Jojy George Koduvath, Kottayam

PART I

INTRODUCTION

“Evidence” includes “statements” of witnesses; “documents” like writings, email, photos; and “objects” exhibited in court. How evidence is to be tendered in court is determined by Civil Procedure Code and Criminal Procedure Code. What kind of facts or information is admissible in evidence as “proof” is decided by the Evidence Act. It applies to both criminal and civil cases.

Relevant Evidence Alone is Admissible

Sec. 5 and 136 of the India Evidence Act stipulate that evidence can be given only on ‘facts in issue’ or ‘relevant facts’. Relevant facts are enumerated in Sec. 6 onwards.

Proof as to Truth

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.

Presumptions can be invoked when no direct evidence possible

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.”

Best Evidence Rule

Certain evidence may be better than other. It is the judge who has to determine it.

According to the Indian Evidence Act (Sec. 3) ‘Evidence’ means and includes all statements made before the courts by witnesses, and all documents including electronic records produced in the Court. The ‘best evidence rule’ is laid down in-particular in Sec. 60 and 61 of the Evidence Act (oral evidence must be direct; and contents of documents are to be proved either by primary or by secondary evidence).

Indian Evidence Act lays down the following principles of ‘Rule of Best-Evidence’:

No.	Propositions	Sec. in Evd. Act
1	Best available evidence must be produced. If not, adverse presumption will be taken.	114 (g)
2	Oral evidence must be direct. Hearsay evidence is accepted in rare instances (that falls under Sec. 6 of the Evid. Act).	60
3	Documents must be proved by Primary Evidence. Secondary evidence will be allowed only when it is so permitted.	64 & 65; 22 & 144;
4	To prove the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, document itself, or secondary evidence, must be produced.	91
5	No evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms.	92
6	Sec. 93 and 94 speaks as to exclusion of evidence.	93 & 94
7	Sec. 94 to 99 lays down the circumstances in which evidence can be given with respect to documents.	94 to 99
8	Circumstantial and Presumptive evidence can be resorted to in proper cases.	114
9	Substantive evidence that requires corroboration must be corroborated.	157

The Standard of Evidence – If No Direct Evidence –  is that of a Prudent Man

The standard of evidence is to be determined by the Judge after considering the ‘matters’ before it. The Court can act upon the matters placed before it in two ways.

He can say –

• i.   He believes a ‘matter’ to exist from (face of) the matters placed before it.
• ii. He considers its existence of a matter “probable”. The standard to be adopted in such matters is that of a prudent man.  That is, the judge can take a matter as proved if a prudent man, under the circumstances of the particular case, would act upon the supposition that it exists.

It is clear from Section 3 of the Evidence Act when it defines “Proved”. It reads:

• “Proved” .—A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

PART II

ADMISSIBILITY, PROBATIVE VALUE,  SUBSTANTIVE EVIDENCE

Admissibility of Evidence Determined First; Then only, Genuineness, Veracity, etc.

In Anvar P.V. v. P.K. Basheer, AIR 2015 SC 180: (2014)10 SCC 473, it is held as under:

• “Genuineness, veracity or reliability of the evidence is seen by the court only after the stage of relevancy and admissibility.”

Generally speaking, all relevant documents are admissible. But, various provisions of the Evidence Act, Civil and Criminal Procedure Codes, Stamp Act, Registration Act, etc. stipulate various formalities or regulations for tendering documents in evidence. ‘Relevancy’ is a matter of judicial application of the mind by the court. But, ‘admissibility’ is governed solely by the legal principles.

Read Blog: Relevancy, Admissibility and Proof of Documents

Probative Value of Documents

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. – previous criminal conduct of an accused, photocopy of a deed certified copy of which is provided in law, ‘objectionable document’ marked without objection, un-cross-examined testimony of a witness etc.

If there is a dispute regarding age, the Supreme Court, in State of Punjab Vs. 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 the proper witness.

In Om Prakash Vs. State of Punjab, 1993(2) CLR 395, and Jora Singh Vs. 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 ‘probity evidence’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 Vs. 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.)

Evidence – Classifications

Evidence is classified under different heads – such as:

• primary evidence secondary evidence;
• oral, documentary and material objects;
• direct evidence and circumstantial evidence;
• substantial evidence and inadmissible evidence (or hearsay evidence);
• substantive evidence and evidence used for refreshing memory or for corroboration.
• real evidence, testimonial evidence and hearsay evidence;
• judicial evidence and non-judicial evidence etc.

Substantive Evidence and Evidence for Refreshing Memory.

A Post-Mortem Report, Wound Certificate or Commission Report in a former case is not a substantive evidence.  Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

• “That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”

[See also: Munshi Prasad Vs. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh,  (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) Ker LT 59.]

Documents used for Contradicting

Credit of a witness can be impeached under Sec. 155 (3) of the Evidence Act with reference to his previous statements. Sec. 145 is the provision to cross examine a witness with regard to his previous writing. Sec. 145 reads as under:

• “145. Cross-examination as to previous statements in writing.—A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.”

Sec. 145 Enables to Contradict Witnesses with his previous statements:

1. Without such the writing being shown to him
2. without such (previous) writing being proved.
3. even when the writing is used to contradict the witness by the writing and his attention is called to those parts of it which are to be used for the purpose of contradicting him, it need not be shown to the counsel of the witness (or other side) for his perusal.
4. the writing need not be one that is admissible in evidence (it can be unstamped, even if it requires stamp; or unregistered, even if it requires registration).
5. material ‘omissions’ (in the previous writings) may amount to contradiction.

Conditions for invoking Sec. 145:

1. The writing must be a ‘previous’ one.
2. The (previous) writing must be of that witness himself.
3. It must be relevant to matters in question
4. If it is intended to contradict the witness by the writing, his attention must be called to those parts of it which are to be used for the purpose of contradicting him.
5. If the writing is not ‘ready with’ the cross examiner while the attention of the witness is called to those parts used for the purpose of contradicting him, the cross examiner must have undertaken to prove the document, and the Court must have given the permission as envisaged in Sec. 136 of the Evidence Act.
6. If the witness denies such previous statement it can be proved, subsequently (for impeaching the credit of the witness).
7. When it is to be proved, original or other admissible copy must be produced.
8. This provision being a statutory one, the courts will allow to prove it , even if the ‘right to give evidence’ of that party ‘is over’.

Important points to be noted while invoking sec. 145

1. If the witness admits the previous statement, no question as to proving the same arises for consideration.
2. The purpose of invoking sec. 145 is only testing the veracity of the witness, under Sec. 155 (3); such writing will not be a substantive evidence.
3. Even if the document or the contradicting part is marked, and it is proved, for the purpose of contradicting him, it cannot be read in evidence (as the purpose of this provision is only impeaching the credit of the witness).
4. The court has to allow the cross examiner to produce and prove the previous statement (if the witness denies such previous statement) even if technically his ‘evidence is over’ (it being statutory right).

