Dhanasingh Prabhu v. Chandrasekar: Partnership Firm Need Not be an Accused in S. 138 NI Act Complaint

Where a partner of a firm commits a breach, all the partners would be liable for the penalties arising therefrom.

Saji Koduvath, Advocate, Kottayam

Contents in a Nutshell

Supreme Court of India (Nagarathna, Satish Chandra Sharma, JJ.) held in Dhanasingh Prabhu v. Chandrasekar, 2025 INSC 831 –

  • A partnership firm need not be an accused in a Complaint under Section 138, Negotiable Instruments Act.
  • Notice under Section 138 of the Act need not be issued to the firm.
  • If the ‘firm commits’ any breach, all the partners would become liable for the penalties.

Genesis of the Controversy

Section 141 of the NI Act speaks as to ‘Offences by Companies‘. It says:

  • “If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly…”

Then it is explained in this Section as under:

  • (a) “company” means any body corporate and includes a firm or other association of individuals; and
  • (b) “director”, in relation to a firm, means a partner in the firm.”

The scope of the Explanation—“company means any body corporate and includes a firm or other association of individuals”—came up for consideration in Dhanasingh Prabhu v. Chandrasekar, 2025 INSC 831.

That is, whether it is necessary –

  • (i) to join the firm as a party in Section 138 Complaint, and
  • (ii) to issue notice under Section 138 of the Act to the firm?

In Dhanasingh Prabhu v. Chandrasekar, 2025 INSC 831, the Apex Court answered the aforesaid questions in the negative.

Kerala High Court Decisions Stand Overruled

The following decisions took the view that a prosecution under Section 141 of the NI Act is not maintainable if the cheque is issued ‘by the firm’ (or society), without arraigning the firm (or society) as an accused in the complaint.

  • (i) S.  Balakrishna Prabhu v. V. Indira, 2023-7 KHC 587; 2024-1 KLT 84,
  • (ii) P.I.  Moideen Kutty v. Abdul Rasheed, 2023-5 KLT(SN) 15,
  • (iii) Binu v. State of Kerala, 2023-2 KLD 565,
  • (iv) Dominic Joseph v. State of Kerala, 2017-1 KHC 790; 2017-2 KLT(SN) 19,
  • (v) Shishan M. A.  v. M. K.  Murali, 2016-5 KHC 810; 2016-4 KLT 876,
  • (vi) Sheeja Mol v. State of Kerala, 2015 (4) KLT 748,
  • (vil) Babu v. State of Kerala, 2017-4 KLT(SN) 33,
  • (viil) Fakruddin V.P. v. State of Kerala, 2014 (4) KHC 815,
  • (ix) Vijaya Lekshmi v. Indian Bank, Tvm., 2016 (1) KLD 639.

In the light of Dhanasingh Prabhu v. Chandrasekar, 2025 INSC 831, the aforesaid decisions no longer hold the field and cannot be regarded as laying down good law.

Submissions of the Appellant in Dhanasingh Prabhu v. Chandrasekar

  • A company is a separate legal entity from its shareholders. But a partnership is only a compendious name for its partners.   The shareholders in a company have limited liability, whereas in a partnership firm, the partners have unlimited liability.
  • The partnership firm cannot be arraigned as an accused or being issued notice under Section 138 of the Act.
  • A partnership firm cannot enter into any contract and that either those partner(s) authorized by all the partners or all the partners of the firm, must execute the contract.
  • Though Order XXX Rules 1 and 2 of the Code of Civil Procedure, 1908 allow for suing of partners in the name of the firm, it is only a convenient method for referring to the persons who constitute the firm and that a decree in favour of or against a firm, in the name of the firm, has the same effect as a decree in favour of or against all the partners.

Submissions of the respondents (Sr. Advocate  S. Nagamuthu)

  • Explanation (a) of Section 141(1) of the Act states that a “company” means any body corporate and includes a firm or other association of individuals.
  • The terms ‘association of persons’ or ‘body of individuals’ have a legal connotation. In this regard, a partnership firm is not an association of persons in the literal sense. 
  • The expression ‘person’ in Section 141 of the Act includes a partnership firm, as Section 141 of the Act deems a partnership firm to be a company.
  • That this deeming fiction is also seen when the “director” is defined.
  • Thus, a firm is deemed to be a company and if a firm commits an offence under Section 138 of the Act, and firm should also be added as an accused and found guilty.
  • The partners of a firm should be arraigned as accused along with the firm and such partners should be liable for punishment vicariously/constructively for the offence committed by the firm.
  • In the absence of the firm being issued the statutory notice or arraigned as an accused in the complaint, the same was not maintainable at all.

The senior counsel, Sri S. Nagamuthu referred the following  judgments:

1.  Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661.  

  • Note: It is held (in Dhanasingh Prabhu v. Chandrasekar) that Aneeta Hada v. Godfather Travels & Tours (P) Ltd., (2012) 5 SCC 661, was not applicable in the facts of this case, since it concerned the vicarious liability of directors of a company where the company itself was neither prosecuted nor made liable (and did not consider the position of a partnership firm); and there is distinction between a company and a partnership firm.

2.  Dilip Hariramani v. Bank of Baroda, 2022 SCC OnLine SC 579.

  • Note: This decision is also distinguished in Dhanasingh Prabhu v. Chandrasekar. The notice was not served to the appellant therein but it was served only on the authorized signatory of the firm. In the instant case, the notice was sent by the complainant to both the partners of the firm. 

Even if partnership firm is a juristic entity, it is Not Distinct from Partners

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

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

Liability of Partners

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

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

Conclusion

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

Section 141 of the NI Act envisages that:

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

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

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

End Notes

Section 138 of the NI Act reads as under:

  • “138. Dishonour of cheque for insufficiency, etc., of funds in the account. — Where any cheque drawn by a person on an account maintained by him with a banker for payment of any amount of money to another person from out of that account for the discharge, in whole or in part, of any debt or other liability, is returned by the bank unpaid, either because of the amount of money standing to the credit of that account is insufficient to honour the cheque or that it exceeds the amount arranged to be paid from that account by an agreement made with that bank, such person shall be deemed to have committed an offence and shall, without prejudice to any other provision of this Act, be punished with imprisonment for a term which may extend to two years, or with fine which may extend to twice the amount of the cheque, or with both:

Provided that nothing contained in this section shall apply unless—

  • .(a) the cheque has been presented to the bank within a period of six months* from the date on which it is drawn or within the period of its validity, whichever is earlier;
  • (b) the payee or the holder in due course of the cheque, as the case may be, makes a demand for the payment of the said amount of money by giving a notice in writing, to the drawer of the cheque, within thirty days of the receipt of information by him from the bank regarding the return of the cheque as unpaid; and
  • (c) the drawer of such cheque fails to make the payment of the said amount of money to the payee or as the case may be, to the holder in due course of the cheque within fifteen days of the receipt of the said notice.
  • Explanation.—For the purposes of this section, “debt or other liability” means a legally enforceable debt or other liability.
  • xxx

Section 141 of the NI Act reads as under:

  • 141. Offences by companies.— (1) If the person committing an offence under Section 138 is a company, every person who, at the time the offence was committed, was in charge of, and was responsible to the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:
  • Provided that nothing contained in this sub-section shall render any person liable to punishment if he proves that the offence was committed without his knowledge, or that he  had exercised all due diligence to prevent the commission of such offence.
  • Provided further that where a person is nominated as a Director of a company by virtue of his holding any office or employment in the Central Government or State Government or a financial corporation owned or controlled by the Central Government or the State Government, as the case may be, he shall not be liable for prosecution under this chapter.
  • (2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to, any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.
  • Explanation.—For the purposes of this section,—
  • (a) “company” means any body corporate and includes a firm or other association of individuals; and
  • (b) “director”, in relation to a firm, means a partner in the firm.”

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Mansi Finance (Chennai) Ltd. v. M. Lalitha: Cheque Bounce (NI Act) Cases: No Deemed Liability to the Directors of a Company or Society; The Complaint Must Disclose Factual Basis

Also read: Suits and Criminal Complaints By and Against a Company

Jojy George Koduvath

In M/s Mansi Finance (Chennai) Ltd. v. M. Lalitha, 2026 INSC 547, the issue was whether the complaint disclosed sufficient factual foundation (of offence) against each of the accused so as to justify continuation of the prosecution.

Justice Prashant  Kumar Mishra and Justice N. V. Anjaria observed that the answer to that question “must necessarily depend upon the role attributable to each of them”.

The Court held as under:

  • “30. Mere designation as an office bearer of a company or society is not sufficient to attract Section 141 of the NI Act. Equally, a complaint containing only a bald reproduction of the statutory language without factual foundation cannot be sustained. However, it is clear that the complaint itself is required to be read as a whole and not in isolated fragments. …”
  • “35. The material placed on record prima facie indicates that respondent Nos. 1, 2 and 4 were themselves signatories to some of the antecedent financial documents forming part of the transaction. The MoU bears signature of respondent no. 1. The dishonoured cheque itself bears the signature of respondent No. 2. The promissory notes and allied payment documents disclose participation of respondent Nos. 1, 2 and 4. These are not matters of mere designation but constitute prima facie material linking them to the underlying transaction”.
  • “39. …The law governing Section 141 of the NI Act is clear that there is no deemed liability merely by virtue of holding an office or position in the company or society. The complaint must disclose the factual basis showing that the person sought to be prosecuted was in-charge of and responsible for the conduct of the business of the entity at the relevant time. As far as the present case is concerned, except for the general assertion regarding his status as an Executive Member, no specific averment or material connecting respondent No. 3 with the transaction in question has been brought on record. His designation alone, therefore, would not be sufficient to attract liability under Section 141 of the NI Act”.

Decisions referred:

1. S.M.S. Pharmaceuticals Ltd. vs. Neeta Bhalla, (2005) 8 SCC 89. A three-Judge Bench held that for invoking vicarious liability under Section 141 of the NI Act, it is necessary to aver in the complaint that at the time the offence was committed, the person accused was in charge of and responsible for the conduct of the business of the company.

2. National Small Industries Corporation Limited vs. Harmeet Singh Paintal, (2010) 3 SCC 330. It was observed that vicarious liability cannot be inferred merely from holding an office or designation, and the complaint must disclose how and in what manner the accused was responsible for the conduct of the business of the company.

3. HDFC Bank Limited vs. State of Maharashtra, (2025) 9 SCC 653 at Para 27. It was clarified that the complaint need not mechanically reproduce the exact phraseology of Section 141 of the NI Act if the substance of the allegations, read as a whole, discloses the factual basis for such liability. The emphasis, therefore, is not on form but on substance in the sense that the criminal liability under Section 141 of the NI Act is person-specific and cannot be imposed merely by association. The complaint must, therefore, disclose sufficient factual foundation qua each accused, and the role attributable to each must be independently discernible.

