Marriages are settled in heaven, and they are performed on earth. Happy couples are all alike, every unhappy couple is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

Whether and where a marriage can be dissolved is a matter in the domain of the earthly law governing the spouses, but the matrimonial laws are not common everywhere in the world and they differ from country to country. The problem arises when the parties have their domicile in one country and one of them obtains matrimonial relief in a foreign country. The moot question posed is whether the foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & ancillary to this is whether the decree passed by a foreign court can be recognized by the Court in India, as being conclusive.

It is further pointed out that many foreign decrees in matrimonial cases is becoming the order of the day and therefore, a time has come to ensure certainty in the recognition of the foreign judgments in these matters. In the absence of any legislation, the Supreme Court of India has taken initiative and ventured to lay down the minimum rules of guidance for securing the certainty in the matters of recognition of foreign judgments as according to it beginning has to be made as best as one can.

To fully understand the issues, it is necessary to go through various provisions of enactments, the interpretation of various enactments by the Supreme Court of India and other High Courts of States.

It would be apt to reproduce the relevant provisions of Code of civil procedure, Indian Evidence Act, Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956 and governing the issues involved: –

Code of Civil Procedure

Section 13. When foreign judgment not conclusive. – A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except- (a) where it has not been pronounced by a Court of competent jurisdiction; (b) where it has not been given on the merits of the case; (c) where it appears on the face of the proceedings to be founded on an incorrect view of international law or a refusal to recognize the law of [India] in cases in which such law is applicable; (d) where the proceedings in which the judgment was obtained are opposed to natural justice; (e) where it has been obtained by fraud; (f) where it sustains a claim founded on a breach of any law in force in [India].

Section 14. Presumption as to foreign judgments. – The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction.

Indian Evidence Act:

Section 41. Relevancy of certain judgments in probate, etc., jurisdiction.-A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial admiralty or insolvency jurisdiction which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof- that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, [order or decree] declares it to have accrued to that person; [order or decree] declares it to have accrued to that person;” that any legal character which it takes away from any such person ceased at the time from which such judgment, 1[order or decree] declared that it had ceased or should cease; [order or decree] declared that it had ceased or should cease;” and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, 1[order or decree] declares that it had been or should be his property. [order or decree] declares that it had been or should be his property.

Hindu Marriage Act, 1955

Section 1. Short title and extent. – (1) This Act may be called the Hindu Marriage Act, 1955. (2) It extends to the whole of India except the State of Jammu and Kashmir and applies also to Hindus domiciled in the territories to which this Act extends who are outside the said territories.

3. Definitions. -In this Act, unless the context otherwise requires, –

(b) “district court” means, in any area for which there is a city civil court, that court, and in any other area the principal civil court of original jurisdiction and includes any other civil court which may be specified by the State Government, by notification in the Official Gazette, as having jurisdiction in respect of the matters dealt with in this Act.

Section 10. Judicial separation.-1 [(1) Either party to a marriage, whether solemnized before or after the commencement of this Act, may present a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of section 13, and in the case of a wife also on any of the grounds specified in sub-section (2) thereof, as grounds on which a petition for divorce might have been presented.]

(2) Where a decree for judicial separation has been passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court may, on the application by petition of either party and on being satisfied of the truth of the statements made in such petition, rescind the decree if it considers it just and reasonable to do so.

Section 11. Void marriages. -Any marriage solemnized after the commencement of this Act shall be null and void and may, on a petition presented by either party thereto [against the other party], be so declared by a decree of nullity if it contravenes any one of the conditions specified in clauses (i), (iv) and (v) of section 5.

Section 12. Voidable marriages.-(1) Any marriage solemnized, whether before or after the commencement of this Act, shall be voidable and may be annulled by a decree of nullity on any of the following grounds, namely:- [(a) that the marriage has not been consummated owing to the impotence of the respondent; or] (b) that the marriage is in contravention of the condition specified in clause (ii) of section 5; or (c) that the consent of the petitioner, or where the consent of the guardian in marriage of the petitioner 4 [was required under section 5 as it stood immediately before the commencement of the Child Marriage Restraint (Amendment) Act, 1978 (2 of 1978)], the consent of such guardian was obtained by force [or by fraud as to the nature of the ceremony or as to any material fact or circumstances concerning the respondent]; or (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

(2) Notwithstanding anything contained in sub-section (1), no petition for annulling a marriage- (a) on the ground specified in clause (c) of sub-section (1) shall be entertained if- (i) the petition is presented more than one year after the force had ceased to operate or, as the case may be, the fraud had been discovered; or (ii) the petitioner has, with his or her full consent, lived with the other party to the marriage as husband or wife after the force had ceased to operate or, as the case may be, the fraud had been discovered; (b) on the ground specified in clause (d) of sub-section (1) shall be entertained unless the court is satisfied- (i) that the petitioner was at the time of the marriage ignorant of the facts alleged; (ii) that proceedings have been instituted in the case of a marriage solemnized before the commencement of this Act within one year of such commencement and in the case of marriages solemnized after such commencement within one year from the date of the marriage; and (iii) that marital intercourse with the consent of the petitioner has not taken place since the discovery by the petitioner of the existence of 6 [the said ground].

13. Divorce.-(1) Any marriage solemnized, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- 1 [(i) has, after the solemnization of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnization of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or] (ii) has ceased to be a Hindu by conversion to another religion; or [(iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. Explanation.-In this clause,- (a) the expression “mental disorder” means mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind and includes schizophrenia; (b) the expression “psychopathic disorder” means a persistent disorder or disability of mind (whether or not including sub-normality of intelligence) which results in abnormally aggressive or seriously irresponsible conduct on the part of the other party, and whether or not it requires or is susceptible to medical treatment; or] * * * * * (v) has * * * been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; *** * * * * * * [Explanation.-In this sub-section, the expression “desertion” means the desertion of the petitioner by the other party to the marriage without reasonable cause and without the consent or against the wish of such party, and includes the willful neglect of the petitioner by the other party to the marriage, and its grammatical variations and cognate expressions shall be construed accordingly.] [(1A) Either party to a marriage, whether solemnized before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of 8 [one year] or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties.]

(2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground,- (i) in the case of any marriage solemnized before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnization of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnization of the marriage, been guilty of rape, sodomy or 1 [bestiality; or] [(iii) that in a suit under section 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under section 125 of the Code of Criminal Procedure, 1973 (2 of 1974) (or under the corresponding section 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; (iv) that her marriage (whether consummated or not) was solemnized before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. Explanation. -This clause applies whether the marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976).]

13A. Alternate relief in divorce proceedings.-In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of section 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation.

13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in sub-section (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree.]

14. No petition for divorce to be presented within one year of marriage.-(1) Notwithstanding anything contained in this Act, it shall not be competent for any court to entertain any petition for dissolution of a marriage by a decree of divorce, [unless at the date of the presentation of the petition one year has elapsed] since the date of the marriage: Provided that the court may, upon application made to it in accordance with such rules as may be made by the High Court in that behalf, allow a petition to be presented [before one year has elapsed] since the date of the marriage on the ground that the case is one of exceptional hardship to the petitioner or of exceptional depravity on the part of the respondent, but if it appears to the court at the hearing of the petition that the petitioner obtained leave to present the petition by any misrepresentation or concealment of the nature of the case, the court may, if it pronounces a decree, do so subject to the condition that the decree shall not have effect until after the 1 [expiry of one year] from the date of the marriage or may dismiss the petition without prejudice to any petition which may be brought after 2 [expiration of the said one year] upon the same or substantially the same facts as those alleged in support of the petition so dismissed. (2) In disposing of any application under this section for leave to present a petition for divorce before the [expiration of one year] from the date of the marriage, the court shall have regard to the interests of any children of the marriage and to the question whether there is a reasonable probability of a reconciliation between the parties before the expiration of the [said one year].

Section 19. Court to which petition shall be presented.-Every petition under this Act shall be presented to the District Court within the local limits of whose ordinary original civil jurisdiction:- (i) the marriage was solemnized, or (ii) the respondent, at the time of the presentation of the petition, resides, or (iii) the parties to the marriage last resided together, or [(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition; or] (iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.

Section 24. Maintenance pendente lite and expenses of proceedings.-Where in any proceeding under this Act it appears to the court that either the wife or the husband, as the case may be, has no independent income sufficient for her or his support and the necessary expenses of the proceeding, it may, on the application of the wife or the husband, order the respondent to pay to the petitioner the expenses of the proceeding, and monthly during the proceeding such sum as, having regard to the petitioner’s own income and the income of the respondent, it may seem to the court to be reasonable. 2 [Provided that the application for the payment of the expenses of the proceeding and such monthly sum during the proceeding, shall, as far as possible, be disposed of within sixty days from the date of service of notice on the wife or the husband, as the case may be.]

Section 25. Permanent alimony and maintenance.-(1) Any court exercising jurisdiction under this Act may, at the time of passing any decree or at any time subsequent thereto, on application made to it for the purpose by either the wife or the husband, as the case may be, order that the respondent shall *** pay to the applicant for her or his maintenance and support such gross sum or such monthly or periodical sum for a term not exceeding the life of the applicant as, having regard to the respondent’s own income and other property, if any, the income and other property of the applicant [the conduct of the parties and other circumstances of the case], it may seem to the court to be just, and any such payment may be secured, if necessary, by a charge on the immovable property of the respondent.

(2) If the court is satisfied that there is a change in the circumstances of either party at any time after it has made an order under sub-section (1), it may, at the instance of either party, vary, modify, or rescind any such order in such manner as the court may deem just.

(3) If the court is satisfied that the party in whose favour an order has been made under this section has re-married or, if such party is the wife, that she has not remained chaste, or, if such party is the husband, that he has had sexual intercourse with any woman outside wedlock, [it may at the instance of the other party vary, modify or rescind any such order in such manner as the court may deem just].

Section 27. Disposal of property. -In any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

Hindu Adoptions and Maintenance Act, 1956

Section 18. Maintenance of wife – (1) Subject to the provisions of this section, a Hindu wife, whether married before or after the commencement of this Act, shall be entitled to be maintained by her husband during her lifetime.

(2) A Hindu wife shall be entitled to live separately from her husband without forfeiting her claim to maintenance –

(a) If he is guilty of desertion, that is to say, of abandoning her without reasonable cause and without her consent or against her wish, or of willfully neglecting her;

(b) If he has treated her with such cruelty as to cause a reasonable apprehension in her mind that it will be harmful or injurious to live with her husband;

(c) If he is suffering from a virulent form of leprosy;

(d) If he has any other wife living ; (e) If he keeps a concubine in the same house in which his wife is living or habitually resides with a concubine elsewhere; (f) if he has ceased to be a Hindu by conversion to another religion;

(g) if there is any other cause justifying her living separately;

(3) A Hindu wife shall not be entitled to separate residence and maintenance from her husband if she is unchaste or ceases to be a Hindu by conversion to another religion.

Concept of Domicile

Before adverting to the issue, it is necessary to discuss the concept of domicile adopted by the courts in interpreting the word residence occurring in section 19 of Hindu Marriage Act,1955.

The plain dictionary meaning of the term ‘domicile’ is one’s legally recognized place of residence. Domicile has been described in Halsbury’s Laws of England, 4th edition, Volume 8, Paragraph 42 1) as the legal relationship between individual and a territory with a distinctive legal system which invokes that system as his personal law. Such residence must be coupled with the intention to make it a permanent home. A mere sojourn or temporary residence does not constitute domicile. Domicile is the condition in virtue whereof is ascribed to an individual the character of a citizen of some country on the basis of which the personal rights of the party that is to say, the law which determines his majority or minority, his marriage, succession, testacy or intestacy must depend. The object of ascertaining domicile is to determine which municipal law is applicable for regulating the rights and obligations of the parties. Thus, domicile signifies connection with a single system of territorial law. There are some general rules regarding domicile, and they are that-(i) nobody is without domicile, (ii) a person cannot have two domiciles, (iii) there is a presumption in favour of continuance of an existing domicile. There are two main classes of domicile; the domicile of origin which is communicated by operation of law to each person by birth i.e., domicile of his father or mother and domicile of choice which every person of full age is free to acquire in substitution for that which he at present possesses. The domicile of origin is received by operation of law at birth and for acquisition of a domicile of choice, one of the necessary conditions is the intention to remain there permanently. The domicile of origin is retained and cannot be divested until the acquisition of the domicile of choice. By merely leaving his country, even permanently, one will not, in the eye of law, lose one’s (his) domicile until he acquires a new one. So far married woman is concerned, the domicile of her husband is communicated to her immediately on marriage and it is necessarily and inevitably retained by her for the duration of her marriage. This means that she is incapable of acquiring a domicile of her choice during the subsistence of her marriage and that her domicile follows that of her husband’s domicile. It is thus a domicile of dependence or a matrimonial domicile. Thus, domicile is a test for determining personal law. (Louis De Readt v. Union of India, 1991(3) S.C.C. 554. To confer jurisdiction on the ground of plaintiff’s residence and entitle the decree to extraterritorial recognition, the residence must be actual and genuine and accompanied by an intent to make the State his home. A mere sojourn or temporary residence as distinguished from legal domicile is not sufficient in Central Bank of India, v. Ram Narain, [1955] 1 SCR 697, wherein it was pointed out that if a person leaves the country of his origin with undoubted intention of never returning to it again, nevertheless his domicile of origin adheres to him until he actually settles with the requisite intention in some other country. Thus, the proposition that the domicile of origin is retained until the acquisition of a domicile of choice is well established and does not admit of any exception.

“Domiciles are of three kinds, viz. domicile of origin, the domicile by operation of law and the domicile of choice. In the present case, we are concerned only with the domicile of origin and domicile of choice. Domicile of origin is not necessarily the place of birth. The birth of a child at a place during temporary absence of the parents from their domicile will not make the place of birth as the domicile of the child. In domicile of choice, one is abandoned, and another domicile is acquired but for that, the acquisition of another domicile is not sufficient. Domicile of origin prevails until not only another domicile is acquired but it must manifest intention of abandoning the domicile of origin. When we consider Section 1(2) of the Act, it is evident that the Act extends to the Hindus of whole of India except the State of Jammu and Kashmir and also applies to Hindus domiciled in India who are outside the said territory. In short, the Act, in our opinion, will apply to Hindus domiciled in India even if they reside outside India. If the requirement of domicile in India is omitted altogether, the Act shall have no nexus with India which shall render the Act vulnerable on the ground that extra-territorial operation has no nexus with India. In our opinion, this extra-territorial operation of law is saved not because of nexus with Hindus but Hindus domiciled in India. Sondur Gopal v. Sondur Rajini, 2013(7) SCC 426, Mandeep Kaur v. Dharam Lingam, (Punjab and Haryana) (DB), 2017(2) PLR 376.

Irretrievable breakdown of Marriage

It would also be necessary to consider, as to whether Irretrievable breakdown of Marriage can be considered as a valid ground for divorce for considering would satisfy the requirement of section 13 of Code of Civil Procedure, when such ground for grant of decree of divorce is alien and not provided under Hindu Marriage Act,1955. The reason is obvious because the divorce is mainly granted by the foreign courts because of Irretrievable or simply breakdown of Marriage. The answer is no, in view of pronouncement by Supreme Court of India. Irretrievable breakdown of marriage is not a ground for divorce as it is not contemplated under section 13 and granting divorce on this ground alone would amount to adding a clause therein by a judicial verdict which would amount to legislation by Court. V. Bhagat v. Mrs. D. Bhagat, (1994) 1 SCC 337 Vishnu Dutt Sharma v. Manju Sharma, (2009) 6 SCC 379, Neelam Kumar v. Dayarani AIR 2011 Supreme Court 193.

