RVE Venkatachala Gounder Vs. Arulmigu Viswesaraswami, AIR 2003 SC 4548, Dayamati Bai Vs. K.M. Shaffi, 2004 SC 4082, Bhagyarathi Das v. Agadhu Charan Das, 62 (1986) CLT 298, Budhi Mahal v. Gangadhar Das, 46 (1978) CLT 287 etc.] that a close reading of the above judicial pronouncements would show that whenever a document is marked as exhibit without objection, it will be presumed that a party having right of objection has waived formal proof of the document and in such situation, the entire contents of the document would be admissible in evidence. How ever, by such admission of document, the truth and correctness of the contents by it self would not be established and there must be some evidence to support the contents of such document.
Secondary evidence relating to the contents of a document is inadmissible, until the non-production of the original is accounted for. The secondary evidence must be authenticated by foundational evidence that the alleged copy is in fact a true copy of the original. Mere admission of a document in evidence does not amount to its proof. Therefore, the documentary evidence is required to be proved in accordance with law.
The court has an obligation to decide the question of admissibility of a document in secondary evidence before making endorsement thereon. [H. Siddiqui Vs. A. Ramalingam: AIR 2011 SC 1492; Nandkishore Lalbhai Mehta Vs. New Era Fabrics: AIR 2015 SC 3796]
In Rakesh Mohindra Vs. Anita Beri [2015AIR(SCW) 6271] it is held:
“Mere admission of secondary evidence, does not amount to its proof. The genuineness, correctness and existence of the document shall have to be established during the trial and the trial court shall record the reasons before relying on those secondary evidences.”
PROOF INVOKING PRESUMPTION – Sec. 114, Evid. Act read with Sec. 35.
The evidence/proof of contents of document may be given by proving circumstances for the same or by invoking presumption also. ‘Common course of natural events’, ‘human conduct’ etc. under S. 114, Evd. Act can be used to prove the existence and genuineness/truth of a document.
Sec. 35 of the Evidence Act reads as under:
“35. Relevancy of entry in public record or an electronic record made in performance of duty: An entry in any public or other official book, register or record or an electronic record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record or an electronic record is kept, is itself a relevant fact.
Under S. 114, Illustration (e) for Judicial and official acts there is presumption as to ‘regularity’. It is not presumption as to correctness or truth. For such presumption, one can resort to main section, Sec. 114 – that is, ‘common course of natural events’, ‘human conduct’ etc. (and not ‘regularity’ in Illus.–e).
Referring relevant provisions of Himachal Land Revenue Act, 1954 and Sec. 35 of the Indian Evidence Act, 1872, it is held in Partap Singh v. Shiv Ram: AIR 2020 SC 1382, that Record-of-rights (Revenue document) carries the ‘presumption of correctness‘.
In Inder Singh v. S. Raghbir Singh, AIR 1978 P&H 98, it is observed as under:
“The principle is that an official record, kept by a person, upon whom there is a public duty to make entries in it only after satisfying himself of the truth of those entries, is presumed to be correct. Such a document itself is evidence of the truth of its contents unless and until its falsity can be demonstrated by any of the various methods by which the evidentiary value of any public book, register or document may be attacked.”
In Shiv Ram v. Shiv Charan Singh, AIR 1964 Raj 126, it is observed as under
“Where Sec. 35 properly comes into play, an entry made by a public servant in any public or official book in the discharge of his official duty becomes relevant by itself, and no other proof of such entry is required as a matter of law by our Evidence Act, but this, does not exclude the possibility that such an entry may become admissible otherwise if it is properly proved to have been made by a person ordinarily competent to make it.” (Quoted in Mayadhar Nayak vs Sub-Divisional Officer, Jajpur, AIR 1982 Ori 221).
PROOF INVOKING PRESUMPTION – Registered deed
As stated earlier, truth of the contents of a document, can be established (i) by oral evidence of one who can vouchsafe the same, (ii) by invoking circumstantial evidence or ‘presumption’ or (iii) by express admission by the other side.
Presumptions can be the (specific) presumptions under Sec. 79 to 90A or presumptions (general) under Sec. 114. In presumption, a fact otherwise doubtful may be inferred from certain other proved facts. When inferring the existence of a fact from other set of proved facts, the Court exercises a process of reasoning and reach a logical conclusion as the most probable position (See: St. of West Bengal Vs. Mir Mohammad Omar, AIR 2000 SC 2988).
In Kunhamina Umma v. Special Tahsildar, AIR 1977 Ker 41, the Kerala High Court observed that the facts required to be proved under Section 67 could be proved by any kind of evidence, and there was nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, was to be excluded. It is held as under:
“The Privy Council said in Gangamoy Debi v. Troilukhya Nath (1906) 33 Ind App 60 = ILR 33 Cal 537 (PC)–‘The registration is a solemn act, to be performed in the presence of a competent official appointed to act as registrar, whose duty it is to attend the parties during the registration and see that the proper persons are present and are competent to act, and are identified to his satisfaction; and all things done before him in his official capacity and verified by his signature will be presumed to be duly and in order‘.
15. On the strength of this observation of the Privy Council and on a consideration of Section 60 of the Registration Act, the Lahore High Court held in Piara v. Fatnu (AIR 1929 Lah 711) that the certificate endorsed on a registered deed by the registering officer is a relevant piece of evidence for proving its execution. … …..
19. The question has been considered in depth by Justice Raman Nair (as he then was) in Sumathi Amma v. Kunjuleskhmi Amma (1964 Ker LT 945). The learned Judge observed (at pages 946 and 947) : “… It (Section 67 Evidence Act) only says that facts have to be proved, and, unlike Section 68, does not prescribe any particular mode of proof. The facts required to be proved under Section 67 can be proved by any kind of evidence, and there is nothing in the section to indicate that the evidence furnished by the registration certificate by virtue of Sub-section (2) of Section 60 of the Registration Act and by the presumption in Illustration (e) of Section 114 of the Evidence Act, is to be excluded.’
We have no hesitation in endorsing the view of the learned Judge as laying down the correct law on the question if we may say so with respect.”
In Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jajoo, (2009) 5 SCC 713, it is held as under:
“The deed of sale dated 29.6.1978 was a registered one. It, therefore, carries a presumption that the transaction was a genuine one.”
The Apex Court observed in Bhagat Ram v. Suresh, AIR 2004 SC 43, as under:
“The certificate of registration under Section 60 of the Registration Act, 1908 raises a presumption under Section 114 illustration (e) of the Evidence Act that he had regularly performed his duty and therefore the facts spelled out by the endorsements made under Sections 58 and 59 of the Registration Act may be presumed to be correct without formal proof thereof. The duties discharged by the registering officer do not include attestation or verification of attestation of will as required by the rules enacted by Section 63 of the Succession Act. An endorsement by registering officer is not by itself a proof of the will having been duly executed and attested. ……. …
Registration of a document does not dispense with the need of proving the execution and attestation of a document which is required by law to be proved in the manner as provided in Sec. 68 of the Evidence Act. Under Sec. 58 of the Registration Act the Registrar shall endorse the following particulars on every document admitted to registration:
the date, hour and place of presentation of the document for registration :
the signature and addition of every person admitting the execution of the document, and, if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;
the signature and addition of every person examined in reference to such document under any or the provisions of this Act, and
any payment of money or delivery of goods made in the presence of the registering officer in reference to the execution of the document, and any admission of receipt of consideration, in whole or in part, made in his presence in reference to such execution.
Such particulars as are referred to in Sections 52 and 58 of the Registration Act are required to be endorsed by Registrar along with his signature and date on document under Sec. 59 and then certified under Section 60. A presumption by reference to Section 114 [Illustration (e)] of the Evidence Act shall arise to the effect that the events contained in the endorsement of registration, were regularly and duly performed and are correctly recorded. … [See: Kunwar Surendra Bahadur Singh v. Thakur Behari Singh, AIR 1939 PC 117].
On account of registration of a document, including a will or codicil, a presumption as to correctness or regularity of attestation cannot be drawn. Where in the facts and circumstances of a given case the Registrar of Deeds satisfies the requirement of an attesting witness, he must be called in the witness box to depose to the attestation. His evidence would be liable to be appreciated and evaluated like the testimony of any other attesting witness.
