2021(2) KLT 186 (D.B.) --

Is It A Good and Correct Precedent to be Followed

(By P.B. Menon, Advocate, Palakkad)

The two reliefs prayed for in the Original Petition filed by mother of the deceased married daughter as against her husband and his parents who are respondents 1 to 3 in the application as borne out from the judgment therein by the Hon’ble High Court are (1) for return of jewels given to the daughter at the time of marriage and (2) for return of ` 2 lakhs
paid to her after marriage for construction of a house. The basis of the claim made   in the petition is that the daughter inherited those items from her parents assets, as her share and as such  u/S.15(2)(a) of Hindu Succession Act mother is the legal heir of her deceased daughter. According to me rightly and correctly the Family Court dismissed application, but the Honble High Court in it wisdom allowed the appeal granted relief to the mother for return of a part of jewellery and the cash of ` 2 lakhs, approving  the legal plea in the petition that it is her inherited property as her share and so Section 15 (2a) applies  squarely to facts of the facts of the case.

Providing jewels at the time of marriage to one’s own daughter and payment of cash as such or for putting up of a house or purchase of a vehicle etc., are quite common in any community and Hindu community is no exception to that. Other than Marumakkathayees it is often said or believed that such provision for daughter or would be son in law at or around the time of marriage is on the basis of a deemed  notional  partition of her share in her parents assets and the same vary from family to family depending upon the financial status of the family, as they have no legal claim for partition of the parents assets till their demise.

But providing jewels cash or even immovable properties to her or to her spouse etc., are really in one sense is out of love and affection for beloved daughter on such a happy occasion like her marriage and in the legal sense the same could be termed only as
“Stridhana” known to Hindu Law- see Hindu Law bymaynes under  the heading Stridhana. Inherited property does not come under the category of Sridhana. Under the hindu law stridhana is her absolute property  but inherited property from the husband is not so. Succession or inheritance have a specifc meaning of its own and its scope cannot be expanded. After Hindu Succession Act has come into being it is of course not Stridhana property. The real legal character in such cases is nothing but gift, whether you take it in the sense of a deemed notional partition or otherwise. As a matter of fact nothing is discernible from the judgment to show that there is a plea of partition put forth by the applicant, in that family in the pleadings before the death of the married daughter. The words used in the petition are inherited as her share.”

Now let us come to the legal aspects of the matter in such a  situation.

Section 15 occurs in the Act called Hindu Succession Act and Section 15(a) and (b)
deals specifically with inherited property by the deceased woman from her parents or husband and father in law. The very decision quoted in the judgment of the Supreme Court which approves the Madras decision (1965 KLT OnLine 1384 (Mad.) = AIR 1966 Mad.369)hold in definite terms the word inherit means to receive as heir that is succession by descent. The said Madras decision related to gift and holds that what one gets as gift is not inheritance. This is followed in AIR 1976 Mad.154 Andhra Pradesh High Court also holds in AIR 1972 A.P. 189 that gift does not amount to inheritance. Even what one gets under a will after the death of testator is held to be not inheritance see (1966 KLT OnLine 1277 (Guj.) =  AIR 1968 Guj.212).

In this connection it is very significant that Section 15 does not spell out that any property held, possessed or obtained in one form or other by the deceased from her parents or husband or father in law, but specifically uses the expression ‘ inherited’  from parents or husband or father in law. Certainly it has some significance in using that word.

When the Honble Supreme Court interprets the meaning of the word ‘inheritance’ in approving the Madras High Court decision, why was it that reference was made to Karnataka and Madras decision which hold that devolution or succession cover partition in the hindu family also is not understandable. Federal court only stated about survivorship. Certainly on the death of one member his share devolves upon other members by survivorship. There is thus succession by inheritance. But what about partition in a family as there is only an adjustment of rights and obligations among the sharers by mutual  consent. To say that in partition there is succession or devolution in such adjustments of rights and obligaton is rather farfetched an interpretation. I feel that it was not proper at all for the Division Bench to follow the said Madras and Karnataka decision but it ought to have disapproved the same.

As regards Hindu Law a male child born in the family had a right by birth and as such when partition took place he as a co parcener get his share from the joint family property as a result of his right by birth. Is it by devolution, succession or inheritance I don’t know as to what is the proper legal expression to be used.

By survivorship due to the death of one male member other sharers inherit his share by succession under the Hindu Law. It is because of death of one member.

Regarding partition only instance is when  a widow is involved. She succeeds to the share of her husband by virtue of the provision of Hindu Women Rights to Property Act 1937, solely or along the with sons. There is inheritance or succession in such a case i.e., because of death of husband. Similarly there is inheritance or succession as regards a female, when assets of the deceased parents are divided after their demise. So as regards a female there is inheritance or succession only on death of her husband or parents regarding their assets and in no other cases when you say by inheritance one gets the property it is by operation of existing law on the death of one without any act of interference by anybody i.e no act of human agency is involved in that process. It is automatic. It occurs as a matter of course due to operation of law. Succession  by inheritance or vice versa will be and is the proper term to be used to explain the same. In that process no legal heir is excluded.        

But when one gets property either during the life time of an individual or after his death under a document, it is the result of the choice of the individual concerned, it is a device giving expression to his wish as to who should gets his property and when under the document executed by him. The origin of the devolution is during one’s life time and not after his death. In such cases one gets the property not by inheritance but by demise and not as the result of the automatic operation of law.  Human agency is involved in such cases for he creates or execute a document in one form or other during his life time to take effect either immediately or after his life time. In such cases there is no succession by inheritance. Inheritance really is one mode of succession after one’s death,to his legal heirs by operation of existing law.

Significant factor is the effect of death as the result of which one’s heir succeeds to his property by inheritance. Inheritance can occur only on death of an individual and that is one mode of succession known to law. What are the correct meaning  in legal parlance of the words devolution, succession and inheritance is some food for thought for the readers interested  in the subject.

In the said circumstances I feel that there is neither logic nor reasoning in the judgment of the Division Bench in adopting the Karnataka or Madras view and as when occasion arises the same has to be overruled, as otherwise it will continue in the laws journals as a bad precedent.