Concept of Matrimonial Property

There is no concept of matrimonial property under the provisions of Indian laws. A woman can claim maintenance under Hindu Marriage Act,1955, Hindu Adoption and maintenance Act,1956, The Protection of Women from Domestic Violence Act 2005, as also under Section 125 of Code of Criminal procedure. However, the maintenance awarded under different enactments cannot be claimed consecutively, she would be entitled to the highest amount under any of the enactments. She can claim permanent alimony/maintenance at the time of passing any decree or at any time subsequent thereto under Hindu Marriage Act,1955. She can claim right to reside in the matrimonial home in which she resides under the Protection of Women from Domestic Violence Act 2005.The property in the name of each of spouse is their personal property. None of the spouse can claim the division or ownership of property owned and possessed by either of spouse. Even if one spouse purchases the property in the name of other spouse, still, it is the ownership, which is the deciding factor, as, whosoever is the title holder of property retains the same, because of the Prohibition of Benami Property Transactions Act, 1988. Section 4 of the Act,1988 explicitly prohibits the right to recover a property held benami, however there is exception to section 4 of the Act,1988 by virtue of Section 27 of Hindu Marriage Act,1950 provides for that in any proceeding under this Act, the court may make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. A Division Bench of Punjab & Haryana High Court in Bhai Sher Jang Singh v. Smt. Virender Kaur, 1978 Hindu LR 703: observed as follows :-

“Section 27 of the Hindu Marriage Act empowers a Court while deciding a matrimonial dispute to also pass a decree in respect of property which money jointly belong to both the husband and the wife. This section at best provides a civil remedy to an aggrieved wife and does not in any way take away her right to file a criminal complaint if the property belonging to her is criminally misappropriated by her husband. Further The Punjab & Haryana High Court, Chandigarh in the case of Surinder Kaur v. Madan Gopal Singh, AIR 1980 Pb & Hry 334 explained the true import of Section 27 of the Act,1950 as:-

It would seem that the object of studding this section in the fabric of the Hindu Marriage Act,1950 is intended to pass consequential orders in relation to certain properties between the parties while dealing with any proceedings under the Act and to make provision of that nature In the decree to be passed in those proceedings. Obviously, an application for the purpose must be made before the proceedings terminate and the order can be made at the time of the passing of the decree. The sequence in which the said section appears in the statute is after the provision for the passage of decree in Section 23 of the Act and then to provide remedially as well in the terms of granting permanent alimony and maintenance under Section 25, deciding the custody of the children under Section 26, and to dis se of property jointly belonging to both the husband and the wife under Section 27, so as to ameliorate the lot of the spouse or spouses left bruised by a broken or a shattered marriage. It would also seem that Section 27 goes not envisage deciding any question as to the title of the prop involved therein or extending to all the properties of the spouses. It is couched in such a language so as to narrow its ambit within a small aphere. Analytically, the section pours out the following principles :-

(i) It must be a matrimonial proceeding pending under the Act before the Court and an application for disposal of property must be made before the decision of the Proceeding.

(ii) it is not incumbent on the Court to make provision in the decree with regard to disposal of property and it is left to its judicial discretion.

(iii) the provision so made it any, must be just and proper as the Court deems having regard to the adjustment of the equities between the parties and all surrounding material circumstances:

(iv) the order would envelope only that property which was presented at or about the time of the marriage, which means not only presented at the marriage but also at a time either prior to or after the marriage. That must be in close proximity of the time of the marriage and not to those made outside the extending limit of that time.

(v) the property so presented may either be to the wife or the husband or both; and

(vi) at the time the Court is required to exercise its discretion, the property may belong jointly to both the husband and the wife.

Now it is well understood that the word “belong” necessarily does not reflect title to the property in the sense of ownership. It only denotes connection with property and is a term connecting a person with his possessions. It appears to me that the property thus presented to the spouses within the afore-explained time limit, may fall jointly to belong to bath the husband and the wife, irrespective of the title in those properties to be vesting in one or the other or both. To give an earthly example, a saree presented by the husband or anyone else to the wife, may or may not involve transfer of title to the saree to the wife, but will belong to her exclusively and not jointly to both the husband and the wife, as the very nature of the garment so suggests Similarly, a suit presented to the husband in the same fashion would be exclusively belonging to the husband. Properties and articles presented from any source and to any one of them which by the very nature of the present, or by intention of the donor or by tacit agreement of spouses, has come to be jointly in use by both the husband and the wife, can well be said to belong jointly to both of them. An earthly example of such incident can be that of a set of dining table and chairs for joint user in the matrimonial home irrespective of the fact as to which spouse received it as a present within that allocated time. The said dining table and chairs would obviously be joint belong of both the husband and the wife and capable of being subjected to orders under Section 27 of the Act.

If any parity is permissible, it can be drawn with the principle underlying Section 25 of the Act. Each spouse’s earning capacity and other property, despite title thereto, is taken into account while equitably apportioning the income of both the spouses in such s manner so as to keep the less provided one adequately maintained at the cost of the other having regard to their post-marital-social status. In the same way Section 27 of the Act provides-for sharing of that property which the spouses received individually or collectively as presents, at or about the time of the marriage and which had come to be, as a way of life, in their joint use in their day to day living and thus `belongings’ for the purpose. If matrimony is disrupted, such jointly belonging articles would require the attention of the Court to be apportioned between the spouses as a measure of remedial relief.

In India, when Hindu marriage is by and large arranged by others than the spouses themselves, its breakage causes ripples in members of the society. It is one of the reasons why most of the judgments rendered by matrimonial Courts which fall squirrel within Section 41 of the Indian Evidence Act, are judgments in rem affecting the world at large. If a contested issue of disposal of property were to engage the attention of the matrimonial Court predominating other proceedings regarding which decree is sought, then the decision cannot be rendered with promptitude. The disposal of property as envisaged under Section 27 can only become part of the decree subject to other conditions fulfilling, if, it is capable of being settled without consuming much time so as not to entail delay in the passage of the decree. But if the Court finds itself confronted with regular contest from the tenor of pleadings the divergence of views and the anticipated quantity of evidence, it would well be within its right to refuse passing orders regarding disposal of property as a part of the decree. The disposal of property matter cannot outweigh the main proceedings before the Court regarding which it is required to pass a decree in the first place, the Court has to discern as to whether the presents received by either of the spouses from whatever source were in fact received end within the time earmarked in the section. Then in the second place the Court has to see as to which of the present or presents belong jointly to the spouses.

The Supreme Court of India in Balkrishna Ramchandra Kadam v. Sangeeta Balkrishna Kadam decided on September 4, 1997, while dealing section 27 of The Hindu Marriage Act,1950 held as: “On a plain reading of the section. it becomes obvious the Matrimonial Court trying any proceedings under the Hindu Marriage Act, 1955, has the jurisdiction to make such provision in the decree as it deems just and proper with respect to nay property presented “at or bout the time of marriage” which may belong jointly to both the husband and wife. This section provides an alternate remedy to the wife so that she can recover the property, which is covered by the Section, by including it in the decree in the matrimonial proceedings, without having to take resources to the filling of a separate Civil Suit and avoid further litigation”.

Further Punjab & Haryana High court, Chandigarh in Deepak v. Rajni, Civil Revision No.7127 of 2018, decided on December 13, 2018 held as: Firstly, Section 27 of the Act is only an enabling provision where by the Court in any proceedings under the Act may make any provision in the decree with regard to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife. It does not specifically oust the jurisdiction of the Civil Court in that regard. Hence, it can be considered as an additional remedy available to the aggrieved. Secondly, Section 27 has been held to be applicable only to the property contemplated therein i.e., any property presented, at or about the time of marriage, which jointly belongs to both the husband and the wife. Istridhan being the absolute and exclusive ownership of the wife, it has been held that no order under Section 27 of the Act can be passed in regard thereto.

Interpretation of Section 13 of Code of Civil Procedure.

R. Viswanathan v. Rukn-ul-Mulk Syed Abdul Wajid, (AIR 1963 Supreme Court 1), the Supreme Court pointed out that Section 13 of Code of Civil Procedure incorporates a branch of the principle of res judicata. However, the Supreme Court also clarified that though both rules are founded upon the principle of sanctity of judgments competently rendered, the rule of conclusiveness of a foreign judgment as enacted in Section 13 CPC is somewhat different in its operation from the rule of res judicata incorporated in Section 11 CPC. But the rule of conclusiveness of a foreign judgment applies only to matters directly adjudicated upon and hence, what is conclusive is the judgment. While the competence of a Court, for the application of the rule of res judicata, is determined strictly by the Municipal Law, the competence of the foreign court is determined by the dual test of competence by the laws of the State, in which the court functions as well as in an international sense. To apply the rule of res judicata, the adjudication should have been in a former suit. But, for the application of rule of conclusiveness, it is not necessary that the judgment must have been delivered by the foreign court, before the institution of the suit in which the plea is set up. Again, what is conclusive in respect of a foreign judgment is only the final adjudication and not the reasons. More importantly, the Supreme Court held in R. Viswanathan that in adjudging the competence of the foreign court, it would not be open to the Indian court to ignore the course of practice in that court, even if it be not strictly warranted by the procedural law of that State. Whether the procedure of the foreign court, which does not offend natural justice is valid or not, is for the foreign court to decide and not by the court in which the foreign judgment is pleaded as conclusive.

Smt. Satya v. Teja Singh, (SC), 1975(1) SCC 120, In determining whether a divorce decree will be recognized in another jurisdiction as a matter of comity, public policy and good morals may be considered. No country is bound by comity to give effect in its courts to divorce laws of another country which are repugnant to its own laws and public policy. Thus, where a “mail-order divorce” granted by a Mexican court was not based on jurisdictional finding of domicile, the decree was held to have no extraterritorial effect in New Jersey, State v. Najjar, 2 NJ 208. American courts generally abhor the collusive Mexican mail-order divorces and refuse to recognize them, Langner v. Langner, 39 NYS 2d 918. Mail-order divorces are obtained by correspondence by a spouse not domiciled in Mexico. Latey in his well-known book on divorce says that “The facilities afforded by the Mexican courts to grant divorces to all and sundry whatsoever their nationality or domicile have become even more notorious than those in Reno, Nevada”. (“The Law and Practice in Divorce and Matrimonial Causes”, 15th Ed. (1973) p. 461.) Recognition is denied to such decrees as a matter of public policy. Foreign decrees of divorce including decrees of sister States have been either accorded recognition or have been treated as invalid, depending on the circumstances of each particular case. But if a decree of divorce is to be accorded full faith and credit in the courts of another jurisdiction it is necessary that the court granting the decree has jurisdiction over the proceedings. A decree of divorce is thus treated as a conclusive adjudication of all matters in controversy except the jurisdictional facts on which it is founded. Domicile is such a jurisdictional fact. A foreign divorce decree is therefore subject to collateral attack for lack of jurisdiction even where the decree contains the findings or recitals of jurisdictional facts. Section 13(A)) of the Code of Civil Procedure, 1908 makes a foreign judgment conclusive as to any matter thereby directly adjudicated upon except “where it has not been pronounced by a court of competent jurisdiction.

Surinder Kaur Sandhu v. Harbax Singh Sandhu, AIR 1984 Supreme Court 1224, The modern theory of Conflict of Laws recognizes and, in any event, prefers the jurisdiction of the State which has the most intimate contact with the issues arising in the case. The jurisdiction is not attracted by the operation or creation of fortuitous circumstances such as the circumstances as to when the child, whose custody is in issue, is brought or for the time being lodged. To allow the assumption of jurisdiction by another State in such circumstances will only result encouraging forum-shopping. Ordinarily, jurisdiction must follow upon functional lines. That is to say, for example, that in matters relating to matrimony and custody, the law of that place must govern which has the closest concern with the well-being of the spouses and the welfare of the offspring of marriage.

Y. Narasimha Rao v. Y. Venkata Lakshmi, (SC), 1993(1) SCC 451, Under Section 13 of the Code of Civil Procedure, 1908 (hereinafter referred to as the “Code”), a foreign judgment is not conclusive as to any matter thereby directly adjudicated upon between the parties if (a) it has not been pronounced by a court of competent jurisdiction; (b) it has not been given on the merits of the case; (c) it is founded on an incorrect view of international law or a refusal to recognize the law of India in cases in which such law is applicable; (d) the proceedings are opposed to natural justice; (e) it is obtained by fraud; (f) it sustains a claim founded on a breach of any law in force in India. The Supreme Court declined to give its imprimatur to foreign decree which did not take into consideration the provisions of Hindu Marriage Act under which the parties were married. The Supreme Court while interpreting Section 13 of Civil Procedure Code has held that unless the respondent voluntarily and effectively submitted to the jurisdiction of the foreign court and contested the claim which is based on the grounds available in the matrimonial law under which the parties were married, the judgment of the foreign court could not be relied upon. The relevant portion of the judgment of the Supreme Court is reproduced as under :-

We believe that the relevant provisions of Section 13 of the Code are capable of being interpreted to secure the required certainty in the sphere of this branch of law in conformity with public policy, justice, equity and good conscience, and the rules so evolved will protect the sanctity of the institution of marriage and the unity of family which are the corner stones of our societal life. Thus, the Supreme Court of India interpreted the various clauses of Section 13 of Code of Civil Procedure as: Clause (a) of Section 13 states that a foreign judgment shall not be recognized if it has not been pronounced by a court of competent jurisdiction. We are of the view that this clause should be interpreted to mean that only that court will be a court of competent jurisdiction which the Act or the law under which the parties are married recognizes as a court of competent jurisdiction to entertain the matrimonial dispute. Any other court should be held to be a court without jurisdiction unless both parties voluntarily and unconditionally subject themselves to the jurisdiction of that court. The expression “competent court” in section 41 of the Indian Evidence Act has also to be construed likewise. Clause (b) of Section 13 states that if a foreign judgment has not been given on the merits of the case, the courts in this country will not recognize such judgment. This clause should be interpreted to mean (a) that the decision of the foreign court should be on a ground available under the law under which the parties are married, and (b) that the decision should be a result of the contest between the parties. The latter requirement is fulfilled only when the respondent is duly served and voluntarily and unconditionally submits himself/herself to the jurisdiction of the court and contests the claim or agrees to the passing of the decree with or without appearance. A mere filing of the reply to the claim under protest and without submitting to the jurisdiction of the court, or an appearance in the Court either in person or through a representative for objecting to the jurisdiction of the Court, should not be considered as a decision on the merits of the case. In this respect the general rules of the acquiescence to the jurisdiction of the Court which may be valid in other matters and areas should be ignored and deemed inappropriate. The second part of Clause (c) of Section 13 states that where the judgment is founded on a refusal to recognize the law of this country in cases in which such law is applicable, the judgment will not be recognized by the courts in this country. The marriages which take place in this country can only be under either the customary or the statutory law in force in this country. Hence, the only law that can be applicable to the matrimonial disputes is the cine under which the parties are married, and no other law. When, therefore, a foreign judgment is founded on a jurisdiction or on a ground not recognized by such law, it is a judgment which is in defiance of the Law. Hence, it is not conclusive of the matters adjudicated therein and, therefore, unenforceable in this country. For the same reason, such a judgment will also be unenforceable under Clause (f) of Section 13, since such a judgment would obviously be in breach of the matrimonial law in force in this country. Clause (d) of Section 13 which makes a foreign judgment unenforceable on the ground that the proceedings in which it is obtained are opposed to natural justice, states no more than an elementary principle on which any civilized system of justice rests. However, in matters concerning the family law such as the matrimonial disputes, this principle has to be extended to mean something more than mere compliance with the technical rules of procedure. If the rule of Audi alteram partem has any meaning with reference to the proceedings in a foreign court, for the purposes of the rule it should not be deemed sufficient that the respondent has been duly served with the process of the court. It is necessary to ascertain whether the respondent was in a position to present or represent himself/herself and contest effectively the said proceedings. This requirement should apply equally to the appellate proceedings if and when they are filed by either party. If the foreign court has not ascertained and ensured such effective contest by requiring the petitioner to make all necessary provisions for the respondent to defend including the costs of travel, residence and litigation where necessary, it should be held that the proceedings are in breach of the principles of natural justice. It is for this reason that we find that the rules of Private International Law of some countries insist, even in commercial matters that the action should be filed in the forum where the defendant is either domiciled or is habitually resident. It is only in special cases which is called special jurisdiction where the claim has some real link with other forum that a judgment of such forum is recognized. This jurisdiction principle is also recognized by the Judgments Convention of this European Community. If, therefore, the courts in this country also insist as a matter of rule that foreign matrimonial judgment will be recognized only if it is of the forum where the respondent is domiciled or habitually and permanently resides, the provisions of Clause (d) may be held to have been satisfied. The provision of Clause (e) of Section 13 which requires that the courts in this country will nor recognize a foreign judgment if it has been obtained by fraud, is self-evident. However, in view of the decision of this Court in Smt. Satya v. Teja Singh, (supra) it must be understood that the fraud need not be only in relation to the merits of the matter but may also be in relation to jurisdictional facts. From the aforesaid discussion the following rule can be deduced for recognizing a foreign matrimonial judgment in this country. The jurisdiction assumed by the foreign court as well as the grounds on which the relief is granted must be in accordance with the matrimonial law under which the parties are married.

