Op EdsOP. ED.

   

Introduction

The doctrine of res gestae has always remained one of the most confusing topics in the law of evidence. Stephen, the framer of “the Evidence Act, 18721” adopted a unique approach while dealing with this problem. His approach entails distinguishing between “facts” and “evidence”, and “relevance” and “admissibility”. However, the Indian courts never seem to have adopted this approach of Stephen, rather they remained highly influenced by the common law courts.

Sukhar v. State of U.P.2 is one such judgment wherein the Court neglected the approach of Stephen and resorted to the approach prevalent in common law courts to solve the case at hand. The brief facts of the case are that Sukhar, the accused who was arrested and charged for shooting his nephew, Nakkal owing to the previous enmity between them. There were two witnesses who helped the injured Nakkal and Nakkal told one of these witnesses that Sukhar shot him.3 The point of contention was that these witnesses did not see Sukhar as they arrived later at the scene, so whether this statement of Nakkal made to the witness, comes under Section 64? The Court resorted to some earlier precedents of the Court and treated the entire issue as the issue of admissibility of the witness's statement as to what Nakkal said to him.5 The Court treated Nakkal's statement as part of res gestae and hence admissible under Section 6.6

This paper analyses the judgment in Sukhar7. In the first section, I argue that the approach of reading res gestae into Section 6 is erroneous and against the scheme and intention of the Act. I will show how interpreting res gestae in Section 6 creates confusion and ambiguity rather than solving the problem. In the second section, I will analyse the influence of Thayer and other scholars on the Court's judgment. I will argue that the Court has actually adopted Thayer's way of analysis rather than Stephen's way. The Court's approach of ignorance of “relevance” and looking into “admissibility” seems to be influenced by Thayerite analysis of evidence. Finally, in the third section, I will look into the correct approach in line with Stephen's intention and scheme of the Evidence Act that the Court ought to have adopted in Sukhar8.

The reading of “res gestae” into Section 6

In Sukhar9, the Court clearly said that Section 6 of the Evidence Act is actually the doctrine of res gestae.10 It is submitted that this approach of the Court directly goes against the scheme of the Evidence Act. Stephen considered “relevancy” to be the first principle of evidence law.11 He laid down specific sections that dealt with “relevancy” in the Act. Only those facts that fall under those sections were considered relevant under Section 3 of the Evidence Act.12 Section 6 is one of those sections that come under the chapter of “relevancy”. Therefore, all those facts that satisfy the requirement of Section 6 are “relevant”. However, when the Court applied the doctrine of res gestae, they actually delved into matters of “admissibility” and “evidence”. Section 6 is not at all concerned with these concepts.

Stephen has a different scheme wherein the “relevancy” was applicable to “facts”13 while “admissibility” was applicable to “evidence”. His definition of “evidence” is limited to only direct “oral” and “documentary” evidence14 and admissibility applies to only those evidence15. On the other hand, “facts” entail a broader domain and if any fact comes within the definitions provided in the “relevancy” chapter and it is proved through admissible evidence then the Court can infer certain other facts from it.16 Therefore, this provides certain discretion to the Court. However, if the Court reads Section 6 as res gestae, then the Court will be bound to admit such facts as evidence and hence it reduces the discretion of the court.

Besides this, the doctrine of res gestae is considered to be one of the most confusing doctrines in the evidence law and the use of this doctrine has created several problems and confusions in other jurisdictions.17 The same confusion is created in India because of the use of this doctrine. The Court in UK In cases like R. v. Bedingfield and Ratten v. R. has formulated the tests of “spontaneity” and “contemporaneity” to limit the application of this doctrine.18 The Indian Courts in cases like Gentela Vijayavardhan Rao v. State of A.P.19 have also applied these tests; however, these tests limit the application of the section in terms of place and time which goes entirely against the language used in Section 6 [if we look at the Illustration (a) to the section].

Therefore, the Court in Sukhar20 has erred in reading res gestae into Section 6 as this created several ambiguities in the application of the section. This approach also goes against the scheme of the Act itself. Moreover, it creates unnecessary restrictions on the use of the section that is neither mentioned nor intended in the language of section.

The impact of Thayer and other scholars on the Court's reasoning

The Court's approach of giving prominence to principle of “admissibility” over “relevancy” is highly influenced by the theories of Thayer and other similar scholars. The reason for the Court's reading of res gestae in Section 6 is that they gave more importance to the principle of “admissibility” and completely misunderstood the principle of “relevancy”. This is the same approach adopted by Thayer and some other scholars.

Starting with Thayer, his theory considered “admissibility” to be the main principle of evidence law. According to him, “relevancy” is not the issue of law; rather it must be understood by logic.21 He says that there lies a “rule of exclusion” wherein only the logically relevant facts are allowed, and all other facts are rejected by the courts.22 However, this is merely a process of logic applied by the courts and there cannot be any law that can lay down any rule regulating this logic. Rather, the evidence law is majorly concerned with “admissibility” of these logically relevant facts.23 The evidence law lays down certain rules that actually exclude certain relevant (logically) facts because of public policy, etc.24 However, if there is any exception to such exclusionary rules then the evidence can become admissible.25

This is the main theory of Thayer and based on this, he criticises Stephen saying that wherever Stephen says “relevancy”, it appears to be only relevancy that is logical and not legal.26 Moreover, Stephen is highly unclear of his use of the word “relevancy”. Thayer also gives the example of “hearsay rule” saying that hearsay is always a relevant fact logically; however, it is not used in courts, because it is deemed inadmissible by the application of evidence law.27

This criticism of Stephen is also done by many other scholars like G.D. Nokes. Nokes makes a similar point and says that wherever the word “relevancy” is used by Stephen, it can be substituted with the word “admissibility”.28 As mentioned in the previous section, Stephen did have a well-defined theory of “relevancy” and he believed that it can solve many problems prevailing in other jurisdictions. Unfortunately, his rather unique theory was neither understood by these scholars nor by the Indian courts.

If we analyse the judgment in Sukhar29, it gives prominence to the principle of “admissibility.” The Court explains that how Section 6 is actually a part of exceptions to hearsay.30 Now, as per Thayer, hearsay is an exclusionary rule that restricts the use of certain logically relevant facts. The only way through which a fact can be admitted is that it has to fall within any exception to this exclusionary rule.31 The Court adopted an approach wherein Nakkal's statement is considered to be a relevant fact (logically) that is barred by the hearsay rule.32 It can become admissible only if it lies in any “exception” to the exclusionary rule of hearsay. The Court considered res gestae to be that exception and also cited Gentela Vijayavardhan Rao v. State of A.P.33 to elaborate on the reasons for admitting Nakkal's statement.34

Therefore, their reasoning of treating Section 6 as an “exception” to hearsay is consistent with the theory of Thayer rather than Stephen's. As per Stephen, there was no need to consider Section 6 as an exception to hearsay rather that section must have been considered as an independent section with its own self-defining boundaries for ascertaining “relevancy”.35

Secondly, it must be noticed that Thayer's theory treats the same logically relevant fact as evidence once it is admissible.36 In Stephen's analysis, there are two different types of inferences made, one is made from a “relevant” fact, and the other is made from “admissible” evidence.37 However, in Thayer's theory the same relevant fact gets admitted as evidence. The Court in Sukhar38 adopted a similar approach wherein the logically “relevant” fact i.e. Nakkal's statement was admitted as “evidence” after passing the test of “admissibility”.

Besides this, the Court in Sukhar39 also cites a paragraph from Wigmore's book on evidence.40 This fact itself shows the influence of Thayer. This is because Wigmore was a student of Thayer and there are some similarities between the theories of both these scholars.41 Wigmore's theory is based on establishing a distinction between “proof” and “admissibility”.42 He says that it is the latter that forms the part of evidence law. Therefore, even Wigmore's view of the evidence law is quite similar to Thayer because even he limits the function of evidence law in laying down certain exceptions to the admissibility of certain evidence. Similarly, even on the point of hearsay, Wigmore considered it to be inadmissible rather than irrelevant.43

Since, the basic foundation of Wigmore's theory is different and is inclined towards Thayer to an extent44; his entire analysis of evidence law is based on this foundation. Therefore, the Court was wrong in citing Wigmore's view on res gestae because his views were based on an entirely different understanding of the evidence law. It further proves how the Court has subconsciously accepted the Thayerite view.

It must also be noticed that the Thayer's way that Sukhar45 adopted also left a significant impact on the future decisions of the Supreme Court and the High Courts. For example, in cases like Bhairon Singh v. State of M.P.46 and State of M.P. v. Ramesh47 the Supreme Court reiterated the same analysis of Sukhar48 wherein the Court looked into the issues of admissibility, exceptions to hearsay and also treating same “relevant” fact as “admissible” evidence. These cases also cite the same reasoning of Sukhar49 to explain the reasons for admitting these statements in evidence. It is submitted that the erroneous approach of Sukhar50 of giving primacy to “admissibility” got completely embedded in the Indian courts' jurisprudence. Since the function of evidence law is considered to be “admissibility” and not relevancy; naturally, Section 6 was also made a section of admissibility in a certain way by the courts. The Courts even till the present time51 keep citing Sukhar52 and in this way have entirely replaced Stephen with Thayer.

What might have been a correct interpretation of Section 6

While interpreting Section 6 of the Evidence Act, the Court ought to have looked into the intention and structure of the Act.

One way in which the words of Section 6 could have been interpreted must be to do an “originalist” interpretation of Section 6. If we take the word “transaction” in Section 6, according to Stephen, “transaction” is actually a “group of facts” that is interconnected in such a way that they can be considered to be under a “single legal name”.53 Now, in this case, the “legal name” that can be given to all the facts that are connected to “fact-in-issue” is “attempt to murder”. The “attempt” was finished when Sukhar shot Nakkal and ran away. After this, the witnesses came and Nakkal gave his statement. This statement cannot be said to fall within the “legal name” of attempt to murder, since the attempt was already finished when Sukhar ran away and hence the statement of Nakkal cannot fall under “transaction” as defined by Stephen. It must be observed that Stephen's definition of the word “transaction” is relatively narrower when compared to the bare text of the Section itself. Therefore, it is submitted that in an “originalist” interpretation, Nakkal's statement cannot come under Section 6.

However, the case can also be looked at from another perspective. Let us say that the Court interpreted the word “transaction” differently and considered Nakkal's statement to be a part of the transaction and “relevant” under Section 6. This can be done by analysing the text of Section 6 with its illustrations.54 If the Court would have adopted this approach, even then, the fact of Nakkal's statement would become “relevant” only and then the Court would have to infer certain other facts from it. However, the inference that would have been drawn from Nakkal's statement that was made in the presence of witnesses who came after the crime was committed, would have been a very weak inference, and hence the Court could not have inferred anything substantial from it. Therefore, the conclusion of the Court would have remained same in both the abovementioned scenarios.

Therefore, the Court was free to interpret the word “transaction” in its own way because Stephen has not defined that word in his Act and the Court was not bound to do an originalist interpretation to interpret the word. Hence, the interpretation of the word “transaction” was not erroneous; however, the major error lies in misinterpreting the scheme of the Act. The words in Section 6 must have been interpreted within that scheme.

Conclusion

In this paper, I have analysed the Court's decision in Sukhar v. State of U.P.55 I have argued that the Court in Sukhar56 adopted a flawed approach of reading res gestae into Section 6 because res gestae is concerned with the admissibility of evidence while Section 6 with the relevancy of facts. In the second part, I looked into how the Court's judgment in Sukhar57 and all the subsequent judgments that follow Sukhar58, actually, follow Thayer's line of reasoning and not Stephen's line of reasoning. In addition, I also looked at the influence of the views of other scholars like Wigmore and G.D. Nokes on the Court's reasoning. Finally, in the third section I looked at what might have been the correct approach that the Court could have adopted.

Sukhar59 continues to remain authority even today, despite its flawed approach. It is high time that the courts recognise the problem in their approach that does not solve any confusion which Stephen intended. Rather the Courts before and after Sukhar60 continue to stick to the approach adopted by the common law courts and hence the confusions prevailing in other jurisdictions continues to prevail even in India.


†3rd year student BA LLB, NLSIU Bengaluru. Author can be reached at <anuragtiwari@nls.ac.in>.

