Saji Koduvath Associates

When can (i) a ‘Victim’ File an Appeal in a Criminal Case and (ii) an ‘Aggrieved Person’ File an Appeal in a Civil Case?

Saji Koduvath, Advocate, Kottayam.

Part I –Appeal by a Victim in a Criminal Case

Relevant provisions relating to appeals in Criminal Cases are Sections 2(wa), 372, 374, and 378 of the Criminal Procedure Code, 1973.

Section 2(wa):

‘2. Definitions.— In this Code, unless the context otherwise requires,—
… (wa) “victim” means a person who has suffered any loss or injury caused by reason of the act or omission for which the accused person has been charged and the expression “victim” includes his or her guardian or legal heir …

Section 372. No appeal to lie unless otherwise provided—

No appeal shall lie from any judgment or order of a Criminal Court except as provided for by this Code or by any other law for the time being in force:
Provided that the victim shall have a right to prefer an appeal against any order passed by the Court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation, and such appeal shall lie to the Court to which an appeal ordinarily lies against the order of conviction of such Court.

Section 374. Appeals from convictions—

(1) Any person convicted on a trial held by a High Court in its extraordinary original criminal jurisdiction may appeal to the Supreme Court.
(2) Any person convicted on a trial held by a Sessions Judge or an Additional Sessions Judge or on a trial held by any other Court in which a sentence of imprisonment for more than seven years has been passed against him or against any other person convicted at the same trial, may appeal to the High Court.
(3) Save as otherwise provided in sub-section (2), any person—
- (a) convicted on a trial held by a Metropolitan Magistrate or Assistant Sessions Judge or Magistrate of the first class, or of the second class, or(b) sentenced under Section 325, or
- (c) in respect of whom an order has been made or a sentence has been passed under Section 360 by any Magistrate, may appeal to the Court of Session.
(4) When an appeal has been filed against a sentence passed under Section 376, Section 376-A, Section 376-AB, Section 376-B, Section 376-C, Section 376-D, Section 376- DA, Section 376-DB or Section 376-E of the Indian Penal Code (45 of 1860), the appeal shall be disposed of within a period of six months from the date of filing of such appeal. xxx

Section 378. Appeal in case of acquittal—

Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),—
- (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Session from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
- (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.
(2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may, subject to the provisions of sub-section (3), also direct the Public Prosecutor to present an appeal—
- (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence;
- (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court not being an order under clause (a) or an order of acquittal passed by the Court of Session in revision.
(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.
(4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court.
(5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal.
(6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).’

Asian Paints Limited v. Ram Babu, on 14 July 2025

The recent decision of the Supreme Court of India, Asian Paints Limited v. Ram Babu, 2025 INSC 828 (Prashant Kumar Mishra, Ahsanuddin Amanullah, JJ.) considered the relevant provisions relating to appeals in Criminal cases and delivered a noticeable decision. It affirmed the following three earlier decisions:

Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321,
Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752 (3-Judge Bench, by a majority),
Mahabir v State of Haryana, 2025 SCC OnLine SC 184.

Findings in Asian Paints Limited v. Ram Babu, 2025 INSC 828, in Nutshell

The Apex Court held in Asian Paints Limited v. Ram Babu, 2025 INSC 828, in a nutshell, that it is quite clear, based on the plain language of the law –

A victim, as defined in Section 2(wa) CrPC, would be entitled to file an appeal before the Court, to which an appeal ordinarily lies against any order acquitting the accused or convicting for a lesser offence or imposing inadequate compensation.

Impugned View of the High Court (Set Aside by the Apex Court)

The impugned view of the High Court (set aside by the Apex Court) was that the ‘complainant’ who actually filed the written complaint alone can maintain an appeal as a ‘victim’, and that the ‘complainant’ in a case instituted upon a police report could file appeal only after seeking the leave of the High Court invoking the provisions of Section 378(3) of the CrPC.

The High Court had held as under:

‘This is a case instituted upon a police report and only in cases instituted upon private complaint, leave to appeal under Section 378(4) of Cr.P.C. is maintainable. Therefore, leave to appeal against order of acquittal in appeal is also not maintainable in the instant case.’

Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court quoted and followed its earlier decision in Jagjeet Singh v Ashish Mishra alias Monu, (2022) 9 SCC 321. It reads as under:

‘23. A “victim” within the meaning of CrPC cannot be asked to await the commencement of trial for asserting his/her right to participate in the proceedings. He/She has a legally vested right to he heard at every step post the occurrence of an offence. Such a “victim” has unbridled participatory rights from the stage of investigation till the culmination of the proceedings in an appeal or revision. We may hasten to clarify that “victim” and “complainant/informant” are two distinct connotations in criminal jurisprudence. It is not always necessary that the complainant/informant is also a “victim”, for even a stranger to the act of crime can be an “informant”, and similarly, a “victim” need not be the complainant or informant of a felony.’

Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752,

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court also followed Mallikarjun Kodagali v State of Karnataka, (2019) 2 SCC 752. It has been held by a 3-Judge Bench, by a majority of 2:1, that a victim, as defined in Section 2(wa) of the CrPC, would be entitled to file an appeal before the Court to which an appeal ordinarily lies against the order of conviction. It is held as under:

“73. In our opinion, the proviso to Section 372 CrPC must also be given a meaning that is realistic, liberal, progressive and beneficial to the victim of an offence. There is a historical reason for this, beginning with the Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power, adopted by the General Assembly of the United Nations in the 96th Plenary Session on 29-11-1985. The Declaration is sometimes referred to as the Magna Carta of the rights of victims. One of the significant declarations made was in relation to access to justice for the victim of an offence through the justice delivery mechanisms, both formal and informal. In the Declaration it was stated as follows:
“4. Victims should be treated with compassion and respect for their dignity. They are entitled to access to the mechanisms of justice and to prompt redress, as provided for by national legislation, for the harm that they have suffered.
5. Judicial and administrative mechanisms should be established and strengthened where necessary to enable victims to obtain redress through formal or informal procedures that are expeditious, fair, inexpensive and accessible. Victims should be informed of their rights in seeking redress through such mechanisms.
6.The responsiveness of judicial and administrative processes to the needs of victims should be facilitated by:
Informing victims of their role and the scope, timing and progress of the proceedings and of the disposition of their cases, especially where serious crimes are involved and where they have requested such information;
Allowing the views and concerns of victims to be presented and considered at appropriate stages of the proceedings where their personal interests are affected, without prejudice to the accused and consistent with the relevant national criminal justice system;
Providing proper assistance to victims throughout the legal process;
Taking measures to minimise inconvenience to victims, protect their privacy, when necessary, and ensure their safety, as well as that of their families and witnesses on their behalf, from intimidation and retaliation;
Avoiding unnecessary delay in the disposition of cases and the execution of orders or decrees granting awards to victims.
7. Informal mechanisms for the resolution of disputes, including mediation, arbitration and customary justice or indigenous practices, should be utilised, where appropriate, to facilitate conciliation and redress for victims.”
76. As far as the question of the grant of special leave is concerned, once again, we need not be overwhelmed by submissions made at the Bar. The language of the proviso to Section 372 CrPC is quite clear, particularly when it is contrasted with the language of Section 378(4) CrPC. The text of this provision is quite clear and it is confined to an order of acquittal passed in a case instituted upon a complaint. The word “complaint” has been defined in Section 2(d) CrPC and refers to any allegation made orally or in writing to a Magistrate. This has nothing to do with the lodging or the registration of an FIR, and therefore it is not at all necessary to consider the effect of a victim being the complainant as far as the proviso to Section 372 CrPC is concerned.”

Mahabir v State of Haryana, 2025 SCC OnLine SC 184

In Asian Paints Limited v. Ram Babu, 2025 INSC 828, the Supreme Court quoted the following from Mahabir v State of Haryana, 2025 SCC OnLine SC 184, where it is observed as under:

“53. Therefore, by the aforesaid provision a right has been created in favour of the victim, which was not existing earlier in the Code, i.e., that a victim shall have a right to prefer an appeal against any order passed by the court acquitting the accused or convicting for a lesser offence or imposing inadequate compensation. The plain reading of the statement of objects and reasons for introducing the proviso to Section 372 CrPC makes it clear that it wanted to confer certain rights on the victims. It has been noted therein that the victims are the worst sufferers in a crime, and they don’t have much role in the court proceedings. They need to be given certain “rights” and compensation, so that there is no distortion of the criminal justice system. This, by itself, is clear that the object of adding this proviso is to create a right in favour of the victim to prefer an appeal as a matter of right. It not only extends to challenge the order of acquittal, but such appeal can also be filed by the victim if the accused is convicted for a lessor offence or if the inadequate compensation has been imposed.
54. Thus, it is clear as per the golden rule of interpretation, that the ‘proviso’ is a substantive enactment, and is not merely excepting something out of or qualifying what was excepting or goes before. Therefore, by adding the ‘proviso’ in Section 372 of CrPC by this amendment, a right has been created in favour of the victim.”

Part II –Appeal by Aggrieved-Person in Civil Cases

CPC: Provisions on Grant of Leave To Appeal

The following are the relevant provisions, as regards appeal, in the Civil Procedure Code

Section 96 – Appeal from original decree.
Section 97 – Appeal from final decree where no appeal from preliminary decree
Section 98 – Decision where appeal heard by two or more Judges
Section 99 – No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction
Section 99A – No order under section 47 to be refused or modified unless decision of the case is prejudicially affected
Section 100 – Second appeal
Section 100A – No further appeal in certain cases
Section 101 – Second appeal on no other grounds
Section 102 – No second appeal in certain suits
Section 103 – Power of High Court to determine issues of fact
Section 104 – Orders from which appeal lies
Section 105 – Other orders
Section 106 – What Courts to hear appeals
Section 107 – Powers of Appellate Court
Section 108 – Procedure in appeals from appellate decrees and orders
Section 109 – When appeals lie to the Supreme Court

Appeal From Any Original Decree And From Second Appeal

Sections 96 and 100 respectively of the Code of Civil Procedure, 1908 provide for preferring an appeal from any original decree or from a decree in appeal, respectively. They read as under:

Section 96 – Appeal from original decree:

(1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.
(2) An appeal may lie from an original decree passed ex parte.
(3) No appeal shall lie from a decree passed by the Court with the consent of parties.
(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognisable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.

Section 100 – Second appeal:

Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(1). An appeal may lie under this section from an appellate decree passed ex parte.
(2) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(3) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(4) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question;
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question.