Impugned High Court Decision

The High Court had quashed the proceedings against all the respondents on the ground that the complaint did not disclose specific averments as to how and in what manner they were in charge of and responsible for the conduct of the affairs of the Society, and that the allegations are omnibus in nature. The High Court placed reliance upon the decisions of this Court in

  • S.P. Mani and Mohan Dairy v. Dr. Snehalatha Elangovan (2023) 10 SCC 685
  • Ashok Shewakramani v. State of Andhra Pradesh,  (2023) 8 SCC 473.  

The Apex Court, as stated above, set aside the Order of the High Court quashing the criminal proceedings against respondent Nos. 1, 2 and 4.

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‘Absolute‘ Transfer of Property in a Will, with Stipulation: ‘If property Remains’ on Death of Transferee, it will Go to Another – If Valid?

Yes.

Taken from: Interpretation of Inconsistent Clauses in a Will

Saji Koduvath, Advocate, Kottayam

The following important points require consideration in this regard:

  1. In Indian practice, though the words used in the deeds might be ‘absolute transfer’, on a true construction, on a reading of the entire document, it might only be a salable/transferable right during lifetime; and the left-over property might be given to another.
  2. The common law in India requires reading the whole document altogether, and give effect to the document on a harmonious interpretation, rather than giving effect to the legal terms used in a deed.
  3. Illustrations in Sections 24 and 27 make it clear that Indian law recognises ‘vested remainder’ and ‘contingent remainder‘ (as detailed in the notes above).
  4. It is also beyond doubt that such a transfer is not hit by Sec. 10 and 11 of the TP Act; inasmuch as Sec. 10 and 11 cumber only when ‘conditions’ impose ‘Absolute Restraint’ or ‘Enjoyment in a Particular Manner’.
  5. First illustration in Sec. 88 of the Indian Succession Act reads as under:
    • “The testator by the first clause of his Will leaves his estate of Ramnagar “to A”, and by the last clause of his Will leaves to “to B and not to A”. B will have it.”

Various court decisions make it clear that one can validly transfer or bequeath a property to another, with absolute (in the sense, saleable) rights, with the stipulation that after that (first) transferee’s lifetime, if whole or any part remains, it (contingent remainder) may go to another.

In K. S.  Palanisami v. Hindu Community Citizens of Gobichettipalayam, AIR 2017  SC 1473 (Ashok Bushan, J.), Palaniappa Chettiar and his wife by registered Will created a Trust. The Will indicated that after the death of one of the testators, the survivor had Absolute right to deal with the property and there was no embargo on the right of survivor to dispose of the same.  Certain alienations were made by Rangammal after death of Palaniappa Chettiar.  It is held as under:

  • “49. The intention in testamentary disposition has to be primarily found out from the actual words used in the Will. The court is not entitled to ignore clear words or add something of its own or dilute the meaning of any clear word used in the Will. The solemn duty of the court is to find out the intention of testator and thereafter to give effect to such intention. On the reading of the Will, the intendment of testator/testatrix is clear that survivor shall have absolute right of enjoyment of properties. There is no reason not to give effect to said intendment on the ground that the testator and testatrix have mutually intended to set apart the property for charity and holding that survivor shall have right of disposition be not in the interest of the trust.”

Other Erudite Decisions on the Topic

In Sanford v. Sanford, (1901) 1 Ch. 939, the gift to the wife conferred a power of disposal limited explicitly to her lifetime. But, the gift-over to son was of a quite absolute estate. The gift did not include a power of disposition by will, but allowed power of disposition inter vivos. It was provided in the gift deed that if any property remained at her death it was to pass ‘from father to son, from generation to generation’.   Therefore, it was held that the widow was conferred with only a limited right; and the gift-over, which was ‘the will of the testator’ was to ‘settle its destination’. (This decision is referred to in Nataraja Mudaliar v. Panduranga Mudaliar, 1976-2 MLJ 381.)

In Nataraja Mudaliar v. Panduranga Mudaliar, (1976) 2 MLJ 381, the Madras High Court rendered a well-read decision in this topic. The facts of this case, in a nutshell, are as under:

  • (i) The settlement deed considered in the case provided:
    • (a)  the wife of the settlor should enjoy the properties with absolute (in the sense, saleable) rights.
    • (b) the respondent should take the properties remained at the time of her death, with absolute rights.
  • (ii) the appellant contended that the clause providing for the respondent taking absolutely such of the properties as at the time of the death of the settler’s wife was repugnant to the earlier clause conferring an absolute estate on her, and has, therefore, to be ignored as void.
  • (iii) the respondent contended that if the settlement deed had to be read as a whole  and the effect would be:
    • there was no absolute transfer to the wife of the settler as stated in Sec. 11 of the TP Act.

It is seen that the High Court accepted the contentions of the respondent that the settlement deed was to be read as a whole and that the respondent had taken absolutely such of the properties covered by the settlement deed as remained undisposed of by the settlee, the wife of the settlor; as she had only a right to enjoy the properties with absolute (in the sense, saleable) powers of disposal during her lifetime. The clause as to acquiring property by respondent was not repugnant and void.

The High Court relied on the following cases. The facts of these were ‘very near’ to the facts of that case.

  • Thayalai Achi v. Kannammal, AIR 1935 Mad 704,
  • S.M. Hara Kumari v. Mohim Chandra Sarkar, (1908) 12 CWN 412,
  • Anantnasayana v. Kondappe AIR 1940 Mad 479,
  • Lakshmi Ammal v. Allauddin Sahib, AIR 1962 Mad 247,
  • Ramasreenivasa Iyengar v. Padmasani Ammal, (1973) 1 MLJ 34.

In Lakshmi Ammal v. Allauddin Sahib, AIR 1962 Mad 247, it was held, as regards a Will, as under:

  • “After giving an absolute estate to his wife over the two items of scheduled properties, he provided that these scheduled properties, after the wife’s lifetime should devolve – item 1 on the first daughter and item 2 on the second daughter – who would have absolute rights. When the testator took care to indicate that the properties without any distinction even after his wife’s lifetime should go to each of the daughters, it should be presumed that it was clearly in his mind that the wife’s estate was only to be a limited estate or life estate, and not an absolute one.” (Quoted in: Nataraja Mudaliar v. Panduranga Mudaliar, (1976) 2 MLJ 381).

Reconcile all clauses in the Will, Even if an apparent Absolute Estate Given

In Sadhu Singh v. Gurdwara Sahib Narike, AIR 2006 SC 3282, 2006-8 SCC 75 (B.P. Singh & P.K. Balasubramanyan, JJ.), it is held as under:

  • “20. Thus the first attempt must be to reconcile all the clauses in the will and give effect to all of them. When we make that attempt in the context of what this Court had indicated in the decision quoted above, we find that the apparent absolute estate given to his wife by the testator is sought to be cut down by the stipulations that the property must go to his nephews after the death of the wife, that the wife cannot testamentarily dispose of the property in favour of any one else and the further interdict in the note that the wife during her life time would not be entitled to mortgage or sell the properties. Thus on reconciling the various clauses in the will and the destination for the properties that the testator had in mind, we have no hesitation in coming to the conclusion that the apparent absolute estate in favour of Isher Kaur has to be cut down to a life estate so as to accommodate the estate conferred on the nephews.
  • 21. Thus understood, it has necessarily to be held, as was held by the first appellate court, that Isher Kaur was not competent to gift away the properties in favour of the Gurdwara as she had done. Even if the gift were to be treated as valid, the donee thereunder cannot resist the claim for eviction by the legatees under the will, the nephews of Ralla Singh, on the cessation of the life estate of Isher Kaur. Admittedly, that life estate has ceased and once it is found that the plaintiff has acquired a title to the property as a legatee under the will, he would be entitled for and on behalf of himself and his brother to recover possession of the property from the Gurdwara in view of the death of Isher Kaur.”
  • Note: In Tej Bhan v. Ram Kishan,2024 INSC 945, the Apex Court referred this decision and various other decisions to a ‘larger bench for reconciling the principles laid down in various judgments of this Court and for restating the law on the interplay between sub-section (1) and (2) of Section 14 of the Hindu Succession Act, 1956.

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

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Easement

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Criminal

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Will

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

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Parvathi Nairthi v. Laxmi Nairthy: A Will is a Legally Recognised Mode of Property Disposition; an Unregistered Will is Valid; Deprivation of Natural Heirs Does Not Amount to Suspicious Circumstance; A Will is not Required to be Proved with Mathematical Accuracy.

Jojy George Koduvath

Key Findings

The following are the key findings of the Supreme Court of India, in Parvathi Nairthi v. Laxmi Nairthy (Ujjal Bhuyan, Vijay Bishnoi, JJ.), 21 May 2026 (2026 INSC 521):

  • 1. A Will is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death. It carries with it an element of sanctity (Quoted: Meena Pradhan v. Kamla Pradhan  2023 SCC OnLine SC 1198).
  • 2. Mere deprivation of natural heirs, by itself, may not amount to a suspicious circumstance because the whole idea behind the execution of a Will is to interfere with the normal line of succession (Relied on: Rabindra Nath Mukherjee v. Panchanan Banerjee (1995) 4 SCC 459).  
  • 3. A Will is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied (Quoted: Meena Pradhan v. Kamla Pradhan  2023 SCC OnLine SC 1198).
  • 4. The Will is Unregistered has no significant bearing on its validity (Relied on: Ishwardeo Narain Singh v. Kamta Devi And Others (1953) 1 SCC 295).  
  • 5. Any and every circumstance in the disposition of a Will is not a “suspicious” circumstance. A circumstance would be “suspicious” when it is not normal or is not normally expected in a normal situation or is not expected of a normal person (Referred: Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20).

Further Findings of the Apex Court

  • 1. One who alleges fraud, fabrication, undue influence, etc., has to prove the same.
  • 2. Mutation does not confer title. (Referred: Balwant Singh v. Daulat Singh, (1997) 7 SCC 137).
  • 3. Mere non-compliance with Order XLI Rule 31 of CPC (the points for determination were not fixed by the Appellate Court) may not vitiate the judgment (Relied on: G. Amalorpavam v. R. C. Diocese of Madurai, (2006) 3 SCC 224).
  • 4. An affidavit is not an “evidence” within the meaning of Section 3 of the Indian Evidence Act, 1872, and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of CPC (Relyed on: Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465).