The exceptions to this rule may be as follows:-

(i) where the matrimonial action is filed in the forum where the respondent is domiciled or habitually, and permanently resides and the relief is granted on a ground available in the matrimonial law under which the parties are married:

(ii) where the respondent voluntarily and effectively submits to the jurisdiction of the forum as discussed above and contests the claim which is based on a ground available under the matrimonial law under which the parties are married.;

(iii) where the respondent consents to the grant of the relief although the jurisdiction of the forum is not in accordance with the provisions of the matrimonial law of the parties. Furthermore, the decree should not be affected by any of the circumstances enumerated in Clauses (a) to (f) of Section 13 CPC The aforesaid rule with its stated exceptions has the merit of being just and equitable. It does no injustice to any of the parties. The parties do and ought to know their rights and obligations when they marry under a particular law. They cannot be heard to make a grievance about it later or allowed to bypass it by subterfuges as in the present case. The rule also has an advantage of rescuing the institution of marriage from the uncertain maze of the rules of the Private International Law of the different countries with regard to jurisdiction and merits based variously on domicile, nationality, residence-permanent or temporary or ad hoc forum, proper law etc. and ensuring certainty in the most vital field of national life and conformity with public policy. The rule further takes account of the needs of modern life and makes do allowance to accommodate them. Above all, it gives protection to women, the most vulnerable section of our society, whatever the strata to which they may belong. In particular it frees them from the bondage of the tyrannical and servile rule that wife’s domicile follows that of her husband and that it is the husband’s domiciliary law which determines the jurisdiction and judges the merits of the case.

Deepalakshmi v. K. Murugesh (Madras), 2010(4) RCR 956, once the parties have selected H.M. Act [Hindu Marriage Act] as their personal law, they cannot abdicate the same at their free will or as per exigencies of situation or according to their whims and fancies. The time at which the domicile is to be determined is when the parties tie nuptial knot under the Hindu Marriage Act and not the date when an application is made for matrimonial reliefs. As a natural corollary thereof, even if a party to the matrimonial petition establishes that after marriage he acquired domicile of some other country, it would not take away the jurisdiction of the Court in India if on the date of the marriage he was domiciled in India.

Smt. Hemavathi Shivashankar v. Dr. Tumkur S. Shivashankar (Karnataka), 2014(12) RCR 844, It was present to the mind of the foreign court that there was a personal law which governed the parties, and the foreign court could not have assumed jurisdiction in the light of Section 19 of the 1955 Act. The court below was clearly wrong in holding that the petition for divorce could have been filed before the foreign court. If further proceedings had stopped at that stage, it was clearly a case where the decree of divorce granted by the foreign court could have been held not binding on the appellant. Therefore, the foreign court did lack jurisdiction as the parties were clearly governed by the provisions of the 1955 Act and therefore, the marriage, to which the 1955 Act applied, could not have been dissolved by a court without jurisdiction, notwithstanding the local law under which the proceedings may have been instituted. The judgment of the foreign court was also violative of clause (a) of Section 13 of the Civil Procedure Code, as the foreign court cannot be considered as a court of competent jurisdiction, since the law under which the parties were married could not recognize it as a competent jurisdictional court to entertain the matrimonial dispute in terms of clause (a) of 13 of the Civil Procedure Code.

Conclusion:

Once the parties are Hindus & their marriage was solemnized according to the Hindu rites. Their matrimonial dispute or relationship is, therefore, governable by the provisions of Hindu Marriage Act,1955. Once the parties or either of the party did not submit to the jurisdiction of the Foreign Court either voluntarily or unconditionally and neither did consent for the grant of divorce in the Foreign Court, the foreign court has no jurisdiction to entertain and try the divorce petition and is neither recognizable nor enforceable in India. The foreign court can pass a valid decree of Divorce, when the matrimonial chord between the parties is governed by the provisions of Hindu Marriage Act,1955 & the decree passed by a foreign court is recognized by the Court in India, as being conclusive, however, subject to fulfilment of rigor of section 13 of Code of Civil procedure, as interpreted by the Supreme Court of India in Y. Narasimha Rao v. Y. Venkata Lakshmi. There is no concept of matrimonial property in India except right of maintenance, right to reside in matrimonial home and to claim in the proceeding under Hindu Marriage Act,1950 from the court to make such provisions in the decree as it deems just and proper with respect to any property presented, at or about the time of marriage, which may belong jointly to both the husband and the wife.

It’s all very well to paint justice blind, but she does better without a bandage round her eyes. She should be blind indeed to favour or prejudice, but clear to see which way lies the truth.

Satyameva Jayate (Literally: “Truth Stands Invincible“) is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows : “Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides.”

In the unfortunate litigation, the Court’s serious Endeavour has to be to find out where in fact the truth lies. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law.

The pre-eminence of truth is the guiding star in a judicial process forming the foundation of justice, had been aptly propounded by Supreme Court of India . It was ruled that the entire judicial system had been created only to discern and find out the real truth and that the Judges at all levels have to seriously engage themselves in the journey of discovering the same. Emphasizing that the quest for truth is the mandate of law and indeed the bounden duty of the courts, it was observed that the justice system will acquire credibility only when the people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest. Ritesh Tewari v. State of U.P. [Ritesh Tewari v. State of U.P., (2010) 10 SCC 677, Jones v. National Coal Board [Jones v. National Coal Board, (1957) 2 QB 55, Maria Margarida case [Maria Margarida Sequeira Fernandes v. Erasmo Jack de Sequeira, (2012) 5 SCC 370, Pooja Pal v. Union of India and others, (2016) 3 SCC 135.

Introduction:-

Sole motive of every investigation and trial is not only to administer and secure the ends of justice but also to find out the truth, as the real justice can be imparted only after arriving at the truth, which can be achieved only by Fair, Just and proper investigation, which is essence of fair trial. Investigation is the structure on which the trial is based. Fair and proper investigation is an attribute of Article 21 of the Constitution of India The expression “fair and proper investigation” in criminal jurisprudence Connotes to encompass two imperatives; firstly, the investigation must be unbiased, honest, just and in accordance with law; and secondly, the entire emphasis has to be to bring out the truth of the case before the court of competent jurisdiction. Unfortunate part is when the investigating agency starts playing the role of either the complainant or the accused and in that way, truth is left behind, which leads to faulty & biased investigation. From the data with regard to presentation of final report either by way of cancellation report or by way of putting the report against the accused under section 173 Code of Criminal Procedure, the ratio of finding the guilt of accused by the courts is very low and similarly, as regards the cancellation reports, the courts on the protest petition filed by the complainant in many cases have exercised the jurisdiction to order further investigation or treating the protest petition as complaint under section 190 Cr.P.C, which ultimately have lead to conviction of the accused. This all leads to the conclusion that the investigation did not reveal the truth & thus the basic canons of Criminal Jurisprudence were not followed. The investigation into a criminal offence must be free from objectionable features or infirmities which may legitimately lead to a grievance on the part of the accused that investigation was unfair and carried out with an ulterior motive. It is also the duty of the investigating officer to conduct the investigation avoiding any kind of mischief and harassment to any of the accused. The investigating officer should be fair and conscious so as to rule out any possibility of fabrication of evidence and his impartial conduct must dispel any suspicion as to its genuineness. The investigating officer “is not merely to bolster up a prosecution case with such evidence as may enable the court to record a conviction but to bring out the real unvarnished truth. In a criminal prosecution, there is an obligation cast on the investigator not only to be fair, judicious and just during investigation, but also that the investigation on the very face of it must appear to be so, eschewing any conduct or impression which may give rise to a real and genuine apprehension in the mind of an accused and not mere fanciful, that the investigation was not fair. In the circumstances, if an informant police official in a criminal prosecution, especially when carrying a reverse burden of proof, makes the allegations, is himself asked to investigate, serious doubts will naturally arise with regard to his fairness and impartiality. It is not necessary that bias must actually be proved. It would be illogical to presume and contrary to normal human conduct, that he would himself at the end of the investigation submit a closure report to conclude false implication with all its attendant consequences for the complainant himself. The result of the investigation would therefore be a foregone conclusion. Babubhai v. State of Gujarat, (2010) 12 SCC 254, Vinay Tyagi v. Irshad Ali, (2013) 5 SCC 762, Vinubhai Haribhai Malaviya and others v. State of Gujarat and another, (2019) 17 SCC 1, Kali Ram v. State of Himachal Pradesh, AIR 1973 Supreme Court 2773

Accountability and responsibility are the two factors, which are generally missing in the investigating agencies, which lead to flow of litigation in the courts. Criminal trials are flooded like anything in the courts. Any Criminal offence is one against the society at large casting an onerous responsibility on the State, as the guardian and purveyor of human rights and protector of law to discharge its sacrosanct role responsibility and committedly, always accountable to the law-abiding citizenry for any lapse.

There is indeed a need to protect society from criminals. The society intent in safety will suffer if persons who commit crime are let off because the evidence against them is to be treated as if it does not exist. The answer, therefore, is that the investigating agency must follow the procedure as envisaged by the statute scrupulously and the failure to do so must be viewed by the higher authorities seriously inviting action against the concerned official so that the laxity on the part of the investigating authority is curbed. State of Punjab v. Baldeo Singh, 1999(39) ACC 349)

Presumption of Innocence :

It is well settled Law that according to the Indian Criminal Jurisprudence every person accused of an offence is presumed to be innocent till he is proved guilty beyond a Reasonable doubt. The onus, therefore, is heavily on the prosecution to prove and establish the offence against the person beyond a reasonable doubt and that the burden never shifts on to the accused to disprove the charge framed against him. In the event of a doubt, the benefit thereof is to be given to the accused. Besides, if from the evidence coming on record two views are possible, then the one favourable to the accused has to be accepted. However Proof beyond reasonable doubt is a guideline, not a fetish and guilty man cannot get away with it because truth suffers some infirmity when projected through human processes Inder Singh and another v. State (Delhi Administration), AIR 1978 Supreme Court 1091)

Maxim-

“let hundred guilty persons be acquitted, but not a single innocent be convicted”.”Falsus in uno falsus in omnibus”

The maxim “let hundred guilty persons be acquitted, but not a single innocent be convicted” is, in practice, changing world over and courts have been compelled to accept that “Society suffers by wrong convictions and it equally suffers by wrong acquittals. The courts have been removing chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. So long chaff, cloud and dust remains, the criminals are clothed with this protective layer to receive the benefit of doubt. So it is a solemn duty of the courts, not to merely conclude and leave the case the moment suspicions are created. It is onerous duty of the court, within permissible limit to find out the truth. It means, on one hand no innocent man should be punished but on the other hand to see no person committing an offence should get scot free. If in spite of such effort suspicion is not dissolved, it remains writ at large, benefit of doubt has to be credited to the accused. Mohan Singh and anr. v. State of M.P., (1999) 1 Supreme Court Reports 276, Krishna Mochi v. State of Bihar, 2002 SCC(Cri) 1220, AIR 2009 SC 1344, Munna @ Pooran Yadav v. State of Madhya Pradesh, (SC).

The maxim “falsus in uno falsus in omnibus” has no application in India and the witnesses cannot be branded as liars. The maxim “falsus in uno falsus in omnibus” has not received general acceptance nor has this maxim come to occupy the status of a rule of law. It is merely a rule of caution. Jakki @ Selvaraj v. State Rep. by the IP, Coimbatore, 2007(9) SCC 589, C.S.D. Swami v. State, AIR 1960 SC 7.

Locus of Complainant:-

It is a well recognized principle of criminal jurisprudence that anyone can set or put the criminal law into motion except where the statute enact or creating an offence indicates to the contrary. The scheme of the Criminal Procedure Code envisages two parallel and independent agencies for taking criminal offences to Court. Even for the most serious offence of murder, a private complaint can, not only be filed but can be entertained and proceeded with according to law. Locus standi of the complainant is a concept foreign to criminal jurisprudence save and except that where the statute creating an offence provides for the eligibility of the complainant, by necessary implication the general principle gets excluded by such statutory provision. Numerous statutory provisions, can be referred to in support of this legal position under as (i) Section 187A of Sea Customs Act, 1878, (ii) Section 97 of Gold Control Act, 1968, (iii) Section 6 of Imports and Exports Control Act, 1947, (iv) Section 271 and Section 279 of the Income Tax Act, 1961, (v) Section 61 of the Foreign Exchange Regulation Act, 1973, (vi) Section 621 of the Companies Act, 1956 and (vii) Section 77 of the Electricity (Supply) Act. This list is only illustrative and not exhaustive. While Section 190 of the Criminal Procedure Code permits anyone to approach the Magistrate with a complaint, it does not prescribe any qualification the complainant is required to fulfill to be eligible to file a complaint. But where an eligibility criterion for a complainant is contemplated specific provisions have been made such as to be found in Sections 195 to 199 of the Criminal Procedure Code. These specific provisions clearly indicate that in the absence of any such statutory provision, a locus standi of a complainant is a concept foreign to criminal jurisprudence. In other words, the principle that anyone can set or put the criminal law in motion remains intact unless contra-indicated by a statutory provision. This general principle of nearly universal application is founded on a policy that an offence i.e. an act or omission made punishable by any law for the time being in force (See section 2(n), Criminal Procedure Code, 1973) is not merely an offence committed in relation to the person who suffers harm but is also an offence against society. The society for its orderly and peaceful development is interested in the punishment of the offender. Therefore, prosecution for serious offences is undertaken in the name of the State representing the people which would exclude any element of private vendetta or vengeance. If such is the public policy underlying penal statutes, who brings an act or, omission made punishable by law to the notice of the authority competent to deal with it, is immaterial and irrelevant unless the statute indicates to the contrary. Punishment of the offender in the interest of the society being one of the objects behind penal statutes enacted for larger good of the society, right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it into a straight-jacket formula of locus standi unknown to criminal jurisprudence, save and except specific statutory exception. To hold that such an exception exists that a private complaint for offences of corruption committed by public servant is not maintainable, the Court would require an unambiguous statutory provision and a tangled web of argument for drawing a far-fetched implication, cannot be a substitute for an express statutory provision.

The scheme underlying Criminal Procedure Code clearly reveals that anyone who wants to give information of an offence may either approach the Magistrate or the officer in charge of a Police Station. If the offence complained of is a non-cognizable one, the Police Officer can either direct the complainant to approach the Magistrate or he may obtain permission of the Magistrate and investigate the offence. Similarly anyone can approach the Magistrate with a complaint and even if the offence disclosed is a serious one, the Magistrate is ‘competent to take cognizance of the offence and initiate proceedings. It is open to the Magistrate but not obligatory upon him to direct investigation by police. Thus two agencies have been set up for taking offences to Court.

Chapter XII of the Criminal Procedure Code, 1973 bears the heading ‘Information to the police and their powers to investigate’ Section 154 provides for information to police in cognizable cases. It casts a duty on the officer in charge, of a police station to reduce to writing every relating to commission of a cognizable offence given to him and the same will be read over to the informant and the same shall be signed by the informant and a copy thereof shall be given to him. If information given to an officer in charge of a Police Station disclosed a non-cognizable offence, he has to enter the substance of the information in a book to be kept by such officer in such form as the State Government may prescribe in this behalf and to refer the informant to the Magistrate (Section 155(1).) Sub-section (2) puts an embargo on the power of the police officer-in-charge of police station to investigate a non-cognizable offence without the order of a Magistrate having power to try the case or commit the case for trial. Section 156 sets out the powers of the officer in charge of police station to investigate cognizable cases. Sub-section (2) of Section 156 may be noticed. It says that ‘no proceeding of a Police officer in any such case shall at any stage be called in question on the ground that the case was one which such officer was not empowered under the section to investigate.’ Sub-section (3) confers power on the Magistrate empowered under Section 190 to take cognizance of an offence, to order an investigation as set out in sub-sections (1) and (2) of Section 156. Section 167 enables the Magistrate to remand the accused to police custody in the circumstances therein mentioned; Section 173 provides that ‘every investigation under Chapter XII shall be completed without unnecessary delay and as soon as it is completed, the officer in charge of the police station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the State Government, setting out various things enumerated in the section. Sub-section (8) of Section 173 provides that despite submission of the report on completion of the investigation, further investigation can be conducted in respect of the same offence and further evidence so collected has to be forwarded to the same Magistrate. The report of this further investigation shall by and large conform with the requirements of sub-sections (2) to (6). Fasciculus of sections in Chapter XIV prescribed conditions requisite for initiation of proceedings Section 190 provides that subject to the provisions of the Chapter, any Magistrate of the first class, and any Magistrate of the second class specially empowered in this behalf under sub-section (2) may take cognizance of any offence – (a) upon receiving a complaint of facts which constitute such offence; (b) upon a police report of such facts, and (c) upon information received from any person other than a police officer, or upon his own knowledge, that such offence has been committed Section 191 obliges the Magistrate when he takes cognizance of an offence under Clause (c) of sub-section (1) of Section 190, to inform the accused when he appears before him, that he is entitled to have the case inquired into or tried by another Magistrate. Section 193 provides that ‘except as otherwise expressly provided in the Code or by any other law for the time being in force, no Court of Session shall take cognizance of any offence as a Court of original jurisdiction unless the case has been committed to it by a Magistrate under the Code.’