In Sulender Singh v. Pritam, 2013-3 HLR 1443, it is held by the Himachal Pradesh High Court that there was a presumption of correctness to the endorsement/ certificate issued by the Sub-Registrar at the time or registration of gift deed (Rewat Ram Sharma versus Munshi Ram, Latest HLJ 2002 (HP) 165) and that the onus to rebut the presumption on a registered deed was heavily on the plaintiff.
Execution of a Document – Question of Fact; Can be proved by Circumstantial Evidence Also
In Kishan Arjuna Khansole v. Ababuwa Baba Khansole, 2000-4 BomCR 433; 2000-4 MhLJ 854, it is pointed out that the execution of a document is a question of fact and can be proved like any other fact by direct as well as circumstantial evidence.
Registered deed: Presumption – Validly Executed
It is held in Prem Singh v. Birbal, AIR 2006 SC 3608, as under:
“52. It is well-settled law that there is a presumption of a registered document being validly executed. A registered document would, therefore, prima facie, be valid in law. The onus of proof, thus, would be on a person who questions the same.”
In Bellachi v. Pakeeran, AIR 2009 SC 3293, also it is a observed that a registered document carries with it a presumption that it was executed in accordance with law. The Apex Court observed in Jamila Begum v. Shami Mohd., AIR 2019 SC 72: 2018 KHC 7002 as under:
“A registered document carries with it a presumption that it was validly executed. It is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. In Prem Singh and others v. Birbel and others (2006) 5 SCC 353, it was held as under:
“27. There is a presumption that a registered document is validly executed. A registered document, therefore, prima facie would be valid in law. The onus of proof, thus, would be on a person who leads evidence to rebut the presumption. In the instant case, Respondent 1 has not been able to rebut the said presumption.”
The Kerala High Court held in Mariyadas v. Benjamin, ILR 2014-4 Ker 471, as under:
“If a Will has been registered, that is a circumstance which may, having regard to the circumstances, prove its genuineness. But the mere fact that a Will is registered Will it will not by itself be sufficient to dispel all suspicion regarding it where suspicion exists, without submitting the evidence of registration to a close examination. The bald fact of registration is insufficient, when there are other circumstances creating suspicion on the execution of the document.”
Determination of Possession by Court By Photographs, CD or Commission
Can a commission be appointed to find out the physical possession of a property?
No.
In Bandi Samuel v. Medida Nageswara Rao, 2017 (1) ALT 493 it is pointed out that the factum of possession of the property in dispute, which is nothing, but fishing of information and not elucidating any matter in dispute.
See also: Malaya Gounder v. Palanisamy (1995) 1 MLJ 626,
Puttappa v. Ramappa, AIR 1996 Kant 257,
Rajendran v. Lilly Ammal alias Nelli Ammal, 1998 (II) CTC 163,
Benz Automobiles Private Limited v. Mohanasundaram, 2003 (3) MLJ 391,
D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, 2005 (4) CTC 676,
Devadoss v. A. Duraisingh, 2002 (3) CTC 748,
Parepally Satyanarayana v, Vutukuri Meeneder Goad, 2008 (1) ALT 461;
KMA Wahab v. Eswaran, 2008 (3) CTC 597,
Ramdas Trimbak v. Bajirao Sanap, 2018-1 MHLJ 866, 2018-5 AIR BomR 57,
S. Kalam v. V. Valliammai, 2021-7 Mad LJ 137,
K. Sellammal v. M. Valarmathy, 2022, Madras High Court.
In Indore Development Authority v. Manoharlal, 2020-8 SCC 129, AIR 2020 SC 1496, it is observed:
“270. The decision in Velaxan Kumar (supra) cannot be said to be laying down the law correctly. The Court considered the photographs also to hold that the possession was not taken. Photographs cannot evidence as to whether possession was taken or not. Drawing of a Panchnama is an accepted mode of taking possession. Even after re-entry, a photograph can be taken; equally, it taken be taken after committing trespass. Such documents cannot prevail over the established mode of proving whether possession is taken, of lands. Photographs can be of little use, much less can they be a proof of possession. A person may re-enter for a short period or only to have photograph. That would not impinge adversely on the proceedings of taking possession by drawing Panchnama, which has been a rarely recognised and settled mode of taking possession.
271. In the decision in Raghbir Singh Sehrawat v. State of Haryana, (2012) 1 SCC 792 the observation made was that it is not possible to take the possession of entire land in a day on which the award was declared, cannot be accepted as laying down the law correctly and same is contrary to a large number of precedents. The decision in Narmada Bachao Andolan v. State of M.P. (2011) 7 SCC 639, is confined to particular facts of the case. The Commissioner was appointed to find out possession on the spot. DVDs and CDs were seen to hold that the landowners were in possession. The District Judge, Indore, recorded the statements of the tenure-holder. We do not approve the method of determining the possession by appointment of Commissioner or by DVDs and CDs as an acceptable mode of proving taking of possession. The drawing of Panchnama contemporaneously is sufficient and it is not open to a court Commissioner to determine the factum of possession within the purview of Order XXVII, Rule 9 CPC. Whether possession has been taken, or not, is not a matter that a court appointed Commissioner cannot opine. However, drawing of Panchnama by itself is enough and is a proof of the fact that possession has been taken.”
Kerala High Court held in Thomas VY@ Sajimon v. Joseph VY, ILR 2020-3 Ker446, 2020-3 Ker LJ 574, 2020-3 KHC 613, as under:
“15. In a suit for permanent prohibitory injunction, the burden is entirely on the plaintiff to bring convincing evidence to show his possession over the plaint schedule property and for so doing, it is not permissible for the plaintiff to invoke Order 26 Rule 9 CPC, which is intended for a different purpose. In a matter relating to the investigation into the disputed question of fact of possession, the power of appointment of Commissioner for local investigation cannot be exercised by the Court to assist the party to collect evidence, where the party can collect evidence by itself. If a party claims that, that party is in possession of the disputed property and if the other party denies the same by filing the written statement, the disputed fact can be adjudicated by the Court after framing of issues and recording the evidence of the parties. So many articles may be found in the building at the time of local inspection by the Commissioner. Even clothes and other articles may be found in the building. The Commissioner has to just make an inventory of the items found in the building. The Commissioner cannot report about the ownership of the articles found in the premises, as the said aspect is a matter for evidence. If at all the Commissioner makes any such report, the Court shall not accept the report, even for primary satisfaction without any other convincing material. If the Advocate Commission is deputed for the purpose of ascertaining the possession of the party over the property, the said aspect can be done only after gathering information from the people in the locality, which amounts to fishing out the evidence or gathering of evidence and hence the same is only hearsay information. The party can even otherwise examine the persons, with whom the Commissioner makes enquiry, before the Court to prove the possession of the person over the property in question. The fishing out of information is to make a local enquiry collecting hearsay materials from the persons gathered there or the like, which is different from collection of materials which he finds at the scene. That apart, if that task is left to be decided by the Advocate Commissioner, any fraudulent litigant can create evidence and with the assistance of the Commissioner, he will be able to prove that he is in possession of the property, which is not the purpose for which Order 26 was enacted. Therefore, it is always advisable not to appoint an Advocate Commissioner, as in the present case, to find out the possession of the property, which has to be decided only from oral and documentary evidence to be adduced by the parties. The High Court of Madras in Mr. D. Kuttiyappan v. Meenakshiammal Polytechnic Unit, (2005) 4 MLJ 592, held that the Advocate Commissioner cannot be appointed to note down the factum of possession or the enjoyment . I respectfully agree with the view of the High Court of Madras in D. Kuttiyappan (Supra). Thus, it is settled law that the power of appointment of Commissioner for local investigation cannot be exercised by the Court to enable any party to collect evidence through the Commissioner to prove the factum of possession or enjoyment. This being the situation, the argument of the learned Counsel for the defendant that the report of the Commissioner would show the possession of the defendant in the plaint schedule property cannot be accepted even for the prima facie satisfaction of the Court.”