H. Anjanappa v. A. Prabhakar, January 29, 2025
The Apex Court in H. Anjanappa v. A. Prabhakar, January 29, 2025 (J.B. Pardiwala, R. Mahadevan, JJ.), pointed out that the aforesaid provisions do not enumerate the categories of persons who can file an appeal. The Court proceeded into the issue analysing the following two well-founded legal propositions –

A stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the court that he falls within the category of aggrieved persons.
It is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the appellate court.

A Prejudicially Affected Person Can File Appeal

Supreme Court of India, in H. Anjanappa v. A. Prabhakar held –

“Where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the court”.

It is also pointed out that the injury complained of must not be “remote or indirect”.

The Apex Court pointed out two interesting propositions in this regard:

1. The Applicant must be “bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings”.
2. The applicant must be “a person who might properly have been a party”.

The Apex Court (H. Anjanappa v. A. Prabhakar) Concluded on ‘grant of leave to appeal’ in para 43 as under:

“43. The principles governing the grant of leave to appeal may be summarised as under:
i. Sections 96 and 100 of the CPC respectively provide for preferring an appeal from an original decree or decree in appeal respectively;
ii. The said provisions do not enumerate the categories of persons who can file an appeal;
iii. However, it a settled legal proposition that a stranger cannot be permitted to file an appeal in any proceedings unless he satisfies the court that he falls within the category of an aggrieved person;
iv. It is only where a judgment and decree prejudicially affects a person who is not a party to the proceedings, he can prefer an appeal with the leave of the court;
v. A person aggrieved, to file an appeal, must be one whose right is affected by reason of the judgment and decree sought to be impugned;
vi. The expression “person aggrieved” does not include a person who suffers from a psychological or an imaginary injury;
vii. It would be improper to grant leave to appeal to every person who may in some remote or indirect way be prejudicially affected by a decree or judgment; and
viii. Ordinarily leave to appeal should be granted to persons who, though not parties to the proceedings, would be bound by the decree or judgment in that proceeding and who would be precluded from attacking its correctness in other proceedings.

No Definition of ‘Appeal‘

The five-Judge Bench of the Privy Council in Nagendra Nath Dey v. Suresh Chandra Dey, AIR 1932 PC 165, speaking through Sir Dinshaw Mulla observed that there is no definition of appeal in the CPC, but there is no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision of a subordinate Court, is an appeal within the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent.

Applicant must have been aggrieved by an order or causes him some prejudice

A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him

In Adi Pherozshah Gandhi v. H.M. Seervai, AIR 1971 SC 385, the Constitution Bench of the Apex Court held as under:

“46. Generally speaking, a person can be said to be aggrieved by an order which is to his detriment, pecuniary or otherwise or causes him some prejudice in some form or other. A person who is not a party to a litigation has no right to appeal merely because the judgment or order contains some adverse remarks against him. But it has been held in a number of cases that a person who is not a party to suit may prefer an appeal with the leave of the appellate court and such leave would not be refused where the judgment would be binding on him under Explanation 6 to section 11 of the Code of Civil Procedure.”

Leave Should Be Granted If Applicant Would Be Prejudicially Affected

In Smt. Jatan Kumar Golcha vs. Golcha Properties Private Limited, (1970) 3 SCC 573 it was held as under:

“It is well settled that a person who is not a party to the suit may prefer an appeal with the leave of the Appellate Court and such leave should be granted if he would be prejudicially affected by the Judgment.”

Applicant must Be bound by the order or is aggrieved or is prejudicially affected

In State of Punjab v. Amar Singh, (1974) 2 SCC 70, while dealing with the maintainability of appeal by a person who is not party to a suit, has observed thus:

“Firstly, there is a catena of authorities which, following the dictum of Lindley, L.J., in re Securities Insurance Co., [(1894) 2 Ch 410] have laid down the rule that a person who is not a party to a decree or order may with the leave of the Court, prefer an appeal from such decree or order if he is either bound by the order or is aggrieved by it or is prejudicially affected by it.”

Person Aggrieved Must Be One Whose Right Is Affected By The Judgment

In Baldev Singh v. Surinder Mohan Sharma, (2003) 1 SCC 34, it is held that an appeal under Section 96 of the CPC would be maintainable only at the instance of a person aggrieved by and dissatisfied with the judgment and decree. While dealing with the concept of person aggrieved, it was observed in paragraph 15 as under:

“A person aggrieved to file an appeal must be one whose right is affected by reason of the judgment and decree sought to be impugned.”

Consider Nature And Extent Of Injuries Suffered

In A. Subash Babu v. State of A.P., (2011) 7 SCC 616, it is held as under:

“The expression ‘aggrieved person’ denotes an elastic and an elusive concept. It cannot be confined that the bounds of a rigid, exact and comprehensive definition. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the complainant’s interest and the nature and extent of the prejudice or injuries suffered by him.”

Person aggrieved must have jeopardized; Not an imaginary injury

Referring Shanti Kumar R. Canji v. Home Insurance Co. of New York, (1974) 2 SCC 387 and State of Rajasthan v. Union of India, (1977) 3 SCC 592, it is observed that the expression ‘person aggrieved’ does not include a person who suffers from a psychological or an imaginary injury; but, it must, therefore, necessarily be one, whose right or interest has been adversely affected or jeopardized.

Bar Under Section 116, Evidence Act: Does it Extend to Challenge – Landlord Lost Title After ‘Commencement of the Tenancy’

Taken from: Recovery of Possession Based on Title and on Earlier Possession

Jojy George Koduvath.

Introduction

Section 116 of the Evidence Act

Section 116 of the Indian Evidence Act reads as under:

“Estoppel of tenant; and of licensee of person in possession. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be heard to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property.”

In Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335: 1976 4 SCC 838, it is held as under:

“The tenant in such a suit is estopped from questioning the title of the landlord under section 116 of the Evidence Act. The tenant cannot deny that the landlord had title to the premises at the commencement of the tenancy. Under the general law, in a suit between landlord and tenant, the question of title to the leased property is irrelevant”.

The principle behind the proposition, which asserts that the owner/landlord has the right to recover the property based on his title if the defendant-tenant raises claim of title, is founded upon the notion that a tenant is precluded from disputing the title of the landlord or owner, as laid down in Section 116 of the Evidence Act.

Bar u/S. 116: Not Extend To Challenge – Landlord Lost Title After ‘Commencement Of The Tenancy’

D. Satyanarayana v. P. Jagadish (A.P. Sen, B.C. Ray, JJ.), AIR 1987 SC2192, 1987 (4) SCC 424, is a leading decision on this matter.

(However, ‘D. Satyanarayana v. P. Jagadish’ is said to be an exception to the general rule. See: Masonic Club v. Jamna Lodge, 2014-207 DLT 62; 2014-140 DRJ 396; L. Rs. of Arjun Lal v. L. Rs. of Kundan Lal, 2013 AIR(CC) 2193; 201260 RCR(Civ) 769 (Raj); M. L. Dawar v. M. L. Seth, 2011-125 DRJ 564 (Del); Manoharlal v. Baijnath Jalan, 2005-4 Jhk CR 58; 2005-3 Jhk LJR 474.)

The following are the facts (of D. Satyanarayana v. P. Jagadish) in a nutshell.

The owner had leased the demised premises to a tenant. The (original) tenant sub-leased it to the respondent. The head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee. The sub-tenant atoned in favour of the original lessor and started paying monthly rent directly to the superior landlord (owner).

In this decision, it is held that the estoppel or bar under Sec. 116 of the Evidence Act operates only –

(i) during the continuance of the tenancy,
(ii) to the challenge of the title of the landlord at the beginning of the tenancy.

In this decision, it is held as under:

“3. …Section 116 of the Evidence Act provides that no tenant of immovable property shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. Possession and permission being established, estoppel would bind the tenant during the continuance of the tenancy and until he surrenders his possession. The words ‘during the continuance of the tenancy’ have been interpreted to mean during the continuance of the possession that was received under the tenancy in question, and the Courts have repeatedly laid down that estoppel operates even after the termination of the tenancy so that a tenant who had been let into possession, however, defective it may be, so long as he has not openly surrendered possession, cannot dispute the title of the landlord at the commencement of the tenancy…”
“4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord’s title, however defective it may be, so long as he has not openly restored possession by surrender to his landlord…”

It was further held that since (or, after) the date of tenancy, the title of landlord came to an end; for, the head-lessor (owner) served a notice of eviction on the sub-tenant, alleging that there was unlawful subletting by the lessee, and the sub-tenant atoned in favour of the original lessor. It was pointed out –

A tenant is not estopped from contending that the title of the lessor has “since come to an end” (or the landlord lost title after the commencement of the tenancy).

The Apex Court (in D. Satyanarayana v. P. Jagadish) quoted from Mangat Ram & Anr. v. Sardar Meharban Singh, AIR 1987 SC 1656, (1987) 4 SCC 319, (A.P. Sen, V. Balakrishnan Eradi, JJ.) saying:

“Quite recently, this Court in Mangat Ram v. Sardar Meharban Singh, [1987] 1 Scale 964, to which one of us was a party, observed:
“The estoppel contemplated by s. 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor has since come to an end.”

See also: Fida Hussain v. Fazal Hussain & Ors., AIR (1963) MP 232,
K.S.M. Guruswamy Nadar v. N.G. Ranganathan, AIR (1954) Mad. 402,
S.A.A. Annamalai Chettiar v. Molaiyan & Ors., AIR (1970) Mad. 396 and
Chidambara Vinayagar Devasthanam v. Duraiswamy, ILR (1967) 1 Mad. 624.”

D. Satyanarayanana v. P. Jagdish Distinguished

In E. Parashuraman v. V. Doraiswamy, AIR 2006 SC 376; 2006-1 SCC 658, it is stated as under:

“18. We have carefully examined the decisions of this Court in D. Satyanarayanana vs. P. Jagdish (supra) and A.V.G.P. Chettiar and Sons and others vs. T. Palanisamy Gounder : (2002) 5 SCC 337 and we are of the view that the principles laid down therein are not applicable to the facts of this case. The exception to the rule of estoppel embodied under Section 116 of the Evidence Act arises if it is shown that since the date of the tenancy of title of the landlord came to an end, or that he was evicted by a paramount title holder, or that even though there was no actual eviction or dispossession from the property, under a threat of eviction, the tenant had attorned to the paramount title holder and a new jural relationship of landlord and tenant had come into existence between them. Such a situation has not arisen in the instant case. In this case there is no finding that the title of the landlord has come to an end. The Corporation has not established its title in any proceeding in accordance with law. In these circumstances the exception to the rule of estoppel embodied in Section 116 of the Evidence Act cannot be pleaded by the appellants.”