Documents used for Corroboration

            Courts adjudicate the issues before it based on substantive evidence. In several cases it may be unusual that no direct evidence comes forth; for example, sexual offences, conspiracy, etc. In some cases certain corroborative evidence, to the already placed substantive evidence, may assure confidence to the minds of judges.  Section 156 of the Evidence Act lays down that such testimonies can be brought into evidence. It is beyond doubt that such an evidence should also be an admissible one.

Section 156 of the Evidence Act reads as under:

• “156. Questions tending to corroborate evidence of relevant fact, admissible.
• When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred, if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
• Illustration A, an accomplice, gives an account of a robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed. Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.”

The requirement of corroboration in certain cases is described by our Apex Court as under in Khema @ Khem Chandra v. The State of Uttar Pradesh, AIR 2022 SC 3765, as under:

• “21. This Court, in the celebrated case of Vadivelu Thevar v. State of Madras, (1957) SCR 981, has observed thus:
• “…….Hence, in our opinion, it is a sound and well­established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
  • Wholly reliable.
  • Wholly unreliable.
  • Neither wholly reliable nor wholly unreliable.
• In the first category of proof, the court should have no difficulty in coming to its conclusion either way — it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial..……”
• 22. We find that the testimony of Inder (PW­2) would fall under the 3rd category i.e. his evidence can be said to be “neither wholly reliable nor wholly unreliable”. As such, it will be necessary that there is some corroboration to his ocular testimony.”

Substantive Evidence and Evidence used for Refreshing Memory.

Section 157 in the Evidence Act reads as under:

• “157. Former statements of witness may be proved to corroborate later testimony as to same fact.
• In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact, at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.”

A Post-Mortem Report, Wound Certificate or Commission Report in a former case is not a substantive evidence.  Doctor or Commissioner can refresh memory (Sec. 159, Evid. Act) with reference to the document. Similarly, mere marking of a Scene Mahazar, without examining the Investigating Officer who prepared it, will not render substantive aid to the prosecution case.

In Rameshwar Dayal v. State of U.P., AIR 1978 SC 1558, referring to Inquest Report, Site Plans etc., it is held by the Supreme Court, as follows:

• “That part of such documents which is based on the actual observation of the witness at the spot being direct evidence in the case is clearly admissible under Section 60 of the Evidence Act whereas the other part which is based on information given to the Investigating Officer or on the statement recorded by him in the course of investigation is inadmissible under Section 162 CrPC except for the limited purpose mentioned in that section.”

[See also: Munshi Prasad v. State of Bihar,(2002) 1SCC 351; State of Haryana v. Ram Singh,  (2002) 2SCC 426; Vijay Paul v. State of Delhi: 2015 SC 1495; Mohanan v. State of Kerala: 2011(4) Ker LT 59.]

Expert Evidence is only Corroborative; Not Substantive

In case of a conflict between oral evidence and scientific evidence, which will prevail? The answer is that it depends upon the nature of the subject matter. In everyday practice we see that trustworthy and credible oral evidence get primacy status over the scientific evidence. It is on the principle that the scientific evidence always renders an ‘opinion’ or ‘possibility’ only. By the advent of scientific techniques in the field of judicial investigation and enquiry, our judicial process began to assign due importance to scientific evidence. Still, the oral evidence has primacy over the scientific evidence.  

It is important that Section 45 of the Evidence Act does not say anything as to the weight to be attached to the expert evidence. This Section only says that expert’s evidence is admissible. The expert-evidence is not substantive evidence; and it is generally used as a piece of evidence for corroboration or conflict with oral evidence. The evidence of an expert only aids and helps the Court as advisory material. The expert being not a witness of fact, his opinion is to be analysed objectively by the court. The decision making process is never delegated to the expert; the expert only helps and assists the Court to decide. Courts always give due importance to the opinion of the experts. But, it will not substitute proof. Court is said to be the expert of experts.

In Solanki Chimanbhai Ukabhai v. State of Gujarat, (1983) 2 SCC 174, it was held that the evidence of eyewitnesses should be preferred unless the medical evidence completely rules it out. It was held as under:

• “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.”

In State of Haryana v. Bhagirath, (1999) 5 SCC 96, the Supreme Court held as under:

• “15. The opinion given by a medical witness need not be the last word on the subject. Such opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.”

The blood group on the dress of the accused and the dress of the deceased matched. It corroborates the prosecution story. However that by itself is not conclusive proof of the culpability of the accused (Binder Munda v. State, 1992 Cr.L.J. 3508 Ori. (DB).

In Surinder Singh v. State of Punjab, 1989 SCC (Cri) 649, it is observed that it would not be helpful to the prosecution if it was not shown that the blood-stains on the weapon recovered from the possession of the accused were of the same group as the blood of the deceased. (See also: Kansa Behera. v. State of Orissa.AIR 1987 SC 1507).

In State of U.P. v. Krishna Gopal, AIR 1988 SC 2154, the eye-witnesses were found credible and trustworthy. Therefore, the medical opinion pointing to alternative possibilities was not accepted as conclusive. The Apex Court pointed out that witnesses, as Bantham said, were the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses’ account would require a careful independent assessment and evaluation for their credibility, which should not be adversely prejudged making any other evidence, including medical evidence as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent improbabilities.

Appreciation of Evidence of Experts
In practice, the investigating agencies and courts give very high importance to wound-certificates and post-mortem certificates. They are considered as an indispensable part in most criminal cases. Same is the case of evidence of Ballistic expert. Here also primacy is given to ocular evidence if it is found credible by the court, especially when the ocular evidence is supported by the wound certificate or post-mortem report.

Post-Mortem Report is not a Substantive Evidence

Post-mortem Report or Wound Certificate is not a substantive evidence [Mohan Singh v. Emperor, AIR 1925 All. 413 (DB); State v. Rakshpal Singh, AIR 1953 All. 520; Ram Pratap v. State, 1967 All.W.R. (H.C.) 395; Ram Balak Singh v. State, AIR 1964 Pat. 62(DB); Mellor v. Walnesley, 1905, 2Ch. 164 (CA);Hadi Kisani v. State, AIR 1966 Orissa 21; Gofur Sheikh v. State, 1984 Cr.L.J. 559 (Cal); Bhanda Gorh v. State of Assam, 1984 Cr.L.J.217 (Gau); Jagdeo Singh v. State, 1979 Cr.L.J.236 (All);  K. Pratap Reddy v. State of A.P., 1985 Cr.L.J.1446].

In Vadugu Chanti Babu v. State of A.P. (2002) 6 SCC 547 it is observed that a stray statement of the doctor in cross-examination will not be a conclusive opinion; but it is only a possibility. In a maintenance dispute under Sec. 125 Cr PC our Apex Court, in Saygo Bai Vs. Chueeru Bajrangi, AIR 2011 SC 1557, observed that the Court must read whole evidence and that one stray admission cannot be read in isolation with the other evidence. 