Technology -- Law Interface: An Analysis of Blockchains vis-a-vis
the Intellectual Property Right Regime

(By Dr. Raju Narayana Swamy, IAS)

Abstract

Blockchain is a part of the ever widening canvass of technological developments which range from Artificial Intelligence and Virtualization to Cloud Computing and Internet of Things.The key features of blockchain technology – decentralization, integrity and anonymity -- make it applicable to security services, wireless network virtualization and other different applications. One area where much leeway has been made is smart contracts-self executing contracts wherein the terms can be set out in computer code. The article  analyzes  the main potentials for the adoption of blockchain in the IP arena. It highlights the fact that the blockchain – IP interface is largely based on the premise that IP management systems could leverage blockchain technology to enforce provable IPRs where verifiable, immutable and secure operations in blockchain could help in the event of disputes. The paper also   dwells upon  the international efforts such as the one adopted by France to regulate securities transaction on block chain systems and    goes into  judicial initiatives such as a Chinese Court (in Hangzhou) recognizing blockchain based evidence for the first time in 2018.The article laments on the fact that no  dedicated law exists in India in this direction.  It concludes with an analysis of various potential hurdles to large scale application of blockchain in the field of IP and draws a roadmap for future efforts.

What is a blockchain?

Blockchain also known as distributed ledger technology has been defined to be a decentralized peer-to-peer network based public encrypted and immutable digital federated ledger system. Working like a shared Google document, the ledger is a public database that records transactions in a permanent fashion and distributes copies to all relevant parties without the need for a third party to authorize the transaction. A typical blockchain has three components – distributed  ledger,  smart contracts and distributed applications. The functions of a blockchain can be described in three ways -- technical, business and legal.

The first major use of this technology occurred with the creation of Bitcoin, which is a digital crypto-currency introduced in 2009. The seminal paper that introduced this technology to the world was penned by “Satoshi Nakamoto” (a pseudonym used by the author whose identity is still unknown) and was titled “ Bitcoin : A Peer to Peer Electronic Cash System.” Traceability and reliability were the hallmarks set forth by Nakamoto in this innovative method of  executing transfers of value between peers. Trustworthiness and transparency are built into the system by allowing multiple parties to the transaction to verify what will be entered onto a ledger without any single party having the ability to change any ledger entries later on.

Transactions are recorded within “blocks” which are stored on each computer in the network. As new blocks are added, they are linked to all preceding transactions. New transactions must be validated by all computers in the network by checking against all earlier transactions. As each computer in the network has its own copy, security of data is improved and vulnerability to cyber attacks is reduced vis-a-vis hitherto used models wherein data is stored in a single central location. It is seen as nearly unhackable because to change any information on it, a cyber attack would have to strike all copies of the ledger simultaneously. Data put into the blockchain cannot be tampered without being noticed. Put it a bit differently, the technology is immutable as it involves storage of information in encrypted blocks made up of codes which are independently time stamped and contain individual transactional data.

Blockchains leverage techniques from a field of computer science known as cryptography to sign every transaction with a unique digital signature belonging to the user who initiated the transaction. These signatures are held privately, but are publicly verifiable. This means that if a user with identity A sends money to identity B, anybody can verify that the money was sent by A, but cannot use A’s signature for their own transactions. This cryptographic system creates accountability while preventing identity fraud. It is worth mentioning here that blockchain network is mainly of two types -- public and private. In thelatter case, only those who have permission can access the information. Private blockchains are largely preferred by regulated entities and pre-screen who are allowed to administer the ledger.

Applications of Blockchain Technology

Blockchain is a part of the ever widening canvass of technological developments which range from Artificial Intelligence and Virtualization to Cloud Computing and Internet of Things. As a disruptive technology, it is expected to have a profound impact on the way we live and work. From being the technology behind crypto-currencies such as Ethereum (which is a turing complete blockchain due to its programming language called Solidity), it has begun to make its presence felt in insurance, health care, voting systems, supply chain & logistics, shipping and other sectors too.  For instance, India’s NITI Aayog is seriously deliberating on building a new immunisation infrastructure for the country-unified and enhanced by blockchain. Discussions are also in the pipeline on Super Cert-an antifraud identity intelligence blockchain solution for educational certificates. The key features of blockchain technology – decentralization, integrity and anonymity- make it applicable to security services, smart homes, wireless network virtualization and other different applications. In fact, the Gartner Blockchain Spectrum – proposed by Gartner, the research and advisory firm- talks about 3 phases : blockchain inspired solutions (a phase which began in 2012 and will last through the early 2020s), blockchain complete solutions (expected to gain momentum in the market around 2023) and enhanced blockchain solutions.

Smart Contracts

One area where much leeway has been made is smart contracts introduced by Nick Szabo in 1997. These are self executing contracts wherein the terms can be set out in computer code. When the parties to the contract execute their respective obligations, a smart software verifies and enforces the contract. The high potential of smart contracts lies in enabling decentralized micropayments such as paying a very small fee in return to accessing small bits and pieces of a digital content (which may be a song or a news article). Needless to say, the smart contract, its execution and verification are all stored in the blockchain. A classic example is the Ethereum – powered music platform “VOISE”  wherein artists upload their music ( and set their own prices) and users pay them directly for the music via electronic currency. Mention must also be made of the Open Music Initiative (OMI) announced by the Berklee College of Music in Boston, Massachusetts which aims to build a database in the form of a blockchain seeking to solve the problem of proper identification of right holders.

The Blockchain- IP Interface IPRs are currently regulated by third party authenticators. These authenticators are governments  or administrative bodies of the geographical regions where the IP holder wants to secure and enforce rights.  The limiting factor of such a system is its inherent physical limitation.  In fact,  this system is already starting to show cracks.  As the market gets more globalised and digitised, it is becoming imperative to look for a more feasible and reliable alternative.  It needs to be mentioned here that the concerns regarding IPRs are by no means limited to enforcement issues but that streamlined, simplified and proper management of IP assets is also an equally challenging task.  Thus IPRs in tandem with larger contractual obligations needs a fresh look in the current digital landscape.  The blockchain – IP interface is largely based on the premise that IP management systems could leverage blockchain technology to enforce provable IPRs where verifiable, immutable and secure operations in blockchain could help in the event of disputes. In particular, digital assets such as patents have multiple versions during their life time and blockchains can be used to link all versions of their digital assets and potentially use it for end-to-end life cycle maintenance.  Blockchains could serve as defensive publication platforms where each file is given a unique fingerprint and duplications are removed.  No wonder why blockchains are being seriously considered as possible successors to the classic -- physical model.  Ensuring faster search results  and tamperproof record management, the technology can aid in proper prosecution and enforcement of IP rights. The main potentials for the adoption of blockchain are:

(a) Development of a fully automated IPR registration process: However,  it must be admittedthat it is unlikely that such implementation will be finalized within the next 5-10 years even in countries like USA, China, Germany and Japan that are pioneers of blockchain technology.

(b) Registration without middle man: Today IP systems in all jurisdictions are highly dependent on IP offices. The costs of maintaining and updating such systems are considerable. Along with these costs, a patent registration application for example often needs the presence of a counsel and requires sophisticated “earlier use” research.  If the costs associated with these activities are lowered by implementing a simpler registration process, the goal of fostering innovation through IP laws could be realised much more effectively. This is exactly what blockchain technology attempts to accomplish. Through this method, the functions performed by large institutions could be carried out by simple smartphone apps and IP right holders can register their patents and trademarks in different countries via easy-to-use mobile or web apps .