Facts in a Nutshell

Sheena Nairi, a Chartered Accountant, executed his last Will bequeathing the plaint schedule properties in favour of his sister. After the death of the testator, upon the application of Nairi’s wife (Nairthy), the Tehsildar effected the mutation. The sister of the testator instituted a civil suit seeking a declaration that the Plaintiff is the absolute owner of the plaint schedule properties under the Will, and an injunction.

The wife and children of the testator filed written statement and contended –

  • that the Will is false and fabricated;
  • that the testator has never executed any such Will;
  • that the signature affixed on the said Will does not belong to him
  • that after the death of the testator, the said Will was created by his brothers, in collusion with each other and
  • that the plaint schedule properties were never in possession of the Plaintiff.

The Trial Court allowed the suit and opened an enquiry under Order XX Rule 12 of the Code of Civil Procedure for mesne profits. The trial court found –

  • The Plaintiff produced PW2, the attesting witnesses to the Will. However, the wife and children of the testator –
    • did not adduce evidence,
    • had not produced any witness,
    • had not appeared for cross-examination, and
    • had not specifically cross- examined the Plaintiff and PW2 to prove the Will as fraudulent.
  • The signature on the POA executed by the testator was accepted by the wife and children of the testator.  Thereby, the trial court concluded that the signatures were made by the same person when that accepted signature was compared with the signatures that appeared on every page of the Will, and it appeared to be the same, observing sufficient coordination in the writing, the placement of dots in the signature and the formation of the underline.

The appeals before the District Court and the High Court were dismissed.

Submissions of the Appellants (Defendants), in the SC

1. The Will produced is not legally acceptable on the following grounds:

  • No explanation for the delay of 7 years in filing suit,
  • No explanation for the delay of 6 years after the mutation and conversion of the land in favour of the Appellants,
  • No explanation for exclusion of wife and children,
  • No explanation for excluding other assets.
  • The plaintiff never objected to the mutation, and no copy of the Will was produced at that time.
  • The witness to the Will did not know the place of death of the executant of the Will or about its contents.

2. The First Appellate Court failed to comply with Order XLI Rule 31 of CPC – for the ‘points for determination’ were not fixed.

Main Submissions the Respondents (Plaintiffs), in the SC

1.  Once specific allegations of forgery or fraud were made in respect of the Will and the Plaintiff had duly proved the execution of the Will, the burden shifted on the Appellants to prove their plea of forgery.

2. The Appellants never asked for sending the Will for examination by a handwriting expert nor chose to examine any expert witness; and, thus, the specific plea of forgery was not even attempted to be proved.

3. Additionally, it is submitted that the testator, in the Will itself, specifically stated that “I am doing no injustice to my wife and children or other relatives… I have given enough and more to my wife and children who are residing at Bombay.”

Analysis of the Apex Court on the Validity and Execution of a Will

Section 68 of the Indian Evidence Act, 1872 reads as under:

  • “Section 68- Proof of Execution of document required by law to be attested— If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: xxx”

After quoting Section 68, the Apex Court (in Parvathi Nairthi v. Laxmi Nairthy) referred the following passage in Meena Pradhan and Others v. Kamla Pradhan  2023 SCC OnLine SC 1198 –

  • “9. A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation.”

 With respect to the principles relating to the validity and execution of a Will, Parvathi Nairthi v. Laxmi Nairthy noted that the Apex Court, in Meena Pradhan v. Kamla Pradhan, 2023 SCC OnLine SC 1198, relied upon the following authorities:

  • H. Venkatachala Iyengar v. B.N. Thimmajamma 1958 SCC OnLine SC 31, 
  • Bhagwan Kaur v. Kartar Kaur And Others(1994) 5 SCC 135, 
  • Janki Narayan Bhoir v. Narayan Namdeo Kadam(2003) 2 SCC 91, 
  • Yumnam Ongbi Tampha Ibema Devi v. Yumnam Joykumar Singh (2009) 4 SCC 780, and 
  • Shivakumar And Others v. Sharanabasappa And Others(2021) 11 SCC 277, .

In Parvathi Nairthi v. Laxmi Nairthy it is further pointed out – in Meena Pradhan v. Kamla Pradhan,  2023 SCC OnLine SC 1198, the Court deduced the following principles from the afore-stated decisions:

  • “10.1. The court has to consider two aspects : firstly, that the will is executed by the testator, and secondly, that it was the last will executed by him;
  • 10.2. It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied.
  • 10.3. A will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say:
  • .(a) The testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a will;
  • (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary;
  • (c) Each of the attesting witnesses must have seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of such signatures;
  • (d) Each of the attesting witnesses shall sign the will in the presence of the testator, however, the presence of all witnesses at the same time is not required;
  • 10.4. For the purpose of proving the execution of the will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined;
  • 10.5. The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator; 10.6. If one attesting witness can prove the execution of the will, the examination of other attesting witnesses can be dispensed with;
  • 10.7. Where one attesting witness examined to prove the will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence;
  • 10.8. Whenever there exists any suspicion as to the execution of the will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator’s last will. In such cases, the initial onus on the propounder becomes heavier. 10.9. The test of judicial conscience has been evolved for dealing with those cases where the execution of the will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the will while acting on his own free will;
  • 10.10. One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation.
  • 10.11. Suspicious circumstances must be “real, germane and valid” and not merely “the fantasy of the doubting mind [Shivakumar v. Sharanabasappa, (2021) 11 SCC 277] ”. Whether a particular feature would qualify as “suspicious” would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance, for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the will under which he receives a substantial benefit, etc.”

Findings on the Delay of 7 Years in Producing the Will

The Apex Court pointed out that the Plaintiff had given a representation before the Tehsildar soon after the death of the testator (in 1984) to mutate her name, and the said notice was received by the concerned authorities as evidenced by the postal certificate. Although there was no material which disclosed that the Plaintiff had produced a copy of the Will before the concerned authority, the said notice itself disclosed all relevant facts, including the execution of the Will in favour of the Plaintiff, without any delay.

Findings on Mutation – It Does Not Confer Title

As regards the contention of the Appellants that they had obtained mutation entries in the year 1984, it is held that it is well settled that such mutation entries do not confer title and are effected merely for fiscal purposes, namely, to enable the State to realise tax from the person whose name is recorded in the revenue records. The Court referred the following decision –

  • Balwant Singh v. Daulat Singh, (1997) 7 SCC 137.

Findings on the Contention – Will is Unregistered

The Apex Court held – this contention of the appellants/defendants has no significant bearing on its validity, as the Apex Court in Ishwardeo Narain Singh v. Kamta Devi, (1953) 1 SCC 295, has clearly held as under:

  • “6. …There is nothing in law which requires the registration of a will and wills are in a majority of cases not registered at all. To draw any inference against the genuineness of the will on the ground of its non-registration appears to us to be wholly unwarranted.” 

Scope of ‘Deprivation of Natural Heirs‘ to Vitiate a Will

In this case, the Appellants contended – the Appellants, being the natural heirs of the testator, have been outrightly excluded without any reason, and that such exclusion constitutes a suspicious circumstance surrounding the execution of the Will is legally untenable. The Apex Court pointed out as under:

  • It is well-established that mere deprivation of natural heirs, by itself, may not amount to a suspicious circumstance because the whole idea behind the execution of a Will is to interfere with the normal line of succession, as categorically held in Rabindra Nath Mukherjee v. Panchanan Banerjee (1995) 4 SCC 459. 
  • However, in the case of Ram Piari v. Bhagwant (1990) 3 SCC 364, it was held that prudence requires reason for denying the benefit of inheritance to natural heirs and an absence of it, though not invalidating the Will in all cases, shrouds the disposition with suspicious as it does not give inking to the mind of the testator to enable the Court to judge that disposition was a voluntary act. 

What are the Suspicious Circumstances that Vitiate a Will

While considering this issue, i.e., what are the suspicious circumstances which may vitiate the disposition of a Will, the Apex Court referred to Indu Bala Bose v. Manindra Chandra Bose, (1982) 1 SCC 20, which pointed out as under:

  • “8. Needless to say, that any and every circumstance is not a “suspicious” circumstance. A circumstance would be “suspicious” when it is not normal or is not normally expected in a normal situation or is not expected of a normal person.”

Conclusion in Parvathi Nairthi v. Laxmi Nairthy – ‘The Will was Duly Executed’

The Apex Court came to the conclusion that ‘the Will was duly executed by the testator voluntarily out of his free will in a sound state of mind and the same stands proved through the testimony of one of the attesting witnesses’.  It held further as under:

  • “It is trite to state that when the validity of a Will is to be determined, the overall terms of a Will, the intention of the testator and the surrounding circumstances have also to be seen. Mere exclusion of the natural heirs from the property of the testator, by itself, cannot be construed as a suspicious circumstance so as to invalidate a Will outrightly. A testator is legally entitled to dispose of his property according to his own wishes, and unless the exclusion is accompanied by suspicious circumstances affecting the genuineness or due execution of a Will, such exclusion alone does not render a Will invalid. Thus, we are of the considered view that the exclusion of the natural heirs cannot be sufficient to vitiate the Will in question, particularly when the Will clearly specifies that the testator has not done any injustice to his wife, children, or other relatives, and that he has given enough to his wife and children who are residing at Bombay.”

Order XLI Rule 31 of CPC should not be Interpreted Technically

 In this case (Parvathi Nairthi v. Laxmi Nairthy), the Appellants contended that the First Appellate Court, while deciding the first appeal, had not complied with Order XLI Rule 31 of CPC.

Rule 31 reads as under:

  • “31. Contents, date and signature of judgment– The judgment of the Appellate Court shall be in writing and shall state-
  • .(a) the points for determination;
  • (b) the decision thereon;
  • (c) the reasons for the decision; and
  • (d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled, and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein.”

The Apex Court held that mere non-compliance with Order XLI Rule 31 of CPC may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it, and the rule should not be interpreted technically to compromise substantial justice. The Court relied on G. Amalorpavam v. R. C. Diocese of Madurai, (2006) 3 SCC 224, which held as under:

  • “9. The question whether, in a particular case, there has been substantial compliance with the provisions of Order 41 Rule 31 CPC has to be determined on the nature of the judgment delivered in each case. Non-compliance with the provisions may not vitiate the judgment and make it wholly void, and may be ignored if there has been substantial compliance with it and the second appellate court is in a position to ascertain the findings of the lower appellate court. It is no doubt desirable that the appellate court should comply with all the requirements of Order 41 Rule 31 CPC. But if it is possible to make out from the judgment that there is substantial compliance with the said requirements and that justice has not thereby suffered, that would be sufficient.
  • Where the appellate court has considered the entire evidence on record and discussed the same in detail, come to any conclusion, and its findings are supported by reasons, even though the point has not been framed by the appellate court, there is substantial compliance with the provisions of Order 41 Rule 31 CPC and the judgment is not in any manner vitiated by the absence of a point of determination. Where there is an honest endeavour on the part of the lower appellate court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing of the evidence, facts and the other considerations appearing on both sides is clearly manifest by the perusal of the judgment of the lower appellate court, it would be a valid judgment even though it does not contain the points for determination. The object of the rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of second appeal conferred by Section 100 CPC.”