1. Evidence Act, 1872.

2. (1999) 9 SCC 507 (hereinafter referred to as “Sukhar”).

3. (1999) 9 SCC 507, para 2.

4. Evidence Act, 1872, S. 6.

5. Hereinafter this evidence of the witness's statement is referred to as Nakkal's statement since the witness was saying what Nakkal said to him.

6. (1999) 9 SCC 507, para 10.

7. (1999) 9 SCC 507.

8. (1999) 9 SCC 507.

9. (1999) 9 SCC 507.

10. (1999) 9 SCC 507, para 6.

11. James Fitzjames Stephen, Indian Evidence Act (1 of 1872): With an Introduction on the Principles of Judicial Evidence (Thacker, Spink and Company, 1872), p. 10.

12. Evidence Act, 1872, S. 3 (definition of “relevant”).

13. Evidence Act, 1872, Ch. II (this chapter restricts the application of “relevancy” only to “facts”).

14. Evidence Act, 1872, S. 3 (definition of “evidence”).

15. Stephen explicitly limits the scope of the word “evidence”, and he explains about “admissibility” of only these evidence across various parts of the Act. (For example, see, “Evidence Act,” Chs. IV-VI, X.)

16. James Fitzjames Stephen, Indian Evidence Act (1 of 1872): With an Introduction on the Principles of Judicial Evidence (Thacker, Spink and Company, 1872), p. 54.

17. J.D. Heydon, Cross on Evidence (10th Edn., 2015), p. 1408.

18. See R. v. Bedingfield, (1879) 14 Cox CC 341 (Norwich Winter Assizes, 1879), and Ratten v. R., 1972 AC 378 : (1971) 3 WLR 930.

19. (1996) 6 SCC 241.

20. (1999) 9 SCC 507.

21. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 265.

22. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 265.

23. This he calls the “rule of inclusion” in the sense that all the logically relevant facts are included and can be considered by the court unless they are excluded by law.

24. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 266.

25. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 265.

26. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898).

27. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), p. 268.

28. G.D. Nokes, ”Codification of the Law of Evidence in the Common Law Jurisdictions”, (1956) 5(3) The International and Comparative Law Quarterly, pp. 347, 357.

29. (1999) 9 SCC 507.

30. (1999) 9 SCC 507, para 6.

31. James Bradley Thayer, Legal Essays (Boston Book Company, 1908) 266. (Thayer specifically mentions that res gestae actually comes into the exception to the exclusionary hearsay rule.)

32. If we apply logic, then Nakkal's statement is of course relevant because it directly deals with the fact-in-issue. The Court also applies a similar approach.

33. (1996) 6 SCC 241.

34. (1999) 9 SCC 507, para 8. (The Court explains the reason and rationale as to why such statements are admissible under res gestae despite lying within the exclusionary rule of hearsay; therefore, all steps in the Court's analysis were consistent with Thayer's theory.)

35. See, Queen Empress v. Abdullah, 1885 SCC OnLine All 55, (Mahmood, J.'s view).

36. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Little, Brown and Company, 1898), pp. 263-266.

37. James Fitzjames Stephen, Indian Evidence Act (1 of 1872): With an Introduction on the Principles of Judicial Evidence (Thacker, Spink and Company, 1872), p. 38.

38. (1999) 9 SCC 507.

39. (1999) 9 SCC 507.

40. (1999) 9 SCC 507, para 6.

41. William Twining, Rethinking Evidence: Exploratory Essays (2nd Edn., Cambridge University Press, 2006), p. 205.

42. George Gordon Battle,” The Science of Judicial Proof by John Henry Wigmore: A Review”, (1938) 25(1) Virginia Law Review 120, 121.

43. Ho, Hock Lai, ”The Legal Concept of Evidence”, (Sep 2015).

<https://plato.stanford.edu/archives/win2015/entries/evidence-legal/> accessed 30-8-2021.

44. William Twining, Rethinking Evidence: Exploratory Essays (2nd Edn., Cambridge University Press, 2006), p. 210.

45. (1999) 9 SCC 507.

46. (2009) 13 SCC 80.

47. (2011) 4 SCC 786.

48. (1999) 9 SCC 507.

49. (1999) 9 SCC 507.

50. (1999) 9 SCC 507.

51. See Ashraf v. State of Kerala, 2015 SCC OnLine Ker 39617; Johny v. State of Kerala, 2021 SCC OnLine Ker 2714.

52. (1999) 9 SCC 507.

53. James Fitzjames Stephen, A Digest of the Law of Evidence (5th Edn., MacMillan and Company, 1887), p. 4.

54. The Court could have said that since Nakkal's statement was made so shortly after the crime, it remains interconnected with the facts-in-issue and hence it forms part of the same transaction.

55. (1999) 9 SCC 507.

56. (1999) 9 SCC 507.

57. (1999) 9 SCC 507.

58. (1999) 9 SCC 507.

59. (1999) 9 SCC 507.

60. (1999) 9 SCC 507.

SCC Part
Cases ReportedSupreme Court Cases

   

Constitution of India — Arts. 300-A and 31 — Expropriation of private property by State — Compensation — Entitlement: State on ground of delay and laches cannot evade its legal responsibility towards those from whom private property has been expropriated. Right against deprivation of property unless in accordance with procedure established by law, continues to be a constitutional right under Art. 300-A. It is cardinal principle of rule of law, that nobody can be deprived of liberty or property without due process, or authorisation of law. When it comes to subject of private property, high threshold of legality must be met, to dispossess an individual of their property, and even more so when done by State. [Sukh Dutt Ratra v. State of H.P., (2022) 7 SCC 508]

Criminal Law — Criminal Trial — Sentence — Principles for sentencing — Victimology — Just punishment — Recognises protection of victim’s right — Right of victim or their near and dear ones to seek enhancement of sentence: Victim’s right (including that of victim’s relations, heir or guardian), is a facet of human rights, a substantive and enforceable right and deserves equal regard. Criminal cannot be treated leniently solely on the ground of discretion vested in court. Victim’s relations, heir or guardian should be treated as victim. [Jaswinder Singh v. Navjot Singh Sidhu, (2022) 7 SCC 628]

Debt, Financial and Monetary Laws — Debt, Debt Recovery and Relief — Sale of debtor’s property — Maintainability of writ petition to set aside auction-sale: Hearing of writ petition challenging the auction-sale is not permissible, when proceedings invoked by petitioner in fora below were themselves found non-maintainable. [Deenadayal Nagari Sahakari Bank Ltd. v. Munjaji, (2022) 7 SCC 594]

Evidence Act, 1872 — Ss. 65-A and 65-B — Admissibility of electronic records — Non-compliance with requirement of certification of electronic evidence: Certificate under S. 65-B(4), Evidence Act is mandatory for production of electronic evidence, oral evidence in place of such certificate cannot suffice. [Ravinder Singh v. State of Punjab, (2022) 7 SCC 581]

Insolvency and Bankruptcy Code, 2016 — Ss. 5(13) and 53 — Claims of workmen/employees towards their wages/salaries during CIRP — Payability of, as CIRP costs: While considering the claims of the workmen/employees concerned towards the wages/salaries payable during CIRP, first of all it has to be established and proved that during CIRP, the corporate debtor was a going concern and that the workmen/employees concerned actually worked while the corporate debtor was a going concern during CIRP. Further, as per S. 5(13) only with respect to those workmen/employees who actually worked during CIRP when the corporate debtor was a going concern, their wages/salaries are to be included in CIRP costs and they shall have the first priority over all other dues as per S. 53(1)(a). Also, any other dues towards wages and salaries of the employees/workmen of the corporate debtor shall have to be governed by Ss. 53(1)(b) and 53(1)(c). [Sunil Kumar Jain v. Sundaresh Bhatt, (2022) 7 SCC 540]

Land Acquisition Act, 1894 — S. 23 — Compensation — Determination — Sale exemplars which may be considered: Sale instances of adjacent village either subsequent to land acquired or with respect to small areas of land — Whether may be considered, explained. [Ramrao Shankar Tapase v. Maharashtra Industrial Development Corpn., (2022) 7 SCC 563]

Negotiable Instruments Act, 1881 — S. 138 r/w S. 142 — Dishonour of cheque where a company is payee of that cheque — Filing of complaint in such a case — Maintainability — Prerequisites: When a company is payee of cheque based on which a complaint is filed under S. 138 of the NI Act, the complainant necessarily should be the company represented by an authorised employee. For maintainability of complaint in such cases, prima facie indication in complaint and sworn statement (either orally or by an affidavit) before court to the effect that complainant company is represented by an authorised person who has knowledge about transaction in question, would be sufficient. Such averment and prima facie material is enough to take cognizance and issue process. Issue as to whether aforesaid authorisation and knowledge about transaction is proper, is a matter for trial. [TRL Krosaki Refractories Ltd. v. SMS Asia (P) Ltd., (2022) 7 SCC 612]

Penal Code, 1860 — S. 300 [S. 300 Thirdly] and Ss. 341, 447, 504 and 506 — Case whether one of murder, when the assault is not made with any weapon, but only by legs and hands — Determination of: In this case, material clearly established that after deceased fell down with the help of co-accused, accused K kicked and assaulted deceased on his neck with his legs and hands. Ocular version supported by medical evidence, which indicated that the deceased suffered abraded contusion of reddish blue colour on the neck area and abraded contusion reddish in colour on the left side of the chest. Further, internal dissection revealed profuse bleeding over the muscles of the neck surrounding the arteries that were ruptured. Further, certain left side ribs also fractured. Ventral part of the sternum also broken into two pieces and the spinal cord at certain level also contused, edematous and elongated. Cause of death opined as haemorrhagic shock as a result of multiple injuries, hence, conviction of accused K under Ss. 302, 341, 447, 504 and 506, held, justified. [Krishnamurthy v. State of Karnataka, (2022) 7 SCC 521]

Rent Control and Eviction — Mesne Profits/Compensation/Occupation charges/Damages for wrongful use/trespass: Principles clarified regarding proper basis and reasonable manner of determination of mesne profits of residential property on termination of leave and licence agreement pending first appeal. [Anar Devi v. Vasudev Mangal, (2022) 7 SCC 504]

Service Law — Appointment — Invalid appointment/Wrong appointment/Illegal appointment: Appointment dehors statutory rules, reiterated, is void ab initio. [State of Odisha v. Sulekh Chandra Pradhan, (2022) 7 SCC 482]

Service Law — Judiciary — Promotion: In this case, for promotion to 25% of posts of Higher Judicial Service strictly on basis of merit through Limited Departmental Competitive Examination (LDCE) from Civil Judges (Senior Division), eligibility criteria applicable, only for Delhi Higher Judicial Service (DHJS), was modified, both in terms of: (A) Civil Judges who would be eligible, and (B) Period of qualifying service re different categories of Civil Judges, due to non-availability of candidates as per the existing prescribed criteria, and, parity of work performed by Civil Judge (Junior Division) and Civil Judge (Senior Division) in Delhi. Civil Judges (Junior Division), held, also to be eligible for promotion to DHJS via this channel if they satisfied the norms as specified herein. [All India Judges Assn. v. Union of India, (2022) 7 SCC 494]

Madhya Pradesh High Court
Case BriefsHigh Courts

   

Madhya Pradesh High Court: G.S. Ahluwalia, J. dismissed a petition which was filed against the order passed by Twelfth Civil Judge, Class II by which the application filed by the petitioner for conducting DNA test of Hemlata Yadav had been rejected.

Husband of the petitioner had filed a civil suit against the respondents/defendants for partition but during the pendency of this suit, he died. Application for bringing the petitioner as legal representative on record was moved but respondent 2 raised objections stating that Hemlata Yadav should’ve been impleaded as the legal representative as she was the daughter of the Petitioner’s husband. The petitioner then moved an application under Order 26 Rule 10 (A) CPC read with Section 45 of Evidence Act, 1872 on the ground that she had never given birth to any child and accordingly, it was prayed that the DNA test of Hemlata Yadav may be conducted so that it could be ascertained that Hemlata Yadav was not the daughter of her husband.

Counsel for the petitioner submitted that where the question of property is involved and the paternity of the person is also in dispute, then a direction for DNA test may be issued.