(c) Synchronising search database and ensuring tamper proof data verification.

(d) Copyright registration and copyright management by right holders themselves:Blockchain can be used to show evidence of not only registered but also unregistered IP rights. In particular, using blockchain offers a more effective means of copyright registration. It is worth mentioning here that under the terms of the Berne Convention for the Protection of Literary & Artistic Works, copyright is not a registrable IP right. Similar is the case of unregistered design rights. In such cases, registration information recorded on the chain with an immutable time stamp forms a powerful proof of rights. If a user were to log into the registration website using blockchain technology, registration is possible at any time and in any place making it a more efficient registration process than the agency in charge of copyright registration can provide. This should be read with the fact that though registration is not mandatory, the registration certificate is a prima facie evidence in a court of law and hence puts the holder in a position of considerable advantage. Given the anticipated surge in copyright registration requirements in the years to come, blockchain technology could turn to be a big helping hand due to its decentralized nature.  On the international front, special mention needs to be made of the Anne Copyright Blockchain – a third party platform that provides Digital Copyright Identifier registration services. Anne’s mobile application, it should be mentioned here, operates 24x 7.

 (e) Searching Pirated Content Online : Monitoring of smart contracts using block chain can allow the author to save the work on the chain and assign a time stamp to the work.  This type of contract can search for pirated content online.  Once such pirated content is found, online copy right protection mechanisms can be triggered.  Thus through a wide adoption of block chains in IP sector, copy right infringements can be contained in coming years. 

 The importance of searching pirated content online lies in the grim reality that from  peer-to-peer file sharing services such as Napster and Grokster to photographs on the web, copy rights have never been respected.  However unauthorised file sharing and use of copyrighted content can to some extent be curtailed using blockchain technology.  Considering that a file is duplicated thousands of times across the net work, this network is designed to regularly update and reconcile all the copies so that all records are consistent.  The property of no central storage location makes it near to impossible to manipulate or corrupt.  Therefore whenever a copyrighted file is used illegally, a digital ledger holding the owner’s information and detailed transaction history is public and easily verifiable.  For example,  “Binded” touts itself as the world’s first copy right platform for blockchain creating a unique finger print for each copyright record.  By tracking copyright records, “Binded” facilitates copyright protection by enabling access to the circulation path of copyright knowledge through blockchain. With a digital fingerprint at its fingertips, owners can police online sites which use them.  Other service providers like “Copytrack” are also blockchain-based copyright platforms.

(f) Trade mark securing blockchains: Reports are galore that companies like
Kbyun.com are working in this direction.  In fact, on the trade mark front, the most significant application of blockchain is in recording prior use  (viz) proving that the mark in question was used by the claimant at a certain date. All that is needed is that the right holder uploads evidence into the blockchain and creates an “information chain” with time stamp of first use of the mark.

(g) Encrypting trade secrets: Blockchain technology uses a hash algorithm (i.e.,) it transfers each piece of information on the chain into a unique number sequence.  As the recorded information is not in the form of trade secret but in the form of hash value, the specific content of the trade secret is not exposed at the same time ensuring that evidence can be put forth that the file existed at a certain point of time.

(h) Tracking theft of trade secrets: Trade secrets are usually stolen by employees who thereafter join a competitor or start their own business.  Proving that the trade secret had indeed been stolen often poses an  insurmountable task for the plaintiff. But if blockchain is used, trace of downloaded information is left behind allowing the owner of the trade secret to locate the source of theft. This serves as an evidence in the ensuing legal proceedings.

(i) Getting patent protection for blockchain invention: Given that the core of blockchain is technological in nature (defining specific data structures, algorithms  and network configurations) it is likely that these core innovations will be eligible for patent protection in many countries. However, whether a particular block chain invention is eligible for patenting in a given jurisdiction will depend on the particular nature of the invention.  For example, applying generic blockchain technology to known financial practices will be hard to protect.  But innovations that apply  the technology in a novel way to change current financial practices are in all likelihood patent eligible .  In fact,  many of the initial patent filings  were  made by banks and financial institutions, but  with  blockchain becoming increasingly mainstream, applications are being filed across a broad spectrum of industries. Most related patent applications claim methods of enhancing or using the original blockchain as disclosed by Satoshi Nakamoto.  There has been a steady growth in the number of entities hoping to secure patents over technology using block chain as a base.  According to  WIPO  databases, there were 406 applications for blockchain patents in 2017.Tech giants like Qualcomm, IBM, Mastercard and Microsoft are among the top applicants.  It is also worth mentioning here that blockchain has attracted patent trolls. 

(j) Establishing evidence of first inventorship in patents and using distributed ledger technology for defensive publication as prior art to prevent others from obtaining a patent: This is an area wherein blockchain has immense potential. This can also lead to minimisation of litigations. A single consolidated platform can be provided for patent literature.

(k) Enforcing IP agreements using smart contracts: Smart contracts could be used to establish and enforce IP agreements such as licenses.  In IP,  transactions such as buying a patent involve many steps like checking the assignment and validity of the patent, negotiating the sale agreement, executing and paying the transaction etc.  All these steps can be simplified using smart contracts.  For instance,  companies such as UJO which is an open platform  that uses block chain technology to create a transparent and decentralised database of rights and right owners and automates royalty payments using smart contracts have already began to emerge.  Evidence that these ideas are fast catching up can be seen from Kodak’s launch of a blockchain-based image  rights management platform and its own cryptocurrency. 

(m) Block chain as a tool to strengthen IP regime: In the current scheme of things, IP records are being maintained at various IP offices in silos with every possibility of the data therein being inconsistent. In such a scenario where ensuring correctness of data and continuous updation thereof pose challenges, use of blockchain technology in maintaining these IP registers can come in as a saviour.  Instead of opting for registering a traditional database, a decentralized blockchain can be employed. This technology could be used to record the full cycle of IP rights and could be useful for audits, assignments, mergers and acquisitions as well as claims for non-use revocation. For instance, in the context of trademarks, this could mean when a mark was first applied for, registered, first used in trade and when it was  licensed/assigned. This could simplify due diligence exercises that are needed for IP transactions.  Moreover, collecting information on the use of the mark in trade/commerce on a blockchain based official mark register would allow the relevant IP office to be notified virtually immediately. This would result in reliable time-stamped evidence of actual use and frequency of use of a mark in trade both of which are relevant in proving acquired distinctiveness/secondary meaning or goodwill in a trademark.

(m) Blockchain for enabling IP marketplace: Blockchain can be used as a potential platform where inventors can place their inventions/digital works in the form of ledgers with short descriptions thereby acting as an IP marketplace.