Decision which Changed the Concept of Law on ‘Conclusive Presumption’

Nandlal Wasudeo Badwaik Vs. Lata Nandlal Badwaik, AIR 2014 SC 932, is a very important decision which changed the concept of law on ‘conclusive presumption’ on Sec. 112 which reads as under:

• “112. Birth during marriage, conclusive proof of legitimacy. The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”

It is held in Nandlal Wasudeo Badwaik case as under:

• “17. We may remember that Section 112 of the Evidence Act was enacted at a time when the modern scientific advancement and DNA test were not even in contemplation of the Legislature. The result of DNA test is said to be scientifically accurate. Although Section 112 raises a presumption of conclusive proof on satisfaction of the conditions enumerated therein but the same is rebuttable. The presumption may afford legitimate means of arriving at an affirmative legal conclusion. While the truth or fact is known, in our opinion, there is no need or room for any presumption. Where there is evidence to the contrary, the presumption is rebuttable and must yield to proof. Interest of justice is best served by ascertaining the truth and the court should be furnished with the best available science and may not be left to bank upon presumptions, unless science has no answer to the facts in issue. In our opinion, when there is a conflict between a conclusive proof envisaged under law and a proof based on scientific advancement accepted by the world community to be correct, the latter must prevail over the former.”

Appreciation of Evidence is Both an Art and a Science

R. Basant, J., in Basheer Vs. Mahasakthi Enterprises – Ker LT 2005-3 163: 2005-1 Mad LJ 965, held as under:

• “The appreciation of evidence is both an art and a science. All relevant inputs have to be taken into consideration for the Court to answer a disputed question of fact. Each circumstance including the opinion tendered by an expert must be taken into consideration. All the relevant inputs must be placed in the crucible. But the result of such appreciation must stem from prudence, reasonableness and intelligence of the Court. The knowledge of men and matters of the Court would be crucial. The knowledge of the court of common course of events and natural and probable behaviour of human beings will be vital. The yardsticks of a reasonably prudent mind have to be accepted. All relevant circumstances must go into the decision making. When the evidence is sifted, weighed, tested, analysed and evaluated, no one piece of evidence can be said to overrule the others unless such evidence be clinching, convincing and beyond doubt.”

Old Document: Recent Challenge – Direct Evidence Need Not Be as Strong as might be Naturally Expected in a Recent Transaction.  

In Jagna Sanyasiah v.  Mycherla Peda Atchanna Naidu, AIR 1921 Mad 624, it is held as under:

• “5. The respondents’ contention in their memorandum of objections would, in my opinion, have to be allowed as the passing of consideration for a document which is more than 30 years old and which was ever questioned till this suits was brought should be taken as proved even if the direct evidence is not as strong as might be naturally expected in respect of recent transactions.”

PART III

PROOF

Formal Proof & Substantive Proof or Truth of Contents of Documents

Proof is of 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. 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.

• Read Blogs:
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Marking Documents Without Objection – Do Contents Proved
• Rules on Burden of proof and Adverse Inference

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.

Admission cannot be proved by the person who makes them

According to Sec. 21 of the Evidence Act, an admission cannot be proved by, or on the behalf of, the person who makes them because a person will always naturally make statements that are favorable to him. Sec. 32, 33, 34 etc. of the Evidence Act lays down exceptions to this rule. However, for comparison of hand writings and signatures, ante litem motam documents would have probative force (G. Govindaraj v. Smt. Saroja Ramakrishnan, 2013 (4) MLJ 164).

Ante litem motam documents

The Supreme Court had said in Harihar Prasad Singh v. Must. of Munshi Nath Prasadand, AIR 1956 SC 305, that ante litem motam documents that extend over a considerable period of time, form cogent and strong evidence that the lands were private lands.

Proof must be by persons who can vouchsafe for the truth

Narbada Devi Gupta v. Birendra Kumar Jaiswal (2003-8 SCC 745) held:

• “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 Ker LT 293.)

Inherently-inadmissible documents

‘Inherent-inadmissibility of documents’ arises from the following:

1. Irrelevancy
2. 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 proper modes:

• Exhibition through one who can vouchsafe veracity.
• Admissible mode of secondary evidence. Eg: Certified copy be produced proving circumstances that entitles to give secondary evidence under Sec. 65 of the Evd. Act.
• Secondary evidence that is recognised under Sec. 63 alone be tendered as secondary evidence.
• Production of properly stamped document.

PART IV

PRESUMPTION

PRESUMPTION under Sec. 114, Evid. Act read with Sec. 35.

Sec. 35 Evd. Act speaks on ‘an entry in any public or other official book, register or record or an electronic record’. Sec. 35 Evd. Act speaks as to presumption.

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.

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.

Illustration (e) of Sec. 114, Evd. Act, demonstrates that presumption as to ‘regularity’ can be invoked on Judicial and official acts, in proper cases, over and above ‘common course of natural events’, ‘human conduct’ etc. that are brought-forth under the body of S. 114.  ‘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).

In Durairaju v. Neela, 1976 CriLJ 1507, Ratnavel Pandian, J., it was held that it was the duty of the court, before making the order for maintenance, to find though in a summary manner, the paternity of the child. It was held that Ex. P. 1, the intimation received by the Municipality from the Government Hospital, and Ex. P. 2 a copy of the birth extract made on the basis of Ex, P. 1, were not sufficient to raise presumption of paternity for, the medical officer who made the entries in Ex. P. 1 had not been examined. The author of the information is not mentioned in Ex. P. 1. PW 2 herself had not stated that she mentioned to the doctor that the child was born to her through the petitioner. In the absence of such evidence, the document could not by itself prove the relevant entries made thereon. It was also observed that to prove a document under Section 35 it must be shown that the document was prepared by a public servant in discharge of his official duty or by any person in performance of a duty specially enjoined by the law.

Read Blog: Modes of Proof – Admission, Expert Evidence, Presumption etc.

• Presumptions on Registered Documents & Collateral Purpose
• Presumptions on Documents and Truth of its Contents
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act

Presumption & Circumstantial Evidence

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.”

It is held as under in Mobarik Ali Ahmed Vs. State of Bombay (AIR 1957 SC 857) as under:

• “The proof of the genuineness of a document is proof of the authorship of the document and is proof of a fact like that of any other fact. The evidence relating thereto may be direct or circumstantial. It may consist of direct evidence of a person who saw the document being written or the signature being affixed. It may be proof of the handwriting of the contents, or of the signature, by one of the modes provided in Ss. 45 and 47 of the Indian Evidence Act. It may also be proved by internal evidence afforded by the contents of the document. This last mode of proof by the contents may be of considerable value where the disputed document purports to be a link in a chain of correspondence, some links in which are proved to the satisfaction of the Court. In such a situation the person who is the recipient of the document, be it either a letter or a telegram, would be in a reasonably good position both with reference to his prior knowledge of the writing or the signature of the alleged sender limited though it may be, as also his knowledge of the subject-matter of the chain of correspondence, to speak to its authorship.”

Presumption of Correctness Attached to a Registered Deed

In the split-verdict in Majumder v. Dipak Kumar Saha, 2023 SCC OnLine SC 37, BV Nagaratna, J., held as under:

• “18. … The presumption of correctness attached to endorsement made by the Sub-Registrar is in view of the provisions of Sections 58, 59 and 60 of the Registration Act. This presumption can be rebutted only by strong evidence to the contrary.”