The Court put forward judgment of the Supreme Court where it was held that the courts in India cannot order blood test as a matter of course. There must be a strong prima-facie case to the effect that the husband had no access in order to dispel the presumption arising under Section 112 of Evidence Act and the court must carefully examine as to what would be the consequence of ordering the blood test i.e. whether it will have the effect of branding a child as a illegitimate child or mother as an unchaste woman. Banarsi Dass v. Teeku Dutta, (2005) 4 SCC 449

Directions for conducting the DNA test is also violative of privacy of a individual.

The Court further reiterated the Supreme Court judgment of Ashok Kumar v. Raj Gupta, (2022) 1 SCC 20.

The Court dismissed the appeal upholding the order of the Trial Court explaining that it is not the case of the petitioner that Hemlata Yadav was born prior to her marriage with late husband of the petitioner. The presumption as provided under Section 112 of Evidence Act is a rebuttable presumption and the petitioner will get every opportunity to rebut the said presumption in the trial.

[Urmila Singh v. Saudan Singh, Writ Petition No. 4131 of 2017, decided on 26-07-2022]


Advocates who appeared in this case :

Mr P.C. Chandil, Advocate, for the Petitioner;

None for the respondents.


*Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Gujarat High Court: B.N. Karia, J. rejected an application under Section 397 read with Section 401 of the Code of Criminal Procedure, wherein the applicant-State has requested to quash and set aside the order and stay the implementation of the said order till hearing and final disposal of the present application.

APP for the applicant-State submitted that the Trial Court ought to have considered that this is not a solitary incident where the name of the respondent accused were revealed as a purchaser of the stolen article. It was contended that subsequent insertion of Section 413 and 120(B) of the Penal Code are just and proper and the respondent did not deserve any discharge.

After hearing APP for the applicant-State, impugned judgment and order passed by the trial court the Court noted that accused 1 to 4 had committed theft by house braking between sunset to sunrise and accused 5 to 6 were alleged that they received stolen property knowing it to be stolen and they were habitual offender. Further, it appeared that no recovery or discovery was made from the accused 6. Further it transpired that accused 5 and 6 were goldsmiths by occupation. There was nothing on record to show that the accused 6 (respondent 1) herein were having any mens rea or knowledge about the gold smith. Further it appeared that accused 5 had disclosed the name of respondent 1 herein that he had received the biscuit made from stolen from accused 5. Except this, no incriminated statement of co-accused, nothing was brought on record against the respondent 1 herein.

The provisions of Section 24 to 26 of the Evidence Act clearly restricts to accept such confession made to the court to have been made or cause by any inducement, threat or promise having reference to the charge against the accused persons.

The Court stated that Statement of the co-accused or admission of the co-accused cannot be proved in evidence against the maker of it and it cannot be sole base to convict any person. The application was dismissed holding that order of the trial Court cannot be said to be illegal and perverse.[State of Gujarat v. Ajaybhai Champaklal Champaneri, R/Criminal Revision Application No. 472 of 2022, decided on 04-05-2022]


APP for the applicant: Mr Hardik Soni


Suchita Shukla, Editorial Assistant has reported this brief.

Case BriefsDistrict Court

Dwarka Courts, Delhi: Rahul Jain, Metropolitan Magistrate, while addressing a matter regarding dishonour of cheque, held that mere assertion of non-receipt of legal notice cannot help the accused in escaping liability under Section 138 Negotiable Instruments Act, 1881.

It was alleged in complaint that accused had approached the complainant to purchase a car. It was sold vide an agreement for Rs 7 lakhs only to be paid in 35 EMIs of Rs 20,000.

After default in the instalments, the accused issued a cheque which was returned dishonoured with remark “funds insufficient”. Thereafter, the complainant approached the accused repeatedly about the dishonour of the cheque and then the accused agreed to repay the consideration at one time and issue one cheque which was dishonoured.

Since no response was made within the statutory period regarding the demand notice, the present complaint was filed.

Analysis, Law and Decision


Legal Notice

The Court stated that the assertion of non-receipt of legal notice cannot help the accused in escaping liability under Section 138 NI Act, especially keeping in mind that firstly the accused has admitted his address mentioned on legal demand notice to be correct and secondly that the accused entered appearance in the court pursuant to service upon the same address as was mentioned in the legal demand notice.

It was settled in the decision of the Supreme Court in C.C. Alavi Haji v. Palapetty Muhammed, (2007) 6 SCC 555,  that an accused who claimed that he did not receive legal notice, can within 15 days on receipt of summons from the Court, make payment of the cheque amount, and an accused who does not make such payment cannot contend that there was no proper service of notice as required under Section 138, by ignoring statutory presumption to the contrary under Section 27 of the General Clauses Act and Section 114 of the Evidence Act.

Legal Enforceable Debt

Bench noted that the initial defence of the accused had been that he had not purchased any car from the complainant and denied his signatures on the vehicle agreement. Further, he stated that car was purchased by his brother from the complainant, and he had just stood as a guarantor in the transaction and issued the cheque as security. The said defence was not even a defence but rather an admission to the liability to pay the cheques.

Liability of Guarantor under Section 138 NI Act

Section 138 NI Act uses the words “where any cheque” and therefore, the cheque could be drawn for whatever reason and the drawer would be liable if it is drawn on an account maintained by him with a banker in favour of another person for the discharge of any debt or other liability.

“The cheque could be issued for the discharge of the debt or liability of the drawer or of any other person including a guarantor.”

Section 128 of the Indian Contract Act provides that the liability of the surety is coextensive with that of the principal debtor, unless it is otherwise provided in the contract.

Hence, as per the Indian Contract Act, the liability of the guarantor is coextensive with that of the borrower which means that lender can enforce his right against either the principal borrower or the guarantor of the principal borrower.

Therefore,

On a joint reading of section 138 of Negotiable Instruments Act and Section 128 of Indian Contract act, it is now crystal clear that the liability of the guarantor of a loan fall within the provisions of Section 138 NI Act.

Court added that, with the presumption under Section 139 NI Act raised in the favour of the complainant as the accused admitted his signatures on the cheque, the burden of proof was on the accused to raise a probable defence.

Such burden is only to the extent of the preponderance of probabilities but mere verbal denial won’t discharge even this burden. The onus was on the accused to prove that the signatures on the agreement were not his.

In the absence of evidence for the above, Court used its power under Section 73 of the Evidence Act to compare his signatures on the vehicle agreement with the admitted signatures on the cheque.

In view of the above discussion, a presumption existed in the favour of the complainant, and it was the accused who had to discharge the onus, but he miserably failed to do so.

Therefore, the complainant duly proved his case against the accused for offence punishable under Section 138 NI Act, 1881 beyond the shadow of any reasonable doubt. [Anju Devi v. Mukesh, 2022 SCC OnLine Dis Crt (Del) 19, decided on 9-5-2022]

Case BriefsHigh Courts

Delhi High Court: Asha Menon, J., while setting aside the conclusion of the Metropolitan Magistrate and upholding the intervention by Sessions Court expressed that, injuries were found on the person of the deceased who was more than 6 months pregnant during her residence with her husband, hence the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

Further, the Court also remarked that,

“…shifting of the focus only to the injection pricks and the damage to the ribs caused by attempts to resuscitate the deceased, was a complete non-application of mind, bordering on perversity.”

A petition was filed under Section 482 of the Criminal Procedure Code by an accused in FIR under Section 498A of the Penal Code, 1860.

When the petitioner’s wife conceived and was carrying twins, she was allegedly given an injection for iron due to which she developed complications and died.

Respondent 2, father of the petitioner’s wife registered an FIR for an offence under Section 498A IPC against the petitioner, who was arrested and subsequently granted bail. While hearing the arguments, MM concluded stating that no prima facie case had been made out for framing of charge against the petitioner.

On being aggrieved with the above, the State preferred a revision before the ASJ who considered the matter and was of the view that the documents of the accused could not have been considered at the time of arguments on the point of charge as has been held by the Supreme Court in State of Orissa v. Debendra Nath Padhi, (2005) 1 SCC 568.

Analysis and Decision


High Court noted that the MM usurped the powers of the Sessions Court and concluded that the charge under Section 304B IPC could not be made out “by any stretch of imagination”, relying only on the first statements made to the SDM by the parents of the deceased and the observations in the postmortem report that in all probability the cause of death was natural due to some pathological state related to pregnancy rather than an unnatural external event. Hence, the Sessions Court rightly intervened to set aside the said conclusions.

The Bench observed that Section 304B IPC is attracted in cases where a woman dies under circumstances otherwise than normal, within 7 years of marriage, and was subjected, soon before her death, to cruelty or harassment.

With respect to the present matter, Court stated that the injuries were found on the person of the deceased who was more than 6 months pregnant with twins, during her residence with petitioner, and the onus will be on him under Section 104 of the Indian Evidence Act, 1872 to offer an explanation.

In Court’s opinion, the conclusion drawn by the MM were wrong and the same had been corrected by the ASJ by a very well-reasoned order.

Hence, no perversity or miscarriage of justice was evident from the impugned order.[Jaikishan Datwani v. State, 2022 SCC OnLine Del 1380, decided on 9-5-2022]


Advocates before the Court:

For the Petitioner:

Mr Hitendra Kumar Nahata, Advocate.

For the Respondent:

Mr G.M. Farooqui, APP for State with SI Inder Veer Singh. Respondent No.2 in person.

Case BriefsSupreme Court

Supreme Court: The Division Bench comprising of Hemant Gupta* and V. Ramasubramanian, JJ., reversed concurrent findings of Trial Court and Punjab and Haryana High Court by setting aside mandatory injunction granted against the Municipal Committee. The Bench held that merely being the highest bidder in auction will not entitle one of any right over the property unless there is an official communication indicating the sale has attained finality.

The Municipal Committee, Barwala had impugned the mandatory injunction granted to the plaintiff-respondent by the Trial Court and upheld by the High Court to execute a sale deed in respect of land measuring 55 kanals 5 marlas sought by the plaintiff.

The respondent-plaintiff had claimed title and possession over the disputed property on the basis of an open auction conducted by the Sub-Divisional Officer in 1999 and consequently, had obtained mandatory injunction against the Municipal Committee over said property. The plaintiff claimed that being the highest bidder and having deposited the total sale consideration of Rs.15,76,150 with the Municipal Committee, he was a bonafide purchaser and was in possession as owner of the suit land.

However, the Municipal Committee disputed the possession of the plaintiff as illegal contending that the Committee could not execute the sale deed without proper sanction of the competent authority i.e., Government of Haryana. The committee argued that the auction was not approved by the State Government and till such time the auction is confirmed, mere fact that the plaintiff was the highest bidder would not confer any equitable and legal right to him. It is only after the confirmation of sale and the letter accepting the bid is issued, the plaintiff could claim any enforceable right.

The Committee further submitted that the approval of sale by public auction itself did not amount to confirmation of auction; therefore, in the absence of confirmation of sale by the State Government, the plaintiff would not get any right over the property.

Whether merely being the highest bidder would confer any equitable and legal right over the property?

The Bench observed that the Haryana Municipalities Management of Municipal Properties and State Properties Rules, 1976 contemplates two acts to be completed by the Deputy Commissioner for alienating immovable property owned by Municipal Committee, one of which is approval of conduct of sale which was granted on 25-10-1995. However, the other important requirement is that no sale by auction shall be valid until it has been confirmed by the Deputy Commissioner.

The Bench noted that the communication dated 10-1-2007 relied on by plaintiff to contend that the sale was approved by the Deputy Commissioner was not a communication by the Deputy Commissioner to the Municipality or to the plaintiff that the sale stood confirmed; rather it was an inter-departmental communication with no endorsement of the copy of the said communication to the plaintiff. Therefore, the Bench opined that no concluded contract ever came into force and in the absence of any approval granted, no right would accrue.

Relying on the decision in State of Punjab v. Mehar Din, 2022 SCC OnLine SC 250, the Bench observed that State or authority which can be held to be State within the meaning of Article 12 of the Constitution is not bound to accept the highest tender of bid. Similarly, reliance was also palced by the Bench on the decision of Constitution Bench in Bachhittar Singh v. State of Punjab, AIR 1963 SC 395, to hold that merely writing something on the file does not amount to an order.