Cognizable offence has been defined in Section 2(c) of the Criminal Procedure Code to mean ‘an offence’ for which, and “cognizable case” means a case in which, a police officer may in accordance with the First Schedule or under any law for the time being in force, arrest without warrant’. Complaint is defined in Section 2(d) to mean ‘any allegation made orally or in writing to a Magistrate, with a view to his taking action under the Code, that some person, whether known or unknown has committed an offence, but does not include a police report.’ There is an explanation appended to the section which has some relevance. ‘A report made by a police officer in a case which disclosed, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be complainant.’ Section 2(e) defines ‘non-cognizable offence’ to mean ‘an offence for which’ and “non-cognizable” case means a case in which, a police officer, has no authority to arrest without warrant’. Police report is defined in Section 2(r) to mean ‘a report forwarded by a police officer to a Magistrate under sub-section (2) of Section 173.’ officer-in-charge of a police station’ has been defined in Section 2(o) to include any police officer present at the station house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present. In other words, a Head-constable of Police that is one step higher from a constable can be in charge of a police station., A.R. Antulay v. Ramdas Sriniwas Nayak(Larger Bench), AIR 1984 SC 718

Fair Trial

A fair trial to an accused, a constitutional guarantee under Article 21 of the Constitution of India, would be a hollow promise if the investigation in a case were not to be fair or raises serious questions about its fairness apparent on the face of the investigation. In the nature of the reverse burden of proof, the onus will lie on the prosecution to demonstrate on the face of it that the investigation was fair, judicious with no circumstances that may raise doubts about its veracity. The obligation of proof beyond reasonable doubt will take within its ambit a fair investigation, in absence of which there can be no fair trial. If the investigation itself is unfair, to require the accused to demonstrate prejudice will be fraught with danger vesting arbitrary powers in the police which may well lead to false implication also. Investigation in such a case would then become an empty formality and a farce. Such an interpretation therefore naturally has to be avoided. Mohan Lal v. State of Punjab (SC), AIR 2018 SC 3853.

Sterling worth: a witness worthy of credence

‘Sterling worth’ is not an expression of absolute rigidity. The use of such an expression in the context of criminal jurisprudence would mean a witness worthy of credence, one who is reliable and truthful. This has to be gathered from the entire statement of the witnesses and the demeanor of the witnesses, if any, noticed by the Court. Linguistically, ‘sterling worth’ means ‘thoroughly excellent’ or ‘of great value’. This term, in the context of criminal jurisprudence cannot be of any rigid meaning. It must be understood as a generic term. It is only an expression that is used for judging the worth of the statement of a witness. To our mind, the statements of the witnesses are reliable, trustworthy and deserve credence by the Court. They do not seem to be based on any falsehood. Kuria v. State of Rajasthan (SC), AIR 2013 SC(Crl) 162.

Voice:

Every individual has a distinctive style of speaking which makes identification by those acquainted possible. Identification of a known person by voice in the darkness has been well recognized in criminal jurisprudence. Even if a person tries to camouflage his voice in one call, given the limitations of human nature there will be a tendency to state certain words or sentences in an inimitable style exposing the identity. AIR 2019 SC 3524, Sanjay Rajak v. State of Bihar (SC).

Suspicion

Suspicion, however grave it may be, cannot take the place of proof, and there is a large difference between something that ‘may be? proved and ‘will be proved?. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof. This is for the reason, that the mental distance between ‘may be? and ‘must be? is quite large and divides vague conjectures from sure conclusions. In a criminal case, the court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The large distance between ‘may be? true and ‘must be? true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused is condemned as a convict, and the basic and golden rule must be applied. In such cases, while keeping in mind the distance between ‘may be? true and ‘must be? true, the court must maintain the vital distance between conjectures and sure conclusions to be arrived at, on the touchstone of dispassionate judicial scrutiny based upon a complete and comprehensive appreciation of all features of the case, as well as the quality and credibility of the evidence brought on record. The court must ensure, that miscarriage of justice is avoided and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. Raj Kumar Singh @ Raju @ Batya v. State of Rajasthan (SC), AIR 2013 SC 3150, Hanumant Govind Nargundkar & Anr. v. State of M.P., AIR 1952 Supreme Court 343; Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra, AIR 1973 Supreme Court 2622; Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622; Subhash Chand v. State of Rajasthan, (2002) 1 SCC 702; Ashish Batham v. State of M.P., AIR 2002 Supreme Court 3206; Narendra Singh & Anr. v. State of M.P., AIR 2004 Supreme Court 3249; State through CBI v. Mahender Singh Dahiya, AIR 2011 Supreme Court 1017; and Ramesh Harijan v. State of U.P., AIR 2012 Supreme Court 1979)

Standard of Proof

Graver the crime, greater should be the standard of proof. An accused may appear to be guilty on the basis of suspicion but that cannot amount to legal proof. When on the evidence two possibilities are available or open, one which goes in the favour of the prosecution and the other benefits an accused, the accused is undoubtedly entitled to the benefit of doubt. The principle has special relevance where the guilt or the accused is sought to be established by circumstantial evidence. Statutes like the Negotiable Instruments Act, 1881; the Prevention of Corruption Act, 1988; and the Terrorist and Disruptive Activities (Prevention) Act, 1987, provide for presumption of guilt if the circumstances provided in those statutes are found to be fulfilled and shift the burden of proof of innocence on the accused. However, such a presumption can also be raised only when certain foundational facts are established by the prosecution. There may be difficulty in proving a negative fact. Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 Supreme Court 1622, Babu v. State of Kerala, (2010) 9 SCC 189, C.S.D. Swami v. State, (SC), AIR 1960 SC 7

Private Defence

The following principles emerge on scrutiny of the judgments :

i. Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

ii. The right of private defence is available only to one who is suddenly confronted with the necessity of averting an impending danger and not of self-creation.

iii. A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

iv. The right of private defence commences as soon as a reasonable apprehension arises and it is co-terminus with the duration of such apprehension.

v. It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

vi. In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

vii. It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

viii. The accused need not prove the existence of the right of private defence beyond reasonable doubt.

ix. The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

x. A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.

Failure of justice

The superior court must examine whether the issue raised regarding failure of justice is really a failure of justice or whether it is only a camouflage. The court must further examine whether the said aspect is of such a nature, that non-explanation of it has contributed to penalizing an individual, and if the same is true then the court may say, that since he was not given an opportunity to explain such aspect, there was failure of justice on account of non compliance with the principles of natural justice. The expression failure of justice is an extremely pliable or facile an expression which can be made to fit into any situation of a case.

The court must Endeavour to find the truth. There would be failure of justice not only by unjust conviction but also by acquittal of the guilty, as a result of unjust failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be over emphasized to the extent of forgetting that the victims also have rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under Indian Criminal Jurisprudence. Prejudice, is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under jurisprudence, then the accused can seek benefit under the orders of the Court. Bhimanna v. State of Karnataka (SC), AIR 2012 SC 3026, Shamnsaheb M. Multtani v. State of Karnataka, 2001(1) RCR (Criminal) 617.

Bail

A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. Dataram Singh v. State of Uttar Pradesh, (SC), AIR 2018 SC 980

Sentence

Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc. The object should be to protect the society and to deter the criminal in achieving the avowed object of law by imposing appropriate sentence. It is expected that the Courts would operate the sentencing system so as to impose such sentence which reflects the conscience of the society and the sentencing process has to be stern where it should be.

Imposition of sentence without considering its effect on the social order in many cases may be in reality a futile exercise. The social impact of the crime, e.g. where it relates to offences against women, dacoity, kidnapping, misappropriation of public money, treason and other offences involving moral turpitude or moral delinquency which have great impact on social order, and public interest, cannot be lost sight of and per se require exemplary treatment. Any liberal attitude by imposing meager sentences or taking too sympathetic view merely on account of lapse of time in respect of such offences will be result-wise counter productive in the long run and against societal interest which needs to be cared for and strengthened by string of deterrence inbuilt in the sentencing system.

The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should “respond to the society’s cry for justice against the criminal”. Sevaka Perumal etc. v. State of Tamil Naidu, (AIR 1991 Supreme Court 1463), Bikram Dorjee v. State of West Bengal, (SC), AIR 2009 SC 2539.

Death Penalty

Death penalty jurisprudence in India has been widely debated and differently perceived. The essential principles in this sphere of jurisprudence has been laid down by two Constitution Benches of Supreme Court of India in which dealt with the law after deletion of Section 367(5) of the old Code but prior to the enactment of Section 354(3) of the present Code). Subsequent opinions on the subject indicate attempts to elaborate the principles of law laid down in the aforesaid two decisions and to discern an objective basis to guide sentencing decisions so as to ensure that the same do not become judge centric.

i. Life imprisonment is the rule and death penalty is the exception.

ii. Death sentence must be imposed only in the gravest cases of extreme culpability, namely, in the “rarest of rare” where the alternative option of life imprisonment is “unquestionably foreclosed”.

iii. The sentence is a matter of judicial discretion to be exercised by giving due consideration to the circumstances of the crime as well as the offender. 2014(4) SCC 292, Mahesh Dhanaji Shinde v. State of Maharashtra (SC), Jagmohan Singh v. The State of U.P., 1973 (1) SCC 206.

Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs., 2012(2) RCR (Civil) 441. A timely reminder of that solemn duty was given, in the following words:-

“What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.“

The Criminal Jurisprudence is the backbone of Criminal Investigations & trials, however, the same is not being followed at times, resulting into failure of justice. Time has come that the legislature, investigating agencies are courts are reminded of their solemn duty to establish the truth, so that neither the complainant nor the accused dare to take law in his hands.

Satyameva Jayate (Literally: “Truth Stands Invincible”) is a mantra from the ancient scripture Mundaka Upanishad. Upon independence of India, it was adopted as the national motto of India. It is inscribed in Devanagari script at the base of the national emblem. The meaning of full mantra is as follows : “Truth alone triumphs; not falsehood. Through truth the divine path is spread out by which the sages whose desires have been completely fulfilled, reach where that supreme treasure of Truth resides.”

In the unfortunate litigation, the Court’s serious Endeavour has to be to find out where in fact the truth lies. The truth should be the guiding star in the entire judicial process. Truth alone has to be the foundation of justice. The entire judicial system has been created only to discern and find out the real truth. Judges at all levels have to seriously engage themselves in the journey of discovering the truth. That is their mandate, obligation and bounden duty. Justice system will acquire credibility only when people will be convinced that justice is based on the foundation of the truth. Every trial is voyage of discovery in which truth is the quest. A judge in the Indian System has to be regarded as failing to exercise its jurisdiction and thereby discharging its judicial duty, if in the guise of remaining neutral, he opts to remain passive to the proceedings before him. He has to always keep in mind that “every trial is a voyage of discovery in which truth is the quest”. In order to bring on record the relevant fact, he has to play an active role; no doubt within the bounds of the statutorily defined procedural law. The said quotes are taken from a recent judgment by the Hon,ble Supreme Court of India and although on different context, but would be applicable to all the trials including the leading of evidence and supports the case law on the secondary evidence.

Evidence is important part in the legal field. There has always been an issue with regard to proving the documents and particularly, when the original document is not there, either it has been lost, destroyed or in possession of other party and who despite notice of its production either denies its possession or its authenticity. Section 3 of Indian Evidence Act,1872 defines the term Evidence and Document: “Evidence” which means and includes, all statements which the court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence; all documents including electronic records produced for the inspection of the court; such documents are called documentary evidence. The word “Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.

It is trite that under the Evidence Act, 1872, facts have to be established by primary evidence and secondary evidence is only an exception to the rule for which foundational facts have to be established to account for the existence of the primary evidence. The pre-conditions for leading secondary evidence are that such original documents could not be produced by the party relying upon such documents in spite of best efforts, unable to produce the same which is beyond their control. The party sought to produce secondary evidence must establish for the non-production of primary evidence. Unless, it is established that the original documents is lost or destroyed or is being deliberately withheld by the party in respect of that document sought to be used, secondary evidence in respect of that document cannot accepted.

Chapter V of the Indian Evidence Act,1872 deals with documentary evidence. As per section 61 of Indian Evidence Act,1872, the contents of a document may be proved either by primary or by secondary evidence. Section 62 of Act,1872 define primary evidence, whereas section 63 define secondary evidence. Section 64 mandates documents to be proved by primary evidence except in the cases mentioned in section 65,in which secondary evidence relating to documents may be given. Section 61 to 66 of Indian Evidence Act,1872 reads as:-

61. Proof of contents of documents. – The contents of documents may be proved either by primary or by secondary evidence.

62. Primary Evidence. – Primary evidence means the document itself produced for the inspection of the court.

Explanation 1-Where a document is executed in several parts, each part is a primary evidence of the document.

Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it

63. Secondary evidence. – Secondary evidence means and includes-

(1) Certified copies given under the provisions hereinafter contained;

(2) Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;

(3) Copies made from or compared with the original;

(4) Counterparts of documents as against the parties who did not execute them;

(5) Oral accounts of the contents of a document given by some person who has himself seen it.

64. Proof of documents by primary evidence. – Documents must be proved by primary evidence except in the cases hereinafter mentioned.

“65. Cases in which secondary evidence relating to documents may be given. – Secondary evidence may be given of the existence, condition, or contents of a document in the following cases :-

(a) When the original is shown or appears to be in the possession or power –

of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or

of any person legally bound to produce it,

and when, after the notice mentioned in Section 66, such person does not produce it;

(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;

(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;

(d) when the original is of such a nature as not to be easily movable;

(e) when the original is a public document within the meaning of Section 74;

(f) when the original is a document of which a certified copy is permitted by this Act, or by any other law in force in (India) to be given in evidence;

(g) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection.”

66. Rules as to notice to produce – Secondary evidence of the contents of the documents referred to in section 65, clause (a), shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, [or to his attorney or pleader] such notice to produce it as is prescribed by law; and if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case:

Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:-

(1) when the document to be proved is itself a notice;

(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;

(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;

(4) when the adverse party or his agent has the original in Court;

(5) when the adverse party or his agent has admitted the loss of the document;

(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.”

The principle underlying the provisions of Section 65 of the Evidence Act is that the best evidence that is available should be produced. The original document is always the best and primary evidence. Section 65 provides an alternative method of proving the contends of a document which for various reasons cannot be produced. However, it is liable to be shown that the original document of which secondary evidence is sought to be produced was in existence. Besides, secondary evidence is admissible when it is shown that the primary evidence which is the original document was in existence. The law on the subject has undergone various changes as a result of interpretation of the provisions of law and with regard to admissibility of evidence, required to be proved by way of secondary evidence. The law with regard to secondary evidence, its admissibility, procedure to be followed to prove the same are enumerated as:-.

Requirements for leading secondary evidence:- Before secondary evidence of a document can be allowed to be led two things have to be satisfied : (1) that the original document was properly stamped and admissible in evidence and (2) that one of the conditions enumerated in section 65 of the Indian Evidence Act entitling the leading of secondary evidence has been established. 1979 PLR 409, Gurcharan Singh v. Harbhagwan, (P&H).

No necessity of filing the application for secondary evidence:- There is no requirement that an application is required to be filed in terms of Section 65(c) of the Evidence Act before the secondary evidence is led. A party to the lis may choose to file an application which is required to be considered by the trial court but if any party to the suit has laid foundation of leading of secondary evidence, either in the plaint or in evidence, the secondary evidence cannot be ousted for consideration only because an application for permission to lead secondary evidence was not filed. In deed, there is not even a requirement in law to file an application for reception of secondary evidence. It may be practice in some courts and may be adopted by some counsel. It is neither mandated under Civil Procedure Code nor is it a requirement under the Evidence Act, All that the Evidence Act requires for production of secondary evidence is that one or other circumstance set out under Section 65 of the Evidence Act must be satisfied..2014(9) RCR(CIVIL)3009, Darshan Lal v. Gurmail Singh & others, 2018(3) PLR 181, Harbans Kaur v. Beant Kaur (Argued by the author of this Article) : 2020(2) RCR 437, Dhanpat v. Sheo Ram (SC).