(n) Remote access to IP information across various multinational offices and
collaboration between IP offices and WIPO: Maintaining data using blockchain technology can prove to be a boon while working as International Searching Authority (ISA)/International Preliminary Examining Authority (IPEA) and Receiving Office (RO). It can also come in handy while collaborating with other IP offices during prosecution of IP applications in the backdrop of schemes such as Patent Prosecution Highway. The immutability and traceability of blockchains can come in to be useful in such situations. Put it a bit differently, blockchain can solve the problem of unifying patent system across countries.

(o) Anti-Counterfeiting:Coupled with scanable blockchain-connected tags or imprints to goods providing the ability to trace goods on an immutable blockchain, ledgers showing relative ownership or authorized licensees would enable all persons in the supply chain to distinguish genuine products from counterfeit goods. If a brand owner informs customs authorities about the security features that genuine products should have, then the absence of such features is an easy way for border officials to check whether a product is counterfeit. The technology could also be used in connection with certification marks like Woolmark. Through blockchain, transactions via e-contracts can be recorded at each stage of the chain which would be useful for detecting counterfeit goods by customs authorities thereby preventing their entry in domestic market. Blockchain may also be used in detection and/or retrieval of stolen and parallel-imported goods.

(p) Applications in tandem with AI : In conjunction with AI, particularly domain specific AI, blockchain technology can work wonders. In the realm of certain IP assessments such as likelihood of confusion evaluation in trademark cases or the existence of an inventive step assessment in patent applications, AI-based software can  come in handy. As yet another example consider the use of CAD (Computer Aided Design). Taking a photograph of a design from three different angles is sufficient to create a CAD. Such a CAD could be uploaded to a block chain based app that could search the entire database (comprising all designs registered in the history of the IP regime) for similar designs and the right could be granted or denied using an AI based assessment tool.

International efforts

Internationally, France is the first country to regulate securities transaction on block chain systems. In April 2016, the French Government ordered  to legislate rules regarding mini-bonds. The order for the first time defined blockchain as “a shared electronic storage device” or “a shared electronic recording system allowing for authentication”

In 2016, Vermont passed legislation declaring that block chain receipts accompanied by written declaration of a person attesting to the details of the transaction are admissible. Under 12 VSA paragraph 1913, block chain receipts are also presumed to be authentic pursuant to Vermont Rules of Evidence. In 2017 Delaware General Corporation Law was amended to allow organizations to maintain business records using “distributed electronic networks or databases”.  Arizona amended the Electronic Transactions Act to include blockchain records which “may not be denied legal effect, validity or enforceability”. Ohio passed similar Legislation in 2018.

In 2018, a Chinese Court (in Hangzhou) recognized blockchain based evidence for the first time. In 2019, the Apex Court of China affirmed the use of evidences stored and verified on blockchain platforms EUIPO has launched a blockchain hackathon , EU Commission has plans for a blockchain observatory and US Congress has created a Congressional Blockchain Caucus. In fact as per the current EU law (Regulation No. 910/2014) a block chain record would be considered as an electronic signature and the timestamp contained in a blockchain record may be deemed as an “electronic time stamp”.

In India however there is no dedicated law that governs the use and operation of blockchains. However, Section 65B (admissibility of electronic records) of the Evidence Act may be of vital importance.

Challenges

The application  of  blockchain to IP faces serious challenges from at least  four aspects namely technical, marketing/business, behavioural/educational and  legal/regulatory. A generalized  concern is the negative publicity surrounding existing blockchains ie. cryptocurrrencies.

A major obstacle to the widespread use of blockchains is the incredibly high energy consumption. Powering all nodes and simultaneously providing for adequate cooling facilitiesfor a continuous operation becomes an extensively high energy consuming process, making blockchain one of the most expensive databases. Moreover due to the nature of the underlying technology, the rules  of  a  blockchain are always predefined. For example,  the rules of Bitcoin specify that there will be only 21 million bitcoins even mined. These types of limiting rules make the timing of moving such transactions from a traditional database to the block chain a very tricky matter. These shifts cannot be implemented too quickly as blockchain technology is still besieged by a number of unsolved problems.

Another challenge to be addressed is throughput and band width in the blockchain network.  Compared to traditional transaction platforms such as VISA or PayPal, blockchain is significantly slower at this time. For example if we examine the transaction processing capacity of the Bitcoin blockchain, we observe that it can handle 2-5 TPS (transactions per second) as opposed to VISA which can handle 56000 TPS. True,  numerous alternatives  have been  introduced to overcome this challenge through second  layer technologies (such as Segwit update to Bitcoin) but we have miles to go. In particular, the question that arises is : Is existing network bandwidth enough for block chain transactions to do real-time updates in the systems.

Questions of latency/delay in the blockchain network  and apprehensions of chocking of blockchain enabled systems in case of huge number of transactions within a fraction of a second also arise. How often should the ledger be updated? What is the least tolerable updating delay that is acceptable? And last but not least, how can we effectively address an attack wherein an adversary disallows a  miner’s block from reaching all other miners for a long time?

To summarise,  even a decade after its invention, blockchain is still in its early stages of development and there are various potential hurdles to large scale application of blockchain in the field of IP. These also include  questions of governing laws and jurisdiction, apprehensions of enforceability of smart rights, data security and privacy concerns not to mention of reliable rules and definitions for smart contracts.  Despite this in the context of IP-heavy industries, blockchain technology offers possibilities for IP protection & registration and as evidence, either at the registry stage or in Court.

But the crucial question will revolve around collaborations by industry participants and blockchain developers across the globe towards developing standards and interoperability  protocols. True, some work has already started under the aegis of the ISO (International Organization for Standardization) which is reported to be working on the ICO/TC307 standards for blockchain and distributed  ledger technologies. But that is only a humble beginning. Only when the rules of standardization are firmly established and are available for use by developers can regulators step in to task of bestowing blockchain with legal status.

On the legal side, it should be mentioned here that the law already enables individuals to present blockchain records as time-stamped evidence in some jurisdictions such as EU. Hence the next step will be to commence accepting block chain records as evidence vis-a–vis prior art claims. Once this process gets the approval of courts, right holders would get the incentive to start using this technology in creating  and  preserving evidence for their IP claims. Thereafter a legislative change that would allow block chain registrations to be deemed registrations should be brought in. Challenges will accrue thereafter too-for instance vis-a-vis laws regulating internet that have been drafted without considering the next layers of future technologies. Though problems will arise on blank spots, these are easier tackled than areas which are already regulated. To address these problems, efforts are needed to map the potential effects of blockchain, determine if they fall under existing laws and if  so,  how they are so covered. Till these  efforts bear  fruit, the ambition of block chain technology permeating  IP law  and practice will at best  remain to be a paper tiger.