Evidence Act, 1872 and Presumption of Correctness

Noticeably, in pursuance of the powers conferred on the State Government, a message was conveyed on behalf of the Director, Local Bodies, Haryana to all the Deputy Commissioners of the State of Haryana that no municipal property will be sold without the prior approval of the Government. However, the Trial Court had discarded such communication for the reason that the communication had not been proved as per the provisions of the Evidence Act, 1872.

Considering that the communication had been produced by the Municipal Committee when the Committee examined Mahavir Singh, Secretary as DW-1 and Sandeep Kumar, Building Inspector as DW-2, the Bench opined that such communication had come on record from the official source which would carry presumption of correctness under Section 114 of the Indian Evidence Act, 1872 that the official acts had been regularly performed. The Bench added,

“The original record was not necessarily required to be proved by summoning the Government officials as such document was produced by the officials of the Municipal Committee from the official record.”

Findings and Conclusion

After factually analyzing the instant case, the Bench reached to the following findings:

  1. The letter dated 10-01-2007, seeking approval of the State Government by the Deputy Commissioner was not the approval granted by him which could be enforced by the plaintiff in the Court of law.
  2. The suit was not maintainable as there was no vested right with the plaintiff to claim such a decree merely on the basis of a participation in the public auction.
  3. Even if the plaintiff had any right on the basis of an auction, he could at best sue for specific performance of the so-called agreement.
  4. Even the suit for specific performance was barred by limitation as such suit could be filed within three years from the date of auction in terms of Article 54 of the Schedule to the Limitation Act, 1963, however the plaintiff had reached the Court beyond the period of limitation.

In view of the above, the Bench concluded that the plaintiff had been granted decree for mandatory injunction not only beyond the period of limitation but in contravention of the statute and the rules framed thereunder. Consequently, the appeal was allowed, the impugned judgments were set aside and the plaintiff’s possession of the disputed property was found to be illegal.

The Municipality was granted liberty to take possession of land and the amount of Rs.15,76,150 deposited by the plaintiff was directed to be forfeited towards the damages for the illegal occupation of the land for more than 20 years since the date of auction in contravention of law.

[Municipal Committee, Hisar v. Jai Narayan & Co., 2022 SCC OnLine SC 376, decided on 29-03-2022]


*Judgment by: Justice Hemant Gupta


Kamini Sharma, Editorial Assistant has put this report together 

Jammu and Kashmir and Ladakh High Court
Case BriefsHigh Courts

Jammu and Kashmir and Ladakh High Court, Srinagar: Sanjay Dhar, J., addressed a matter with regard to providing maintenance to a minor child amidst the dispute regarding the paternity of the child.

Petitioner (minor) through her mother challenged the order passed by the Judicial Magistrate in the proceedings under Section 488 of J&K CrPC whereby the Magistrate deferred the proceedings till the outcome of the civil suit in which question of paternity of the petitioner was an issue.

Factual Background

Minor petitioner through her mother filed a petition against the respondent claiming maintenance from him. It was alleged that in the year 2010, the respondent had developed a relationship with the petitioner’s mother and further the respondent converted to Islam, whereafter he entered into wedlock with the mother of the petitioner.

Later, on being posted to New Delhi the respondent shifted leaving the petitioner and her mother in lurch. On visiting the native place of the respondent the petitioner and her mother came to know that the respondent was already a married man, hence the marriage between the petitioner’s mother and the respondent got automatically dissolved.

The petitioner and her mother filed a suit for declaration and injunction against the respondent.

The respondent did remit some maintenance amount in the bank account of the petitioner, yet the same was very meager, hence the petitioner sought maintenance of Rs 30,000 from the respondent.

Analysis, Law and Decision

High Court noted that one birth certificate showed the name of the child as Riza Jan with Mr Idress Bashir Jabari as her father, whereas the other one showed the name of girl child as Raaisha with the name of the father as respondent.

Further, the petitioner’s own document, the bank statement depicted that her bank account had been opened in the name of Riza Jan. It meant that Raaisha and Riza Jan were one and the same person.

Hence, in view of the provisions contained in Section 114(e) of the Evidence Act, there is a presumption of correctness attached to the particulars entered in the said certificate.

On the other hand, the birth certificate dated 01.09.2014, on which reliance is being placed by the petitioner, appears to have been issued pursuant to the directions of the Court after more than three years of the event of birth, by taking recourse to the provisions contained in Section 13 (3) of the Registration of Births and Deaths Act, 1969

Therefore, the presumption could not be raised as regards the correctness of contents of the said certificate, unless oral and documentary evidence is led to support the same.

High Court added that, the presumption contained in Section 112 of the Evidence Act is also attracted to the facts of the instant case.

As per the aforesaid provision, the fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, is conclusive proof that he is the legitimate son of that man, unless it is shown that the parties to the marriage had no access to each other.

Hence, the petition was born out of wedlock of her mother with Mr Idrees Bashir Jabari, unless it is shown that Mr Idrees Bashir Jabari had no access to the mother of the petitioner during the said period.

The Bench also observed that, the mother of the respondent could not place on record any Nikahnama or any other material to show that she entered into a wedlock with the respondent.

Merely because wife of the respondent had alleged in her divorce petition that respondent was forced to marry mother of the petitioner does not prove the said fact particularly when respondent’s wife has admittedly withdrawn the petition itself.

Thus, Magistrate had no evidence to even prima facie records a finding that the respondent was the father of the minor.

“…grant of maintenance to a minor child should be the paramount consideration for a Magistrate dealing with a petition under Section 125 CrPC, but when the paternity of a child is seriously disputed and there is no prima facie material to suggest that the respondent happens to be the father of the child, it would not be prudent for a Magistrate to fasten the respondent with the liability of maintaining the child.”

High Court observed that the revision petition was not maintainable and hence deserved to be dismissed. [Raaisha v. Syed Sudhanshu Panday, 2022 SCC OnLine J&K 242, decided on 27-1-2022]


Advocates before the Court:

For the Petitioner: Abdul Manan, Advocate.

For the Respondent: Anil Bhan, Advocate

Punjab and Haryana High Court
Case BriefsHigh Courts

Punjab and Haryana High Court: Avneesh Jhingan, J., entertained a petition under Section 482 CrPC where the petitioner was aggrieved by the directions of the Chief Judicial Magistrate for giving voice samples.

The complainant was running a chemist shop, due to an unauthorized alteration in the shop; it was sealed by the authorities. One Sunil Kumar Gulati was posted in the Land Branch of Municipal Corporation and he allegedly demanded money from the complainant to open the shutter. The amount demanded was to be paid to Rakesh Behal one of the chemists known to the petitioner. Eventually, Rakesh was apprehended red-handed asking for illegal gratification. For the alleged crime a memory card was handed to the investigation agency.

An application was filed by the Vigilance Bureau, seeking voice samples of Rakesh Behal and Sunil Kumar to which the latter objected and filed a reply opposing the application.

Contention of the petitioner:

  • Petitioner contended that the directions issued in the impugned order are for purpose of identifying the petitioner consequently resulting in self-incrimination by the accused. The conversation was recorded without the consent of the petitioner.
  • Right to privacy of the petitioner was invaded and reliance was placed on Justice K.S. Puttaswamy v. Union of Inida, (2017) 10 SCC 1.
  • Memory card is secondary evidence and cannot be admissible without certification under Section 65 B of Evidence Act, 1872.

Contention of the State:

  • State disregarded the contention of the petitioner and relied on Ritesh Sinha v. State of Uttar Pradesh, (2019) 8 SCC 1, where the Supreme Court had held that, the direction to give voice sample does not infringe Article 20(3) of the Constitution of India. It was held that the voice sample is only for purpose of comparison and is not a testimony and the right to privacy cannot be construed as absolute.
  • Voice sample in a sense resembles fingerprints and handwriting, each person has a distinctive voice with characteristic featuresdictated by vocal cavities and articulates. The samples are collected afterhaving permission in accordance with the law. The sample would not be evidence; rather they are for comparing the evidence already collected.
  • It was further contended that Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1 held that 65-B (4) of the Act does not mention the stage of furnishing the certificate. Hence, non production of the certificate at an earlier stage is a curable defect.

Decision:

The Court opined that contention of the petitioner was without factual foundation and the pleadings were interrogatory.

The argument that the complainant could not have recorded the conversation without the consent of the petitioner is rejected; seeking the consent of the petitioner would have defeated the very purpose of the recording.

The contentions of the petitioner were rejected and while answering whether certification is needed when recording is produced in trial as evidence, the Court relied upon the judgment of the Supreme Court in State of Karnataka v. M.R. Hiremath, (2019) 7 SCC 515, where the court had stated that, “The Court emphasised that non-production of a certificate under Section 65B on an earlier occasion is a curable defect.” In another decision in Central Bureau of Investigation v. R.S. Pai, (2002) 5 SCC 82, it was held, “from the aforesaid sub-sections, it is apparent that normally, the investigating officer is required to produce all the relevant documents at the time of submitting the charge-sheet. At the same time, as there is no specific prohibition, it cannot be held that the additional documents cannot be produced subsequently.”

Hence, the Court was of the opinion that requisite certificate must accompany the electronic record pertaining to which a statement is sought to be given in evidence when the same is produced in evidence, but it does not mean that it must be produced along with the charge-sheet but can be produced subsequently in any circumstance.[Sunil Kumar Gulati v. State of Punjab, 2022 SCC OnLine P&H 786, decided on 29-03-2022]


Appearances:

Mr. D.S. Sobti and Mr. Prabhneer Swani, Advocates for the petitioner.

Mr. Amit Mehta, Sr. DAG, Punjab.


Aastha Sharma, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Bombay High Court: Anuja Prabhudessai, J., opined that where the witness is of tender age (as in the instant case before the Court), it is obligatory upon the Judge to ascertain the intellectual and understanding capacity of the child.

Appellant has assailed the judgment in POCSO Special Case wherein it was held that the appellant was guilty of offences punishable under Sections 354, 354-A read with Section 34 of Penal Code, 1860 and Section 10 of the POCSO Act.

Analysis, Law and Decision

Instant case was based mainly on the testimony of the victim girl who at the time of the incident was barely 4 years of age.

It is well settled that conviction can be based on the sole testimony of a child witness provided the witness is competent to depose to the facts and is a reliable witness.

Section 118 of the Indian Evidence Act, 1872 which deals with competency of a person to testify provides that:

“All persons shall be competent to testify unless Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.

Explanation –A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.”

 Bench observed that, a child is a competent witness provided he is capable of understanding the questions put to him and is able to give rational answers.

Court elaborated the analysis, by stating that since the witness was of tender age, it was obligatory upon the Judge to ascertain the intellectual and understanding capacity of the child and to record her satisfaction in respect of competency of the child witness to depose to the facts of the case. Records indicated that the Judge did not question the victim to ascertain whether she was able to understand the questions put to her.

Well-Settled Principle of Law

In criminal jurisprudence, no finding can be rendered either on mere surmise or conjecture and every finding should be based on satisfactory and acceptable evidence.

High Court’s opinion with regard to the decision of Lower Court Judge

Bench noted that PW2 did not know the Appellant and that she had identified him only as a painter. No test identification was conducted to establish the identity of the Appellant. She had identified him in the court for the first time about two years from the date of the incident.

It was also observed by this Court that testimony of PW 1 indicated that prior to the incident, she did not know the appellant either by name or face.

The evidence of PW6 did not indicate that the Appellant was engaged to do the work of painting on 11/05/2017 on which date, the alleged incident had occurred. There was thus no cogent evidence to establish the identity of the Appellant.

In Court’s opinion, the Designated Judge grossly erred in holding the appellant guilty of the offence. Hence the appeal was allowed and the impugned judgment was quashed and set aside. [Laxman Govind Varma v. State of Maharashtra, 2021 SCC OnLine Bom 4137, decided on 26-10-2021]


Advocates before the Court:

Mr. S.P. Singh for the Appellant.

Mr. P.H. Gaikwad, APP for the State.

Ms. Ameeta Kuttikrishnan for Respondent No.2. 

Case BriefsHigh Courts

Sikkim High Court: Bhaskar Raj Pradhan, J., dismissed the second appeal explaining that the second appeal is maintainable before the High Court if the High Court is satisfied that the case involves a substantial question of law.

