“He, who has a why to live for, can bear with almost any how.”    Friedrich Nietzsche

The Constitution of India grants rights to every Indian citizen, especially in the shape of fundamental rights, irrespective of his caste, creed, gender, and race, for his protection, assertion, defence, and livelihood. Articles 14, 15, and 16 of the Constitution not only deter discrimination against women but also, in appropriate circumstances, provide a free hand to the State to implement protective discrimination, especially in favour of women. Despite the equality so guaranteed by the Indian Constitution, and other laws, women in India were not entitled to any share in the property held by a male, in earlier times.

In older times, much before the enactment of any codified law for the governance of Hindu property and much prior to the adaption of the Constitution of India, the property of a Hindu male was inherited by males only. Though there are adequate proofs in the historical Vedas and commentaries which justify that women were capable of holding property, however, they were not given any such rights. Moreover, the transactions carried out by them were considered to be without any legal recognition and were often subjected to custom. The property held by a Hindu woman was bifurcated into Stridhan and Non-Stridhan. The former was further divided into Saudayika and Non-Saudayika. While a woman had absolute rights over her Stridhan(Saudayika) property, she only had a limited right with regard to other properties held by her.

Before the enactment of the Hindu Women’s Right to Property Act 1937, women were not entitled to a share in the joint family property, and succession was governed by survivorship. As per the rules of survivor ship, on the death of a member of a joint and undivided family, his share in the joint family property would pass on to the surviving coparceners, which included only the male members of the family. Thus, prior to 1937, there were no codified laws to deal specifically with the Hindu woman’s right to property. Where disputes arose, they were settled in accordance with the customary practices.

The Act of 1937 enabled the widow to succeed along with the son and to take a share equal to that of the son. The widow was entitled only to a limited estate in the property of the deceased with a right to claim partition. A daughter had virtually no inheritance rights. With the introduction of the Hindu Women’s Right to Property Act, 1937, the widow of the deceased husband now had a right to her husband’s property after his death. Unlike previously, where the property was divided among the surviving coparceners by the doctrine of survivorship, now it was the widow who had the sole right to such property. However, she only had limited rights (popularly called “limited estate”) over such property, which remained with her till her death. The said enactment, which was passed after much voicing of discontent over the unsatisfactory condition of women’s rights, came as a huge protection for women who were widows and were left unprovided for with nothing after the death of their husbands. The act clearly lays down that it shall be applicable only to cases where no testament regarding succession has been made by a Hindu male and he dies intestate. The intent of the said act was only to provide protection to widows by recognising their right to a limited estate even after the death of their husband. The rights and protection offered under the 1937 Act were not only to the widow of the deceased but also included the widow of a predeceased son and also the widow of a predeceased son of a predeceased son (widow granddaughter-in-law), but no other female, including a daughter, was included in the ambit of the said act. The said law was made applicable to all schools of Hindu law, including Dayabhaga and Mitakshara.

Section 3 of the 1937 Act, deals with the devolution of property. It lays down that “Devolution of property:-

(1) When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property, and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property, his widow, or if there is more than one widow, all his widows together, shall, subject to the provisions of sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son: Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son: Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.

(2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had.

(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman’s estate, provided however that she shall have the same right of claiming partition as a male owner.

(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies.”

Though the said Act nowhere defines the word “property” and a cursory reading of section 3 clearly shows that the equal property as to a son, were given to the widow, predeceased son’s widow and predeceased grandson’s widow, but when the said Act came into force then the same was voiced opposition and resentment on the ground that agricultural land cannot be said to be included in the said Act, and no limited right in the agricultural property can be said to be given to a widow woman on that accord.

The said conflict about exclusion of agricultural land from the purview of 1937 Act, was settled by a decision of Federal Court in AIR 1941 Federal Court 72.

The following questions were considered by the Federal Court:-

“(1) Does either the Hindu Women’s Rights to Property Act, 1937 (Central Act, 18 of 1937), which was passed by the Legislative Assembly on 4th February, 1937, and by the Council of State on 6th April 1937, and which received the Governor-General’s assent on 14th April 1937, or the Hindu Women’s Rights to Property (Amendment) Act, 1938 (Central Act, 11 of 1938), which was passed in all its stages after 1st April 1937, operate to regulate (a) succession to agricultural land? (b) devolution by survivorship of property other than agricultural land?

(2) Is the subject of devolution by survivorship of property other than agricultural land included in any of the entries in the three Legislative Lists in Sch. 7, Government of India Act, 1935?”

The observations of the Federal Court relevant for the present purposes were:-

“……….After 1st April 1937, the Central Legislature was precluded from dealing with the subjects enumerated in List II of Sch. 7, Constitution Act, so far as the Governors’ Provinces were concerned. Laws with respect to the “devolution of agricultural land” could be enacted only by the Provincial Legislatures (entry No.21 of List II), and “wills, intestacy and succession, save as regards agricultural land” appeared as entry No.7 of List III, the Concurrent List. Act 18, read with the amending Act of 1938, endeavoured to improve the position of Hindu widows in two classes of cases (a) where by the operation of the principle of survivorship the widow is excluded from enjoyment of the share of her husband in property which he held jointly with other coparceners; and (b) where, even apart from the rule of survivorship, the widow is excluded from claiming any share in her husband’s estate by reason of the existence of sons, grandsons or great-grandsons of the deceased who under the law take in preference to the widow. Provision is also made for securing a share to a widow even in cases where her husband had pre-deceased the last male owner (S.3 (1), first proviso). The Act purports to deal in quite general terms with the “property” or “separate property” of a Hindu dying intestate, or his “interest in joint family property”; it does not distinguish between agricultural land and other property and is therefore not limited in terms to the latter.“

xxxxxxxxxx

The questions were answered by the Federal Court as under:-

“……(1) The Hindu Women’s Rights to Property Act, 1937, and the Hindu Women’s Rights to Property (Amendment) Act, 1938, (a) do not operate to regulate succession to agricultural land in the Governors’ Provinces; and (b) do operate to regulate devolution by survivorship of property other than agricultural land.

(2) The subject of devolution by survivorship of property other than agricultural land is included in entry No.7 of List 3, the Concurrent List.“

The said decision of the federal court lays down that the Act of 1937 shall not apply to or include agricultural land. Thus, what was welcomed as a revolution for the protection of widows’ rights was held to be available only for granting limited rights in properties other than agricultural land.

After the said decision, many states, like UP, Bihar, Maharashtra, and a few others, amended the 1937 Act and passed an extension bill in order to make the 1937 Act applicable to include agricultural land in its ambit.

However, there were many States, including the erstwhile Punjab, where no such extension to include agricultural land was provided. The decision of the Federal Court (Supra) was also considered by a Division Bench judgement of the Punjab and Haryana High Court in Hari Dass v. Hukmi, 1965 AIR (Punjab and Haryana) 254. The Division Bench was seized of the matter arising out of a decision by a Single Bench of the High Court whereby the suit filed by the appellant therein was dismissed.

While holding that Act 18 of 1937 was not within the legislative competence of the Central Legislature when it was enacted so far as agricultural land was concerned, the learned single judge was of the view that on the enactment of the Constitution, the shadow that had been cast on it was lifted, inasmuch as under List III of the Seventh Schedule, item 5, the subject-matter of “Wills, intestacy, and succession” came within the concurrent field without the qualification which was attached to that subject in the Government of India Act, in item 7 of List III. It relied on a decision of the Supreme Court in Bhikaji Narain v. State of Madhya Pradesh, AIR 1955 Supreme Court 781, and observed –

“The impugned Act had suffered only from a temporary eclipse and the shadow which had been cast on the impugned Act was the Constitution of India *****“

Thus, the question before the Division Bench was whether the Act of 1937 was applicable to agricultural land after the coming of the Constitution of India.

The Division Bench, relying upon the decision of the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25, and the Lahore High Court in Udham Kaur v. Parkash Kaur, AIR 1945 Lahore 282, held that:-

“In the present case Act 18 of 1937 as interpreted by the Federal Court and the Lahore High Court governed evolution and succession of property other than agricultural land. It was a valid piece of legislation qua that property. There was no question of any shadow being removed after the Constitution came into force and there had to be fresh legislation in order to make Act 18 of 1937, applicable to agricultural land also. In this view of the matter the decision of the learned Single Judge cannot be sustained on the main point.”

Thus, it was held that even after the coming of Constitution of India came into force, the cloud casted upon inclusion of agricultural land under the 1937, was not removed and the said Act shall not govern the succession in respect to thereof. It may be mentioned that the Federal Court in Umayal Achi v. Lakshmi Achi, AIR 1945 Federal Court 25 (Supra) as relied upon by Division Bench had further relied upon the decision of Federal Court in 1941 AIR federal Court 72 to hold that agricultural land shall not be included under the 1937 Act.

In the meantime, with the passage of time and development, a codified law to deal with the succession and inheritance of Hindu’s was passed and Hindu Succession Act, 1956 came into force on 17th of June, 1956.

The said Act repealed all the previous Acts and, by virtue of section 4, unless expressly provided, had an overriding effect on all the Acts, usages, and customs with respect to any matter for which provision was made in the act.

Furthermore, by virtue of section 14 of the said Act, any limited right given to a woman in movable and immovable property, whether given before or after the commencement of the Act, shall be deemed to be her absolute property by virtue of section 14(1).

Section 14(2), on the other hand, carved out an exception to the said rule, stating that property acquired by a Hindu female by way of gift, will, or any other instrument, or a decree or an award, conferring restricted rights to her, shall not become her absolute property by virtue of section 14.

14. Property of a female Hindu to be her absolute property:-

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation.-In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Thus, after the coming of the Hindu Succession Act, 1956, any property that was held by a Hindu female, whether before or after the commencement of the said act and which does not fall under the exception of 14(2), shall be held by her in an unrestricted and absolute manner. The word “possessed” as incorporated in section 14 was further held by various judgements of the Supreme Court to include any kind of remote possession, be it constructive, physical, or even a right to possess.

The result of the incorporation of this section led to a situation whereby all the limited rights given to a female Hindu under the 1937 Act became absolute by virtue of section 14(1) of the Hindu Succession Act. However, by virtue of judicial precedents as discussed above, the said section was unable to provide any benefit to the Hindu Female with respect to any agricultural lands, as the same was held to be not included in the ambit of 1937 Act, and no Hindu Widow was entitled to even a limited right in the agricultural land under the 1937 Act.

The ratio of exclusion of agricultural land under the 1937 Act, was again put to test by the Supreme Court in Vaijnath v. Guramma 1999 AIR (SC) 555 whereby, while examining the scope of 1937 Act viz a viz Hyderabad (application of Central Acts) 1952, held that there is nothing in the 1937 Act which would exclude the agricultural land. Thus, it was held that federal court judgement shall not apply and the said Act shall also be deemed to include agricultural land. It was held that :-

“…………The language of the Hindu Women’s Right to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words ‘property’ as well as ‘interest in Joint Family Property’ are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women’s Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word ‘property’. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail.

The appellants, however, rely upon a subsequent Act passed by the State of Hyderabad, namely, Hyderabad Hindu Women’s Rights to Property (Extension to Agricultural Land) Act, 1954. Section 2 of the said Act provides that “term ‘property’ in the Hindu Women’s Rights to Property Act as in force in the State of Hyderabad shall include agricultural land. This Act received the assent of the President on 15th October, 1954 and was published in the State Gazette dated 22nd of October, 1954. It was submitted that prior to the enactment of the Hyderabad Hindu Women’s Right to Property (Extension to Agricultural Lands) Act, 1954, the Hindu women’s Right to Property Act as enacted in 1952 would not apply to agricultural land. The High Court has rightly negatived this contention. A subsequent Act cannot be used to interpret the provisions of an earlier enactment in this fashion. The language of the earlier Act is wide enough to cover agricultural land also. In the entire Hindu Women’s Right to Property Act, 1937, there is nothing which would indicate that the Act does not apply to agricultural land. The word ‘property’ is a general term which covers all kinds of property, including agricultural land. A restricted interpretation was given to the original Hindu Women’s Right to Property Act, 1937 enacted by the then Central Legislature, entirely because of the legislative entries in the Government of India Act, 1935, which excluded the legislative competence of the Central Legislature over agricultural lands. Such is not the case in respect of the Hindu Women’s Right to Property act, 1937, as enacted by the State Legislature of the State of Hyderabad. The ratio of the Federal Court judgment, therefore, would not apply……“

The ratio of the scope of the 1937 Act to include agricultural land was again tested by the Supreme Court in Babu Ram v. Santokh Singh (Deceased) through LR’s, 2019 AIR SC 1506, whereby the Supreme Court was dealing with a judgement of the Himachal High Court with respect to the inclusion of agricultural land with respect to the right of premption under section 22 of the Hindu Succession Act, 1956. While dealing with the aspect and scope of section 22 to include agricultural land, the Supreme Court discussed the comparison between the Government of India Act, 1935 and the Constitution of India. It also discussed various judgements under the 1937 Act, including the Federal Court judgement whereby agricultural land was excluded from the scope of the 1937 Act. While specifically holding that section 22 of the Hindu Succession Act 1956 should apply to agricultural land also, it was held that:-

“13. In the aforesaid background, we are called upon to decide the applicability of Section 22 of the Act in respect of agricultural lands. Before we consider the issues in question, we must refer to the decision of this Court in Vaijanath and ors. v. Guramma and anr., 1999(1) RCR (Civil) 210 : (1999) 1 SCC 292. In that case matters pertaining to intestacy and succession relating to joint family property including agricultural land, were dealt with by a state law which had received the assent of the President. Following observations of this Court, are relevant for the present purposes:-

“8. There is no exclusion of agricultural lands from Entry 5 which covers Wills, intestacy and succession as also joint family and partition. Although Entry 6 of the Concurrent List refers to transfer of property other than agricultural land, agriculture as well as land including transfer and alienation of agricultural land are placed under Entries 14 and 18 of the State List. Therefore, it is quite apparent that the Legislature of the State of Hyderabad was competent to enact a Legislation which dealt with intestacy and succession relating to Joint Family Property including agricultural land. The language of the Hindu Women’s Rights to Property Act, 1937 as enacted in the State of Hyderabad is as general as the Original Act. The words ‘property’ as well as ‘interest in Joint Family Property’ are wide enough to cover agricultural lands also. Therefore, on an interpretation of the Hindu Women’s Right to Property Act, 1937 as enacted by the State of Hyderabad, the Act covers agricultural lands. As the Federal Court has noted in the above judgment, the Hindu Women’s Right to Property Act is a remedial Act seeking to mitigate hardships of a widow regarding inheritance under the Hindu Law prior to the enactment of the 1937 Act; and it ought to receive a beneficial interpretation. The beneficial interpretation in the present context would clearly cover agricultural lands under the word ‘property’. This Act also received the assent of the President under Article 254(2) and, therefore, it will prevail.“

14. When the Federal Court was called upon to consider the matter, Entry 21 of List II of 1935 Act had inter alia dealt with “transfer, alienation and devolution of agricultural land”. It was in the exclusive domain of the provincial legislatures. The idea that the provincial legislatures were alone entitled to deal with matters relating to “transfer, alienation and devolution of agricultural land” was again made clear in Entry 7 of List III by expression “…succession, save as regards agricultural land” which dealt with concurrent powers. The provincial legislature had thus exclusive competence with regard to transfer, alienation and devolution of agricultural land. In the circumstances, the Federal Court had answered the first question that the provisions of Hindu Women’s Rights to Property Act, 1937 and Hindu Women’s Property (Amendment) Act, 1938 would not regulate succession to agricultural lands in the provinces.

15. But the situation underwent considerable change after the Constitution of India was adopted.

(i) The subjects “Transfer, alienation of agricultural land” are retained in the State List in the form of Entry 18 but the subject “devolution” was taken out.

(ii) As against earlier Entry 7 of List III where the subject, “succession” came with express qualification, “…save as regards agricultural land”, that qualification is now conspicuously absent in comparable Entry 5 in the present List III. The expression in Entry 5 today is “…intestacy and succession”. The changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows “succession” in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to “transfer, alienation of agricultural land” which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to “intestacy and succession” which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with….“

The judgement in Babu Ram’s case laid down that after the coming into force of the constitution of India, any distinction that was there earlier with respect to the State list and Central list stands removed, and resultantly, no distinction can be made between agricultural and non-agricultural land. The Supreme Court clearly discussed the scope of the 1937 Act and the Federal Court judgement and many subsequent judgements which were passed on the basis of that judgement to hold that since the said distinction between state property list and Central list is no longer good, the word property, for all intents and purposes, shall be deemed to include agricultural land too.

Thus, with the said question having been decided in favour of the widow, holding that the provisions of the 1937 Act shall apply to agricultural land as well. The unrest that was caused by earlier decisions of the Federal Court and other judgements following that has been put to rest. As a result, it can safely be inferred that any restricted or limited right that the Hindu Widow derived in a property under the 1937 Act and which was acquired after the coming of Indian constitution, shall become her absolute property under section 14(1) of the 1956 Act.

(The author is a practicing advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

It is often believed that the “The first draft is just you telling yourself the story.” When you draft that story into a document for the purpose of litigation then the same forms a part of the pleadings.

Pleadings, is a written presentation by a litigant in a lawsuit setting forth the facts upon which he claims legal relief or challenges the claims of his opponent. A pleading in litigation includes facts, assertions, claims and counterclaims but not the evidence by which the litigant intends to prove his case. It forms an important part in the resolution of dispute between parties as it contains facts which forms the basis on which the rights and liabilities of the party to the suit are ascertained. The pleadings, therefore, serve the primary purpose of acquainting the court and the parties with the facts and issues in dispute.

After both the plaintiff and the defendant have made their initial statements, there may be further pleadings, such as a reply, replications, a rejoinder, and even a surrejoinder. It is open to either party to accept or deny out his opponent’s pleading, or parts thereof, on the grounds that it disclosed no cause of action or defense or on certain other grounds. If a factual allegation is not refuted or denied, it is assumed to be admitted and can be used so during the course of trial.

The provisions with regards to Pleadings are contained in Order VI of the Code of Civil Procedure, 1908 (hereinafter, the CPC). Though the term pleading is not defined in the code, but under Order VI are contained the general guidelines about it and what it must contain. Pleadings can also be regarded as the soul of the litigation and failure to assert and plead the same properly may result in fatality of the Lis.

Rule 1 Order VI of Code of Civil Procedure 1908 lays down :-

“Pleading” :- “Pleading” shall mean plaint or written statement.

Though the said rule only mentions plaint and written statement as a part of the pleadings but any replication and rejoinders etc. filed by the parties are also included in the pleadings of the parties.

In Ajmel Singh v. Kulwinder Singh 2010(3) PLR 192, It was held that :-

“No doubt, the pleadings are the plaint and written statement but in an application filed by the defendants before the trial Court under Section 148A of the Civil Procedure Code, at the time of lodging caveat application along with an affidavit of the General Power of Attorney of both the respondents, it has been admitted that the plaintiff is a tenant over the shop in dispute without stating that his tenancy has been terminated or he has been evicted by any order of the competent Court of law. Therefore, in my view, at this stage of interim injunction, the affidavit filed in the Court, though, with the caveat application cannot be ignored as it contains an admission on the part of the defendants that plaintiff is in possession as a tenant. It is well settled that admission is the best mode of proof. It is also well settled that once a tenant always a tenant until and unless the tenancy is terminated and the tenant is evicted from the premises by an order of competent Court of law. In these circumstances, I find force in the arguments raised by learned counsel for the petitioner that the learned Court below should not have directed the parties to maintain status quo rather the plaintiff should have granted interim injunction to restrain the defendants from interfering in his possession especially when there is an allegation that they had already tried to dispossess them forcibly as the defendants had come to the premises in question along with their henchmen on 10.12.2005 and had removed certain articles belonging to the plaintiff lying in his almirah.

7. In view of the above discussion, the present revision petition is allowed…”

Despite the fact that pleadings must contain all the assertions and cause of action Rule 2 of Order VI of the CPC clearly states that pleadings must state only material facts in concise form and not the evidence. Pleadings of those material facts helps the plaintiff to define and assert his cause of action and at the same time helps the defendant to establish his defense in a civil suit.

Order VI Rule 4 of the CPC further lays down that wherever any party relies on any misrepresentation, fraud, breach of trust, willful default or undue influence then all such particulars must clearly be stated in the pleadings. Thus, in the absence of any pleadings to the said averments, no amount of evidence can prove the same.

Once the pleadings of the parties crystalize, then on the basis of assertions and denials in the pleadings, the court frames issues on the same. The party who asserts the claim has the onus to prove the same on the basis of evidence and on the basis of evidence the court grants the relief in the litigation by either decreeing the claim in the suit in whole or in part or by dismissing the suit of the plaintiff.

It is also the generic rule of civil law that no amount of evidence can be looked into without there being a specific pleading about the same.

Though pleadings must contain all the assertions and claims that the plaintiff wishes to establish but no principles of law covering the cause of action is mandatorily required to be pleaded in the plaint or written statement. It is settled principle of law that no pleading except by way of amendment shall raise any new ground of claim, inconsistent with the previous pleadings of the party.

Order VI Rule 7 of the CPC lays down that :- No pleading shall, except by way of amendment, raise any new ground of claim or contain any allegation of fact inconsistent with the previous pleadings of the party pleading the same.

Thus, for taking an additional plea, that is not originally pleaded in the pleadings, the parties to the Lis have to seek amendment of the pleadings filed by them under Order VI Rule 17.

Order VI Rule 17 reads as :- Amendment of pleadings – The Court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties.

Provided that no application for amendment shall be allowed after the trial has commenced, unless the court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.”

The principle enunciated in the above said provision clearly lays down that an application for amendment of the pleadings may be allowed by the court at any stage if the same is just and necessary for determining the real controversy between the parties. The said amendment may insert, remove, substitute or add new facts which were not originally pleaded by the parties. However, the proviso contained to the said rule clearly states that incase the amendment is to be allowed by the court after the commencement of the trial then the court must reach a conclusion that the amendment could not be raised earlier by the party despite his due diligence. The said rider was put by the court in order to avoid vexatious applications for amendment which a party may want in order to delay the litigation.

However, it was held in AIR 1922 Privy Council 249 that courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one. It was laid down that :-

“All rules of courts are nothing but provisions intended to secure the proper administration of justice and it is, therefore, essential that they should be made to serve and be subordinate to that purpose, so that full powers of amendment must be enjoyed and should always be liberally exercised, but nonetheless no power has yet been given to enable one distinct cause of action to be substituted for another, nor to change by means of amendment, the subject-matter of the suit.”

It was further held in Rajesh Kumar Aggarwal & Ors. v. K.K. Modi & Ors 2006 (2) RCR (C) 577 that it is mandatory on court to allow all amendments which are necessary for the purpose of determining the real questions in controversy between the parties.

It is also settled principle of law that the parameters for allowing the amendment of plaint and written statement stand on different footing. It was laid down by the Supreme Court in Usha Balashaheb Swami & Ors. v. Kiran Appaso Swami & Ors. 2007 (2) RCR(Civil) 830 that :-

(1) Court is conferred with power, at any stage of the proceedings, to allow alteration and amendments of the pleadings if it is of the view that such amendments may be necessary for determining the real question in controversy between the parties.

(2) Amendment can be allowed even after trial has commenced if Court comes to conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of trial.

(3) Courts should be liberal in granting the prayer for amendment of pleadings unless serious injustice or irreparable loss is caused to the other side or on the ground that the prayer for amendment was not a bona fide one.

(4) Prayer for amendment of the plaint and a prayer for amendment of the written statement stand on different footings – Even an admission in the pleadings can be explained and inconsistent pleas can be taken in amendment petition even after taking a definite stand in the written statement.

(5) In the case of amendment of a written statement, the courts are more liberal in allowing an amendment than that of a plaint as the question of prejudice would be far less in the former than in the latter case.

Further in Mani Raj v. Firm Radha Krishan Siri Niwas, G.T. Road, Hansi, Hisar and others 2003 (1) RCR(Civil) 125 it was held that :-

(1) Power to allow the amendment is wide and can be exercised at any stage of the proceedings in the interest of justice;

(2) Amendment cannot be claimed as a matter of right and under all circumstances – Courts, however, should not adopt hyper technical approach;

(3) Amendments in pleadings as also in written statements are allowed to avoid multiplicity of litigation – More generously be allowed in written statement;

(4) All amendments of the pleadings should be allowed which are necessary for determination of the real controversies in the suit provided the proposed amendment does not alter or substitute a new cause of action on the basis of which the original lis was raised or defense taken;

(5) Inconsistent and contradictory allegations in negation to admitted position of facts or mutually destructive allegations of facts should not be allowed to be incorporated by means of amendment to the pleadings;

(6) Delay in filing the petition for amendment of the pleadings should be properly compensated by costs and error or mistake which, if fraudulent, should not be made a ground for rejecting the application for amendment of plaint or written statement.