Possessory Title : Its True Nexus with the Law of Limitation and the
‘Theory of Relativity’

(By Anoop Bhaskar, Advocate, Thiruvananthapuram)

Property law in India is built on a handful of legislations and a vast array of precedents. Very rarely, its philosophical roots have intrigued the legal minds. But when one is confronted with the concepts of possessory title and adverse possession, it is beneficial to reflect the jurisprudential principles underlying the property law. I am indebted to the thought provoking article written by the doyen of Palakkad Bar, Mr. P.B. Menon, in 2021 (4) KLT 83 for inspiring me to read more on these property principles. Here I discuss certain unconventional aspects relating to the terms, ‘property’, ‘ownership’ and ‘title’ from a jurisprudential standpoint in contrast with concept of possessory title by adverse possession. While these might sound unappealing to some, the rest are invited for a thoughtful and skeptical analysis. And as a caveat, this write-up is not an exhaustive reflection on the abstract property law concepts taken up here. Instead, let this serve as a prefatory note to those concepts, which are seen discussed in English jurisprudence and property law lectures.¹

So to begin with, one needs to understand the meaning of ‘property’. Most of us relate the term ‘property’ to an inanimate object or a thing and it is understood to cover movable and immovable property. Even our statues create such an impression. But jurists see this to be a layman explanation. They explain ‘property’ as the relationship that one shares with respect to ‘things’. This relationship is identified as certain interests that exist in the thing in favour of a person as against the world at large.² These are referred to as ‘property interests’. These property interests are a complex of rights, privileges, duties, liabilities etc. Each of these constituent right, privileges, duties etc. which join together to form the property interest is conveniently referred as ‘property rights’.³ Examples for property interests are ownership, lease, mortgage etc. Some examples of property rights are right to possess, right to enjoy, right to control, duty to prevent harm being caused to others by the thing etc. When ‘property’ is understood to mean the ‘thing’ alone, it leads to confuse property with the subjects of property. The ‘thing’ is only one of the subjects of property. Let us cite an example to break down these abstract ideas. Mr. X possesses a land. The property interest vested in Mr. X can be found out by looking at his relationship with the land. If he possesses the land as an ‘owner’, his property interest is the ownership; and if as a lessee, his property interest is that of lease. So when Mr. X makes a transfer to someone with respect to the land, it is the interest he transfers. The ‘property/property interest’ in the land gets transferred and not the ‘land’ or the ‘thing’ itself. This is why property should not be confused to mean the ‘thing’. Having said these, it is also worth to know that another school of thought espouses ‘property’ as a noun to denote the ‘thing’ itself and this is widely seen used in Indian statutes.

Now let us clarify and refine the ideas of ‘ownership’ and ‘title. These two are often used as synonyms and confused to mean the same. There exists a clear distinction between the two and to understand it, requires considerable reading and effort. Here I have tried to keep it as short as possible to highlight the distinction. So as mentioned earlier, ‘ownership’ is a type of property interest. The ultimate or most extensive property interest in relation to a thing which identifies the person having primary control over the thing is termed as ownership.⁴ This person is identified as the owner of a thing and his interest over the thing is what you mean by ‘ownership’. The English jurist, A.M.Honroe, explained ownership to have eleven incidents.⁵Out of which the most important incident is possession. This is why possession is commonly accepted as the nine points in law. In other words, ownership may be identified as the bundle of rights or incidents that identifies the person having the most extensive control over a thing.

Whereas ‘title’ is a person’s entitlement to a particular property interest in a thing as against others. This entitlement is the measure or strength of that person’s interest in the thing as against others.⁶ To understand this better, we need to figure out how title arises or is created. Title arises either by derivative acquisition or original acquisition.⁷In derivative acquisition, the title is derived from the previous title holder. This happens in two ways. One is by way of disposition, i.e., by sale, gift etc., wherein the whole property interest is disposed. The other is by way of grant, wherein the predecessor conveys only a lesser property interest after reserving the larger interest to himself. Example for this would be a lease, where the lessee derives a title to the lease. At this point, it is worth to remind that ‘title’ is one’s entitlement over a property interest as against others. In sale, the entitlement is to ownership of the land, whereas in lease, the entitlement is to the leasehold interest in the land. In a lease by the owner, the lessor retains the title in ownership and the lessee derives the title to lease. So here comes another fascinating theory, ie. Relativity of Title. It means that there can exist rival titles in one thing.⁸ So when lease is created over a land by its owner, there will be two titles in relation to the same land, ie. title to ownership and title to lease. Now let us look at the second way in which title arises, ie. original acquisition. Here the title does not flow from a previous title holder. Instead title is acquired originally and this happens in three situations. One may be, when a thing is first created. Another one is, when possession is taken of a thing which someone else is already entitled to. An example for this would be ‘possessory title’. The last situation would be, when title is purportedly transferred to an innocent purchaser by a person with no title. In the last two scenarios, there may be rival titles existing in relation to the same thing, as was the case in a lease by the owner.

So the point is, title is a person’s entitlement to a property interest when compared to others. Whereas ownership is only a type of property interest in a thing which gives a person the most extensive control over it. There exist other types of property interests in relation to a thing, such as, lease, mortgage, easement, possessory right etc. This is why it is not wrong to recognize title to lease, title to easement, title to possession (possessory title) and such other titles in law.

The relativity of title or existence of rival titles gains importance when a dispute to title over a thing arises. The lis will be decided in favour of the person who is able to prove a better title. Rather, a person with a stronger title as against the one having a weaker title wins the battle. This is the right approach in deciding title disputes, especially when we recollect title is nothing but the measure or strength of a person’s interest over a thing. In our adversarial legal system, where the rule of evidence in civil disputes is that of preponderance of probabilities, the need for recognition of the principle, ‘relativity of title’, cannot be emphasized more in matters relating to title disputes. Therefore suits involving question of perfection of title by adverse possession and limitation needs to be appreciated in light of the above discussed concepts. This area is overburdened with precedents, including a few conflicting ones, and the latest position can be seen in Ravinder Kaur’s case.⁹ Section 27 and Articles 64 & 65 of the Limitation Act have also been extensively discussed time and again. So here I am not reiterating the law on the subject and burdening the readers, who had patiently gone through these abstract ideas. But something that I like to discuss from the upshot of the law laid down is with respect to how these statutory provisions have been heavily relied to recognize possessory title by adverse possession and why such a course is not the most desired approach, had the concept of ‘relativity of title’ been recognized by our courts.