Evidentiary Value of Affidavits Renders the Will Invalid is Unsustainable.

Finally, the evidentiary value of affidavits of both the attesting witnesses to the Will was considered by the Apex Court. Appellants contended –

  • In the affidavits, both the attesting witnesses to the Will denied that they had signed the same. 

The Apex Court relying on Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, (2013) 4 SCC 465, it is held as under:

  • “In this regard, this Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra, has categorically held that an affidavit is not an “evidence” that it has been categorically held that an affidavit is not an “evidence” within the meaning of Section 3 of the Indian Evidence Act, 1872 and the same can be used as “evidence” only if, for sufficient reasons, the Court passes an order under Order XIX of CPC and thus, the filing of an affidavit cannot be regarded as sufficient evidence for any Court or Tribunal, on the basis of which it can come to a conclusion as regards a particular fact situation. However, in a case where the deponent is available for cross-examination, and opportunity is given to the other side to cross-examine him, the same can be relied upon. In the present case, it is also important to note that those affidavits were filed even prior to the filing of the written statement, and the same has been rightly dealt by all the Courts, which questioned as to how the witnesses came to know about the enquiry regarding the validity of the Will despite no notice having been issued by the Court calling upon them to submit such affidavits. Thus, in view of the same, the affidavits filed by the attesting witnesses to the Will cannot be relied upon. 

End Notes

Order 20, Rule 12 CPC reads as under:

“12. Decree for possession and mesne profits.

  • .(1) Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree-
  • .(a) for the possession of the property;
  • (b) for the rents which have accrued on the property during the period prior to the institution of the suit or directing an inquiry as to such rent;
  • (ba) for the mesne profits or directing an inquiry as to mesne profits;
  • (c) directing an inquiry as to rent or mesne profits from the institution of the suit until-
  • .(i) the delivery of possession to the decree-holder,
  • (ii) the relinquishment of possession by the judgment-debtor with notice to the decree-holder through the Court, or
  • (iii) the expiration of three years from the date of the decree, whichever event first occurs.
  • (2) Where an inquiry is directed under clause (b) or clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Vadiyala Prabhakar Rao v. The Government of AP: Title is Not Proved by Revenue Entries; Title Claims are Investigated by Civil Courts, Not by High Courts

The mere acceptance of municipal or agricultural taxes, or the granting of a bank loan based on these records, does not stop the State from challenging the ownership of the land.

Saji Koduvath, Advocate, Kottayam

In Vadiyala Prabhakar Rao v. The Government of Andhra Pradesh (Pankaj Mithal, S.V.N. Bhatti, JJ.), 2026 INSC 450, the Supreme Court of India, held to the following effect:

  • The law is well settled that the claim to title is not proved through Revenue entries.
  • In a Writ of Certiorari, the High Court cannot declare the title of the lands.
  • The High Courts (under Article 226 of the Constitution of India) are not the appropriate forum for resolving serious disputes concerning questions of fact and title to property. It is so held in Sohan Lal v. Union of India,   (1957) 1 SCC 439.
  • The title claims to the property are investigated by the civil courts in a regularly constituted suit, rather than the courts exercising the prerogative to issue writs.
  • Unauthorised entries or mutations may befall in the Revenue Records (Pahanies).

Facts of the Case in a Nutshell

  • The Appellants, on 09.11.1990, moved the Joint Collector for the exclusion of Subject Matter from the proposed declaration as Forest Land/Reserve Forest.
  • The Joint Collector, rejected the claim because the Appellants failed to prove the primary document through which title to the property is claimed by them.
  • The learned Single Judge, notwithstanding the above deficiencies in the quality of documentary evidence, expanded the scope of judicial review, and for all purposes declared the claim of the Appellants as maintainable for the title to the Subject Matter.

Findings

The Apex Court held in para 16 and 17 as under:

  • “16.1 Entries in Revenue Records or Jamabandi serve only a “fiscal purpose”.
  • Their primary function is to enable the person whose name is mutated in the records to pay the land revenue in question.
    • Suraj Bhan v. Financial Commissioner, (2007) 6 SCC 186; 
    • Jitendra Singh v. State of MP, 2021 SCC OnLine SC 802; 
    • Bhimabai Mahadeo Kambekar v. Arthur Import & Export Co., (2019) 3 SCC 191; 
    • Sawarni v. Inder Kaur, (1996) 6 SCC 223.
  • 16.2 A Revenue Record is not a document of title and does not confer any ownership or title upon the person whose name appears in it.
    • Suraj Bhan. (supra); 
    • Gurunath Manohar Pavaskar v. Nagesh Siddappa Navalgund, (2007) 13 SCC 565; 
    • State of A.P. v. Star Bone Mill & Fertiliser Co., (2013) 9 SCC 319; 
    • Jitendra Singh (supra).
  • Further, mutation does not create or extinguish title and has absolutely no presumptive value regarding title.
    • Balwant Singh v. Daulat Singh (D) By Lrs., (1997) 7 SCC 137; 
    • Sawarni (supra);
    • Bhimabai Mahadeo Kambekar. (supra)
  • 16.3 The mere acceptance of municipal or agricultural taxes, or the granting of a bank loan based on these records, does not stop the State from challenging the ownership of the land.
    • Star Bone Mill & Fertiliser Co. (supra)
  • 16.4 While they do not prove title, Revenue Records can raise a presumption regarding possession.
    • Gurunath Manohar Pavaskar (supra); 
    • Star Bone Mill & Fertiliser Co. (supra)
  • Maintenance and custody of Revenue Records is the exclusive domain of the Patwari, and it is not uncommon that Revenue Records are often tinkered with by him to suit the exigencies.
    • Guru Amarjit Singh v. Rattan Chand, (1993) 4 SCC 349. 
  • 16.5 Stray or solitary entries recorded for a single year do not raise a presumption of rights and cannot be relied upon against a long, consistent course of revenue entries in favour of another party.
    • Bhimeshwara Swami Varu Temple v. Pedapudi Krishna Murthi, (1973) 2 SCC 261;
    • Salem Municipality. (supra)
  • 16.6 The creation of fabricated records in collusion acts as a camouflage to defeat the legal rights of the actual tiller, and the Government is not bound by them.
    • Baleshwar Tewari v. Sheo Jatan Tiwary, (1997) 5 SCC 112 ; 
    • State of Punjab v. Sadhu Ram, (1997) 9 SCC 544.
  • “17. For the limited purpose of appreciating the case of Appellants, we notice that the two Revenue Records are (i) Faisal Patti for 1342F, and (ii) Vasool Baqi for 1352F. The Pahanie copy of the village for the Faslis 1346-1356, shown in Column No. 3, records Survey No. 81 of Kalvalanagaram as Jungle. At best, the Pahanies, as is evident to a mere perusal, are unauthorised entries or mutations. The law is well settled that, through Revenue entries, the claim to title is not proved. Further, in a Writ of Certiorari, the learned Single Judge declared the title of the Appellants. On perusal of these documents, and appreciating the intrinsic quality deficiency and the contradictory mutation, it is noted that Subject Matter is recorded as “Jungle” (meaning Forest), and the names of private individuals were recorded in one of the columns. These entries are not supported by a patta or an Order lawfully made, authorising mutation as per the extant procedure.

This Court, in Sohan Lal v. Union of India and another, (1957) 1 SCC 439, noted that proceedings under Article 226 of the Constitution of India are not the appropriate forum for resolving serious disputes concerning questions of fact and title to property. Investigating these claims is the proper function of a civil court in a regularly constituted suit, rather than of a court exercising the prerogative to issue writs.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

Revenue Records, Mutation

Adverse Possession

Land Laws/ Transfer of Property Act

Land Reform Laws

Power of attorney

Evidence Act – General

Sec. 65B

Admission, Relevancy and Proof

Law on Documents

Documents – Proof and Presumption

Interpretation

Contract Act

Law on Damages

Easement

Stamp Act & Registration

Divorce/Marriage

Negotiable Instruments Act

Criminal

Arbitration

Will

Book No. 2: A Handbook on Constitutional Issues

Religious issues

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

Book No. 4: Common Law of TRUSTS in India

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other

Jojy George Koduvath

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other: In Anima Mallick v. Ajoy Kumar Roy (B.N. Kirpal and S.S.M. Quadri, JJ.), 2000-4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. It is held in this decision as under:

  • “(1) Special leave granted.
  • (2) These proceedings arise from a suit filed under Section 6 of the Specific Relief Act, which was filed by the respondent as per the judgment of the High Court. The respondent in his suit stated that he was using the garage owned by the appellant, his sister. The contention was that he had been dispossessed from the garage by his sister.
  • (3) The trial court ordered possession to be restored but on an application filed under Section 115-A of the Civil Procedure Code, the District Judge allowed the said application filed by the applicant (appellant herein). The order of the trial court was set aside. This order was sought to be challenged by a petition under Article 227 of the Constitution of India in the Calcutta High Court and the decision of the trial court had been restored.
  • (4) Without going into the question of law we are of the opinion that under Article 227 the High Court ought not to have exercised its discretion and interfered with the judgment of the District Judge. It is evident that the respondent was using the garage of the appellant on permission having been granted by the sister to the brother. According to the judgment of the High Court the respondent was claiming no legal interest in the said garage as he was not claiming its ownership because he was not claiming to be a tenant or even a licensee. His possession was purely gratuitous, and even if, without the knowledge of the respondent, the appellant has reclaimed the possession, it was not a fit case for the High Court to have interfered under Article 227 of the Constitution.
  • (5) We, therefore, allow this appeal, set aside the judgment of the High Court and restore the decision of the District Judge.”
  • (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

In Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, it is observed as under:

  • “26. This Court in Anima Mallick v. Ajoy Kumar Roy and Another (2000) 4 SCC 119 held that where the sister gave possession as gratuitous to the brother, this Court restored possession to the sister as it was purely gratuitous basis and the sister could have reclaimed possession even without knowledge of the brother.”