Supreme Court in Union of India v. Ibrahim Uddin, (2012) 8 SCC 148, held that the existence of substantial question of law is sine qua non for the exercise of jurisdiction under the provisions of section 100 of the Code of Civil Procedure, 1908 (CPC). The court, for the reasons to be recorded, may also entertain a second appeal even on any substantial question of law, not formulated by it, if the court is satisfied that the case involved such a question. Second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence. Further relied on case laws were Govindaraju v. Mariamman, AIR 2005 SC 1008, Karnataka Board of Wakf v. Anjuman-E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067 and Bismillah Begum v. Rahmatullah Khan, AIR 1998 SC 970.

According to the plaintiff, the properties of late Nar Bahadur Gurung had been divided between the sons without any formal partition deed. Plot no.302 fell in his share. Plot no. 90 fell in the joint share of his brother late Kharga Bahadur Gurung and defendant no.1. As the plaintiff was staying away from the suit land, the defendant no.1 in connivance with some employees of the District Collectorate mutated the plots in his name without any notice or no objection from the brothers. The plaintiff prayed for declaratory reliefs and recovery of possession of the suit property.

The suit was dismissed by the Trial Judge holding that the plaintiff had failed to substantiate his plea that the suit property fell in his share and first Appellate Court upheld the findings of the Trial Court.

Section 101 of the Indian Evidence Act, 1872 states that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts, he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.

The Court dismissed the appeal holding that in the present case it was necessary for the plaintiff to plead particulars of how and with whom the defendant no.1 connived. Allegation of connivance must be clearly pleaded with material particulars and proved. The plaintiff did not also plead how exactly the partition took place and what was the share of each of the brothers of the plaintiff.

The Court consequently held that the solitary question of law framed by this court, that the learned First Appellate Court had not considered the ‘parcha khatiyan’ (exhibit-1) correctly and the impugned judgment was based on its misinterpretation, must be answered in the negative.[Chandra Bir Gurung v. Pratap Singh Gurung, 2021 SCC OnLine Sikk 154, decided on 20-10-2021]


Suchita Shukla, Editorial Assistant has reported this brief.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan J. directed all the Panchayat Secretaries in the State of Himachal Pradesh to provide death certificate as demanded by any person or authority under the Right to Information Act.

The instant application was filed seeking direction to the Panchayat Secretary, Shingla, Development Block, Rampur, District Shimla, H.P. to provide the death certificate, Legal Heir Certificate and BPL Certificate in respect of Baldev resident of Village Dakolar, Post Office Shingla. As per the provisions contained in Section 8(1) J and Section 11 of Right to Information Act, 2005 as the aforesaid officer refused it.

It was brought to the notice of the Court that the Death Certificate, Birth and Death Register is maintained by the Panchayat Secretary of concerned Gram Panchayat as a local Registrar Birth and Death. Death Certificate is provided by the Panchayat Secretary to the family members of the deceased person only. It was further noted that the copy of Death certificate of late Sh. Baldev was requested to be provided under the RTI Act, 2005 and accordingly as per provision 11 (1) of the RTI Act, 2005 for providing Third Party information wife of deceased was inquired who refused to provide certificate of her deceased husband and accordingly as per Rule 8(1)(j) and 11 of the RTI Act, the applicant/Advocate was intimated accordingly by the concerned Public Information Officer-cum-Panchayat Secretary Shingla.

The Court observed that once a party has died, his death certificate cannot be termed a ‘Third Party Information‘, as that information relates/related only to the deceased. It was further observed that entries in Birth and Death Register are public documents and admissible under Section 35 of the Indian Evidence Act and it is not necessary to prove, who made the entries and what was the source of information.

The Court directed that “henceforth whenever a copy of death certificate is demanded by any person or authority under Right to Information Act, or even on simple paper, the same shall be given by all the Panchayat Secretaries in the State of Himachal Pradesh, subject to of course on usual charges.”

[OIC Ltd. v. Hira Devi, FAO (WCA) 417 of 2012, decided on 27-08-2021]


Arunima Bose, Editorial Assistant has reported this brief.


 Appearances

For Appellants: Mr. Ashwani K. Sharma and Mr. Mayank Sharma

For Respondents 1 and 2: Mr. Sarthak Mehta

For respondent State: Mr. Ashok Sharma, Mr. Vinod Thakur, Mr. Shiv Pal Manhans, Mr. Hemanshu Misra, Mr. Bhupinder Thakur, Mr. Kewal Sharma, Additional Director (Panchayati Raj) in person.

Saket Court
Case BriefsDistrict Court

South East, Saket Courts, New Delhi: Naresh Kumar Laka, Additional District Judge, decided a suit with respect to partition and permanent injunction.

Instant suit was filed for partition and other reliefs by claiming that the plaintiff was a joint owner of 1/3rd share of the suit property and Defendants 1 to 5 were the joint shareholders of another 1/3rd share and Defendant 6 for remaining 1/3rd share. According to the plaintiff, the suit property was purchased by the plaintiff along with his two brothers. Defendants 1 to 5 were legal heirs of one of the brothers, and Defendant 6 was widow of the other brother. Defendants 1 to 5 contested the suit, while Defendant 6 supported the case of the plaintiff.

Preliminary Objections/Arguments

Objection 1: Defendants 1 to 5 argued that the sale deed in question (as per which the suit property was purchased by the plaintiff and his two brothers) had not been proved by the plaintiff since PW 4 (Record Keeper, Department of Delhi Archives) had failed to identify the sale deed.

Court’s Opinion: PW 4 duly proved the factum of registration of the sale deed on the basis of official record and, as such, as per proviso to Section 68 of the Indian Evidence Act, 1872, the said sale deed stood proved and there was no other requirement under law to prove the said document.

Objection 2: It was argued by Defendants 1 to 5 that the parentage of the vendee/buyer have not been mentioned in the sale deed and, therefore, the said sale deed was not valid.

Court’s Opinion: Information mentioned on the reverse side of the sale deed was sufficient to identity the parties.

Moreover, there is no requirement under law to compulsorily mention the parentage name of transferor or transferee.

Objection 3: Defendants 1 to 5 argued that the suit property was constructed out of the funds of Raj Rani Sharma or her husband (one of the brothers, through whom Defendants 1 to 5 laid claim to the suit property as legal heirs) and plaintiff did not contribute anything and he had no source of income at that time being minor.

Court’s Opinion: As per law, the right, title and interest on immovable property are required to be decided on the basis of the title documents and even if it is presumed that the plaintiff did not contribute anything, it cannot be said that the said transaction was invalid.

Out of love and affection, a person can also contribute in the sale amount on behalf of other person and unless said fact is challenged by the former, the other persons have no right to question it. The mentioning of names as vendees in the registered sale deed clearly demonstrates the intention of the persons at the time of execution of the said document to create a right in favour of such persons. Had there been any contrary intention, names of such persons would not have been mentioned in the said sale deed.

The Court also observed it to be settled law that amount spent in raising construction of a house cannot disentitle the title holder of the said property and instead thereof such person who raised construction can claim recovery of the said amount, if desired, as per law by filing separate suit.

Objection 4: It was argued by Defendants 1 to 5 that the plaintiff was minor at the time of registration of sale deed and, therefore, the said document was invalid.

Court’s Opinion: The Court found no provision under the Transfer of Property Act, 1882 which provided that any sale transaction in favour of a minor was invalid rather there are other various provisions in the Act which provide that an interest can be transferred in favour of an unborn child in womb.

Noting that the rule that a minor’s agreement is void ab initio which was laid down in the famous case of Mohiri Bibi v. Dharmodass Ghose, (1903) 30 Cal. 539, was propounded in minors’ favour for their protection, the Court observed that the law does not regard a minor as incapable for accepting a benefit.

Further, the Court stated that even if it is presumed that the plaintiff was minor at the time of registration of sale deed, it does not make the said sale deed invalid. At the most it could have been challenged by the vendor or the person claiming through said vendor and not by the other joint shareholders/transferee or the person claiming through them, which is not permissible under the law.

Objection 5: There was assertion by Defendants 1 to 5 that the instant suit was barred by limitation and the plaintiff did not claim any share for the last more than 40 years.

Court’s Opinion: A cause of action for a suit for partition accrues only when partition is claimed and it is denied or when the plaintiff is ousted from the property and the defendant starts claiming his own exclusive ownership adversely to the plaintiff. In the plaint, it was claimed by plaintiff that his claim for partition was denied in September, 2013 and the present suit was filed in November 2014. No contrary evidence was led by the defendants to prove that the plaintiff ever demanded partition earlier which was denied.

Issues in Detail

  • Whether the suit property against which partition has been claimed and the property in occupation of defendant are same or different? Onus on both parties.

Physical Identification

In the present matter, plaintiff as well as Defendants 1 to 5 have placed on record the site plan of the suit property and from comparison of both, it was clear that both represent to the same physical structure of the property. Defendants 1 to 5 had also admitted that the site plan on record by the plaintiff was correct. Hence, there was no dispute on the physical identification of the said property.

Identification of the suit property vis-a-vis sale deed 

The Court stated that it is well settled that the standard of proof in civil cases and criminal cases is quite different. Plaintiff in civil suit had to merely establish his case on the touchstone of preponderance of probabilities and the defendant is not necessarily entitled to the benefit of every reasonable doubt. In the Court’s opinion, plaintiff duly proved on record the sale deed and identification of the suit property.

Therefore, the Court held that the plaintiff duly proved on record the identification of the suit property as well as the fact that it was purchased on the basis of sale deed in question only and that its subsequent municipal no. T-823A belongs to the same property i.e. plot no. 100 which has been mentioned in sale deed in question and is presently in possession of the defendants.

  • Whether plaintiff is entitled for partition of the suit property as claimed?

The Court decided in view of Issue 1 that the plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and Defendant 6 as 1/3rd. Hence this issue was decided in favour of plaintiff and against Defendants 1 to 5.

  • Whether the plaintiff has no right, title or interest in the suit property or that the defendants are the exclusive or absolute owners of the suit property?

In view of the findings on Issue 1, the Court decided this issue in favour of plaintiff by holding that plaintiff was the joint owner of 1/3rd share in the suit property besides shares of Defendants 1 to 5 as 1/3rd and defendant 6 as 1/3rd. Defendants 1 to 5 also failed to prove the absolute ownership of Raj Rani Sharma.

  • Whether the plaintiff is entitled to a decree of perpetual injunction?

In view of the findings on Issue 1, this issue was decided in favour of the plaintiff and against the defendants and all the defendants were restrained to create any third party interest in the suit property against the interest of plaintiff or without due process of law.

Conclusion

(i) A preliminary decree was passed by holding that the plaintiff is the joint owner of 1/3rd share in the suit property and Defendants 1 to 5 are joint owners collectively of 1/3rd share and Defendant 6 joint owner of 1/3rd share in the said property.

(ii) The parties were given an opportunity to suggest ways and means for partition of the suit property by metes and bounds (physically) or by inter se sale of the respective shares amongst themselves before passing a final decree.

(iii) A decree of permanent injunction was also passed against the defendants and they were restrained to create any third party interest in the suit property against the interest of the plaintiff or without due process of law.

(iv) Cost of the suit was also awarded to the plaintiff against Defendants 1 to 5, which will be shown in the decree-sheet.

(v) An exemplary cost was also awarded against Defendants 1 to 5 for unnecessarily contesting the instant suit without any plausible basis, which was quantified at Rs 1,00,000, out of which Rs 80,000 to be paid to the plaintiff and Rs 20,000 to the Saket Bar Association Welfare Fund within 30 days.

[Ved Prakash Sharma v. Hunny Sharma, CS No. 11084 of 2016, decided on 1-10-2021]

Case BriefsHigh Courts

Bombay High Court: Pained to note the permitting of questions by the Lower Court which crossed all lines of dignity of a woman, Division Bench of Sadhana S. Jadhav and Sarang V. Kotwal, JJ., while denying reducing the sentence of the 3 accused who raped a woman, expressed regarding sentencing policy that,

“…object of sentencing policy should be to see that the crime does not go unpunished and the victim of crime as also the society has the satisfaction that justice has been done to it.”

“Sentencing Policy adopted by the Courts, in such cases, ought to have a stricter yardstick so as to act as a deterrent”

Prosecutrix was taken to various places and then to a secluded place where all 3 accused appellants committed rape on her one after the other and later she was left near her residence. In the meantime, police was informed by the relatives of prosecutrix’s who were searching for her.