In Ravinder Kaur’s case, the view taken was that Section 27 read with Article 65 speak about the extinguishment of original title and creation of possessory title. There exists another line of thought, saying those provisions only extinguish the right to recover possession without taking away the title, but at the same time confers a possessory title on the adverse possessor.¹⁰ The last, but an interesting thought, as has been canvassed by Mr.P.B.Menon in his article is that, Section 27 and Article 65 only extinguish the right to recover possession and does not create any title. This proposition in fact embraces the idea of ‘relativity of title’. To explain this, let us do a brief analysis of Section 27 and Article 65.

Firstly, it is useful to appreciate that the law of limitation only extinguishes a remedy and not a right. Section 27 is argued as an exception to this general rule.¹¹ So in adverse possession cases, as has been held in Kunhikrishnan’s¹², Section 27 is understood to extinguish the title of the prior owner. Here the ‘right to property’ was equated to the ‘title to property’. This analogy was drawn by a combined interpretation of Section 27 and Article 65
and by referring to the definitions of title and prescription in Black’s Law Dictionary. Let us see whether this conclusion will remain undisturbed, had we been allowed to import the concept of ‘relativity of title’.

When we look at Section 27, it says, at the determination of limitation period prescribed for a person to institute a suit for possession, his right to such property gets extinguished. In Article 65, limitation is prescribed for suits for possession based on title as 12 years. So one will be deprived of the right to institute a suit for possession based on title, if not filed within 12 years from the date when the possession of defendant becomes adverse to the plaintiff. At this point, let us remind ourselves that Section 27 is not confined to Article 65 alone, where suits for possession is based on title. Instead, this Section acts as a comprehensive provision that covers all kinds of suits for possession of property.¹³ For instance, suits by mortgagor and mortgagee for recovery of mortgaged immovable property, suits by landlord to recover possession from tenant etc., fall within the scope of Section 27. In that case, it will be a restrictive interpretation to give a sui-generis status to Section 27 when confronted with cases coming under Article 65, i.e,. by holding that it extinguishes title in cases covered under Article 65. In simple words, Section 27 cannot be given a special power to take away the title of a prior owner when he loses his right to recover possession ‘based on title’. To understand this point, let us make a cross reference to Article 64. There, when one loses right to institute a suit for recovering possession ‘based on previous possession’, does it amount to losing of a possession that was already lost? Those who say ‘yes’ might say, the possession that was lost or extinguished by limitation was a ‘juridical possession’. But that would be too hyper technical! It is also seen stated in Kunhikrishnan’s case that the ‘right to property’ in Section 27 is nothing but the property or title to the immovable property. If that be so, in suits falling under Article 67, does it mean the title of landlord gets extinguished after 12 years from the date of determination of tenancy and he cannot thereafter demand rent from the tenant? It would be correct to give a ‘no’ to these questions and assert that the ‘right to property; in Section 27 is not the ‘title to property’ and instead it is the ‘right to recover possession’. This whole confusion could have been avoided, if the changes brought forth in the new Limitation Act, 1963 did not introduce the words ‘title’ or ‘previous possession’ in Article 65 and 64. Instead Article 144 and 142 of the old 1908 Act should have been retained as such. Even today these Articles could have catered to all the cases now coming under 64 and 65. Suits for possession based on possessory title or title to ownership can very well be maintained under the old 144. The amendments were made under a false notion that without the term, ‘title’, the concept of possessory title by adverse possession cannot be recognized. This aspect will attain more clarity towards the end of this discussion.

Now let us get back to the question whether Limitation Act creates possessory title. There’s a consensus among all the decisions cited above, when it comes to agreeing that Article 65 read with Section 27 confers possessory title by adverse possession and limitation. But does the statute of limitation create or extinguish title which is a substantive right? Let me try to substantiate another ‘no’. In a recent judgement of the SC, the need to consider Limitation Act as a substantive law rather than a procedural law was highlighted by adopting the view in Dicey’s Conflict of Laws¹⁴. But here the extinguishment of rights was seen to be substantive and by rights, it meant the ‘remedy’ or ‘the right to invoke

a remedy’ and not any other rights, per se. In Ravinder Kaur’s, it was held that by the operation of Article 65, there is acquisition of title in favour of the adverse possessor by a negative conferral of right. This negative conferral of right happened when the right of the prior owner to institute a suit for possession based on title was lost by limitation. And this conferred right was held to mean nothing but the title acquired by the adverse possessor. This was how it proved that Article 65 read with Section 27 creates a possessory title. Let us pause for a moment and try to bring in the theory of ‘relativity of title’ to counter this argument.

It is true by the operation of limitation prescribed under Article 65, the prior owner loses his right or remedy to sue for possession based on title. At this point, the adverse possessor acquires title by the virtue of original acquisition. This is because the adverse possessor has taken possession of the land and he is exercising his right with an animus to possess the land against the whole world, including the prior owner. Remember the definition of ‘title’ discussed in the beginning? In other words, the possessor will have an entitlement to the right to possess the land against others, i.e., he is having the title to possess. At the same time the prior owner will be denying the adverse possessor’s entitlement to possession and be claiming the entitlement to all the incidents of ownership, including possession. Basically, he will be claiming title to ownership on the land. This is how there will exist two rival titles in the case of a title dispute based on possessory title by adverse possession, ie. title to ownership v/s title to possession. Now the Courts will be called upon to measure the strength of each title. If the adverse possessor proves that the prior owner has lost his right to recover possession by way of limitation, it will mean that the title of the prior owner will be weaker than adverse possessor. This is because possession is considered nine points in law and the weightiest incident of ownership. So when this most important incident is lost from the title to ownership of the prior owner, his title gets weaker when compared to the title of adverse possessor.

Based on the above reasoning, a purist approach would be to propose that the statute of limitation does not create or confer possessory title. Instead, possessory title by adverse possession is a concept of law from time immemorial which has its roots in the principle of original acquisition of title. The statute of limitation only acknowledges possessory title created by original acquisition through Section 27 and Article 65. At the same time, the limitation prescribed has its due importance in possessory title, without which, this concept would be incomplete. Also, to state that Section 27 is an exception to the much-avowed idea of limitation which says it only extinguishes a remedy and not a right is another misdirected attempt. Exceptions should not be carved as a desperate attempt to give life to an age-old property law concept that already has an origin elsewhere. Yes, possessory title by adverse possession is not a creature of statute but a philosophical concept of property law which has been acknowledged in the Limitation Act.

Jaleel v. Muhammed Shafi (2021 (3) KLT 167)
Marvelous Manifestation of Justice

(By N. Dharmadan, Senior Advocate, High Court of Kerala)

Kerala High Court considered Jaleel’s case, when there was public protest and political tension leading to explosive situation. This situation was prevailing for some time on account of the fact that the Minister refused to resign his office taking into account the moral responsibility, in the light of admitted facts and figures that the Minister has patently violated his oath of office solemnly taken by him at the time of assumption of office. The judgment in Jaleel’s case resolved all the issues so as to restore peaceful atmosphere for maintaining quietus. It is not only marvelous but also a master-piece of justice rendered by the Kerala High Court worthy enough to be emulated.