Sec. 116 ceases to have applicability once the tenant has been evicted

In Vashu Deo v. Balkishan, 2002-1 SCR 171, it is held that Sec. 116 ceases to have applicability once the tenant has been evicted. (It stands incongruent to the view in D. Satyanarayana v. P. Jagadish where it was held – estoppel operates even after the termination.) It is said as under:

“6. …Section 116 of the Evidence Act, which codifies the common law rule of estoppel between landlord and tenant, provides that no tenant of immovable property or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had at the beginning of the tenancy, a title to such immovable property. The rule of estoppel so enacted has three main features :
- .(i) the tenant is estopped from disputing the title of his landlord over the tenancy premises at the beginning of the tenancy;
- (ii) such estoppel continues to operate so long as the tenancy continues and unless the tenant has surrendered possession to the landlord; and
- (iii) Section 116 of the Evidence Act is not the whole law of estoppel between the landlord and tenant.
The principles emerging from Section 116 can be extended in their application and also suitably adapted to suit the requirement of an individual case… the rule of estoppel ceases to have applicability once the tenant has been evicted. His obligation to restore possession to his landlord is fulfilled either by actually fulfilling the obligation or by proving his landlord’s title having been extinguished by a paramount titleholder…”

Forfeiture of tenancy under Clause (g) of Section 111 of the TP Act

In Sheela v. Firm Prahlad Rai Prem Prakash (Ruma Pal, R.C. Lahoti, JJ.), AIR 2002 SC 1264; 2002-3 SCC 375, it is held as under:

“In our opinion, the denial or disclaimer to be relevant for the purpose of Section 12(1)(c) should take colour from Section 116 of the Evidence Act and Section 111(g) of the Transfer of Property Act. Section 116 of the Evidence Act embodies therein a rule of estoppel. No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property. This estoppel, so long as it binds the tenant, excludes the tenant from raising a plea disputing the title of his landlord at the commencement of the tenancy. It flows as a corollary therefrom that the proof of landlord-tenant relationship tantamounts during the continuance of tenancy to proof of ownership of landlord over the tenancy premises at the beginning of the tenancy so far as the tenant is concerned. It is significant to note that on the phraseology of Section 116 of the Evidence Act the rule of estoppel applies so long as the tenancy is not terminated and the rule estops the tenant from laying challenge to the ownership of the landlord at the commencement of the tenancy. But the rule of estoppel as incorporated in Section 116 is not exhaustive and it may be extended or suitably modified in its application to other situations as well, retaining the basic feature of the rule.
“Clause (g) of Section 111 of the Transfer of Property Act, insofar as relevant for our purpose, provides that a lease of immovable property determines by forfeiture in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself. This provision contemplates two fact – situations which entail the lessee having renounced his character as such and they are: (i) when the lessee sets up a title in a third person, or (ii) when he claims title in himself.
“In either case, the tenant has disputed and denied the title of his landlord because a title in third person or title in himself cannot co-exist with the title in the landlord.
13. The law as to tenancy being determined by forfeiture by denial of the lessor s title or disclaimer of the tenancy has been adopted in India from the Law of England where it originated as a principle in consonance with Justice, equity and good conscience. On enactment of the Transfer of Property Act, 1882, the same was incorporated into clause (g) of Section 111. So just is the rule that it has been held applicable even in the areas where the Transfer of Property Act does not apply (See – Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr. – AIR 1965 SC 1923). The principle of determination of tenancy by forfeiture consequent upon denial of the lessor s title may not be applicable where rent control legislation intervenes and such legislation while extending protection to tenants from eviction does not recognize such denial or disclaimer as a ground for termination of tenancy and eviction of tenant. However, in various rent control legislations such a ground is recognized and incorporated as a ground for eviction of tenant either expressly or impliedly by bringing it within the net of an act injurious to the interest of the landlord on account of its mischievous content to prejudice adversely and substantially the interest of the landlord.
“14. Denial of landlord’s title or disclaimer of tenancy, is it an act injurious to interest of landlord? How does this rule operate and what makes it offensive Evans & Smith state in the Law of Landlord and Tenant (Fourth Edition, 1993, at p.89) that it is an implied condition of every lease, fixed-term or periodic and formal or informal, that the tenant is not expressly or deny the landlord s title or prejudice it by any acts which are inconsistent with the existence of a tenancy. Disclaimer of the landlord’s title is analogous to repudiation of a contract. The rule is of feudal origin; the courts are not anxious to extend it, and so any breach of this condition must be clear and unambiguous. Hill & Redman in Law of Landlord and Tenant (Seventeenth Edition, para 382, at page 445-446) dealing with “Acts which prejudice lessor s title” state that there is implied in every lease a condition that the lessee shall not do anything that may prejudice the title of the lessor; and that if this is done the lessor may re-enter for breach of this implied condition. Thus, it is a cause of forfeiture if the lessee denies the title of the lessor by alleging that the title of the landlord is in himself or another; or if he assists a stranger to set up an adverse title or delivers the premises to him in order to enable him to set up a title. It is a question of fact, however, what intention underlies the words or the actions of a tenant, whether in fact he is definitely asserting a title adverse to the landlord or, as the case may be, intending to enable someone else to set up such a title. Thus, it is not sufficient that the lessee does not at once acknowledge the title of the landlord and a general traverse in the defence to an action for possession does no more than put the landlord to proof and does not assert that the title is in another. The essential characteristic of disclaimer by tenant as stated in Foa s General Law of Landlord and Tenant (Eight Edition, para 934, at p.589) is that it must amount to a renunciation by the tenant of his character of tenant, either by setting up a title in another, or by claiming title in himself. A mere renunciation of tenancy without more, though it may operate as a surrender, cannot amount to a disclaimer. The denial, though it need not be express and can be implied, must nevertheless be a clear denial and it must be clearly proved.”

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Does Filing a Suit Amount to Notice of Termination of Contract

Saji Koduvath, Advocate, Kottayam.

Introduction

Filing a suit may amount to notice of termination of a contract if:

The contract or governing law does not mandate notice.
The pleadings clearly declare that the contract is terminated; and
The defendant acts upon or acknowledges that intention, for example, by stopping performance, ceasing payment (such as rent or invoices), sending an email confirming cessation of services, or making admissions in pleadings.

In such cases, the filing of the suit may be treated as constructive notice of termination. If the defendant accepts and acts upon the termination, they may be estopped from later denying its validity.

In M/s Nopany Investiments (P) Ltd. Santokh Singh (HUF), AIR 2008 S C 673, 2008 (2) SCC 728, has laid down as under:-

“In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. This view has also been expressed in the decision of this Court in V. Dhanappal Chettiar v. Yesodai Ammal, 1979(2) RCR (Rent) 352; [AIR 1979 SC 1745]”

Hash Value Certificate – Mandatory or Directory

Saji Koduvath, Advocate, Kottayam.

Introduction

This article examines whether the inclusion of a Hash Value Certificate in the Schedule to Section 63 of the Bharatiya Sakshya Adhiniyam, 2023, is mandatory or merely directory.

Section 63(4)(c), BSA

Section 63(4)(c), BSA reads as under:

“(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.”

A question may arise –

Because the term “hash value” is not explicitly used the main body of Section 63(4)(c) BSA, can it be argued – Hash Value Certificate is not mandatory but directory (or merely illustrative of the best practices)?

An argument is possible (“hash value” certificate is not mandatory) for two matters –

1. The requirement in the Certificate stated in Section 63(4)(c) is laid down in the sub-section (2) of Sec. 63. The “Part A” Certificate in the schedule contains all things in sub-section (2) of Sec. 63. So the “Part B” Hash Value Certificate is not mandatory as per the “Section”.
2. The words “sufficient for a matter to be” in the sub-section make it clear – the ‘verbatim adherence’ to the certificate format is not mandatory;*^.* no doubt, the substance or contents thereof (particularly, the phraseology – “best of the knowledge and belief”) must have been placed in some (other) form. The particulars in the Certificate being the matters enumerated in the sub-section (2) of Sec 63 (and nothing is stated as regards Hash Value), the ‘Part B’ Hash Value Certificate cannot be a mandatory one.
- *^.*Note:
- 1. See the difference between (i) reading Sec. 63(4)(c) without the words – sufficient for a matter to be and (ii) reading with these words. Relevant portion of Sec. 63(4)(c) is given below:
  - “(c) ….. for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.”
- 2. The beginning portion of Sec. 63(4)(c) emphasises that it pertains to the matters enumerated in sub-section(2) alone, and not to hash-value. Sec. 63(4)(c) begins as under:
  - “(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate…”

Possible Counter Arguments

First: The “form A” itself requires Hash Value Certificate.
Second: Section 63(4)(c) says, “a certificate specified in the Schedule”. The phrase “specified in the Schedule” explicitly ties the main section to the Schedule and makes it mandatory.
Third: The Schedule provides a single, Certificate, divided into two parts – “Part A and “Part B”. It is not presented as two separate certificates, one mandatory and one optional.
Fourth: Legislative Intent (i.e., for ensuring the digital integrity of electronic records) reflects the mandatory nature.

Conclusion

The Hash Value Certificate is accompanied by several potential ambiguities. To dispel these uncertainties, a legislative amendment or a definitive ruling by an authoritative court that takes into account all pertinent arguments in this matter is imperative.

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End Notes:

Section 63, Bhartiya Sakshya Adhiniyam

(Changes introduced in the New Adhiniyam – from the Evidence Act – are emphasised.)

63. Admissibility of electronic records –
(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information-creation or providing information—processing and storage; or
(e) through an intermediary
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

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Sakshya Adhiniyam Mandates Hashing the Original; Established Jurisprudence Requires Hashing the Copy Also.

Saji Koduvath, Advocate, Kottayam

Abstract

1. Sec. 63 of the BSA mandates the hash certificate for the original electronic record alone.
- However, to fulfill the intended purpose, the HASH value certificate for the copy (computer output) must also be provided.
2. Sec. 63(4)(c) of the BSA does not specifically mandate that hashing must be done at the time of copying.
- But the judicial precedents require recording the hash values at the time of ‘copying’.