Procedure for reception of secondary evidence:- In Bipin Shantilal Panchal v. State of Gujarat, 2001 (1) RCR (Criminal) 859, the Hon’ble Apex Court has laid down that the procedure has been set for receiving the document when the same is objected to during trial. Practice of holding up trial on objections at the time of tendering of documents was castigated and was held to be an ‘archaic practice’. Leading of secondary evidence would facilitate the Court to test the admissibility, validity and genuineness of the document in terms of its execution. If the execution of the document at the threshold of existence and loss thereof is proved, the Court can rely upon such document in accordance with law and in the event of failure, the Court would eschew the same. In Simarpal Singh v. Hakam Singh 2009 (2) PLR 562, the court had an occasion to refer to the procedure for reception of secondary evidence that nothing more needs to be done than stating one of the grounds as required under Section 65 of the Evidence Act for justification of reception of secondary evidence. Whether the grounds do really exist or not could be tested in cross examination only. The same position has also been affirmed in S.P. Arora v. Satbir Singh, 2009(3) Lawdigital.in 583 (P&H) : 2010 (5) RCR 350, where the Court has explained that the attempt to de-exhibit a document that is received by the court simply does not arise. To prove a document by way of primary or secondary evidence is a rule of evidence. Whether the party seeking leave of the Court to lead secondary evidence ultimately succeeds in proving the document or not is a question of fact and depends upon evidence. It is settled rule of pleadings that a party must disclose material facts and need not plead evidence. The material fact is loss of document and circumstances leading to loss is a question of evidence. This question can only be decided after providing opportunity to the party concerned to lead secondary evidence. To grant leave to lead secondary evidence does not mean the document is admitted in evidence nor it is a finding of the existence of any of the conditions indicated in Section 65 of the Evidence Act. It only amounts to holding an enquiry regarding existence of document and its loss under some circumstances. Failure or success to prove the existence of document or its loss cannot be pre-determined that too without providing opportunity. Whether it is proved or not, is to be seen after the leave is granted and the material/evidence produced, is evaluated.Further supportive case law is 2007(4) RCR(CIVIL) 311, Ashok Kumar Sachdeva v. Harish Malik, (P&H, Jatinder Singh v. Jaswant Singh and another, 2019 (1) PLR 680., The Co-operative Society vs Suresh Kumar & others, 2020(4) RCR(Civil) 175, M/S Devyani Food Industries Pvt Ltd vs M/S Neelkanth Agencies, 2020(1) RCR(Civil) 409. The leading of evidence at the stage pursuant to the passing of the impugned order would not crystallize any substantial right in favour of the defendants, rather the evidence led by the parties would be tested at the threshold of admissibility, validity and genuineness of the document in terms of execution and its nature. Later stage would be an appropriate stage for lawful consideration of such a criteria i.e. validity, admissibility and genuineness of the document. Though there is no provision in law for de-exhibiting the document already exhibited in evidence, but the exhibition of a document, if objected to has to be answered in terms of its admissibility at a later stage. It will be for the Court to examine and decide as to whether it will be appropriate to rely upon such secondary evidence or not for want of compliance of Section 65 of the Evidence Act. In case, Court finds the secondary evidence not reliable, the Court is at liberty to eschew the same. However, the attempt of a party for production and to exhibit the document cannot be thrown at this threshold. 2018(3) PLR 525, Richhpal Singh v. Iqbal Singh, 2019(4) PLR 625, Ashok Kinger vs Pradeep Kinger.

Objecting to reception of documents and forcing an adjudication by the court before a document is assailed and exhibited. Leading of evidence cannot be shunned merely because its probative value would not be of high order. There had been a long time practice of objecting to reception of documents and forcing an adjudication by the court before a document is assailed and exhibited. In the judgment in Bipin Shantilal Panchal v. State of Gujrat (2001) 3 SCC 1 the Supreme Court said that the practice of objecting to the exhibition of documents and inviting the court to give finding on relevance of document has the inevitable consequences of holding up trial and the new practice that was to be supplanted shall be to receive the documents subject to proof, if the court cannot take an immediate decision on the relevance or admissibility of documents. The only exception could be when the document is insufficiently stamped or a document not stamped since the bar to reception of the document is absolute under Section 35 of the Indian Stamp Act. It stands on a different footing, for such reception will itself take away the right of a person to object to the admissibility of the document at a later stage by virtue of Section 36 of the Stamp Act.In Z. Engineers Construction Pvt. Ltd. & Anr. v. Bipin Bihari Behera & Ors., 2020 SCC OnLine SC 184, held that even in respect of deficiency of stamp duty in the State of Orissa where a question arose as to whether possession had been delivered in pursuance of a registered power of attorney, the same was a question of fact which was required to be decided after the evidence was led.

Secondary evidence of a primary document, which itself is inadmissible for want of sufficient stamp duty affixed is not permissible. The law in this regard has been settled in .AIR 1971 SC 1070, Jupudi Kesava Rao v. Pulavarthi Venkata Subbarao, (SC), followed in 2007(4) RCR(CIVIL) 548, Hariom Agrawal v. Prakash Chand Malviya, (SC),it has been held “The Evidence Act however does not purport to deal with the admissibility of documents in evidence which require to be stamped under the provisions of the Indian Stamp Act. Chapter IV of the Stamp Act deals with instruments not duly stamped. Section 35(1) of this Act provides that: “Every person having by law or consent of parties authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same”. Further Section 36 lays down that : “Where an instrument has been admitted in evidence, such admission shall not, except as provided in Section 61, be called in question at any stage of the same suit or proceeding on the ground that the instrument has not been duly stamped”. The first limb of Section 35 clearly shuts out from evidence any instrument chargeable with duty unless it is duly stamped. The second limb of it which relates to acting upon the instrument will obviously shut out any secondary evidence of such instrument, for allowing such evidence to be let in when the original admittedly chargeable with duty was not stamped or insufficiently stamped, would be tantamount to the document being acted upon by the person having by law or authority to receive evidence. Proviso (a) is only applicable when the original instrument is actually before the Court of law and the deficiency in stamp with penalty is paid by the party seeking to rely upon the document. Clearly secondary evidence either by way of oral evidence of the contents of the unstamped document or the copy of it covered by Section 63 of the Evidence Act would not fulfil the requirements of the proviso which enjoins upon the authority to receive nothing in evidence except the instrument itself. Section 35 is not concerned with any copy of an instrument and a party can only be allowed to rely on a document which is an instrument for the purpose of Section 35. ‘Instrument’ is defined in Section 2(14) as including every document by which any right or liability is, or purports to be created transferred, limited, extended, extinguished or recorded. There is no scope for inclusion of a copy of a document as an instrument for the purpose of the Stamp Act. If Section 35 only deals with original instruments and not copies Section 36 cannot be so interpreted as to allow secondary evidence of an instrument to have its benefit. It is clear from the decisions of this Court and a plain reading of Sections 33, 35 and 2(14) of the Act that an instrument which is not duly stamped can be impounded and when the required fee and penalty has been paid for such instrument it can be taken in evidence under Section 35 of the Stamp Act. Sections 33 or 35 are not concerned with any copy of the instrument and party can only be allowed to rely on the document which is an instrument within the meaning of Section 2(14). There is no scope for the inclusion of the copy of the document for the purposes of the Indian Stamp Act. Law is now no doubt well settled that copy of the instrument cannot be validated by impounding and this cannot be admitted as secondary evidence under the Indian Stamp Act, 1899.

Primary Document inadmissible for want of registration, its secondary evidence is not permissible:- Once a document is inadmissible as per section 49 of the Registration Act,1908 for want of compulsory registration under section 17 of the Act,1908, how the secondary evidence of such a inadmissible document be lead. Once it is clear that the original of the Photostat document was itself required to be registered compulsorily under Section 17(i)(b) of the Registration Act,1908 then the question which falls for consideration is whether a document of which original is not admissible, could be permitted to be proved by allowing adducing of its secondary evidence and the answer is No., Shri Balwant Singh v. Shri Mehar Singh, AIR 1974 Punjab and Haryana 130 followed in 2002(4) RCR 830, Hari Singh v. Shish Ram, (P&H).

Mutation:- It has been held by a Full Bench decision of the Court in State of Punjab v. Pohu and another, 1986 R.R.R. 228 : 1986(1) P.L.R. 109 that mutation is neither a primary nor a secondary evidence of the contents of sale deed and is not at all adequate evidence of the amount of consideration paid in respect of sale transaction. Therefore, the mutations enumerated above produced by the appellant in her support have to be ruled out of evidence., relied in 1987 RRR 330, Smt. Kaushalya Devi v. Union of India, (P&H).

Marking of a document as Exhibit does not dispense with a requirement of legal proof of such document.:-Further, a document does not become evidence per se, by the only fact that it is assigned an exhibit number. Marking a document or assigning an exhibit number does not dispense with a requirement of legal proof of such document. A registration copy of the document tendered in court would have to be supported by i) any of the circumstances for reception of secondary evidence under Section 65 of the Evidence Act ii) the document is spoken and proved in the manner that Section 63 of the Indian Succession Act and Section 68 of the Evidence Act require. These are again essentially matters of evidence which will come through only when the witnesses are put through cross examination at the trial. Grant of permission to lead secondary evidence does not amount to holding that the document is admitted in evidence nor does the same amount to a finding with regard to the existence or loss of the document in question nor does it tantamount to holding a finding of existence of any of the conditions enumerated in section 65 of the Indian Evidence Act. Grant of leave to lead secondary evidence only amounts to holding an enquiry regarding existence of documents and its loss under some circumstance. Failure or success to prove the existence of a document cannot be pre-determined and that too without providing opportunity, Rakesh Mohindra v. Anita Beri and others 2015 (4) RCR (Civil) 1023, 2017(3) LH 2025, Rajbir Singh v. Ved Parkash, (Punjab And Haryana),2020(1) RCR(CIVIL) 409, M/s Devyani Food Industries Pvt. Ltd. v. M/s Neelkanth Agencies (P&H).

Documentary evidence by way of an electronic record:- In the absence of certificate under Section 65B of the Indian Evidence Act, 1872, secondary evidence in electronic mode is not admissible. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub-section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act : (i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity. Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied : (a) There must be a certificate which identifies the electronic record containing the statement;(b) The certificate must describe the manner in which the electronic record was produced;(c) The certificate must furnish the particulars of the device involved in the production of that record;(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence Act; and(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible.Anwar P.V. v. P.K.Basheer (2014) 10 SCC 473.

When the primary document is alleged to be in possession of other party:-.In Ashok Dulichand v. Madahavlal Dube and Anr., [1976] 1 SCR 246, and it was held “According to Clause (a) of section 65 of Indian Evidence Act, Secondary evidence may be given of the existence, condition or contents of a document when the original is shown or appears to be in possession or power of the person against whom the document is sought to be proved or of any person out of reach of, or not subject to, the process of the Court of any person legally bound to produce it, and when, after the notice mentioned in Section 66 such person does not produce it. Clauses (b) to (g) of Section 65 specify some other contingencies wherein secondary evidence relating to a document may be given.”There has to be compliance of section 66 of the Evidence Act. Non compliance of Section 66 of the Evidence Act would make the application liable to be dismissed. Which was relied in 2019(1) PLR 680, Jatinder Singh v. Jaswant Singh and recently in Jagmail Singh vs Karamjit Singh, 2020(2) RCR(Civil) 510., In U. Sree v. U. Srinivas, 2013(1) R.C.R. (Civil) 883, the Hon’ble Apex Court has commented that to permit secondary evidence, which has been destroyed by the person in whose possession it was and whose it created an enforceable right or an obligation, is normally not to be allowed as secondary evidence. The secondary evidence of such nature may be tampered with and it would be against public policy to take chance of running the risk of fraud being committed.In U. Sree v. U. Srinivas, 2013 (1) RCR (Civil) 883, the Hon’ble Supreme Court has held that mere denial by the party to produce the original document in whose possession it is stated to be does not lay down ground for producing secondary evidence. Section 65 of the Indian Evidence Act enumerates in which cases secondary evidence relating to documents can be led. Section 63 (2) may be referred to which allows a document to be admitted as secondary evidence, being a copy prepared by mechanical process and the correctness of the Photostat document has to be established. In a situation where Photostat copy of a document is produced and there is no proof of its accuracy or of it having been compared with or it being true reproduction of the original, such document cannot be considered as secondary evidence. In other words, Photostat copy of a document is not admissible as secondary evidence unless proved to be genuine or is admitted by opposite party. Thus a Photostat copy of a document can be produced in evidence only when it is alleged and proved that the original was in existence and is lost or destroyed or is in possession of opposite party who failed to produce it or in any other circumstances mentioned in section 65 of the Act. Recently in 2020(2) RCR 510, Jagmail Singh v. Karamjit Singh (SC), it has been held that A perusal of Section 65 makes it clear that secondary evidence may be given with regard to existence, condition or the contents of a document when the original is shown or appears to be in possession or power against whom the document is sought to be produced, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after notice mentioned in Section 66 such person does not produce it. It is a settled position of law that for secondary evidence to be admitted foundational evidence has to be given being the reasons as to why the original Evidence has not been furnished.

Photostat copy of a document:-.(a) Photostat copy of a document can be allowed to be produced only in absence of original document .b) When a party seeks to produce Photostat copy it has to lay the foundational facts by proving that original document existed and is lost or is in possession of opposite party who failed to produce it. Mere assertion of the party is not sufficient to prove these foundational facts .c) The objections as to non existence of such circumstances or non existence of foundational facts must be taken at earliest by the opposite party after the Photostat copy is tendered in evidence. d) When the opposite party raises objection as to authenticity of the Photostat copy its authenticity has to be determined as every copy made from a mechanical process may not be accurate. Both the requirements of clause (2) of section 63 are to be satisfied. e) Allowing production of Photostat copy in evidence does not amount to its proof. Its probative value has to be proved and assessed independently. It has to be shown that it was made from original at particular place and time. f) In cases where the Photostat copy is itself suspicious it should not be relied upon. Unless the court is satisfied that the Photostat copy is genuine and accurate it should not be read in evidence .g) The accuracy of Photostat copy shall be established on oath to the satisfaction of court by the person who prepared such copy or who can speak of its accuracy.” Surinder Kaur v. Mehal Singh and others 2014(1) R.C.R. (civil) 467.

Secondary evidence of Dying Declaration:-In Aher Rama Gova & Ors. v. State of Gujarat, (1979) 4 SCC 500, the secondary evidence of dying declaration recorded by a Magistrate was produced in evidence. The Court found that though the original dying declaration was not produced but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable whereas the Head Constable deposed that he had made a copy of the same and given it back to the Magistrate. Therefore, the Court found that the original dying declaration was not available and the prosecution was entitled to give secondary evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original. Thus, the secondary evidence of dying declaration was admitted in evidence, though no application to lead secondary evidence was filed.

In the end, rule of justice requires that the documents should be allowed to be brought on record and it is for the court to decide at the time of deciding the final lis with regard to authenticity, admissibility, genuineness of the document and as to whether the secondary evidence fulfills the requirements.

Discovery of the truth is the essential purpose of any trial or enquiry, observed a three-Judge Bench of the Supreme Court in Maria Margarida Sequeria Fernandes v. Erasmo Jack de Sequeria through LRs.,: 2012(2) RCR (Civil) 441 :. A timely reminder of that solemn duty was given, in the following words:-

“What people expect is that the Court should discharge its obligation to find out where in fact the truth lies. Right from inception of the judicial system it has been accepted that discovery, vindication and establishment of truth are the main purposes underlying the existence of the courts of justice.”

Happy Families are all alike, every unhappy Family is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

The concept of Joint Hindu Family, Ancestral, coparcener has always been a debatable issue and give rise to litigation and as such effort has been made to clarify the doubts and to explain the law in a more explicit manner.

To begin with, it is important to understand, as to who are Hindus.

The word “Hindu” is derived from the river Sindhu otherwise known as Indus which flows from the Punjab. “That part of the great Aryan race”, which immigrated from Central Asia, through the mountain passes into India, settled first in the districts near the river Sindhu (now called the Indust). The Persians pronounced this word Hindu and named their Aryan brethren Hindus. ”

The Constitution-makers were fully conscious of the broad and comprehensive character of Hindu religion; and so, while guaranteeing the fundamental right to freedom of religion, Explanation II to Article 25 of Constitution of India was kept in mind under the codifying Acts, namely, the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, the Hindu Minority and Guardianship Act, 1956 and the Hindu Adoptions and Maintenance Act, 1956, thereafter the concept of the term “Hindu” has undergone a radical change and it has been given an extended meaning. Section 2 The Hindu Succession Act, 1956 for instance, provides that this Act applies-

This Act applies-

(a) to any person, who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj;

(b) to any person who is a Buddhist, Jaina or Sikh by religion; and

(c) to any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed. Explanation.-The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-

(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;

(b) any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;

(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.

The same provision is made in the other three Acts, as referred above.