BV Nagaratna, J. referred the following decisions-

• Ishwar Dass Jain v. Sohan Lal, (2000) 1 SCC 434 (a registered document is presumed to be valid).
• Chottey Lal v. The Collector of Moradabad,  AIR 1922 PC 279 (presumption of validity of a power of attorney which formed the basis of a registered deed; the sub-registrar being accepted the document for registration, it is prima-facie evidence that the conditions have been satisfied).
• Jugraj Singh v. Jaswant Singh, 1970 (2) SCC 386 (presumption of regularity of official acts of sub-registrar).
• Rattan Singh v. Nirmal Gill, AIR 2021 SC 899 (presumption of validity of a general power of attorney and consequently of the sale deed executed – especially of a 30-year old document).
• Prem Singh v. Birbal , (2006) 5 SCC 353 (when such a presumption arises, the onus would be on a person who challenges such presumption, to successfully rebut it).

PART V

BEST EVIDENCE RULE

Best available evidence must be produced; If Not, Adverse Presumption will be Taken

Generally, it is the duty of the party to lead the best evidence in his possession even though onus of proof do not lie on him, and he is not called upon to produce the said evidence; and the Court will draw adverse inference under Section 114(g) of the Evidence Act if such evidence is withheld.

But this rule cannot be applied blindly. Mere non-production of documents would not result in adverse inference, invariably (as shown below). Courts take into consideration the pleadings and decide whether the document/evidence withheld has any relevance. The court also cannot lose sight of the fact that burden of proof is on the party which makes a factual averment. The conduct and diligence of the other party is also important. Existence of some other circumstances may justify non-production (Union of India v. Ibrahim Uddin, (2012) 8 SCC 148).

• The rule that best available evidence must be produced is taken in the following cases:
• Murugesam Pillai v. Gnana Sambandha Pandara Sannadhi, AIR 1917 PC 6; 
• Hiralal v. Badkulal, AIR 1953 SC 225; 
• A. Raghavamma v. A. Chenchamma, AIR 1964 SC 136; 
• The Union of India v. Mahadeolal Prabhu Dayal, AIR 1965 SC 1755; 
• Gopal Krishnaji Ketkar v. Mohamed Haji Latif, AIR 1968 SC 1413;
• M/s. Bharat Heavy Electrical Ltd. v. State of U.P.,  AIR 2003 SC 3024;
• Khatri Hotels Pvt. Ltd. v. Union of India, (2011) 9 SCC 126.

In Mohan Lal Shamlal Soni v. Union of India, AIR 1991 SC 1346, the Supreme Court held as under:

• “It is a cardinal rule in the law of evidence that the best available evidence should be brought before the Court to prove a fact or the points in issue. But it is left either for the prosecution or for the defence to establish its respective case by adducing the best available evidence and the Court is not empowered under the provisions of the Code to compel either the prosecution or the defence to examine any particular witness or witnesses on their sides. Nonetheless if either of the parties withholds any evidence which could be produced and which, if produced, be unfavorable to the party withholding such evidence, the court can draw a presumption under illustration (g) to Section 114 of the Evidence Act.”

Invoking best evidence rule it is observed by the Supreme Court in Musauddin Ahmed v. State of Assam, (2009) 14 SCC 541, as under:

• “13. It is the duty of the party to lead the best evidence in its possession which could throw light on the issue in controversy and in case such a material evidence is withheld, the Court may draw adverse inference under Section 114 illustration (g) of the Evidence Act notwithstanding that the onus of proof did not lie on such party and it was not called upon to produce the said evidence (vide Gopal Krishnaji Ketkar vs. Mohamed Haji Latif & Ors., AIR 1968 SC 1413).”

In Jitendra v. State of M.P (2003) our Apex Court observed that charas and ganja seized from the accused was the best evidence in that case and the non-production of the same in court was seriously taken note of by the court and observed that that mere oral evidence as to the same was insufficient.(See also: Mohd. Aman, Babu Khan v. State of Rajasthan, AIR 1997 SC 2960.)

In Tomaso Bruno v. State of U.P, (2015) 7 SCC 178, it is observed as under:

• “22. To invoke Section 106 of the Evidence Act, the main point to be established by the prosecution is that the accused persons were present in the hotel room at the relevant time. PW-1 Ram Singh-Hotel Manager stated that CCTV cameras are installed in the boundaries, near the reception, in the kitchen, in the restaurant and all three floors. Since CCTV cameras were installed in the prominent places, CCTV footage would have been best evidence to prove whether the accused remained inside the room and whether or not they have gone out. CCTV footage is a strong piece of evidence which would have indicated whether the accused remained inside the hotel and whether they were responsible for the commission of a crime. It would have also shown whether or not the accused had gone out of the hotel. CCTV footage being a crucial piece of evidence, it is for the prosecution to have produced the best evidence which is missing. Omission to produce CCTV footage, in our view, which is the best evidence, raises serious doubts about the prosecution case.”

With regard to adverse presumption the Apex Court held in Tomaso Bruno as under:

• “28. As per Section 114 (g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption under Section 114 (g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption under Section 114 of the Evidence Act.”

Non examination of the best person as a witness was also taken seriously by our Apex Court in Jagga Singh v. State of Punjab, AIR 1995 SC 135, observing that ‘the best evidence having not been brought on record’ the it would not be justified, ‘to hold that it was the appellant who had done the mischief’.

InDigamber Vaishnav v. State of Chhattisgarh, (2019) 4 SCC 522 also the Apex Court found fault for making no attempt to examine material witnesses and observed that the best evidence which would have been thrown light on the controversy in question was withheld.

Need for placing best evidence in cases of circumstantial evidence is emphasised in Rajendra Pralhadrao Wasnik v. The State of Maharashtra, AIR 2019 SC 1 also.

Read Blogs:

1	Relevancy, Admissibility and Proof
2	Production, Admissibility & Proof
3	Best Evidence Rule in Indian Law
5	Admission of Documents on ‘Admission’
6	Secondary Evidence & Objections
7	Corroboration, and Contradiction
8	Oral Evidence on Contents
9	30 Years Old Documents & Presumption

Rule of ‘Next Best Evidence’

Under the Rule of Best Evidence the law requires, production of the next best evidence if it is not possible to produce the best evidence. See the following:

• Balkar Singh v. State of Punjab, 2005 (1) RCR (Criminal) 576 : 2005 Cri LJ (NOC) 180 (the school record is the  next best evidence in the absence of any entry in the office of Registrar of Births and Deaths.)
• Jagdamba Tea Factory Vs. Parshotam Kishan, 2008-3 PunLR 388, 2008-3 RCR(CIVIL) 17,
• 2008-1 RCR(RENT) 507 (Where there is no lease deed nor any receipt, the rate of rent could well be determined on the basis of house-tax register, which was the  next best evidence available. Gurinder Singh v. Kundan Lal, 2005(1) RCR(Rent) 332 : 2005(2) CCC 128 was relied on where entries in the municipal house tax register was considered.)
• Chiman Lal v. Datar Singh, 1998 CriLJ 267, 1997 (1) WLN 396.
• M/s. MAVR Nataraja Nadar v. State Bank of India, 1993(1) LW 456

In C. Assiamma v. State Bank of Mysore, 1992 -74 Com Cas 139, it is pointed out that the copy of a deed of transfer is not ordinarily a document of title for the purposes of an equitable mortgage, and that there may be cases where the original document is lost and there are no chances of that document being made use of for any purpose; and in such a circumstance the  next best evidence of the owner’s title to the property would be a certified copy of that 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.”