Can the alignment of a way (over which one perfected Prescriptive Right of Easement) be altered by the owner of the property (servient owner)?
Answer: No.
Can it be allowed by the Court?
Answer: Yes; though no express provision.
Relevant provisions of the Indian Easements Act, 1882:
Sec. 22. Exercise of easement. Confinement of exercise of easement.
The dominant owner must exercise his right in the mode which is least onerous to the servient owner; and when the exercise of an easement can without detriment to the dominant owner be confined to a determinate part of the servient heritage, such exercise shall, at the request of the servient owner, be so confined.
Sec. 23. Right to alter mode of enjoyment.
Subject to the provisions of section 22, the dominant owner may, from time to time, alter the mode and place of enjoying the easement, provided that he does not thereby impose any additional burden on the servient heritage.
Exception.–The dominant owner of a right of way cannot vary his line of passage at pleasure, even though he does not thereby impose any additional burden on the servient heritage.
Sec. 24.Right to do acts to secure enjoyment.
The dominant owner is entitled, as against servient owner, to do all acts necessary to secure the full enjoyment of the easement; but such acts must be done at such time and in such manner as, without detriment to the dominant owner, to cause the servient owner as little inconvenience as possible; and the dominant owner must repair, as far as practicable, the damage (if any) caused by the act to the servient heritage.
Accessory rights.–Rights to do acts necessary to secure the full enjoyment of an easement are called accessory rights.
Sec. 27. Servient owner not bound to do anything.
The servient owner is not bound to do anything for the benefit of the dominant heritage, and he is entitled, as against the dominant owner, to use the servient heritage in any way consistent with the enjoyment of the easement; but he must not do any act tending to restrict the easement or to render its exercise less convenient.
Applying ‘First Principles’, P. Bhavadasan, J., of the Kerala High Court held in Thilakraj v. Sebastian, 2014(4) Ker LT 714, that the servient owner can be allowed to re-align the way over which the dominant owner has successfully established right of easement.
Analyzing various provisions of the Indian Easements Act (mainly Sec. 22 – which enables theservient owner to specify the route to confine it to a determinate part), observed that nothing prevents the court from directing that the pathway be changed along the boundary of the servient tenement which would render justice to the parties and would not affect the rights of the dominant owner.
P. Bhavadasan, J. observed as under:
Easement is a precarious (uncertain) right.
Law does not usually favour restricted use of one’s own property. However, the law relating to easements creates a fetter (restraint) on the exclusive and absolute use of property by its owner. The said law creates certain right in favour of a person to put to use the property belonging to another person.
As a corollary the said law also insists that such exercise of enjoyment of right by the dominant owner must be least onerous to the servient owner.
The Indian Easements Act is of the year 1882. It has not undergone any major changes. As has been observed by the Apex Court in relation to the plea of adverse possession, it is felt that some rethinking is necessary in relation to which the rights conferred as per the Indian Easements Act are concerned.
It is said “Common law is a living system of law reacting to new events and new ideas and so capable of providing the citizens with a system of practical justice relevant to the time in which they live”.
There have been considerable changes in all spheres of life. Considering the vast changes that have occurred in both social and cultural fields, it is only proper that the courts adopt a practical approach to meet the current demands of the society.
It will not be imprudent to observe that some of the provisions of Indian Easements Act (Act 5 of 1882) require changes.
It is said that the law is an instrument of social engineering and social changes.
Right to property is a valuable constitutionally recognized right.
Law cannot be rigid and remain static. It has to be dynamic and has to device method within permissible limits to modulate relief to suit the present need and ensure that justice is rendered to all.
The courts will have to adopt such means to render justice to people without doing violence to statutory provisions.
Even assuming that in the case on hand, S. 22 of the Easements Act is not available to the appellants that cannot tie down the hands of the court from granting relief to them while at the same time safeguarding the interest of the respondent also.
In fact, it is felt that it is the bounden duty of the court to rise to the occasion and find out reasonable grounds to grant relief.
(If the dominant owner resists the change) the attitude … is like Shaylock insisting for his pound of flesh.
If the plea was one of easement by necessity, surely with the coming into existence of another suitable alternate way, the dominant owner’s right to continue to use the present pathway comes to an end here.
The principle that emerges from the above foregoing discussion is that there can be no impediment for the court to determine what is just and reasonable and grant decree accordingly.
(Because of) the way, … a considerable portion of the property will have to be kept idle. That certainly cannot be the object and purpose of the Act.
Section 22 of the Indian Easements Act, as already stated, enables the servient owner to specify the route.
One fact is very clear. The exercise of right of easement by dominant owner is subject to the condition that it imposes least burden on the servient tenement owner and does not interfere with the right of enjoyment of his properties subject to the right of the dominant tenement owner.
There can be no fetter on the court from making adequate provisions for the exercise of respective rights of both the parties.
Price of land is skyrocketing day by day. Every inch of land has become substantial asset. Unlike in the olden days, we seldom find property left open and uncared for. It is therefore necessary to strike a balance of the two rights namely that of dominant tenement owner and servient tenement owner.
In the facts and circumstances of the case, it will be imprudent and unwise for the court to keep its hands tied and in fact one could even say that the court will be failing in its duty of rendering justice if it does not extend a helping hand to the servient owner without affecting the rights of the dominant tenement owner.
A court needs to innovate, experiment and if necessary find out means to render justice to all.
When the legislature remains passive to archaic law which may not accommodate the social, cultural and political changes in the society, a duty is cast upon the court to take adequate and necessary steps and device methods to resolve the disputes satisfactorily.
Under the above circumstances and in the light of necessity to development laws to respond to the needs and necessities of the society, it is felt that the appellants be allowed to re-align the way over which the plaintiff in the suit has successfully established prescriptive right of easement.
(i) number of beneficiaries (public or private), and
(ii) character under law (express or constructive).
If the number of the beneficiaries of a trust are unascertainable, it will be public trust; and if ascertainable, private trust.
Trust is created by a founder by dedicating property and by appointing trustee for its administration. There must be a transfer of the property to the trustee.[1] Trusts covered by these express acts is called ‘express trusts’; and trusts resulted by directives of law is called ‘constructive or implied trusts’.
The beneficiaries of the trust may be the general public or a limited number of persons. Trusts for the former are public trusts and the latter, private trusts. Legal incidents thereon are different.
The Indian Trusts Act, 1882 is enacted primarily to govern private trusts; and ‘public or private charitable or religious endowments’ are expressly excluded from its ambit.
In Sec. 1, Indian Trusts Act, 1882, under the head, ‘Savings’, it is stated:
But nothing herein contained affects the rules of Mohammedan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the Second Chapter of this Act applies to trusts created before the said day.
Under Sec. 5, when a private trust is created upon an immovable property, it must be registered under the Registration Act.
In Sec. 5 of the Indian Trusts Act, 1882 reads as under:
5. Trust of immovable property.—No trust in relation to immoveable property is valid unless declared by a non-testamentary instrument in writing signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or of the trustee.
On analysis, the crucial differentiating factor between public or private trust is the ‘purpose of trust’ envisioned by the author.
Dr. BK Mukherjea, J., ‘On the Hindu Law of Religious and Charitable Trusts’, has set out the difficulty to make a distinction between public and private charitable trust as under:
“The line of distinction between a public purpose and a purpose which is not public is very thin and technical and is difficult of an easy definition.”[2]
As to determination of the nature of a temple, whether public or private, it is held in Deoki Nandan Vs. Murlidhar,[3] as under:
“The distinction between a private and a public trust is that, whereas in the former, the beneficiaries are specific individuals, in the latter, they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.”
Charitable Private Trust – Indian Law and English Law
Charitable trusts of public nature alone, and not of private nature, are accepted as valid under English Law. English Jurists prefer to call it ‘charities’. But, Indian law admits private charitable and religious trusts also.