No injunction can be granted against the true owner

It is further pointed out in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, as under:

  • “27. According to the appellant, this Court in Sopan Sukhdeo Sable and Others v. Assistant Charity Commissioner and Others (2004) 3 SCC 137 has observed that no injunction can be granted against the true owner, and Section 6 of the Specific Relief Act cannot be invoked to protect the wrongdoer who suppressed the material facts from the Courts.”
  • “96. The respondent’s suit for injunction against the true owner – the appellant was not maintainable, particularly when it was established beyond doubt that the respondent was only a caretaker and he ought to have given possession of the premises to the true owner of the suit property on demand. Admittedly, the respondent does not claim any title over the suit property and he had not filed any proceedings disputing the title of the appellant.”

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Read Book No. 5
•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•   Adverse Possession: Dispossession and Knowledge
•   Adverse Possession: Admission of Title of Other Party
•   Ouster and Dispossession in Adverse Possession
•   Does ‘Abandonment’ a Recognised Right in Indian Law?
•   Illegal or Fraudulent Regn. of Deed: No Adverse Possession
•   Does 12 Years’ Unobstructed Possession Precede the Suit?
•   Prescriptive Rights – Is it Inchoate until Upheld by Court
•   Sec. 27, Limitation Act: Right to Declaration and Recovery
•  Declaration & Recovery: Art. 65, not Art. 58 Governs
•  ‘Possessory Title’ in Indian Law
•   Possession: a Substantive Right Protected in Indian Law
•   Recovery Based on Title and on Earlier Possession
•   ‘Possession is Good Against All But the True Owner’
•   Gratuitous Possession – Owner can Reclaim at Any Time
•   When ‘Possession Follows Title’; ‘Title Follows Possession’
•   Can a Tenant Claim Adverse Possession
•   Adverse Possession Against Government
•   Is Registration of a Deed, Notice to Govt. and Public?
•   Government of Kerala v. Joseph
•   Adverse Possession: UK and US Law and Classic Decisions
•   22nd Law Commission  Report
•  How to Plead Adverse Possession? 

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Read in this Cluster (Click on the Topic)

Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of 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

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

Suit on Possessory Remedy, Other side Admits Possession; Should the Will be Proved?

Jojy George Koduvath

Suit on Possessory Remedy, Other side Admits Possession; Should the Will be Proved? No. Because proving the Will will be a surplusage.

Read also:

Possession is a Substantive Right: Possession by itself is a substantive right recognised by law. It is heritable and transferable, as explained in the following decisions –

  • Nair Service Society Ltd. v. K.C. Alexander, AIR 1968 SC 1165,
  • Kuttan Narayanan v. Thomman Mathayi, AIR 1966 Ker 179;
  • Phirayalal Kapur v. Jia Rani, AIR 1973 Delhi 186;
  • Nallammal v. Ayisha Beevi, 2017-5 Mad LJ 864). 

Possession Follows Title and Adverse Possession: It is held in MS Jagadambal v. Southern Indian Education Trust, 1988 (Supp) SCC 144, that the possession continues with the title holder unless and until the defendant acquires title by adverse possession (possession follows title). In LN Aswathama v. P Prakash, 2009-13 SCC 229, the Supreme Court held as under:

  • “In law, possession follows title. The plaintiffs having established title to the suit property, will be entitled to decree for possession, unless their right to the suit property was extinguished, by reason of defendant being in adverse possession for a period of twelve years prior to the suit.”

Sec. 17 (Admission) and Sec. 58 (Facts admitted need not be proved) are attracted. Division Bench decision in Boomathi v. Murugesan, 2023-2 Mad LJ 684 considered – when a Will is ‘categorically’ and ‘clearly’ admitted by the other side, should it be proved by calling a witness of the Will under Section 68 of the Evidence Act. The Madras High Court came to the conclusion that Section 68 will not be attracted where the Will is “admitted” by the other side.

Read also:

Gratuitous Possession – Owner can Reclaim Even Without Knowledge of the Other: In Anima Mallick v. Ajoy Kumar Roy, (2000) 4 SCC 119, our Apex Court held that where the sister gave possession as gratuitous to her brother, the sister could reclaim such possession even without knowledge of the brother; and that ‘no one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property. (Relied on in Maria Margadia Sequeria v. Erasmo Jack De Sequeria 2012 (5) SCC 370, Indore Development Authority v. Manoharlal, (2020) 8 SCC 129; AIR 2020 SC 1496.)

Documents required by law to be attested by attesting witnesses.

The following documents are required by law to be attested by attesting witnesses.

  1. Will: Sec. 63 of the Succession Act.
  2. Mortgage deed: Sec. 59 of the T P Act.
  3. Gift deed: Sec. 123 of the T P Act.
  4. Bond: Sec.  2(5) of the Indian Stamp Act, 1899.

Section 68 of the Evidence Act, 1872 mandates examination of one attesting witness at least to prove the aforesaid four documents required by law to be attested. The proviso to Sec. 68 lays down the following: if the aforesaid documents, EXCEPT WILL, are (i) registered in accordance with the provisions of Indian Registration Act, 1908 and (ii) not specifically denied by the person who executed it, execution of those documents need not necessarily be proved by calling ‘an attesting witness’. That is, for the purpose of proving the Will (alone), the examination of ‘an attesting witness’ is necessary. It is difficult to support the logic and grounds for picking out Will (in Sec. 68 Evidence Act), from other (three) documents that are required by law to be attested by attesting witnesses.

But, note – the Will stands picked out (in Sec. 68 Evidence Act) from other (three) documents that are required by law to be attested by attesting witnesses.

Do General Provisions of S. 58 give way to Special Provisions of S. 68

Three views are possible:

  • First: Requirement of calling at lest one witness to prove those documents that requires attestation, in spite of express admission from the opposite party as to the execution of the document in the written statement.
  • Second: If the Will is (even impliedly) admitted, Sec. 68 need not be invoked.
  • Third: If only the Will is expressly or categorically admitted, then only there will be alleviation of burden laid down in Sec. 68.

In the light of the Apex Court decision in Ramesh Verma v. Rajesh Saxena, 2017-1 SCC 257, (that the position – as to proof of documents requires attestation – remains the same even in a case where the opposite party does not specifically deny the execution of the document in the written statement) it appears that the second view stated above (taken in Thayyullathil Kunhikannan v. Thayyullathil Kalliani, AIR 1990 Ker 226) is not sustainable.

But, the proposition of law in the third view above, applied in Boomathi v. Murugesan (supra), and other decisions (that the position – as to proof of documents requires attestation – will be different if the Will is “categorically admitted“), sounds good.

Dominant Owner  Cannot Dispute The Title Of The Servient Owner

It is a trite law in ‘Law on Easement’ that the dominant owner cannot dispute the title of the servient owner (Reghuprasad v. M.  Raghunathan, AIR 2020 Ker 16). 

In Omana v. Reji Kurian, AIR 2022 Ker 91, it is held (K. Babu, J.) as under:

  • “19. Yet another aspect that requires consideration is that the pleadings of the defendants in the written statement go in the line, denying the title of the plaintiff over the ‘B’ schedule way. One of the fundamental ingredients in a claim of easement is the admission of the title of the servient owner by the dominant owner. On this ground alone, the claim of the defendants over plaint ‘B’ schedule property by way of easement by prescription must fail.”

Recovery on “GENERAL TITLE” and “SUPERIOR TITLE“

The legal proposition on “General Title” is seen adhered to in Mt.  Sewti v.Rattan, AIR 1951  HP 54. It is observed as under:

  • “It has therefore been held that where a suit for recovery of possession of property based on a lease fails, a subsequent suit to recover the same property on the strength of general title is not barred by res judicata: Zamorin v. Narayanan, 22 Mad. 323 and Kuttt Ali v. Cindan, 23 Mad. 629.”

The legal proposition on “Superior Title” is seen adhered to in Shankarlal v. Gangabisan, AIR 1972  Bom 326, and it is observed as under:

  • “The plaintiff could have sued upon this document and the claim in that case would have been under the contract. But the plaintiff in the subsequent suit did not sue upon the contract but he sued upon his general title as the owner of the property. He alleged that the defendants were trespassers and that the plaintiff was entitled to get possession and further damages on the basis of his title as stated in the passage we have quoted above. Therefore, the plaintiff was claiming in the second suit on the basis not of a title arising under the contract but dehors the contract. In other words, the plaintiff was seeking to enforce in the subsequent suit his general title as owner and not his title to get back the property under the contract of lease. It is clear therefore that this title was superior to the contract between the parties and it was by virtue of this superior title that the plaintiff claimed in the second suit. The respective causes of action in the earlier suit and in the subsequent suit were therefore entirely distinct and separate.”

Landlord can win the TITLE SUIT if he Proves his GENERAL TITLE

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the plaintiff-landlord sued defendant for eviction. The Defendant claimed title over the property. It is held–

  • “The landlord in a given case#* although may not be able to prove the relationship of landlord and tenant, but in the event he proves his GENERAL TITLE, may obtain a decree on the basis thereof.”
    • #*Tenant challenges title of landlord; and no special law (e.g., BRC Act) bars to give such a relief in ‘civil suit’.
  • This decision is referred to in TribhuvanShankar v. Amrutlal (S.B. Sinha and Deepak Misra, JJ.), 2014-2 SCC 788.

In Biswanath Agarwalla v. Sabitri Bera, (2009) 15 SCC 693, the question was formulated by the Court as under:

  • “Whether a Civil Court can pass a decree on the ground that the defendant is a trespasser in a simple suit for eviction is the question involved in this appeal.”

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Dharmendra Kalra v. Kulvinder Singh Bhatia: Striking off defence under Order XV Rule 5 CPC (U.P. Amendment): Consequence is Drastic; Mere Denial of the Landlord–Tenant Relationship Not Absolve Tenant from the Statutory Obligation to Deposit Rent

Saji Koduvath, Advocate, Kottayam

Order XV Rule 5 CPC (U.P. Amendment)

The Rule 5 (U.P. Amendment) reads as under:

5. Striking off defence on failure to deposit admitted rent, etc.

  • .(1) The defendant shall:
  • .(a) At or before the first hearing, deposit the entire amount admitted by him to be due, together with interest at 9% per annum; and
  • (b) Throughout the continuation of the suit, regularly deposit the monthly amount due within the prescribed time.
  • If the defendant fails to make such deposit, the Court may, subject to sub-rule (2), strike off his defence.
  • (2) Before striking off the defence, the Court may consider any representation made by the defendant showing sufficient cause for the default.