How to Subscribe ‘IndianLawLive’? Click here – “How to Subscribe“

---

---

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit
• If Power of Attorney himself Executes the Document, S. 33 Registration Act will NOT be attracted
• Is Registered Power of Attorney Necessary for Registration of a Deed? No.

Title, ownership and Possession

• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Evidence in Court – General Principles
• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• How to Prove ‘Whatsap Messages’, ‘Facebook’ and ‘Website’ in Courts?
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Impounding of Documents, When Produced; Cannot Wait Till it is Exhibited

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India
• Is ‘Irretrievable Brake-down of Marriage’, a Valid Ground for Divorce in India?
• Foreign Divorce Judgment against Christians having Indian Domicile

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions

Two important Verdicts on Art. 25 and 26 of the Constitution of India*

• *^{Part I of the Blog – Secularism and Art. 25 & 26 of the Indian Constitution.}

Saji Koduvath, Advocate, Kottayam.

Introduction

It is the unique characteristic of Indian Constitution that the Government in India protects all religions and the religious practices. Unlike other secular countries like United States, which follow the principle of ‘non-interference in the matters of religion’, the secular Government in India is destined to deal with all religions equally and in a neutral manner. Yet, the Government in India will never be openly or virtually religious.

The framers of the Constitution of India positioned the heart and soul of the religious rights and freedom in Articles 25 and 26 of the Constitution of India.

Shirur Mutt and Durgah Committee – Two important Decisions on Art. 25 and 26

Several enactments passed in India, pertaining to the administration of property owned by predominant religious bodies, were challenged in courts alleging that they violated the fundamental rights guaranteed in Article 25 and 26 of the Constitution.

Following are the two important decisions 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.

Article 25 reads 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.”

Article 26 reads as under:

• “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.”

Art. 25 and 26 Allows Enactment of Laws Relating to ‘Secular’ Matters

Article 25 speaks about making law on ‘secular activity which may be associated with religious practice‘. Article 26 says as to ‘administer such property in accordance with law‘.

Article 26 proclaims, inter alia, about freedom to manage religious affairs. The principles underlying these provisions come for consideration when legislature makes law as regards the property that has been acquired, possessed or owned by religious bodies.

Doctrine of Essential Religious Practice

It is clear from the words in clause (d) of Article 26 (‘administer such property in accordance with law’) that the legislature is empowered to enact laws relating to ‘secular’ matters related to the administration of property owned by religious denominations. Laws made as above had been questioned in Shirur Mutt case and Durgah Committee case as detailed below. The doctrine of Essential Religious Practice is emerged from the analysis and synthesis of the Articles 26 and 26.

Shirur Mutt Case

In The Commr, Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) the Constitutional validity of the Madras Hindu Religious and Charitable Endowments Act, 1951 passed by the Madras Legislature was challenged. It was alleged that the Act interfered  with the management of the Math and its affairs by the Mathadhipati, and it conflicted with the provisions fundamental rights guaranteed under the Constitution in matters of religion and religious institutions belonging to particular religious denominations. It was held by our Apex Court, inter alia, as under-

• (1) Protection under Article 25(1) of the Constitution extends to (all) religious ‘acts’.
• (2) ‘Organizations’, ‘Sects, Sub-sects‘, etc. have the “right to manage its own affairs ” under Article 25(2).
• (3)(a) “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” (Therefore the provisions of the concerned legislation was held to be bad.)
• (3)(b) It is also held: Under Article 26(b), “a religious DENOMINATION or organization enjoys complete autonomy in 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”. (Therefore the provisions of the concerned legislation was held to be bad.)

Edict of the Shirur Mutt Case

Thus, Shirur Mutt brings-to-bear that when it is necessary to make a pronouncement as to what constitutes the ESSENTIAL PART OF A RELIGION or what RITES and CEREMONIES are essential according to the tenets of the religion, the same has to be ascertained–

• (i) with reference to the Doctrines of that religion itself 
• AND
• (ii) what the DENOMINATION HELD as essential, as regards the RITES and CEREMONIES, according to the Tenets of their religion.

Shirur Mutt – Not a Case from Dispute Within the Community

It is noteworthy that in this case it was not required to record a finding – what would be the stand of the court when a dispute came within the community or denomination as to the rites and ceremonies.

Durgah Committee Case

The tomb Khwaja Moinuddin Chisti at Ajmeer, known as Durgah Khwaja Saheb, gained high reputation. In 1955 the Parliament of India enacted the Durgah Khwaja Saheb Act, 1955, with regard to the administration of the tomb. Alleging violation of the fundamental rights, a Writ Petition under Art. 226 of the Constitution was filed. In Durgah Committee, Ajmer v. Syed Hussain Ali (1961) it was held by the Apex Court, inter alia, as under

1. The ‘essential practices‘ of RELIGION alone is considered.
2. The religious practices ‘that may have sprung from merely superstitious beliefs’ and ‘unessential accretions to religion’ may have to be carefully scrutinised by the COURT.

Edict of the Durgah Committee Decision

Durgah Committee brought forward application of consciousness of the Court in ‘essential religious practice’ of the RELIGION (without regard to what had been HELD by the DENOMINATION).

Durgah Committee paved a broad way, that gave wide discretion to court, when it propounded-

• the court has to ‘scrutinise‘ whether religious practices are ‘sprung from merely superstitious beliefs’ or it is an ‘unessential accretions to religion’.

As indicated in Sabarimala case, the result of Durgah Committee decision is that the courts determine what are the secular practices or superstitious beliefs.

Seervai Tells – Observation in Dargah Committee Case, only an Obiter

From Dargah Committee decision, it may appear that the matters discussed in the decision – such as, what were the secular practices or what were superstitious beliefs – dwell within the domain of Courts. (That is, the yardstick would be the consciousness of Court.)

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 as it was “wholly unnecessary to do so”. Seervai also pointed out that ‘the above obiter runs directly counter to the judgment of Mukherjea, J. in the Shirur Mutt Case and substitutes the view of the court for the view of the denomination on what is essentially a matter of religion’.