At times allowing of the amendment in the pleadings after the commencement of the trial may also give rise to a new fact which was otherwise never a part of the issues already framed, in such a situation the court may on its own, or on an application moved by the parties to Lis, recast the issues by framing or striking of an additional issue under order XIV Rule 5.

The general principle of law is that any amendment made in the pleadings shall relate back to the fling of the suit but there may be occasions, where a plaintiff whose case is otherwise beyond limitation, may seek amendment of the plaint in order to bring the same within limitation. In such a situation the court while deciding the application may order that the amendment shall be prospective and shall be considered from the date of the order.

The principles of pleadings are so vital that a little evasiveness or omission to mention the cause of action can bar any future subsequent claim for the same.

Order II Rule 2 CPC clearly lays down that every suit shall contain the whole of the claim and any omission on the part of the plaintiff to claim so, shall bar a future suit claiming subsequently the relinquished part. Thus, pleadings of suit form a lifeline and an integral part of the litigation and can form the basis for the litigation to sink or sail.

Order VII Rule 11 of the CPC gives wide powers to the court to reject a plaint. A Plaint may be rejected by the Court of its own motion or upon filing of an application in that behalf by the opposite party, at any stage of the proceedings, before conclusion of the trial. It would not matter, even if the issues are already framed in the suit, and the case is at an advanced stage.

In Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., (2004) 3 SCC 137, it was held by the Supreme Court that:

“The Trial Court can exercise the power at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.”

In T. Arivandandam v. T.V. Satyapal & Anr. (1977) 4 SCC 467 the Supreme Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words :-

“5. …The learned Munsiff must remember that if on a meaningful -not formal -reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing …“

What transpires from these principles, carved out in the above-mentioned judgements and law, is that the drafting of the plaint must be done with utmost care and must contain the elements of pleadings on the basis of guidelines as contained in the CPC.

Though as the word suggest that to `Plead’ means to pray, request or ask for something in a polite and humble manner but the same must be done with utmost caution while submitting the pleadings in the court as the pleadings form the backbone of the litigation and fate of the case not only depends on evidence the parties may lead but also on the fact of what they may plead or not plead.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

It is believed that “Litigation is the pursuit of practical ends, not a game of chess.” Yet, sometimes, filing a lawsuit remains the only effective route to refute the allegations and repair the damage caused to a person by breach of his legal right. A “Suit”, is a proceeding by a party or parties against other/s in the civil court of law. The archaic term “suit in law” is found in only a small number of laws still in effect today. The term “suit” is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss or wronged, as a result of a defendant’s actions, demands a legal or equitable remedy, through his plaint. The defendant is required to respond to the plaintiff’s complaint by filing a written statement to all the averments contained in the plaint.

If the plaintiff is successful, judgment is in the plaintiff’s favour, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A Law Suit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also, in certain cases, enable the State to be treated as if it were a private party in a civil case, as plaintiff, or defendant, regarding an injury, or may provide the State with a civil cause of action to enforce certain laws.

The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the procedure adopted for the same is governed by the principles of law, as contained in the Code of Civil procedure, 1908.

A suit begins when a document, known as a plaint, is filed with the court. A plaint should explicitly state the exact cause of action and, even when one or more plaintiffs seek/s damages or equitable relief from one or more stated defendants, should state the relevant factual allegations supporting the legal claims brought by the plaintiffs, pertaining to each of the plaintiffs. As the introductory pleading, a plaint is the most important step in a civil case, because it sets the factual and legal foundation for the entirety of the case. Thus, the same needs to have the exact details of relief, and grievance for which the plaintiff is suing the defendant. The filing of a Plaint is considered a stepping stone for the institution of a Suit. It is basically a statement of claims, treated as a repository of facts by the Court. Thus, every Court is obligated to analyse the Plaint, and decide whether it is fit to be proceeded further or not.

Order 2 of the Code of Civil Procedure, 1908, lays down the various principles governing the Frame of the Suit, and the procedure to be followed therein. Thus, once a suit is filed then the contents of the plaint must contain the whole of the claim, as envisaged under Order 2 Rule 2, and must also be in complete compliance with the provisions of Order 2.

Order 2 Rule 2 of the code of Civil Procedure, 1908, reads:

2. Suit to include the whole claim. – (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.

(2) Relinquishment of part of claim. -Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim he shall not afterwards sue in respect of the portion so omitted or relinquished.

(3) Omission to sue for one of several reliefs. -A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.

Explanation. -For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action.

The provisions of Order 2 Rule 2 indicate that if a plaintiff is entitled to several reliefs against the defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the plaintiff has to place all his claims before the Court in one suit, as Order 2 Rule 2 is based on the cardinal principle that the defendant should not be vexed twice for the same cause. One of the objects of Order 2 Rule 2 is also to avoid multiplicity of litigation.

The Rule postulated under Order 2 Rule 2 does not mandate that when several causes of action arise from one transaction, the plaintiff should sue for all of them in one suit. In fact, what the rule lays down is that where there is one entire cause of action, the plaintiff cannot split the cause of action into parts so as to bring separate suits in respect of those parts.

The purpose of Order 2 Rule 2 of the Code is manifold. It is to warrant that no defendant is sued and made to contest twice in respect to the same cause of action. It is also to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to create a bar for the plaintiff who had earlier claimed particular relief for a breach of his rights, from filing a second suit, with a view to claim other reliefs as not claimed earlier, based on the same cause of action. It does not however bar a second suit based on a different and diverse cause of action.

This Rule is based on the principle that the defendant shall not be vexed twice for one and the same cause. The Rule also seeks to prevent two evils, one the splitting of claims and the other splitting of remedies. If a plaintiff omits any portion of the claim or omits any of the remedies in respect of the cause, he shall not be permitted to pursue the omitted claim or the omitted remedy. The requirement of the Rule is that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of a cause of action. Cause of action is a cause which gives occasion for and forms foundation of the suit. If that cause of action enables a person to ask for a larger and broader relief than to which he had limited his claim, he cannot thereafter seek the recovery of the balance of the cause of action by some subsequent and independent proceedings.

Unless the defendant pleads a bar of under Order 2 Rule 2 of the Code, and an issue is framed on that bar to the suit, the court cannot scrutinize or discard a suit on that ground. The pleadings in the former suit should be evaluated by the court, and both the parties to the lis should have a respective opportunity to demonstrate that the second suit is based on the same or a different cause of action. It may be noted that wherein no objection was ever taken by the defendant in the written statement, claiming that the suit is barred by Order 2 Rule 2 of the Code, and in the absence of any such issue, the same shall not become a cause for rejection of the suit.

While explaining the concept of Order 2 Rule 2, the Supreme Court in the case of Deva Ram v. Ishwar Chand 1996 AIR (SC) 378 has held that: –

“12 …. a bare perusal of the above provisions would indicate that if a Plaintiff is entitled to several reliefs against the Defendant in respect of the same cause of action, he cannot split up the claim so as to omit one part of the claim and sue for the other. If the cause of action is the same, the Plaintiff has to place all his claims before the Court in one suit as Order II, Rule 2 is based on the cardinal principle that the Defendant should not be vexed twice for the same cause”.

In Sidramappa v. Rajashetty and Ors. 1970 AIR SC 1059, it was held that if the cause of action on the basis of which the previous suit was brought, does not form the foundation of the subsequent suit and in the earlier suit the plaintiff could not have claimed the relief which he sought in the subsequent suit, the latter namely, the subsequent suit, will not be barred by the rule contained in Order 2 Rule 2, CPC.

In a larger bench judgment of Gurbux Singh v. Bhura Lal, 1964 AIR SC 1810, it was observed:

“In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff, without leave obtained from the Court, omitted to sue for the relief for which the second suit had been filed. From this analysis, it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed, for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the later suit is based there would be no scope for the application of the bar…….”

Thus, to constitute a bar under Order 2 Rule 2 of CPC from institution of a fresh suit, it must be established that the second suit is based upon the same cause of action, as of the earlier suit.

The term “Cause of Action” refers to a set of facts or allegations that make up the grounds for filing a lawsuit. A Cause of Action is therefore by its very nature essential to a Civil Suit, since without a Cause of Action a Civil Suit cannot arise.

A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, declaration of title, or recovery). The legal document which carries a claim is often called a ‘statement of claim’ in English law, or a ‘plaint’ in Indian law. The word cause of action has not been explicitly defined in the code of civil procedure 1908. However, there are various rules and orders wherefrom the meaning of the same can be gathered. As per Section 20 of the Civil Procedure Code, 1908, “cause of action” suggests any violation of a legal right that must be produced in favour of the plaintiff to substantiate his claim. “Cause of action” also means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

In Om Prakash Srivastava v. Union of India and Anr., 2006 (6) SCC 207, it was held by the Supreme Court that:

“Cause of action” means, in the restricted sense, the circumstances which constitute an infringement of the right or the immediate cause for the reaction. In the wider sense it implies the conditions required for the enforcement of the action, including the violation of the right and the violation combined with the power itself. Compendiously, as noted above, the expression means any fact that the plaintiff would need to assert, if violated, to maintain his right to the Court’s judgment. Every circumstance that is required to be established, as distinguished from every piece of evidence that is necessary, to prove that every fact is part of “cause of action.”

In Swamy Atmanand v. Sri Ramakrishna Tapovanam, 2005(10) SCC 51 the Supreme Court held:

“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded”

The term Cause of Action is though mentioned but not defined anywhere in the Civil Procedure Code, 1908.To pursue a cause of action, a plaintiff must plead or allege the requisite facts in the plaint. A cause of action is said to consist of two parts, legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Sometimes a situation may arise where the facts or circumstances create Multiple Causes of Action but in order to avoid the subsequent hurdle of Order 2 Rule 2, the plaintiff must place his claim for the entire cause of action and not in parts.

The provisions of Order 2 Rule 2, though based upon an entirely different principle, are often confused with the rule of Res Judicata, as envisaged in section 11 of Code of Civil Procedure, 1908.

Res Judicata, also known as claim preclusion, is the term for “a matter already judged”. It is based upon the Latin maxim “Res judicata pro veritate accipitur”.

It means that once the issue before a court has already been decided by another court, of competent jurisdiction, between the same parties, the subsequent court shall not re-adjudicate the same, and the earlier judgement shall have a binding effect on both the parties. It refers to two concepts, both in civil law and common law legal systems: a case in which there has been a final judgment that is not subject to appeal; the legal doctrine meant to bar (or preclude) relitigating of the claim between the same parties. The doctrine of res judicata is a principle of preventing injustice to the parties of a case supposedly finished; but perhaps also (or mostly) a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion over a lis that already stands decided. Thus, when a case has already been decided and the final judgement in that the matter is no longer subject to appeal, the doctrine of res judicata bars or precludes continued or further litigation of such matter between the same parties.

The doctrine of Res Judicata is based upon three legal Maxims:

• Nemo debet bis vexari pro eadem causa – no man should be tried twice for the same cause;

• Interest rei publicae ut sit finis litium – it is in the interest of the State that there should be an end to a litigation;

• Re judicata pro veritate occipitur – a judicial decision must be accepted as correct.

Thus, In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use the principles of res judicata to deny reconsideration of the matter, and treat the earlier decision as binding. This also results in efficiency in the judicial system. The doctrine of Res Judicata may be direct or constructive and artificial. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure, and in many other situations also, principles not only of direct res-judicata but of constructive res-judicata are also applied. If by any judgment or order, any matter in issue has been directly and explicitly decided, the decision operates as res-judicata, and bars the trial of an identical issue in a subsequent proceeding between the same parties or persons claiming under them or any of them, through same title. The Principle of res judicata comes into play when in a judgment or order, a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications, even then the Principle of res judicata on that issue is directly attracted. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding, but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation, and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided, as was held in AIR 1978 SC 1283.

While explaining the concept of Res Judicata and Order 2 Rule 2 the Supreme Court in Alka Gupta v. Narender Kumar Gupta, AIR 2011 SC 860 has held that:

“8. ……. The object of Order 2 Rule 2 of the Code is two-fold. First is to ensure that no defendant is sued and vexed twice in regard to the same cause of action. Second is to prevent a plaintiff from splitting of claims and remedies based on the same cause of action. The effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It does not however bar a second suit based on a different and distinct cause of action.

9. This Court in Gurbux Singh v. Bhoora Lal, AIR 1964 Supreme Court 1810 held:

“In order that a plea of a bar under Order 2 Rule 2(3), Civil Procedure Code should succeed the defendant who raises the plea must make out (1) that the second suit was in respect of the same cause of action as that on which the previous suit was based; (2) that in respect of that cause of action the plaintiff was entitled to more than one relief; (3) that being thus entitled to more than one relief the plaintiff without leave obtained from the Court omitted to sue for the relief for which the second suit had been filed. From this analysis it would be seen that the defendant would have to establish primarily and to start with, the precise cause of action upon which the previous suit was filed for unless there is identity between the cause of action on which the earlier suit was filed and that on which the claim in the latter suit is based there would be no scope for the application of the bar.”

Unless the defendant pleads the bar under Order 2 Rule 2 of the Code and an issue is framed focusing the parties on that bar to the suit, obviously the court cannot examine or reject a suit on that ground. The pleadings in the earlier suit should be exhibited or marked by consent or at least admitted by both parties. The plaintiff should have an opportunity to explain or demonstrate that the second suit was based on a different cause of action. In this case, the respondent did not contend that the suit was barred by Order 2 Rule 2 of the Code. No issue was framed as to whether the suit was barred by Order 2 Rule 2 of the Code. But the High Court (both the trial bench and appellate bench) have erroneously assumed that a plea of res judicata would include a plea of bar under Order 2 Rule 2 of the Code. Res judicata relates to the plaintiff’s duty to put forth all the grounds of attack in support of his claim, whereas Order 2 Rule 2 of the Code requires the plaintiff to claim all reliefs flowing from the same cause of action in a single suit. The two pleas are different and one will not include the other. The dismissal of the suit by the High Court under Order 2 Rule 2 of the Code, in the absence of any plea by the defendant and in the absence of an issue in that behalf, is unsustainable.

II. The cause of action for the second suit being completely different from the cause of action for the first suit, the bar under Order 2 Rule 2 of the Code was not attracted….”

It may be noted that there may be situations where one overt act may give rise to a multiple legal complication, some instantly and some subsequently. The court in such a situation cannot invoke the provisions of Order 2 Rule 2 so as to reject the case of the plaintiff, if it is established that the subsequent suit is based on a cause of action, which though maybe an off shoot of the same act, but has arisen subsequently.

Yet, there may be a situations arising out of a contract/ agreement for a sale of a property with a stipulated target date, the seller in this case though is bound to sell the property to the buyer on a particular fixed date, but in order to avoid his contractual obligations, may start negotiating about the same with some third party for any reason. In such a situation, the buyer plaintiff may file a suit for permanent injunction thinking that his claim for specific performance of a contract is premature. In such a situation though both the suits arise out of the same legal contract yet both are based on a claim of different reliefs.

The Supreme Court in Sucha Singh Sondhi(D) Thr. Lrs v. Baldev Raj Walia, 2018(2) RCR (Civil) 782 has held that since the cause of action for a suit for permanent injunction filed by the plaintiff restraining the defendants from interfering in his possession is different from claiming specific performance, thus the bar of Order 2 Rule 2 is not attracted. Similar view was taken again in Rathnavathi and Another v. Kavita Ganashamdas, 2015(2) SCC 736.

It was further held by the Supreme Court in M/s. Virgo Industries (Eng.) P. Ltd. v. M/s. Venturetech Solutions P. Ltd., 2012 RCR(Civil) 372 that: –

“14. ……… that on the dates when C.S. Nos. 831 and 833 of 2005 were instituted, namely, 28.8.2005 and 9.9.2005, the plaintiff itself had claimed that facts and events have occurred which entitled it to contend that the defendant had no intention to honour the agreements dated 27.7.2005. In the aforesaid situation it was open for the plaintiff to incorporate the relief of specific performance along with the relief of permanent injunction that formed the subject matter of above two suits. The foundation for the relief of permanent injunction claimed in the two suits furnished a complete cause of action to the plaintiff in C.S. Nos. 831 and 833 to also sue for the relief of specific performance. Yet, the said relief was omitted and no leave in this regard was obtained or granted by the Court.

15. Furthermore, according to the plaintiff, which fact is also stated in the plaints filed in C.S. Nos. 831 and 833, on the date when the aforesaid two suits were filed the relief of specific performance was premature inasmuch as the time for execution of the sale documents by the defendant in terms of the agreements dated 27.7.2005 had not elapsed. According to the plaintiff, it is only after the expiry of the aforesaid period of time and upon failure of the defendant to execute the sale deeds despite the legal notice dated 24.2.2006 that the cause of action to claim the relief of specific performance had accrued. The above stand of the plaintiff found favour with the High Court. We disagree. A suit claiming a relief to which the plaintiff may become entitled at a subsequent point of time, though may be termed as premature, yet, cannot per se be dismissed to be presented on a future date. There is no universal rule to the above effect inasmuch as “the question of a suit being premature does not go to the root of the jurisdiction of the Court” as held by this Court in Vithalbhai (P) Ltd. v. Union Bank of India, 2005(1) R.C.R.(Rent) 357 : 2005(2) R.C.R.(Civil) 124 : 2005(4) SCC 315. In the aforesaid case this Court has taken the view that whether a premature suit is required to be entertained or not is a question of discretion and unless “there is a mandatory bar created by a statute which disables the plaintiff from filing the suit on or before a particular date or the occurrence of a particular event”, the Court must weigh and balance the several competing factors that are required to be considered including the question as to whether any useful purpose would be served by dismissing the suit as premature as the same would entitle the plaintiff to file a fresh suit on a subsequent date. We may usefully add in this connection that there is no provision in the Specific Relief Act, 1963 requiring a plaintiff claiming the relief of specific performance to wait for expiry of the due date for performance of the agreement in a situation where the defendant may have made his intentions clear by his overt acts.

16. The learned Single Judge of the High Court had considered, and very rightly, to be bound to follow an earlier Division Bench order in the case of R. Vimalchand and M. Ratanchand v. Ramalingam, T. Srinivasalu & T. Venkatesaperumal (supra) holding that the provisions of Order 2 Rule 2 of the Civil Procedure Code would be applicable only when the first suit is disposed of. As in the present case the second set of suits were filed during the pendency of the earlier suits, it was held, on the ratio of the aforesaid decision of the Division Bench of the High Court, that the provisions of Order 2, Rule 2(3) will not be attracted. Judicial discipline required the learned Single Judge of the High Court to come to the aforesaid conclusion. However, we are unable to agree with the same in view of the object behind the enactment of the provisions of Order 2 Rule 2 of the Civil Procedure Code as already discussed by us, namely, that Order 2 Rule 2 of the Civil Procedure Code seeks to avoid multiplicity of litigations on same cause of action. If that is the true object of the law, on which we do not entertain any doubt, the same would not stand fully subserved by holding that the provisions of Order 2 Rule 2 of the Civil Procedure Code will apply only if the first suit is disposed of and not in a situation where the second suit has been filed during the pendency of the first suit. Rather, Order 22, Rule 2 of the Civil Procedure Code will apply to both the aforesaid situations. Though direct judicial pronouncements on the issue are somewhat scarce, we find that a similar view had been taken in a decision of the High Court at Allahabad in Murti v. Bhola Ram, (1894) ILR 16 Allahabad 165 and by the Bombay High Court in Krishnaji v. Raghunath, AIR 1954 Bombay 125.”

Further in V. Kalyanswamy (D) By Lrs. & Anr. v. L. Bakthavatsalam (D) By Lrs. & Ors. 2020(3) RCR (Civil) 404, it was again held by the Supreme Court that: –

“….. Order 2, Rule 2 of the CPC has been a subject matter of a large number of decisions of this Court. Order 2, Rule 2 (2) of the CPC postulates a situation where a plaintiff omits to sue in respect of any portion of his claim or intentionally relinquishes any portion of his claim. Then, he is debarred from suing in respect of the portion so omitted or relinquished. A plaintiff entitled to more than one relief arising from the same cause of action, can do two things. He may sue in respect of all the reliefs arising from the same cause of action in the same suit. He may, if he omits to sue for one or more of the reliefs open to him under the same cause of action, seek leave of the court to sue for all such reliefs, and if the court grants such leave, then, he may institute a suit, though based on the same cause of action in the earlier suit, in a fresh suit. The effect of not seeking the leave of the court, however, in regard to any of the reliefs, which it was open to him to sue for on the same cause of action, is that, he is barred from suing for any other reliefs so omitted. The difference between Order 2, Rule 2 (2) and Order 2, Rule 2 (3) of the CPC may be noticed. The law contemplates a distinction between a case where a claim arising out of the cause of action is either intentionally relinquished or omitted to be sued upon. Such a claim cannot be the subject matter of a fresh suit. However, when more than one reliefs are available stemming from the same cause of action, then, seeking further reliefs than sought in the first suit, except where leave is obtained, would be barred. However, present the grant of leave by the court, his subsequent suit seeking the reliefs which were originally not sought but for which leave is granted, is permissible. The principle of this provision is actually captured in Order 2, Rule 2 (1) of the CPC which is that every suit is to include the whole of the claim which arises out of the cause of action and which the plaintiff is entitled to make. It further declares that it is open to a plaintiff to omit any portion of the claim. However, the consequences of the same are declared in Order 2, Rule 2 (2) of the CPC. We notice that similar views have been expressed in the decision of this Court in Virgo Industries (Eng.) (P) Ltd. v. Venturetech Solutions (P) Ltd. 2013 (1) SCC 625. In paragraph 9, it was held as follows:

“9. Order 2, Rule 1 requires every suit to include the whole of the claim to which the plaintiff is entitled in respect of any particular cause of action. However, the plaintiff has an option to relinquish any part of his claim if he chooses to do so. Order 2, Rule 2 contemplates a situation where a plaintiff omits to sue or intentionally relinquishes any portion of the claim which he is entitled to make. If the plaintiff so acts, Order 2, Rule 2 CPC makes it clear that he shall not, afterwards, sue for the part or portion of the claim that has been omitted or relinquished. It must be noticed that Order 2, Rule 2 (2) does not contemplate omission or relinquishment of any portion of the plaintiff’s claim with the leave of the court so as to entitle him to come back later to seek what has been omitted or relinquished. Such leave of the court is contemplated by Order 2, Rule 2 (3) in situations where a plaintiff being entitled to more than one relief on a particular cause of action, omits to sue for all such reliefs. In such a situation, the plaintiff is precluded from bringing a subsequent suit to claim the relief earlier omitted except in a situation where leave of the court had been obtained. It is, therefore, clear from a conjoint reading of the provisions of Order 2 Rules 2(2) and (3) CPC that the aforesaid two sub-rules of Order 2, Rule 2 contemplate two different situations, viz., where a plaintiff omits or relinquishes a part of a claim which he is entitled to make and, secondly, where the plaintiff omits or relinquishes one out of the several reliefs that he could have claimed in the suit. It is only in the latter situations where the plaintiff can file a subsequent suit seeking the relief omitted in the earlier suit proved that at the time of omission to claim the particular relief he had obtained leave of the court in the first suit.”

Thus, it is clear from the above judgements that once it is apparent that a breach of contract was well within the knowledge of the plaintiff then merely because he did not file the suit for enforcement of the same thinking the same to be premature, would not give him immunity from the clutches of Order 2 Rule 2 so as to make his suit maintainable.

Though, it is apparent that a suit when barred by the provisions of Order 2 Rule 2 cannot succeed, yet in order to create such a bar it is a must that pleadings of previous suit have to be looked into by the court dealing with the subsequent suit. The said view was taken by the Supreme Court in a larger bench judgement of Gurbux Singh v. Bhoora Lal, AIR 1964 Supreme Court 1810 and later on affirmed in many subsequent judgements including a division bench judgement of the Punjab and Haryana High Court in Smt. Bhagwan Kaur v. Shri Harinder Pal Singh 1992(1) PLR 643. In M/s Bengal Waterprood Ltd. v. M/s. Bombay Waterproof Manufacturing Company and another, AIR 1997 Supreme Court 1398(1), it was held by the Supreme Court that to attract the bar under Order 2, Rule 2 CPC the pleadings of first suit should have been brought on record. In the absence of pleadings, no interference can be drawn about such bar.

The bar of Order 2 Rule 2 is based upon the principle of waiver to avoid multiplicity of litigation and is applicable on civil suits. While relying upon its earlier Division Bench Judgment the Himachal Pradesh in Baldev Singh v. Union of India & Ors 2018 (1) SimLC 10 held that: –

“……. Order II Rule 2 applies also to writ proceedings. The left-out portion of a cause of action cannot be pursued in a subsequent writ proceedings. All claims which a petitioner might and ought to have taken, should be taken in one proceeding and only in one proceedings. {See the decision of the Supreme Court In Commissioner of Income tax v. T.P. Kumaran, 1996(1) SCC 561}.