Succession/Inheritance Under Hindu Law:-

Hindus were governed by Shastric and Customary laws which varied from region to region and sometimes it varied in the same region on a caste basis. As the country is vast and communications and social interactions in the past were difficult, it led to adversity in the law. Consequently in matters of succession also, there were different schools, like Dayabhaga in Bengal and the adjoining areas; Mayukha in Bombay, Konkan and Gujarat and Marumakkattayam or Nambudri in Kerala and Mitakshara in other parts of India with slight variations.

The two systems of inheritance which are predominant amongst the Hindus in India are; Mitakshara system and Dayabhaga system. Dayabhaga system prevails in Bengal, Mitakshara system in other parts of India. The difference between the two systems arises from the fact that, while the doctrine of religious efficacy is the guiding principle under Dayabhaga School, there is no such definite guiding principle under Mitakshara School.

Mitakshara System recognizes two modes of devolution of property, namely, survivorship and succession. The rule of survivorship applies to joint family property, the rule of succession apply to property held in absolute severalty by the last owner. The reason is that while every member of a Mitakshara joint family has only an undivided interest in the joint property. On birth, the son acquires a right and interest in the family property. According to this school, a son, grandson and a great grandson constitute a class of coparcenars, based on birth in the family. This means that with every birth or death of a male in the family, the share of every other surviving male either gets diminished or enlarged. If a coparcenary consists of a father and his two sons, each would own one third of the property. If another son is born in the family, automatically the share of each male is reduced to one fourth. No female is a member of the coparcenary. The principles of Mitakshara coparcenary are embedded in the Hindu Law jurisprudence and continue to apply after 1956 Act(of course prior to the amending Act of 2005).

Dayabhaga recognizes only one mode of devolution, namely, succession. It does not recognize the rule of survivorship even in the case of joint family property, a member of a Dayabhaga joint family holds his share in quasi-severalty, so that it passes on his death to his heirs as if he was absolutely seized thereof, and not to the surviving coparceners. The Dayabhaga school neither accords a right by birth nor by survivorship though a joint family and joint property is recognized. Neither sons nor daughters become coparceners at birth nor do they have rights in the family property during their father’s lifetime. However, on his death, they inherit as tenants-in-common. It is a notable feature of the Dayabhaga School that the daughters also get equal shares along with their brothers.

Joint Hindu Family

A joint Hindu Family consists of all persons lineally descended from a common ancestor, and includes their wives and unmarried daughters. Joint Hindu Family is controlled by the head of the family and is called Karta. Gowli Buddanna v. Commissioner of Income-tax, Mysore, AIR 1966 SC 1523.(Para 210 of Hindu Law by Mulla)

There must be atleast two members to constitute it. It may even consists of two female members. It may similarly consists of a male Hindu and the widow of the deceased brother. Smt. Sitabai and another v. Ramachandra, reported in AIR 1970 SC 343

Possession of a joint family property is not a necessary requisite for the constitution of joint family. It is true that for the existence of a joint family, the family need possess no property. The chord that knits the members of the family together is not property but the relationship. Hindus get a joint family status by birth and the joint family property is only an adjunct of the joint family.

A presumption has always been in favour of joint Hindu undivided family property unless it is proved to the contrary. The law presumes that the members of a Hindu family are joint. That presumption will be stronger in the case of a father and his sons. It is for the party who pleads that a member of a family has separated himself from the family to prove it satisfactorily. Bhagwati Prasad Sah and others v. Dulhin Rameshwari Kuer and another, reported in AIR 1952 SC 72, Indranarayan v. Roop Narayan and another, AIR 1971 Supreme Court 1962, Kaushal Kishore and others v. Dharam Kishore and others, 1977 PLR 749.

No doubt, the Old Hindu Law, after coming into being of The Hindu Succession Act,1956 has been codified, to the extent mentioned therein. However, even, at the time of framing the Act,1956, the concept of Joint Hindu Family co-parcenary property, was retained, by the law framers. It was, under these circumstances, that Section 6 of the Act, was incorporated, in the said Act, which relates to the mode of devolution of the property, which was co-parcenary, in the hands of the male holder. It, therefore, could not be said, that the entire concept of the co-parcenary property, was completely eliminated or obliterated, while framing the Act. Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum and others, AIR 1978 Supreme Court 1239, Raj Rani v. Chief Settlement Commissioner, AIR 1984 Supreme Court 1234 Balbiri Devi v. Tejbir Singh, 2010(3) RCR(Civil) 35.

Under the Hindu Law, the moment a son is born, he gets a share in father’s property and become part of the coparcenary. His right accrues to him not on the death of the father or inheritance from the father but with the very fact of his birth. Normally, therefore whenever the father gets a property from whatever source, from the grandfather or from any other source, be it separated property or not, his son should have a share in that and it will become part of the joint Hindu family of his son and grandson and other members who form joint Hindu family with him. This position has been affected by section 8 of the Hindu Succession Act, 1956 and, therefore, after the Act, when the son inherited the property in the situation contemplated by Section 8, he does not take it as Karta of his own undivided family but takes it in his individual capacity. “the property which devolved on a Hindu on the death of his father inte-state would not constitute HUF property consisting of his own branch including his son. In other words, the son’s son would not have any right in the property of his grand father”. Commissioner of Wealth Tax, Kanpur and Ors. v. Chander Sen and Ors. [1986] 161 ITR 370, Yudhishter v. Ashok Kumar, (1987) 1 SCC 204, Commissioner of Income Tax v. P.L. Karuppan Chettiar, 1993 Supp (1) SCC 580 and Additional Commissioner of Income Tax v. M. Karthikeyan, 1994 Supp. (2) SCC 112.

It is manifest that the language of Section 8 must be constructed in the context of Section 6 of the Act. The provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act,1956 came into force i.e. where succession opened before the Amending Act, Section 8 of the Act will have no application. Eramma v. Veerupana and others, AIR 1966 Supreme Court 1879, Daya Singh (Dead) Through LRs. and another v. Dhan Kaur, 1974(1) SCC 700.

Ancestral property commonly known as Jaddi, Pushtani, Dada lahi and Coparcenary Property

The terminology “Ancestral” has been derived from the word “Jad” i.e. A Grandfather, an ancestor and from “Pusht dar Pusht” i.e. generation after generation.

The word ancestral property has not been defined in any statute i.e. The Hindu Succession Act, 1956, The Indian Succession Act,1925.

Ancestral Property means Property inherited from paternal ancestor-All property inherited by a male Hindu from his father, fathers father or fathers fathers father, is ancestral property and any property inherited by a person from any other relation is his separate property. The essential feature of ancestral property according to Mitakshara law is that the sons, grandsons and great-grandsons of the person who inherits it, acquire an interest, and the rights attached to such property at the moment of their birth. (Para 221 of Hindu Law by Mulla) Ass Kaur v. Kartar Singh, 2007(3) RCR(Civil) 369 : (2007)5 SCC 561.

Coparcener is one who shares (equally) with others in inheritance in the estate of a common ancestor. Otherwise called parceners, are such as have equal portion in the inheritance of an ancestor, or who come in equality to the lands of their ancestors. A person to whom an estate descends jointly and who holds it as an entire estate. But sometimes, two or more persons together constituted the heir, and to this case they took the land as ‘parceners’ or ‘coparceners’, the latter expression being the more common. In theory of law, coparceners together constituted a single heir; ‘they be but one heir and yet several persons’. They were called parceners because, every coparcener had a common law right to have a partition made.

A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenery(Prior to amendment Act,2005). In other words, three generations comes to the holder in unbroken male descendant. Coparcenery is a creature of law. It cannot be created by act of parties. By adoption, a stranger may be introduced as a member thereof. It is a family unit. A Hindu coparcenary is, however, a narrower body than the joint family, only males who acquire by birth an interest in the joint or co-parcenary property can be members of the coparcenary or coparceners. No female can be ‘a coparcener prior to enactment of Hindu Succession (Amendment) Act, 2005 but by virtue of amendment,2005, now daughters have equal right and are co-parceners. (Para 211 to 214,219 of Hindu Law by Mulla)

Coparcenary is a creature of Hindu Law and cannot be created by agreement of parties except in the case of reunion. It is a corporate body or a family unit. The law also recognizes a branch of the family as a subordinate corporate body. The said family unit, whether the larger one or the subordinate one, can acquire, hold and dispose of family property subject to the limitations laid down by law. Ordinarily, the manager, or by consent, express or implied, of the members of the family, any other member or members can carry on business or acquire property, subject to the limitations laid down by the said law, for or on behalf of the family. Such business or property would be the business or property of the family. One or more members of that family can start a business or acquire property without the aid of the joint family property, but such business or acquisition would be his or their acquisition. The business so started or property so acquired can be thrown into the common stock or blended with the joint family property in which case the said property becomes the estate of the joint family. But he or they need not do so, in which case the said property would be his or their self-acquisition, and succession to such property would be governed not by the law of joint family but only by the law of inheritance. In such a case, if a property was jointly acquired by them, it would not be governed by the law of joint family; for Hindu law does not recognize some of the members of a Joint family belonging to different branches, or even to a single branch, as a corporate unit. Bhagwan Dayal (since deceased) v. Mst. Reoti Devi (deceased) reported in AIR 1962 SC 287, Sunil Kumar and another v. Ram Prakash and others [(1988) 2 SCC 771.

Concept of Three Degrees above & Below:

Under Mitakshara law, whenever a male ancestor inherits any property from any of his paternal ancestors upto three degrees above him, then his male legal heirs upto three degrees below him, would get an equal right as coparceners in that property. A person inheriting property from his three immediate paternal ancestors holds it, and must hold it, in coparcenary with his sons, son’s sons, and son’s son’s sons, but as regards other relations, he holds it, and is entitled to hold it as his absolute property. if the property is inherited from a paternal ancestor beyond the third degree then the property is not ancestral as against the inheritor’s sons, and the inheritor has absolute powers of disposal over it. So also, if the inheritor has neither a son, son’s son nor son’s son’s son, the property is absolute in the inheritor’s hands even though he may have other relations, for instance, a great-great-grandson or a paternal uncle, in the case of inheritance from father. But property which comes to an inheritor from one of his three immediate paternal ancestors as absolute property owing to the absence of sons, grandsons or great-grandsons, becomes ancestral property with the birth of any of them, though an alienation made by the inheritor before such birth, cannot be impeached. The character of ancestral property is not taken away by there being a partition of the property in the family of the inheritor, and though a share of ancestral property allotted to a coparcener on partition will be his separate property as regards others [Bejai Bahadur v. Bhupindar, 17A. 456 : 221. A 139 (PC), it will be ancestral property as against the allottee’s sons, grandsons, and great-grandsons whether born before or after the partition. Valliammai Achi v. Nagappa Chettiar, (SC), AIR 1967 SC 1153, Sunil Kumar and another v. Ram Prakash and others (1988) 2 SCC 771 Sheela Devi v. Lal Chand, (SC) : 2006(4) RCR CIVIL 912, 2018(3) RCR(Civil) 1004, Maya Devi v. Amrjit Kaur.

It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, The character cannot change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession Valliammai Achi v. Nagappa Chettiar and Ors., AIR 1967 SC 1153, C. Krishna Prasad v. C.I.T, Bangalore, 1975 (1) SCC 160, Rohit Chauhan v. Surinder Singh and Ors. 2013(4) R.C.R.(Civil) 40 : 2013 (9) SCC 419, Shyam Narayan Prasad v. Krisha Prasad & Ors., (2018) 7 SCC 646.

” ‘Interest‘ is a word of wide and vague significance, and no doubt it might be used of a wife’s or daughter’s right to be maintained which right accrues in the daughter’s case on birth; but if the father’s obligations are increased, his ownership is not divested, divided or impaired by marriage or the birth of a daughter. This is equally true of ancestral property belonging to himself alone as of self-acquired property.” (AIR 1966 SC 1523)

Acceleration of Succession:-Property which is originally ancestral does not become the self acquired property of the donee by the fact of his having obtained it by gift,will and not by inheritance, when it would have descended to him by inheritance even if there had been no gift,will. (1925)7 Lah 4, Kapur Chand Major v. Des Raj, 1974 PLR 522.

Presumption, Proof & Onus:-There is no presumption that the property is ancestral. It is well settled that the onus lies on the person who asserts the ancestral nature of the property. Mere mention of name of common ancestor in the settlement pedigree table, not presumptive proof that the land is ancestral. The ancestral nature of the property has to be proved by way of documentary evidence. It is however tirate of law that once the party has admitted in the pleadings that the property is ancestral,there cannot be an issue in this regard, so that the party has to still prove the same, although there is admission of other party. It is true that the property being ancestral in nature has to be proved in terms of its devolution/descendance from generations, in essence, last generation should be fourth generation. The burden lies upon the plaintiffs to prove the ancestral nature of land in question. Mere assertion in the plaint and admission thereof in the written statement would not clothe the Court to presume ancestral nature of the property. The ancestral nature of the property has to be proved in terms of excerpt, pedigree table and as per requirement of Volume 1, Chapter 9, Rules 5 and 6 of High Court Rules and Orders. As per para No.232 of Mullah’s Law, the plaintiffs who have asserted that the property was ancestral in nature, have to prove that the same has devolved upon them from three generations, in essence, they are the fourth generation. The admission of the defendants would not change the legal position. If a co-parcener of a joint family claims that properties are his self-acquired properties, the burden is on him to prove that the same are the self-acquired properties. Matu Ram (deceased) through LRs v. Kartar Singh and others 2004 (3) LJR 818, V.K. Surendra v. V.K. Thimmaiah (SC) : 2013(10) SCC 211, Gurmail Singh v. Rajbir Singh and another 2014(4) RCR (Civil) 397, Balihar Singh v. Sarabjit Kaur 2017(2) RCR(Civil) 226, Hari Kishan v. Rati Ram, 2018(4) PLR 783.

Mixed property:-Where it is found that some of the property in the suit is ancestral but the whole of it is not, and it is impossible to distinguish which portion is ancestral, the whole of the property in the suit must be held to be non-ancestral and must be regarded as self acquired. The law has been settled in Mara Singh v. Mst. Nikko alias Punjab Kaur and another, AIR 1964 Supreme Court 1821, G. Narayana Raju v. G. Chamaraju, AIR 1968 SC 1276, Inder Singh v. Channo and others, 2004(3) RCR(Civil) 803 (SC) : 2005(1) CCC 138.

Alienation of Coparcenary property and onus to prove:- The concept of “ancestral property” under customary law is similar to the concept of “coparcenary property” under Hindu Law in the matters of exercise of power of alienation. In Punjab, the right of succession and power of alienation are governed by personal law, i.e., in case of Muslims by Muhammadan Law and in case of Hindus by Hindu Law of Mitakshara School except to the extent to which it is modified by custom. However, power of a male holder to alienate the property was limited only if there were reversioners in existence qua whom the property held by the male holder could be treated as ancestral. This power to control the alienation by a male holder and to challenge any alienation so made was further hedged round by two statutes, the Punjab Limitation (Custom) Act (No. 1 of 1920) and the Punjab Custom (Power to Contest) Act (No. 2 of 1920), according to which only a reversioner within five degrees could challenge and control the power of alienation of a male holder within the period prescribed. Thus if a person had no reversioner living within fixed degrees his power of alienation even qua the ancestral property was co-extensive with that over his self-acquired property. In respect of State of Punjab it has to be held by virtue of Punjab Custom (Power to Contest) Act, 1920, Punjab Customs (Power of contest) Amendment Act, 1973, that there is a complete bar to contest any alienation of ancestral or non-ancestral immovable property or appointment of an heir to such property on the ground that such alienation or appointment was contrary to custom. In Haryana, the property in the hands of a successor may be held to be coparcenary property as well as ancestral property as known to Customary Law. It is well settled that the parties can fall back upon Hindu Law in case they fail to establish that the rule of decision is custom. Therefore, in Haryana both under Hindu Law and the Customary Law, the alienation would be open to challenge. Mihan v. Inder, 2008(3) RCR(Civil) 824(FB), Hardip Singh v. Sukhdev Singh, 2010(3) RCR(Civil) 644.