Seervai continued as under:

• “The reference to superstitious practises is singularly unfortunate, for what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another. Thus, for nearly 300 years bequests for masses for the soul of a testator were held void as being for superstitious uses, till that view was overruled by the House of Lords in Bourne v. Keane. It is submitted that in dealing with the practise of religion protected by provisions like those contained in s. 116, Commonwealth of Australia Act or in Article 26(b) of our Constitution, it is necessary to bear in mind the observations of Latham C.J. quoted earlier, namely, that those provisions must be regarded as operating in relation to all aspects of religion, irrespective of varying opinions in the community as to the truth of a particular religious doctrine or the goodness of conduct prescribed by a particular religion or as to the propriety of any particular religious observance. The obiter of Gajendragadkar J. in the Durgah Committee case is also inconsistent with the observations of Mukherjea J. in Ratilal Gandhi Case,*^* that the decision in Jamshedji v. Soonabai afforded an indication of the measure of protection given by Article 26(b).” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)
• *^{* Ratilal Panachand Gandhi v. The State of Bombay, AIR 1954 SC 388}.

It is noteworthy that in this case also, as in Shirur Mutt case, disputes that arose for consideration were not that arose within the community or denomination as regards the ‘rites and ceremonies’. It was a case that challenged an enactment passed by the Parliament of India.

All five Judges in Durgah Committee Changed their Views

All the five Judges in Durgah Committee (1961) changed their views, by two subsequent decisions, as to the ‘role of the court‘ in determining the essential religious practice; and observed that what was REGARDED by the COMMUNITY on essential religious practice was important.

• In Sardar Syedna Taher Saifuddin Saheb v. 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 – A.K. Sarkar, K.C. Das Gupta, N. Rajagopala Ayyangar, JJ.)
  • 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 COMMUNITY as a part of its religion.
• In the Constitution Bench decision in Tilkayat Shri Govindlalji Maharaj v. St. of Rajasthan, 1963 AIR SC 1638, Justice Gajendragadkar himself (who authored Dargah Committee Case) and two other Judges in Dargah Committee Case, K.N. Wanchoo and K.C. Das Gupta, JJ. explained, as to the enquiry on integral part of religion held as under:
  • 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 COMMUNITY and the tenets of its religion.

Gajendragadkar J. Explained Essential Religious Practices in Tilkayat

Justice Gajendragadkar himself (who authored Dargah Committee Case) explained, in a subsequent decision, as to enquiry on integral part of religion in the Constitution Bench decision, in Tilkayat Shri Govindlalji Maharaj Vs. St. of Rajasthan (1963 AIR SC 1638) as under:

• “In Shri Venkataramana Devara v. The State of Mysore, Venkatarama Aiyar, J., observed ‘that the matter of religion in Art. 26 (b) include even practices which are regarded by the community as parts of its religion’. It would thus be clear that religious practice to which Art. 25 (1) refers and affairs in matters of religion to which Art. 26 (b) refers, include practices which are an integral part of the religion itself and the protection guaranteed by Art. 25(1) and Art. 26(b) extends to such practices. 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 formula may in some cases present difficulties in its operation. Take the case of a practice in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites while dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of the religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. 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 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 community and the tenets of its religion. It is in the light of this possible complication which may arise in some cases that this Court struck a note of caution in the case of the Durgah Committee, Ajmer v. Syed Hussain Ali, and observed that in order that the practices in question should be treated as a part of religion they ‘must be -regarded by the said religion as its essential and integral part ; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 25 (1).”  

The Tilkayat contended in this case that the idol of Shri Shrinathji in the Nathdwara Temple and all the property pertaining to it were his private properties; and as such, the State Legislature was not competent to pass the Act.

Seervai criticised Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan also as under:

• “In Tilkayat Shri Govindlalji v. Rajasthan Gajendragadkar J. again adverted to the rights under Arts. 25(1) and 26(b) and stated that if a matter was obviously secular and not religious, a Court would be justified in rejecting its claim to be a religious practise, as based on irrational considerations. It is submitted that the real question is whether the religious denomination looks upon it as an essential part of its religion, and however irrational it may appear to persons who do not share that religious belief, the view of the denomination must prevail, for, it is not open to a court to describe as irrational that which is a part of a denomination’s religion. The actual decision in the case, that the right to manage the property was a secular matter, is correct, but that is because, as pointed out by Mukherjea J., Art. 26(b) when contrasted with Art. 26(c) and (d) shows that matters of religious belief and practises are distinct and separate from the management of property of a religious denomination. The distinction between religious belief and practises which cannot be controlled, and the management of the property of a religious denomination which can be controlled to a limited extent, is recognised by the Article itself and must be enforced. But this distinction is not relevant to the question whether a religious practise is itself irrational or secular.” (quoted in Indian Young Lawyers Association Vs. State of Kerala, 2019-1 SCC 1-Indu Malhotra, J.)

View of Setalvad, the Attorney General who Argued the Case

MC Setalvad the all time powerful and brave Attorney-General, who led the argument for the Government in Shirur Mutt case laid stress upon clause (2)(a) of the Article 25 and contented that all secular activities, which may be associated with religion but did not really constitute an essential part of it, were amenable to State regulation. This argument was not accepted by the Apex Court, as shown above. But, in his auto-biography, ‘My Life, Law and Other Things’, Setalvad said about the Judgments in Shirur Mut case and Ratilal Panchand Gandhi Vs. State of Bombay, AIR 1954 SC 388, as under:

• “The Judgments delivered by Justice Mukherjea, in these two cases were the first enunciation of the true scope of the provisions safeguarding religious liberty in the Indian Constitution.  The exposition of the fundamental rights was comprehensive and precise, and completely in harmony with Indian practice and sentiment.
•  A later decision (Durgah Committee, Ajmer Vs. Syed Hussain Ali) has however sought to modify these principles .  It has been said that “In order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; …… practices though religions may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. …… 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 integral part of it and no other.“

Setalvad expressed his displeasure to the Durgah decision emphatically by raising the following question:

• “Is the court study the religion and in its reforming zeal to weed out the superstitions from the essential practices, which are an integral part of Religion? 

The distaste to Durgah decision is further demonstrated by Setalvad by giving the following answer to the above question, formulated by him, referring Mukherjea, as under:

• “That would be contrary to what Justice Muhkerjea laid down: No outside authority had any right to say that those religious practices and performances were not an essential part of religion.”

Reflections of Justice Gajendragadkar in his Autobiography

It is interesting to note what was the reflection of Justice Gajendragadkar in his Autobiography, “To the Best of My Memory” as to the ‘role of the court‘ in determining the essential religious practice.

Justice Gajendragadkar pointed out that the finding was needed when disputes came as to religious practices and other matters, and said that ‘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’.

Justice Gajendragadkar speaks as under:

• “Similarly under Article 26, one of the questions which agitated public opinion was in respect of the meaning of the expression “matters of religion” under Article 26 (b) and “religious practices” under Article 25(2)(a).  The earlier trend of the Supreme Court judgments was that religious practices and matters of religion have to be decided in the light of the opinion of the community and not by the court. This view meant that, in case a controversy arose between the parties in regard to the meaning of these two expressions, in deciding “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 view however was dissented from by the court in two decisions^**^* in both of which I spoke for the unanimous court.  We held that where a dispute arises as to what is the religious practice or what are matters of religion, the question will always have to be decided by the court.  In doing so, the court may have to enquire whether the practice in question is religious in character and, if it is, can it be regarded as an integral and essential part of the religion? 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.”
  • ^**^{* (i) Durga Committee, Ajmer v. Syed Hussein Ali, (1962) SCR 353.}
  • ^{(ii) Tilkayat Shri Govindlalji Maharaj v, The State of Rajasthan, (1964) SCR 561,620,623.}

Sabarimala Case Pointed out – Apparent Conflict is on Role of the Court

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, on the ‘Role of the Court’.