7. Equally, a person who has filed the suit seeking certain relief in respect of a cause of action is precluded from instituting another suit for seeking other reliefs in respect of the same cause of action. He shall not be entitled to invoke the writ jurisdiction of the High Court for obtaining the very same relief. In other words, if a second suit is barred, a writ petition would also be barred. What is directly prohibited cannot be indirectly permitted. That is the principle underlying under Order II Rule 2 CPC.”

25. In view of the above discussion, even though the petition is not barred by the principles laid down in Order 23 Rule 1 of the Code, yet the petition is barred by the principles as contained under Order 2 Rule 2 of the Code.”

However, in a very recent judgement of the Supreme Court in Brahma Singh v. Union Of India, 2020 ALL SCR 634, it was held that: –

“…… In relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others, AIR 1962 SC 1334 as follows:

12. …”The bar of O. 2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court.” Placing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulabchand Chhotalal Parikh v. State of Gujarat, AIR 1965 SC 1153 in relation to Order II Rule 2 held as follows:

“23. …By its very language, these provisions do not apply to the contents of a petition and consequently do not apply to the contents of a subsequent suit…”

Thus, the cumulative effect of the above discussion is that the effect of Order 2 Rule 2 of the Code is to bar a plaintiff who had earlier claimed certain remedies in regard to a cause of action, from filing a second suit in regard to other reliefs based on the same cause of action. It is dehors the evil of splitting up claims, as well as remedies and, thus, ensures that where a party fails to initiate action in respect of a cause of action for his suit is barred from subsequently raking it up in the subsequently instituted suit. Though, it does not place a bar on a second suit based on distinct and separate cause of action. It may also be relevant to mention here that under the provisions of Order 2 Rule 2(3) if the plaintiff seeks the permission of the court to file a subsequent suit arising out of the same cause of action and that permission is granted by the court then such a suit shall not be barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure, 1908.

Thus, it would be just apt to conclude by saying that “the volume of the law suit will not increase the validity of the argument contained in it“.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

“No one can make you feel inferior, without your consent”

A decision of a civil suit culminates into a decree and the party in whose favour suit is decided, becomes the decree holder and the opposite party, against whom the suit is decided becomes the Judgement Debtor. Every judgement is followed by a decree, crystallising the rights of the parties to the lis, based on the reasoning given in the judgement.

A decree, is a formal expression which determines the interest of both the parties in a conclusive manner, with regards to any disputed matter in a civil suit. Significantly, a decree is a formal expression of adjudication by which the court determines the rights of parties regarding the matter in a controversy or a dispute. A set-off or a counterclaim can be obtained on the decree. It shall be deemed to include a rejection of a plaint and determination of any question under Section 144 of the Act. However, a decree shall not include, any adjudication from which an appeal lies as an appeal from an order; and any order of dismissal for default.

Section 2(2) of the code of civil procedure defines Decree as: –

(2) “decree” means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include-

(a) any adjudication from which an appeal lies as an appeal from an order, or

(b) any order of dismissal for default.

Explanation-A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;

A civil suit can be decided on the basis of contest; can be compromised; and can also be decided based on admission. At times, a civil suit is decided on the basis of admission so made in the written statement itself, without any contest.

Order XII Rule 6 reads as under :-

Judgment on admissions– (1) Where admissions of fact have been made either in the pleading or otherwise, whether orally or in writing, the court may at any stage of the suit, either on the application of an party or of its own motion and without waiting for the determination of any other question between the parties, make such Order or give such judgment as It may think fit, having regard to such admissions.

(2) Whenever a judgment is pronounced under sub-rule (1) a decree shall be drawn up in accordance with the judgment and the decree shall bear the date on which the judgment was pronounced.

From the language of Order XII Rule 6, of the Code of Civil Procedure, it is clear that it is open to the Court to base a judgment on admission on the pleadings or otherwise. The phrase “otherwise”, in the said provision clearly indicates that it is open to the Court to base the judgment on statements made by a party not only in the pleadings, but also de hors the pleadings. Such admissions may be made either expressly or even constructively.

The provision under `Order XII Rule 6′ of the Code is enabling, discretionary and permissive, and is neither mandatory nor it is peremptory, since the word “may” has been used. It is thus not incumbent on the Courts to pass judgment on admissions, and in order to succeed under Order XII Rule 6 CPC; the admission of the other party has to be clear and unequivocal. When either party, based on pleadings or otherwise, can convince the court regarding admission of fact, the court may, after due consideration, pass a judgment. However, it is necessary to highlight the word `may‘ which suggest that the Code has conferred complete discretion on the Court, which was reiterated in S.M. Asif v. Virender Kumar Bajaj, (2015) 9 SCC 287. Such discretion should always be based and guided by the principles of fairness and should not be arbitrary in nature.

A judgement based on admission can be passed by the court at any point of time, as there may be instances where a judgement is passed on the basis of admission given by the defendant in the written statement itself, or in a statement made in the court, at a later stage. The said admission by the defendant of the facts stated in the plaint, can relate to anything – from the most common recognition of family settlement; a Testament or a Will; or contract; or anything that is permissible under law. Such a judgement on admission is commonly called a Consent Decree because it is based on the consent/admission of the party to the lis. The said decree not only saves the time of the court from lengthy litigation, but also helps to maintain harmony and peace between the parties.

A consent decree, as stated above, can be based on anything, recognising any legal right between the parties, and the court on the basis of such an admission or understanding between the parties, may pass a decree. A consent decree though passed by a court of competent jurisdiction, determining the rights between the parties on the basis of admission or statements, may require registration in some cases.

Section 17 of The Registration Act,1908 lays down that any document that creates a right in a property which exceeds Rs100/- is required to be registered compulsorily, and in the absence of registration, the document shall have no effect, as per the provisions of section 49 of the said act.

Section 17 and Section 49 of the Registration Act 1908 reads as: –

17. Documents of which registration is compulsory-

(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No, XVI of 1864, or the Indian Registration Act, 1866, or the Indian Registration Act, 1871, or the Indian Registration Act, 1877, or this Act came or comes into force, namely:-

(a) Instruments of gift of immovable property;

(b) Other non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;

(c) Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and

(d) Lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent;

(e) Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property:

Provided that the State Government may, by order published in the Official Gazette, exempt from the operation of this sub-section any lease executed in any district, or part of a district, the terms granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.

(2) Nothing in clauses (b) and (c) of sub-section (1) applies to. –

(i) Any composition-deed; or

(ii) Any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such Company consist in whole or in part of immovable property-, or

(iii) Any debenture issued by any such Company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the Company has mortgaged, conveyed or otherwise transferred the whole or party of its immovable property or any interest therein to trustees upon trust for the benefit of the holders of such debentures; or

(iv) Any endorsement upon or transfer of any debenture issued by any such Company; or

(v) Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards to or in immovable property, but merely creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; or

(vi) Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding, or

(vii) Any grant of immovable property by Government or

(viii) Any instrument of partition made by a Revenue-officer; or

(ix) Any order granting a loan or instrument of collateral security granted under the land improvement Act, 1871, or the Land Improvement Loans Act, 1883; or

(x) Any order granting a loan under the Agriculturists Loans Act, 1884, or instrument for securing the repayment of a loan made under that Act; or

(xa) Any order made under the Charitable Endowments Act, 1890. (6 of 1890) vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; or

(xi) Any endorsement on a mortgage-deed acknowledging the payment of the whole or any part of the mortgage-money, and any other receipt for payment of money due under a mortgage when the receipt does not purport to extinguish the mortgage; or

(xii) Any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue-officer.

Explanation. – A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.

(3) Authorities to adopt a son, executed after the Ist day of January, 1872, and not conferred by a will, shall also be registered.

Section 49. Effect of non-registration of documents required to be registered

No document required by Section 17 or by any provision of the Transfer of Property Act, 1882 to be registered shall-

(a) Affect any immovable property comprised therein, or

(b) Confer any power to adopt, or

(c) Be received as evidence of any transaction affecting such property or conferring such power; unless it has been registered:

Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882, to be registered may be received as evidence of a contract in a suit for specific performance under Chapter 11 of the Specific Relief Act, 1877, or as evidence of part performance of a contract for the purposes of Section 53A of the Transfer of Property Act, 1892, or as evidence of any collateral transaction not required to be effected by registered instrument.

A bare perusal of the above two provisions makes it abundantly clear that any document that passes of a right in an immovable property of value of more than Rupees one hundred is required to be compulsorily registered, and any failure to do so, shall negate the effect of the same and can be received only as evidence of a contract, in a suit for specific performance of a contract. The underlying principle behind this provision is that parties to the litigation may not get the documents and consent decrees passed, in order to bypass and circumvent the provision of Stamp Act, resulting in defrauding the State exchequer of its legitimate dues.

A consent decree is sometimes also termed as a compromise decree, though the line between the two is very thin, and both have the same force, and are as much valid as any other contested decree, yet the major difference between the two is that a consent decree or a judgement on admission is passed under the provisions of order 12 rule 6, and a compromise decree is passed under the provisions of order 23 rule 3, of the Code of Civil Procedure, 1908. The law does not recognise any distinction between a consent decree or a compromise decree, and one passed after contest, as regards its effectiveness or the force behind it. The only difference between a consent decree or a decree on a consent on the one hand, and a decree after contest on the other, is that in the former case the suit is decided and a decree passed on the basis of a compromise or consent, and in the latter case it is passed after the court has, on the basis of the evidence, recorded its findings. In both the cases there is a formal adjudication by the court, conclusively determining the rights of the parties, in respect of the subject matter in dispute. The decree in first situation is as effective as the decree in the second situation.

Most common form of consent decree is a amongst the family members, whereby one person of the family files a suit against the others, asserting his rights and the other family members, who are often arrayed as defendants in the said suit, admit the claim of the plaintiff, either in written statement itself, or give a statement to that effect at a later stage.

A question that arose before the courts in many cases, arising out of the consent decree, was that whether such a consent decree, which is based on the admission between the parties, shall have a binding force, or shall fail because of lack of registration, in the light of the provisions of section 17 and section 49 of the Registration Act, the key point for determination being the recognition of a newly given right in the property, by way of the decree/document so executed, or the recognition of a pre existing right between the family members.

The Supreme Court in Sahu Madho Das v. Mukand Ram, AIR 1955 Supreme Court 481 observed as follows:

“It is well settled that a compromise or family arrangement is based on the assumption that there is an antecedent title of some sort in the parties and the agreement acknowledges and defines what that title is, each party relinquishing all claims to property other than that falling to his share and recognising the right of the others, as they had previously asserted it to the portions allotted to them respectively.” 

In AIR 1966 SC 292 (Larger Bench) Tek Bahadur Bhujil v. Debi Singh Bhujil. Supreme Court examined the concept of family settlement and held that the word ‘Family’ cannot be interpreted in a narrow sense and it is not necessary that the person entering into a family arrangement must have some antecedent title. It is to be assumed that parties to the arrangement had an antecedent title of some sort and the agreement clinches and defines what that title is. It was further held that family arrangement can be arrived orally. Its terms may be recorded in writing in the form of a Memorandum as to what had been agreed upon by the parties. In such a situation, it is not required to be registered

In the case of Ram Charan Dass v. Giri Nandini Devi, AIR 1966 Supreme Court 323, the Supreme Court held as follows:

“Courts give effect to a family settlement upon the broad and general ground that its object is to settle existing or future disputes regarding property amongst members of a family. In this context the word ‘family’ is not to be understood in a narrow sense of being a group of persons whom the law recognizes as having right of succession or having a claim to a share in the disputed property. The consideration for a family settlement is the expectation that such a settlement will result in establishing or ensuring amity and goodwill amongst the relations. The consideration having passed by each of the disputants the settlement consisting of recognition of the right asserted by each other cannot be impeached thereafter……..”

“…….. The transaction of a family settlement entered into by the parties who are members of a family bona fide to put an end to the dispute among themselves, is not a transfer. It is not also the creation of an interest. For, in a family settlement each party takes a share in the property by virtue of the independent title which is admitted to that extent by the other parties. Every party who take benefit under it need not necessarily be shown to have, under the law, a claim to a share in the property. All that is necessary to show is that the parties are related to each other in some way and have a possible claim to the property or a claim or even a semblance of a claim on some other ground as, say, affection.”

Again, in the case of Kale v. Deputy Director of Consolidation, AIR 1976 Supreme Court 807, it was held by the Supreme Court that: –

“The members who may be parties to the family arrangement must have some antecedent title, claim or interest even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has no title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the Courts will find no difficulty in giving assent to the same…….”

“……… Even if bona fide disputes, present or possible which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable the family arrangement is final and binding on the parties to the settlement.”

Thus, the above said judgements laid down clearly that a consent decree can be passed on the basis of admission recognising a family arrangement or settlement between the parties, and the dispute in this case can be settled, even if it is relating to a future claim or even a possible claim. Any such settlement between the family members can be oral or in writing and had no requirement of any registration or other legalities.

In 1989 PLJ 182 Gurdev Kaur and others v. Mehar Singh and others it was held that the compromise or consent decree, even if it creates title, does not require registration. It was further held that grounds on which the compromise decree can be set aside are the same on which a contract can be set aside, namely fraud, misrepresentation, coercion or unsound mind,

The said position of law was again reiterated In Bhoop Singh v. Ram Singh Major and others, 1995(3) RRR 541 (SC), whereby the Supreme Court while relying upon its earlier decision in Tek Bahadur v. Debi Singh, AIR 1966 Supreme Court 292 held that: –

“16. We have to view the reach of Clause (vi), which is an exception to sub-section (1), bearing all the aforesaid in mind. We would think that the exception engrafted is meant to cover that decree or order of a Court, including a decree or order expressed to be made on a compromise, which declares the pre-existing right and does not by itself create new right, title or interest in praesenti in immovable property of value of Rs. 100/- or upwards. Any other view would find the mischief of avoidance of registration, which requires payment of stamp duty, embedded in the decree or order.

17. It would, therefore, be the duty of Court to examine in each case whether the parties have pre-existing right to the immovable property, or whether under the order or decree of the Court one party having right, title or interest therein agreed or suffered to extinguish the same and created right, title or interest in praesenti in immovable property of the value of Rs. 100/- or upwards in favour of other party for the first time, either by compromise or pretended consent. If latter be the position, the document is compulsorily registerable.

18. The legal position qua Clause (vi) of Section 17(2) can, on the basis of the aforesaid discussion, be summarised as below:

(1) Compromise decree if bona fide, in the sense that the compromise is not a device to obviate payment of stamp and frustrate the law relating to registration, would not require registration. In a converse situation, it would require registration.

(2) If the compromise decree were to create for the first time right, title or interest in immovable property of the value of Rs. 100/- upwards in favour of any party to the suit, the decree or order would require registration.

(3) If the decree were not to attract any of the Clauses of sub-section (1) of Section 17, as was the position in the aforesaid Privy Council and this Court’s cases, it is apparent that the decree would not require registration.

(4) If the decree were not to embody the terms of compromise, as was the position in Lahore case, benefit from the terms of compromise cannot be derived, even if a suit were to be disposed of because of compromise in question.

(5) If the property dealt with by the decree be not the “subject matter of the suit or proceeding”, Clause (vi) of sub-section (2) would not operate, because of the amendment of this clause by Act 21 of 1929, which has its origin in the aforesaid decision of the Privy Council, according to which the original clause would have been attracted, even if it were to encompass property not litigated.”

Though the said judgement of the Supreme Court only laid down the concept of mandatory registration of a decree, in case the value of the property is more than Rupees one hundred, and is creating the right in the property for the first time, yet many civil suits were filed on the basis of aforesaid plea of non registration of earlier passed consent decrees. It may be noted that in Bhoop Singh’s case (supra), the Supreme Court had just laid down the law, on the basis of earlier law, but had no where explained the concept of pre existing right, yet many already settled consent decrees became the subject matter of challenge on account of non registration of the same. It was also held in Bhoop Singh’s case that a memorandum of family arrangement does not require registration, as it simply recognises the rights of the family members as created earlier. The relevant paragraph holding so laid down that: –

“14. In Tek Bahadur v. Debi Singh, AIR 1966 Supreme Court 292, the Constitution Bench of this Court considered the validity of the family arrangement and the question was whether it requires to be compulsorily registered under Section 17. This Court, while up-holding oral family arrangement, held that registration would be necessary only if the terms of the family arrangements are reduced into writing. A distinction should be made between the document containing the terms and recital of family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act. It was held that a memorandum of family arrangement made earlier which was filed in the Court for its information was held not compulsorily registrable and therefore it can be used in evidence for collateral purpose, namely, for the proof of family arrangement which was final and binds the parties. The same view was reiterated in Maturi Pullaiah v. Maturi Narshimham, AIR 1966 Supreme Court 1836, wherein it was held that the family arrangement will need registration only if it creates any interest in immovable property in present time in favour of the parties mentioned therein. In case where no such interest is created the document will be valid, despite it being non-registered and will not be hit by Section 17 of the Act.”

The aforesaid judgment though said nothing about a pre existing right but it led to a series of litigation, which unsettled the many settlements between the family members on the basis of earlier passed consent decrees. It was in Bachan Singh v. Kartar Singh and others, 2002(3) RCR(Civil) 495 (SC), that the Supreme Court held that

“……… A consent decree passed by the Court is not required to be registered under the provisions of the Indian Registration Act and therefore, the view taken by the first Appellate Court was not legally correct and has been rightly set aside by the High Court. We are, therefore, in agreement with the view taken by the High Court.”

The said view was followed by the Punjab and Haryana High Court in Jagdish v. Ram Karan, 2003(1) RCR(Civil) 657 (P&H) and further in Hari Singh v. Gurcharan Singh, 2003(3) RCR (Civil) 632(P&H) whereby after relying upon the entire law on the issue it was held that: –

“…… that if the claim of the defendant was admitted by the plaintiff and on the basis of the said admission, a decree was passed and if there was no fraud in passing the decree, then the said decree was good and valid and could not be ignored on the ground that the same was not registered.”

The said judgements were subsequently followed in a number of other judgements to hold that a consent decree, which is based upon an admission of pre existing rights, does not require registration, and cannot be challenged on that ground. The same view was reiterated by the Punjab and Haryana High Court in Tejpal Singh v. Kushal Pal Singh RSA Number 5023 of 2009 decided on 08/05/2017.

The Supreme Court in Phoolpati v. Ram Singh, (2015) 3 SCC 164 drew a distinction between self acquired property and joint Hindu Family property, and held that qua self acquired property, the civil Court decree was required to be registered. However, the said judgment passed by the Supreme Court of India was in the peculiar facts of that case, as there was a dispute relating to some gift, as well as a decree, and cannot be taken to be as a general exception to various other judgements. The same view was taken by the Punjab and Haryana High Court in Dhian Singh v. Mohinder Singh 2017 (4) PLR 729.

In a very recent judgement of the Supreme Court in Mohammade Yusuf v. Rajkumar, 2020(2) RCR (CIVIL) 23 observed that a compromise decree does not require registration if it does not mention the property that is not the subject-matter of the suit. It was held that: –

“The only question to be considered in this appeal is as to whether the above noted compromise decree dated 04.10.1985 was required to be registered under section 17 of the Registration Act, 1908 or not?”

“……… Under Section 17(1)(b), non-testamentary instruments which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property requires registration. The word “instrument” is not defined in Registration Act, but is defined in the Indian Stamp Act, 1899 by Section 2(14).

6. A compromise decree passed by a Court would ordinarily be covered by Section 17(1)(b) but sub-section (2) of Section 17 provides for an exception for any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by virtue of sub-section(2)(vi) of Section 17 any decree or order of a Court does not require registration. In sub-clause(vi) of sub-section (2), one category is excepted from sub-clause(vi), i.e., a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subject-matter of the suit or proceeding. Thus, by conjointly reading Section 17(1)(b) and Section 17(2)(vi), it is clear that a compromise decree comprising immovable property other than which is the subject matter of the suit or proceeding requires registration, although any decree or order of a Court is exempted from registration by virtue of Section 17(2)(vi). A copy of the decree passed in Suit No.250-A of 1984 has been brought on record as Annexure P-2, which indicates that decree dated 04.10.1985 was passed by the Court for the property, which was subject matter of the suit. Thus, the exclusionary clause in Section 17(2)(vi) is not applicable and the compromise decree dated 04.10.1985 was not required to be registered on plain reading of Section 17(2)(vi). The High Court referred to judgment of this Court in Bhoop Singh v. Ram Singh Major and Others, (1995) 5 SCC 709: 1995(3) R.R.R. 541, in which case, the provision of Section 17(2)(vi) of Registration Act came for consideration. This Court …….

11……….. In view of the pronouncement of this Court by Three Judge Bench judgment in Ravinder Kaur Grewal and Others v. Manjit Kaur and Others (supra), the very basis of the High Court for holding that compromise deed dated 04.10.1985 requires registration is knocked out. The present is not a case where there is any allegation that the decree dated 04.10.1985 is a collusive decree. The decree dated 04.10.1985 was in favour of the plaintiff of 7 biswa land, survey No.203 and for remaining land of survey No.203, it was held that it belonged to defendants.

12. In Bhoop Singh (supra), this Court held that the earlier decree required registration for the reasons as mentioned in paragraph 19. The reasons given in paragraph 19 of the above case has no application in the facts of the present case.

13. This Court in Som Dev and Others v. Rati Ram and Another, (2006) 10 SCC 788 : 2006(4) R.C.R.(Civil) 303 while explaining Section 17(2)(vi) and Section 17(1)(b) and (c) held that all decree and orders of the Court including compromise decree subject to the exception as referred that the properties that are outside the subject matter of the suit do not require registration. In paragraph 18, this Court laid down following: –

“18. ……. But with respect, it must be pointed out that a decree or order of a court does not require registration if it is not based on a compromise on the ground that clauses (b) and (c) of section 17 of the Registration Act are attracted. Even a decree on a compromise does not require registration if it does not take in property that is not the subject-matter of the suit………”

…………… In facts of the present case, the decree dated 04.10.1985 was with regard to property, which was subject matter of the suit, hence not covered by exclusionary clause of Section 17(2)(vi) and present case is covered by the main exception crafted in Section 17(2)(vi), i.e., “any decree or order of a Court”. When registration of an instrument as required by Section 17(1)(b) is specifically excluded by Section 17(2)(vi) by providing that nothing in clause (b) and (c) of sub-section (1) applies to any decree or order of the Court, we are of the view that the compromise decree dated 04.10.1985 did not require registration and learned Civil Judge as well as the High Court erred in holding otherwise. We, thus, set aside the order of the Civil Judge dated 07.01.2015 as well as the judgment of the High Court dated 13.02.2017. The compromise decree dated 04.10.1985 is directed to be exhibited by the trial court. The appeal is allowed accordingly.”

The said judgement of the supreme court was again followed in Gurcharan Singh v. Angrez Kaur 2020(2) RCR (Civil) 696, Wherein it was held that :-

“Defendants obtained right, title and interest in suit property by virtue of decree passed in earlier suit between owner and defendants – In said suit original owner admitted claim of defendants and consent decree was passed – Owner in said suit prayed that suit of plaintiffs be decreed as prayed – Pre-existing right of plaintiffs was admitted by defendant and decree was passed therein – No registration of decree required – High Court erred in holding decree as void for want of registration.”

The aforesaid law as laid down by various courts makes it clear that a consent decree is as good as any other contested decree i.e. a decree obtained after contest, and shall have the same binding force as any other validly passed decree.

A consent decree also creates an estoppel against the parties to the litigation and it cannot be challenged subsequently on merits, except on the grounds of fraud, misrepresentation, undue influence etc. As discussed above the registration of the decree also has been made a ground to challenge the same, but time and again the same has been negated, and discouraged by the courts, if the person in whose favour the decree was passed, had a pre existing right in the property that is subject matter of the decree.

Though there is no limitation to challenge a decree on the basis of fraud etc., however, the same needs to be challenged within a period of 3 years from the date of knowledge of the same (fraud), in light of the provisions of Articles 58 and 59 of the Limitation Act.

It may also be mentioned that a compromise decree passed under the provisions of Order 23 Rule 3 can only be challenged before the same court i.e. the court which passed the decree, or in appeal under the provisions of Order 23 Rule 3A, but a judgement on admission, as under Order 12 Rule 6, popularly called a consent decree, can be challenged by the person so affected, even in a separate civil suit on the basis of fraud etc., but not on the ground that facts pleaded in the previous suit culminating in the impugned consent decree were erroneous and incorrect. The said questions stand determined and concluded by the consent decree, and cannot be re adjudicated, and would be barred by principle of res judicata in the subsequent suit.