FIR was lodged under various sections including Section 376(2)(g) of the Penal Code, 1860. All the accused were arrested and the Indica Car in which the prosecutrix was taken to various places was also seized.

What transpired the above-stated facts?

Prosecutrix while waiting for a bus to reach a destination was approached by a maroon coloured Indica car and the driver offered the prosecutrix to drop her. PW-1 was aware that some vehicles operating for the Call Centers were used to take other passengers and under the said impression in light of getting late she decided to go in that car.

On the way accused 1 told the prosecutrix that there would be 8-10 more people who would commit rape on her. The accused even bought beer and some food and consumed the same.

Further, accused 1 asked PW-1 to make a call to her mother and inform her that she would be late so that nobody starts searching for her. After that, she was taken to a secluded place where she was raped by one after the other and dropped around 12.45 near her residence. On reaching her place she immediately called her mother and after that, her aunt and two friends came to her flat and then the police also arrived.

She was taken to a hospital for medical examination, and she even identified all the accused in the Court.

Bench noted that defence tried to develop a theory of consensual sex and kept giving certain suggestions which this Court disapproved of.

Court stated that it was pained because of the passive approach adopted by the Judged in allowing such questions. The said questions crossed all lines of basic dignity.

“Under the garb of giving suggestions. Graphic details of the act were put to the witness.”

Under Section 152 of the Indian Evidence Act, the Court was duty-bound to forbid any question which appeared to be intended to insult or annoy or which though proper in itself appeared to the Court needlessly offensive in form. Section 151 of the Indian Evidence Act also empowers the Court to forbid any questions or inquiries which it regards as indecent or scandalous, although such questions or inquiries may have some bearing on the questions before the Court, unless they relate to facts in issue, or to matters necessary to be known in order to determine whether or not the facts in issue existed.

Noting the above, lower Court Judge failed in his duty in not protecting the dignity of PW-1 and not exercising his powers under Sections 151 and 152 of the Indian Evidence Act.

High Court added that it is necessary to remind trial Courts that under Section 148 of the Indian Evidence Act, it is their duty to decide when the witness shall be compelled to answer.

PW-1 had denied the theory of consensual sex and, therefore, all further suggestions in respect of the actual act of intercourse were totally unnecessary.

Special Public Prosecutors

“Not happy with the silence kept by the Special Public Prosecutor by not objecting to the suggestions.”

Court expressed that it is necessary to remind the prosecutors that under the scheme of CrPC, they are in-charge of the conduct of the prosecution. They are supposed to perform their duties responsibly and they are supposed to render sincere assistance to the Court. It is their responsibility to protect the interest of the victims and the witnesses before the Court.

“Prosecutors cannot only concentrate on securing conviction, but the conduct of the proper trial is also their duty.”

Bench held that the circumstances of the case sufficiently prove the guilt of the accused.

Medical evidence had also shown that PW-1 was subjected to forceful sexual intercourse.

Prosecution had established its case against all the accused beyond all reasonable doubt.

While concluding, Court stated that in the present matter, PW-1 innocently took the lift from accused 1. Accused 1 & 2 and accused 3 who joined them subsequently, took advantage of her helpless condition. They committed rape on her. She was threatened. PW-1 has suffered extreme trauma.

Court upheld the decision of the trial court. [Ranjeet Shahaji Gade v. State of Maharashtra, 2021 SCC OnLine Bom 3061, decided on 28-9-2021]


Advocates before the Court:

Ms Anjali Patil, Advocate a/w. Mr Nauman Shaikh, for the Appellant in Criminal Appeal No. 310/2012.

Mr P.G. Sarda, Advocate for the Appellants in Criminal Appeal No.184/2012.

Ms S.V. Sonawane, APP for the Respondent–State.

Case BriefsSupreme Court

Supreme Court: Explaining the difference between the degree of proof in a criminal proceedings and departmental proceedings, the bench of Hemant Gupta* and V. Ramasubramanian, JJ has held that the burden of proof in the departmental proceedings is not of beyond reasonable doubt as is the principle in the criminal trial but probabilities of the misconduct.

Here’s the elaborate law laid down by the Supreme Court in this point:

State of Haryana v. Rattan Singh, (1977) 2 SCC 491

In a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility.

“It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. (…) The simple point is, was there some evidence or was there no evidence — not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny.”

Union of India v. P. Gunasekaran, (2015) 2 SCC 610

“In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal.”

The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:

(a) the enquiry is held by a competent authority;

(b) the enquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

(i) the finding of fact is based on no evidence.

Under Articles 226/227 of the Constitution of India, the High Court shall not:

  • reappreciate the evidence;
  • interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
  • go into the adequacy of the evidence;
  • go into the reliability of the evidence;
  • interfere, if there be some legal evidence on which findings can be based.
  • correct the error of fact however grave it may appear to be;
  • go into the proportionality of punishment unless it shocks its conscience.

Ajit Kumar Nag v. General Manager (PJ), Indian Oil Corpn. Ltd., (2005) 7 SCC 764

  • In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt”, he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability”.
  • Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules.
  • In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings.

Noida Entrepreneurs Association v. NOIDA, (2007) 10 SCC 385

The criminal prosecution is launched for an offence for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public, whereas, the departmental inquiry is to maintain discipline in the service and efficiency of public service.

[Union of India v. Dalbir Singh, 2021 SCC OnLine SC 768, decided on 21.09.2021]


*Judgment by: Justice Hemant Gupta

Know Thy Judge| Justice Hemant Gupta

Case BriefsSupreme Court

Supreme Court: A Division Bench of S. Abdul Nazeer and Krishna Murari, JJ. refused to interfere in the judgment passed by the Gujarat High Court whereby the appellants (husband and mother-in-law of the deceased) were found guilty of committing cruelty to the deceased and abetting suicide committed by the deceased. Noting that although the prosecution failed to adduce any direct evidence to establish that accused abetted deceased into committing suicide, the Supreme Court observed:

“Admittedly, in the case at hands, the evidence clearly establishes the offence of cruelty or harassment caused to the deceased and thus the foundation for the presumption [under Section 113-A of the Evidence Act] exists. Admittedly the appellants have led no evidence to rebut the presumption.”

It was prosecution’s case that the accused husband constantly asked the deceased to bring Rs 25,000 from her father. On her failure to do so, the accused husband started frequently beating the deceased, and the accused mother-in-law used to pick up quarrel with her on the pretext that she neither knew how to cook nor did any household work properly. The deceased committed suicide by consuming poison at her matrimonial home for the sole reason that she was unable to bear continuous mental and physical cruelty meted out to her by the appellants in a short span of 8 months of her marriage.

The trial court convicted the appellants for offences punishable under Section 498-A (cruelty to women) and Section 306 (abetment of suicide) of the Penal Code, 1860. On appeal, the High Court confirmed the judgment of the trial court. Aggrieved, the appellants approached the Supreme Court.

At the outset, the Supreme Court noted that Section 113-A of the Evidence Act, provides for presumption as to abetment of suicide by a married woman within seven years of marriage, by her husband or any of his relative. Section 113-A reads thus: “When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband”. Further, the Explanation added to Section 113-A of the Evidence Act clearly provides that ‘cruelty’ shall have the same meaning as in Section 498-A IPC.

Considering first the offence under Section 498-A IPC, the Court noted the consistent evidence of witnesses who were related to the deceased. The Court opined that most often the offence of subjecting the married woman to cruelty is committed within the boundaries of the house which in itself diminishes the chances of availability of any independent witness. It was observed:

“The evidentiary value of the close relatives/interested witness is not liable to be rejected on the ground of being a relative of the deceased. Law does not disqualify the relatives to be produced as a witness though they may be interested witness.”

The Court found that the witnesses (family members) though related to the deceased, were natural witnesses. Their evidence was consistent without any material contradiction and inspired confidence. Thus, from the evidence of prosecution witnesses, the Court concluded it was proved that the deceased was harassed with a view to meet unlawful demand of Rs 25,000. The Court held that the prosecution was successful in proving the charge of cruelty under Explanation (b) of Section 498-A IPC.

Next, the question that fell for consideration was that the prosecution having successfully established the charge of cruelty as laid down in Explanation (b) of Section 498-A IPC and also the fact that the deceased committed suicide by consuming pesticide within seven years of marriage, whether the accused could also be held guilty for the offence punishable under Section 306 IPC with the aid of Section 113-A of the Evidence Act.

The Court noted that the prosecution failed to adduce any direct evidence to establish that the accused abetted deceased into committing suicide. The prosecution placed reliance on Section 113-A of the Evidence Act to establish the charge of abetment against the accused. Relying on its earlier order in Ramesh Kumar v. State of Chhattisgarh, (2001) 9 SCC 618, the Court concluded that to attract the applicability of Section 113-A of the Evidence Act, three conditions are required to be fulfilled: (i) the woman has committed suicide; (ii) such suicide has been committed within a period of seven years from the date of her marriage; (iii) the accused had subjected her to cruelty.

In the instant case, all the three conditions stood fulfilled. The deceased committed suicide within a period of seven years from the date of her marriage and accused had subjected her to cruelty, as it was confirmed that prosecution was successful in proving the charge of cruelty under Section 498-A IPC.

The Court said that it is no doubt correct that the existence and availability of the above said three circumstances are not to be invoked like a formula to enable the presumption being drawn and the presumption is not an irrebuttable one. However, in the instant case, the evidence clearly established the offence of cruelty or harassment caused to the deceased and, thus, the foundation for the presumption existed. Admittedly, the appellants led no evidence to rebut the presumption.

In such view of the matter, the Supreme Court held that the trial court, as well as the High Court, committed no illegality in holding that the appellants abetted suicide of the deceased. The appeals were therefore dismissed. [Gumansinh v. State of Gujarat, 2021 SCC OnLine SC 660, decided on 3-9-2021]


Tejaswi Pandit, Senior Editorial Assistant has reported this brief.

Case BriefsSupreme Court

Supreme Court: Explaining the scope of Section 92 Proviso (6) of the Evidence Act, 1872, the 3-judge bench of NV Ramana, CJ* and Surya Kant and Aniruddha Bose, JJ has held that the said proviso can be resorted to only in cases where the terms of the document leave the question in doubt.

“But when a document is a straightforward one and presents no difficulty in construing it, the proviso does not apply. In this regard, we may state that Section 95 only builds on the proviso 6 of Section 92.”

The Court was of the opinion that if the contrary view is adopted as correct it would render Section 92 of the Evidence Act, otiose and also enlarge the ambit of proviso 6 beyond the main Section itself.

Background

Initially Appellant’s husband was running a business of stationary in the name of “Karandikar Brothers” before his untimely demise in the year 1962. After his demise, she continued the business for some time but later decided to let the Respondent run the same for some time.

The terms of the agreement were:

“The stationary shop by name “Karandikar Brothers” belonging to you of the stationary materials which is situated in the premises described in Para 1 (a) above and in which the furniture etc. as described in Para l(b) above belonging to you is existing is being taken by me for conducting by an agreement for a period of two  years beginning from 1st February 1963 to 31st January 1965.

The rent of the shop described in Para 1 (a) above is to be given by you only to the owner and I am not responsible therefor. I am to pay a royalty amount of Rs. 90 /-(Rupees Ninety only) for taking the said shop for conducting, for every month which is to be paid before the 5th day of every month.”

Time after time, the contract was duly extended. In 1980s, desiring to start her husband’s business again, appellant herein issued a notice requesting the Respondent to vacate the suit premises, However, the Respondent replied to the notice claiming that the sale of business was incidental rather the contract was a rent agreement stricto sensu.

The Trial Court while negating the contention of the Respondent, that the shop premises was given to him on license basis.

The Bombay High Court, however, held that:

“Thus, considering the entirety of the case, in my view, both   the   Courts   below   have   incorrectly   interpreted   the document and the surrounding circumstances which, in my view, indicate that the parties had in fact agreed that the premises were transferred to the appellant on a leave and license basis.”

Analysis

Section 95. Evidence as to document unmeaning in reference to existing facts.—

When language used in a document is plain in itself, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense.  Illustration A sells to B, by deed, “my house in Calcutta”. A had no house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house of Howrah.

