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.

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.

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).

The Jurisdiction -- Dimension of Juristic Thought

Concerning LOK AYUKTA

(By O.V. Radhakrishnan, Senior Advocate, High Court of Kerala)

The present work and its projected sequel of the article titled “Jaleel v. Muhammed Shafi (2021 (3) KLT 167) Needs Re-visitation” appeared in 2021 (4) KLT Journal 51 highlight the expostulations with the legal propositions and views expressed therein stated to be not just critical but also didactic. The main purpose of this article is to examine the nature, and the basic conceptions of law concerning the Kerala Lok Ayukta Act, 1999 (for short, Lok Ayukta Act) in the constitutional context and in the light of the law declared by the Supreme Court. The attempt in this article is to diagnose the sinister syndrome in taking the Minister out of the jurisdiction of the Lok Ayukta on a legally untenable stand that a Minister does not hold a “post” and the complaint is in respect of actions taken by or on behalf of the Government of Kerala. The objective of this article is to find out how much logical sense can be given to the assumptions, concepts and precepts of law expressed in “Jaleel v. Muhammed Shafi -- Needs Re-visitation.”

The article “Jaleel v. Muhammed Shafi - Needs Re-visitation” gives us a distorted and highly tendentious view of the activities of the Minister interrelated with the jurisdiction of the Lok Ayukta. The view of the writer that any direction by the Lok Ayukta that the Minister shall vacate his office is beyond the provisions of the Kerala Lok Ayukta Act is one made without noticing the distinction between communicating the findings and recommendations to the competent authority as required under Section 12(3) of the Lok Ayukta Act and issuing direction in that regard. The Lok Ayukta only communicated its findings and recommendations as enjoined by Section 12(3) of the Lok Ayukta Act to the competent authority. The assumption of the writer of the article that the Lok Ayukta issued direction and thereby it stepped outside its jurisdiction is completely indefensible. Communicating findings and recommendations containing declaration under Section 14(1) of the Act does not amount to giving direction and it is author’s extraversion. A fortiori the opinion voiced by the writer of the article that the Minister does not hold a ‘post’ and the complaint is in respect of actions taken by or on behalf of the Government of Kerala, any direction by the Lok Ayukta that he shall vacate the office is beyond the provisions of the Lok Ayukta Act is not a logical derivation from the set of facts and is ununderstandable. It carries hardly anything more than the personal view of the writer of the article.

In pursuance of the declared policy of the State Government to eliminate corruption in Public Service and to widen the ambit of the Kerala Public Men’s Corruption (Investigations and Inquiries) Act, 1987 by including Public Servants and Government Servants, the members and the person in service of the local authority, statutory and non-statutory bodies and co-operative societies within the purview of the same, it was decided to bring forth a comprehensive new legislation for the effective inquiry and investigation of complaints against the Public Servants and matters connected therewith or ancillary thereto. The Preamble to the Lok Ayukta Act is explicit on its terms that Lok Ayukta and Upa-Lok Ayukta are for making inquiries into any action (including any omission and commission in connection with or arising out of such action) relatable to matters specified in List II or List III of the Seventh Schedule to the Constitution of India, taken by or on behalf of the Government of Kerala or certain public servants in the State of Kerala in certain cases and for matters connected therewith or ancillary thereto. Appointment of Lok Ayukta and Upa-Lok Ayukta is aimed at ensuring clean and transparent administration. The Lok Ayukta and Upa-Lok Ayukta have been vested with power to conduct preliminary verification, investigation and suggest appropriate remedial measures in the administration. “Law is not an omnipotence in the sky, but a loaded gun which, when triggered by trained men with ballistic skill, strikes the offending bulls eye.”¹ The Kerala Lok Ayukta Act is a fruitful legislation for the effective inquiry and investigation of complaints against public servants and matters connected therewith or ancillary thereto.

The expression ‘Public Servant’ is defined in section 2(o) of the Lok Ayukta Act to mean a person who is or was at any time,--

(i) the Chief Minister;(ii) a Minister;(iv) a Government Servant [(iii), (v) to (vii) omitted].