Order XV Rule 5 (U.P. Amendment) Anabysed

Order XV Rule 5 (U.P. Amendment) applies in a suit for:

  • .1. Eviction of lessee and
  • 2. Recovery of rent.

Dharmendra Kalra v. Kulvinder Singh Bhatia

Supreme Court of India in Dharmendra Kalra v. Kulvinder Singh Bhatia, Prasanna B Varale, Aravind Kumar, JJ., 2026 INSC 492, while considering Order XV Rule 5 CPC (U.P. Amendment), held to the following effect:

Under Order XV Rule 5 CPC (U.P. Amendment), if any default in payment of rent, the trial court can determine, at the ‘first date of hearing’ of the suit –

  • 1. whether the default is wilful or bonafide
  • 2. whether there has been due compliance or substantial compliance with the requirements of Order XV Rule 5 CPC;

The Court further pointed out – (i) Striking off is not entirely automatic; the tenant may explain the default and seek the Court’s indulgence. (ii) If such an order is passed, there should be a reasoned order, after affording adequate opportunity to both parties.

Earlier Decisions Referred by the Apex Court

1. Bimal Chand Jain v. Sri Gopal Agarwal, (1981) 3 SCC 486 where in it is observed:

  • 6. It seems to us on a comprehensive understanding of Rule 5 of Order 15 that the true construction of the Rule should be thus. Sub-rule (1) obliges the defendant to deposit, at or before the first hearing of the suit, the entire amount admitted by him to be due together with interest thereon at the rate of nine per cent per annum and further, whether or not he admits any amount to be due, to deposit regularly throughout the continuation of the suit the monthly amount due within a week from the date of its accrual. In the event of any default in making any deposit, “the court may subject to the provisions of sub-rule (2) strike off his defence”. We shall presently come to what this means. Sub-rule (2) obliges the court, before making an order for striking off the defence to consider any representation made by the defendant in that behalf. In other words, the defendant has been vested with a statutory right to make a representation to the court against his defence being struck off. If a representation is made the court must consider it on its merits, and then decide whether the defence should or should not be struck off. This is a right expressly vested in the defendant and enables him to show by bringing material on the record that he has not been guilty of the default alleged or if the default has occurred there is good reason for it. Now, it is not impossible that the record may contain such material already. In that event, can it be said that sub-rule (1) obliges the court to strike off the defence? We must remember that an order under sub-rule (1) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. It will always be a matter for the judgment of the court to decide whether on the material before it, notwithstanding the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word “may” in sub-rule (1) merely vested power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand [ Civil Revision No. 356 of 1978, decided on October 30, 1980] . We are of opinion that the High Court has placed an unduly narrow construction on the provisions of clause (1) of Rule 5 of Order 15.

2.  Santosh Mehta v. Om Prakash (1980) 3 SCC 610, wherein it is held:

  • “2. Rent Control laws are basically designed to protect tenants because scarcity of accommodation is a nightmare for those who own none and, if evicted, will be helpless. Even so, the legislature has provided some grounds for eviction, and the Delhi law contains an extreme provision for striking out altogether the defence of the tenant which means that even if he has excellent pleas to negative the landlords’s claim the court will not hear him. Obviously, this is a harsh extreme and having regard to the benign scheme of the legislation this drastic power is meant for use in grossly recalcitrant situations where a tenant is guilty of disregard in paying rent. That is why a discretion is vested, not a mandate imposed. Section 15(7) reads thus:
  • “If a tenant fails to make payment or deposit as required by this section, the Controller may order the defence against eviction to be struck out and proceed with the hearing of the application.”
  • 3. We must adopt a socially informed perspective while construing the provisions and then it will be plain that the Controller is armed with a facultative power. He may, or may not strike out the tenant’s defence. A judicial discretion has built-in-self-restraint, has the scheme of the statute in mind, cannot ignore the conspectus of circumstances which are present in the case and has the brooding thought playing on the power that, in a court, striking out a party’s defence is an exceptional step, not a routine visitation of a punitive extreme following upon a mere failure to pay rent. First of all, there must be a failure to pay rent which, in the context, indicates wilful failure, deliberate default or volitional non-performance. Secondly, the section provides no automatic weapon but prescribes a wise discretion, inscribes no mechanical consequence but invests a power to overcome intransigence. Thus, if a tenant fails or refuses to pay or deposit rent and the court discerns a mood of defiance or gross neglect, the tenant may forfeit his right to be heard in defence. The last resort cannot be converted into the first resort; a punitive direction of court cannot be used as a booby trap to get the tenant out. Once this teleological interpretation dawns, the mist of misconception about matter-of-course invocation of the power to strike out will vanish. Farewell to the realities of a given case is playing truant with the duty underlying the power.” (emphasis supplied)

3. Siraj Ahmad Siddiqui v. Prem Nath Kapoor, (1993) 4 SCC 406, wherein it is observed:

  • “12. A few provisions of the said Act and of the Code of Civil Procedure, 1908, need to be examined. Section 38 of the said Act states that the provisions thereof would have effect notwithstanding anything inconsistent therewith contained in the Code. Order V, Rule 1 of the Code states that when a suit has been duly instituted summons may be issued to the defendant to appear and answer the claim on a day to be therein specified, provided that no summons need be issued when the defendant has appeared at the presentation of the plaint and admitted the plaintiff’s claim. Where the summons is issued the court may direct the defendant to file a written statement on the date of his appearance and cause an entry to that effect to be made in the summons. Order V, Rule 5 provides that in every suit heard by a Court of Small Causes (which the trial court was) the summons shall be for the final disposal of the suit. Order VIII, Rule 1 of the Code uses the expression first hearing and it says that the defendant shall on or before the first hearing or within such time as the court may permit present a written statement of his defence. The court is called upon to frame issues under the provisions of Order XIV, Rule 3 on the basis of the pleadings and documents of either party to the suit.
  • 13. The date of first hearing of a suit under the Code is ordinarily understood to be the date on which the court proposes to apply its mind to the contentions in the pleadings of the parties to the suit and in the documents filed by them for the purpose of framing the issues to be decided in the suit. Does the definition of the expression “first hearing” for the purposes of Section 20(4) mean something different? The step or proceeding mentioned in the summons referred to in the definition should, we think, be construed to be a step or proceeding to be taken by the court for it is, after all, a “hearing” that is the subject-matter of the definition, unless there be something compelling in the said Act to indicate otherwise; and we do not find in the said Act any such compelling provision.
  • Further, it is not possible to construe the expression “first date for any step or proceeding” to mean the step of filing the written statement, though the date for that purpose may be mentioned in the summons, for the reason that, as set out earlier, it is permissible under the Code for the defendant to file a written statement even thereafter but prior to the first hearing when the court takes up the case, since there is nothing in the said Act which conflicts with the provisions of the Code in this behalf. We are of the view, therefore, that the date of first hearing as defined in the said Act is the date on which the court proposes to apply its mind to determine the points in controversy between the parties to the suit and to frame issues, if necessary.

4.  Salem Advocate Bar Association v. Union of India4 4 (2005) 6 SCC 344, wherein it is held:

  • 20. The use of the word “shall” in Order 8 Rule 1 by itself is not conclusive to determine whether the provision is mandatory or directory. We have to ascertain the object which is required to be served by this provision and its design and context in which it is enacted. The use of the word “shall” is ordinarily indicative of mandatory nature of the provision but having regard to the context in which it is used or having regard to the intention of the legislation, the same can be construed as directory. The rule in question has to advance the cause of justice and not to defeat it. The rules of procedure are made to advance the cause of justice and not to defeat it. Construction of the rule or procedure which promotes justice and prevents miscarriage has to be preferred. The rules of procedure are the handmaid of justice and not its mistress. In the present context, the strict interpretation would defeat justice.

Alpha Corp Development Private Limited v. Greater Noida Industrial Development: Findings on Lifting Corporate Veil of Companies and Subsidiary Companies

Jojy George Koduvath

In Alpha Corp Development Private Limited v. Greater Noida Industrial Development (Sanjay Kumar Alok Aradhe, JJ.), 2026 INSC 449, the Supreme Court of India considered – Lifting Corporate Veil of Companies and Subsidiary Companies.

Findings on Lifting Corporate Veil, in a Nutshell

  • 1. Each case that comes before a Court, in the context of lifting of the corporate veil, would have to turn upon its own individual facts.
  • 2. In BRS Ventures Investments Limited vs. SREI Infrastructure Finance Limited and another,  (2025) 1 SCC 456, it is reiterated that a holding company and its subsidiaries are distinct legal entities and merely because the holding company owns the entire shareholding in the subsidiary company, it would not dilute its separate legal existence. No doubt, the concept of holding companies and subsidiary companies is firmly entrenched in our corporate scenario and once it is established that the holding and subsidiary companies are independent legal entities in their own right, the sanctity of such legal status has to be maintained unless circumstances exist that require lifting/piercing of the corporate veil.”
  • 3. In Life Insurance Corporation of India vs. Escorts Ltd. and others (1986) 1 SCC 264  in the context of lifting of the corporate veil:
    • “…..Generally and broadly speaking, we may say that the corporate veil may be lifted where a statute itself contemplates lifting the veil, or fraud or improper conduct is intended to be prevented, or a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be, in reality, part of one concern.”
  • 4. In ArcelorMittal India Private Limited vs. Satish Kumar Gupta and others, (2019) 2 SCC 1, this Court affirmed that where protection of public interest is of paramount importance or where a company has been formed to evade obligations enforced by law and by the Courts, the Court would disregard the corporate veil.
  • 5. In reality, associated or group companies are inextricably connected so as to form part of one concern, the corporate veil should be lifted.

The relevant paragraphs are 53 to 56.