Section 92. Exclusion of evidence of oral agreement.—

When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms:…

Proviso (6).—Any fact may be proved which shows in what manner the language of a document is related to existing facts.

The Court explained that Section 92 specifically prohibits evidence of any oral agreement or statement which would contradict, vary, add to or subtract from its terms. If oral evidence could be received to show that the terms of the document were really different from those expressed therein, it would amount to according permission to give evidence to contradict or vary those terms and as such it comes within the inhibitions of Section 92. It could not be postulated that the legislature intended to nullify the object of Section 92 by enacting exceptions to that section.

Considering the facts and materials placed before it, the Court was of the opinion that the contract mandated continuation of the business in the name of ‘Karandikar Brothers’ by paying royalties of Rs. 90 per month.

“Once the parties have accepted the recitals and the contract, the respondent could not have adduced contrary extrinsic parole evidence, unless he portrayed ambiguity in the language. It may not be out of context to note that the extension of the contract was on same conditions.”

The Court, hence, held that the High Court erred in appreciating the ambit of Section 95, which led to consideration of evidence which only indicates breach rather than ambiguity in the language of contract. The evidence also points that the license was created for continuation of existing   business, rather than license/lease of shop premises.

The Court was, hence, of the opinion that if the meaning provided by the High Court is accepted, then it would amount to Courts substituting the bargain by the parties.

“Such interpretation, provided by the High Court violates basic tenants of legal interpretation.”

[Mangala Waman Karandikar v. Prakash Damodar Ranade, 2021 SCC OnLine SC 371 , decided on 07.05.2021]


*Judgment by: CJI NV Ramana

Know Thy Judge| Justice N.V. Ramana

'Lex Mercatoria' by Hasit SethExperts Corner

Introduction

Electronic evidence presents a tall challenge to the traditional rules of authenticating documentary evidence. The notions of primary and secondary evidence evolved for paper documents are difficult to apply to electronic or digital evidence. Provenance of electronic evidence is extremely hard to establish with any certainty in many instances. Hence, Evidence Act, 1872, as amended, provides for a certificate mechanism under Section 65-B(4) to authenticate electronic evidence.

 

Supreme Court of India in Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal [1] has held that Section 65-B(4) is a mandatory requirement to admit electronic evidence unless the original electronic document (e.g., a tablet, laptop or mobile phone with a recording)[2] is produced in evidence through the document/device owner’s personal authentication as a witness. Supreme Court, hence, differentiated primary and secondary evidence standards for electronic evidence where secondary evidence for electronic evidence requires the Section 65-B(4) certificate.

 

Supreme Court has also put an interesting exception to the Section 65-B(4)’s certificate requirement: When even after applying to the relevant authority holding the electronic document sought to be proved in evidence and threafter to a court under procedural or evidence law, if the certificate cannot be obtained, then the production of the same is excusable in law. This is the impossibility exception based on two Latin maxims quoted by the court: lex non cogit ad impossibilia (the law does not demand the impossible) and impotentia excusat legem (if an impossibility bars obedience to law, the disobedience of law is excused)[3]. This article explores the judicially created impossibility exception to the certificate requirement under Section 65-B(4) of the Evidence Act, 1872.

I. Authenticating Electronic Evidence

A.  Indian Approach

1.     Authenticating Documentary Evidence

 

Under the Evidence Act, 1872 documentary evidence needs proof of contents[4] of a document by primary[5] (document itself) or secondary evidence[6] of certain types and in specific situations to admit the document in evidence. Five types of secondary evidence of contents of a document are permissible: certified copies, two types of reliably reproduced copies, counterpart against a non-executant and oral accounts of someone who has personally seen the document[7]. There are seven specific situations in which secondary evidence of existence, condition or contents can be given[8]. Signatures and handwriting need to be proved as of those they are attributed to[9].

 

Sir James Fitzjames Stephen, the author of The Indian Evidence Act (I. of 1872): With an Introduction on the Principles of Judicial Evidence describes the purpose of documentary evidence as[10]:

 

One single principle runs through all the propositions relating to documentary evidence. It is that the very object for which writing is used is to perpetuate the memory of what is written down, and to furnish permanent proof of it. In order that full effect may be given to this, two things are necessary, namely, that the document itself should whenever it is possible be put before the Judge for his inspection, and that if it purports to be a final settlement of a previous negotiation, as in the case of a written contract, it shall be treated as final, and shall not be varied by word of mouth. If the first of these rules were not observed the benefit of writing would be lost. There is no use in writing a thing down unless the writing is read. If the second rule were not observed people would never know when a question was settled, as they would be able to play fast and loose with their writings.

 

2.     Authenticating Electronic Evidence

Electronic evidence created a challenge for which the Evidence Act, 1872, as minimally amended over the last century, had no answer. The mutability of electronic record and various forms essentially meant that few,  if any, forms of electronic or digital evidence have the characteristic of being “original”, a necessity under the Evidence Act, 1872’s requirement of original document itself being the primary evidence of its contents unless secondary evidence of such a document is admissible under the said Act. Hence, the law was amended to introduce specific provisions for electronic evidence[11]. Principal among the amendments were authentication amendments introduced by Sections 65-A and 65-B in the  Evidence Act, 1872.

 

The complete code for authenticating electronic evidence is in Sections 65-A and 65-B. The Supreme Court of India in Anvar P.V. v. P.K. Basheer [12] described the procedure as:

 

  1. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65-A, can be proved only in accordance with the procedure prescribed under Section 65-B. Section 65-B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer.… The very admissibility of such a document i.e. electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65-B(2). Following are the specified conditions under Section 65-B(2) of the Evidence Act:

(i) the electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;

(ii) the information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;

(iii) during the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and

(iv) the information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.

 

The conditions necessary for admitting electronic evidence based on a certificate have been explained as[13]:

  1. Under Section 65-B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:

(a) there must be a certificate which identifies the electronic record containing the statement;

(b) the certificate must describe the manner in which the electronic record was produced;

(c) the certificate must furnish the particulars of the device involved in the production of that record;

(d) the certificate must deal with the applicable conditions mentioned under Section 65-B(2) of the Evidence Act; and

(e) the certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.

The Supreme Court in Arjun Panditrao[14] case quoted the above conditions and process for authenticating electronic evidence from Anvar P.V.[15] case with a few added directions, which were:

 

(a) Section 65-B(4) certificate is unnecessary if the device on which an electronic document is first stored is itself produced in court through a witness e.g., owner who operated a laptop, tablet, etc. stepping into the witness box to produce the laptop, mobile, etc. in evidence. If the document is on a computer that cannot be brought to court then the only means of producing the document is by way of a certificate under Section 65-B(4)[16].

 

(b) Section 65-B(4)’s requirements for issuing the certificate are to be read as cumulatively “all of them” instead of text’s “… any of them…”[17].

 

(c) No proof of an electronic record by oral evidence is admissible if the requirements of Section 65-B are not complied with[18].

 

(d) Anvar P.V.[19] case stood clarified to make para 24 therein, “… if an electronic record as such in used a primary evidence under section of the Evidence Act…” to be read without the words “… under Section 62 of the Evidence Act…”[20].

 

(e) A trial court may at any stage before the completion of a trial, order the production of the certificate under Section 65-B(4) subject to a criminal court in criminal trial safeguarding against any prejudice to the accused[21].

 

(f) Authorities to examine the draft rules suggested by the Committee of five Judges (formed in consequence of the Chief Justices Conference held in April 2016) in its November 2018 report for statutory enactment in future. Data retention directions for call detail records issued to the cellular companies and internet service providers till rules and directions are enacted under Section 67-C of the Information Technology Act, 2000[22].

 

(g) The word “and” in Section 65-B(4)’s text “best of his knowledge and belief” has to be read as “or” because a person cannot testify to best of his or her knowledge and belief at the same time[23].

 

B.  A Review of Foreign Approaches

The Supreme Court noted in Arjun Panditrao[24] case (in the main judgment)  that Section 65-B(2)-(5) are reproductions of Section 5 of the UK’s Civil Evidence Act, 1968’s Section 5(2)-(5) with minor changes. But the UK law’s aforementioned section has been repealed by UK’s  Civil Evidence Act, 1995. Main judgment in Arjun Panditrao[25] case is authored by Justice R.F. Nariman on behalf of the Bench that included Justices V. Ramasubramanian and Ravindra Bhat. Justice V. Ramasubramanian has written a supplementing opinion as well. The discussion immediately next is based on Justice V. Ramasubramanian’s supplementing opinion unless noted otherwise.

 

Anonymity of cyberspace has made election documents easily manipulatable and hence suspicious[26]. US approach also uses certificates under Federal Rules of Evidence, Rules 902(13) and (14) but requires notices  to the opposing side. In the UK electronic evidence in civil cases is covered by the Civil Evidence Act, 1995, while electronic evidene in criminal law is governed by the Police and Criminal Evidence Act, 1984 where its Section 9 concerning electronic evidence stood amended by the Youth Justice and Criminal Evidence Act, 1999[27]. In all these reforms in the common law world regarding electronic evidence, essentially more hearsay evidence was made admissible with requirements of notice to the other side whether it be in electronic form or not. Business records exception to the rule against hearsay is now available in most advanced common law countries.

 

India has not undertaken any such comprehensive reform of the rule against hearsay[28], which is the underlying theme of the whole of Evidence Act, 1872 with carefully included exceptions. Justice S. Rangarajan of the Delhi High Court urged the consideration of reform to the hearsay rule way back in 1972[29]. But since long no reforms to the evidence law in India are forthcoming.

 

IV. Primary and Secondary Distinction Remains

 

The judgment in Arjun Panditrao[30] case retains the primary and secondary evidence for electronic evidence in these terms:

 

  1. … All this necessarily shows that Section 65-B differentiates between the original information contained in the “computer” itself and copies made therefrom – the former being primary evidence and the latter being secondary evidence.

     

Because of retaining primary and secondary evidence distinction for electronic evidence, the Supreme Court has required production of original electronic document in form of pen drive, mobile phone, etc. through the owner of such device stepping into the witness box. When it is impossible to bring “computer” being part of a computer system or computer network then the certificate under Section 65-B(4) can be produced[31].

 

The implicit assumption behind retaining the primary and secondary evidence distinction for electronic evidence is the miniaturisation of computing technology. Pharesology of Section 65-B(2)’s conditions (a)-(d) presumes computers to be of the old mainframe era where data is stored that can be retrieved either as saved or as a printout, etc. as a generated report from data inputted consistently. Computers have evolved such that there may not be many a large monolith mainframe that cannot be produced in court easily rather than mobiles, pen drives, memory cards, tablets or watches that can be produced easily in courts. Rather computing now is a process applied in varied devices like mobile phones, tablets, sensors, smart watches, etc. There are no old style PC computers per se in these devices but they contain the core computing abilities of any common computer. Hence, such devices which are almost pocket sized can easily be produced in court as “originals” through a witness authenticating the device and its contents. This production of a device used for storing contents as created has naturally higher probability of genuiness than say a prinout of a document stored in memory of a mobile phone to determine the genuineness of the electronic document rather than rely on a certificate alone in such instances.

 

V. Methods to Get the Document

 

The Supreme Court grappled with the problem of not getting the relevant certificate despite all possible efforts by a litigant. The question that the court posed to itself was: What if the Section 65-B(4) certificate could not be obtained because the litigant may not be in possession of the electronic device storing the electronic document and despite applying to the authority holding the electronic document a certificate under Section 65-B(4) was not being issued? As a remedial first step, the Supreme Court noted the several provisions across statutes that enable a Court to order production of a document. The Supreme Court was essentially countering the major premise of Shafhi Mohammad v. State of H.P.[32] that the certificate could not be obtained by persons who are not in possesion of an electronic device containing the stored electronic document.

 

Section 165 of the Evidence Act, 1872 enables a Judge presiding over a civil or a criminal trial to order production of any document or thing for obtaining proof of relevant facts. Civil Procedure Code, 1908 provides in Order 16 concerning “Summoning and Attendance of Witnesses” empowers the trial court to issues summons to produce document (Rule 6), require persons present in court to give evidence or produce a document (Rule 7). Further, under Order 16, the trial court can also issue a proclamation for attendance and (or in lieu) issue a warrant  or even attachment of property if a person summoned fails to produce a document (Rule 10).