In Section 2(c) “Chief Minister” is defined to mean the Chief Minister of the State. Section 2(l) defines “Minister” to mean a member of the Council of Ministers of the State excluding the Chief Minister.

The import and connotation of the term ‘Public Servant’ appearing in Section 2(o) of the Act expressly embraces both the Chief Minister and Minister within its gamut. In M.Karunanidhi v. Union of India ², a Constitution Bench of the Supreme Court held:

“57. .........It is thus incontrovertible, that the holder of a public office such as the Chief Minister is a public servant in respect of whom the Constitution provides that he will get his salary from the Government Treasury so long he holds his office on account of the public service that he discharges. The salary given to the Chief Minister is conterminous with his office and is not paid like other constitutional functionaries such as the President and the Speaker. These facts, therefore, point to one and only one conclusion and that is that the Chief Minister is in the pay of the Government and is, therefore, a public servant within the meaning of S.21(12) of the Penal Code.”  

The legal issue whether Chief Minister and a Minister are comprehended by the expression ‘public servant’ is concluded by the Constitution Bench decision in M.Karunanidhi’s case and is no longer res integra. The definition of ‘public servant’ embraces both the Chief Minister and a Minister which received statutory confirmation in Section 2(o) of the Lok Ayukta Act. The view expressed in the article “Jaleel v. Muhammed Shafi -- Needs Re-visitation” that a Minister does not hold a ‘post’ and his actions are collectively taken by or on behalf of the Government of Kerala and any direction by the Lok Ayukta that he shall vacate the Office is beyond the provisions of Kerala Lok Ayukta Act is an ‘irrationalist fallacy’.

The jurisdiction of the Lok Ayukta to declare that the Minister should not continue to hold the post on its satisfaction that the complaint involving the allegation against the Minister is substantiated does not depend on the ‘post’ held by the public servant. The jurisdiction of the Lok Ayukta cannot be whittled away by giving a narrow sense to the word ‘post’ held by the public servant. Such an approach is misleading, improper and unsupportable. The factual pre-condition for making the declaration that one should not continue to hold the post held by him is that the person concerned shall be public servant. The view expressed in the article that a Minister does not hold a ‘post’ and his actions are beyond the provisions of the Lok Ayukta Act is grounded in the word ‘post’ on a misconception that it does not en-compass its counterpart ‘office’. The word ‘post’ or ‘office’ means position in service. An office means a public or private employment with certain duties to be performed ^3,4. The Chief Minister and a Minister hold public office and discharge public service. Therefore, under Section 14(1) of the Lok Ayukta Act, the Lok Ayuktaha’s power and authority when the allegation is substantiated and the Lok Ayuktais satisfied that the complaint involving the allegation against the ‘public servant’, be it Chief Minister or a Minister concerned, should not continue to hold the post held by him, to make a declaration to that effect in his report under sub-section (3) of Section 12 of the Act. Inevitably, the view expressed in the article “Jaleel v. Muhammed Shafi - Needs Re-visitation” that since the Minister does not hold a ‘post’, his actions are collectively taken by or on behalf of the Government of Kerala is a view expressed in absolute disregard of the canons of the Constitutionalism.

The fact of the matter is that the appointment of the cousin of the Minister as the General Manager of the Kerala State Minorities Development Finance Corporation was made on deputation. In Umapati Choudhary v. State of Bihar ⁵ the Supreme Court held: “Deputation can be aptly described as an assignment of an employee (commonly referred to as the deputationist) of one department or cadre or even an organisation (commonly referred to as the parent department or lending authority) to another department or cadre or organisation (commonly referred to as the borrowing authority). The necessity for sending on deputation arises in public interest to meet the exigencies of public service. The concept of deputation is consensual and involves a voluntary decision of the employer to lend the services of his employee and a corresponding acceptance of such services by the borrowing employer. ……….”

The Kerala State Minorities Development Finance Corporation is a Non-Banking Financial Company registered under the Companies Act, 1956. The Kerala State Minorities Development Finance Corporation is a wholly-owned Government Company governed by its Articles of Association. Therefore, the appointment of the 5th respondent as the General Manager of The Kerala State Minorities Development Finance Corporation by the Minister is not an appointment under the Government and is not one made by the Government in exercise of the executive power of the State. Necessarily, the assumption that the action taken by the Minister is an action collectively taken by or on behalf of the Government of Kerala is not a logical derivation from the set of facts and in the Constitutional context. This non sequitur invalidates the view that any direction by the Lok Ayukta that he shall vacate the office is beyond the provisions of the Kerala Lok Ayukta Act.