Part I

Established Jurisprudence Varies from the Enacted Law

HASH Certificate Under Sec. 63 (BSA)

The (earlier) Indian Evidence Act, 1872, Sec.  65B mandated only a simple certificate, as provided under Sec. 65B(4), when ‘computer output’ (copy) was produced before a court. But, the new Bharatiya Sakshya Adhiniyam,  2023, requires, in Sec.  63(4), the HASH value certificate, also.

Also Read: Sec. 65B (Electronic Records) and Bhartiya Sakshya Adhiniyam, 2023

Hash Value Certificate – Mandatory or Directory

Section 63, Bhartiya Sakshya Adhiniyam

Section 63, Bhartiya Sakshya Act speaks as to copy (computer output) as under:

63. Admissibility of electronic records– (1) “… any information contained in an electronic record which is printed on paper…. or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied …..”

Section 63(4)(c) of the Act reads as under:

“(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.“

HASH Value Certificate

The Certificate required in Sec. 63(4)(c) of the Sakshya Adhiniyam (BSA) must be “in the form specified in the Schedule”. It is laid down in the schedule (not expressly stated in the body of the section-text) that this certificate (HASH value certificate) is needed in addition to the Certificate that is required in sub-section (4) as regards the matters enumerated in sub-section (4).

HASH Value Certificate: Form in the Schedule

The Form in the Schedule directs to state the following:

“I state that the HASH value/s of the electronic/digital record/s is …… ……… …… , obtained through the following algorithm –
SHA1:
SHA256:
MD5:
Other …….. …….. …….. (Legally acceptable standard)
(Hash report to be enclosed with the certificate)”

What is (Literally) required is the Certificate concerning the Original

From the above form, it is evident that what is required is a certificate as regards the original ‘electronic/digital record(s)’, not any copy thereof.

Besides clause (c) of sub-section (4), clauses (a) and (b) also refer to the ‘original’ and not to a ‘copy’. Clauses (a) and (b) read as under:

“(a) identifying the containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3).”

The expression “identifying the electronic record containing the statement” in clause (a) of sub-section (4) further emphasises that the “statement” should pertain to that found in the ‘computer,’ indicating the statement within the physical device itself.

This interpretation aligns with the evidentiary logic that authentication must relate or refer to the source.

Moreover, the words “where it is desired to give a statement in evidence” in Sec. 63(4) can be understood to refer to the “statement” as it exists in the electronic form in the (original) computer or in its digital storage (rather than the ‘copy’ or reproduction of that statement introduced later in court).

Relevant words in Sec. 63(4) reads as under:

“Where it is desired to give a statement in evidence by virtue of this section, a certificate… shall accompany the electronic record…”

The term “electronic record,” as used in this context, appears incongruent because the statute seems to treat the original electronic source and the document produced from it (such as a printout or soft copy) under the same terminology. This conflation could lead to multiple confusions, including what exactly is being certified, the original data in the system, or the document derived from it.

Further Discordant Notes

1. The law compulsorily requires the HASH certificate. But, the requirement for the HASH certificate is unnecessary, especially in situations where there is no dispute regarding the computer output (copy or print-out).

2. It is not made clear in Sec. 63, BSA –

(i) What is the precise purpose of ascertaining the hash value of the (original) ‘electronic or digital record’ and not a copy (computer output) that is actually produced before the court?
(ii) This raises also another question: how is the court to verify the authenticity of the copy, if only the original’s hash is referenced?
(iii) Why does the requirement of including HASH value appear only in the Schedule (certificate format) and not in the main body of Sec. 63 itself?
(iv) The lack of explicit mention in the section text also creates uncertainty about whether hash values are mandatory or directory (merely illustrative of best practices).

Established Jurisprudence

Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020)3 SCC 216 (although it was delivered before the introduction new Adhiniyam of 2023), is regarded as the most authoritative decision on this matter.

Read: Certificate is Required Only for ‘Computer Output’; Not for ‘Electronic Records’: Arjun Panditrao Explored.

The enacted law (Sec. 63, BSA) requires the HASH value ‘certificate’ as regards the original ‘electronic or digital record(s)’, the prevailing consensus among the courts in India is the following –

The primary objective of the certificate being verification of the authenticity of the copy (CD, pen drive, etc.), the certificate must refer to the copy (computer output), as well as to the original (electronic record) from which the copy was derived.

As regards the HASH value in Sec. 63(4), BSA, the following matters requires consideration –

The main text of Section 63(4) does not use the term “hash value”.
The ‘HASH value/s of the electronic/digital record/s‘ is required to be given under the ‘Form’ scheduled.
Even though it is not specifically stated, the ‘HASH values’ of both the original and the copy of the record must be provided (otherwise, the intended purpose will not be served).

Part II

The Law Does Not Mandate Hashing at the Time of Copying

As shown above, the Court decisions refer to the HASH value of the copy (computer output) produced in court, and not the original (electronic or digital record).

It is also worth noting that the Section does not clarify when hashing must be done—whether during copying from the original or at the time of presentation before the court.

It is true that the hash value of the copy of the CCTV footage (or any other digital evidence) should ideally be generated at the time the copy is made, and not merely at the time when the pen drive or other storage device is produced in court.

Hash Value Is Insisted at Four Stages even under Evidence Act

Madras High Court, in Yuvaraj v. State, 2023-4 Mad LJ (Cri) 238, observed as under:

“206. To ensure that what is collected as an evidence in the source is exactly reflected or produced at the time of marking the electronic evidence before the Court, particularly when it comes to CCTV footages, a standard operating procedure must be followed. Such a practice will guarantee that nothing gets altered/deleted/added by the time the evidence is tendered before the Court. Hence, the concept of hash value is insisted at four stages and this value must be the same on all those four stages to ensure authenticity. When the CCTV footage gets stored in the hard disk, that is the first stage where the hash value must be noted down when it is received by the analyst from the Court on requisition made by the prosecution. Thereafter, the analyst creates a copy/mirror image of what is contained in the hard disk and this must also have the same hash value. As the next step, the forensic examination starts and ultimately, it is concluded and a report is given by the forensic analyst. In all those four stages, the hash value must be the same.”
207. For convenience, after the examination is completed by the forensic analyst, the footage can be downloaded to a DVD/CD and the same hash value will be reflected without any change. Since the extraction from the hard disk to the DVD/CD makes such DVD/CD as a secondary evidence, it goes without saying that such a DVD/CD must be accompanied with Section 65-B certificate. Copies taken and given to the accused persons under Section 207 of CrPC. regarding the CCTV footages should also be accompanied with Section 65-B certificate.”

Hash Value Must Be Recorded – Guidelines of Govt. in Tax Matters

In the “Digital Evidence Investigation Manual, 2014, Central Board of Direct Taxes (CBDT), Department of Revenue Ministry of Finance Government of India, reads, in Para 6.8, as under:

“6.8 Forensic Imaging/Cloning: If on previewing, important data is found either in deleted or in active form, the storage medium is required to be cloned for evidence purpose. Otherwise a normal data backup can be taken. The following steps should be taken at the time of cloning:
• Preparation-
….. In cases where very high capacity disks/ servers (Over 200 GB) are found at the search premises, separate Hardware imaging devices, which are up to ten times faster, would be needed. These hardware devices have in-built authentication engines. On completion of the imaging process, the device displays the hash value of the cloned hard disk. The image/clone has to have the same hash value as that of the target hard disk. The Hash value should be recorded in the Panchnama and the assessee can be given the option of seeking a copy of the imaged/cloned hard disk by paying the copying charges.”

Para 6.8 also requires the following under the heading ‘Report’:

• Report: Take printout of report generated by the imaging tool which contains the details of imaging attributes, details of Hard Disk Drives imaged, date and time and the most important thing the hash value of the Hard Disk Drive. Attach the report along with panchnama as an annexure to it.

In M/S. Saravana Selvarathnam Retails v. The Commissioner of Income Tax, 2024-463 ITR 523: 298 Taxman 319: 339 CTR 10 (Mad)(HC), the main grievance of the petitioner was that the digital data evidences were collected by the respondents from unknown locations without any valid search warrant and without following the guidelines issued by the CBDT vide Digital Evidence Investigation Manual. The Madras High Court addressed the contention in detail and held as under:

“The Digital Evidence Investigation Manual has been issued by the CBDT by virtue of powers available under Section 119 of the IT Act and hence, the Income Tax Authorities and all the other persons employed in the execution of this Act are bound to observe and follow such orders, instructions and directions issued by CBDT. ….. Hence, it is mandatory for W.P. Nos. 9753, 9757, 9761 & 11176 of 2023 respondents to follow the Digital Evidence Investigation Manual issued by CBDT while conducting search and seizure and it is not optional.”

Directives of Maharashtra and Kerala Govts.

In Umesh v. State of Karnataka, 2023-2 KarLJ 397, it is pointed out –

“In fact, the Government of Maharashtra has already implemented the practice of collecting hash value of electronic evidences and collecting the memory component of the device it is recorded on at the first instance since 2016. A reference can also be made to the Standard Operating Procedures issued by the Government of Kerala for collection of digital evidence related to crimes against women and children, since 2021. In fact, guidelines on extraction of hash value are also given in Digital Evidence Investigation Manual Central Board of Direct Taxes Department of Revenue, Ministry of Finance, Government of India.”

Hash Values of the Original and Copy at the Time of Copying, Required

Though Sec. 63(4)(c) of the BSA does not specifically mandate

(i) that hashing must be done at the time of copying, and (ii) that the hash value must pertain to the copy (computer output), also,

established jurisprudence, through long-standing legal precedents, requires recording the hash values of both the original and the copy at the time of copying, to demonstrate that the data is protected against tampering.

Conclusion

It is a fact that Section 65 of the old Act and Section 63 of the new Act were introduced as enabling provisions, designed to simplify the admissibility of electronic records.

However, due to poor and rigid drafting, they have paradoxically had the opposite effect.

In practice, it may be more feasible for many litigants to physically produce the original device—such as a computer, laptop, or mobile phone—before the court, rather than to obtain a certified hash value through a forensic expert.

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End Notes:

Section 63, Bhartiya Sakshya Adhiniyam

(Changes introduced in the New Adhiniyam – from the Evidence Act – are emphasised.)