• 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 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.

---

---

End Notes

---

The law handed down by the Supreme Court in these two rulings are divergent, mainly, in three material parts. They are:

1. Whether protection is limited to practices that are ESSENTIAL and INTEGRAL part of religion (as held in Durgah)?	Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice of religion’ protect (all) ‘Acts Done in pursuance of a religion (as held in Shirur Mutt)?
2. When it is necessary to make a pronouncement as to what constitutes the essential part of a RELIGION, can it be scrutinised by the COURT so as to eschew what are sprung from merely superstitious beliefs’ or ‘unessential accretions to religion’ (as held in Durgah)?	Is it to be ascertained with reference to the doctrines of that religion itself. If it is necessary to to make a pronouncement as to what RITES and CEREMONIES are essential to a DENOMINATION, is it to be left to be determined with reference to the decisions (and practices) of that denomination itself (as held in Shirur Mutt)?
3. Whether the Protection is limited to ESSENTIAL and INTEGRAL part of ‘RELIGION’ in a strict sense (as held in Durgah)?	Whether it Extends to Religious practices of Denomination/Section, ‘Organization’, ‘Sect, Sub-sect‘, etc. (as held in Shirur Mutt)? Whether freedom of religion is guaranteed to all practices, except that which run counter to public order, health and morality? A Religion or any section thereof hold the fundamental right to‘manage its own affairs’ (which no legislature can take away) and enjoy complete autonomy (so that no outside authority has any jurisdiction).

---

The findings of the Apex Court, in Shirur Mutt and Durgah Committee cases, on Article 25 and 26, are as follows:

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 to practices 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. COURT determines “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 AUTONOMY in 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.”

---

---

Read in this Cluster  (Click on the topic):

Book No, 1 – Civil Procedure Code

• Civil Rights and Jurisdiction of Civil Courts
• Res Judicata and Constructive Res Judicata
• Order II, Rule 2 CPC – Not to Vex Defendants Twice
• Pleadings Should be Specific; Why?
• PLEADINGS IN ELECTION MATTERS
• Law on Summons to Defendants and Witnesses
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Sec. 91 CPC and Suits Against Wrongful Acts
• Remedies Under Sec. 92 CPC
• Mandatory Injunction – Law and Principles
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Interrogatories: When Court Allows, When Rejects?
• Decree in OI R8 CPC-Suit & Eo-Nomine Parties
• Pecuniary & Subject-Matter Jurisdiction of Civil Courts
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Doctrine of Substantial Representation in a Suit by or against an Association
• Who are Necessary Parties, Proper Parties and Pro Forma Parties in Suits
• What is Partnership, in Law? How to Sue a Firm?
• ‘Legal Representatives’, Not ‘Legal Heirs’ to be Impleaded on Death of Plaintiff/Defendant
• Powers and Duties of Commissioners to Make Local Investigations, Under CPC

Power of attorney

• No Adjudication If Power of Attorney is Sufficiently Stamped
• Notary Attested Power-of-Attorney Sufficient for Registration
• Permission when a Power of Attorney Holder Files Suit

Title, ownership and Possession

• Title and Ownership in Indian Law
• Does ‘Abandonment’ Give rise to a Recognised Right in Indian Law?
• POSSESSION is a Substantive Right in Indian Law
• Adverse Possession: An Evolving Concept
• Adverse Possession: Burden to Plead Sabotaged
• When ‘Possession Follows Title’; ‘Title Follows Possession’?
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• Preemption is a Very Weak Right; For, Property Right is a Constitutional & Human Right
• Transfer of Property with Conditions & Contingent Interests
• INJUNCTION is a ‘Possessory Remedy’ in Indian Law
• Kesar Bai v. Genda Lal – Does Something Remain Untold?

Principles and Procedure

• Will – Probate and Letters of Administration
• Best Evidence Rule in Indian Law
• Declaration and Injunction
• Pleadings Should be Specific; Why?
• Does Alternate Remedy Bar Civil Suits and Writ Petitions?
• Void, Voidable, Ab Initio Void, and Sham Transactions
• Can Courts Award Interest on Equitable Grounds?
• Natural Justice – Not an Unruly Horse
• ‘Sound-mind’ and ‘Unsound-Mind’
• Can a Party to Suit Examine Opposite Party, as of Right?
• Forfeiture of Earnest Money and Reasonable Compensation
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Who has to fix Damages in Tort and Contract?
• Admission, Relevancy and Proof
• Relevancy, Admissibility and Proof of Documents
• Proof and Truth of Documents
• Production, Admissibility & Proof Of Documents
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Marking Documents Without Objection – Do Contents Proved
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Oral Evidence on Contents of Document, Irrelevant

Land Laws/ Transfer of Property Act

• Does ‘Pandaravaka Pattom’ in Kerala Denote Full-Ownership?
• Transfer of Property with Conditions & Contingent Interests
• Vested Remainder and Contingent Remainder
• Vested interest and Contingent Interest
• Ultimate Ownership of All Property Vests in State; It is an Incident of Sovereignty.
• Land Acquired Cannot be Returned – Even if it is Not Used for the Purpose Acquired
• ‘Mutation’ by Revenue Authorities & Survey will not Confer ‘Title’
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Relevant provisions of Kerala Land Reforms Act in a Nutshell
• Land Tenures, and History of Land Derivation, in Kerala
• Government is the OWNER of (Leasehold) Plantation Lands in Kerala.
• Law on SUCCESSION CERTIFICATE and LEGAL HEIRSHIP CERTIFICATE