Similarly the power of a person governed by Hindu Law was also restricted qua ancestral property or what is termed as coparcenary property. It is settled law that the power of a Karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. Apart from that, a karta in addition to the aforesaid powers of alienation has also the special power to sell or mortgage ancestral property to discharge his antecedent debt which is not tainted with immorality. Such alienation would bind the interests of all the undivided members of the family whether they are adults or minors.. His acts could be questioned in the Courts of law. The other members of the family have a right to have the transaction declared void, if not justified. No doubt the law confers a right on the coparcener to challenge the alienation made by karta, but that right is not inclusive of the right to obstruct alienation. Nor the right to obstruct alienation could be considered as incidental to the right to challenge the alienation. These are two distinct rights. One is the right to claim a share in the joint family estate free from unnecessary and unwanted encumbrance. The other is a right to interfere with the act of management of the joint family affairs. The coparcener cannot claim the latter right and indeed, he is not entitled for it. When an alienation is challenged as being unjustified or illegal it would be for the alienee to prove that there was legal necessity in fact or that he made proper and bona fide enquiry as to the existence of such-necessity. If the alienation is found to be unjustified, then it would be declared void. It is settled that a karta of the Joint Hindu Family can alienate the ancestral/coparcenary property for legal necessity and a coparcener has no right to restrain the karta from alienating the coparcenary property but if the sale is made without legal necessity and it is not for the benefit of the estate, it can be challenged by the coparceners but after the sale is made. The principle of law applicable in this case is that so long a property remains in the hands of a single person, the same was to be treated as a separate property and thus, would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten. But once a son is born, it becomes a coparcenary property and he would acquire an interest therein. Legal necessity to support the sale must however be established by the alienees. Joginder Singh v. Kehar Singh, (Punjab) (F.B.), 1965 PLR 700, Rani & Anr. v. Santa Bala Debnath & Ors., (1970) 3 SCC 722, C. Krishna Prasad v. C.I.T. Bangalore, 1975(1) SCC 160, Manohar Lal v. Dewan Chand, (P&H)(FB) (1985) PLR 689, Sunil Kumar and another v. Ram Parkash AIR 1988 (S.C.) 576, Daljit Kaur Mangat v. Surinder Singh Sandhu, 2017(4) LH 1821 Vijay A. Mittal & Ors. v. Kulwant Rai (Dead) through LRs & Ors., (2019) 3 SCC 520. (Para 253 to 268 of Hindu Law by Mulla)

Court Fee:- The Court fee payable on a suit for declaration challenging the Joint Hindu Family property and the alienation challenged on the ground of fraud and misrepresentation. The Court found that the suit for declaration challenging the alienation of a Joint Hindu Family property stands on a different footing that the suit challenging the sale deed on the ground of fraud and misrepresentation, which attracts ad valorem Court fee. The ad valorem Court fee is not payable in such a suit “Niranjan Kaur v. Nirbigan Kaur 1981 P.L.J. 423 (Full Bench), Smt. Beena and others v. Rajinder Kumar and others 2006 (2) P.L.R. 6; 2006 (1) PLJ 96, Bhagwan Kaur and others v. Amrik Singh and others, 2006 (2) P.L.R. 649, Dr. Ashok Kumar Goyal v. Arya Mittar and others, Sheela Devi v. Lal Chand, (SC): 2006(4) RCR CIVIL 912, 2007 (11) P.L.R. 798, Vijay Pal v. Beer Pal Alias Jag Pal, 2007(2) PLJ 512. (Section 7(iv) of Court Fees Act, 1970)

Limitation:-The period of limitation for setting aside an alienation by a father of joint family property is 12 years from the date when the alienee takes possession of the property(Schedule 1,Article 109 of The Limitation Act,1963)(Para 269 of Hindu Law by Mulla). The period of limitation by a person excluded from a joint family property to enforce a right to share therein 12 years, when the exclusion becomes known to the plaintiff.(Article 110(of The Limitation Act,1963)

The terminology “ancestral” has lost its significance after The Hindu Succession Act, 1956 came into force w.e.f 17.6.1956 and there is no ancestral property thereafter and it is only coparcenary property under section 6 of the Act. After the Hindu Succession Act, 1956 came into force, this position has undergone a change. Post – 1956, if a person inherits a self-acquired property from his paternal ancestors, the said property becomes his self acquired property, and does not remain coparcenary property. If succession opened under the old Hindu law, i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hands vis-a-vis his male descendants upto three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956. The law in this regard has been clarified by the Hon’ble Supreme Court of India in Arshnoor Singh v. Harpal Kaur, 2019(3) RCR(Civil) 529, wherein it has been held” Lal Singh was the owner of large tracts of agricultural land in Village Khangarh, District Ferozepur, Punjab. The Appellant herein is the great-grandson of Lal Singh. The genealogy table of Lal Singh’s family is set out herein below for the sake of convenience:

Rights of Female in coparcenery property as per The Hindu Succession Act, 1956 and The Hindu Succession(Amendment) Act, 2005 (w.e.f. 9.9.2005)

The earliest legislation bringing females into the scheme of inheritance is the Hindu Law of Inheritance Act, 1929. This Act, conferred inheritance rights on three female heirs i.e. son’s daughter, daughter’s daughter and sister, thereby creating a limited restriction on the rule of survivorship. Another landmark legislation conferring ownership rights on woman was the Hindu Women’s Right to Property Act (XVIII of) 1937. This Act brought about revolutionary changes in the Hindu Law of all schools, and brought changes not only in the law of coparcenary but also in the law of partition, alienation of property, inheritance and adoption.

The framers of the Indian Constitution took note of the adverse and discriminatory position of women in society and took special care to ensure that the State took positive steps to give her equal status. Articles 14, 15(2) and (3) and 16 of the Constitution of India, thus not only inhibit discrimination against women but in appropriate circumstances provide a free hand to the State to provide protective discrimination in favour of women. These provisions are part of the Fundamental Rights guaranteed by the Constitution. Part IV of the Constitution contains the Directive Principles which are no less fundamental in the governance of the State and inter-alia also provide that the State shall endeavor to ensure equality between man and woman.

It is not that the women were totally excluded from inheriting the coparcenery-ancestral property after the enactment of The Hindu Succession Act,1956. Section 6 of Act,1956 although excluded the daughters to be coparceners, but provided that if the deceased had left him surviving a female relative or a male relative through such female relative specified in Class 1 of the schedule, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act and not by survivorship. And further it has been explained that 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 the partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Thus, if A was a coparcener in the property died leaving behind his widow and daughter, then, on his death, there will be deemed partition of coparcenery property and his interest would be inherited by his widow and daughter. (Para 215 & 215 -A of Hindu Law by Mulla)

Section 6 of Hindu succession Act, 1956 prior to amendment in 2005 is reproduced as:-

“6. Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act :

Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.-For the purposes of this 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.

Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”

The Parliament, with a view to confer right upon the female heirs, even in relation to the joint family property, enacted Hindu Succession Act(Amendment), 2005 and now the daughters also become coparcener by birth in her own right as the son However, the amendment has een held to be prospective and is not retrospective. Prakash v. Phulavati, 2015(4) RCR(Civil) 952.

Thus to some extent the discrimination amongst the male and female have been removed, but not completely. Every member of the joint family, whether male or female should become the coparcener, so as to wipe out the discrimination for all times to come.

The law of inheritance in respect of all the real & personal properties should be so simplified that every family becomes Happy.

Plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield.

History of Adverse possession:-

Historically, adverse possession is a pretty old concept of law. The concept of adverse possession appeared in the Code of Hammurabi approximately 2000 years before Christ era. Law 30 contained a provision “If a chieftain or a man leaves his house, garden, and field …. and someone else takes possession of his house, garden and field and uses it for three years; if the first owner returns and claims his house, garden, and field, it shall not be given to him, but he who has taken possession of it and used it shall continue to use it.” However, there was an exception to the aforesaid rule: for a soldier captured or killed in battle and the case of the juvenile son of the owner. In 1639, the Statute of Limitation fixed the period for recovery of possession at 20 years. The Statute of Tenures enacted in 1660 ended the feudal system and created the concept of the title. The adverse possession remained as a part of the law and continue to exist. The doctrine of adverse possession arose in an era where lands were vast particularly in the United States of America and documentation sparse in order to give quietus t the title of the possessor and prevent fanciful claims from erupting.

Human rights have been historically considered in the realm of individual rights such as, right to health, right to livelihood, right to shelter and employment etc. but now human rights are gaining a multifaceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context.

Adverse possession has not been defined in any statute.

The statute does not define adverse possession, it is a common law concept, the period of which has been prescribed statutorily under the Limitation Act, 1963. Modern statutes of limitation operate, as a rule, not only to cut off ones right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title.

Section 27 of the Limitation Act, 1963 provides “Extinguishment of Right to property: At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished”. Article 65 of the Limitation Act, 1963 reads as :-

Under Article 65 of the Limitation Act, burden is on the defendants to prove affirmatively. A person who bases his title on adverse possession must show by clear and unequivocal evidence i.e. possession was hostile to the real owner and amounted to a denial of his title to the property claimed.

What is “adverse possession” and on whom the burden of proof lies and what should be the approach of the Courts while dealing with such plea have been the subject-matter of a large number of cases.

An occupation of reality is inconsistent with the right of the true owner. Where a person possesses property in a manner in which he is not entitled to possess it, and without anything to show that he possesses it otherwise than an owner, i.e., with the intention of excluding all persons from it, including the rightful owner, he is in adverse possession of it. Where possession could be referred to a lawful title it shall not be considered to be adverse.

Adverse possession is of two kinds. (A) Adverse from the beginning or (B) that become so subsequently. If a mere trespasser takes possession of A’s property, and retains it against him, his possession is adverse ab initio. But if A grants a lease of land to B, or B obtains possession of the land as A’s bailiff, or guardian, or trustee, his possession can only become adverse by some change in his position. Adverse possession not only entitles the adverse possessor, like every other possessor, to be protected in his possession against all who cannot show a better title, but also, if the adverse possessor remains in possession for a certain period of time produces the effect either of barring the right of the true owner, and thus converting the possessor into the owner, or of depriving the true owner of his right of action to recover his property although the true owner is ignorant of the adverse possessor being in occupation.

The plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed.

In order to prove the plea of adverse possession, the first requirement is (a) Actual Possession for the twelve-year period. To succeed, the acts of possession must be open, notorious, peaceful, adverse, exclusive, actual and continuous. If any one of these elements is missing at any time during the statutory period, the claim for possessory title will fail.

Possession must be open and notorious, not clandestine, for two reasons. First, open possession shows that the claimant is using the property as an owner might. Second, open possession puts the true owner on notice that the statutory period has begun to run. Because the doctrine of adverse possession is based on the true owner’s failure to take action within the limitation period, time should not run unless the delay can fairly be held against the owner.

The element of adversity means that the claimant is in possession without the permission of the owner. If the claimant acknowledges the right of the true owner then the possession is not adverse. The nature of the acts needed to establish possession depends on the type of property. For some types of property, even intermittent use will satisfy the element of continuity. The sufficiency and character of the possession necessary to pass title must be considered and tested in the light of the circumstances which surround each particular case. Acts which amount to possession in one case may be wholly inadequate to establish it in another. Matters such as the nature of the property, the appropriate and natural uses to which it can be put, the course of conduct which the owner might reasonably be expected to adopt with a due regard to his own interests, are all matters to be considered in evaluating the adverse possession which has been proved to have been exercised by a trespasser or successive trespassers.

The law in respect of adverse possession, therefore, is now well settled. It should be nec vi nec clam nec precario i.e. peaceful, open and continuous. (Secretary of State for India v. Debendra Lal Khan, AIR 1934 PC 23, page 25). This decision has been referred and followed by in P. Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314 (para 4). Court further says that the possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor. In Chhote Khan & others v. Mal Khan & others AIR 1954 SC 575, Court observed that no question of adverse possession arises where the possession is held under an arrangement between the co-sharers. The possession of one co-heir is considered, in law, as possession of all the co-heirs. It is settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.” In Darshan Singh v. Gujjar Singh (2002) 2 SCC 62, held: “… It is well settled that if a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse for other co-sharers unless there has been an ouster of other co-sharers.” In S.M. Karim v. Mst. Bibi Sakina, AIR 1964 SC 1254, it has been ruled that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found. In Karbalai Begum v. Mohd. Sayeed (1980) 4 SCC 396 in the context of a co-sharer, it was held: “It is well settled that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession.”A three-Judges Bench in Parsinnin v. Sukhi (1993) 4 SCC 375, laid down the following three requisites for satisfying the claim based on adverse possession:”Party claiming adverse possession must prove that his possession mast be “nee vi nee clam nee precario” i.e. peaceful, open and continuous. The possession must be adequate, in continuity, in publicity and in extent to show that their possession is adverse to the true owner.” In Vidya Devi v. Prem Prakash (1995) 4 SCC 496, held: … it will be seen that in order that the possession of co-owner may be adverse to others, it is necessary that there should be ouster or something equivalent to it. In A.S. Vidyasagar v. S. Karunanandam, 1995 Supp (4) SCC 570, Court has held that permissive possession is not adverse possession and can be terminated at any time by the rightful owner. In Thakur Kishan Singh v. Arvind Kumar, AIR 1995 SC 73, Court said: “A possession of a co-owner or of a licensee or of an agent or a permissive possession to become adverse must be established by cogent and convincing evidence to show hostile animus and possession adverse to the knowledge of real owner. Mere possession for howsoever length of time does not result in converting the permissive possession into adverse possession.”In Parwatabai v. Sona Bai, 1996 (10) SCC 266, it was stressed upon the Court that to establish the claim of adverse possession, one has to establish the exact date from which adverse possession started. A person pleading adverse possession has no equities in his favour since he is trying to defeat the right of the true owner and, therefore, he has to specifically plead with sufficient clarity when his possession became adverse and the nature of such possession. In Karnataka Board of Wakf v. Government of India & others (2004) 10 SCC 779, Court held that whenever the plea of adverse possession is projected, inherent therein is that someone else is the owner of the property. “The pleas on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced.” The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. In Saroop Singh v. Banto and others, 2005 (8) SCC 330, Court held “Animus possidendi is one of the ingredients of adverse possession. Unless the person possessing the land has a requisite animus the period for prescription does not commence. In T. Anjanappa and others v. Somalingappa and another 2006 (7) SCC 570, the pre-conditions for taking plea of adverse possession has been summarized as under: “It is well-recognised proposition in law that mere possession however long does not necessarily mean that it is adverse to the true owner. Adverse possession really means the hostile possession which is expressly or impliedly in denial of title of the true owner and in order to constitute adverse possession the possession proved must be adequate in continuity, in publicity and in extent to as to show that it is adverse to the true owner. The classical requirements of acquisition of title by adverse possession are that such possession in denial of the true owner’s title must be peaceful, open and continuous. The possession must be open and hostile enough to be capable of being known by the parties interested in the property, though it is not necessary that there should be evidence of the adverse possessor actually informing the real owner of the former’s hostile action. “In P.T. Municipal Reddy & Ors. v. Revamma & Ors. AIR 2007 SC 1753, it was held: “It is important to appreciate the question of intention as it would have appeared to the paper-owner. The issue is that intention of the adverse user gets communicated to the paper-owner of the property. This is where the law gives importance to hostility and openness as pertinent qualities of manner of possession. It follows that the possession of the adverse possessor must be hostile enough to give rise to a reasonable notice and opportunity to the paper-owner.” “Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile.”