63. Admissibility of electronic records –
(1) Notwithstanding anything contained in this Adhiniyam, any information contained in an electronic record which is printed on paper, stored, recorded or copied in optical or magnetic media or semiconductor memory which is produced by a computer or any communication device or otherwise stored, recorded or copied in any electronic form (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence or any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—
(a) the computer output containing the information was produced by the computer or communication device during the period over which the computer was used regularly to create, store or process information for the purposes of any activity regularly carried on over that period by the person having lawful control over the use of the computer or communication device;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer or communication device was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of creating, storing or processing information for the purposes of any activity regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by means of one or more computers or communication device, whether—
(a) in standalone mode; or
(b) on a computer system; or
(c) on a computer network; or
(d) on a computer resource enabling information-creation or providing information—processing and storage; or
(e) through an intermediary
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceeding where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things shall be submitted along with the electronic record at each instance where it is being submitted for admission, namely:—
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer or a communication device referred to in clauses (a) to (e) of sub-section (3);
(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person in charge of the computer or communication device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it in the certificate specified in the Schedule.
(5) For the purposes of this section,—
(a) information shall be taken to be supplied to a computer or communication device if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) a computer output shall be taken to have been produced by a computer or communication device whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment or by other electronic means as referred to in clauses (a) to (e) of sub-section (3).

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Pradeep Nirankarnath Sharma v. The State of Gujarat: The police have no discretion to conduct a preliminary inquiry before registering an FIR in cognizable offences

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Book No. 2: A Handbook on Constitutional Issues

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

Book No. 4: Common Law of TRUSTS in India

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

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

Saji Koduvath, Advocate, Kottayam.

Abstract

Easement by ‘Implied Grant’ is a Well-Recognised Category of Easement.
Implied Grant is an Independent Right (Alternative Way will Not Defeat it).
Implied Grant can be Inferred from the Circumstances.
No Express Consideration is Required for the Creation of an Easement by Grant and Implied Grant.
Grant alone pleaded; Not, Implied Grant – The Supreme Court recognized and allowed the doctrine of Implied Grant (in Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622).

Grant in Easements – Three Distinct Legal Connotations under Indian Law

1. Theoretical Basis of Every Easementary Right is Grant. The foundation of all easementary rights under Indian law is the concept of grant by the servient owner. Such a grant may be express, as provided in Sections 8 to 12 of the Indian Easements Act, 1882; implied, based on the circumstances of transfer by severance, as contemplated in Section 13; or presumed, from long and continuous use, as recognised under Section 15.
2. Implied Grant is a Judicially Recognized Easement. The common law in India recognizes implied grant—distinct from an easement of necessity—as a valid mode of acquiring an easement, even though it is not expressly codified under the Indian Easements Act. Such easements are inferred from the conduct of the parties or from the surrounding circumstances that indicate the intention to grant such a right. Indian courts have upheld this principle in several decisions, including Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, and L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307.
3. Grant is inferred from Usage and Custom in Customary Easements: The Indian Easements Act also recognises customary easements, which are expressly discerned in Sec. 18 of the Act. In such cases, the right is not assumed to be founded on an express or implied grant in the conventional sense, but it is presumed as imbeded in the long and continuous reasonable use by a particular class of people within a specific locality. That is, the underlying presumption is that a reasonable grant must have once taken place, which now gives way to a valid and acceptable custom. An example would be a village pathway used by local inhabitants over a long time to form a custom. This principle has been upheld in several decisions, including Lachhi v. Ghansara Singh, AIR 1972 HP 89; Harendra Nath Chakraborti v. Asim Sindhu Chakraborty, AIR 1981 Cal 325; and Yohannan v. Mathai, 1991 (1) Ker LJ 605, 1991 KHC 571.

Easement by Implied Grant is a Well-Recognised Category of Easement

A grant may be either express or implied. The latter arises from the circumstances or conduct of the parties involved. Indian common law recognizes implied grant as a legitimate and acceptable mode for the acquisition of easements.

Sree Swayam Prakash Case: Supreme Court only Reaffirmed Previous Legal Position

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622, the Supreme Court used the term implied-grant to refer to an easement of grant ‘arising by implication’. It is seen that the Supreme Court has only reaffirmed the legal position previously upheld by several High Courts.

R. Sivanandan v. Rajammal, (1975) 1 Mad LJ 251,
L. Govindarajulu Chettiar v. V. N. Srinivasalu Naidu, AIR 1972 Mad 307,
Ratanchand Chordia v. Kasim Khaleel, AIR 1964 Mad 209,
Annapurna v. Santosh Kumar, AIR 1937 Cal. 661 (referred to in the decision),
Kuppakkal v. Mathan Chettiar, AIR 1924 Mad 834.

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

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

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

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

‘Implied Grant‘ exists Independent of Sec. 13, Easement Act

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

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

K.S. Venkataraman, J., in this decision followed Peacock on Easements which reads as under:

“An implied grant, in the sense here used, is a grant which arises by implication from the language of the particular instrument construable according to the ordinary rules of construction, one of which is that the circumstances existing at the date of the grant may be looked at in order to ascertain the intention of the parties.”

Easement by Implied Grant

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

“An easement of grant is a matter of contract between the parties and it may have its own consideration. (B.B. Katiyar’s Commentaries on Easements and Licenses, p. 762). It may be either express or even by necessary implication. Though easement of necessity will come to an end with the termination of necessity, easement acquired by grant cannot be extinguished on that ground as per section 13(b) of the Indian Easements Act, 1882. Therefore, even assuming that the plaintiff had an alternative pathway as contended by the defendants, it does not extinguish the right of easement of grant in favour of the plaintiff. Therefore, the Trial Court was justified in granting a relief of declaration of right of easement of grant over the `B’ schedule pathway. However, the declaration granted on the ground of easement of necessity was not justified.”

The aforesaid Supreme Court decision (Sree Swayam Prakash Ashramam v. G. Anandavally Amma, AIR 2010 SC 622) arose from the Kerala High Court decision, Sree Swayam Prakash Ashramam v. N. Gopala Pillai on 9 May 2006. It was affirmed by the Supreme Court. The Kerala High Court held as under:

“Theoretically all easements have their origin in some sort of grant by the servient owner. The grant may be express or it may be implied from the surrounding attendant circumstances and conduct of the parties or it may even be presumed from long user. In the case of an express grant of easement the limit thereof depends on the words used.”

Upholding the view taken by the Kerala High Court, the Apex Court held as under:

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

Grant: No Express ‘Consideration’ Required; TP Act has no application

In B. Shyamkumar v. Francis George, 2009-4 CTC 750; 2009-7 MLJ 835, the Madras High Court held unequivocally as under:

“In case the easement was one acquired by grant, there was no question of consideration of the plea of easement of necessity.”

Gujarat High Court, in Hamir Ram v. Varisng Raimal, 1998 AIR Guj 165, has also held ‘grant’ can be gratuitous. It is said as under:

“Easement by grant may be created by oral agreement. It may be gratuitous. It may also be for consideration. If the grant was for consideration it hardly requires registration because mere creation of easement is not compulsorily registrable. …. Further, the …. parties never intended to transfer ownership in respect of the land which was set apart for the purpose of common passage. Hence, it cannot be held to be a sale deed of immovable property having value more than one hundred rupees. For this reason also the agreement does not require registration.”

The incorporeal right of Easement, by itself, cannot be a subject-matter of sale. Following two legal provisions are relevant in this matter –

1. Sec. 6 of the Transfer of Property Act
2. Sec. 8 of the Indian Easements Act.

Sec. 6 of the Transfer of Property Act

Easement cannot exist independently of the dominant tenement; hence always remains appurtenant to land (that is, attached to, and passes with, the ownership of the dominant tenement). Sec. 6 of the Transfer of Property Act reads as under:

“6. What may be transferred– Property of any kind may be transferred, except as provided by this Act or by any other law for the time-being in force;
a.… b….
c. An easement cannot be transferred apart from the dominant heritage.”

In Musunoori Satyanarayana Murti v. Chekka Lakshmayya, AIR 1929 Mad 79, it was held – ‘the creation of a right of easement by grant is not such a transfer of ownership as is contemplated by Section 54 of the Transfer of Property Act, 1882, and therefore, provisions of the Transfer of Property Act has no application to the creation of easement. Section 6(c) of the Transfer of Property Act contemplates that an existing easement cannot be transferred apart from the dominant heritage. Therefore, prima facie, the deed of easement is a creation of easement and not a transfer of an existing easement. [See also: Saraswatibai Bishwambarlal Charity Trust v. Gopal Traders Pvt. Ltd., 2023 BHC (AS) 34908 (Bom)]

Sec. 8 of the Indian Easements Act

Sec. 8 of the Indian Easements Act deals with express grant. It reads –

“8. Who may impose easements – An easement may be imposed by any one in the circumstances, and to the extent, in and to which he may transfer his interest in the heritage on which the liability is to be imposed.”

This section simply says that a person who has the legal right to transfer an interest (i.e. to sell, lease, or mortgage) in an immovable property (‘heritage’) is legally capable of creating (i.e., imposing or granting) an easement over that property.

It is also clear –

A life tenant (who has rights only for life) can grant an easement, but it ends with their interest.
A co-owner cannot impose an easement on the entire property without consent of the others.

Law does not bar ‘imposition’ of easement accepting consideration

Though the transfer of an easement is not recognized under the provisions of Sec. 54, TP Act, it is noteworthy – the law does not bar ‘imposition’ of easement accepting consideration as pointed out in Saraswatibai Bishwambarlal Charity Trust v. Gopal Traders Pvt. Ltd., 2023 BHC (AS) 34908 (Bom).

It is also important – though the provisions of the Easements Act address the creation of easements by grant, it is without an explicit requirement for ‘consideration‘, though consideration is a necessary element of a valid agreement under the Indian Contract Act, 1872.

Sec. 13 further elaborates on easements of necessity and quasi-easements, indicating that such easements can arise from the transfer or bequest of immovable property, again without an express requirement for consideration.

In Sree Swayam Prakash Ashramam v. G. Anandavally Amma, the Supreme Court observed that an ‘easement of grant is a matter of contract between the parties’ (and it may have its own consideration); and that ‘the grant may be either express or even by necessary implication’.

In State of Punjab v. Brig. Sukhjit Singh, 1993-3 SCR 944, the Supreme Court held as under:

“Payment of licence fee is not an essential attribute for the subsistence of a licence.”