Thus from the entire case law on the point, it can well be said that though both the words `compromise’ and `consent decree’ are often interchangeably used and there is a thin line of distinction between a `consent decree or a judgement based on admission’ and a `compromise decree’, as passed under order 23 rule 3, and one holds as good as the other, yet when it comes to challenging the same on any of the permissible grounds, both hold different parameters and checks.

Further more, a `Judgment on Admissions’ under Order XII Rule 6, can not be claimed as matter of right as the language used in that provision of the Code is enabling, discretionary and permissive, and is neither mandatory nor it is peremptory, since the word “may” has been used. No matter how much clear the admission may be, the said power with the court is absolutely discretionary and should be exercised judicially, on the facts and circumstances of each case. The underlying object of the abovementioned rule is to enable a party to obtain speedy judgment on admission, in respect of admitted claims, although disposal of disputed claims in a suit are pending. A decree can be passed only to the extent of admitted claims, for which admissions are clear, unequivocal and unambiguous. There is no specific form of admission required for a Court to pass a decree. It may be contained in pleadings or otherwise. It may be in writing or may even be oral, but once recognised and affirmed by the court in the shape of a decree, the same is as effective and has the same force as any other decree obtained after a contest.

Despite having a binding effect and application of principle of estoppel as against the parties to the litigation in consent decrees, they are challenged as easy as they are consented too.

Thus, it would not be wrong to conclude by saying that “one can never consent to creep when one feels an impulse to soar”.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

Post-independence, the laws relating to intestate succession amongst the Hindus are governed by the Hindu Succession Act, 1956. This Act was enacted to lay down a uniform system of inheritance in the matters of succession among the Hindus. However, the principles governing succession of the Coparcenary property were distinct and different under the Act.

The term ‘Coparcenary‘ is a much narrower body than a joint family, and consists of only those persons who have taken by birth, an interest in the property of the holder, for the time being, and who can enforce a partition whenever they like.The coparcener must be a member of the family, but a member of the family need not always be a coparcener. The eldest of the coparcener is called the Karta of the family.

Article 236 of the Mulla’s Hindu Law defines “Karta” as: “Manager – Property belonging to a joint family is ordinarily managed by the father or other senior member for the time being of the family: The Manager of a joint family is called Karta.”

The basic concept of coparcenary prior to the amendment of 2005 in Hindu Succession Act was that only male members of a joint Hindu family could constitute a coparcenary, completely excluding the female members of the family. This concept has been substantially amended with the amendment of Section 6 of the Act. The said 2005 amendment also omitted Section 23 of Act which disentitled a female heir to ask for partition in respect of a dwelling house, wholly occupied by a joint family, until the male heirs choose to divide their respective shares therein.

The amended Section 6 of The Hindu Succession Act, 1956, which came in effect vide Act 39 of 2005 w.e.f. from 09-09-2005 reads as under: –

S.6 Devolution of interest in coparcenary property.–

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, –

(a) by birth become a coparcener in her own right in the same manner as the son;

(b) have the same rights in the coparcenary property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son,

and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) Any property to which a female Hindu becomes entitled by virtue of sub–section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre–deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation. -For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great–grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.

Explanation. -For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. -For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

Thus, the amendment balanced the property rights of male and female siblings with regard to the rights in the coparcenary property. Though the amendment was clearly to be implemented from 09-09-2005 yet, soon after the amendment, the question regarding the prospective or retrospective operation of the amendment came up before few high courts.

One set of thought was that in the absence of any express provision or an implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. It was based on the legal principle that succession never remains in abeyance, and opens on the date of the death of the testator, and the rights of the heirs get crystallised on that day, even if partition by metes and bounds had not taken place. Thus, the subsequent amendment cannot undo, what has been done earlier, by re-opening the partition, even if notional.

The counter thought was that the amendment being a piece of social/welfare legislation, to remove discrimination against women in the light of 174th Report of the Law Commission, the amendment should be read as being retrospective.

Whereas the Karnataka High Court in 2010 (57) RCR (Civil) 160 Pushpalatha N.V. v. V. Padma, interpreted the Amendment Act to have retrospective effect from the date of the coming into force of the Hindu Succession Act, 1956, the Full Bench of the Bombay High Court in 2014(4) RCR (Civil) 620 Shri Badrinarayan Shankar Bhandari and others v. Ompraskash Shankar Bhandar, interpreted the Amendment Act to have effect from the date of coming into force of the Amendment Act. Similarly, conflicting views were taken by different High Courts regarding the applicability of the said amendment.

The said question of law ultimately came to be decided by the Supreme Court in Prakash v. Phulavati, 2015 (4) RCR (Civil) 952, whereby it was held:

“22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20th December, 2004 could be covered by the Explanation or the proviso in question.

23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born.” (emphasis supplied by the writer).

The Crux of this judgement is that, if the coparcener (father) had passed away prior to 09.09.2005, i.e. prior to the date when the said amendment was enforced, the living daughter of the coparcener would have no right to coparcenary property. Thus, for a daughter to claim any right in the property or exercise any right of partition for the same, she must prove that her father was alive on 09-09-2005 else she would lose her claim in the same. Phulvati’s case, supra, is based upon the cardinal principle of law that succession does not remain in abeyance, and the rights of the heirs qua succession are settled immediately at the time of the death. Thus, the court clearly held that the amendment in the Act can only be effective if the death of the father occurs after the date of enactment i.e. is after 09-09-2005. In the absence of any express provisions, it was held that the Act cannot be applied retrospectively, even if it is a social legislation. Thus, accordingly, the amended provision shall only apply to the “living daughters of living coparceners” at the time of enactment and the transactions prior shall remain unaffected.

Although the said decision of the supreme court had put this controversy at rest, but once again the said position was reanalysed by the supreme court in Danamma @ Suman Surpur & Anr. v. Amar & Ors. 2018 (1) RCR (Civil) 863.

As per the facts of that case, the appellants were the daughters of a coparcener who had died in 2001. The respondents were the sons of the deceased, who had filed a suit for partition of the property in 2002. They claimed that the daughters were born prior to 1956, the enactment of the Act. The trial court had denied any share to the daughters. Relying upon Pushpalatha case (Supra) the appeals to High Court were also dismissed. However, the Supreme Court, while replying upon Phulavati’s case and discussing the ratio laid down in Bombay Full Bench Judgement Supra reversed the impugned judgements.

The question was whether by the virtue of the amendment, the daughters would become coparceners “in the same right as the sons”. The Supreme Court considered Phulavati’s case (supra) and agreed with the findings, yet applied a different principle while granting relief to the daughters. It was held that partition is not complete with passing of a preliminary decree alone and attains finality only with the passing of the final decree. The Supreme Court further held that although the suit was filed in the year 2002, the preliminary decree was passed in the year 2007 and therefore, the daughters were entitled to the benefit of the Amendment Act.

It was laid down that

“24. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b).”

Since the principle laid down in Phulavati case supra, was agreed upon, and still continues to be good law, a daughter whose father had died before the amendment came into force, cannot claim the benefit of the amending Act. However, going strictly by the ratio and facts in Danamma’s case, supra, a daughter will be entitled to the benefits of the amendment Act in a pending suit filed after 2005, regardless of when her father died.

The said conflict in the reasoning of both these judgements further created a confusion with regard to the correct position of law with regard to the applicability of the amendment, and ultimately again in Vineeeta Sharma v. Rakesh Sharma, Civil Appeal No. 32601 of 2018, vide order dated 05-12-2018, the Supreme Court while hearing a similar question of law ordered that :

“There is a conflict of opinion in two Division Bench Judgments of this Court i.e. Prakash v. Phulavati, (2016) 2 SCC 36 and Danamma @ Suman Surpur v. Amar, (2018) 3 SCC 343 with regard to interpretation of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act of 2005.

In view thereof, this matter has to be heard by a Bench of three Judge. Though we are sitting in combination of three Judge Bench, learned counsel for the respondent has drawn our attention to Order VI Rule 2 of the Supreme Court Rules, 2013 as per which the matter is to be referred to Hon’ble the Chief Justice and it is for the Hon’ble Chief Justice to constitute a Bench for hearing the matter.

We accordingly direct the Registry to place the matter before Hon’ble the Chief Justice for constitution of the Bench.”

The said civil appeal was decided by the Supreme Court on 11th August 2020 whereby a detailed reasoning has been given by the Supreme Court holding that :-

“Besides the various sources, custom, equity, justice, and conscience have also played a pivotal role in the development of Hindu law, which prevailed. When the law was silent on certain aspects, Judicial decisions also acted as a source of law. Hindu law was not static but always progressive. Slowly necessity was felt for the codification of Hindu law. In particular, women’s rights were taken care of, and attempts were made to remove the anomalies and unscrupulous practices. Necessity was also felt after the independence, given the constitutional imperatives to bring about equality of status, the codified law has been amended from time to time. The latest attempt has been made by way of amending the Hindu Succession Act concerning rights of daughter to be a coparcener in Mitakshara coparcenary and has been given the rights equal to that of a son……”

“……As earlier, a woman could not be a coparcener, but she could still be a joint family member. By substituted section 6 with effect from 9.9.2005 daughters are recognised as coparceners in their rights, by birth in the family like a son. Coparcenary is the creation of law. Only a coparcener has a right to demand partition. Test is if a person can demand a partition, he is a coparcener not otherwise. Great great-grandson cannot demand a partition as he is not a coparcener. In a case out of three male descendants, one or other has died, the last holder, even a fifth descendant, can claim partition. In case they are alive, he is excluded…….”

“…………In Mitakshara coparcenary, there is unobstructed heritage, i.e.,apratibandha daya and obstructed heritage i.e., sapratibandha daya. When right is created by birth is called unobstructed heritage. At the same time, the birth right is acquired in the property of the father, grandfather, or great grandfather. In case a coparcener dies without leaving a male issue, right is acquired not by birth, but by virtue of there being no male issue is called obstructed heritage. It is obstructed because the accrual of right to it is obstructed by the owner’s existence. It is only on his death that obstructed heritage takes place……”

“…….It is apparent that unobstructed heritage takes place by birth,and the obstructed heritage takes place after the death of the owner. It is significant to note that under section 6 by birth, right is given that is called unobstructed heritage. It is not the obstructed heritage depending upon the owner’s death. Thus, coparcener father need not be alive on 9.9.2005, date of substitution of provisions of Section 6…”

“……. We are unable to find any reason to hold that birth of the daughter after the amendment was a necessary condition for its applicability. All that is required is that daughter should be alive and her father should also be alive on the date of the amendment. A finding has been recorded in Prakash v. Phulavati that the rights under the substituted section 6 accrue to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. We find that the attention of this Court was not drawn to the aspect as to how a coparcenary is created. It is not necessary to form a coparcenary or to become a coparcener that a predecessor coparcener should be alive; relevant is birth within degrees of coparcenary to which it extends. Survivorship is the mode of succession, not that of the formation of a coparcenary. Hence, we respectfully find ourselves unable to agree with the concept of “living coparcener”, as laid down in Prakash v. Phulavati…..”

“……the intendment of amended Section 6 is to ensure that daughters are not deprived of their rights of obtaining share on becoming coparcener and claiming a partition of the coparcenary property by setting up the frivolous defence of oral partition and/or recorded in the unregistered memorandum of partition. The Court has to keep in mind the possibility that a plea of oral partition may beset up, fraudulently or in collusion, or based on unregistered memorandum of partition which may also be created at any point of time. Such a partition is not recognized under Section 6(5)……”

“…..coparceners and to enjoy as members of a joint family what remained after such a partition of the family property. That the remaining members continued to be joint may, if disputed, be inferred from the way in which their family business was carried on after their previous coparcener had separated from them. It is also quite clear that if a joint Hindu family separates, the family or any members of it may agree to reunite as a joint Hindu family, but such a reuniting is for obvious reasons, which would apply in many cases under the law of the Mitakshara, of very rare occurrence, and when it happens it must be strictly proved as any other disputed fact is proved. In Hari Baksh v. Babu Lal, AIR 1924 PC 126, it was laid down that in case there are two coparcener brothers, it is not necessary that there would be a separation inter se family of the two brothers. The family of both the brothers may continue to be joint.The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also. The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the Act of 1956 recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20.12.2004 is saved….”

Thus, discussing and elaborating the entire law on the issue the court answered the reference holding that: –

i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

“……. In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @Suman Surpur & Anr. v. Amar is partly overruled to the extent it is contrary to this decision……”

Thus, in the above noted reference the Supreme Court has not only explained the concept and scope of the 2005 amendment by discussing the entire case law on the subject but has also put to rest the anomaly created by different interpretation of the law by Phulvati and Danamma’s judgements.

The ratio of law as laid down by Vineeta Sharma’s Judgement is that :-

• A coparcenary property that comes to the hands of a ‘single person’ temporarily, would be treated as his property, but once a son is born, coparcenary would revive in terms of the Mitakshara law.

• The word daughter as inserted by way of 2005 amendment shall have the same effect as that of a son.

• It is only on actual partition a coparcener becomes entitled to a definite share. The interest of a coparcener is called “undivided coparcenary interest,” which remains undivided.

• The statutory fiction of partition that was created in the proviso to Section 6 of the pre-amendment Act was only for the purpose ascertaining the share of the deceased coparcener. Thus, regardless of the preliminary decree passed, the decree passed in appeals or for final decree ought to give equal coparcenary share to daughters as sons are given.

• The court also held that “…in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

• The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

• The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

• The right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

• Though the rights can be claimed, w.e.f. 9.9.2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener.

• The statute with prospective effect operates from the date of its enactment, and a legislation with the retroactive effect would work backwards and also undo the impairment caused prior to its coming into force. Thus, the amendment of 2005 too operates in futuro but by virtue of its retroactive operation, it confers rights on daughters from the time of their birth even if the birth took place prior to the amendment.

Thus, the effect of this judgment is that in the matters of inheritance under section 6 of the Hindu Succession Act 1956, the daughters as well as the sons get the equal right in the property left by their father. It is immaterial whether the father died prior to the amendment or after the same and any partition or family arrangement so pleaded by the other coparceners excluding the daughters shall have to be ignored outrightly unless the same is proved beyond doubt. The Supreme Court while removing the discrimination between a son and a daughter observed that “A common saying is worth pressing into service…A son is a son until he gets a wife. A daughter is a daughter throughout her life.”

Though the said judgement has put all the speculation at rest by removing the gender bias between a son and daughter but still there are many such grey avenues which are yet to be evolve and adjudicated upon, making the law well settled on the point.

As already discussed, inheritance law knows no gender and the same is equal for a son and a daughter but the law has also another recognises transgenders as the third gender and interestingly the statute and all the judgements so far on the subject are silent about it. Thus, the same also needs to be addressed sometime by judicial precedents.

It may also be pertinent to mention here that the said amendment in section 6 has also proceeded to remove the distinction between a married and an unmarried daughter, and the 2005 amendment gives equal rights to daughters in the coparcenary, as much as it gives to the sons.

As discussed above in the preceding paragraphs, that it has always been the position that the eldest of the coparceners is called the Karta of the Coparcenary, and has all the rights for the control and management of the coparcenary property.

Another important question that still remains unsettled and unanswered is as to whether women or daughters (married and unmarried both) can be allowed to become managers or Karta of the joint hindu family, and manage the properties of the family, as such.

The question so involved may be of crucial importance, and is anticipated for the reason that daughters after marriage are usually uprooted from their father’s home and are rooted to their matrimonial home i.e. husband’s family, and thus may live far away from the joint family of their father/brothers, and staying in their husband’s family, after their marriage, could be venerable to the influence of their husbands or husbands’ families. However, not only these, but many other complex questions would arise regarding the inheritance and succession, in case of a married daughter residing elsewhere, acting as a female Karta. Thus, the said amendment of 2005 removing the distinction between the role of Karta, being a son or a daughter, and with no further distinction between a married and an unmarried daughter, or a daughter who is subsequently married, has wakened up a multiple range of complexities, which are though somewhat settled but not fully solved by judicial precedents.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

A clear Rejection is always better than a fake promise.

A “Suit“, is a proceeding by a party or parties against other/s in the civil court of law. The archaic term “suit in law” is found in only a small number of laws still in effect today. The term “suit” is used in reference to a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss or wronged, as a result of a defendant’s actions, demands a legal or equitable remedy, through his plaint. The defendant is required to respond to the plaintiff’s complaint by filing a written statement to all the averments contained in the plaint.

If the plaintiff is successful, judgment is in the plaintiff’s favor, and a variety of court orders may be issued to enforce a right, award damages, or impose a temporary or permanent injunction to prevent an act or compel an act. A declaratory judgment may be issued to prevent future legal disputes.

A Law Suit may involve dispute resolution of private law issues between individuals, business entities or non-profit organizations. A lawsuit may also, in certain cases, enable the State to be treated as if it were a private party in a civil case, as plaintiff, or defendant, regarding an injury, or may provide the State with a civil cause of action to enforce certain laws.

The conduct of a lawsuit is called litigation. The plaintiffs and defendants are called litigants and the procedure adopted for the same is governed by the principles of law, as contained in the Code of Civil procedure, 1908.

A suit begins when a document, known as a plaint, is filed with the court. A plaint should explicitly state the exact cause of action and, even when one or more plaintiffs seek/s damages or equitable relief from one or more stated defendants, should state the relevant factual allegations supporting the legal claims brought by the plaintiffs, pertaining to each of the plaintiffs. As the introductory pleading, a plaint is the most important step in a civil case, because it sets the factual and legal foundation for the entirety of the case. Thus, the same needs to have the exact details of relief, and grief for which the plaintiff is suing the defendant. The filing of a Plaint is considered a sine qua non for institution of a Suit. It is basically a statement of claims, treated as a repository of facts by the Court. Thus, every Court is obligated to analyze the Plaint, and decide whether it is fit to be proceeded further or not.

Order II of the Code of Civil Procedure, 1908, lays down the various principles governing the Frame of the Suit, and the procedure to be followed therein. Thus, once a suit is filed then the contents of the plaint must contain the whole of the claim as envisaged under order 2 rule 2, and must also be in complete compliance with the provisions of order 2.

Checking of Plaint by the Court is essentially a formal pre-admission scrutiny of the pleadings filed in the Indian law courts. The process is aimed at filtering out non-jurisdictional cases, and getting other formal defects, such as computation of Court fees and stamping of instruments, annexing spot map to the Plaint etc., rectified before the case is taken up for further hearing. Many of such formal defects and objections are taken care by the court registry where the case is filed, and would keep the same `in defect’ and not place the same for hearing before the court till the same is removed.

The process of Civil litigation, in Indian context, is regularized by the provisions of Code of Civil Procedure (India). The code is silent about any comprehensive procedure to be adopted for Plaint checking. However, there are various circulars issued by the different High Courts to regulate the intervention of office, in fault-finding process, at different stages of the suits, in compliance with the provisions of Order VII of the Code of Civil Procedure.

Once the suit is allowed to proceed, then the court is obliged with the duty that, before it proceeds further, to appropriately inspect the plaint, to decide, on the question as to whether it ought to be returned, or rejected, and examine as to the plaint is maintainable or barred by any law, so it cannot proceed further. It is the court’s obligation to take into consideration, different materials placed before it at that juncture. Order VII Rule 11 of CPC deals with all such situations, where plaint ought to be rejected, at that stage only, on the basis of such material placed before the court.

Order VII Rule 11 of the Code of Civil Procedure, lays down the concept of rejection of plaint, by the court, in specific circumstances and various conditions. Such a decision may be taken either Suo moto or upon a formal application made by the defendant for rejecting the plaint. It is mandatory for the court, before it proceeds further on the lis to give a decision upon the application for dismissal of the plaint, under Order VII rule 11. The object is based upon the principle that a litigant cannot be forced to file a written statement, on a frivolous litigation, where the court has no jurisdiction or plaint does not disclose any cause of action or is otherwise defective or barred by any law.

It has been held by the court time and again that the remedy under Order VII Rule 11 is an independent and special remedy, wherein the Court is empowered to summarily dismiss a suit at the threshold, without proceeding to record evidence, and conducting a trial, only on the basis of the evidence adduced, if it is satisfied that the action should be terminated on any of the grounds contained in this provision. The underlying object of Order VII Rule 11 (a) is that if in a suit, no cause of action is disclosed, or the suit is barred by limitation under Rule 11 (d), the Court would not permit the plaintiff to unnecessarily protract the proceedings in the suit. In such a case, it would be necessary to put an end to the sham litigation, so that further judicial time is not wasted.

Order VII Rule 11 Code of Civil Procedure 1908 lays down as under:

11. Rejection of plaint: – The plaint shall be rejected in the following cases: –

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaintiff fails to comply with the provision of Rule 9;

Provided that the time fixed by the court for the correction of the valuation or supplying of the requisite stamp papers shall not be extended unless the court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp papers, as the case may be within the time fixed by the court and that refusal to extend such time would cause grave injustice to the plaintiff.

A bare reading of the above provision of Order 7 rule 11 shows that the plaint can be rejected by the court if it appears from the contents of the plaint that the same is barred by any law, undervalued, insufficiently stamped, not filed in duplicate or does not specify any cause of action. The court must give a meaningful reading to the plaint and if it finds that it is manifestly vexatious or meritless in the sense of not disclosing the clear right to suit, the court may exercise its power under Order 7 rule 11 of the code of civil procedure 1908, to reject the plaint. The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or even after issuing summons to the defendant, or before conclusion of the trial, as held by the Supreme Court in the judgment of Saleem Bhai v. State of Maharashtra. 2003(1) SCC 557.

If found to be deficient of any of the above-mentioned factors, a Plaint may be rejected by the Court of its own motion or upon filing of an application in that behalf by the opposite party, at any stage of the proceedings, before conclusion of the trial. It would not matter, even if the issues are already framed in the suit, and the case is at an advanced stage. In Sopan Sukhdeo Sable & Ors. v. Assistant Charity Commissioner & Ors., (2004) 3 SCC 137, it was held by the Supreme Court that:

“The Trial Court can exercise the power at any stage of the suit – before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Order VII Rule 11 of the Code, the averments in the plaint are the germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage.”

Thus, a plaint can be rejected if: –

• It does not disclose a Cause of Action: – A cause of action, in law, is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit (such as breach of contract, declaration of title, or recovery). The legal document which carries a claim is often called a ‘statement of claim’ in English law, or a ‘plaint’ in Indian law. The word cause of action has not been explicitly defined in the code of civil procedure 1908. However, there are various rules and orders wherefrom the meaning of the same can be gathered. As per Section 20 of the Civil Procedure Code, 1908, “cause of action” suggests any violation of a legal right that must be produced in favor of the plaintiff to substantiate his claim. “Cause of action” also means every fact which would be necessary for the plaintiff to prove, if traversed, in order to support his right to judgment. It consists of a bundle of material facts, which are necessary for the plaintiff to prove in order to entitle him to the reliefs claimed in the suit.

In T. Arivandandam v. T.V. Satyapal & Anr. (1977) 4 SCC 467 the Supreme Court held that while considering an application under Order VII Rule 11 CPC what is required to be decided is whether the plaint discloses a real cause of action, or something purely illusory, in the following words: –

“5. …The learned Munsiff must remember that if on a meaningful -not formal -reading of the plaint it is manifestly vexatious, and meritless, in the sense of not disclosing a clear right to sue, he should exercise his power under O. VII, R. 11, C.P.C. taking care to see that the ground mentioned therein is fulfilled. And, if clever drafting has created the illusion of a cause of action, nip it in the bud at the first hearing …”

In Azhar Hussain v. Rajiv Gandhi 1986 SCC Supp. 315, the Supreme Court held that:

“12. …The whole purpose of conferment of such power is to ensure that a litigation which is meaningless, and bound to prove abortive should not be permitted to occupy the time of the Court, and exercise the mind of the respondent. The sword of Damocles need not be kept hanging over his head unnecessarily without point or purpose. Even if an ordinary civil litigation, the Court readily exercises the power to reject a plaint, if it does not disclose any cause of action.“

In Liverpool & London S.P. & I Assn. Ltd. v. M.V. Sea Success I& Anr. (2004) 9 SCC 512, the Supreme Court held that: –

“139. Whether a plaint discloses a cause of action or not is essentially a question of fact. But whether it does or does not must be found out from reading the plaint itself. For the said purpose, the averments made in the plaint in their entirety must be held to be correct. The test is as to whether if the averments made in the plaint are taken to be correct in their entirety, a decree would be passed.”