The distinction between English Law and Hindu Law has been stated by Dr. Mukherjea in his Tagore Law Lectures ‘On the Hindu Law of Religious and Charitable Trusts’ as under:
“In English Law charitable trusts are synonymous with public trusts and what is called religious trust is only a form of charitable trust. The beneficiaries in a charitable trust being the general public or a Section of the same and not a determinate body of individuals, the remedies for enforcement of charitable trust are somewhat different from those which can be availed of by beneficiaries in a private trust. In English Law the Crown as ‘parens-patriae’ is the constitutional protector of all property subject to charitable trusts, such trusts being essentially matters of public concern. … One fundamental distinction between English and Indian Law lies in the fact that there can be religious trust of a private character under Hindu Law which is not possible in English Law.” [4]
‘Lewin on Trusts’ describes public trusts as those ‘constituted for the benefit either of the public at large or of some considerable portion of it answering a particular description’; ‘to this class belong all trusts for charitable purposes; and indeed Public Trusts and Charitable Trusts may be considered in general as synonymous expressions’. According to Lewin, ‘In private trusts, the beneficial interest is vested absolutely in one or more individuals who are, or within a certain time may be, definitely ascertained’.
Tudor, in his treatise, ‘Tudor on Charities’, summed up the English principles as under:
“If the intention of donor is merely to benefit specific individuals, the gift is not charitable, even though the motive of the gift may be to relieve their poverty or accomplish some other purpose with reference to those particular individuals which would be charitable if not so confined; on the other hand, if the donor’s object is to accomplish the abstract purpose of relieving poverty, advancing education or religion or other purpose charitable within the meaning of the Statute of Elizabeth, without giving to any particular individual the right to claim the funds, the gift is charitable.” [5]
3. Cardinal Point: Intention of Founder
Cardinal Point[6] to solve the question, whether an endowment is private or public, is ‘Intention of Founder’.In the trailblazer decision in this subject, Deoki Nandan Vs. Murlidhar (1957),[7]the Supreme Court held as under:
“When once it is understood that the true beneficiaries of religious endowments are not the Idols but the worshippers, and that the purpose of the endowment is the maintenances of that worship for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family Idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the Deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.” [8]
4. Nature of Dedication – Terms of the Document, Important
Declaration by a registered deed or transferring property to a trustee is the usual mode of dedication of immovable property; and no document is necessary for creating a religious endowment.
If the founder’s intention is clear from the document of foundation or other direct evidence, oral or documentary, no difficulty arises. In cases where express dedication cannot be proved, it will be a matter for legal inference from the proved facts and circumstances of each case. In Radhakanta Deb Vs. Commr. of Hindu Religious Endowments, it is held by our Apex Court as under:
“Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.”[9]
In S. Shanmugam Pillai . Vs. K. Shanmugam Pillai .[10]it is held by our Apex Court as under:
“Whether or not a dedication is complete would naturally be a question of fact to be determined in each case on the terms of the relevant document if the dedication in question was made under a document. … “[11]
In Hemanta Kumari Debi Vs. Gauri Shankar Tewari[12] it is held by the Privy Council, while dealing with a bathing ghat on the banks of the River Ganges, that complete relinquishment of title was not the only form of dedication under Hindu Law. It further observed as under:
“In the absence of a formal and express endowment evidenced by deed or declaration, the character of the dedication can only be determined on the basis of the history of the institution and the conduct of the founder and his heirs.”[13]
5. ‘Valid and Complete’ Dedication in Family Temple
Though control and management of the property are retained by the founder, if the temple is bestowed for the benefit of the family members, it could also be qualified as ‘dedication’. Dedication arises by the release of the individual rights of the founder over the endowed property in favour of a family temple and by vesting the legal ownership of the same with the family Deity, is also taken as ‘valid and complete’ in law.
6. Public Religious Trusts & Indian Trusts Act
The Indian Trusts Act, 1882 is enacted primarily to govern private trusts; but, ‘private charitable or religious endowments’ are expressly excluded from its ambit.
As shown above, in Sec. 1, under the head (Savings), it is stated that nothing contained in the Act affects the rules of Mohammedan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the Second Chapter of this Act applies to trusts created before the said day.
Though the Indian Trusts Act does not apply, in terms, to the public trusts and private charitable or religious trusts, the common legal principles,[14] which cover matters of these excluded trusts, especially the Sections that speak as to the Duties and Liabilities of Trustees (Chapter III), Disabilities of Trustees (Chapter V), and Chapter IX pertaining to implied trusts, apply to public trusts also.[15]They ‘cannot become untouchable’[16] merely because they find a place in the Trusts Act.
Our courts apply the general law of trusts, and the universal rules of equity and good conscience upheld by the English judges in this subject, in appropriate cases.So far as private religious trusts are concerned, there are no specific statutory enactments to regulate their affairs. Such trusts are governed by the foundational principles upon which they are established, as evidenced by documents, if any;customs and usages;general law of contract and transfer of property, etc; apart from the common law of the land applicable to such trusts.[17]
7. Private Trust: Settlement of Scheme
Section 92 CPC will not apply to a private trust. It does not necessarily mean that the civil court has no jurisdiction to settle a scheme for the management of a private trust. It is a civil right under Section 9 of the Civil Procedure Code and governed entirely by the general law of the land which prescribes the remedies for enforcement of civil rights.[18]In Thenappa Chettiar Vs. Karuppan Chettiar[19] the Supreme Court held that even in the case of a private trust, a suit could be filed for settlement of a scheme for the purpose of effectively carrying out the object of the trust. If there is a breach of trust or mismanagement on the part of the trustee, a suit can be brought in a Civil Court by any person interested for the removal of the trustee and for the proper administration of the endowment.
If the trustee or Shebait is guilty of mismanagement, waste, wrongful alienation of debutter property or other neglect of duties, a suit can be instituted for remedying these abuses of trust. A suit can also be filed for settlement of a scheme for the purpose of effectively carrying out of the trust. [20]
8. Express Trusts and Constructive Trusts in the Trusts Act
According to the definitions of ‘trust’, there must be a deliberate intention on the part of the author to create a trust.[21]To accomplish a valid trust, the trustee should have positively accepted the confidence reposed in by the author. The trustee must have accepted the ‘obligations’ also. The legal ownership of the trust property must have been vested in the trustee. Transfer of ‘the trust-property to the trustee’, for administration, is also a legal requirement of trust. The trustee is bound to deal with the trust-property in a fiduciary manner for the benefit of the beneficiaries. He is bound to act with prudence[22] and consciousness for attaining the objectives intended by the author.
Underhill in Law of ‘Trusts and Trustees’ points out that no technical expressions are necessary for the creation of an express trust. It is sufficient if the settlor evinces with reasonable certainty: (a) an intent to create a trust; (b) the trust property; (c) the persons intended to be beneficiaries; and (d) the purpose of the trust so that the trust is administratively workable and not capricious. If all the above factors are present, there will be an express trust.