It is pointed out in Prabhudas Damodar Kotecha and Anr v. Smt. Manharbala Jeram Damodar, AIR 2013 SC 2959, 2013-15 SCC 358, as under:

“In Black’s Law Dictionary, Seventh Edition, the word “license” means “a revocable permission to commit some act that would otherwise be unlawful” and the word “licensee” means “one to whom a license is granted or one who has permission to enter or use another’s premises, but only for one’s own purposes and not for the occupier’s benefit.“
Thus, it is seen that even in popular sense the word “license” is not understood to mean it should be on payment of license fee for subsistence of license. It also covers a “gratuitous licensee”, that is, a person who is permitted, although not invited, to enter another’s property and who provides no consideration in exchange for such permission.””

A Grant Deed with Consideration requires Stamp and Registration

In Subramanyam Chettiar v. Meyyammai Achi, AIR 1943 Mad 522, it was held that the consideration for the grant of the easement was a promise on the part of the grantee to do something of a like kind for the grantor; and the provisions of the Indian Registration Act were quite clear and it could not be doubted that such a deed required registration under Section 17 and so by virtue of Section 49 it could not be admitted as evidence of the creation of the easement.

Implied Grant is Independent Right ; Alternative Way will Not Defeat it

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

In Hero Vinoth (Minor) v. Seshammal, (2006) 5 SCC 545, the Supreme Court held as under:

“28. … Many easements acquired by grant may be absolutely necessary for the enjoyment of the dominant tenement in the sense that it cannot be enjoyed at all without it. That may be the reason for the grant also. But easement of grant is a matter of contract between the parties. In the matter of grant the parties are governed by the terms of the grant and not by anything else. Easement of necessity and quasi-easement are dealt with in Section 13 of the Act. The grant may be express or even by necessary implication. In either case it will not amount to an easement of necessity under Section 13 of the Act even though it may also be an absolute necessity for the person in whose favour the grant is made.”

Easement by Implied grant and Quasi Easement can be pleaded Alternatively

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

Implied Grant can be Inferred from the Circumstances

Grant alone Pleaded ; Not, Implied Grant – Apex Court, allowed Implied Grant

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

Plaintiff, owner of A-schedule property (dominant tenement), claimed “easement of necessity or of grant” in B-schedule property (servient tenement).
“Implied grant” was not specifically pleaded (only ‘grant’ was pleaded).
Dominant tenement had been separated from the servient tenement.
Plaintiff has been using the way in B-schedule property for a long period (about 50 years).
The trial court observed that the plaintiff claiming easement by grant or easement of necessity has only a primary burden to prove the absence of any alternate pathway (these findings were accepted by the Apex Court).
Defendant alleged that two alternate pathways existed. But, No evidence of any other way to A-schedule property (dominant tenement).
The High Court found that there was implied grant of ‘B’ schedule property as pathway.

The Supreme Court upheld the view of the High Court and the Trial Court and held as under:

“… the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that
- (i) no other pathway was provided for access to ‘A’ schedule property of the plaint and
- (ii) there was no objection also to the use of ‘B’ schedule property …”

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

“In Annapurna Dutta vs. Santosh Kumar Sett & Ors., AIR 1937 Cal.661, B.K. Mukherjee, as His Lordship then was observed:
- “There could be no implied grant where the easements are not continuous and non-apparent. Now a right of way is neither continuous nor always an apparent easement, and hence would not ordinarily come under the rule. Exception is no doubt made in certain cases, where there is a ‘formed road’ existing over one part of the tenement for the apparent use of another portion or there is ‘some permanence in the adaptation of the tenement’ from which continuity may be inferred, but barring these exceptions, an ordinary right of way would not pass on severance unless language is used by the grantor to create a fresh easement.”
26. In our view, therefore, the High Court was also fully justified in holding that there was implied grant of ‘B’ schedule property as pathway, which can be inferred from the circumstances for the reason that no other pathway was provided for access to ‘A’ schedule property of the plaint and there was no objection also to the use of ‘B’ schedule property of the plaint as pathway by the original plaintiff (since deceased) at least up to 1982, when alone the cause of action for the suit arose.”

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

“… It is the intention of the grantor whether he can be presumed to have been intended to convey to the grantee a right of easement for the reasonable and convenient enjoyment of the property which has to be ascertained in all the circumstances of the case to find out whether a grant can be implied. A description in a conveyance may connote an intention to create a right of easement. An easement may arise by implication, if the intention to grant can properly be inferred either from the terms of the grant or the circumstances“.

Implied Grant and Quasi Easement

The question of implied grant arises only if the easement is apparent and continuous (that is, there should be a ‘formed road’)

Easement of Necessity: even if – no visible sign (not apparent); and even if – never used before (not continuous). E.g., a foot path to a landlocked plot.
- But, there should have strict necessity.
Quasi Easement – must be visible (apparent) and must be functioning without repeated human action (continuous). E.g., water flowing through a pipe or a drainage system.
- It is based on prior use before land division.
- It requires only reasonable necessity, not strict necessity.

Implied Grant and Quasi-Easement

The question of implied grant (or quasi-easement) arises only if the alleged easement is:
- Apparent (i.e., visible upon reasonable inspection), and
- Continuous (i.e., functions without repeated human intervention)
E.g., Water flowing through a pipe, A drainage trench, Overhead electric cables.

Conclusion

It is the fundamental principle of easement law that every easement is, in theory, rooted in a grant.
Indian law clearly permits the acquisition of easements by implied grant. That is, an easement may arise by implication, and the intention to grant can be inferred either from the terms of the grant or from the surrounding circumstances.
Though easement by grant is (generally) said to have arisen from a ‘contract’, the provisions of law that deals with the matter do not specifically require ‘consideration’ in the creation of easements by grant.

End Notes 1

Customary Easements under S. 18 of the Easement Act

Section 18 of the Easement Act reads as under:

“18. Customary easements. An easement may be acquired in virtue of a local custom. Such easements are called customary easements.”

Both custom and easement are involved in customary easement. In other words, when customary easement is claimed, elements of both custom and prescriptive easement (long user) are to be proved. [Lachhi v. Ghansara Singh, AIR 1972 HP 89.]

Customary easement includes the right to take water and earth from a tank, use water for cattle from a tank, graze cattle [Illustration (a) to sec. 18], to take earth for building and repairing their houses etc.[Jugal Kishore v. Umrao Singh, AIR 1949 All 272. ] These are rights of people of a locality; and not a public right.

End Notes 2

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

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

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

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

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Can a Power of Attorney Holder file a Civil Suit? Is there any bar by virtue of Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024-6 SCC 130?

Saji Koduvath, Advocate, Kottayam

In Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024-6 SCC 130 (Pankaj Mithal, Prashant Kumar Mishra, JJ.) held –

it is settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge.

It is observed in this case –

The law as understood earlier was that
- a General Power of Attorney holder can appear, plead and act on behalf of a party he represents; but
- he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party.
In A.C Narayan v. State of Maharashtra, (2014) 11 SCC 790 upheld the principle of law laid down in Janki Vashdeo Bhojwani (2005-2 SCC 217) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it.

The Supreme Court said in Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024-6 SCC 130 as under:

“28. The law as understood earlier was that a General Power of Attorney holder though can appear, plead and act on behalf of a party he represents but he cannot become a witness on behalf of the party represented by him as no one can delegate his power to appear in the witness box to another party. However, subsequently in Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd., (2005) 2 SCC 217, this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question. It was opined that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question so as to bring on record the truth in relation to the grievance or the offence. However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions on the aspect including that of Janki Vashdeo Bhojwani (supra) in A.C Narayan vs. State of Maharashtra, (2014) 11 SCC 790 concluded by upholding the principle of law laid down in Janki Vashdeo Bhojwani (supra) and clarified that Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.
29. It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene. The aforesaid Power of Attorney holder PW-1 had clearly deposed that he is giving evidence on behalf of plaintiff Nos. 2 to 4 i.e. the Gala’s. He was not having any authority to act as the Power of Attorney of the Gala’s at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala’s have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted.”
In Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217, it was held that the Power of Attorney holder can maintain a plaint – provided he has personal knowledge of the transaction in question.

It is observed (obvious, clerical-mistake) in Manisha Mahendra Gala v. Shalini Bhagwan Avatramani, 2024-6 SCC 130, as regards maintaining a plaint, as under:

“However, subsequently in Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd., (2005) 2 SCC 217, this Court held that the Power of Attorney holder can maintain a plaint on behalf of the person he represents provided he has personal knowledge of the transaction in question.”

But, it is seen that Janki Vashdeo Bhojwani v. IndusInd Bank Ltd., (2005) 2 SCC 217, did not observe anything as to ‘maintaining a plaint’ (as observed in Manisha Mahendra Gala v. Shalini Bhagwan Avatramani). Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. referred to “complaint only“. It is said in Janki Vashdeo Bhojwani v. IndusInd Bank Ltd. as under:

“Order III, Rules 1 and 2 CPC, empowers the holder of power of attorney to “act” on behalf of the principal. In our view the word “acts” employed in Order III, Rules 1 and 2 CPC, confines only in respect of “acts” done by the power of attorney holder in exercise of power granted by the instrument. The term “acts” would not include deposing in place and instead of the principal. In other words, if the power of attorney holder has rendered some “acts” in pursuance to power of attorney, he may depose for the principal in respect of such acts, but he cannot depose for the principal for the acts done by the principal and not by him. Similarly, he cannot depose for the principal in respect of the matter which only the principal can have a personal knowledge and in respect of which the principal is entitled to be cross-examined.
On the question of power of attorney, the High Courts have divergent views. In the case of Shambhu Dutt Shastri Vs. State of Rajasthan, 1986 2WLL 713 it was held that a general power of attorney holder can appear, plead and act on behalf of the party but he cannot become a witness on behalf of the party. He can only appear in his own capacity. No one can delegate the power to appear in witness box on behalf of himself. To appear in a witness box is altogether a different act. A general power of attorney holder cannot be allowed to appear as a witness on behalf of the plaintiff in the capacity of the plaintiff.
The aforesaid judgment was quoted with the approval in the case of Ram Prasad Vs. Hari Narain & Ors. AIR 1998 Raj. 185. It was held that the word “acts” used in Rule 2 of Order III of the CPC does not include the act of power of attorney holder to appear as a witness on behalf of a party. Power of attorney holder of a party can appear only as a witness in his personal capacity and whatever knowledge he has about the case he can state on oath but be cannot appear as a witness on behalf of the party in the capacity of that party. If the plaintiff is unable to appear in the court, a commission for recording his evidence may be issued under the relevant provisions of the CPC.
In the case of Dr. Pradeep Mohanbay Vs. Minguel Carlos Dias reported in 2000 Vol.102 (1) Bom.L.R.908, the Goa Bench of the Bombay High Court held that a power of attorney can file a complaint under Section 138 but cannot depose on behalf of the complainant. He can only appear as a witness.
However, in the case of Humberto Luis & Anr. Vs. Floriano Armando Luis & Anr. reported in 2002 (2) Bom.C.R.754 on which the reliance has been placed by the Tribunal in the present case, the High Court took a dissenting view and held that the provisions contained in Order III Rule 2 of CPC cannot be construed to disentitle the power of attorney holder to depose on behalf of his principal. The High Court further held that the word “act” appearing in order III Rule 2 of CPC takes within its sweep “depose”. We are unable to agree with this view taken by the Bombay High Court in Floriano Armando (supra).
We hold that the view taken by the Rajasthan High Court in the case of Shambhu Dutt Shastri (supra) followed and reiterated in the case of Ram Prasad (supra) is the correct view. The view taken in the case of Floriano Armando Luis (supra) cannot be said to have laid down a correct law and is accordingly overruled.”