They read as under:

  • “53. “The sheet anchor of GNIDA’s case (Greater Noida Industrial Development Authority) is that the assets of subsidiary companies cannot be made part of the assets of the holding company that was subjected to CIRP proceedings. Section 2(87) of the Companies Act, 2013, defines a subsidiary company or subsidiary to mean a separate legal entity. Reliance was placed by GNIDA upon the recent judgment of this Court in BRS Ventures Investments Limited vs. SREI Infrastructure Finance Limited and another  (2025) 1 SCC 456, which reiterated that a holding company and its subsidiaries are distinct legal entities and merely because the holding company owns the entire shareholding in the subsidiary company, it would not dilute its separate legal existence. No doubt, the concept of holding companies and subsidiary companies is firmly entrenched in our corporate scenario and once it is established that the holding and subsidiary companies are independent legal entities in their own right, the sanctity of such legal status has to be maintained unless circumstances exist that require lifting/piercing of the corporate veil. The question that arises is whether this was a fit case to lift the corporate veil. Though the NCLAT was averse to doing so, we are inclined to hold otherwise. In that regard, we may refer to the observations of a Constitution Bench in Life Insurance Corporation of India vs. Escorts Ltd. and others (1986) 1 SCC 264  in the context of lifting of the corporate veil:
    • ‘…..Generally and broadly speaking, we may say that the corporate veil may be lifted where a statute itself contemplates lifting the veil, or fraud or improper conduct is intended to be prevented, or a taxing statute or a beneficent statute is sought to be evaded or where associated companies are inextricably connected as to be, in reality, part of one concern. It is neither necessary nor desirable to enumerate the classes of cases where lifting the veil is permissible, since that must necessarily depend on the relevant statutory or other provisions, the object sought to be achieved, the impugned conduct, the involvement of the element of public interest, the effect on parties who may be affected, etc.’
  • 54. As is clear from the aforestated observations when, in reality, associated or group companies are inextricably connected so as to form part of one concern, the corporate veil should be lifted. Applying this principle in ArcelorMittal India Private Limited vs. Satish Kumar Gupta and others (2019) 2 SCC 1, this Court affirmed that where protection of public interest is of paramount importance or where a company has been formed to evade obligations enforced by law and by the Courts, the Court would disregard the corporate veil. It was further observed that this principle would be applied even to group companies so that one is able to look at the economic entity of the group as a whole.
  • 55. Neo Multimedia Limited and Nishtha Software Private Limited were both wholly owned subsidiaries of EIL (Earth Infrastructures Limited), the CD (Earth Infrastructures Limited, the corporate debtor). They had leases over the lands in which EIL was to develop the projects, viz., Earth TechOne and Earth Sapphire Court. ETIPL was incorporated only to enable GNIDA’s leasing of land for development of Earth Towne and was controlled by EIL, with a 98% shareholding. ETIPL, therefore, stands on a different footing from the other two companies, insofar as GNIDA is concerned. In any event, we may note that all three companies either share common directors with EIL and/or have their relations as directors. The only assets of the three companies were the lands leased out to them by GNIDA for these projects. The companies’ shareholdings indicate that EIL was the dominant and majority shareholder.
  • 56. Further, GNIDA was clearly aware that it was EIL, the CD, that was developing the projects on the lands leased out by it to the three companies. GNIDA cannot claim ignorance of this on the mere ground that it was not a party to the development agreements/MoU. This was the situation in relation to two projects – Earth Sapphire Court as well as Earth TechOne. Insofar as Earth Towne is concerned, as already stated, GNIDA itself required the consortium of the three companies to incorporate a SPC and it was pursuant to this requirement, that ETIPL was brought into existence. Further, the lease deed executed by GNIDA in favour of ETIPL made it clear that EIL was to be the lead member of ETIPL, retaining its majority shareholding as well as its lead role. It is an admitted fact that EIL, which had a 78% shareholding in ETIPL, increased it to 98%. ETIPL executed an agreement conferring the right to develop the project on the leased land in favour of EIL. GNIDA cannot, therefore, look askance at the role played by EIL in the development of Earth Towne. More so, in the light of its own letter to the police authorities acknowledging EIL’s role in the development of Earth Towne, which we have already referred to. In effect, GNIDA cannot claim ignorance of the constructions by EIL in relation to all three projects. Each case that comes before a Court, in the context of lifting of the corporate veil, would have to turn upon its own individual facts. Given the facts obtaining presently, we are of the firm view that this was an eminently fit case for lifting the corporate veil, as EIL was the main driving force in the development of the projects and in payment of GNIDA’s dues. The subsidiary companies were only a front. In the light of this finding, we deem it unnecessary to deal with the issue raised in the context of Sections 18 and 25 of the Code, apropos the scope of the term ‘assets’.”

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Civil Suits: Procedure & Principles

Book No, 1 – Civil Procedure Code

Principles and Procedure

PROPERTY LAW

Title, ownership and Possession

Recovery of Possession: 

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

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

Dispossession and Knowledge: Essential Requirements of Adverse Possession

Though these requirements are are not expressly spelt out in Article 65 of the Limitation Act, as well as in the maxim nec vi, nec clam, nec precario, they are implicit in this Article and in this maxim.

Saji Koduvath, Advocate, Kottayam.

Abstract

Two distinctive and interrelated key elements are emphasised in the law of adverse possession in India:

  • First, intention of the claimant—to possess the land of another with a positive intent to dispossess him; and
  • Second, knowledge of the true owner—possession of the claimant must be open and hostile enough to impute knowledge thereof to the true owner.

These elements of ‘dispossession‘ and the true owner’s knowledge are not expressly stated either in Article 65 of the Limitation Act, 1963, or in the classic trinity—nec vi, nec clam, nec precario—but have been developed through judicial exposition by the Supreme Court of India.

The following are the leading decisions in Indian law on this issue:

  • T. Anjanappa v. Somalingappa, 2006-7 SCC 570 (Arijit Pasayat and Lokeshwar Singh, Panta, JJ.)’
  • PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753 (S.B. Sinha and Markandey Katju, JJ.),

Key Takeaways

1. Article 65 of the Limitation Act, 1963, lays down the period of limitation for adverse possession as 12 years. It reads as under:

65. For possession of immovable property or any interest therein based on title.12 yearsWhen the possession of defendant becomes adverse to the plaintiff.

2. The words in Article 65 — ‘when the possession of the defendant becomes adverse to the plaintiff‘ — necessarily contemplate a “knowledge” on the part of the plaintiff. Such ‘knowledge‘ must have been perceived or obtained by the true owner from the claimant’s open, hostile and notorious acts asserting title.

3. Though the doctrine of adverse possession is statutorily recognised, it is not expressly defined in any statute. Indian common law requires the co-existence of the classic trinity—nec vi, nec clam, nec precario. It can be explained as under:

  • Nec vi: i.e. not by force –implying peaceability,
  • Nec clam: i.e. not in secrecy – implying publicity, and
  • Nec precario: i.e. not by permission –implying possession without the true owner’s consent, and thus adverse to him.

4. In adverse possession, the claimant’s intention to possess (animus possidendi) is decisive. The state of mind of the true owner is not determinative. What matters is the claimant’s outward assertion of hostile possession, sufficient to impute (and thereby infer) knowledge to the owner.

  • (‘Animus‘, in Latin, denotes “intention” or “state of mind;”
  • ‘possidendi‘ means “to possess.”)

5. The ‘animus’ required for adverse possession is the animus to possess the land, coupled with the conscious aim and objective of ‘dispossessing‘ the true owner.

6. To establish the requirement ‘adverse’, the trespasser must know who the true owner is.

7. The doctrine of animus possidendi and the classical common-law formulation—nec vi, nec clam, nec precario—are widely recognised across common-law jurisdictions, including the United Kingdom, Australia, Canada, New Zealand, the United States, Ireland, Singapore, Malaysia, and several Caribbean and African countries.

  • Distinctive features of Indian law: The specific requirements of dispossession and the true owner’s knowledge are peculiarities of Indian law. It flows from the language of Article 65—“when the possession of the defendant becomes adverse to the plaintiff.”

8. The distinctive statutory phrasing in the Indian law (“when the possession of the defendant becomes adverse to the plaintiff”) casts the burden of proof on the claimant.

9. In other Commonwealth jurisdictions, the statutes focus on the accrual of the right of action the moment the owner is dispossessed; they do not qualify it as the possession “becomes adverse.”

  • 1. United Kingdom (England & Wales): Section 15 of the Limitation Act 1980, – 12 years from the date on which the “right of action accrued.”
  • 2. Malaysia: Section 9 of the Limitation Act, 1953 – 12 years from the date the “right of action first accrued.”
  • 3. Singapore: Section 9 of the Singapore Limitation Act (Chapter 163) – 12 years when the right of action accrues.
  • 4. Australia: Vary by state, but they generally follow the “accrual of right”.
  • 5. Canada: “When the right to make an entry or distress or to bring an action first accrued.”

“Becomes Adverse to the Plaintiff”

Article 65 of the Limitation Act reads—“becomes adverse to the plaintiff”. It directly embraces doctrines of dispossession and the owner’s knowledge. In other common-law jurisdictions, these requirements do not remain in statutes; they exist only as implicit or judge-made inferences.

“Knowledge” as to Adverse Possession

Drastic changes have been made to the law on Adverse Possession by the 1963 Limitation Act. It introduced the words – “when the possession of the defendant becomes adverse to the plaintiff“.

Acts and Claims must be Hostile Enough to bring the Knowledge of the Owner

The ‘knowledge’ required to establish adverse possession is that which is brought home to the true owner through the claimant’s positive, open, and hostile acts, sufficient to convey a clear assertion of title adverse to the owner.

In State Bank of Travancore v. A. K. Panicker, AIR 1971 SC 996, (1972) 4 SCC 274 (G.K. Mitter, K.S. Hegde, P. Jaganmohan Reddy), it was held as under:

  • “9. Now coming to the question of adverse possession, there is conclusive evidence to show that the suit property was at all times in the possession of the tenants of the Tharwad referred to earlier. Krishnan Krishnan, Vellu and Kuruvilla at best could have only collected the rent. The evidence in this regard has been discussed in detail by the learned judge of the High Court. It is not necessary to deal with that evidence over again. We accept the conclusion of the learned judge that the suit property was all along in the possession of the tenants. Further as Krishnan Krishnan had only a lien over the property for the amount advanced by him his possession of the suit property which in this case is symbolical, must be held to be a permissive possession. The possession of Vellu and Kuruvilla for the same reason must be held to be permissive possession.  A permissive possession cannot be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the property to the knowledge of true owners for a period of twelve years or more. There is no evidence to show that either Krishnan Krishnan or Vellu or Kuruvilla asserted any hostile title to the suit property to the knowledge of the true owners at any time before the present suit.”

Upholding the decree of the trial court, it was observed in State Bank of Travancore v. A.K. Panicker (SBT v. Aravindan Kunju Panicker), AIR 1971 SC 996, (1972) 4 SCC 274, as under in Para 4 of this decision

  • “4. The trial Court came to the conclusion that Krishnan Krishnan, in law, can only be an agent of the plaintiffs in the first suit. He can only have a lien over the suit property, and the subsequent purchasers of his right can have no better title than what Krishnan Krishnan had. That Court also repelled the contention of the contesting defendants that Krishnan Krishnan or those who acquired his rights had perfected their title to the suit property by adverse possession. It held that the possession of Krishnan Krishnan was permissive and the same could not be considered as being adverse to the real owners. It further held that the property in question was always in the possession of the tenants, and it was never in the possession of Krishnan Krishnan or those who purchased his rights. It also held that there is no evidence to show that either Krishnan Krishnan or the subsequent purchasers of the suit property ever to the knowledge of the true owners asserted hostile title to the property.”
  • (Referred to in Pt. Shamboo Nath Tikoo v, S. Gian Singh, 1995 Supp 3 SCC 266.)