The trust covered by this express declaration is referred to in Sections 4 to 79 of the Indian Trust Act, 1882as (merely) ‘trusts’. English Courts call this branch of trusts as ‘express trusts’. Sections 80 to 96, in Chapter IX of the Act state that the persons specified in these sections are bound by the ‘obligations in the nature of trust’ ‘for the benefit of another’. English Law classifies these trusts as ‘constructive or implied trusts’.[23]
9. Precatory Trusts
Precatory trusts are created by expressions of wish or desire. On true construction they also amount to declarations of trust and include in express trusts. In such cases, the Court has to find, as a matter of construction,that the settler had actually expressed, indirectly, an intention to create a trust.[24]
10. ‘Constructive or Implied Trusts’
Constructive trust arises by operation of law.It emerges without regard to the intention of the parties to create a trust.It arises as from the date of the circumstances which give rise to it. The function of the court is only to declare that such a trust that has arisen in the past.[25]It is not a trust declared by any person either by clear or even by doubtful words. It arises in a variety of situations. Eg. Trustee-de-son-tort, holder of lost good, husband possessing dowry,money paid under a plain mistake of fact etc. Since there may be no intention for the parties to create a trust relation, it is said: ‘A constructive trustee may not know that he is a trustee.’[26]
Constructive trust is ‘a trust to be made out by circumstances’.[27]It is more than a concept. It is a remedy.[28] It is akin to fiduciary duty with responsibility, accountability, etc. Such fiduciary obligations are incorporated in the statute, principally to render justice and also to extend protection to the legally deserving ones from those who unlawfully enrich otherwise. These are benevolent legal safeguard in favour of dissipated and exhausted ones, on equitable considerations. Public benefit is a necessary condition of constructive trust. When an ostensible owner holds a property for the benefit of another under an obligation annexed to the ownership, he is said to hold the property in trust for that other person.[29]
Constructive trust may be an implied trust. That is, it may be applied on the ground of‘implied intention’.[30] Its forms and varieties are practically without limit. It is gathered by a court of equity whenever it becomes necessary, in justice and good-conscience, that such a trust should exist. The categories of constructive trusts are never closed.[31]
Constructive trust is an equitable remedy.If it becomes necessary, the courts in India, as courts of equity, will invoke the doctrine of constructive trust and deal with the holder of property as a trustee for the party who in equity is entitled to the beneficial enjoyment.[32]Lord Denning has said as under:
“It is an equitable remedy by which the court can enable an aggrieved party to obtain restitution.”[33]
Lewin on Trust speaks on Constructive Trust as under:
“A constructive trust is raised by a court of equity wherever a person, clothed with a fiduciary character, gains some personal advantage by availing himself of his situation as trustee; for as it is impossible that a trustee should be allowed to make a profit by his office, it follows that so soon as the advantage in question is shown to have been acquired through the medium of a trust, the trustee, however good a legal title he may have, will be decreed in equity to hold for the benefit of his cestuique trust. A common instance of a constructive trust occurs in the renewal of leases; the rule being, that if a trustee, or executor, or even an executor de son tort, renew a lease in his own name, he will be deemed in equity to be trustee for those interested in the original term. The new lease is deemed to be a graft upon the old one”.[34]
Professor AW Scott in his book on Trusts has explained the “constructive trust” as follows:
“Similarly, where chattels are conveyed or money is paid by mistake, so that the person making the conveyance or payment is entitled to restitution, the transferee or payee holds the chattels or money upon a constructive trust. In such a case, it is true, the remedy at law for the value of the chattels or for the amount of money paid may be an adequate remedy, in which case a court of equity will not ordinarily give specific restitution. If the chattels are of a unique character, however, or if the person to whom the chattels are conveyed or to whom the money is paid is insolvent, the remedy at law is not adequate and a court of equity will enforce the constructive trust by decreeing specific restitution. The beneficial interest remains in the person who conveyed the chattel or who paid the money, since the conveyance or payment was made under a mistake …
The beneficial interest in the property is from the beginning in the person who has been wronged the constructive trust arises from the situation in which he is entitled to the remedy of restitution, and it arises as soon as that situation is created. For this reason, the person who is wronged is entitled to specific restitution from the wrongdoer even though the wrongdoer becomes insolvent before suit is brought, and he is entitled to specific restitutions from a person to whom the wrongdoer has transferred the property, if the transferee is not a bona fide purchaser, even though the transfer is made before suit is brought for restitution. It would seem that there is no foundation whatever for the notion that a constructive trust does not arise until it is decreed by a court. It arises when the duty to make restitution arises, not when that duty is subsequently enforce.”[35]
The Supreme Court, in Swami Shivshankargiri Chella Swami Vs. Satya Gyan Niketan,[36] considered whether a trust would arise when the donor waqfed (gifted) property to a society registered under the Indian Societies Registration Act, 1960, for the development and publicity of the Hindi Language. The property was gifted on condition that the society would not have a right to mortgage or right of sale. The society had not been taking any interest in achieving the purpose. The Apex Court observed that prima facie it appeared that a constructive trust was created. Accordingly, the application filed under Section 92 of CPC would be maintainable.
The principles of constructive trust and fiduciary relationships are equitable principles, and equity never operates in an absolute manner or in a vacuum. In fact, the very basis of the law of equity is its flexibility to take care of mutual concerns of the parties. Equity is about balancing the competing interests- by preventing the erosion of interests of one party while ensuring a free exercise of legally enshrined discretionary powers to the other. No doubt, specific fiduciary duties could definitely be recognised in the specific facts of the case but the manner of performance of such duties cannot be dictated in regulatory matters. Legal recognition of the role of a trustee and fixing actual obligations to be performed under such role are two separate matters. The latter is dependent on the nature of discretion and on the diligence of other party.[37]
11. Constructive Trust: Jurisdiction Derived from S. 151 CPC & S. 88 Trusts Act.
Sections 80 to 96 of the Indian Trusts Act, 1882 lay down the specific instances in which the doctrine of constructive trust could be applied. Apart from these particular instances, the general principles as to constructive trusts had been contained in Sec. 94 of the Trusts Act. Sec. 94 was deleted by Sec. 7 of the Benami Transactions (Prohibition) Act, 1988.
Erstwhile Sec. 94 read as under:
94. Constructive trusts in cases not expressly provided for. – In any case not coming within the scope of any of the preceding sections, where there is no trust, but the person having possession of property has not the whole beneficial interest therein, he must hold the property for the benefit of the persons having such interest, or the residue thereof (as the case may be), to the extent necessary to satisfy their just demands.
In Gopal L. Raheja Vs. Vijay B. Raheja,[38] the Bombay High Court accepted the argument that the position of law in India, did not permit a recourse to the doctrine of constructive trust inasmuch as Sec. 94 had been deleted.
But, our Apex Court after considering the Bombay decision in Janardan Dagdu Khomane Vs. Eknath Bhiku Yadav[39] it was held as under:
“In Gopal L. Raheja Vs. Vijay B. Raheja[40], the Bombay High Court restrained itself from exercising its equitable jurisdiction to apply the English doctrine of constructive trust when the legislature had specifically deleted it from the Indian Trusts Act.
In our view, the repeal of Section 94 of the Act does not put any fetter in declaring a trust, even if the situation falls outside the purview of the Act. Its jurisdiction can be derived from Section 151 of CPC and Section 88 of the Indian Trusts Act.”
Sec, 88 of the Indian Trusts Act, 1882 reads as under:
88. Advantage gained by fiduciary.—Where a trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character to protect the interests of another person, by availing himself of his character, gains for himself any pecuniary advantage, or where any person so bound enters into any dealings under circumstances in which his own interests are, or may be, adverse to those of such other person, and thereby gains for himself a pecuniary advantage, he must hold for the benefit of such other person the advantage so gained.
The Andhra Pradesh High Court in Abdul Razack Vs. Mohammed Rahamatullah[41] inferred a constructive trust under section 88 of the Indian Trusts Act. The Division Bench held as under:
“The principle, however, is quite clear, in that a person who is in a fiduciary position and is bound to protect the interests of another person and who takes advantage of the same and makes profit or derives benefit or acts in any manner adverse to the interests of that person he would be liable to that person or holds the benefit as a trustee of that person whose property he had utilised or against whose interests he had acted. The principle embodied in that section is wide. It embraces all cases of dealings entered into by the person under circumstances in which his own interests may be adverse to that of the beneficiary. This section also was held not to be exhaustive and is wide enough to cover the case of those transferees who had taken the property with notice of the transferor’s defective title.”[42]
12. Mutual & Reciprocal Trusts and Secret Trusts
Our Apex Court explained these matters in Shiva Nath Prasad Vs. State of West Bengal[43] as under:
“To understand the basis of the complaint we need to understand the concept of mutual wills,[44] mutual and reciprocal trusts and secret trusts. A will on its own terms is inherently revocable during the lifetime of the testator. However, “mutual wills” and “secret trusts” are doctrines evolved in equity to overcome the problems of revocability of wills and to prevent frauds. Mutual wills and secret trusts belong to the same category of cases. The doctrine of mutual wills is to the effect that where two individuals agree as to the disposal of their assets and execute mutual wills in pursuance of the agreement, on the death of the first testator (T1), the property of the survivor testator (T2), the subject matter of the agreement, is held on an implied trust for the beneficiary named in the wills. T2 may alter his/her will because a will is inherently revocable, but if he/she does so, his/her representative will take the assets subject to the trust.”