A.C Narayan v. State of Maharashtra, (2014) 11 SCC 790

In view of difference of opinion amongst various High Courts as also the decisions of this Court in M.M.T.C.v. Medchl Chemicals & Pharma (P) Ltd., 2002 (1) SCC 234, and in Janki Vashdeo Bhojwani v. Indusind Bank Ltd., 2005 (2) SCC 217, the following question (main) question was referred to the three judge bench:

“If the Power of Attorney holder fails to assert explicitly his knowledge in the complaint then can the Power of Attorney holder verify the complaint on oath on such presumption of knowledge?”

In the light of Sec. 142 of the NI Act the three Judge Bench answered the reference in negative. Sec. 142 reads as under:

“142. Cognizance of offences. Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974) –
no court shall take cognizance of any offence punishable under section 138 except upon a complaint, in writing, made by the payee or, as the case may be, the holder in due course of the cheque;…”

The Bench answered the question as under:

“23) In the light of the discussion, we are of the view that the power of attorney holder may be allowed to file, appear and depose for the purpose of issue of process for the offence punishable under Section 138 of the N.I. Act. An exception to the above is when the power of attorney holder of the complainant does not have a personal knowledge about the transactions then he cannot be examined. However, where the attorney holder of the complainant is in charge of the business of the complainant-payee and the attorney holder alone is personally aware of the transactions, there is no reason why the attorney holder cannot depose as a witness. Nevertheless, an explicit assertion as to the knowledge of the Power of Attorney holder about the transaction in question must be specified in the complaint.”

From the above, it is clear –

A civil suit can be filed by the plaintiff through a power of attorney;
but, he can furnish evidence on the ‘transaction’ (if so necessitated) if only he has direct knowledge.
Power of Attorney holder can maintain a complaint under Sec. 138 NI Act on behalf of the person he represents provided he has personal knowledge of the transaction in question.

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Constitutional Principles
Ayodhya and Sabarimala Disputes
General

Judicial Admissions in Pleadings: Admissible Proprio Vigore Against the Maker

Saji Koduvath Advocate, Kottayam.

Taken from the Blog: Modes of Proof of Documents

Judicial Admissions, Stand on a Higher Footing

Admissions in pleadings (in the same, not earlier, proceedings) are judicial admissions. They stand on a higher footing than evidentiary admissions.

They may give rise to ‘Foundation of Rights’.
They are fully binding on the party that makes them and constitute a waiver of proofs.
Evidentiary admissions (including that in the previous pleadings or separate proceedings) are not conclusive by themselves and they can be shown to be wrong.

Judicial Admission Must Be in the very Same Litigation

In Umesh Agarwal v. Mahesh Agarwal (Sikkim), 06 Aug 2013, Indian Kanoon, Pius Kuriakose, CJ., held as under:

“42. A survey of the various decisions cited before me at the Bar, particularly, the judgment of the Supreme Court in
- Karan Kapahi v. Lalchand Public Charitable Trust, AIR 2010 SC 2077,
- Basant Singh v. Janki Singh, AIR 1967 SC 341,
- Nagindas Ramdas v. Dalpatram Ichharam, (1974) 1 SCC 242,
shows that the law contemplates two kinds of admissions – judicial admissions and evidentiary admissions. It is judicial admissions which are contemplated under Section 58 of the Indian Evidence Act. In order to that an admission is a judicial admission, the same has to be an admission through his pleadings or by other materials in writing produced in the very same litigation. All other admissions are evidentiary admissions. Judicial admissions stand on a higher pedestal than evidentiary admissions. Evidentiary admissions will have to be proved against the makers like any other relevant fact.”

Admission Contained in Pleadings and that in Evidentiary Admissions

An admission made by a party to a suit in an earlier proceeding is admissible against him.

In Ammini Tharakan v. Lilly Jacob, Thottathil B.Radhakrishnan & SS Satheesachandran, JJ. (7 Oct 2013) the Kerala High Court held that admission contained in a plaint or written statement or in an affidavit or sworn deposition by a party in a previous litigation would be regarded as an admission in a subsequent action. It can be explained by the maker thereof, unless thereis no estoppel (Sec. 31, Evi. Act). Such an admission is a relevant fact. The courts can arrive at a decision on the basis of the admissions. See:

Thimmappa Rai v. Ramanna Rai, (2007) 14 SCC 63 .
Deb Prosanna v. Hari Kison, AIR 1937 Cal. 515 ,
Chendikamba v. Viswanathamayya, AIR 1939 Mad 446 ,
Lal Singh v. Guru Granth Sahib, AIR(38) 1951 Pep 101, and
Mst. Ulfat v. Zubaida Khatoon, AIR 1955 All. 361.

In Ammini Tharakan v. Lilly Jacob (7 Oct 2013) it is observed that Section 17 of the Evidence Act says that a document or a statement which suggests any inference as to any fact in issue or relevant fact, is an admission. It was pointed out in this decisions as under:

Admissions in pleadings are governed under Section 58 Evidence Act.
Section 31 of the Evidence Act, says as to evidentiary admissions.
There is distinction between the two.
The evidentiary admissions are merely relevant and not conclusive unless they operate as estoppel.
An admission by a party in a previous suit is admissible in evidence in a subsequent suit.The burden is upon the party making it to show that it was wrong on the principle that what a party himself admits to be true may reasonably be presumed to be so, though the party making the admission may give evidence to rebut this presumption.
Unless and until that is satisfactorily done, the fact admitted must be taken to be established.
This is true notwithstanding the fact that the statement which amounts to an admission was not put to the party making it, when that person came into the witness box.

The High Court further held as under in Ammini Tharakan v. Lilly Jacob (7 Oct 2013) –

“Here, the plaintiff, who was a defendant in Lucy’s suit, had filed Ext.B10 written statement through her power of attorney holder and mother Martha. That written statement contained the clear stand that neither Lucy nor the plaintiff herein had any share in any of the assets forming the estate of late David Tharakan. This statement which amounts to an admission as to a particular state of affairs, has not been explained by the plaintiff either in the plaint or at any point of time in any manner worthy of being accepted as a rebuttal. While it is the law that admission does not confer title, what we treat as admissions here is demonstrative of the plaintiff’s animus in re inheritance to her father’s estate. We proceed to discuss that aspect further in the succeeding paragraph.”

Categorical Admission cannot be Resiled but, may be Explained or Clarified

In Gautam Sarup v. Leela Jetly, 2008-7 SCC 85, it is held, after considering various decisions including Panchdeo Narain Srivastava (1984-Supp. SCC 594) and Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram & Co. (AIR 1977 SC 680; 1976-4 SCC 320), as under:

“28. What, therefore, emerges from the discussions made hereinbefore is that a categorical admission cannot be resiled from but, in a given case, it may be explained or clarified. Offering explanation in regard to an admission or explaining away the same, however, would depend upon the nature and character thereof. It may be that a defendant is entitled to take an alternative plea. Such alternative pleas, however, cannot be mutually destructive of each other.” (Quoted in: Ram Niranjan Kajaria v. Sheo Prakash Kajaria, 2015-10 SCC 203; S. R. Srinivasa v. S. Padmavathamma, 2010-5 SCC 274, )

Admissions in the pleadings are Admissible Proprio Vigore

Admissions in the pleadings are admissible proprio vigore against the maker thereof.

See: Sukhbiri Devi v. Union of India, AIR 2022 SC 5058;
National Insurance Co. Ltd. vs. Rattani, (2009) 2 SCC 75
Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo, 2009-5 SCC 713.
Steel Authority of India Ltd. v. State of West Bengal, AIR 2009 SC 120; 2008-14 SCC 589.
Ranganayakamma v. K.S. Prakash, 2008 15 SCC 673
State of Haryana v. M. P. Mohla (SB Sinha, J.), 2007-1 SCC 457
Steel Authority of India Ltd. v. Union of India, 2006 (12) SCC 233,

Admissions – Best Evidence. Evidentiary Admissions – Not Conclusive

In Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi (M. Hidayatullah, S.K. Das), AIR 1960 SC 100, it was held as under:

“In view of all these admissions and the revenue records, it was necessary for the appellant to prove that the admissions were erroneous, and did not bind him. An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter, unless successfully withdrawn or proved erroneous.”

In Nagindas Ramdas v. Dalpatram Icharam, AIR 1974 SC 471, 1974-1 SCC 242, held:

“Admissions, if true and clear, are by far the best proof of the facts admitted.
Admissions in pleadings or judicial admissions, admissible under s. 58 of the Evidence Act, made by the parties or their agents at or before the hearing of the case,
- stand on a higher footing than evidentiary admissions.
The former class of admissions are
- fully binding on the party that makes them and
- constitute a waiver of proof.
They by themselves
- can be made the foundation of the rights of the parties.
On the other hand evidentiary admissions which are receivable at the trial as evidence, are by themselves, not conclusive. They can be shown to be wrong.”