 

Under the Criminal Procedure Code, 1973, a criminal trial court can issue summons to produce a document or a thing (Section 91). Further, the criminal trial court can penalise a person refusing to produce a document (Section 349).

 

While several procedural provisions exist by which a Judge in a civil or criminal trial can order production of a document, in practice this is hard to do. Hence, the Supreme Court’s prescription that the trial Judges will assist  the litigants to obtain the Section 65-B(4) certificates under existing procedural methods in practice may be cumbersome and lengthen the trial itself.

 

The Impossiblity Maxims

While the Supreme Court has pointed to the existing procedural measures to obtain Section 65-B(4) certificates from anyone possessing the electronic device that contains the impugned electronic document, the court has also contemplated situations where despite all efforts, the relevant Section 65-B(4) certificates cannot be obtained by a litigant.

 

In the facts of Arjun Panditrao case[33], the Supreme Court noted that despite all efforts made by respondents through the High Court and otherwise, the litigant failed to obtain the Section 65-B(4) certificate from the government authorities who held the original electronic recording.

 

The prerequisite[34] for considering impossiblity of obtaining the Section 65-B(4) certficates are:

  1. Litigant has applied for the requisite Section 65-B(4) certificate to the relevant authority but either the that authority has refused or does not respond to the request then the litigant has to take help of court.
  2. Litigant seeks a court’s help to use its powers under the evidence, civil procedure and criminal procedure to summon the certificate from the authority refusing or delaying the same.
  3. If the litigant still does not get the relevant Section 65-B(4) certificate, then the litigant has done all she can to obtain the certificate.

 

For such impossiblity in obtaining the Section 65-B(4) certificate even after the prerequisites are performed, the Supreme Court applied two Latin maxims:

 

(1) lex non cogit ad impossiblia (law does not demand the impossible); and

(2) impotentia exusat legem (in case of disability that makes it impossible to obey the law, the disobedience is excused). These maxims have been cited many times by Indian courts and at times even in the context of mandatory provisions of law[35].

In Arjun Panditrao[36] case, the Supreme Court noted that the litigants had done everything they could to obtain the Section 65-B(4) certificate but they had failed. Hence, the Court held that,

  1. 51. On an application of the aforesaid maxims …, it is clear that though Section 65-B(4) is mandatory, yet, on the facts of this case, the respondents, having done everything possible to obtain the necessary certificate, which was to be given by a third party over whom the respondents had no control, must be relieved of the mandatory obligation contained in the said sub-section.

     

Conclusion

While the Supreme Court has created stability in law regarding electronic evidence by maintain the primary and secondary evidence distinction, it has also pressed into service existing procedural and evidentiary provision to obtain the elusive Section 65-B(4) certificate when the electronic document is not possession of a litigant seeking a Section 65-B(4) certificate. But most importantly, the Court has created a judicially recognised exception to the requirement of the Section 65-B(4) certificate when a litigant has done all she can to obtain such a certificate. The way court did it was not by reading down the mandatory nature of the Section 65-B(4) but by using well-recognised Latin maxims when it is impossible for a litigant to obtain the certificate despite seeking it from relevant authority and thereafter also seeking a court’s assistance through its procedural powers.

The Supreme Court has done its best to interpret the existing law on electronic evidence, but in future there will be a need to reform the rule against hearsay following the rest of the common law world.

 


† Hasit B. Seth practises as an independent Counsel in the Bombay High Court and in arbitrations.

 

[1] See Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal, (2020) 7 SCC 1.

[2] Id. at 37.

[3] Id. at 46.

[4] Evidence Act, 1872 does not use the terminology of “authenticating” a document for evidentiary purposes (The word “authenticating” is used in Ss. 82 and 85 for specific types of endorsements and is not used generally for authentication for all documents). The  Evidence Act, 1872 uses “proof of contents of documents” to verify genuineness of a document’s contents. This article proposes that “authentication” word be used for discussion purposes rather than “proof of contents” of a document. The reason is that it is commonly said, “have you proved the document?” while intent is to ask have you provided proof of contents of the document? US Federal Rules of Evidence uses authentication as a term to verify genuineness of all kinds of evidence, as explained in Federal Rules Evidence 901 as: “(a) In General. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Further, for electronic documents, Ss. 65-A and 65-B do not use the terminology of “proof of contents of documents”; S. 65-A uses “contents of electronic record may be proved”. Hence, the choice of using a common umbrella term “authentication” for verifying genuineness of all kinds of evidence, be it electronic – analog or digital, physical objects, real, paper or any other kind.

[5] Evidence Act, 1872, Act 1 of 1872, S. 62.

[6] Id., S. 63.

[7] Id., S. 63.

[8] Id., S. 65.

[9] Id., S. 67.

[10] James Stephen, An Introduction to the Indian Evidence Act: The Principles of Judicial Evidence 176-177 (1902).

[11] See Information Technology Act, 2000, S. 92 and 2nd Schedule (both now omitted).

[12] Anvar P.V. v. P.K. Basheer, (2014) 10 SCC 473, 483; Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.

[13]Anvar P.V., (2014) 10 SCC 473 at 484.

[14] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 28-29.

[15] See Anvar P.V., (2014) 10 SCC 473.

[16] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.

[17] Id. at 27-28.

[18] Id. at 30.

[19] Anvar P.V., (2014) 10 SCC 473.

[20] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37-38.

[21] Id. at 55.

[22] Id. at 57.

[23] Id. at 55.

[24] Id. at 34.

[25] Arjun Panditrao Khotkar, (2020) 7 SCC 1.

[26] Id. at 68.

[27] Id. at 78.

[28] Evidence Act, 1872 does not define hearsay unlike US’s Federal Rules Evidence 801 that defines hearsay as, “(c) Hearsay. ‘Hearsay’ means a statement that: (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement.”

 [29] Rangarajan, S., The Anglo-Saxon Experiment Concerning the Rule against Reception of Hearsay Evidence and What it may Mean to us., Journal of the Indian Law Institute, 1972 can be accessed HERE .

[30] Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 37.

[31]Id. at 37.

[32] See Shafi Mohammad v. State of H.P., (2018) 2 SCC 801.

[33]Arjun Panditrao Khotkar, (2020) 7 SCC 1 at 46.

[34] Id. at 46.

[35] Id. at 48-49.

[36] Id. at 50.

Himachal Pradesh High Court
Case BriefsHigh Courts

Himachal Pradesh High Court: Tarlok Singh Chauhan, J. dismissed the appeal being devoid of merits.

The facts of the case are such that respondent 1 filed a suit for declaration and permanent prohibitory injunction against the appellants alleging that the Will in question executed by the mother of appellant 1, respondents and grandmother of the appellants 2 to 4 in respect of properties owned and possessed by her in favour of the appellants 2 to 4 is illegal and wrong. The appellants contested the claim of respondent 1 with respect to the genuineness of the Will as it is the last legal and valid Will executed by late Smt. Tulsa in favour of the appellants 2 to 4 which was registered after her death and mutation of inheritance was entered and attested in favour of appellants 2 to 4. The Trial Court decreed the Will to be valid to the extent of 1/3rd share and remaining 2/3rd share was held to have devolved upon the legal heirs of late Smt. Tulsa. Feeling aggrieved two appeals by each party was filed wherein the appeal filed by respondent 1 was allowed and appeal filed by the appellants was dismissed in favour of the appellants to the extent that the Will is held to be legally and validly executed by Smt. Tulsa were set aside in its entirety. Assailing this order, the instant appeal was filed.

Counsel for the appellants Mr Y. P. Sood submitted that the findings recorded by the learned Courts below are totally perverse as there was no requirement of law to examine the scribe of the Will, more especially, when one of the attesting witnesses i.e. Lovender Singh in this case has already been examined.

Counsel for the respondents Mr Bimal Gupta and Ms Poonam Moghta submitted that the parties to the lis are Muslims and governed by Mohammedan Law and the mode of proving the Mohammedan Will is different as a Mohammedan will is required to be proved under Section 67 of the Evidence Act, 1872.

The Court thus observed that the law of Will as prescribed in Chapter-III, Rule 184 of the Mohammedan Law makes it clear that a Will may be executed in writing or oral, showing a clear intention to bequeath the property. However, a limitation is also prescribed that a valid Will by a Mohammedan will not be for more than 1/3rd of the surplus of his/her estate and that to a non-heir.

The Court relied on judgment Miyana Hasan Abdulla v. State of Gujarat, AIR 1962 Gujarat 214 wherein it was observed that on perusal of Section 67 of the Evidence Act, 1872 it is amply clear that where the document is written by one person and signed by another, the handwriting of the former and the signature of the later have both to be proved in view of Section 67 of the Evidence Act. What Section 67 of the Evidence Act refers to, is the signature of a witness who counter signs a document as a person who was present at the time when the document was signed by another person.

The Court observed that no exception can be taken to the findings recorded by the learned first Appellate Court, whereby it drew an adverse inference against the appellants for not examining the scribe of the document Shri Shamshad Ahmed Qureshi, who was very much alive at that time and even, in case, he was suffering from ailment his statement could have conveniently been recorded on commission.

The Court thus held that in the present case “non-examination of the scribe assumes importance because the witness Lovender Singh does not state to have witnessed Smt. Tulsa, the testator, putting her signatures over the Will.”

In view of the above, appeal was dismissed.[Ashiq Ali v. Yasin Mistri, 2021 SCC OnLine HP 735, decided on 20-04-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Case BriefsHigh Courts

Madras High Court: G. Jayachandran, J., the instant suit was filed with regard to the relief of partition and permanent injunction from alienating or encumbering the suit property.

Instant suit was filed for partition by daughters of Late Palanisamy Gounder against his sons was dismissed by the trial court while upholding the validity of the release deed executed by the plaintiffs.

Aggrieved by the above decision of Trial Court, the appeal was preferred by the plaintiffs.

Daughters of Palanisamy, who are the plaintiffs in the suit under appeal relinquished their 2/5th share in the property of their father Palanisamy and executed a release deed on receipt of Rs 2,32,060/- each in favour of defendants 1 to 5, who are their two brothers and the legal heirs of their deceased brother. The sale deed and the release deed were registered.

It was alleged that the above-stated release deed was obtained dishonestly by misleading the daughters and no money was received.

Plaintiffs, later cancelled the release deed and got the cancellation deed registered. After issuing notice seeking partition, suit filed claiming 2/5th shares.

Point for determination:

Whether the Trial Court finding about the validity of the release deed to dismiss the partition suit is sustainable under law and facts?

It was contended by the plaintiffs that they were criminally coaxed to sign the documents. In the cancellation deed, the plaintiffs were made to affix a thumb impression and signature without explaining to them about the nature of the document. Along with this, they were not paid any amount but the deed was executed.

Plaintiffs came to know about the execution of the release deed only when they applied for an encumbrance certificate.

It was expressed that by filing the partition suit, the plaintiffs disowned their own document namely the release deed duly registered and presumed to be an official act performed regularly.

If the terms of contract reduced into writing and duly registered is sought to be excluded by oral evidence, the burden is on the plaintiffs to adduce evidence sufficient to exclude the written evidence, as per section 92 of the Evidence Act.

Sections 91 and 92 proviso (i) of Indian Evidence Act, clearly lay down the rule when written evidence could be excluded by oral evidence is permissible.

Plaintiffs could not prove that the release deed was executed by misleading them and the consideration in the release deed was not aid to them.

Bench held that without declaring further relief to declare the sale deed in favour of 6th defendant and release deed as null and void, the suit for partition declaring the right in the suit property was prohibited under Section 34 of the Specific Relief Act.

Section 34 of the Specific Relief Act:

  1. Discretion of court as to declaration of status or right:— Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief:

Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.

Plaintiffs after executing a release deed, cancelled the same without any notice to the beneficiary of the release deed and later without any further relief of declaration in respect of those deeds, the suit for partition was filed. When Section 34 of the Specific Relief Act, restrains the Courts from entertaining suits filed for mere declaration as to right when the plaintiffs are able to seek further relief, and same omitted to do so.

Therefore, for the reasons stated above, this Court confirmed the decree and judgment of the Additional District Court.[Tmt. Karuppathal v. P. Ponnusamy, 2021 SCC OnLine Mad 677, decided on 12-02-2021]