In fact the judgment has not only rendered justice to the contesting parties but also manifestly seen done full justice to the public for restoring peaceful life in the State. The Minister tendered his resignation pending consideration of the case, even before passing the final judgment, upholding the final opinion formulated by the Lok Ayukta. In these circumstances a “Re-visitation” of the judgment on technicalities is unwarranted and a farfetched plea based on “logical reasoning” is out of place for they would not prevail over overall justice.

It is true that the Chief Minister and Council of Ministers hold office during the pleasure of the Governor. But they are constitutional functionaries and they cannot abdicate their constitutional obligations, responsibilities and duties nor do they freely violate the oath of office, which cannot be treated as an idle formality to be ignored conveniently according to the whims and fancies of concerned persons. The court would be persuaded or catalyzed to step in to exercise its extraordinary discretionary jurisdiction under Art.226 of the Constitution of India whenever its finds violation of oath of office and dereliction of duties, responsibilities and obligation under the Constitution which when shock the conscience of the court.

Considering the facts of this case the Division Bench decision cannot be attacked on any ground much less a “logical reasoning” or other arguments based on fundamental principles or basic structure. In para 46 of the report of the Lok Ayukta the facts are stated. There is no denial of any of the basic facts nor is there any material produced in the case to disbelieve the allegation or averments. When a judgment is attacked generally importance is given to a careful verification and examination of the facts of that case and the circumstance thereof. Any criticism of the judgment without a careful and scrupulous verification of facts is otiose and it does not deserve any answer.

The undisputed facts in Jaleel’s case, considered by the Division Bench, in a nut shell, can be examined in this connection. The petitioner, Sri.Jaleel, is admittedly an elected member of the Kerala Legislative Assembly and a member of Council of Minister of the State. The 5th respondent is his close relative. He was given an appointment. This is the root cause or the basis of the complaint. The main complaint against him is that the petitioner has violated the oath of office by abusing his position as a Minister. He indulged in favoritism and nepotism in appointing the 5th respondent, who is closely related to the Minister, as a General Manager of the Kerala State Minorities Development Finance Corporation. As stated above there is absolutely no dispute about the basic fact even though the petitioner filed a very lengthy petition running more than forty pages.

There are only limited prayers in the complaint. The main prayer is to conduct an impartial investigation into the matter and submit a report to the competent authority with its recommendations as provided for under Section 12(3) of the Lok Ayukta Act 1999 and declare under Section 14 of the Act that the Minister is not entitled to continue as a Minister.

Though the Division Bench has written a fairly long judgment, discussing various contentions and arguments of the learned counsels, who appeared before the court, the court confined the crux of the issue and core point in paras 21 and 22. The court quoted Section 12(3) and Section 14 and examined the correlations and application of the statutory provisions on the facts with special reference as to whether there was any error of facts or nexus to the object sought to be achieved in this behalf viz. decision making process and came to the conclusion that the final opinion has been formed by the Lok Ayukta based squarely on the facts stated in para 46 of the report submitted by the Lok Ayukta after considering all the relevant aspects carefully in proper perspective.

In Jaleel’s case the Division Bench dismissed the Writ Petition “in limine” taking the view that the petitioner has not made out any ground for interference in the final opinion taken by the Lok Ayukta particularly when the High Court was only examining the matter in exercise of power of judicial review. It is pertinent to note the parties have not raised any technical plea or complicated constitutional issue. The judgment rendered in exercise of the power of judicial review is unassailable. The court held: “The power or judicial review is therefore not directed against the decision, but is confined to the decision making process. It is not an appeal from a decision, but a review of the manner in which the decision is made and the court sits in judgment only on the correctness of the decision making process and not on the correctness of the decision. It is now settled that in exercise of the said power, the court would confine itself to the questions namely, whether the decision making authority exceeded its power, committed an error of law, committed breach of the rules of natural justice, reached an unreasonable decision or abused its powers (See Bhubaneswar Development Authority v. Adikanda Biswal (2012 (2) KLT Suppl. 92 (SC))”

The court did not overstep or deviate from its plenary powers and judicial discretion while examining the facts and the decision making process as to whether there is any error of facts touching the merit of the decision and as to whether it has any direct nexus to the decision making process. It is also to be remembered that the Division Bench decided the matter urgency at the outset ‘in limine’ without issuing notice to anybody. In this background the Division Bench decision in Jaleel’s case deserve appreciation and approbation from all quarters including the Apex Court.

A Glimpse on the Dowry Prohibition Act, 1961

(By Sasisekhar Menon, Librarian, High Court of Kerala)

Following steep increase in dowry related deaths in the State, the Government of Kerala exercising its power under Section 10 of the Dowry Prohibition Act, 1961 and the Kerala Dowry Prohibition Rules, 2004 made the Kerala Dowry Prohibition (Amendment) Rules, 2021.

District Women and Child Development Officers of the Women and Child Develop-ment Department is to function as the District Dowry Prohibition Officers in every district. The Director of Women and Child Development Department shall act as the Chief Dowry Prohibition Officer for administering and co-ordinating the work related to dowry prohibition throughout the State. By virtue of Circular No.WEC-1/9752/21 dated 16-7-2021, the Chief Dowry Prohibition Officer and Director, Women and Child Development Department exercising powers vested under the Kerala Dowry Prohibition (Amendment) Rules, 2021 issued the following instructions:

(1) 26th day of November every year is to be observed as Dowry Prohibition Day in the State of Kerala.

(2) All the students in High Schools, Vocational Higher Secondary Schools, Higher Secondary Schools and Colleges (Technical and non-technical etc.) and all other educational institutions in the State should take the pledge “Not to give or take dowry” in the general assembly in the respective institution on the Dowry Prohibition Day.

(3) All the heads of the departments including Public Sector Undertakings, autonomous bodies, cultural and other institutions under the Government shall obtain a declaration from the Government servant within one month after his marriage stating that he has not taken any dowry in connection with his marriage.

Now, let us look at the salient features of the Dowry Prohibition Act and some judicial pronouncements relating to its implementation.

Section 2 of the Dowry Prohibition Act, 1961 defines “dowry” as any property or valuable security given or agreed to be given either directly or indirectly –

(a) by one party to a marriage to the other party to the marriage; or

(b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;

at or before any time after marriage in connection with the marriage of the said parties, but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies.