13. Active and Passive Trustees
Duty of the trustees may be passive or active according to the nature of the trust.Underhill has defined a simple trust as a trust in which the trustee is a mere repository of the trust property, with no active duties to perform.[45] In Principles of Equity by H. A. Smith[46] which reads:
“A trust is a duty seemed in equity to rest on the conscience of a legal owner. This duty may be either passive, such as to allow the beneficial ownership to be enjoyed the some other person, named the cestui que trust, in which case the legal owner is styled a bare trustee; or it may be some active duty, such as to sell, or to administer for the benefit of some other person or persons; such for example are the duties of a trustee in bankruptcy.”[47]
14. Constructive Trust on Realising Fraud
It is an old legal rule that fraud unravels all: frausomnia-corrumpit. Moneys stolen from a bank account can be traced in equity.[48]
The ‘fraud constructive trust’ is described by Lord Browne-Wilkinson as under:
“I agree that [the] stolen moneys are traceable in equity. But the proprietary interest which equity is enforcing in such circumstances arises under a constructive, not a resulting, trust. Although it is difficult to find clear authority for the proposition, when property is obtained by fraud equity imposes a constructive trust on the fraudulent recipient: the property is recoverable and traceable in equity. Thus, an infant who has obtained property by fraud is bound in equity to restore it.”[49]
These principles are incorporated in our Trusts Act also. Section 86 of the Indian Trusts Act, 1882 reads as under:
86. Transfer pursuant to rescindable contract.—Where property is transferred in pursuance of contract which is liable to rescission, or induced by fraud or mistake, the transferee must, on receiving notice to that effect, hold the property for the benefit of the transferor, subject to repayment by the latter of the consideration actually paid.
15. Implied Trusts can be Turned to Express Trusts by Executing Deeds
By executing a trust deed the implied trust can be converted to an express trust, as held in Donor Bellur Thammaiah Vs. GM Gadkar.[50]
16. Constructive Trust in Indian Trusts Act: Sections 80 to 96
Chapter IX,‘Certain Obligations in the Nature of Trusts’, of the Indian Trusts Act incorporates instances of implied or constructive trust. Sec. 80 reads as under:
80. Where obligation in nature of trust is created.—An obligation in the nature of a trust is created in the following cases.
Sec. 83 onwards considers the following. (Secs. 81, 82 and 94 were repealed by the Benami Transactions (Prohibition) Act, 1988, Sec. 7.)
83. Trust incapable of execution or where the trust is completely executed without exhausting the trust property. The trustee must hold the trust property, or so much thereof as is unexhausted, for the benefit of the author of the trust or his legal representative.
84. Transfer for illegal purpose. The transferee must hold the property for the benefit of the transferor.
85. Bequest for illegal purpose. The legatee must hold the property for the benefit of the testator’s legal representative.
86. Transfer pursuant to rescindable contract, or induced by fraud or mistake. The transferee must, hold the property for the benefit of the transferor.
87. Debtor becoming creditor’s representative. He must hold the debt for the benefit of the persons interested therein.
88. Advantage gained by fiduciary. A trustee, executor, partner, agent, director of a company, legal adviser, or other person bound in a fiduciary character must hold for the benefit of such other person the advantage so gained.
89. Advantage gained by exercise of undue influence.The person gaining such advantage must hold the advantage for the benefit of the person whose interests have been so prejudiced.
90. Advantage gained by qualified owner. A tenant for life, co-owner, mortgagee, or other qualified owner of any property, must hold, for the benefit of all persons interested, the advantage so gained.
91. Property acquired with notice of existing contract must hold that property for the benefit of the latter to the extent necessary to give effect to the contract.
92. Purchase by person contracting to buy property to be held on trust must hold the property for their benefit to the extent necessary to give effect to the contract.
93. Advantage secretly gained by one of several compounding creditors – must hold, for the benefit of such creditors, the advantage so gained.
Secs. 95 and 96 deal with connected general matters. They read as follows:
95. Obligor’s duties, liabilities and disabilities.—The person holding property in accordance with any of the preceding sections of this Chapter must, so far as may be, perform the same duties, and is subject, so far as may be, to the same liabilities and disabilities, as if he were a trustee of the property for the person for whose benefit he holds it:
96. Saving of rights of bona fide purchasers.—Nothing contained in this Chapter shall impair the rights of transferees in good faith for consideration, or create an obligation in evasion of any law for the time being in force.
17. Trustee De Son Tort or Constructive Trustee
A trustee who is in actual management of a trust without a lawful title is a trustee de son tort. ‘De Son Tort’ means ‘of his own wrong’. He may not be dishonest in his actions. His mental attitude has no significance. Constructive trustee and a trustee de son tort are synonymous expressions.[51]Though such a trustee is also called as a ‘de facto trustee’,[52] the expression is not favored by all.[53]
A trustee de son tort is distinguishable from a trespasser;for, a trespasser does not acknowledge trust or act as a trustee; but, he asserts claims of his own.[54]The trustee de son tort,who, without title, chooses to take upon himself the character of a trustee, is liable to account[55] for what he has done or what he has received while so acting. It is in the same way as if he were a de jure trustee.[56]
In Subramannaiya Vs. Abbinava (1940)[57] it was observed by the Madras High Court as under:
“When the trust property is without a legal guardian, owing to any defects in the machinery for the appointment of a trustee or owning to unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actually controlling its affairs in the interest of the trust should not be entitled, in the absence of any one with a better title, to take these actions which are necessary to safeguard the interests of the trust”.[58]
[1]Maulavi Kamiruddin Khan Vs. Badrun Nisa Bibi: AIR 1940 Pat 90; Chief Controlling Revenue Authority Vs. Banarsi Dass Ahluwalia: AIR 1972 Del 128; Pankumari Kochar Smt Vs. Controller Of Estate Duty: 1969-73 ITR 373.
[2] Quoted in State of West Bengal Vs. Sri.Sri Lakshmi Janardan Thakur, 2006- 7 SCC 490: 2006 AIR (SCW) 4622; Yelandau Arasikere Deshikendra Sammthana Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.
[3] AIR 1957 SC 133. See also: Commr. of Endowments Vs. Vittal Rao: AIR 2005 SC 454; Bala Shankar Maha Shanker Vs. Charity Commr. Gujarat: AIR 1995 SC 167, Jammi Raja RaoVs.Anjaneya Swami Temple Valu: AIR 1992 SC 1110; Radhakanta Deb Vs. Commr. of HR Endowments Orissa: AIR 1981 SC 798; Commr.HR and CE Mysore Vs. Ratnavarma Hegade: AIR 1977 SC 1848, Dhaneshwarbuwa Guru Vs. Charity Commr. Bombay: AIR 1976 SC 871; Mahant Shri Srinivas Ramanuj Das Vs. Surajnarayan Das: AIR 1967 SC 256,
[4] Quoted in Mahant Ram Saroop Dasji Vs. SP Sahi: AIR 1959 SC 951.
[5] Quoted in Dr. BK Mukherjea, J. on the Hindu Law of Religious and Charitable Trusts; State of WB Vs. Sri. Sri Lakshmi Janardan: (2006) 7 SCC 490: 2006 AIR (SCW) 4622; Yelandau Arasikere Vs. Gangadharaiah: 2007-5 AIR Kar R 565: 2008-4 Kat LJ 323.
[8]Deoki Nandan Vs. Murlidhar (AIR 1957 SC 133): Cardinal Point, intention of founder –Followed in State of Bihar Vs. Charusila Dasi AIR 1959 SC 1002; Dhaneshwarbuwa Guru Vs. Char. Commr. Bom., AIR 1976 SC 871; Radhakanta Deb Vs. Commr. of Hindu Reli. Endts, AIR 1981 SC 798; Pratapsinhji N Desai Vs. Dy Char. Commr. Gujt, AIR 1987 SC 2064; Jammi Raja Rao Vs. Anjaneya Swami Temple Valuair, 1992 SC 1110; Gedela Satchid. Murthy Vs. Dy. Commr. Endts, A P, AIR 2007 SC 1917.