The propositions in Nagindas Ramdas v. Dalptram Iccharam, 1974-1 SCC 242 (admissions in pleadings stand on higher footing and are admissible as per Section 58 of the Evidence Act) is referred to in the following decisions:

Karan Kapoor v. Madhuri Kumar, 2022-10 SCC 496,
Alagu Pharmacy v. N. Magudeswari, AIR 2018 SC 3821; 2018-8 SCC 311,
Ram Niranjan Kajaria v. Sheo Prakash Kajaria, 2015-10 SCC 203,
D. N. Jeevaraju v. D. Sudhakar, AIR 2011 SC 1158; 2010-14 SCC 69,
S. R. Srinivasa v. S. Padmavathamma, 2010-5 SCC 274,
Sangramsinh P. Gaekwad v. Shantadevi P. Gaekwad (SB Sinha, J.), AIR 2005 SC 809; 2005-11 SCC 314,
Epoch Enterrepots v. M. V. Won Fu, AIR 2003 SC 24; 2003-1 SCC 305,
Hiralal Moolchand Doshi v. Barot Raman Lal Ranchhoddas, AIR 1993 SC 1449;
Arjun Khiamal Makhijani: Prithdayal Chetandas v. Jamnadas C. Tuliani, 1989-4 SCC 612,
Inder Mohan Lal v. Ramesh Khanna, AIR 1987 SC 1986; 1987-4 SCC 1.

Inconsistent Pleadings Not Possible by Addl. or Subsequent Pleadings

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

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

Amendment of Written Statement to Prejudice Plaintiff – Not Allowed

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

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

Erroneous Admissions & Earlier Findings -Effect

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

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

S, 17, Evidence Act: No distinction – Admission in a pleading and other Admissions

In Basant Singh v. Janki Singh, AIR 1967 SC 341, 1967-1 SCR 1, it is observed as under:

“In Phipson on Evidence, 10th Edn, Art. 741, the English law is thus summarised:
- “Pleadings, although admissible in other actions, to show the institution of the suit and the nature of the case put forward, are regarded merely as the suggestion of counsel, and are not receivable against a party as admissions, unless sworn, signed, or otherwise adopted by the party himself.”
Thus, even under the English law, a statement in a pleading sworn, signed or otherwise adopted by a party is admissible against him in other actions. In Marianski v. Cairns (1 Macq. 212 (H.L.).), the House of Lords decided that an admission in a pleading signed by a party was evidence against him in another suit not only with regard to a different subject-matter but also against a different opponent. Moreover, we are not concerned with the technicalities of the English law. Section 17 of the Indian Evidence Act, 1872 makes no distinction between an admission made by a party in a pleading and other admissions. Under the Indian law, an admission made by a party in a plaint signed and verified by him may be used as evidence against him in other suits. In other suits, this admission cannot be regarded as conclusive, and it is open to the party to show that it is not true.”

Admission is Not Conclusive as to the Truth of the matter

In Kishori Lal v. Mr. Chaltibai, AIR 1959 SC 504, it was held that admissions were not conclusive and that the maker of the admissions is at liberty to prove that the admissions were made mistakenly or that the admissions were untrue, unless such admissions otherwise operate as estoppel. The Supreme Court also noticed in that case that admissions are mere pieces of evidence and that if the truth relating to the matter admitted is known to the parties, the admissions would not be considered as admissions in the true sense. In Nagubai Ammal v. B. Shama Rao, AIR 1956 SC 593, the Supreme Court held as under:

“An admission is not conclusive as to the truth of the matter stated therein. It is only a piece of evidence, the weight to be attached to which must depend on the circumstances under which it is made. It can be shown to be erroneous or untrue, so long as the person to whom it was made has not acted upon it to his detriment, when it might become conclusive by way of estoppel.”

Court’s Jurisdiction to Require to Prove an Admitted Document

In any case, besides the powers of the court under Sec. 165 of Evidence Act, the scheme of the Procedural Acts (Evidence Act, CPC and CrPC) shows that the court has jurisdiction to require the party concerned to prove that document. We can see it in Sec. 58 of Evidence Act, Order XII, Rule 2A Proviso of the CPC and Sec. 294 of the CrPC .

Section 294 of Code of Criminal Procedure reads as follows:

“294. No formal proof of certain documents. (1) Where any document is filed before any Court by the prosecution or the accused, the particulars of every such document shall be included in a list and the prosecution or the accused, as the case may be, or the pleader for the prosecution or the accused, if any, shall be called upon to admit or deny the genuineness of each such document.
(2) The list of documents shall be in such form as may be prescribed by the State Government.
(3) Where the genuineness of any document is not disputed, such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed:
Provided that the Court may, in its discretion, require such signature to be proved.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Pradeep Nirankarnath Sharma v. The State of Gujarat: The police have no discretion to conduct a preliminary inquiry before registering an FIR in cognizable offences

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

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

Document Exhibited in the Writ Petition as ‘True Copy’ – Can it be Used as ‘Admission’, in a Civil Suit ?

Saji Koduvath Advocate, Kottayam.

Taken from the Blog: Modes of Proof of Documents

Inquisition

Can a document exhibited in a writ petition as ‘true copy’ be marked in a civil court as ‘admission’ – producing the certified copy of the writ petition; for example:
(i) a letter written by the Petitioner (in the Writ Petition)
(ii) a letter or a private document obtained to him (apparently original of the same is with the Petitioner)
(iii) copy of a Public Document.

The Answer is:

Yes, it can be ‘marked’ on ‘admission’.
The existence of the contents of the first and third documents (letter written by the Petitioner and copy of a Public Document) can be ‘presumed’ by the court, against the petitioner, in a subsequent civil suit, under Sec. 114, Evidence Act (which lays down a rebuttable presumption).
- Note:
- 1. Sec. 58, Evidence Act says – Admitted facts need not be proved.
- 2. Certified copy of a public document need not be proved by a witness – Madamanchi Ramappa v. Muthalur Bojjappa, AIR 1963 SC 1633.
- 3. Even in a case where a document exhibited in the Certified Copy of the Writ Petition is marked in the civil court, if it falls under Sec. 65 (e) or (f) of the Evidence Act, it has to be ‘proved’ by producing a certified copy of the same, in view of the stringent directives in Sec. 65 (“In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible”.)
Though the existence of the second class of documents (a letter or a private document obtained to him – original of which are apparently with the Writ-Petitioner) can be presumed, if truth of contents of those documents is in question or denied the adverse party, it has to be proved independently .
- Note: Proviso to Sec. 58 Evidence Act reads as under:
- “Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admissions.”
- Also Note: Normally the documents relied of in the Writ petition will not be denied by the petitioner therein.

Certified copy of a public document need not be proved by a witness

In Madamanchi Ramappa v. Muthalur Bojjappa (P.B. Gajendragadkar, K.N. Wanchoo, K.C. Das Gupta), AIR 1963 SC 1633, it is held as under:

“The document in question being a certified copy of a public document need not have been proved by calling a witness.”

“Title Thereto” in the Definition of ‘Prescriptive Easement’ in Sec. 15 of the Indian Easements Act, 1882

Saji Koduvath, Advocate, Kottayam

Sec. 15 Easement Act

Sec. 15 Easement Act reads as under:

“15. Acquisition by prescription: Where …… a right of way or any other easement has been peaceably and openly enjoyed by any person claiming title thereto, as an easement and as of right, without interruption, and for twenty years, the right to such access and use of light or air, support, or other easement, shall be absolute.”

What does “claiming title thereto” refer to?

Answer: It is claiming of ‘title to (the legal right of) easement’.

Following decisions refer this proposition –

Ramlal v. Tulsi Ram, 2014-3 CGLJ 369 (Chh),
Deo Kumar v. Kailash Chand, 2007-4 MPHT 151; 2008-1 MPLJ 123,
Patel Karshanbhai Bababhai v. Patel Bhaichandbhai Khushalbhai, 21 Jun 2001 (Guj),
Unnikrishnan v. Ponnu Ammal, AIR 1999 Ker 405,
Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775,
D. Ramanatha Gupta v. S. Razaack, AIR 1982 Kar 314,
Surendrasingh v. Phirosahah, (Sinha C.J. & Hidayatullah, J.), AIR 1953 Nag. 205,
Siti Kantapal v. Radha Gobinda Sen, AIR 1929 Cal. 542,
Sultan Ahamed v. Waliullah, (1912) 17 Indian Cases 22.

Peacock in his treatise, “Law Relating to Easements in British India”, Third Edn., at page 608 said as under:

“As an easement is not one of the ordinary rights of ownership, it is necessary that either party claiming or relying on an easement should plead the nature of his title thereto so as clearly to show the origin of the right, whether it arises by statutory prescription, or express or implied grant, or the old common law method of a lost grant“.

Quoting Peacock, in Surendrasingh v. Phirosahah, (Sinha C.J. and Hidayatullah, J.), AIR 1953 Nag. 205, it is held as under:

“No doubt, the words ‘title thereto‘ refers tile of ‘easement’ claimed; and the word ‘title’ was not used in the general sense now used (that is, absolute ownership) in the Indian Easements Act, 1882.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)

In Maharani Rajroop Koer v. Syed Abul Hossein, 1879-7 Ind. App. 240, the Privy Council, referring Sec. 27 of the Limitation Act, No. IX. of 1871, (similar to Sec. 15, Easements Act 1882) observed as under:

“The object of the statute was to make more easy the establishment of rights of this description, by allowing an enjoyment of twenty years, if exercised under the conditions prescribed by the Act, to give, without more, a title to easements.”

Gale on Easements (15th Edn.),Pages 415, reads as under:

“Under the present system of pleading, it is conceived that, whether the section be brought against the servient owner or a stranger, a party cannot safely allege his right to an easement generally, but should state specifically the manner in which he claims title to the easement, whether by grant (actual or lost), prescription at common law, or under the Prescription Act, and in many cases it is advisable to plead, alternatively, a title by all three methods.” (Quoted in: Ibrahimkutty Koyakutty v. Abdul Rahumankunju Ibrahimkutty (K.S. Paripoornan, J.), AIR 1993 Ker 91, 1992 (1) Ker LT 775.)

Mulla – Code of Civil Procedure (14th Edn.) Volume II, at page 986, states the law thus :

“Easement — A party claiming or relying on an easement should plead the nature of the title thereto, so as to clearly show the origin of the right, whether it arises by statutory prescription or express or implied grant, or the old common law method of a lost grant.”

Rent Control Acts

Rent Control Acts enacted by various States say – where the tenant denies the title of the landlord or claims right of permanent tenancy, the Rent Control Court shall decide whether the denial or claim is bona fide and if it records a finding to that effect, the landlord shall be entitled to sue for eviction of the tenant in a Civil Court.

It is definite that this provision does not speak about the “ownership”; but only ‘title as the landlord‘.

Conclusion

Though the word ‘title’ is now generally used to denote absolute ownership, in the Indian Easements Act, 1882, the phrase ‘title thereto’ refers – the title to an easement.

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