In Om Prakash Srivastava v. Union of India and Anr., 2006 6 SCC 207, it was further held by the Supreme Court that:

“Cause of action” means, in the restricted sense, the circumstances which constitute an infringement of the right or the immediate cause for the reaction. In the wider sense it implies the conditions required for the enforcement of the action, including the violation of the right and the violation combined with the power itself. Compendiously, as noted above, the expression means any fact that the plaintiff would need to assert, if violated, to maintain his right to the Court’s judgment. Every circumstance that is required to be established, as distinguished from every piece of evidence that is necessary, to prove that every fact is part of “cause of action.”

In Swamy Atmanand v. Sri Ramakrishna Tapovanam 2005 (10) SCC 51, the Supreme Court held:

“24. A cause of action, thus, means every fact, which if traversed, it would be necessary for the plaintiff to prove an order to support his right to a judgment of the court. In other words, it is a bundle of facts, which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. It must include some act done by the defendant since in the absence of such an act, no cause of action can possibly accrue. It is not limited to the actual infringement of the right sued on but includes all the material facts on which it is founded”.

However, if, by clever drafting of the plaint, the document created the illusion of a cause of action, the Supreme Court in Madanuri Sri Ramachandra Murthy v. Syed Jalal (2017) 13 SCC 174 has observed that it should be nipped in the bud, so that bogus litigation will end at the earliest stage. The basis of the same being that the Court must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court.

Thus, the plaintiff in order to be successful has to demonstrate his cause of action for the breach of which he has initiated the civil suit. He must demonstrate from the plaint that:

• That there existed a legal obligation or a right;

• The act of the defendant resulted in breach of such right or obligation;

• The reason for such a breach; and

• The plaintiff has suffered a legal loss because of this breach.

Once no such cause of action is apparent from the plaint, then under the provisions of order 7 rule 11 the plaint shall be rejected by the court.

• Where the Relief claimed is Undervalued: -If it is brought to the knowledge of the court, that the valuation of the suit is less or is fabricated or baseless, the court may order the plaintiff to re-evaluate the amount and may allow sufficient time for the correction. However, if despite such time given to do the needful, the plaintiff fails to comply with such directions then the court invoking the provisions of order 7 rule 11, shall reject the plaint.

However, it was held by the Supreme Court in Meenakshi Sundaram Chettiar v. Venkatachalam Chettiar, 1979 AIR SC 989, that: –

“This section casts a duty on the Court to reject the Plaint when the relief claimed is undervalued. If on the materials available before it the Court is satisfied that the value of relief as estimated by the Plaintiff in a Suit for accounts is undervalued the Plaint is liable to be rejected. It is therefore necessary that the Plaintiff should take care that the valuation is adequate and reasonable taking into account the circumstances of the case. The Supreme Court further noted that in Suit for accounts, a Plaintiff may not able to ascertain the exact amount for the purpose of valuation of the Suit. In this regard it clarified that;

In coming to the conclusion that the Suit is undervalued the Court will have to take into account that in a Suit for accounts the Plaintiff is not obliged to state the exact amount which would result after the taking of the accounts. If he cannot estimate the exact amount, he can put a tentative valuation upon the suit for accounts which is adequate and reasonable. The Plaintiff cannot arbitrarily and deliberately undervalue the relief. A Full Bench of the Andhra Pradesh High Court in a decision in Chillakuru Chenchuram Reddy v. Kanupuru Chenchurami Reddy (ILR (1969) Andh Pra 1042), after elaborate consideration of the case law on the subject has rightly observed that there must be a genuine effort on the part of the plaintiff to estimate his relief and that the estimate should not be a deliberate under-estimation.”

• Where the relief is properly valued but the plaint if written on an insufficiently stamped paper: –

Every plaint must be appropriately stamped for the reasons for the court fees under the Court Fee Act, 1870. If the plaint is not sufficiently stamped, the court either on its own or on an application so made by the defendant, may grant an opportunity to the plaintiff to fill in the deficiency of the stamp so fixed, but if despite such an opportunity the plaintiff chooses not to make up the same then again the court shall reject the plaint under the provisions of order 7 rule 11.

Though both the above said conditions are contained clearly in order 7 rule 11 for the purpose of rejection of plaint but in order to save the plaintiff of any bona-fide mistake that he might have committed while filing the plaint, the court may grant an opportunity to the plaintiff to make up for such deficiency before it chooses to reject the plaint.

• Where the Suit appears from the statement to be barred by any law: Where from the pleadings of the plaintiff and the contents so contained there-in it is apparent that the suit so filed by him is not legally maintainable, the same being barred by any law then in such circumstances the court shall reject the plaint without proceeding further with the case. The bar so created shall also involve the suits which are apparently filed beyond limitation. However, if the question of limitation relates to the merits of the case, the same will be decided with other issues, and not at the outset and shall not be a ground for rejection of plaint.

A three-Judge Bench of the Supreme Court in State of Punjab v. Gurdev Singh, (1991) 4 SCC 1 has observed that the Court must examine the plaint and determine when the right to sue first accrued to the plaintiff, and whether on the assumed facts, the plaint is within time. The words “right to sue” means the right to seek relief by means of legal proceedings. The right to sue accrues only when the cause of action arises. The suit must be instituted when the right asserted in the suit is infringed, or when there is a clear and unequivocal threat to infringe such right by the defendant against whom the suit is instituted.

In Khatri Hotels Pvt. Ltd. & Anr. v. Union of India & Anr (2011) 9 SCC 126.,the Supreme Court has held that the use of the word `first’ between the words `sue’ and `accrued’, would mean that if a suit is based on multiple causes of action, the period of limitation will begin to run from the date when the right to sue first accrues. That is, if there are successive violations of the right, it would not give rise to a fresh cause of action, and the suit will be liable to be dismissed, if it is beyond the period of limitation counted from the date when the right to sue first accrued.

In Raghwendra Sharan Singh v. Ram Prasanna Singh, AIR 2019 SC 1430, the Supreme Court held that: –

“Applying the law laid down by this Court in the aforesaid decisions on exercise of powers under Order 7, Rule 11 of the CPC to the facts of the case in hand and the averments in the plaint, we are of the opinion that both the Courts below have materially erred in not rejecting the plaint in exercise of powers under Order 7, Rule 11 of the CPC. It is required to be noted that it is not in dispute that the gift deed was executed by the original plaintiff himself along with his brother. The deed of gift was a registered gift deed. The execution of the gift deed is not disputed by the plaintiff. It is the case of the plaintiff that the gift deed was a showy deed of gift and therefore the same is not binding on him. However, it is required to be noted that for approximately 22 years, neither the plaintiff nor his brother (who died on 15.12.2002) claimed at any point of time that the gift deed was showy deed of gift……… Despite the same, he instituted the present suit in the year 2003. Even from the averments in the plaint, it appears that during these 22 years i.e. the period from 1981 till 2001/2003, the suit property was mortgaged by the appellant herein-original defendant and the mortgage deed was executed by the defendant. Therefore, considering the averments in the plaint and the bundle of facts stated in the plaint, we are of the opinion that by clever drafting the plaintiff has tried to bring the suit within the period of limitation which, otherwise, is barred by law of limitation. Therefore, considering the decisions of this Court in the case of T. Arivandandam (supra) and others, as stated above, and as the suit is clearly barred by law of limitation, the plaint is required to be rejected in exercise of powers under Order 7, Rule 11 of the CPC.“

It may also be noted that like limitation, there may be many other legal bars for a civil suit to proceed. Many of the special statutes like the Sarfaesi Act, 2002, Village Common Lands Act etc. confer a exclusive jurisdiction on special courts and tribunals and expressly bar the jurisdiction of civil courts with regard to the disputes/subject matters mentioned therein, in all these circumstances the court while invoking the provisions of order 7 rule 11 can reject the plaint. The same shall also apply to a set of cases where a notice under section 80 CPC is mandatory and the same is not given. However, where an exemption is pleaded in the plaint and the circumstances are mentioned explaining why the same is not required then in such circumstances the court may take all these factors while deciding an application under order 7 rule 11.

Another set of circumstances maybe where the plaintiff has pleaded fraud, misrepresentation, breach of contract but the entirety of the plaint may not prima facie establish the same, in such a situation the court shall not reject the plaint under order 7 rule 11 as the same requires evidence of factual as well as legal aspect to be led by the plaintiff in support of his assertions. Thus, the court shall proceed with the suit in such situation without rejecting the plaint on these factual aspects.

• Where the plaint is not filed in duplicate: – where the plaintiff who has instituted a suit does not file the plaint in duplicate then the court shall reject the plaint under order 7 rule 11. Thus, in any suit to be filed before the civil court it is obligatory for the plaintiff to file the plaint in duplicate. The said requirement was invoked in order 7 rule 11 (e) by an amendment of 1999 in the code of civil procedure.

• Where the plaintiff fails to comply with the provisions of rule 9 : – Clause (f) of Rule 11 states that where the Plaintiff fails to comply with the provisions of Rule 9 wherein it is stated that the process fee and the copies of the Plaint are to be filed within seven days from the date of order of summons on the Defendant, the Plaint shall be rejected. This provision was again invoked by 1999 amendment in CPC with a purpose that the plaintiff shall be more vigilant in pursuing his litigation without resulting in wasting of the time of the court.

• In a recent judgement of the Supreme Court in Dahiben v. Arvindbhai Kalyanji Bhanusali (Gajra)(D) through Lrs, Civil Appeal No. 9519 of 2019 decided on 9th July 2020, the court while explaining the principles of Order VII Rule 11 in detail held that:

• Under Order VII Rule 11, a duty is cast on the Court to determine whether the plaint discloses a cause of action by scrutinizing the averments in the plaint, read in conjunction with the documents relied upon, or whether the suit is barred by any law.

• The documents filed along with the plaint in consonance with the provisions of order VII rule 14, are required to be taken into consideration for deciding the application under Order VII Rule 11 (a). When a document referred to in the plaint, forms the basis of the plaint, it should be treated as a part of the plaint.

• At the stage of deciding an application under order 7 rule 11, the pleas taken by the defendant in the written statement and application for rejection of the plaint on the merits, would be irrelevant, and cannot be adverted to, or taken into consideration.

• The test for rejecting a plaint under Order VII Rule 11 is that if the averments made in the plaint are taken in entirety, in conjunction with the documents relied upon, would the same result in a decree being passed.

• The plaint has to be construed as it stands without any addition or subtraction of any words. If the allegation in the plaint show a cause of action the court cannot embark upon an enquiry to test the correctness of those averments.

• The power under Order VII Rule 11 CPC may be exercised by the Court at any stage of the suit, either before registering the plaint, or after issuing summons to the defendant, or before conclusion of the trial.

• Order VII Rule 11(d) provides that where a suit appears from the averments in the plaint to be barred by any law, the plaint shall be rejected.

• The provisions of Order VII Rule 11 are mandatory in nature. It states that the plaint “shall” be rejected if any of the grounds specified in clause (a) to (e) are made out.

Thus, from the above it is clear that the provisions of Order VII Rule 11 are mandatory in nature, and are implemented with a purpose so as to save vexatious litigation and save the time of the court, and also to prevent the defendant from unnecessarily defend a claim that has no legal basis to stand. The court may after analysing its contents and the documents placed along with it has to be either accept or reject the plaint as a whole and not in part. The underlying principle of law for invoking these provisions is that that bogus litigation should end at the earliest. The provisions, as under order VII Rule 11, or its interpretation may not be exhaustive and may depend on the facts and circumstances of each case, as compared with the others.

However, one of the basic requirements to keep in mind, while adjudicating the plaint in terms of order 7 rule 11 is that the court shall only consider the allegations in the plaint and shall not advert to the defence raised by the defendant.

If, the plaint is rejected under the provisions of order VII Rule 11, then the same shall be treated as a decree, under the definition clause given under section 2(2) of the Code of Civil Procedure, and the remedy before the plaintiff, whose plaint has been rejected is to file an appeal against the same, and no further claim with regard to the same cause of action shall be entertained by the court. However, if an application under Order VII Rule 11 is dismissed and the suit is allowed to proceed then the remedy available with the defendant, who has filed that application for rejection of plaint is to challenge that order of dismissal by way of revision petition, as the same is in the form of an interlocutory order.

The underlying principle of law is that Courts must be vigilant against any camouflage or suppression, and determine whether the litigation is utterly vexatious, and an abuse of the process of the court and in case the court finds any claim to be so, than without prolonging the litigation further it shall “Nip the Evil in the Bud” by rejecting the plaint.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

“A valid contract requires voluntary offer, acceptance, and consideration.”

The Indian Contract Act, 1872, regulates the law relating to contracts in India, and is the key Act formulating contract law in India. The Act is based on the principles of English Common Law. It is applicable to all the States of India and determines the circumstances in which promises made by the parties to a contract shall be legally binding. Under Section 2(h), the Indian Contract Act defines a contract as an agreement which is enforceable by law.

A proposal on the basis of a trust becomes a promise and further cumulates into a valid enforceable contract.

Section 2 of The Indian Contract Act, 1872, reads:

Section 2

(a) When one person signifies to another his willingness to do or to abstain from doing anything, with a view to obtaining the assent of that other to such act or abstinence, he is said to make a proposal;

(b) When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted, becomes a promise;

(c) The person making the proposal is called the “promisor“, and the person accepting the proposal is called the “promisee“;

(d) When, at the desire of the promisor, the promisee or any other person has done or abstained from doing, or does or abstains from doing, or promises to do or to abstain from doing, something, such act or abstinence or promise is called a consideration for the promise;

(e) Every promise and every set of promises, forming the consideration for each other, is an agreement;

(h) An agreement enforceable by law is a contract;

Thus, whenever a proposal completes the parameters of becoming an enforceable legal agreement, it is called a contract. A contract may be, for the transfer of property, movable or immovable; service; or to complete anything that has a legal backing, and is not immoral or illegal.

It is believed that “Until a contract is signed, nothing is real”. However, a contract may be in writing or oral, but if it fulfils the parameters of being a valid contract, the same is duly enforceable. It may also be considered to be a valid contract, even if it is signed by the vendor alone, and not by the purchaser who accepted it, the said principle of law was recognised by the Supreme Court in Alka Bose v. Parmatma Devi & Ors. 2009(2) SCC 582 and again in K. Nanjappa (Dead) By Lrs. v. R.A. Hameed alias Ameersab (Dead) by Lrs. and Another 2015 AIR (SC) 3389.

Merely because there is a transition of a trust to promise to further a contract for consideration, it doesn’t really mean that it will always be honoured and completed for the purpose for what it was incorporated. As said earlier, a lot depends on the intention of the parties to the contract.

There may be circumstances where the contract is breached purposely, or it was based upon a contingency that never happened, or it becomes impossible to honour the contract because of “Force Majeure” popularly described as an act of God.

The term `Force Majeure‘ has been defined in Black’s Law Dictionary, as `an event or effect that can be neither anticipated nor controlled. It is a contractual provision allocating the risk of loss if performance becomes impossible or impracticable, especially as a result of an event that the parties could not have anticipated or controlled.’ Collins Dictionary defines “Force Majeure” as an “irresistible force or compulsion such as will excuse a party from performing his or her part of a contract”. The concept has its origins in French law where there are express force majeure provisions in the French civil code which excuse contractual performance where events have happened outside the parties’ control which could not have been foreseen at the time of contracting and which could not have been avoided by appropriate measures. It can also operate to exclude a claim for damages. However, force majeure is not a standalone concept of English law. Under English law, contractual performance will be excused due to unexpected circumstances, only if they fall within the relatively narrow doctrine of frustration. This doctrine will apply by default unless the parties agree something else in their contract.

While force majeure has neither been defined nor specifically dealt with, in Indian statutes, some reference can be found in Section 32 and Section 56 of the Indian Contract Act, 1872 (the “Contract Act”) which envisages that if a contract is contingent on the happening of an event or the an act which event becomes impossible to do, then the contract becomes void.

Yet, again there may be contracts which are legal when entered into, but becomes illegal by efflux of time or change of law. In such a situation, it is often said that no court will lend its aid to a man who files a claim based on an illegal act. Simply put, what this means is that the law will not afford relief to those who claim entitlements from an illegal act.

When it comes to “illegal” contracts, the general position has always been that the “loss will lie where it falls”, meaning that if a party that suffers loss due to an illegal contract, he cannot sue the other contracting party to recover such losses.

However, when a party cannot perform its obligations under a contract, because of an “act of God” or other unforeseen circumstances, the “act of God does not relieve the parties of their contractual obligations to an otherwise legal contract unless the parties expressly provide otherwise. However, where the parties include a force majeure clause in the contract – provision that allocates risk of non-performance in circumstances beyond the parties’ control – such “acts of God” or other circumstances, it may exempt them from performance.

Courts typically construe force majeure clauses narrowly. Therefore, whether disruption based on a pandemic, like COVID-19, can excuse performance will depend on the language of the particular force majeure clause. Under the law of many States in Unites States of America, including New York and Texas, the force majeure clause will be triggered only where the clause expressly includes the contingent event. Where a force majeure clause explicitly uses terms such as “disease,” “epidemic,” “pandemic,” “quarantine,” “act of government” or “state of emergency,” parties may, depending on the circumstances, be able to assert force majeure as a defense to non-performance or anticipatory breach in a situation like the COVID-19 pandemic.

Notably, it is not enough for the party asserting the force majeure clause to show that the “act of God”, or any other event made performance merely more difficult, or more economically burdensome; the party must show that performance of its contractual obligations has been prevented by the event. Taking precautionary measures, or making a voluntary decision not to perform, is not the same as being prevented from performance. In the absence of an express force majeure provision within an English law contract, parties may be able to rely upon the doctrine of frustration. By contrast, the doctrine of frustration is not available, if the contract contains an express force majeure provision, since the provision will be regarded as the agreed allocation of risk between the parties.

Having referred to the doctrine of frustration, it would be relevant to state the position of Indian law recognising the said doctrine. Under the Contract Act, it is Section 56 thereof, which lays down that principle.

Section 56 of The Indian Contract Act, 1872, lays down:

56. Agreement to do impossible act. – An agreement to do an act impossible in itself is void. – An agreement to do an act impossible in itself is void.” Contract to do act afterwards becoming impossible or unlawful.-A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.1 -A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful.2″ Compensation for loss through non-performance of act known to be impossible or unlawful.-Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise. -Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know, to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise.

Thus, Section 56 of the Contract Act provides for the doctrine of frustration.

The doctrine of frustration will apply if:

• The underlying event is not the fault of any party to the contract;

• The event or circumstance occurs after the formation of the contract and was not foreseen by the parties;

• It becomes physically or commercially impossible to fulfil the contract, or transforms the obligation to perform into a radically different obligation from that undertaken initially.

The doctrine of frustration results in the contract automatically coming to an end. The parties to the contract will no longer be bound to perform their future obligations. Because of the dramatic consequence’s contractual frustration, the threshold for proving frustration is much higher than that for most force majeure provisions, since it must be shown that the obligations impacted by the event or circumstance are fundamental to the contract.

Thus, it is apparent that at times even where both the parties to a contract have been ready and willing to perform their part of the contract, but because of some unforeseen reason, which is beyond their control, the contract becomes impossible to perform, and as a result gets frustrated.

However, the law envisages that in the case the contract cannot be performed, having become void, impossible or has become frustrated, then in such a situation, the advantages received by any party to the contract must be restored. This is a principle of equity and fair play.

Section 65 of the Indian Contract act which reads as under: –

Section 65 : Obligation of person who has received advantage under void agreement, or contract that becomes void – When an agreement is discovered to be void, or when a contract becomes void, any person who has received any advantage under such agreement or contract is bound to restore, it, or to make compensation for it, to the person from whom he received it.

The above provision is based on the principle of equity and fair play, and to avoid undue enrichment, and is well elucidated in the English case, Fibrosa Spolka v. Fairbairn Lawson 1943 AC 32.

This case may be explained as follows:

The respondent contracted with the appellant, a Polish company, to manufacture certain machinery and deliver it to Gdynia. Part of the price was to be paid in advance, and the appellant accordingly paid Rs. 1000. The contract was frustrated by the occupation of Gdynia by hostile German forces in September 1939. The appellant thereupon requested the return of the Rs. 1000. This amount was not returned only because considerable work had already been put into construction of the machinery.

The amount recovered in the above case is to be construed, not as an action on the contract, but an action in restitution to recover the money paid on a consideration which had failed. Further, the term consideration as used in the above sentence is to be construed, not in the sense of consideration as may be necessary to the formation of the contract, but rather in the sense of the performance of an obligation already incurred. Therefore, the essence of Section 65 may be captured in that a party who has paid money but has received no part of the bargained – for performance, is entitled to recover it, for the consideration has completely failed.

There may be another set of circumstances where though the parties to an agreement or contract have entered into a valid agreement, and have fixed a target date to complete that contract, but one of the parties to the contract becomes dishonest, or has no means to fulfil the promise so made, or maybe is not ready or willing to perform his part, in all such circumstances the contract can be enforced for its due performance through the process of court, as is so defined under Section 2(h) of the Indian contract act that “An agreement enforceable by law is a contract”.

Under such circumstances, where there is a breach by a party to a contract and the other party wants its enforcement in a court of law, then a suit can be filed under the provisions of Specific Relief Act, 1963, claiming Specific Performance of the contract. Specific performance is an equitable remedy in the law of contract, whereby a court issues an order requiring a party to perform a specific act, such as to complete performance of the contract.

Section 16 of the Specific Relief Act reads as:

16. Personal bars to relief:

Specific performance of a contract cannot be enforced in favour of person–

(a) who has obtained substituted performance of contract under section 20; or

(b) who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or

(c) who fails to prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms of the performance of which has been prevented or waived by the defendant.

Explanation–For the purposes of clause (c)-

(i) where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;

(ii) the plaintiff must prove performance of, or readiness and willingness to perform, the contract according to its true construction.

Thus, a suit for specific performance can be filed by any party, in a court of competent jurisdiction, who has suffered loss due to breach or non-performance of contract on part of the other party to the contract. The relief so claimed by a party, who has suffered a breach, was considered to be a discretionary relief, as provided under section 20(1) of the Specific Relief Act. However, enforceability of a contract was always considered as an alternative to awarding damages, and was classed as an equitable remedy, commonly used in the form of injunctive relief, concerning confidential information or real property.

It may well be noted that with the amendment of 2018 in Section 10 of the Specific Relief Act, the court’s discretion to order specific performance has been taken away, and now the courts must enforce the specific performance of the contract. Thus, the court shall now provide for the specific performance of the contract subject to the amended provisions of Section 11(2), Section 14 and 16. The amended section 10 reads as under: –

10. Specific performance in respect of contracts-The specific performance of a contract shall be enforced by the court subject to the provisions contained in sub-section (2) of section 11, section 14 and section 16.

The old unamended Section 10 of the Act used the phrase “may, in the discretion of the court”. It is clear from these words that the intention of the legislature at the time of the original enactment of the Act was to give a discretion to courts in deciding to direct or to not direct specific performance of a contract. This discretion existed even when a contract satisfied the conditions that: –

The actual damage due to non-performance was unascertainable or

The compensation in money for non-performance would not afford adequate relief.

Further the explanation to the unamended section 10 gave the court a power of presumption, unless and until the contrary was proved.

• The courts had to presume vide explanation (i) to Section 10, in the cases of contract to transfer immovable properties, that the breach cannot be adequately relieved by compensation in money.

• The courts also had to presume vide explanation (ii), that in a case of transfer of movable properties, the breach can be relieved by compensation in money except in cases where the property is not an ordinary one or is of special value or interest to the plaintiff or consists of goods not easily obtainable,

• The said presumption also existed where the property is held by defendant as the agent or trustee of the plaintiff

Thus, relief of specific performance was granted only in some circumstances as a discretion of the court and the same was never an absolute rule. The discretionary nature of remedy created uncertainty and the grant of the relief was not uniform. The Courts were not bound to grant relief of specific performance merely because it was lawful to do so, and had a right to exercise its discretion owing to hardship, escalation of prices, grant of alternate relief and various other factors.

The Amendment in section 10 has entirely removed the concept of the court’s discretionary powers in granting relief of specific performance. In the amended Section 10, it is now clear that specific performance of a contract shall be enforced by the court subject to the limited grounds of refusal defined in the statute. With the amendment, specific performance now must be granted by courts unless the claim for relief is barred under limited grounds prescribed in the statute. Thus, specific performance of a contract has now been made a general rule and not a discretion as it used to be. However, the same is subject to the provisions of section 11(2), section 14 and 16. The Amendment has changed the nature of this specific relief from an equitable, discretionary remedy to a statutory remedy.

The said Act No. 18 of 2018 also amended the provisions of Section 14 of the Act which specifies the contracts which are not specifically enforceable. The old Section 14 is now substituted by the new one which specifically states the following category of contracts are not specifically enforceable: –

• Where a party to the contract has obtained substituted performance of a contract in accordance with the provisions of Section 20, or

• where the performance involves the performance of a continuous duty which the courts cannot supervise; or

• where a contract is dependent on the personal qualifications of parties that the court cannot enforce specific performance of its material terms; and

• where a contract in its nature is determinable.