In T. Anjanappa v. Somalingappa, 2006-7 SCC 570, it is held as under:

  • “It is well recognized proposition in law that mere possession however long does not necessarily means that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owners title must be peaceful, open and continuous.The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action.”
  • (Quoted in: Annakili v. A. Vedanayagam, AIR 2008 SC 346; 2007-14 SCC 308,
  • Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517,
  • Annakili v. A. Vedanayagam, AIR 2008SC 346; 2007 14 SCC 308,
  • Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316.
  • See also: PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753,
  • Mallikarjunaiah v. Nanjaiah, 2019-15 SCC 756.)

Therefore, one line of enquiry in a case of adverse possession, will be –

  • whether the true owner had the required knowledge of the hostile acts of the claimant
  • and was there a means or chance of knowing such hostile acts.

Does registration of a deed work against true owner in suits on ‘Adverse Possession’

In Arabia Bibi v. Sarbunnisa (2011, R. Subbiah, J., Madras High Court), the suit property was sold only within the family members. Therefore, the co-owner against whom adverse possession was claimed was not in a position to know about the sale. She knew only at a later point of time. Hence it was held – that the registration is only a constructive notice to the person who has subsequently acquired such property (Explanation I of Sec. 3 of the Transfer of Property Act); and that if the proposition  that the registration is a notice to the entire world is accepted, it would defeat the legitimate right of the co-sharers.

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

Intention to Dispossess; Long Mistaken Possession Not Enough

The ‘animus’ or intention required for adverse possession is not the mere intention to possess, but an intention to possess in a manner that effectively excludes or dispossesses the true owner.

  • Article 65, Limitation Act, lays down the period of 12 years from ‘dispossession‘.
  • Therefore, the ‘animus’ required in adverse possession is animus to possess, coupled with the conscious intent to ‘dispossess‘ the true owner.

In PT Munichikkanna Reddy v. Revamma, AIR 2007 SC 1753, it is observed as under:

  • “Thus, there must be intention to dispossess. And it needs to be open and hostile enough to bring the same to the knowledge and plaintiff has an opportunity to object. After all adverse possession right is not a substantive right but a result of the waiving (willful) or omission (negligent or otherwise) of right to defend or care for the integrity of property on the part of the paper owner of the land. Adverse possession statutes, like other statutes of limitation, rest on a public policy that do not promote litigation and aims at the repose of conditions that the parties have suffered to remain unquestioned long enough to indicate their acquiescence.”

It is finally held as under:

  • “The question is whether it is a case of mistaken possession ignoramus of the previous sale or adverse possession having the mental element in the requisite degree to dispossess.”

‘Peaceful Possession’ Denotes Owner’s Inaction Despite Knowledge of Hostile Claim

‘Peaceful possession’ is an essential ingredient in perfecting adverse possession. It is embedded in the requirement of nec vi (not by force). It denotes possession of the claimant that continues without disturbance, notwithstanding his open and hostile acts. In other words, despite such acts—sufficient to make out knowledge of the adverse claim to the true owner—the owner fails to take steps to resist or interrupt such (hostile or unauthorised) possession.

In Ravinder Kaur Grewal v. Manjit Kaur, (2019) 8 SCC 729, it has been held as under:

  • “60. The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence, he would have known it.”
  • (Quoted in: Neelam Gupta v. Rajendra Kumar Gupta, AIR 2024 SC 5374; Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46; Krishnamurthy S. Setlur v. OV Narasimha Setty, 2020-12 SCC 244.)

In Nand Ram v.  Jagdish Prasad, (2020) 9 SCC 393, it is pointed out:

  • “The respondent was to prove his continuous, open and hostile possession to the knowledge of true owner for a continuous period of 12 years. The respondent has not led any evidence of hostile possession to the knowledge of true owner.”

See also:

  • Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan, 2009-16 SCC 517,
    Annakili v. A. Vedanayagam, AIR 2008SC 346; 2007 14 SCC 308,
    Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316

Owner must have Failed to Respond the ‘Notorious facts’ 

To invite adverse possession, the owner must have failed to ‘take notice of‘ the ‘notorious facts‘,  despite the knowledge of the acts (of the claimant) under the colour of a hostile title.

In P. Lakshmi Reddy v. L Lakshmi Reddy, 1957 SCR 195, it was observed as under:

  • “7…Consonant with this principle, the commencement of adverse possession, in favour of a person, implies that the person is in actual possession, at the time, with a notorious hostile claim of exclusive title, to repel which, the true owner would then be in a position to maintain an action. It would follow that whatever may be the animus or intention of a person wanting to acquire title by adverse possession his adverse possession cannot commence until he obtains actual possession with the requisite animus.” (Quoted in: M Siddiq v. Mahant Suresh Das, 2020-1 SCC 1)

In Mohan Lal v. Mirza Abdul Gaffar, (1996) 1 SCC 639, it was observed as under:

  • “4. As regards the first plea, it is inconsistent with the second plea. Having come into possession under the agreement, he must disclaim his right thereunder and plead and prove assertion of his independent hostile adverse possession to the knowledge of the transferor or his successor in title or interest and that the latter had acquiesced to his illegal possession during the entire period of 12 years, i.e., up to completing the period of his title by prescription nec vi, nec clam, nec precario. Since the appellant’s claim is founded on Section 53-A, it goes without saying that he admits by implication that he came into possession of the land lawfully under the agreement and continued to remain in possession till date of the suit. Thereby the plea of adverse possession is not available to the appellant.”

Should the Party claim Adverse Possession must KNOW the Actual Owner? 

Yes.

In M. Radheshyamlal v. V. Sandhya, (Abhay S. Oka & Ujjal Bhuyan, JJ.), AIR 2024 SC 1595, as under:

  • “12. Therefore, to prove the plea of adverse possession:-
  • (a) The plaintiff must plead and prove that he was claiming possession adverse to the true owner;
  • (b) The plaintiff must plead and establish that the factum of his long and continuous possession was known to the true owner;
  • (c) The plaintiff must also plead and establish when he came into possession; and
  • (d) The plaintiff must establish that his possession was open and undisturbed.
  • It is a settled law that by pleading adverse possession, a party seeks to defeat the rights of the true owner, and therefore, there is no equity in his favour. After all, the plea is based on continuous wrongful possession for a period of more than 12 years. Therefore, the facts constituting the ingredients of adverse possession must be pleaded and proved by the plaintiff.
  • 13. … When a party claims adverse possession, he must know who the actual ownerof the property is. Secondly, he must plead that he was in open and uninterrupted possession for more than 12 years to the original owner’s knowledge….”

If it is Not SURE for the Claimant who is the True Owner, No Adverse Possession

Adverse possession is hostile possession which is expressly or impliedly in denial of title of the true owner. To attract adverse possession there must be animus possidendi to hold the land adverse to the title of the true owner (Chatti Konati Rao v. Palle Venkata Subba Rao, 2010-14 SCC 316; M. Venkatesh v. BDA, 2015-17 SCC 1; Brijesh Kumar v. Shardabai, 2019-9 SCC 369) with the knowledge of the true owner.

If the defendants are not SURE who the true owner is, there will be no question of possessing the property hostile to the true owner.

In T. Anjanappa v. Somalingappa, 2006-7 SCC 570, it is held as under:

  • …The High Court has erred in holding that even if the defendants claim adverse possession, they do not have to prove who is the true owner and even if they had believed that the Government was the true owner and not the plaintiffs, the same was inconsequential. Obviously, the requirements of proving adverse possession have not been established. If the defendants are not SURE who is the true owner the question of their being in hostile possession and the question of denying title of the true owner do not raise…… Therefore, the defendants are in possession and enjoyment of the property knowing fully well that the property belonged to the plaintiff’s father and the plaintiff’s vendor also did not take any action to evict them and the plaintiff and his vendor were aware that the properties belonged to them and despite the same, the plaintiff’s vendor did not take any action to evict them. Hence, the appellants/defendants have also perfected title by adverse possession. Therefore, the 2nd substantial question of law of is answered in favour of the appellants/defendants.”
  • (Followed in: .
    • T. Munichikkanna Reddy v. Revamma, (2007) 6 SCC 59;
    • Uttam Chand v. Nathu Ram, 2020-11 SCC 263, AIR  2020 SC 46)

Conclusion

  • Adverse possession, under Indian law, is generally expressed in terms of an intention to possess (animus possidendi).
  • It is further qualified by the requirement that such possession must be nec precario, i.e., not by permission (of the true owner).
  • In its settled common law formulation (over and above the statutory period fixed in Article 65, Limitation Act), adverse possession must be:
    • hostile in character;
    • open and notorious;
    • manifested through overt acts which exclude and dispossess the true owner; and
    • of such a nature as to bring home knowledge of the adverse claim to the true owner.
  • The phrase “becomes adverse to the plaintiff” in Article 65 of the Limitation Act supports the doctrines of dispossession and the owner’s knowledge.
Read Book No. 5
•  Adverse Possession: A Concise Overview
•  What is Adverse Possession in Indian Law?
•   Adverse Possession: Dispossession and Knowledge
•   Adverse Possession: Admission of Title of Other Party
•   Ouster and Dispossession in Adverse Possession
•   Does ‘Abandonment’ a Recognised Right in Indian Law?
•   Illegal or Fraudulent Regn. of Deed: No Adverse Possession
•   Does 12 Years’ Unobstructed Possession Precede the Suit?
•   Prescriptive Rights – Is it Inchoate until Upheld by Court
•   Sec. 27, Limitation Act: Right to Declaration and Recovery
•  Declaration & Recovery: Art. 65, not Art. 58 Governs
•  ‘Possessory Title’ in Indian Law
•   Possession: a Substantive Right Protected in Indian Law
•   Recovery Based on Title and on Earlier Possession
•   ‘Possession is Good Against All But the True Owner’
•   When ‘Possession Follows Title’; ‘Title Follows Possession’
•   Can a Tenant Claim Adverse Possession
•   Adverse Possession Against Government
•   Is Registration of a Deed, Notice to Govt. and Public?
•   Government of Kerala v. Joseph
•   Adverse Possession: UK and US Law and Classic Decisions
•   22nd Law Commission  Report
•  How to Plead Adverse Possession? 

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