[9] AIR 1981 SC 798; (quoted in Kuldip Chand Vs. Advocate General to Government of H P: AIR 2003 SC 1685).
[11]Quoted in Sitaram Agarwal Vs. Subarata Chandra: AIR 2008 SC 952; Controller of Estate Duty West Bengal Vs. Usha Kumar: AIR 1980 SC 312
[12] AIR 1941 PC 38; Terms of the document, important:1951 SCR 1122; Sri.Govindlalji Vs. State of Rajasthan: AIR 1963 SC 1638; R VenugopalaReddiar Vs. Krishnaswamy: AIR 1971 Mad 262; Importance of document: Radhakanta Deb Vs. Commr. of Hindu Endts.: AIR 1981 SC 798; Dr. BK Mukherjea, J. on the Hindu Law of Religious and Charitable Trusts: Page 188.
[13]Quoted in Kuldip Chand Vs. AG to Government of H P: AIR 2003 SC 1685.
[14] Thayarammal Vs. Kanakammal: AIR 2005 SC 1588; Sk. Abdul KayumVs.Mulla Alibhai: AIR 1963 SC 309.
[15] Bai Dosabai Vs. Mathurdas Govinddas: AIR 1980 SC 1334.
[16] State of Uttar Pradesh Vs. BansiDhar: AIR 1974 SC 1084.
[17] CK Rajan Vs. Guruvayoor Devaswom Managing Comtee: .AIR 1994 Ker 179 [Appeal Judgment: Guruvayoor Devaswom Managing Comte Vs. CK Rajan: AIR 2004 SC 561].
[18] Cheriyathu Vs. ParameswaranNamboodiripad: 1953 Ker LT 125, Also 1953 Ker LT 117; AIR1922 P. C. 253 AIR 1925 PC 139.
[20] Cheriyathu Vs. Parameswaran Namboodiripad: 1953 Ker LT 125; Also Manohar Mukherji Vs. Raja Peary Mohan Mukherji: 24 Cal WN 478; Bimal Krishna Vs. Iswar Radha Balla (1937 Cal 338); Rajasekharan Naicker Vs. Govindankutty 1983 KerLJ 506.
[21]Cambay Municipality Vs. Ratilal Ambalal Reshamwala: 1995 Supp2 SCC 591.
[22]Shanti Vijay and Company Vs. Princess Fatima Fouzia: AIR 1980 SC 17
[23] See: Rotopacking Materials Industry Vs. Ravinder Kumar Chopra: 2003-6 BCR 6
[24]Christopher Karkada, Bangalore VS Church of South India: ILR 2012Kar 725; 2012-1 KCCR 503
[26] Maudsley and Burn Trusts and Trustees: 2nd ed. p. 213; Referred to by: Gissing Vs. Gissing (1971) AC 886 (Lord Diplock); Quoted in: Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11
[27]Soar Vs. Ashwell (1893) 2 QB 390 per Bowen LJ; Quoted in: Arjan Singh Vs. Deputy Mal Jain: ILR 1982- 1 Del 11
[28] Gissing Vs. Gissing (1971) AC 886 (Lord Diplock); S Kotrabasappa Vs. Indian Bank Davanagara: AIR1987 Kar 236; G V Films Limited Vs. Unit Trust of India: 2000-100 Comp Cases 257: 1998- 2 CTC 518; Nellie Wapshare Vs. Pierce Leslie and Co Ltd: AIR1960 Mad 410.
[29] Bharose Sharma Vs. Mahant Ram Swaroop: 2001 AIR- SCW 4062; See also: Mitar Sain Vs. Data Ram: AIR 1926 All 7; Urshottam Vs. Kanhaiyalal: AIR 1966 Raj 70.
[30] Narayani AmmaVs. Eyo Poulose: AIR 1982 Ker 198.
[31] Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11
[32] Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11
[33] Hussey Vs. Palmer (1972) 1 WLR 1286; Quoted in Arjan Singh Vs. Deputy Mal Jain ILR 1982- 1 Del 11.
[34] Quoted in: Chacko Vs. Annamma: AIR 1994 Ker 107.
[35] Quoted in: GV Films Ltd. Vs. UTI: 2000-100 CC 257; 1998-2 CTC 518 (Mad).
[51] Sankaranarayana Ayyar Vs. Sri Poovanalha Swami Temple: 1LR 1950 Mad. 191; Chacko Vs. Annamma: AIR 1994 Ker 107; CR Shivananda Vs. HC Gurusiddappa: ILR 2011 Kar 4624; 2012-2 KCCR 1186
[52] C Nagamanickaya Vs. K Syamanthakamma: 2012-2 LW 970; 2012-3 MLJ 1089.
[53] Sankaranarayana Ayyar Vs. Sri Poovanalha Swami Temple: 1LR 1950 Mad. 191; Chacko Vs. Annamma: AIR 1994 Ker 107.
[54] CR Shivananda Vs. HC Gurusiddappa: ILR 2011 Kar 4624; 2012-2 KCCR 1186; Association of Radhaswami Vs. Gurnam Singh: AIR 1972 Raj 263.
[55] Sheikh Abdul Kayum Vs. Mulla Alibhai: AIR 1963 SC 309.
[56] CR Shivananda Vs. HC Gurusiddappa: ILR 2011 Kar 4624; 2012-2 KCCR 1186
Preemption is the purchase of any property by one person, before it is offered to others; or prior action before another acts (such as preemptive attack).
What is Preemption, in Law?
In law, it is the right of a person to (re)purchase an immovable property (which has been sold to another) without a regular sale deed – but, merely by substituting the name of (re)purchaser in the sale deed.
In Audh Bihari Singh v. Gajadhar, AIR 1954 SC 417, our Apex Court (BKMukherjea, J.) accepted the actual practice as to pre-emption explained in the decision, Govinda Dayal v. Inayatulla, ILR 7 A1l 775, which reads as under:
“It (right of pre-emption) is simply a right of substitution entitling the preemptor by means of a legal incident to which the sale itself was subject, to stand in the shoes of the vendee, in respect of the rights and obligations arising from the sale under which he has derived his title. It is in effect, as if in a sale deed, the vendee’s name was rubbed out and the pre- emptors’s name was substituted in his place.”
The afore-stated passage was quoted in Smt. Vijayalakshmi Vs. B. Himantharaja Chetty, AIR 1996 SC 2146, qualifying Govinda Dayal v. Inayatulla, ILR 7 A1l 775, to be a ‘classic judgment’.
Origin of Law of Preemption
The Constitution Bench of our Apex Court, held in Audh Bihari Singh v. Gajadhar (supra) as under:
“The Privy Council has said in more cases than one [Vide Jadulat v, Janki Koer, 39 I.A. 101, 106; Digambar Singh v. Ahmad, 42 I.A. 10, 18.], that the law of pre-emption was introduced in this country by the Muhammadans. There is no indication of any such conception in the Hindu Law and the subject has not been noticed or discussed either in the writings of the Smriti writers or in those of later commentators.”
Sources of Right of Preemption
In Audh Bihari Singh v. Gajadhar (supra), the Apex Court pointed out that the right of preemption arises by:
(1) rule of common law
(2) custom,
(3) personal Law
(4) statute and
(5) contract.
BKMukherjea, J. explained for the Constitutional Bench as under:
“During the period of the Mughal emperors the law of pre- emption was administered as a rule of common law of the land in those parts of the country which came under the domination of the Muhammadan rulers, and it was applied alike to Muhammadans and Zimmees (within which Christians and Hindus were included), no distinction being made in this respect between persons of different races and creeds [Vide Hamilton’s Hedaya, Vol. III, P. 592].