The expression “valuable security” has the same meaning as in Section 30 of the Indian Penal Code, i.e., to denote a document which is, or purports to be, a document whereby any legal right is created, extended, transferred, restricted, extinguished or released, or whereby any person acknowledges that he lies under legal liability, or has not a certain legal right.

Section 3 of the Act describes the penalty for giving or taking dowry and Section 4 the penalty for demanding dowry while Section 5 states, “any agreement for the giving or taking of dowry shall be void” and Section 6 states “the dowry is to be for the benefit of the wife of her heirs.”

Section 8 mentions that offences are to be cognizable for certain purposes and to be non-bailable and non-compoundable. Central Act 43 of 1986 inserted Section 8-A and 8-B into the Dowry Prohibition Act. Under Section 8-A where any person is prosecuted for taking or abetting the taking of any dowry under Section 3, or the demanding of dowry under Section 4, the burden of proving that he had not committed an offence under these sections shall be on him. Under Section 8-B, the Dowry Prohibition Officers were established.

Section 10 authorises State Governments to make rules and thus the Kerala Dowry Prohibition Rules, 2004 came into effect.

Dowry related provisions under the Indian Penal Code and the Code of Criminal Procedure:

1. Section 304-B, IPC (dowry death) – cognizable and non-bailable.

(2) Section 498-A, IPC (husband or relative of husband of a woman subjecting her to cruelty) – non-bailable.

Sections 304B and 498-A, IPC are mutually exclusive, as they deal with two distinct offences. But, under Section 304-B it is the dowry death which is punishable and such death should have occurred within seven years of the marriage. But, no such period is mentioned in Section 498-A.

Under the Indian Evidence Act, 1872:

Central Act 46 of 1983 inserted Section 113-A (presumption as to abetment of suicide by a married woman) with “cruelty” having the same meaning as in Section 498-A, IPC, and

Central Act 43 of 1986 inserted Section 113-B (presumption as to dowry death) with “dowry death” having the same meaning as in Section 304-B, IPC.

Some important judicial pronouncements pertaining to dowry:

(1) A Full Bench of the Honourable High Court of Kerala in Sheela v. Suresh (2020 (5) KLT 730 (F.B.)) on 24.9.2020 ordered that,

As per Section 6 of the Dowry Prohibition Act, 1961, when a statutory trust is created in respect of dowry, a trust does not get extinguished unless any such eventuality in terms of Section 77, Trusts Act, 1882 arises.

If the ornaments owned by the wife do not form part of the dowry and if there is an entrustment of gold ornaments by the wife to the husband or his parents, a trust gets created, in which event the trustee or trustees, as the case may be, are liable to return the same and there is no limitation for claiming the same by the wife/divorced wife.
(2020(5) KLT 730 (F.B.); ILR 2020 (4) Ker. 486: 2020 (4) KLJ 783: I (2021) DMC 287 Ker.)

(2) The Honourable Supreme Court of India on 27.2.2019 while deciding Sunil Kumar Gupta & Others v. State of Uttar Pradesh & Ors. held,

Insofar as demand of dowry and dowry harassment, there were no particulars given as to time of demand and what was the nature of demand. Averments in complaint and evidence was vague and no specific demand was attributed to any of the appellants. In such circumstances, there was no justification for summoning appellants even under Section 498-A, IPC and under Sections 3 and 4 of Dowry Prohibition Act. As held in the constitutional Bench judgement in Hardeep Singh, for summoning an accused under Section 319 of Cr.P.C., it required much stronger evidence than mere probability of his complicity which was lacking in the present case. Trial Court and High Court has not examined matter in light of well settled principles (2019 (1) KLT OnLine 3220 (SC):AIR 2019 SC 1174: 2019 Cri.L.J. 1764 (SC): (2019) 4 SCC 556).

(3) The Honourable Supreme Court of India on 7.8.2019 in deciding Mahesh Kumar v. State of Haryana, held that the prosecution failed to prove either the demand of dowry or that any such demand was raised soon before the victim’s death. Therefore, the essential ingredients of offence under Section 304-B of IPC are not proved by the prosecution nor even the initial presumption u/S.113-B of the Evidence Act. Consequently, conviction of the Appellant was set aside and Appeal allowed. (2019 (3) KLT OnLine 3197 (SC) : AIR 2019 SC 4225: 2019 Cri. LJ 4697: (2019) 8 SCC 128: II (2019) DMC 866 SC).

(4) The Honourable Supreme Court of India on 14.8.2020 while deciding Preet Pal Singh v. The State of Uttar Pradesh & Ors. held while allowing the appeal:

It was nobody’s case that the death of the victim was accidental or natural. There was evidence of demand of dowry, which the Trial Court had considered. The death took place within 7 or 8 months and there was oral evidence of the parents of cruelty and torture immediately preceeding the death. There was also evidence of payment to the Respondent-Accused by the victim’s brother. Where there was evidence that had been considered by the Trial Court, it was not open to a court considering application under Section 389, Cr.P.C. to re-assess and/or re-analyse the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail.

From the evidence of the prosecution witnesses, it transpires that the Appellant had spent money beyond his financial capacity, at the wedding of the victim and had even gifted a car. The failure to lodge an FIR complaining of dowry and harassment before the death of the victim, was inconsequential. The parents and other family members of the victim obviously would not want to precipitate a complete breakdown of the marriage by lodging an FIR against the Respondent No. 2 and his parents, while the victim was alive.

The impugned order of the High Court was set aside and the Respondent No.2 was directed to surrender for being taken into custody.(2020 (4) KLT OnLine 1155 (SC) : AIR 2020 SC 3995: (2020) 8 SCC 645: 2020 (3) MLJ (Crl.) 633: I (2021) DMC 45 SC).

(5) The Honourable Supreme Court of India on 4.3.2021 while deciding V.N. Patil v. K. Niranjan Kumar & Ors. held

The object underlying Section 311 of the Cr.P.C. is that there may not be failure of justice on account of mistake of either party in bringing the valuable evidence on record or leaving ambiguity in the statements of the witnesses examined from either side. The significant expression that occurs is “at any stage of any inquiry or trial or other proceeding under this Code.” It is to be borne in mind that the discretionary power conferred u/S.311, Cr.P.C. has to be exercised judiciously, as it is always said “wider the power, greater is the necessity of caution while exercising judicious discretion.” Section 311 of Cr.P.C. strengthens the arms of a court in its effort to unearth the truth by procedure sanctioned by law. In this case, the High Court of Karnataka has not adverted to the factual matrix noticed by the Trial Court and taking note of the submissions made by the contesting parties summarily, without assigning any reasons, set aside the judgement of the Trial Court. Consequently, the appeal was allowed (2021 (2) KLT OnLine 1161 (SC) : AIR 2021 SC 1276: (2021) 3 SCC 661: I (2021) DMC 538 SC).