As discussed above the said rule of specific performance is subject to the provisions of section 11(2), section 14 and 16.

It may further be noted that Section 16(c) of the Act put the onus of proof on the plaintiff to prove by way of evidence, that he had performed his part of contract or was willing to perform his part of contract. Clause (c) emphasizes the phrase `ready and willing’. It is the most important pre-requisite on the part of the plaintiff to file a suit for specific performance. This clause provides that the person seeking specific performance must prove that he has performed or has been ready and willing to perform the essential terms of the contract, which are to be performed by him.

These two words ‘readiness and willingness‘ are sometimes treated as synonymous, and are treated to have almost the same sense or meaning, but there is a clear-cut distinction between the two. While ‘willingness’ is merely a mental process, ‘readiness’ is something to do with translating that will into action, and is preceded by necessary preparation for being in a position to be ready. The words readiness and willingness, though often clubbed and termed together, are in-fact two different words, having entirely different requirements and parameters. In other words, we can say that while ‘willingness’ may he something to do mainly with a person’s mental process to do an act, his readiness implies a close proximity of such willingness and its ultimate physical manifestation. ‘Readiness’ must in all cases be backed by ‘willingness’, and its imminent physical action is demonstrated when it is about to be put into action. Time lag between the two may sometimes be very short, may even be negligible, but it must always be preceded by an intention or a will to do. In short, ‘readiness’ must be said to be the total equipment of a person who is willing to do a thing before he actually does it.

According to Bouvier’s Law Dictionary, IIIrd Revision, the expression ‘ready and willing‘ has been defined as “implies capacity to act as well as disposition.”

In Stroud Dictionary, the said expression is defined as under: “It implies not only the disposition but the capacity to do the act.”

In Webster Dictionary page 796, ‘ready‘ is defined as “prompt in performance or action” and ‘willing’ at page 1138 is defined as “having the mind inclined not averse, desirous, ready, relating to or pertaining to power or process of choice, volitional”

Corpus Juris Secundum defines the word “ready” as “variously defined as meaning prepared for what one is about to do or experience; prepared for immediate movement or action; causing no delay for lack of being prepared; equipped or supplied with what is needed for some act or event, inclined or willing.” It also mentions that ‘ready’ has been held to be synonymous with ‘prompt’ ‘Willing’ has been defined as “desirous, inclined or favourably disposed in mind; Ready; it has been compared with ‘justified.” `Willingness‘, according to Corpus Juris Secundum, “Signifies a mental state and may be evidenced by consent.”

There may be cases, where though a person may be willing, yet may not be able to do, or in a capacity to do, what he wills. He cannot be said to be ready to do it. In other cases, the person may possess all that is necessary to do an act. He may be ready, but if the will to do is not there, his willingness will be lacking. One cannot remain unaware of such cases, in which the plaintiff may go on demanding performance of the contract for keeping the agreement alive, yet really speaking he does not intend to pursue the matter, but only wants to keep it alive for some ulterior motives. Since while granting specific performance the Court acts in equity, it becomes necessary that a high standard of equitable conduct must be displayed by the plaintiff. It is for this reason that a rigor of this kind has been provided in Section 16. It is primarily to eliminate any element of fraud and risk of a party taking undue advantage of the other that the discretion to grant a decree of specific performance has still been left with the Court.

Many judicial decisions have dealt with the concept of readiness and willingness, but no strait jacket formula is available, and readiness and willingness in each case depend on its own facts. The Supreme Court of India in His Holiness Acharya Swami Ganesh Dass ji v. Sita Ram Thapar 1996 (4) SCC 526, drew a distinction between readiness to perform the contract and willingness to perform the contract. It was observed that by readiness it may be meant the capacity of the plaintiff to perform the contract which would include the financial position to pay the purchase price. However, as far as the willingness to perform the contract is concerned, conduct of the plaintiff has to be properly scrutinized, along with other attendant circumstances. The factum of readiness and willingness to perform plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances.

It was held by a Division Bench of Delhi High Court in Raj Rani Bhasin And Ors. v. S. Kartar Singh Mehta AIR 1975 Del. 137:

“10 A distinction may be drawn between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract. This includes his financial ability to pay the purchase price. We will assume for the sake of argument that the plaintiff respondent could have raised the money to pay the purchase price if he wanted to do so. But the more important question is whether he was willing to perform his part of the contract even if ‘he had the financial capacity to do so. It is here that the plaintiff’s conduct has to be properly scrutinised. In our view, the trial Court has not done so. It has merely concentrated its attention on the financial ability of the plaintiff to raise the money to pay the purchase price but has not noticed the unwillingness of the plaintiff to perform his part of the contract and to present a sale deed on stamp paper for the execution of the defendants and to pay the purchase price from 16-8-1962 to 16-9-1962………..”

In M/s J.P. Builders and another v. A. Ramadas Rao and another 2011 (1) RCR (Civil) 604, further reasserting the distinction between the two words it was held by the Supreme Court:

“The words “ready” and “willing” imply that the person was prepared to carry out the terms of the contact. The distinction between “readiness” and “willingness” is that the former refers to financial capacity and the latter to the conduct of the plaintiff wanting performance. Generally, readiness is backed by willingness.

Relying upon its earlier decision, it was again asserted by the Supreme Court in Kalawati (D) v. Rakesh Kumar 2018 AIR (SC) 960:

“There is a distinction between readiness to perform the contract and willingness to perform the contract. By readiness may be meant the capacity of the plaintiff to perform the contract which includes his financial position to pay the purchase price. For determining his willingness to perform his part of the contract, the conduct has to be properly scrutinised….. The factum of readiness and willingness to perform plaintiff’s part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract. The facts of this case would amply demonstrate that the petitioner/plaintiff was not ready nor had the capacity to perform his part of the contract as he had no financial capacity to pay the consideration in cash as contracted and intended to bide for the time which disentitles him as time is of the essence of the contract.”

“45……Further, the plaintiff is required to prove the fact that right from the date of execution of the agreement of sale till the date of passing the decree he must prove that he is ready and has always been willing to perform his part of the contract as per the agreement…”

Thus, it is apparent that for a person to seek specific performance for the breach of his contract, he must establish that the contract was a valid and legally enforceable contract and that he has not only been ready but also willing throughout to perform his part of the contractual obligations.

Though a sub clause (i) to explanation of section 16 (c) of Specific Relief Act clearly provides that where the contract involves payment of money, it shall not be essential for the plaintiff to tender the same in the court or to the defendant as was held in Sukhbir Singh v. Brij Pal Singh (1997) 2 SCC 200. However, taking a different view It was held in Vijay Kumar & Ors. v. Om Parkash, AIR 2018 SC 5098:

7.”……………………… As rightly pointed out by the Trial Court, the respondent-plaintiff could not produce any document to show that he had the amount of L 22,00,000 (Rupees Twenty Two Lakhs) with him on the relevant date; nor was he able to name the friends from whom he raised money or was able to raise the money. Further more, as rightly pointed out by the Trial Court, the respondent-plaintiff could have placed on record his Accounts Book, Pass Book or the Statement of Accounts or any other negotiable instrument to establish that he had the money with him at the relevant point of time to perform his part of the contract. We are, therefore, in agreement with the view taken by the Trial Court that the respondent-plaintiff has not been able to prove his readiness and willingness on his part.

8. The relief for specific performance is purely discretionary. Though the respondent-plaintiff has alleged that he was ready and willing to perform his part of the contract, the First Appellate Court ought to have examined first whether the respondent-plaintiff was able to show his capacity to pay the balance money. In our considered view, the First Appellate Court as well as the High Court has not properly appreciated the evidence and the conduct of the parties. The First Appellate Court as well as the High Court, in our view, was not right in reversing the judgment of the Trial Court and the impugned order cannot be sustained and liable to be set aside.”

It was further held in Ritu Saxena v. J.S. Grover & Anr. 2019 (4) RCR (C) 540:

15.”………………………………Such self-serving statements without any proof of financial resources cannot be relied upon to return a finding that the appellant was ready and willing to perform her part of the contract. The appellant has not produced any income tax record or the bank statement in support of her plea of financial capacity so as to be ready and willing to perform the contract. Therefore, mere fact that the bank has assessed the financial capacity of the appellant while granting loan earlier in respect of another property is not sufficient to discharge of proof of financial capacity in the facts of the present case to hold that the appellant was ready and willing to perform her part of the contract. Such is the finding recorded by both the courts below as well”

It was also held by the Supreme Court in Madhukar Nivrutti Jagtap & Ors. v. Smt. Pramilabai Chandulal Parandekar & Ors 2019 (4) RCR (C) 114:

13.2 “…………………… The question as to whether the plaintiff seeking specific performance has been ready and willing to perform his part of the contract is required to be examined with reference to all the facts and the surrounding factors of the given case. The requirement is not that the plaintiff should continuously approach the defendant with payment or make incessant requests for performance. For the relief of specific performance, which is essentially a species of equity but has got statutory recognition in terms of the Specific Relief Act, 1963[5*], the plaintiff must be found standing with the contract and the plaintiff’s conduct should not be carrying any such blameworthiness so as to be considered inequitable. The requirement of readiness and willingness of the plaintiff is not theoretical in nature but is essentially a question of fact, which needs to be determined with reference to the pleadings and evidence of parties as also to all the material circumstances having bearing on the conduct of parties, the plaintiff in particular………….”

While examining a case of Specific Performance of a Contract, the Apex Court, has laid down the parameters in which circumstances the relief of specific performance can be granted. In Kamal Kumar v. Prem Lata Joshi 2019 (1) RCR (C) 576, it was held:

10. “It is a settled principle of law that, the grant of relief of specific performance is a discretionary and equitable relief. The material questions, which are required to be gone into for grant of the relief of specific performance, are First, whether there exists a valid and concluded contract between the parties for sale/purchase of the suit property; Second, whether the Plaintiff has been ready and willing to perform his part of contract and whether he is still ready and willing to perform his part as mentioned in the contract; Third, whether the Plaintiff has, in fact, performed his part of the contract and, if so, how and to what extent and in what manner he has performed and whether such performance was in conformity with the terms of the contract; Fourth, whether it will be equitable to grant the relief of specific performance to the Plaintiff against the Defendant in relation to suit property or it will cause any kind of hardship to the Defendant and, if so, how and in what manner and the extent if such relief is eventually granted to the Plaintiff; and lastly, whether the Plaintiff is entitled for grant of any other alternative relief, namely, refund of earnest money etc. and, if so, on what grounds.( Emphasis supplied by the writer )

11. The aforementioned questions are part of the statutory requirements. These requirements have to be properly pleaded by the parties in their respective pleadings and proved with the aid of evidence in accordance with law. It is only then the Court is entitled to exercise its discretion and accordingly grant or refuse the relief of specific performance depending upon the case made out by the parties on facts”

Thus it is apparent from the above mentioned judicial pronouncements that readiness and willingness are two separate requirements, which have to be fulfilled by anyone seeking a discretionary relief of Specific Performance of his contract, and though both these phrases are used together, and are even inter mingled and sound synonymous, yet they are entirely different, always supplementing and complimenting each other.

The said requirements of readiness and willingness, as already discussed above, are like a backbone of the contract enforceability, and not only has to be proved once or at one stage, but has to be pleaded and proved throughout, from the date of the agreement to the accumulation of a same into a decree. A single default can change the fate of the case, whereby the discretion can be exercised by the court for refund of earnest money, or damages or simpliciter dismissal of the suit. Thus, based of the legal maxim that “he who seeks equity must do equity”, it can very well be said that readiness and willingness both must go hand in hand, and a single default on either side can result into fatality of the contract resulting in the failure of enforcement of the rule of specific performance.

Thus, it will be just apt to conclude by saying that “The readiness of doing doth expresse, No other but the doer’s willingnesse” – Robert Herrick.

(The author of this article is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only. The research conducted while writing this article was done with the help of Aarushi Mittal, a student of +2 whose hard work and inputs have really helped to write this article.)

Where there is a will, there are relatives

A Will or testament is a legal document that expresses a person’s (testator) wishes as to how their property (estate) is to be distributed after their death and as to which person (executor) is to manage the property until its final distribution. It is an instrument in which a person specifies his intention and desire to be applied in the management and distribution of his estate after his death. At Common Law, an instrument disposing of Personal Property was called a “testament,” whereas a Will disposed of real property. Over time the distinction has disappeared so that a Will, sometimes called a “last will and testament,” disposes of both real and personal property.

The term Will has been defined in Blacks Dictionary as – “The legal expression of an individual’s wishes about the disposition of his or her property after death; esp., a document by which a person directs his or her estate to be distributed upon death”. Collins Dictionary explains – “Will as the declaration of a person’s wishes regarding the disposal of his or her property after death”. Webster Dictionary defines it as – “a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death especially: a written instrument legally executed by which a person makes disposition of his or her estate to take effect after death”.

Thus, a Will is an instrument which leaves the estate of the person, who signed the Will, to named persons or entities (beneficiaries, heirs, legatees), including portions or percentages of the estate, specific gifts, creation of trusts for management and future distribution of all or any portion of the estate.

Though it has, at times, been thought that a “Will” historically applied only to the real property, while “Testament” applied only to the personal property, (thus giving rise to the popular title of the document as “last Will and Testament”), however over the times, the terms have been used interchangeably. Thus, the word “Will” validly applies to both the personal and the real property.

Throughout most of the world, disposal of an estate, of a deceased has been a matter of social custom, but originally, it was a device intended solely for men who died without an heir i.e. intestate. The English phrase “Will and Testament” is derived from a period in English law, when Old English and French laws were used side by side, for maximum clarity.

Under the Indian Succession Act 1925, a Will is a legal declaration of the intention of the testator, with respect to his property which he desires to be carried into effect after his death. After the death of a person, his property devolves in two ways – according to his Will i.e. testamentary, or according to the respective laws of succession, when no Will is made. In case an individual dies intestate (no Will is made), the laws of succession come into play.

The testamentary succession is governed as per provisions of the Indian Succession Act, 1925, even in case of Hindus. However, the rules relating to the intestate succession, even for Hindus, are applicable as per the Hindu Succession Act, 1956.

It may also be mentioned that in the case of Muslims, the Indian Succession Act, 1925 is not applicable, to both the testamentary and intestate succession, as in their case, the succession is on the basis of the Uncodified law, which is based on Quran and other applicable laws and customs.

A Will serves a variety of important purposes. It enables a person to select his heirs, rather than allowing the State laws of descent and distribution to choose the heirs, who, although blood relatives, might be people the testator dislikes, or with whom he is unacquainted, or in some circumstances, where the property remains unclaimed, for want of any heirs, the same is taken over by the State as escheat. It also allows a person to decide which individual could best serve as the executor of his estate, distributing the property fairly to the beneficiaries while protecting their interests, rather than allowing a court to appoint a stranger to serve as administrator.

A valid Will cannot exist unless three essential elements are present. First, there must be a competent testator; Second, the document purporting to be a Will must be the honest expression of the testator’s intention; Third, it must be clear that the testator intended the document to have the legal effect of a Will and be acted upon after as such after his death.

Under Section 18 of the Registration Act, 1908, the registration of a Will is not compulsory, and merely because of non-registration of the Will an inference cannot be drawn against its genuineness or validity. However, once a Will is registered, it forms a strong legal evidence that the proper parties had appeared before the registering officers, and the latter had attested the same after being satisfied of its registration procedure. Though the Will can also be registered after the death of the testator under section 40 of the Registration Act, but the same shall not add any useful benefit for the purpose of proving its due execution and authenticity.

In general, a Will made by the testator can be revoked at any time during his lifetime, and testator can even choose to make any alteration or make any other person as his legatee. There may be instances where a testator wishes to carry out some alterations in the Will, then he can make the required and necessary amendments in the prepared Will. The subsequent/supplementary document so prepared is known as a Codicil. A person, as the testator, has power to make instrument of Will, repeatedly and unenumerable times, revoking the earlier Will or changing the beneficiaries, or making any type of amendments therein, but it is always the last Will of testator which would prevail.

The Will, unlike any other document, is enforceable only after the death of the testator. Therefore, it is popularly called that the Will is the only document that speaks from the grave of the testator and where the person who intends to distribute his blessings and assets in a particular way is not there to endorse and prove the same. Accordingly, the existence, the due execution and validity of the Will is gathered from the circumstances. The initial burden to prove all these essentials with regard to due execution of a Will rests upon the person who propounds the same.

The party propounding a Will, or otherwise making a claim under a Will, is no doubt seeking to prove a document, and that too when the executor of the same is no more ,thus in proving the same , the relevant statutory provisions of Indian Succession Act ,1925, and Indian Evidence Act, become operative.

According to the Indian Succession Act, there are basically two types of Will. Privileged Will and Unprivileged Will. Privileged Wills are those that can be made by members of the armed forces employed in an expedition or engaged in actual warfare, and can be made in oral form as well. Unprivileged Wills are the Wills that can be created by every person, other than those who can create a Privileged Will.

The Relevant Law.

Section 63 in The Indian Succession Act, 1925.

63 Execution of unprivileged Wills.- Every testator, not being a soldier employed in an expedition or engaged in actual warfare, 12 [or an airman so employed or engaged,] or a mariner at sea, shall execute his Will according to the following rules: –

(a) The testator shall sign or shall affix his mark to the Will, or it shall be signed by some other person in his presence and by his direction.

(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a Will.

(c) The Will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the Will or has seen some other person sign the Will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgement of his signature or mark, or the signature of such other person; and each of the witnesses shall sign the Will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.

Section 68 of The Indian Evidence Act, 1872.

Section 68– Proof of execution of document required by law to be attested.-If a document is required by law to be attested, it shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution, if there be an attesting witness alive, and subject to the process of the Court and capable of giving evidence: Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a Will, which has been registered in accordance with the provisions of the Indian Registration Act, 1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

Though the provisions relating to the execution of a Will appear to be very simple, yet all the ingredients are required to be strictly proved, by dispelling all the suspicious circumstances, that may prick the conscious of the court. Unlike other documents the Will speaks from the death of the testator, and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and testament of the departed testator.

The following are the requisite and necessary factors, which have to be kept in mind while ascertaining, the due execution and validity of a Will.

• According to Section 63 of the Indian Succession Act, a Will needs to be attested by two or more witnesses, each of whom must have seen the testator sign or affix his mark to the `Will‘ and further, each of the witnesses to the `Will‘ should have signed the `Will‘ with the requisite Animus Attestandi.

• Likewise, according to Section 68 of Indian Evidence Act, a document required by law to be attested has to be proved by calling for the purpose of proving its execution at least one attesting witness. Thus, is it incumbent that:

• The Propounder of the `Will‘ has to prove that the `Will‘ was signed by the testator in the presence of two attesting witnesses;

• The attesting witnesses should have seen the testator sign the `Will‘ or else, the attesting witnesses should depose that they were told by the testator that the `Will‘ is that of the testator and the testator had signed the `Will‘; and,

• It is not necessary that both or all the attesting witnesses to the `Will‘ must be examined to prove the `Will‘, but, at least one attesting witness should be called to prove the due execution of the `Will‘.

Whether a particular `Will‘ is surrounded by suspicious circumstances or not is a question of fact, and depends upon the facts and circumstances of each case. Where the execution of a `Will‘ appears to be surrounded by suspicious circumstances, the Propounder has to explain all these circumstances, and has to remove the suspicion in the mind of the Court, in order to satisfy its conscience.

A thumb mark of the testator instead of his usual signature, a feeble mind, proof of his being a person of an unsound mind, undue influence upon the testator at the time of execution, an unfair and unjust disposition of property, apart from the propounder himself taking a leading part in the execution of the `Will‘, under which he himself is a beneficiary, may be termed as some of the suspicious circumstances. All the suspicious circumstances, in due execution of the `Will‘ have to be removed by the propounder of the `Will,’ before the same can be accepted as legal and valid and be acted upon. Once the propounder is able to dispel all the suspicious circumstances, the onus of the same shifts upon the other party asserting it to be so, and challenging the execution thereof.

A Constitution Bench of the Supreme Court in Shashi Kumar Banerjee and others v. Subodh Kumar Banerjee since deceased and others AIR 1964 SC 529 has held:

“The principles which govern the proving of a will are well settled; (see H. Venkatachala Iyengar v. B.N. Thimmajamma, 1959 Supp (1) SCR 426 and Rani Purniama Devi v. Khagendra Narayan Dev, (1962) 3 SCR 195. The mode of proving a will does not ordinarily differ from that of proving any other document except as to the special requirement of attestation prescribed in the case of a will by Section 63 of the Indian Succession Act. The onus of proving the will is on the propounder and in the absence of suspicious circumstances surrounding the execution of the will, proof of testamentary capacity and the signature of the testator as required by law is sufficient to discharge the onus. Where however there are suspicious circumstances, the onus is on the propounder to explain them to the satisfaction of the Court before the Court accepts the will as genuine. Where the caveator alleges undue influence, fraud and coercion, the onus is on him to prove the same. Even where there are no such pleas but the circumstances give rise to doubts, it is for the propounder to satisfy the conscience of the Court. The suspicious circumstances may be as to genuineness of the signature of the testator, the condition of the testator’s mind, the dispositions made in the will being unnatural improbable or unfair in the light of relevant circumstances or there might be other indication in the will to show that the testator’s mind was not free. In such a case the Court would naturally expect that all legitimate suspicion should be completely removed before the document is accepted as the last will of the testator. If the propounder himself takes part in the execution of the will which confers a substantial benefit on him, that is also a circumstance to be taken into account, and the propounder is required to remove the doubts by clear and satisfactory evidence. If the propounder succeeds in removing the suspicious circumstances the Court would grant probate, even if the will might be unnatural and might cut off wholly or in part near relations. It is in the light of these settled principles that we have to consider whether the appellants have succeeded in establishing that the will was duly executed and attested.”

Again, in Gorantla Thataiah v. Thotakura Venkata Subbaiah and others in 1968 AIR SC 1332 the Supreme Court reiterated the rule as laid down in Fulton v. Andrew, (1875) 7 HL 448 whereby it was held that “those who take a benefit under a will, and have been instrumental in preparing or obtaining it, have thrown upon them the onus of showing the righteousness of the transaction”. It was held that:

“There is however no unyielding rule of law (especially where the ingredient of fraud enters into the case) that, when it has been proved that a testator, competent in mind, has had a will read over to him, and has thereupon executed it, all further enquiry is shut out”. In this case, the Lord Chancellor, Lord Cairns, has cited with approval the well-known observations of Baron Parke in the case of Barry v. Butlin, (1838) 2 Moo PC 480 at p. 482. The two rules of law set out by Baron Parke are: “first, that the onus probandi lies in every case upon the party propounding a will; and he must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator”; “the second is, that, if a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court and calls upon it to be vigilant and zealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed, and it is judicially satisfied that the paper propounded does express the true will of the deceased.”

Further in Janki Narayan Bhoir v. Narayan Namdeo Kadam 2003 RCR (1)(Civil) 409 Supreme Court held that, Section 68 of the Indian evidence act necessitates that a document in the shape of a “Will‘ which is required by law to be attested shall not be used as evidence, until and unless, at least one attesting witness to that document has been called in evidence for the purpose of proving its execution. Thus, according to the mandate of Section 68, if there is an attesting witness to a document, alive and capable of giving evidence, then that attesting witness, subject to the process of the court, has to be necessarily examined before the document required by law to be attested can be used as evidence. Where one attesting witness examined to prove the Will under Section 68 of the Evidence Act fails to prove the due execution of the Will, then the other available attesting witness has to be called to supplement his evidence to make it complete in all respects. Where one attesting witness is examined and he fails to prove the attestation of the Will by the other witness, there will be deficiency in meeting the mandatory requirements of Section 68 of the Evidence Act.

It was further held in Ganesan (D) Through Lrs. v. Kalanjiam and Others 2019(3) RCR (Civil) 843:

“5. The appeals raise a pure question of law with regard to the interpretation of Section 63 (c) of the Act. The signature of the testator on the will is undisputed. section 63 (c) of the Succession Act requires an acknowledgement of execution by the testator followed by the attestation of the Will in his presence. The provision gives certain alternatives and it is sufficient if conformity to one of the alternatives is proved. The acknowledgement may assume the form of express words or conduct or both, provided they unequivocally prove an acknowledgement on part of the testator. Where a testator asks a person to attest his Will, it is a reasonable inference that he was admitting that the Will had been executed by him. There is no express prescription in the statute that the testator must necessarily sign the will in presence of the attesting witnesses only or that the two attesting witnesses must put their signatures on the will simultaneously at the same time in presence of each other and the testator. Both the attesting witnesses deposed that the testator came to them individually with his own signed Will, read it out to them after which they attested the Will.”