In course of time the Hindus came to adopt pre-emption as a custom for reasons of convenience and the custom is largely to be found in provinces like Bihar and Gujerat which had once been integral parts of the Muhammadan empire. Opinions differ as to whether the custom of preemption amongst village communities in Punjab and other parts of India was borrowed from the Muhammadans or arose independently of the Muhammadan Law, having its origin in the doctrine of “limited right” which has always been the characteristic feature of village communities [Vide P.R. 98 of 1894]. …
Since the establishment of British rule in India the Muhammadan Law ceased to be the general law of the land and as pre-emption is not one of the matters respecting which Muhammadan Law is expressly declared to be the rule of decision where the parties to a suitare Muhammadans, the Courts in British India administered the Muhammadan Law of pre-emption as between Muhammadans entirely on grounds of ‘justice, equity and good conscience’. Here again there was no uniformity of views expressed by the different High Courts in India and the High Court of Madras definitely held that the law of pre-emption, by reason of its placing restrictions upon the liberty of transfer of property, could not be regarded to be in consonance with the principles of justice, equity and good conscience [Vide Krishna Menon v. Keshavan, 20 Mad. 305]. Hence the right of pre-emption is not recognised in the Madras Presidency at all even amongst Muhammadans except on the footing of a custom.
Rights of preemption have in some provinces like Punjab, Agra and Oudh been embodied in statutes passed by the Indian Legislature and where the law has been thus it undoubtedly becomes the territorial law of the place and is applicable to persons other than Muhammadans by reason of their property being situated therein. In other parts of India its operation depends upon custom and when the law is customary the right is enforceable irrespective of the religious persuasion of the parties concerned. Where the law is neither territorial nor customary, it is applicable only between Muhammadans as part of their personal law provided the judiciary of the place where the property is; situated does not consider such law to be opposed to the principles of justice, equity and good conscience.
Apart from these a right of pre-emption can be created by contract and as has been observed by the Judicial Committee in the case referred to above, such contracts are usually found amongst sharers in a village.”
Preemption is a Weak Right; Property right is a Constitutional/Human Right
In Rajasthan Housing Board, v. New Pink City Nirman Sahkari Samiti Ltd., AIR 2015 SC 2126, it was held that property right is a constitutional right and also a human right; and that preemption is a very weak right.
The Supreme Court of India repeatedly held that preemption is a weak right. Following decisions include in it:
Bishan Singh v. Khazan Singh, AIR 1958 SC 838,
Radhakishan Laxminarayan Vs. Shridhar , AIR 1960 SC 1368
Indira Bai v. Nand Kishore, AIR 1991 SC 1055,
Krishna Dass Agarwal v. Kanhaiyalal, AIR 1996 SC 3464,
Lachhman Dass v. Jagat Ram, AIR 2007 SC 1169
Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767,
Raghunath v. Radha Mohan, AIR 2020 SC 5026.
The Supreme Court qualified preemption as an archaic right in the following decisions:
Atani Prakash v. State of Haryana, AIR 1986 SC 859
Indira Bai v. Nand Kishore, AIR 1991 SC 1055
Krishna Minor v. State of Haryana, AIR 1994 SC 2536
Shyam Sunder v. Ram Kumar, AIR 2001 SC 2472
Preemption is characterised to be a clog on right. (Therefore, it has to be construed strictly.)
Indira Bai v. Nand Kishore, AIR 1991 SC 1055
Mohd. Noor v. Mohd. Ibrahim, AIR 1995 SC 398
Hasthimal Vs. P. Tej Raj Sharma, AIR 2007 SC 3246
Court Looks upon preemption with distaste as held in:
Krishna Dass Agarwal v. Kanhaiyalal, AIR 1996 SC 3464.
Pre-emption is a ‘Right to the offer’and a remedial right ‘to follow the thing sold’
Our Apex Court summarized the law on pre-emption in Bishan Singh v. Khazan Singh, AIR 1958 SC 838, as under:
“(1) The right of pre-emption is not a right to the thing sold but a right to the offer of a thing about to be sold. This right is called the primary or inherent right.
(2) The pre-emptor has a secondary right or a remedial right to follow the thing sold.
(3) It is a right of substitution but not of re-purchase i. e., the pre-emptor takes the entire bargain and steps into the shoes of the original vendee.
(4) It is a right to acquire the whole of the property sold and not a share of the property sold.
(5) Preference being the essence of the right, the plaintiff must have a superior right to that of the vendee or the person substituted in his place.
(6) The right being a very weak right, it can be defeated by all legitimate methods, such as the vendee allowing the claimant of a superior or equal right being substituted in his place.”
(Quoted in Barasat Eye Hospital v. Kaustabh Mondal, (2019) 19 SCC 767, and Raghunath v. Radha Mohan, AIR 2020 SC 502.)
Pre-Emption is Inconsistent with Constitutional Scheme and Modern Ideas
In Smt. Vijayalakshmi Vs. B. Himantharaja Chetty, AIR 1996 SC 2146, apprised the right of preemption as under:
“The concept of substitution from that long and even before has been the foundation of the law of pre-emption and has been noticed, followed and employed, time and again, in a catena of decisions. The fact that this Court in Atam Prakesh vs. State of Haryana [1986(2) SCC 249] has struck down the right of pre-emption based on consanguinity as a relic of the feudal past, inconsistent with the constitutional scheme and modern ideas, has not altered the situation that the right of pre-emption, wherever founded, whether in custom, statute or contract, is still a right of being substituted in place of the vendee, in a bargain of sale of immovable property. We therefore need not burden this judgment with other attributes of the concept as attempted by both Hon’ble Judges of the High Court.”
Right of Pre-emption once waived, cannot be raised on subsequent sales
In Raghunath v. Radha Mohan, AIR 2020 SC 502, iterating that pre-emption is a weak right, it was held that once a plaintiff-pre-emptor chooses to waive his right of Pre-emption, he loses that right for ever, and could not raise the right in perpetuity every time there is a subsequent transaction or sale. It is only exercisable for the first time when the cause of such a right arises.
Section 10 & 11 of Transfer of Properties Act & Preemption
Section 10 of Transfer of Properties Act reads as under:
“10. Condition restraining alienation: Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him:provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.”
Section 11 of Transfer of Properties Act reads as under:
11. Restriction repugnant to interest created– Where 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.
Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.
In Gayasi Ram v. Shahabuddin, AIR 1935 All 493, the sale deed contained a clause that the vendee shall not transfer the house by mortgage, gift or sell to any one except the vendor or his heirs and if in contravention of the clause, the property is sold the vendor or his heir would have a right to get back the house by paying Rs. 175/- and if the property was to be sold in court auction sale, the sale would be invalid. The sale consideration for the house was Rs. 150/-. Relying on Dal Singh v. Khub Chand (AIR 1921 All 97), Asghari Begam v. Maula Bakhsh (AIR 1929 All 381) and Gomti Singh v. Anari Kuar (AIR 1929 All 492) it was held that the sale deed was between strangers and the clause was an absolute restraint on alienation to anyone except the vendor or his heirs and therefore void in view of Section 10 of Transfer of Property Act, and that in such cases question of pre-emption did not arise.
In Trichinopoly Varthaga Sangam Ltd. v. T. N. Shanmughasundaram, AIR 1939 Mad. 769, the Clause in the Partition deed – the property should not be sold to any stranger; and lease only to brothers or their heirs for a sum not exceeding Rs. 1000/-. The court found that there was “no obligation” for a member to buy “even at Rs. 1000/-“. Hence it was held – Restriction is ‘absolute’, and hence, void.
Similarly, it was held in Manohar Shivram Swami v. Mahadeo Guruling Swami, AIR 2008 Bom 116, that the condition in the Sale deed prohibiting sale ‘outside family’ was void.
In Bhavani Amma Kanakadevi v. CSI, Dakshina Kerala Maha Idavaka, AIR 2008 Kerala 38, the question came for consideration was whether a provision in a sale deed that in the event of failure to construct a private college in the property sold thereunder, the property shall be re-conveyed by the vendee to the vendor for the same sale consideration is barred under the provisions of Sections 10 or 11 of Transfer of Property Act. Observing that (though) Ext.A2 did not contain a specific clause prohibiting respondent from alienating the property to third parties, the implied clause – that in the event of failure to construct a college, the property shall be reconveyed to the assignor at the same price – shut out any other option. The High Court held that it was an absolute restraint on the right of respondent to deal with the property including alienation, which was void as provided under Section 10.
The court referred to the following decisions:
Jatru Pahan v. Mahatma Ambikajit Prasad ( AIR 1957 Patna 570),
Saji Koduvath Associates 