Modern statutes of limitation operate, as a rule, not only to cut off one’s right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. “Therefore, to assess a claim of adverse possession, two pronged enquiry is required: 1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.2. Specific positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property” in P.T. Munichikkanna Reddy v. Revamma, 2007(2) R.C.R.(Civil) 847 held” Adverse possession in one sense is based on the theory or presumption that the owner has abandoned the property to the adverse possessor on the acquiescence of the owner to the hostile acts and claims of the person in possession. It follows that sound qualities of a typical adverse possession lie in it being open, continuous and hostile. In Annakili v. A. Vedanayagam and others, AIR 2008 SC 346, Court pointed out that a claim of adverse possession has two elements (i) the possession of the defendant becomes adverse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. “Animus possidendi” is held to be a requisite ingredient of adverse possession, well known in law. Court held: “It is now a well settled principle of law that mere possession of the land would not ripen into possessor title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus possidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into a title.” In Vishwanath Bapurao Sabale v. Shalinibai Nagappa Sabale and others, JT 2009 (5) SC 395, Court said:” for claiming title by adverse possession, it was necessary for the plaintiff to plead and prove animus possidendi. A peaceful, open and continuous possession being the ingredients of the principle of adverse possession as contained in the maxim nec vi, nec clam, nec precario, long possession by itself would not be sufficient to prove adverse possession.” in the case of Roop Singh v. Ram Singh, AIR 2000 SC 1485 has held thus; “mere possession for a long time does not result in converting permissive possession into adverse possession“. In Amarendra Pratap Singh v. Tej Bahadur Prajapati and others, AIR 2004 SC 3782 : (2004) 10 SCC 65, held “What is adverse possession” Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner, which stretched over a period of 12 years results into extinguishing of the latter’s title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. In L.N. Aswathama & another v. V.P. Prakash, JT 2009 (9) 527, held: To establish a claim of title by prescription, that is adverse possession for 12 years or more, the possession of the claimant must be physical/actual, exclusive, open, uninterrupted, notorious and hostile to the true owner for a period exceeding twelve years. It is also well settled that long and continuous possession by itself would not constitute adverse possession if it was either permissive possession or possession without animus possidendi. The pleas based on title and adverse possession are mutually inconsistent and the latter does not begin to operate until the former is renounced. Unless the person possessing the property has the requisite animus to possess the property hostile to the title of the true owner, the period for prescription will not commence.” State of Haryana v. Mukesh Kumar and others, (2011)10 SCC 404 held “A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. The right to property is now considered to be not only constitutional or statutory right but also a human right. Human rights have already been considered in realm of individual rights such as right to health, right to livelihood, right to shelter and employment etc. But now human rights are gaining a multi faceted dimension. Right to property is also considered very much a part of the new dimension. Therefore, even claim of adverse possession has to be read in that context. The Parliament may consider abolishing the law of adverse possession or at least amending and making substantial changes in law in the larger public interest. The Parliament must seriously consider at least to abolish “bad faith” adverse possession, i.e., adverse possession achieved through intentional trespassing. In case, the Parliament decides to retain the law of adverse possession, the Parliament might simply require adverse possession claimants to possess the property in question for a period of 30 to 50 years, rather than a mere 12. In Chatti Konati Rao & Ors. v. Palle Venkata Subba Rao, 2011(2) R.C.R.(Civil) 824 held” mere possession however long does not necessarily mean that it is adverse to the true owner. It means hostile possession which is expressly or impliedly in denial of the title of the true owner and in order to constitute adverse possession the possession must be adequate in continuity, in publicity and in extent so as to show that it is adverse to the true owner. The possession must be open and hostile enough so that it is known by the parties interested in the property. The plaintiff is bound to prove his title as also possession within twelve years and once the plaintiff proves his title, the burden shifts on the defendant to establish that he has perfected his title by adverse possession. Tribhuvanshankar v. Amrutlal 2014(2) SCC 788 : 2014(1) RCR(Civil) 206 “The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. In the case of Ram Nagina Rai & Anr. v. Deo Kumar Rai (Deceased) by LRS. And Anr. 2018(10) Scale 630, the Apex Court has held thus; “Article 65 presupposes that limitation starts only if the defendants prove the factum of adverse possession affirmatively from a particular time. Adverse possession means a hostile assertion, i.e. a possession which is expressly or impliedly in denial of the title of the true owner. The person who bases his title on adverse possession must show, by clear and unequivocal evidence, that the possession was hostile to the real owner and it amounted to the denial of his title to the property claimed. In deciding whether the acts alleged by the person constitute adverse possession, regard must be given to the animus of the person doing such acts, which must be ascertained from the facts and circumstances of each case. “The said settled law has been reiterated by Supreme court in Mallikarjunaiah v. Nanjaiah & Ors., 2019(3) RCR(Civil) 12; there was no element of either adversity or/and hostility between two co-owners/brothers because in a dispute of this nature where both the parties are related to each other, the possession of one is regarded to be the possession of other unless the facts show otherwise” it is a settled principle of law that mere continuous possession howsoever long it may have been qua its true owner is not enough to sustain the plea of adverse possession unless it is further proved that such possession was open, hostile, exclusive and with the assertion of ownership right over the property to the knowledge of its true owner the burden to prove the adverse possession is upon the person, who had set up this plea; In Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., 2019(4) R.C.R. (Civil) 1 has held : The adverse possession requires all the three classic requirements to co-exist at the same time, namely, nec vi i.e. adequate in continuity, nec clam i.e. adequate in publicity and nec precario i.e. adverse to a competitor, in denial of title and his knowledge. Visible, notorious and peaceful so that if the owner does not take care to know notorious facts, knowledge is attributed to him on the basis that but for due diligence he would have known it. Animus possidendi under hostile colour of title is required. Trespasser’s long possession is not synonymous with adverse possession. Trespasser’s possession is construed to be on behalf of the owner, the casual user does not constitute adverse possession. The owner can take possession from a trespasser at any point in time. The matter has been examined by a Constitution Bench in M. Siddiq (D) through LRs v. Mahant Suresh Das & Ors., (2019) SCC OnLine SC 1440 wherein, it has been held that a plea of adverse possession is founded on the acceptance that ownership of the property vests in another, against whom the claimant asserts possession adverse to the title of the other. In a reference made to a larger Bench in the case of Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., Civil Appeal No.7764 of 2014, decision dated 07.08.2019, the larger Bench had held that the plea of adverse possession can be used both as an offence and as a defence i.e. both as sword and as a shield. once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other Articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit. Resultantly, we hold that decisions of Gurudwara Sahab v. Gram Panchayat Village Sirthala (supra) and decision relying on it in State of Uttarakhand v. Mandir Shri Lakshmi Siddh Maharaj (supra) and Dharampal (dead) through LRs v. Punjab Wakf Board (supra) cannot be said to be laying down the law correctly, thus they are hereby overruled. We hold that plea of acquisition of title by adverse possession can be taken by plaintiff under Article 65 of the Limitation Act and there is no bar under the Limitation Act, 1963 to sue on aforesaid basis in case of infringement of any rights of a plaintiff. Law of limitation does not define the concept of adverse possession nor anywhere contains a provision that the plaintiff cannot sue based on adverse possession. It only deals with limitation to sue and extinguishment of rights. The law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

Thus adverse possession is boon for person in possession and claiming to have become owner by way of adverse possession and curse for the real owner.

Happy neighbors are all alike, every unhappy neighbor is unhappy in its own way. That unhappiness often finds its painful way into a courtroom.

Land has always been a contentious issue, may be due to greed, power, mistake or otherwise.

Boundary disputes are since beginning of civilization. There are boundary disputes not only between the neighboring countries but also between the states in respective countries, between two civic bodies and between the neighbors, co-owners and so on.

Historically battles have been fought for boundary disputes regarding borders and even at present the boundary dispute between India and China has resulted into war like situation, where China wants to lay false claim over land belonging to India, which illegal action of China has been thwarted by our brave soldiers.

The present topic relates to boundary disputes, which has resulted into flood of litigation in courts for decades.

Dispute about the boundaries of respective land vis-a-vis ownership or possession is general bone of contention and when comes in the court, takes years to resolve as a result of procedural technicalities and often remains unresolved for want of proper evidence.

Often, it is seen that suit for possession against the unauthorized occupant/trespasser or by a owner against his neighbor, who has mistakenly or otherwise has occupied some portion of land is dismissed, because of insufficient evidence and exact demarcation with regard to encroached portion, which results in miscarriage of justice.

Although, the party to the suit can file an application for appointment of local commissioner under order 26 rule 9 of Code of Civil Procedure(C.P.C),which provision gives discretionary power to court to order a local investigation( by way of appointment of local commissioner) to be requisite or proper for the purpose of elucidating any matter in dispute. Further order 26 rule 10 C.P.C provides for procedure of commissioner and that his report and depositions to be evidence in suit.

The real Hercules task is to get the appointment of local commissioner, as the discretion of appointment of local commissioner is seldom used by the court on the ground that:-

“It is settled principle of law that he, who alleges, must prove initially that such and such things are in existence. This is not the duty of the court that it should appoint Local Commissioner and then identify which part has been encroached upon. The courts are not to help the plaintiff or the defendant for collecting evidence available for that purpose. It is duty of the parties to lead substantive evidence in that regard. However, when there is dispute regarding certain evidence and existence of some facts, only then court can appoint Local Commissioner. Here is a case where the petitioner wants that evidence should be collected for him by the court by appointing Local Commissioner, which cannot be allowed.”

“Hon’ble Supreme Court in Haryana Waqf Board v. Shanti Sarup and others, (2008) 8 SCC 671 has held that Local Commissioner can be appointed only to clarify the position of the existing state of affairs only after the evidence is led”. (Jagmohan v. Ramesh Kumar, 2013(15) RCR(Civil) 464)

“It was for the petitioner-defendant to show that he is in possession of the property in dispute, which was handed over to him at the time of registration of sale deed, as per his assertions. Court is not to collect evidence for the parties and hence, Local Commissioner cannot be appointed to report as to who is in possession of the property in dispute”.(Smt. Ulfat v. Hardeep Singh, 2012(5) RCR(Civil) 753).

Even, the party who wants to get the local commissioner appointed, looses right to file revision challenging the order declining the appointment of local commissioner. It has been held:-

“it is settled principle that against an order declining the appointment of a Local Commissioner, a revision petition is not maintainable. Two Division Bench judgments of this Court have held to the said effect in Harvinder Kaur v. Godha Ram, ILR 1979 (1) P&H 147 and Pritam Singh & another v. Sunder lal & others, 1990 (2) PLR 191. The said view has also been followed by two Single Judge Benches of this Court in Sumer Chand Jain v. Vishnu Bhagwan Mangla, 2006 (2) RCR (Civil) 445 and Rajiv Kumar Batra v. Kashmiri Lal Sika, to the effect that merely because a revision petition has been filed under Article 227 of the Constitution of India, the binding precedent of the Division Benches cannot be wished away. (Harbhajan Singh & another v. Gurmail Singh & others, 2015(9) RCR(Civil) 163).

Even in boundary disputes regarding identification of the boundaries between the states of Nagaland, Assam and Arunachal Pradesh , the Hon,ble Supreme Court of India appointed Local Commissioner with the consent of said states. (State of Assam v. Union of India & others, 2010(9) SCC 278)

There is complete chapter in the rules and orders of Punjab and Haryana High Court, with regard to mechanism for resolving the Hadd-Shikni” suits and other suits of boundary disputes of land, which, if followed in its true letter and spirit would result in resolution of such disputes.

Although for Hadd-Shikni” suits and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court, it is generally desirable that enquiry be made on the spot and proper procedure to be followed by the local commissioner has been incorporated in the rules and orders of Punjab and Haryana High Court, but, the same is seldom exercised on the ground that the courts cannot collect the evidence for the parties. The said provision has been applied in a number of cases i.e Baraham Sarup v. Gagandeep & others, 2019(1) PLR 741, Ram Murti Goyal v. Smt. Basant Kaur, 1991(2) RRR 142).

For a perusal, the volume 1, chapter 1, part M, clause (i) of the rules and orders of Punjab and Haryana High Court is reproduced as under:-

(1) Procedure in “Hadd Shikni” cases.

In “Hadd-Shikni” suits and other suits of boundary disputes of land falling within the jurisdiction of a Civil Court it is generally desirable that enquiry be made on the spot. This can usually be done in the following ways:

(a) by suggesting that one party or the other should apply to the Revenue Officer to fix the limits, under section 101 (1) of the Punjab Land Revenue Act. Time for such purpose should be granted under Order XVII, Rule 3, of the Code of Civil Procedure;

(b) by appointing a local Commissioner, and

(c) by the Court itself making a local enquiry.

2. An order of the Revenue Officer made under Section 101 of the Land Revenue Act is not conclusive; but when his proceedings have been held in the presence of, or after notice to, the parties of the suit, and contain details of enquiry and of the method adopted in arriving at the result, it would be a valuable piece of evidence. It may be noted that an Assistant Collector of the second grade can deal with cases in regard to boundaries which do not coincide with the limits of an estate.

3. Similarly the report of the local Commissioner should contain full details so that the Court may satisfactorily deal with the objections made against it.

Instructions for the guidance of commissioners.

No person other than a Revenue Officer (or retired Revenue Officer) not below the rank of a Field Kanungo should usually be appointed a local Commissioner. The appointment of retired Revenue Officers is to be preferred as these Officers have the spare time and the inclination for completing the work with expedition. A commission issued to a Revenue Officers in service necessitates the obtaining of permission of the higher authorities and this along with the fact that such Revenue Officers are usually busy often results in delay in the disposal of the case. The wishes of the parties in regard to the appointment of a particular individual as commissioner for local investigations should be taken into consideration while making such appointments.

4. On the motion of the Judges, the Financial Commissioners have issued the following detailed instructions for the guidance of Revenue Officials or Field Kanungos appointed as Local Commissioners in Civil suits of this nature.

(Financial Commissioner’s Instructions)

(i) If a boundary is in dispute, the Field Kanungo should relay it from the village map prepared at the last Settlement. If there is a map which has been made on the square system he should reconstruct the squares in which the disputed land lies. He should mark on the ground on the lines of the squares the places where the map shows that the disputed boundary intersected those lines, and then to find the position of points which do not fall on the lines of the squares. He should with his scale read on the map, the position and distance of those points from a line of a square, and then with a chain and cross staff mark out the position and distance of those points. Thus he can set out all the points and boundaries which are shown in the map. But if there is not a map on the square system available, he should then find three points on different sides of the place in dispute, as near to it as he can, and, if possible, not more than 200 kadams apart which are shown in the map and which the parties admit to have been undisturbed. He will chain from one to another of these points and compare the result with the distance given by the scale applied to the map. If the distances, when thus compared, agree in all cases, he can then draw lines joining these three points in pencil on the map and draw perpendiculars with the scale from these lines to each of the points which it is required to lay out on the ground. He will then, lay them out with the cross-staff as before and test the work by seeing whether the distance from one of his marks to another is the same as in the map. If there is only a small dispute as to the boundary between two fields the greater part of which is undisturbed then such perpendiculars as may be required to points on the boundaries of these fields as shown in the field map can be set out from their diagonals, as in the field book and in the map, and curves made as shown in the map.

(ii) In the report to be submitted by him, the Field Kanungo must explain in detail how he made his measurements. He should submit a copy of the relevant portion of the current Settlement field map of the village showing the fields, if any, with their dimensions (karu kan) of which he took measurements, situated between the points mentioned in Instruction No. (i) above and the boundary in dispute. This is necessary to enable the Court to follow the method adopted and to check the Field Kanungo’s proceedings.

(iii) If a question is raised as to the position of the disputed boundary according to the field map of the Settlement preceding the current Settlement, that also should be demarcated on the ground, so far as this may be possible, and also shown in the copy of the current field map to be submitted under Instruction No. (ii)

(iv) On the same copy should be shown also, the limits of existing actual possession.

(iv) The areas of the fields, abutting on the boundary, in dispute, as recorded at the time of the last Settlement and those arrived at as a result of the measurement on the spot should be mentioned in the Field Kanungo’s report with an explanation of the cause or causes of the increase or decrease, if any, discovered.

(v) When taking his measurements the Field Kanungo should explain to the parties what he is doing and should enquire from them whether they wish anything further to be done to elucidate the matter in dispute. At the end, he should record the statements of all the parties to the effect that they have seen and understood the measurements that they have no objection to make to this (or if they have any objection he should record it together with his own opinion) and that they do not wish to have anything further done on the spot. It constantly happens that when the report comes before the Court, one or other party impugns the correctness of the measurements and asserts that one thing or another was left undone. This raises difficulties which the above procedure is designed to prevent.

(vi) The above instructions should be followed by Revenue Officers or Field Kanungos whenever they are appointed by a Civil Court as Commissioners in suits involving disputed boundaries”.

To my mind, the law needs re-visitation by keeping the technicalities aside. Procedural law is handmaid of justice and should not be overcome by technicalities.

When there is a dispute regarding the identification of the property, the proper course is to appoint local Commissioner by invoking the provision of order 26 rule 9 of Code of Civil Procedure(C.P.C), particularly a revenue official or an expert for demarcation( as per the Procedure in “Hadd Shikni” cases contained in the volume 1, chapter 1, part M, clause (i) of the rules and orders of Punjab and Haryana High Court) of the suit property to properly adjudicate the real question in controversy between the parties and for doing substantial justice between the parties.

There is no question of collecting the evidence for the parties by way of appointment of local commissioner, but for doing substantial justice between the parties and so that the justice is not only done but appears to have been done. If the controversy can be resolved in a simplified manner, then why to undergo the huge exercise of leading the voluminous and tiring oral evidence, which evidence is generally ignored for want of substantive evidence.

A party may not have resources to collect evidence as a result of illiteracy, economic inability, week social support and for any other reason due to which the other party has a strong edge over him, can the court, which is a temple of justice, shut its eyes to let the injustice happen, the answer is and should be no.

What prejudice is to the party opposing the appointment of local commissioner, when the cost of appointment is to be borne by the party seeking appointment and if the revenue official or any other expert visits the spot to find out the actual position, the same will result in real and substantial justice and cannot amount to collection of evidence for any party.

There should be real justice by way of resolution of dispute and not mere decision, as simplicitor decision is not always doing substantial justice.

Justice should not only be done but seems to have been done.

The right will be right and wrong will be wrong and after all let the right win & truth prevail.