Thus, what may constitute to be a valid Will depends upon the facts and circumstances of each case and evidence led in the matter. It is sine qua non for the propounder of the Will to show, by way of satisfactory evidence that the Will was signed by the testator; and at that time he was in as sound and disposing state of mind; that he understood the nature and effect of disposition; and had put his signature to the document of his own free volition. If the Will is surrounded by suspicious circumstances, such as the alleged signature on the Will by the testator may be shaky and doubtful or indications that the testator’s mind may appear to be very feeble or the testator may appear to be not of fully sound disposing mind, in that circumstance, the propounder will be called upon to dispel all the suspicious circumstances.

However, what may be a suspicious circumstance in one case may not be so in the other case. Each situation depends on the facts and circumstances of its own case. Disinheritance of natural heir, unequal distribution of assets, love and affection may be asserted as some more suspicious circumstances, but then the fact remains that the very purpose of `Will‘ is to change the natural line of succession. Thus, the mere fact that natural heirs are not given anything in the Will, or there is an unequal distribution of the assets among the heirs or siblings, would not de-facto make the same as a suspicious or an invalid and unenforceable document. The person challenging the same has to duly prove and show it to be surrounded by suspicious circumstances, that are enough to discard its authenticity.

The circumstances may so arise where a Will so propounded has not been used on purpose, or was not within the knowledge of the propounder or has not seen the light of the day for a period of more than 30 years for any reason, whether in these circumstances the propounder can be allowed to take an advantage of section 90 of the Indian evidence act to say that since it’s a 30-year-old document and therefore it is authentic. The answer to such a question is `No’ as such a presumption shall not apply in the case of a Will as was so held so in 2020 (1) CCC 513.

A Will so executed by the testator is liable to be revoked or altered anytime, till the time the executant is alive and is competent to dispose of his property. A testator who wishes to revoke his original Will, which is executed by him on a particular date, can do so by revoking the Will himself, by merely writing a subsequent Will, or alter the same by writing a Codicil, duly executed, and even by destruction of the previous Will. However as has been stated in the preceding paragraphs only the last Will of the testator would be treated as operative.

At this stage, it may also be pertinent to mention a few words about another form of Will -Holographic Will. A holographic Will is a Will and testament, which is a holographic document, i.e., it has been entirely handwritten and signed by testator. Although the probity and authenticity of such a handwritten Will, himself by the testator is of course on a much higher pedestal, but like any other Will, even in case of a holographic Will, it has to be proved that:

• There must be evidence that the testator actually created the Will, which can be proved through the statements of witnesses, handwriting experts, or other methods.

• The testator must have had the intellectual capacity to write the Will, although there is a presumption that a testator had such capacity unless there is evidence to the contrary.

• The testator must be expressing a wish to direct the distribution of his or her estate to beneficiaries.

However, we must hasten to add that the statutory requirements, stipulated under Section 63 of the Indian Succession act and also Section 68 of the Indian Evidence Act, have to be fully and duly complied with, even in case of a holographic Will, before it can be acted upon.

In this context it would be relevant to notice a few observations made by the Apex Court in the case of Mrs. Joyce Primrose Prestor (Nee Vas) v. Miss Vera Marie Vas & Ors, JT 1996 (4), 333:

12. while the presumption in the case of ordinary Wills is as stated above, in the case of “holograph Wills“, the presumption is all the more – a greater presumption. Ex.P-1 is a “holograph will”. It is one which is wholly in the handwriting of the testator. The Calcutta High Court in Ajit Chandra Majumdar v. Akhil Chandra Majumdar (AIR 1960 Cal. 551 at P. 552) stated about such a Will, thus: –

“The whole of this Will was written in the hand by the testator himself in English. The handwriting is clear and firm. The law makes a great presumption in favour of the genuineness of holograph will for the very good reason that the mind of the testator in physically writing out his own will is more apparent in holograph will than where his signature alone appears to either a typed script or to a script written by somebody else.”

Further, it would be appropriate to notice that although, it is the general principle of law of Wills that the testator can not impose conditions or restrictions in the Will at the time of execution of the document, and any such conditions or covenants shall be treated to be a nullity, as taken in the totality of the document, yet there may be some circumstances where a covenant is included at the time of execution of the Will.

In Mohammad Raza and others v. Mt. Abbas Bandi Bibi AIR 1932 Privy Council 158 the Privy Council confirmed the judgment of the Chief Court of Oudh which had ruled that when a person is allowed to take property under a conditional family arrangement, he cannot be heard to complain against the restriction on alienation of the property outside the family.

It may also be pertinent to refer to a relevant portion of Sections 131 and 138 of The Indian Succession Act:

“Section 131. “Bequest over, conditional upon happening or not happening of specified uncertain event.

(1) A bequest may be made to any person with the condition superadded that, in case a specified uncertain event shall happen, the thing bequeathed shall go to another person, or that in case a specified uncertain event shall not happen, the thing bequeathed shall go over to another person”

“Section 138: Direction that fund be employed in particular manner following absolute bequest of same to or for benefit of any person– Where a fund is bequeathed absolutely to or for the benefit of any person, but the Will contains a direction that it shall be applied or enjoyed in a particular manner, the legatee shall be entitled to receive the fund as if the Will had contained no such direction”

Laying the distinction between the two provisions it was held in Suresh Chand Mathur v. Harish Chand Mathur 2010 (30) RCR (Civil) 478 (Delhi)

“This section (Section 131) deals with a defeasance clause, whereas Section 138 of the Act deals with a repugnant clause. The distinction behind a repugnant provision and a defeasance provision is that where the intention of the Testator is to maintain an absolute estate conferred on the legatee, but he simply adds some restriction, in derogation of incidents of such absolute ownership, such restrictive clause would be repugnant to the absolute grant and, therefore void, but, where the grant of an absolute estate is expressly or impliedly made subject to defeasance o the happening of a contingency and where the effect of such defeasance would not be a violation of any rule of law, the original estate is curtailed and the gift over is taken to be valid and operative. Section 138 thus provides for divestment of the estate which has already vested, but is subject to divested by some act or event at an after period. Of course, the defeasance must be in favour of somebody in existence at the time the bequest is made”

The Supreme Court in K. Naina Mohamed v. A.M. Vasudevan Chettiar 2010 (7) SCC 603, while examining the principles of English law on the issue of imposing a restriction on the Will, has held that the restriction which was meant to ensure that the property bequeathed by Smt. Ramakkal Ammal does not go into the hands of third party was perfectly valid and did not violate the rule against perpetuity evolved by the English Courts, or the one contained in Section 114 of the Indian Succession Act, 1925.

Further more, where a bequest is made to a person by a particular description, and there is no person in existence at time of the testator’s death, who answers that description, the bequest is void. S.113 of Indian Succession Act, 1925 provides that for a transfer to an unborn person, a prior interest for life has to be created in another person, and the bequest must comprise of whole of the remaining interest of the testator.

Thus what transpires from the above is that while the basic purpose of the Will is to honour the wishes of the deceased executor, with regard to his asset distribution, but what is most crucial of all is that the same have to be beyond all suspicious circumstances, with a clear intention of the executant, in a sound disposing mind. In order to constitute a sound disposing mind, a testator must not only be able to understand that he is, by his Will, giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his Will, he is excluding from all participation in that property. All this has to be done out of his free volition and without any influence and also without there being any element of fraud. There is one clearly distinguishing feature for the proof of Will than the other documents. As the Will, unlike other documents speaks from graveyard of the testator, and when the same is propounded or produced before the court, the testator has already departed from the world and has no comments to offer as to whether it is his duly executed Will, signed by him out of his own free volition and without any undue influence or not.

In a situation like this, it is for the court to prick its conscience to find out if the `Will‘ was executed willfully.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

In England and Wales, Ireland, New Zealand, Australia, South Africa, Bangladesh, India, Pakistan, Canada, Sri Lanka, and many other countries in the world, it is generally considered inappropriate to comment publicly on cases sub judice, which can be an offence in itself, leading to contempt of court proceedings. This is particularly true in criminal cases, where publicly discussing cases sub judice may constitute interference with due process of justice dispensation.

Ubi jus ibi remedium is another basic fundamental principle of English Common law which means wherever there is a right, there is a remedy. As a general rule any aggrieved person can file a suit under the Code of Civil Procedure, and legally there is no bar if the Plaintiff has a sustainable cause of action and the suit is filed at the appropriate place, according to Code of Civil Procedure. However, there are few types of suits that are exclusively barred under the provisions of Code of Civil Procedure.

With a large number of pending cases in all courts in all jurisprudences, and the inevitable delay in adjudication, (even the Indian judiciary is overburdened and resultantly there is a long delay in timely disposal of the cases), even in Common Law and various other Systems of adjudication, the principle of Res Sub-Judice evolved. Thus, a doctrine developed to the effect that when two suits, arising out of the same issues, between the same parties or persons claiming under any of them on the same title, are brought before the courts, the suit filed prior in time shall continue, and the proceedings in the later suit were to be stayed. This doctrine of res sub judice has been captured and statutorily incorporated in Section 10 of the Code of Civil Procedure, 1908.

Section 10 deals with Doctrine of Res Sub-Judice. `Res’ means a `matter or litigation’ and `Sub-Judice’ means `pending’ (under judgment). Conjoining the two, it implies that the rule of Res Sub-Judice relates to a matter which is pending judicial trial. In other words, this rule applies where a matter is already pending before a court of competent jurisdiction, for the purpose of adjudication, then under Section 10 of CPC, subsequent (later) civil suit on the same issue between the same parties has to be stayed.

The phrase Res Sub judice is derived from a Latin maxim which means the “under judgment”. The rule of sub judice is based on the public policy, which prohibits a party to the suit to file two parallel cases on the same subject matter and minimise the chances of having two contradictory judgments by the two courts. The purpose of the doctrine of Res Sub Judice is to prevent the multiplicity of the proceedings and to avoid two conflicting decisions. The doctrine bars the parallel trial of a suit, where the matter is pending adjudication in a former suit, but it does not restrict filling the subsequent suit. It is based upon the theory of “first past the post” which means that the one who approaches the court first gets to carry on his suit.

The object of the principle contained in Section 10 is to prevent courts of competent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations, in respect of the same cause of action, between the same parties, the same subject-matter and the same relief. The primary rule under stay of suit or rule of res sub-judice prevents the courts of concurrent jurisdiction from simultaneously adjudicating upon parallel litigation filed for the same cause of action, for the same matter and for the same relief. Thus, two suits between same parties, involving same subject?matter and same questions then the subsequent suit should be stayed.

The objective of law is to confine the parties to the suit to one litigation, thereby avoiding the unnecessary delay, wastage of time and resources, and further also minimising the possibility of two conflicting decisions with respect to the same cause of action. It also protects the litigants from unnecessary harassment, as was held in SPA Annamalay Chetty v. BA Thornlill AIR 1931 PC 263.

However, in order to fall within the parameters of section 10, it is essential that there must be two suits, not instituted simultaneously i.e. one should be instituted prior in time before a court of competent jurisdiction, and the other one should be subsequent in time. It is also a condition precedent that the two suits should be between the same parties, or between persons claiming under any of them under the same title, and the matter in issue of the two suits must be substantially the same. Whether the matter is directly or substantially the same in the previous suit or not, the primary test for the same is to imply as to whether a final decision in the previous suit would operate as res judicata in the subsequent suit.

Section 10 of the Code of Civil Procedure, 1908, reads as under:

10. Stay of suit :- No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in [India] having jurisdiction to grant the relief claimed, or in any Court beyond the limits of [India] established or continued by [the Central Government and having like jurisdiction, or before [the Supreme Court].

Explanation- The pendency of a suit in a foreign Court does not preclude the Courts in [India] from trying a suit founded on the same cause of action.

Therefore, the primary object of the doctrine of res sub judice is to prevent simultaneous proceedings on litigation of same issues in two courts and avoid litigation on the same cause of action on the basis of principles of res judicata. Technically speaking, section 10 applies to those litigations which come within the scope of section 9, read with section 26(2) of the Code. The doctrine of res sub judice only bars the `trial’ of the subsequent suit. In cases where the subsequent suit does not depend on a trial, for example a summary suit, such suits are not affected by the rule of res sub judice and need not be stayed. It may also be noted that the institution of the subsequent suit i.e. mere filing of the plaint is not barred, only the trial proceedings are barred under the rule of res sub judice, as was held in Indian Bank v. Maharashtra State Co-operative Marketing Federation Ltd., AIR 1998 (SC) 1952. It was observed by the Apex Court that Section 10 of the Code prohibits the court from proceeding with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit provided other conditions mentioned in the section are also satisfied.

The term `trial’ in Section 10 applies to all the proceedings in a civil suit. The language of section 10 suggests that it is referable to a suit instituted in the civil court, and cannot apply to the proceedings of any other nature, instituted under any other Statute, as was held in National Institute of Mental Health and Neuro-Sciences v. C. Parmeshwara, AIR 2005 SC 242. It was also held in Sennaji Kapuechand v. Pannaji Devichand, AIR 1922 Bom 276, that since only trial is stayed under section 10, any of the orders passed without there being a trial, such as attachment, injunction etc. are not affected by res sub judice. Therefore, the rule of res sub judice only bars the trial of the suit, and does not bar the courts from adjudicating upon interlocutory orders such as appointment of receiver, injunction or attachment. Thus, the subsequent suit, even when stayed under res sub judice, is not a dead suit as the court is empowered to adjudicate over interlocutory matters that don’t require trial. It was held by the Supreme Court:

“8. The object underlying Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits in respect of the -same matter in issue. The object underlying Section 10 is to avoid two parallel trials on the same issue by two Courts and to avoid recording of conflicting findings on issues which are directly and substantially in issue in previously instituted suit. The language of Section 10 suggests that it is referable to a suit instituted in the civil Court and it cannot apply to proceedings of other nature instituted under any other statute. The object of Section 10 is to prevent Courts of concurrent jurisdiction from simultaneously trying two parallel suits between the same parties in respect of the same matter in issue. The fundamental test to attract Section 10 is, whether on final decision being reached in the previous suit, such decision would operate as res-judicata in the subsequent suit. Section 10 applies only in cases where the whole of the subject matter in both the suits is identical. The key words in Section 10 are “the matter in issue is directly and substantially in issue” in the previous instituted suit. The words “directly and substantially in issue” are used in contra-distinction to the words “incidentally or collaterally in issue”. Therefore, Section 10 would apply only if there is identity of the matter in issue in both the suits, meaning thereby, that the whole of subject matter in both the proceedings is identical.“

(emphasis supplied by the writer)

The word `shall’, as used in the body of section 10, makes it mandatory for the court to stay the subsequently instituted suit, if it finds out that the conditions enumerated in Section 10 are satisfied. The test for invoking the provisions of section 10 to seek a stay of the suit is that whether the outcome of the prior litigation shall bind the parties for the same issue in a subsequent litigation, or in other words whether the decision in the prior suit on the said issue shall operate as res judicata in the subsequent suit.

It may now be relevant to discuss briefly the concept of Res Judicata, as it is not only one of the basic principles of law, but also one of the conditions precedent for invoking the power of the court to stay the proceedings of the subsequent suit under section 10.

Res Judicata, also known as claim preclusion, is the term for “a matter already judged”. It is based upon the Latin maxim “Res judicata pro veritate accipitur”.

It means that once the issue before a court has already been decided by another court, of competent jurisdiction, between the same parties, the subsequent court shall not re-adjudicate the same, and the earlier judgement shall have a binding effect on both the parties. It refers to two concepts, both in civil law and common law legal systems: a case in which there has been a final judgment that is not subject to appeal; the legal doctrine meant to bar (or preclude) relitigating of the claim between the same parties. The doctrine of res judicata is a principle of preventing injustice to the parties of a case supposedly finished; but perhaps also (or mostly) a way of avoiding unnecessary waste of resources in the court system. Res judicata does not merely prevent future judgments from contradicting earlier ones, but also prevents litigants from multiplying judgments, and confusion over a lis that already stands decided. Thus, when a case has already been decided and the final judgement in that the matter is no longer subject to appeal, the doctrine of res judicata bars or precludes continued or further litigation of such matter between the same parties.

The doctrine of Res Judicata is based upon three legal Maxims:

•Nemo debet bis vexari pro eadem causa – no man should be tried twice for the same cause;

•Interest rei publicae ut sit finis litium – it is in the interest of the State that there should be an end to a litigation;

•Re judicata pro veritate occipitur – a judicial decision must be accepted as correct.

Thus, In the case of res judicata, the matter cannot be raised again, either in the same court or in a different court. A court will use the principles of res judicata to deny reconsideration of the matter, and treat the earlier decision as binding. This also results in efficiency in the judicial system. The doctrine of Res Judicata may be direct or constructive and artificial. The rule of constructive res-judicata is engrafted in Explanation IV of Section 11 of the Code of Civil Procedure, and in many other situations also, principles not only of direct res-judicata but of constructive res-judicata are also applied. If by any judgment or order, any matter in issue has been directly and explicitly decided, the decision operates as res-judicata, and bars the trial of an identical issue in a subsequent proceeding between the same parties or persons claiming under them or any of them, through same title. The Principle of res judicata comes into play when in a judgment or order, a decision of a particular issue is implicit in it, that is, it must be deemed to have been necessarily decided by implications, even then the Principle of res judicata on that issue is directly attracted. When any matter which might and ought to have been made a ground of defence or attack in a former proceeding, but was not so made, then such a matter in the eye of law, to avoid multiplicity of litigation, and to bring about finality in it, is deemed to have been constructively in issue and, therefore, is taken as decided, as was held in AIR 1978 SC 1283.

Though both these doctrines of Res Sub Judice and Res Judicata are based upon the principles of Estoppel, that creates a check on frivolous subsequent litigation and lead to judicial efficiency, yet there is a stark difference between the two. While the principle of Res Sub Judice as laid in section 10 CPC, bars trial of a subsequent suit on an issue which is pending decision in a previously instituted suit and applies to a matter pending trial ,the doctrine of Res judicata as envisaged in section 11 CPC, bars the trial of a suit or an issue which has been decided and attained finality in a former suit, and always applies to a matter that has already been adjudicated upon by a court of competent jurisdiction. The general doctrine of res judicata is founded on considerations of high public policy that there must be a finality to litigation and the individuals should not be harassed twice over with the same kind of litigation. The doctrine of res sub judice or stay of suit as contained in Section 10 of the Code aims to prevent courts of concurrent jurisdiction from simultaneously trying two parallel suits, between the same parties or persons claiming under them, relating to same matter substantially in issue, and to avoid the conflicting decisions of two competent courts in respect of the same relief. Thus, the doctrine of res judicata is related to finality of judicial decisions, where as the principle of res sub judice avoids contradictory judgments of one or more courts in respect of the same matter in issue.

The litmus test to apply the principles of res sub judice, as discussed above, is that whether the issue involved in the litigation between the same parties and before a court of competent jurisdiction is directly and substantially the same as in the prior instituted pending suit.

The words “matter in issue” used in Section 10 do not mean that entire subject-matter of the subsequent suit and the previous suit must be the same, or that it must be identical. These words mean all disputed material questions in the subsequent suit which are directly and substantially in question in the previous suit. The word `directly’ means immediately, without intervention and `substantially’ implies essentially or materially. Thus, whenever the subject matter of a subsequent litigation is substantially similar to that of previously instituted suit, the court can invoke the provisions of section 10 CPC to stay the trial of the subsequent suit. It was held by the Supreme Court in Isher Singh v. Sarwan Singh and others 1962 AIR SC 948, that “the question whether a matter is “directly and substantially in issue” would depend upon whether a decision on such an issue, would materially affect the decision of the suit“.

It was also held in Aspi Jal and another v. Khushroo Rustom Dadyburjor 2013 (2) RCR (Civil )976 SC that:

“From a plain reading of the aforesaid provision, it is evident that where a suit is instituted in a Court to which provisions of the Code apply, it shall not proceed with the trial of another suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties. For application of the provisions of Section 10 of the Code, it is further required that the Court in which the previous suit is pending is competent to grant the relief claimed. The use of negative expression in Section 10, i.e. “no court shall proceed with the trial of any suit” makes the provision mandatory and the Court in which the subsequent suit has been filed is prohibited from proceeding with the trial of that suit if the conditions laid down in Section 10 of the Code are satisfied. The basic purpose and the underlying object of Section 10 of the Code is to prevent the Courts of concurrent jurisdiction from simultaneously entertaining and adjudicating upon two parallel litigations in respect of same cause of action, same subject matter and the same relief. This is to pin down the plaintiff to one litigation so as to avoid the possibility of contradictory verdicts by two courts in respect of the same relief and is aimed to protect the defendant from multiplicity of proceeding. The view which we have taken finds support from a decision of this Court in National Institute of Mental Health & Neuro Sciences v. C. Parameshwara, 2005(1) S.C.T. 534 : (2005) 2 SCC 256……”

Further relying upon the said decision of the supreme court it was held in Rajinder Aggarwal and another v. M/s K.R. Finmark Pvt. Ltd.2019 RCR (Civil) 375 :

“The predominant condition is that the matter in issue should be directly and substantially in issue as in the previously instituted suit between the same parties and the decree in one of the suits is bound to frustrate the decree in other suit. The acid test is when the decision of the earlier suit will operate as res judicata in the subsequently instituted suit. The object is to prevent the Courts of concurrent jurisdiction from simultaneously adjudicating upon two parallel litigations in respect of same cause of action and the same subject matter involving same relief. The ratio laid down in Aspi Jal v. Khushroo Rustom Dadyburjor 2013(2) RCR (Civil) 976 (SC) can be relied.“

(emphasis supplied by the writer)

Thus, the acid test to determine as to whether the subsequent suit should be stayed or not is to analyse as to whether the decision of the prior pending suit shall have any bearing upon the subsequent suit, so much so whether the same shall curb the litigation by invoking the principles of res judicata. As stated above in the preceding paragraphs, though the body of the section applies only to suits, however in Dr. Aloys Wobben and another v. Yogesh Mehra and others 2014 AIR (SC) 2210 the supreme court held that while invoking the provisions of section 10 CPC that even a “counter-claim” is tried jointly, with the suit filed by the plaintiff, and has the same effect as a cross-suit .Therefore, for all intents and purposes a “counter-claim” is treated as a plaint and since a “counter-claim” is of the nature of an independent suit, a “counter-claim” cannot be allowed to proceed, where the defendant has already instituted a suit against the plaintiff, on the same cause of action.

Although the provisions of Section 10 are mandatory, this does not take away the court’s inherent power under Section 151 CPC, so as to stay the proceedings on the facts and circumstances of a given case to secure the ends of justice where section 10 is not is not applicable. Therefore, the court may use its inherent power to secure the ends of justice even when section 10 is not applicable, to prevent abuse of process of the court, the court may stay `former suit’ too, by applying its inherent power as was held in Ram Bahadur Thakur And Co. v. Devidayal (Sales) Ltd., AIR 1956 (Bombay) 176.

There may also be a situation where though a subsequent suit has been filed by a party to the litigation, but no such application under section 10 is moved, or the same is moved but is dismissed, and ultimately a decree is passed in the subsequent suit too. In such a situation the decree so passed shall have the same force as any other decree, and the same can not be negated or ignored only on the basis of principles of section 10, the same being only procedural in nature.

It may well be noted that the stay of the suits under section 10 is only pertaining to suits that are subsequently filed in civil courts in India. The explanation to the section makes it abundantly clear that the same shall not apply to any such suit which is filed in India subsequently, even when a prior suit is pending in a foreign country on the same cause of action. However, there may be a situation where a prior suit is pending in India and the party to the litigation files another suit on the same issues in a foreign country. In such a situation the High Court can restrain him from continuation of an action in a foreign court if the same is opposed to equity. The said power of restriction however, cannot be exercised by a subordinate court, as was held in AIR 1927 Bom. 135 (DB) and AIR 1928 Mad. 491(DB).

Thus, what transpires is that principle of res sub judice as envisaged under section 10 CPC is procedural in nature, and is carved out not only to increase the efficiency of judicial work, but also to caste a check on the never ending frivolous litigation that a party to the litigation may wish to carry on.

The main objective behind this doctrine is to avoid wastage of time of the court, conflict of decisions on the same or similar issues between the same parties and to put an end to an issue that is pending trial. The test for res sub judice as discussed earlier is whether a final decision in the previous suit would operate as res judicata in the subsequent suit and if it does then the court shall not be shy to stay the trial of the subsequent suit and making the parties to the litigation stay off the suit as says the principle of res sub judice.

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)

It is an age-old belief that “imitation is the sincerest form of flattery“. This concept looks good in books and life but when it comes to business, it is popularly called as a theft of intellectual property. Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic work; designs and symbols, patents; trade mark names and images used in business and commerce.