Signally, the order of appointment of the 5th respondent though issued as G.O.(Rt) No.7481/2018/GAD dated 16.11.2018 is not an executive order validly issued in exercise of the power under Article 162 read with Article 166(1) of the Constitution.

Under our Constitution, the Governor is a constitutional head and the administration of the State is run by the Council of Ministers. The Constitution has authorized the Governor under Article 166(3) to make Rules for the more convenient transaction of business of the Government of the State and for the allocation among its Ministers, the business of the Government. All matters excepting those in which Governor is required to act in his discretion have to be allocated to one or the other of the Ministers on the advice of the Chief Minister. The Governor can make Rules on the advice of his Council of Ministers for more convenient transaction of business. Accordingly, the Governor has made the Rules of Business of Government of Kerala in exercise of the powers conferred by clauses (2) and (3) of Article 166 of the Constitution. Rule 5 Section 1 of the Rules of Business provides that the Governor shall, on the advice of the Chief Minister, allot the business of the Government among the Ministers by assigning one or more departments to the charge of a Minister. Rule 8 provides that subject to the orders of the Chief Minister under Rule 14, all cases referred to in the Second Schedule shall be brought before the Council in accordance with the provisions of the Rules contained in Part II. Second Schedule to the above Rules specifically enumerates the cases to be brought before the Council and such of those cases alone need be brought before the Council of Ministers. Individual Minster can attend to the numerous matters that come before the Government and that each and every decision is not required to be taken by the Cabinet. Therefore, the assumption or imported attribute went to showing that the complaint about the appointment of the 5th respondent was based on the action collectively taken by or on behalf of the Government of Kerala goes against the very grain of the Rules of Business of the Government of Kerala. All this underlines the unacceptability of the view that the actions of the Minister are collectively taken on behalf of the Government of Kerala.

It is a mandatory statutory duty conferred upon the Lok Ayukta under Section 12(3) read with Section 14 of the Act that if, after investigation of any action in respect of which a complaint involving an allegation has been made, the Lok Ayukta or the Upa-Lok Ayukta is satisfied that such allegation is substantiated, either wholly or partly, it shall, by report in writing, communicate its findings and recommendations to the competent authority. Section 14 of the Lok Ayukta Act contains the imperative note that where, after investigation into a complaint, the Lok Ayukta or Upa-Lok Ayukta is satisfied that the complaint involving an allegation against the Public Servant is substantiated and the Lok Ayukta is satisfied that the Public Servant concerned should not continue to hold the post held by him, the Lok Ayukta or the Upa-Lok Ayukta, as the case may be, shall make a declaration to that effect in its report and the competent authority shall accept the declaration. The exercise of those statutory powers conferred on the Lok Ayukta under the Act cannot be branded as acting beyond the provisions of the Kerala Lok Ayukta Act or acting outside the province and powers of the LokAyukta.