Evidence Act – General

• Expert Evidence and Appreciation of Evidence
• How to Contradict a Witness under Sec. 145, Evidence Act
• Rules on Burden of proof and Adverse Inference
• Best Evidence Rule in Indian Law
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Significance of Scientific Evidence in Judicial Process
• Polygraphy, Narco Analysis and Brain Mapping Tests
• Sec. 65B
• Sections 65A & 65B, Evidence Act and Arjun Panditrao: in Nutshell
• Sec. 65B, Evidence Act: Arjun Paditrao Criticised.
• Sec. 65B Evidence Act Simplified
• ‘STATEMENTS’ alone can be proved by ‘CERTIFICATE’ u/s. 65B
• Sec. 65B,  Evidence Act: Certificate for Computer Output
• Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.
• Law on Documents
• Admission of Documents in Evidence on ‘Admission’
• Time Limit for Registration of Documents
• Registration of Documents Executed out of India
• Are RTI Documents Admissible in Evidence as a ‘Public Documents’?
• Oral Evidence on Contents of Document, Irrelevant
• Marking Documents Without Objection – Do Contents Stand Proved?
• Proof of Documents & Objections To Admissibility – How & When?
• Notary-Attested Documents: Presumption, Rebuttable
• Presumptions on Registered Documents & Collateral Purpose
• Notice to Produce Documents in Civil Cases
• Production of Documents: Order 11, Rule 14 & Rule 12
• Modes of Proof – Admission, Expert Evidence, Presumption etc.
• Presumptions on Documents and Truth of its Contents
• Proof and Truth of Documents
• Secondary Evidence of Documents & Objections to Admissibility – How & When?
• 30 Years Old Documents and Presumption of Truth of Contents, under Sec. 90 Evidence Act
• Unstamped & Unregistered Documents and Collateral Purpose
• Marking Documents Without Objection – Do Contents Proved
• Production, Admissibility & Proof Of Documents
• Substantive Documents, and Documents used for Refreshing Memory and Contradicting 
• Visual and Audio Evidence (Including Photographs, Cassettes, Tape-recordings, Films, CCTV Footage, CDs, e-mails, Chips, Hard-discs, Pen-drives)
• Relevancy, Admissibility and Proof of Documents
• No Adjudication Needed If Power of Attorney is Sufficiently Stamped
• Can an Unregistered Sale Agreement be Used for Specific Performance

Contract Act

• ‘Sound-mind’ and ‘Unsound-Mind’ in Indian Civil Laws
• Forfeiture of Earnest Money and Reasonable Compensation
• Who has to fix Damages in Tort and Contract?
• Can an Unregistered Sale Agreement be Used for Specific Performance

Easement

• What is Easement?
• Does Right of Easement Allow to ‘Enjoy’ After Making a Construction?
• What is “period ending within two years next before the institution of the suit”?
• Is the Basis of Every Easement, Theoretically, a Grant
• Extent of Easement (Width of Way) in Easement of Necessity, Quasi Easement and Implied Grant
• Can an Easement-Way be Altered by the Owner of the Land?
• Village Pathways and Right to Bury are not Easements.
• Custom & Customary Easements in Indian Law
• ‘Additional Burden Loses Lateral Support’ – Incorrect Proposition

Stamp Act

• Adjudication as to Proper Stamp under Stamp Act
• Unstamped & Unregistered Documents and Collateral Purpose

Will

• Interpretation of Inconsistent Clauses in a Will
• Will – Probate and Letters of Administration
• Executors of Will – Duties & their Removal

Divorce

• Validity of Foreign Divorce Decrees in India

Book No. 2: A Handbook on Constitutional Issues

• Judicial & Legislative Activism in India: Principles and Instances
• Can Legislature Overpower Court Decisions by an Enactment?
• Separation of Powers: Who Wins the Race – Legislature or Judiciary?
• Kesavananda Bharati Case: Never Ending Controversy
• Mullaperiyar Dam: Disputes and Adjudication of Legal Issues
• Article 370: Is There Little Chance for Supreme Court Interference
• Maratha Backward Community Reservation: SC Fixed Limit at 50%.
• Polygraphy, Narco Analysis and Brain Mapping Tests
• CAA Challenge: Divergent Views
• FERA, 1973 And Transfer of Immovable Property by a Foreigner
• Doctrine of ‘Right to be Forgotten’ in Indian Law
• Religious issues
• Secularism and Art. 25 & 26 of the Indian Constitution
• Secularism & Freedom of Religion in Indian Panorama
• ‘Ban on Muslim Women to Enter Mosques, Unconstitutional’
• No Reservation to Muslim and Christian SCs/STs (Dalits) Why?
• Parsi Women – Excommunication for Marrying Outside
• Knanaya Endogamy & Constitution of India
• Sabarimala Review Petitions & Reference to 9-Judge Bench
• SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• Ayodhya Disputes: M. Siddiq case –Pragmatic Verdict

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

• General
  • General Features
  • Bye Laws Fundamental
  • Effect of Registration of Societies and Incorporation of Clubs
  • Societies and Branches
• Property & Trust
  • Vesting of Property in Societies and Clubs
  • Incidents of Trust in Clubs and Societies
• Juristic Personality
  • Juristic Personality of Societies and Clubs
  • Legal Personality of Trustees and Office Bearers
• Suits
  • Suits and Criminal Complaints By and Against a Company
  • Suits By or Against Societies, Clubs
  • Court’s Jurisdiction to Interfere in the Internal Affairs
  • How to Sue Societies, Clubs and Companies
• Amendment and Dissolution
  • Amendment of Bye laws of Societies and Clubs
  • Dissolution of Societies and Clubs
• Rights and Management
  • Rights & Liabilities of Members of Clubs and Societies
  • Individual Membership Rights in Societies & Clubs
  • Management – Powers of General Body and Governing Body
  • Expulsion of Members & Removal of Office-Bearers
  • Law on Meetings: An Overview
• Election
  • Election & Challenge in Societies and Clubs
  • Court Interference in Election Process
• State Actions
  • State-Interference in Affairs of Societies & Clubs

Book No. 4: Common Law of TRUSTS in India

• General Principles
  • What is Trust in Law?
  • Classification of Trusts
  • Public & Private Trusts in India.
  • Trust is ‘An Obligation’; Not a Legal Entity
  • Indian Law Does Not Accept Salmond, as to Dual Ownership
• Dedication and Vesting
  • Dedication of Property in Public Trusts
  • Vesting of Property in Trusts
  • Incidents of Trust in Clubs and Societies
• Trustees and Management
  • Trustees and Administration of Public Trusts
  • Alienation of Public Trust Property
  • Extinction, Discharge, Revocation, etc. of Public Trusts
• Breach of Trust
  • Breach of Trust and Removal of Trustees
• Suits by or against Trusts
  • Suits By or Against Trusts and Trustees
  • Remedies Under Sec. 92 CPC
• Law on Hindu Religious Endowments
  • Philosophy of Idol Worship
  • Is an Idol a Perpetual Minor?
  • Hindu Temples & Law of Trusts
  • Public & Private Trusts
  • Law of Mutts and Other Hindu Endowments
  • Shebaits & Mahants and Law of Trustees
• Temples, Gurudwaras, Churches and Mosques – General
  • Legal Personality of Temples, Gurudwaras, Churches and Mosques
• Constitutional Principles
  • Secularism and Art. 25 & 26 of the Indian Constitution
  • Secularism & Freedom of Religion in Indian Panorama
  • ‘Muslim Women: Ban to Enter Mosques, Is it Unconstitutional
  • Parsi Women Excommunication, Unconstitutional.
  • Knanaya Endogamy & Constitution of India
  • State & Court – Protectors of All Charities
• Ayodhya and Sabarimala Disputes
  • Ayodhya Disputes: M. Siddiq case – Pragmatic Verdict
  • Sabarimala Review Petitions & Reference to 9-Judge Bench
  • SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case
• General
  • Public Trusts and (State) Endowments/Trusts Acts
  • Public Trusts and Indian Trusts Act – An Overview
  • Business by Charitable Trusts & Institutions