A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks. The trademark owner can be an individual, business organization, or any legal entity. The essential function of a trademark is to exclusively identify the source or origin of products or services, so a trademark, properly called, indicates source or serves as a badge of origin. In other words, trademarks serve to identify a particular entity as the source of goods or services. The use of a trademark in this way is known as trademark use. A trademark needs to be a one-of-its-kind graphical representation depicted on a product. It can be in the form of a picture, word, shape, packaging, labeling, colour/colour combinations or any form of a visual symbol. Owning a trademark allows a proprietor or a trader to utilise it for commercial gains. A good trademark enables the customers to easily identify products manufactured by a particular company.

A trademark may be located on a package, a label, a voucher, or on the product itself. For the sake of corporate identity, trademarks are often displayed on company buildings. It is legally recognized as a type of intellectual property. The symbols (the trademark symbol), ? (which is the letters “SM” in superscript, for an unregistered service mark, a mark used to promote or brand services and ® (the registered trademark symbol) can be used to indicate trademarks; the latter is only for use by the owner of a trademark that has been registered.

Terms such as “mark”, “brand” and “logo” are sometimes used interchangeably with “trademark”. “Trademark”, however, also includes any device, brand, label, name, signature, word, letter, numerical, shape of goods, packaging, colour or combination of colours, smell, sound, movement or any combination thereof which is capable of distinguishing goods and services of one business from those of others. It must be capable of graphical representation and must be applied to goods or services for which it is used.

Trademarks make it easier for consumers to quickly identify the source of a given good. Instead of reading the fine print on a can of cola, consumers can look for the Coca-Cola trademark. Instead of asking a store clerk who made a certain athletic shoe, consumers can look for particular identifying symbols, such as a swoosh or a unique pattern of stripes. By making goods easier to identify, trademarks also give manufacturers an incentive to invest in the quality of their goods. If a consumer tries a can of Coca-Cola and finds the quality lacking, it will be easy for the consumer to avoid all such products of Coca-Cola in the future and instead buy another brand and the basis to identify the product will be the trademark of that product.

A trademark may be eligible for registration, or registerable, if it performs the essential trademark function, and has distinctive character. In order to serve as a trademark, a mark must be distinctive — that is, it must be capable of identifying the source of a particular good. In determining whether a mark is distinctive, the courts group marks into four categories, based on the relationship between the mark and the underlying product: (1) arbitrary or fanciful, (2) suggestive, (3) descriptive, or (4) generic. Because the marks in each of these categories vary with respect to their distinctiveness, the requirements for, and degree of, legal protection afforded a particular trademark will depend upon which category it falls within.

An arbitrary or fanciful mark is a mark that bears no logical relationship to the underlying product. For example, the words “Apple” bear no inherent relationship to their underlying products of computers. Similarly, the Nike “swoosh” bears no inherent relationship to athletic shoes. Arbitrary or fanciful marks are inherently distinctive — i.e. capable of identifying an underlying product — and are given a high degree of protection.

A suggestive mark is a mark that evokes or suggests a characteristic of the underlying good. Some exercise of imagination is needed to associate the word with the underlying product. At the same time, however, the word is not totally unrelated to the underlying product. Like arbitrary or fanciful marks, suggestive marks are inherently distinctive and are given a high degree of protection.

A descriptive mark is a mark that directly describes, rather than suggests, a characteristic or quality of the underlying product (e.g. its color, odor, function, dimensions, or ingredients). They tell us something about the product. Unlike arbitrary or suggestive marks, descriptive marks are not inherently distinctive and are protected only if they have acquired “secondary meaning.” Descriptive marks must clear this additional hurdle because they are terms that are useful for describing the underlying product, and giving a particular manufacturer the exclusive right to use the term could confer an unfair advantage.

Finally, a generic mark is a mark that describes the general category to which the underlying product belongs. For example, the term “Computer” is a generic term for computer equipment. Generic marks are entitled to no protection under trademark law. Thus, a manufacturer selling “Computer” brand computers (or “Apple” brand apples, etc.) would have no exclusive right to use that term with respect to that product. Generic terms are not protected by trademark law because they are simply too useful for identifying a particular product. Giving a single manufacturer control over use of the term would give that manufacturer too great a competitive advantage. Under some circumstances, terms that are not originally generic can become generic over time (a process called “genericity”), and thus become unprotected. Thus, a “Generic” terms are used in reference to describe a product or something that is commonly used in everyday life cannot be distinctively and exclusively used as trademark.

In trademark history it is believed that it was the blacksmiths who used to make swords in the Roman Empire were the first users of trademarks. Other notable trademarks throughout the world that can be regarded as one of the oldest is Stella Artois, which claims the use of its mark since 1366. The first trademark legislation was passed by the Parliament of England under the reign of King Henry III in 1266, which required all bakers to use a distinctive mark for the bread they sold. This was initially done with a purpose to identify the manufacturer and maintain quality standards.

In France the first comprehensive trademark system in the world was passed into law in 1857 with the “Manufacture and Goods Mark Act”. In Britain, it was the Merchandise Marks Act 1862 that made it a criminal offence to imitate another’s trade mark ‘with intent to defraud or to enable another to defraud’. In 1875, the Trade Marks Registration Act was passed which allowed formal registration of trade marks at the UK Patent Office for the first time. Registration was considered to be a prima facie evidence of ownership of a trade mark and registration of marks began on 1 January 1876. The 1875 Act defined a registrable Trade Mark as ‘a device, or mark, or name of an individual or firm printed in some particular and distinctive manner; or a written signature or copy of a written signature of an individual or firm; or a distinctive label or ticket’.

In India, the trademark law is governed by the provisions of Trademark Act, 1999 and the same also deals with the remedies for its breach and the claim of passing off. Statutory protection of trademark is administered by the Controller General of Patents, Designs and Trade Marks, a government agency which reports to the Department of Industrial Policy and Promotion (DIPP), under the Ministry of Commerce and Industry.

The law of trademark deals with the mechanism of registration, protection of trademark and prevention of fraudulent trademark. It also provides for the rights acquired by registration of trademark, modes of transfer and assignment of the rights, nature of infringements, penalties for such infringement and remedies available to the owner in case of such infringement.

The law of trademark in India before 1940 was based on the common law principles of passing off and equity as followed in England before the enactment of the first Registration Act, 1875. The first statutory law related to trademark in India was the Trade Marks Act, 1940 which had similar provision like the UK Trade Marks Act, 1938. In 1958, the Trade and Merchandise Marks Act, 1958 was enacted which consolidated the provisions related to trademarks contained in other statutes like, the Indian Penal Code, Criminal Procedure Code and the Sea Customs Act. The Trade and Merchandise Marks Act, 1958 was repealed by the Trade Marks Act, 1999 and it is the current governing law related to registered trademarks. Though some aspects of the unregistered trade marks have been enacted into the 1999 Act, but they are primarily governed by the common law rules based on the principles evolved out of the judgments of the Courts. Where the law is ambiguous, the principles evolved and interpretation made by the Courts in England have been applied in India taking into consideration the context of the legal procedure, laws and realities of India.

Trademark defined under Section 2(zb) of the Trade Marks Act, 1999 as, “trade mark means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours.”

(i) in relation to Chapter XII (other than section 107), a registered trade mark or a mark used in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right as proprietor to use the mark; and

(ii) in relation to other provisions of this Act, a mark used or proposed to be used in relation to goods or services for the purpose of indicating or so to indicate a connection in the course of trade between the goods or services, as the case may be, and some person having the right, either as proprietor or by way of permitted user, to use the mark whether with or without any indication of the identity of that person, and includes a certification trade mark or collective mark;

A mark can include a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colors or any such combinations.

The two symbols associated with Indian trademarks (the trademark symbol) and ® (the registered trademark symbol) represent the status of a mark and accordingly its level of protection. While can be used with any common law usage of a mark, ® may only be used by the owner of a mark who has his trademark registered with the relevant authorities.

Though registration of a trade mark is not a mandate of law, yet it has its own advantages. Registration of a trade mark confers the following rights on the registered proprietor: –

• The exclusive right to use the trade mark in relation to the goods or services in respect of which the mark is registered.

• The right to obtain relief in respect of infringement of the trade mark.

There are two different remedies available to the owner of a trademark for unauthorized use of its trade mark by a third party viz. an action for passing off in the case of an unregistered trademark and an action for infringement in case of a registered trademark. A claim for Passing off and trade mark infringement can be poles apart as both have different parameters.

The word Passing off has not been defined under the Trade Marks Act and is based upon the common law principle of torts. It protects trader’s goodwill in relation to their goods and services. A “Goodwill” is the brand reputation which is built-up in relation to specific goods or services and which attracts customers. It can be held by an individual trader or in some cases shared, such as between all the producers of a specific product in a specific area. The principle underlying the tort of passing off is that “A man is not to sell his own goods under the pretence that they are the goods of another man“.

Section 27 of the Trade Marks Act, 1999 recognizes this common law right of the trademark owner to take action against any person for passing off goods as the goods of another person or as services provided by another person or remedies thereof. The remedy made available under Section 27 of the Act protects the rights of the proprietor of an unregistered trademark to take action against another person for passing off his goods as goods the goods of proprietor.

The few parameters that may be necessary to prove a claim for passing off are :-

• Misrepresentation by a person intending to use the same trade name or mark.

• Such a mark may cause the prospective customers of his or ultimate consumers of goods or services supplied by him to believe that the product is from a company that is already using that trade mark.

• The use of such trade mark or trade name or sale of goods may result in calculated injury to the business or goodwill of another trade

• The use of the same causes actual damage to a business or goodwill of the trade by whom, the claim is brought.

Passing off claims can be difficult to prove because claimants need to demonstrate that at least some of the public are at risk of confusion between the two businesses. Also, it is not always easy to show that a misrepresentation has been made. However, for proving a claim of passing off a presence of these three elements are a must:

• That claimant possesses a goodwill in his goods, name, mark, or other identifying feature, that associates the public with those specific goods (and distinguishes them from others).

• There must be a misrepresentation by the other party which has led others to believe the goods are that of the claimant.

• The misrepresentation has caused damage to claimant’s goodwill.

For example, if someone advertises their fast food business as “the Rolls-Royce of chip shops” they may well be infringing Rolls-Royce’s trade marks but it is highly unlikely a court would find that they were passing themselves off as connected to Rolls-Royce in a business sense. However, ironically in Daimler Benz Aktiegesellschaft v. Hybo Hindustan AIR 1994 Delhi 239 the dispute was between the famous car maker Mercedes and a company that was into manufacturing of under wears using the brand as benz underwear. The case was instituted by the car company to restrain the defendant company from using the word benz for selling their under wears. It was held by the Delhi high court that

“In the instant case, “Benz” is a name given to a very high priced and extremely well engineered product. In my view, the defendant cannot dilute, that by user of the name “Benz” with respect to a product like under-wears…..

……. In my view, it is but right that the defendant should be restrained from using the word “Benz” with reference to any underwear which is manufactured by them, and in my view, injunction should issue, restraining the defendant to cease and desist from carrying on trade in any undergarments in the name of “Benz” and “Three Pointed Human Being in a Ring”, forthwith. So, ordered.”

It may also be relevant to mention about another famous case Rikhab Chand Jain & Anr v. Audi AG – CS 1966 of 2015 that was filed by a company against the famous Audi cars. It was alleged that the word TT that Audi is using to sell its products including cars is in fact a registered trade mark of the plaintiffs and thus Audi AG be injuncted from using the same. The Delhi High Court while passing an order dated 21st July 2015 injuncted the car company from using the same as an interim protection.

A Claim for Passing off is based upon fair trade and honesty. It protects against unfair competition in its own unique way. It can protect the Deception of the buying public at large and those signs or actions that can influence their purchasing decision. The concept of passing off is based upon the principles of common law and has much wider scope than infringement.

The famous case of Reckitt & Colman Products Ltd v. Borden Inc., [1990] 1 WLR 491, commonly known as the “Jif Lemon” case laid down 3 tests to prove a claim of passing off:

• Reputation

• misrepresentation, and

• goodwill.

These 3 different principles were explained in the Jif Lemon Case:

Reputation: The claimant must establish a goodwill or reputation attached to the goods or services which he supplies in the mind of the purchasing public by with the identifying “get-up” [i.e. trade dress] (whether it consists simply of a brand name or a trade description or the individual features of labelling or packaging) under which his particular goods or services are offered to the public, such that the get-up is recognised by the public as distinctive specifically of the plaintiff’s goods or services.

Misrepresentation: The claimant must demonstrate a misrepresentation by the defendant to the public (whether or not intentional) leading or likely to lead the public to believe that goods or services offered by him are the goods or services of the claimant. Misrepresentation in the law of passing off requires confusion to be caused in the minds of the buying public. It is a special type of confusion and “Mere” confusion is not enough, it has to be coupled with an action making the actual public buy the product in that confusion. When assessing whether a misrepresentation has been made to the buying public, it doesn’t matter whether misrepresentation was intentional or not.

Damage: The claimant must also demonstrate that he suffers or, in a quia timet action, is likely to suffer damage by reason of the erroneous belief engendered by the defendant’s misrepresentation that the source of the defendant’s goods or services is the same as the source of those offered by the claimant.

So, if a competitor deceives a substantial number of potential purchasers into thinking another business’s goods or services are theirs, then it’s passing off. The burden of proof is with the claimant – the business harmed – to show on the balance of probabilities.

As discussed, the claim of passing off can also be filed for harm to the goodwill. A Goodwill the attractive force which brings in business: the power of attraction that brings customers into the business and buy. Passing off protects against damage to the goodwill when a competitor uses some indication, signal or suggestion that its goods and services are those of the owner of the goodwill.

A business can protect its goodwill using the law of passing off against misrepresentations made by other businesses and its direct competitors which cause damage to its goodwill. It means that the law of passing off is not limited to protecting visible trade marks and logos, as registered trade mark law is but can be used to protect the damage to the goodwill and reputation too. However, there’s no passing off unless the defendant somehow misrepresents the origin of goods or services as their own.

Passing off may be of three types: –

Classic: In these cases, the competitor instils a belief in the minds of the buying public – or those that influence buying decisions – that there is a connection between their goods or services and those owned by the owner of the goodwill. However, not every connection will lead to passing off. The misrepresentation must suggest that the defendant is somehow behind the defendant in some way.

Reverse Passing off: In cases of inverse or reverse passing off, the competitor says that the goods or services of the protected business are actually its own, but doesn’t sell the protected business’s goods or services at all. In passing off language, a competitor sells their own goods by reference to someone else’s goodwill. The competitor seeks to get sales by falsely representing that work actually done by the protected business is actually done by the competitor.

Extended Passing Off: In this situation the passing off takes place when a competitor sells a product of the same description, but does not match what the market thinks it is. It doesn’t matter whether the buying market actually knows that the competing product or service has same description or not. Here the group of businesses collectively own the goodwill, not just one of them for example Swiss Chocolate: a product made to a particular formula and with particular characteristics. Extended passing off applies as much to generic products which by virtue of their special or distinct characteristics have developed a name and fame in the market.

Thus, a claim for passing off can be filed to protect all kinds of damages that a competitor may cause by using and misrepresenting to the public at large by using the claimants name and business goodwill. It’s may also be noted that passing off not only protects and shields the claimant against actual damage but also protects him against a likelihood of damage. So even if actual damage has not actually been caused, the likelihood of it is enough. It’s enough to obtain an interim injunction to restrain passing off pending the trial.

It was held in Burberry’s v. Cording (1909) 26 R.P.C. 693 that “An injunction can be granted restraining the use of a word or name, it is no doubt granted to protect property, but the property to protect which it is granted is not property in the word or name but property in the trade or goodwill which will be injured by its use.”

Passing off enables businesses to enforce their rights associated with its good name or goodwill in the market. It prevents competitors stealing – or over-borrowing – the traits of a product or service which has made it a success. It protects against all activities of a business that may lead the public into believing that they are another business. The greater the degree of goodwill, the more extensive the protection granted by passing off.

However, there may be situations where a trade or business is carried on by using a generic name. The issue that often crops up in such a situation is that whether any claim of passing off or infringement is maintainable in such a situation?

Generic term is a word that is associated with or known as a particular category of goods and services to which it relates. The result is that the term ceases to function as an indicator of origin. A generic word is one used by much of the public to refer to a class or category of product or service. A generic name can not be protected or registered as a trademark or service mark. For example, any single seller can not have trademark rights in “television” or “oven.” When a seller is given exclusive rights to call something by its recognized name, it would amount to a practical monopoly on selling that type of product. Even established trademarks can lose their protection if they are used generically. For example, thermos and aspirin. According to Webster’s dictionary the word generic means “relating to or characteristic of a whole group or class: not being or having a particular brand name generic drug: having no particularly distinctive quality or application”. The Blacks law dictionary defines it as “An item marketed with no brand name, trademark, or other distinguishing feature. Nothing separates it from other similar items except for its market name. Part of a certain general class, or genus, of items”

In confirming this, Section 9 of the Act requires that a trade mark, in order to be registrable, must be capable of distinguishing the goods or services of a person in respect of which it is registered or proposed to be registered from the goods or services of another person. A mark can be considered to be capable of distinguishing in this manner either inherently or by reason of prior use. However, a mark that is not (or no longer) capable of distinguishing in this manner cannot serve the basic function of a trade mark, as above, and hence it cannot be registered as a trade mark. Thus, a business name or product that is not associated with any distinct characteristics by virtue of the name or product is commonly called a generic name and such name by virtue of it being so or a family name or general product names are difficult to protect under the ambit of the trademark act.

As discussed above the other remedy under the Trade Marks Act for breach of any registered trade mark is a claim for infringement of trade marks. It may be noted that since trademark infringement is a continuing offence, there is no limitation on the time period for filing the said suit.

The common meaning of the word infringement is a violation of a law or a right. The term Infringement has been defined by Webster’s Dictionary as: “the act or an instance of infringing especially: the unauthorized use of copyrighted or patented material or of a trademark, trade name, or trade dress”. It is also defined by Nolo’s -English Law Dictionary as “1) Violation or breach of a legal right, contract, or statute. 2) Unauthorized use of a patent, copyright, or trademark.” In simple words, trademark infringement is the unauthorised usage of a mark that is identical or deceptively similar to a registered trademark. The term deceptively similar here means that when an average consumer looks at the mark, it is likely to confuse him/her of the origin of the goods or services.

The meaning of Infringement of a registered trademark can be gathered from The Trade Marks Act of 1999, section 29 whereby, a registered trademark is said to be infringed by any person, who not being the registered proprietor of the Mark or being a person authorized by the owner for its use (registered user), uses in the course of trade, a mark which is identical with, or deceptively similar to the mark in relation to goods and services in respect of which the trademark is registered.

According to Section 29 of the Trade Marks Act, 1999, the following conditions amounts to Trademark infringement in India:

• If the unregistered mark is identical to a mark registered for similar goods and services.

• The similarity of an unregistered mark with the infringed mark is likely to create confusion in the minds of consumers.

• The unregistered mark is similar to a registered trademark having a reputation in the market.

• The registered trademark is used on labelling or packaging without authorisation.

• The registered trademark is used in advertising, taking unfair advantage detrimental or against the reputation of trademark.

Though infringement and passing off are often used inter-changeably yet, there are marked differences in taking action for an infringement of Trade Mark and an action for passing off. The Supreme Court while further explaining the concepts and parameters of infringement and passing off in S. Syed Mohideen v. P. Sulochana Bai, 2016(2) SCC 683, has held that passing off right is a broader remedy than that of infringement. This is due to the reason that the passing off doctrine operates on the general common law principle of law.

The distinction between the two was also explained in detail by the Delhi High Court in Cadbury India Limited & Ors. v. M/s Neeraj Food Products, 2007 (12) RCR (Civil) 425. Thus, from the above the following may be classified as some of the major differences in the above two concepts: –

• Trade mark Infringement is a statutory remedy whereas Passing Off is a common law remedy, and being so, it has a wider scope.

• For an action of Trademark Infringement, registration of the trademark is a mandate, whereas for Passing Off registration is not required.

• For Trademark Infringement a suit can be instituted under Section 134 of the Trade Marks Act 1999 where the registered proprietor resides or carries on his business, whereas for Passing Off the remedy has to be sought under Section 20 of the Civil Procedure Code 1908.

• If the major features of the trademark of the plaintiff have been adopted by the defendant, the fact that the packing and other writing or marks on the goods or on the packets in which the defendant offers his goods are somewhat different, would be immaterial for the case of infringement of the trademark and he shall still be liable for such infringement. However, In the case of passing off, the defendant may not be held liable if he can show that the added material is sufficient to distinguish his goods from those of the plaintiff.

• The use by the defendant of the trademark of the plaintiff may be prerequisite in the case of an action for infringement, while it is not an essential feature of an action for passing off.

Thus, what may constitute a breach of intellectual property to constitute an action for passing off or infringement depends on various factors discussed above and also whether the same is an off shoot of using a generic name or a family name which usually happens with the usage of common names or terms to run the business or because of a split of business family coming from a common business lineage .

It was held in Shri Ram Education Trust v. SRF Foundation & Anr., 2016 (2) PLR 3 that:

“The Plaintiffs have not been able to prima facie show that they are entitled to use the family name to the exclusion of the Defendant. Both the brothers having common lineage, prima facie have common rights and cannot exclude the other. It is not disputed that the name SHRI RAM was first used by Late Sir Shri Ram, who established educational institutions such as Shriram College of Commerce, Lady Shriram College for Women, Shriram Institute for Industrial Research etc. The name SHRI RAM was adopted by the family in relation to their respective endeavours.

16. When the name SHRI RAM has admittedly been first adopted by the grandfather of the parties, the plaintiffs cannot appropriate the same to the exclusion of the defendant. The goodwill and reputation in the trademark adopted by the grandfather shall enure to the benefit of all the heirs, unless something to the contrary is shown so as to exclude the other heirs. One member of the family cannot, without something more being shown to the contrary, claim exclusive ownership of the mark. All the heirs of the person who first adopted a mark and put the same to use and earned goodwill and reputation shall, prima facie, have equal rights to adopt and use the same. Something more than mere prior adoption by one of the heirs would have to be shown so as to extinguish the rights of the other heirs.”

Similar view was taken by the Bombay high court in Parle Products Private Limited v. Parle Agro Private Limited, 2008 (21) RCR (Civil) 455. It was also held in Lohia Auto Industry v. Lohia Starlinger Ltd., 2010(4) RCR (Civil) 520 by the Allahabad high court that:

“Taking into totality of the matter we are of the view that the dispute is with regard to such logos not anything else i.e. statement on the internet or newspaper. Statement or article either in the website or in the newspaper merely saying LOHIA GROUP can not prima facie satisfy the cause that it has infringed or passed off the logo. Both are distinct and different. Moreover, court has not enquired from the plaintiff/respondent whether the logo is registered under Section 9 of the Trade Marks Act, 1999 with the generic words “LOHIA GROUP” or not. The settled legal position is that one cannot have any monopoly right over the generic word. There is a distinction between generic word and common word. Where the mark is deceptively similar to recognise non-propriety name or generic name, the mark may come within the prohibition of Section 9 of the Act. Though normally the trade mark ought to be taken as a whole, but it is duty of the court to find out whether the respective word/s, even being the generic word formed part and parcel of the logo or not. Even assuming the same is part and parcel of logo yet at the time of passing an order of injunction, the court must be careful to see whether such logo is deceptively similar with the logo of appellant/defendant or not to come to an appropriate finding with regard to infringement of trade mark and passing off. The appellant/defendant has made two categorical statements. Firstly, the words LOHIA GROUP are generic words and secondly, they have not violated the same. The court below has visualised that both the logos are different from each other yet came to a conclusion that if any order of injunction is passed, no one will be prejudiced in carrying on the business on the basis of available logos. We are of the view that such decision is totally perverse in nature. Once the finding of the court below is that if both of them are allowed to do business with the available logos and nobody will be prejudiced, no question had arisen for the court below to pass an order of injunction in spite of such observation. Therefore, under no circumstances, the order impugned can be said to be sustainable.”

It may also be noted that unlike all other civil suits, under section 134 of the Trade Marks Act, 1999, a suit for passing off or infringement of a trade mark cannot be filed before any court that is inferior to a district court. Thus, though there are large number of protections available for theft of an intellectual property and all these words passing off and infringement are interchangeably used, yet it would not be wrong to say that with success comes not only rewards and responsibilities but also liabilities of series of imitation and lengthy litigations.

Thus, it would be just apt here to conclude by saying that an “Intellectual property no matter how famous and protected it is, has the shelf life of a banana.”

(The author is a practising advocate in the Punjab and Haryana High Court at Chandigarh and the views shared herein are personal only)