In “Jaleel v. Muhammed Shafi- Needs Re-visitation” the statement that the Lok Ayukta omitted to notice that there was no “grievance” to the complainant as the appointee had already vacated the office when objections were raised is a sweeping generalization. The “grievance” as defined in Section 2(h) of the Act takes in personal or individual grievance and the person who is making the complaint must show that he sustained injustice or undue hardship in consequence of mal-administration. On the other hand, the word “action” is defined in Section 2(a) of the Act to mean any action including administrative action taken by way of decision, recommendation or finding or in any other manner and includes wilful failure or omission to act and all other expressions relating to such action shall be construed accordingly. On comparison of the word “grievance” denoting a real or imagined personal cause of complaint, the word “allegation” is broader public grievance in matters of public interest of general importance. A complaint can be made before the Lok Ayukta on allegations that a public servant has abused his position as such public servant to obtain any gain or favour to himself or to any other person or to cause undue harm or hardship to any other person or was actuated in the discharge of his functions as such by public servant by personal interest or improper or corrupt motives or is guilty of corruption, favouritism, nepotism or lack of integrity in his capacity as such public servant falling within the definition of “allegation” contained in Section 2(b) of the Lok Ayukta Act. The complaint against the 5th respondent was in regard to thecategories of abuse of power covered by the definition of “allegation” in section 2(b) of the Lok Ayukta Act. Therefore, if the complaint was made on the basis of personal grievance, whether the offending grievance would survive after the appointee vacated the office is a contentious issue. However, if the complaint is made on the basis of ‘allegation’ based on abuse of position as a Minister in making nepotistic appointment by showing favouritism is substantiated, such illegal or illegitimate or ultra vires action cannot be neutralised by resignation of the 5th respondent and the Lok Ayukta is duty bound to make declaration that the Minister should not continue to hold the post held by him. Therefore, the proceedings before the LokAyukta cannot be treated to have become infructuous,the moment the 5th respondent fraudulently obtained the appointment through the spoils system resigned from the post. In that event, the resignation by the beneficiary does not absolve the Minister from guilt of improper and corrupt motives and lack of integrity shown in his capacity as such Public Servant.Thereby, the Lok Ayukta cannot give the Minister dispensation from communicating the findings and recommendations to the competent authority as enjoined by Section 12(3) of the Lok Ayukta Act.  

In the article it has been stated that the declaration made by the Lok Ayukta purportedly under Section 14 of the Act is confined only to the Minister concerned and it militates against the wording in the Preamble of the Act that is mainly concerned with the action taken by or on behalf of the Government of Kerala. However, the preamble also covers making enquiry into any action including any omission and commission in connection with or arising out of such action taken by certain public servant in the State of Kerala in certain cases and for matters connected there with or ancillary thereto. Therefore, the assumption that the Preamble of the Act is mainly concerned with the action taken by or on behalf of the Government of Kerala is totally unfounded. This stance on the issue is against the express language of the Preamble.

The article also takes offence at the report of the Lok Ayukta saying it confined only to the Minister concerned and not a word is stated against the Chief Minister. The action of the Minister in giving appointment to his cousin in the Kerala State Minorities Development Finance Corporation is the subject-matter of the complaint before the Lok Ayukta. The above appointment order having not been issued in exercise of the executive power of the State and being not an action taken by or on behalf of the Government of Kerala, the complaint does not pertain to the Chief Minister and the Council of Minister sand they are not answerable to the ‘allegation’. The Chief Minister was not a party to the proceedings before the Lok Ayukta. No warrantable circumstance to state a word about the Chief Minister in the Report is shown in the article. The Chief Minister thus did not fall within the jural sphere attending the admitted state of facts of the complaint filed before the Lok Ayukta.

Yet here again it is shown that the interplay of Sections 12 & 14 does not appear to have received the attention it deserved from the Hon’ble Division Bench which has not been substantiated by any acceptable argument with logical reasoning.

 Let me conclude with a sober quote:

Criticism is a study by which men grow important and formidable at very small expense.                                                                                                     -- Samuel Johnson        

FootNotes

1.       J.Papa Rao v. Government of Andhra Pradesh & Ors. (2004 (1) KLT OnLine 1315 (A.P.) = 2004 (2) ALD 855.

2.       M.Karunanidhi v. Union of India - 1979 KLT OnLine 1020 (SC) = AIR 1979 SC 898.

3.       Northern India Ferries Act, 1878.

4.       Dewan Joynal Abedin v. Abdul Wazed Alias Abdul Wazad Miah& Ors. (1987 (2) KLT OnLine 1138 (SC) = 1988 (Supp.) SCC 580), Dt. 15.12.87.

5.     Umapati Choudhary v. State of Bihar & Anr. (1999 (2) KLT OnLine 928 (SC) = (1999) 4 SCC 659)

124th Constitutional Amendment & 10% Reservation for ‘EWS’

(By M.K.S.Menon, Advocate, Supreme Court)

Reservations in admission to educational institutions and employment is no doubt an instrument to manipulate the vote bank but at the same time we cannot ignore the fact, that in India substantial chunk of the population is facing oppression on account of their cultural backwardness even today. Every election witnesses the ugly tactics adopted in their manifestos by various political parties to which I don’t believe that there can be an exception.  My endower today is to analyse the outcome of the 124^th Amendment to the Constitution of India whereby Articles 15(6) & 16(6) were added to the existing Articles 15 & 16 in Part III of the Constitution and also the subsequent bill dated 26.07.2021 implementing EWS quota.

The division of power into the 3 pillars of the Constitution i.e.,‘Legislature -Executive- Judiciary’ is the foremost ‘check and balance‘ adopted in our Constitution to achieve the goals enshrined in the preamble of our Constitution. The caste divide was the biggest challenge faced by the founding fathers of our Constitution when they decided to build the backbone of our political system in the name and style as Constitution of India. They wanted to provide for caste reservation for a maximum period of 10 years and the original Article 15 & 16 provided reservation only for the first 10 years of the formation of our republic.However it continued till date, i.e., even after 70 years. Here I wish to highlight the alarming argument raised before the Constitution Bench in the case of ‘Marathas’ culminated in the judgment headed by Justice Ashok Bhushan i.e., Jaishri Laxmanrao Patil v. The Chief Minister (2021 (3) KLT 465 (SC) that Maratha community is walking backward during the last several decades after independence and therefore they also needed reservation. However the Constitution Bench headed by Justice Ashok Bhushan struck down the Maharashtra Legislation by declaring that it is a movement aiming at CASTE RULE.

Way back in 1992, after tremendous zest and deliberation, Hon’ble Supreme Court (9 Judges Bench) rendered the landmark judgment in the case of ‘Indra Sawhney’ 1993 (1) KLT OnLine 1021 (SC)  and the same is considered to be the touch stone of equality in the field of reservations, by aligning 3 Articles namely Article 14,15 and 16. It was held that any reservation beyond 50% of the number of seats to be filled, shall be in violation of Part III of the Constitution, especially Article 14 qua meritorious candidates which shall affect the ‘Basic Structure Doctrine’ enshrined in Kesavanada Bharati’s (1973 KLT OnLine 1110 (SC) case.

After almost 30 years, recently in 2019,Central Government came out with the 124^th Constitutional amendment where by Article 15 & 16 were amended and a Sub-Article (6) was incorporated in both, with an avowed desire to address the demand of economically weaker but socially forward section of the populace. The Constitution of India does not in so many words prescribe 50% limit for reservation but the Hon’ble Supreme Court by it’s ingenious interpretation of the Constitution and by applying the principles of ‘Basic Structure Doctrine,’ held that any reservation exceeding 50% of the available vacancy, violates Article 14 qua the meritorious candidates.

Now in 2021, the latest notification came on 26.07.2021 provided reservation of 27% for OBC and 10% for EWS in educational institutions. If this is implemented, no doubt Indra Sawhney’s judgment shall stand violated because the total reservation will cross the 50% limit [15%(SC)+ 7.5%(ST)+27%(OBC) + 10%(EWS  = 59.5%]. The argument on behalf of the Central Govt. probably would be that these seats were created in addition to the existing reserved seats so as to address the grievance of EWS because Article 15(6) as amended vide 124^th Constitutional amendment provides for it.  I am of the opinion that it is not that simple a proposition to get over the Constitutional challenge within the frame work of  Indra Sawhney judgment.

The 124^th Constitutional Amendment providing for reservation based on economic backwardness is now under the scrutiny of the Hon’ble Supreme Court and it has been referred to a Five Judge Bench. I am of a strong view that Constitutional Amendment can survive the Twin test of ‘Basic Structure Doctrine’  but with a caveat that actual implementation of the 124^th amendment is a herculean task, because no political party would ever dare to disturb the existing caste quotas to accommodate 10% EWS. If EWS quota has to be introduced in addition, by reserving the added 10% seats to EWS, that will definitely go against the judgment in‘Indra Sawhney’s case ’because the added seats will merge with the existing/available seats,which shall automatically increase the caste quotas and by all probabilities it will be struck down by the Hon’ble Supreme Court.

‘Born as a golden child but destined to be abandoned as a dead letter for another century’.