APPRECIATION OF EVIDENCE WITH REGARD TO THE REVENUE RECORDS

Revenue documents are the documents maintaining by the revenue authority either based on the information as to the possession of the property given either by the person in possession of the property, sub-registrar, court, or based on the enquiry by the revenue officer. The following revenue records are maintaining by the revenue authority;

1.           Records of Rights

2.          Records of Rights and Tenancy Certificate;    

Revenue documents are not substitution for the title deeds. It is only for the purpose of collection of land revenue.

Section 133 of the Karnataka Land Revenue Act read as follows.

133. Presumption regarding entries in the records.—An entry in the Record of Rights and a certified entry in the Register of Mutations or in the patta book shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor.

The entries in the revenue records, particularly, the mutation, do not in law confer title on any one. There can be no quarrel on this proposition of law. But these entries are more than sufficient to show now the revenue authorities had in exercise of their public duties, recorded the fact that was available and how the properties in question were being enjoyed and by whom. The entry in the revenue records can be considered to ascertain the mode of acquisition of ownership of the person on the land and his possession on the property.  When entry found in the revenue records, but, not in actual possession of the property, the Plaintiff can not take advantage of the same. The entries in the RTC and mutation are rebuttable presumptions. When the entry by the public officer during his discharge of official duty, the presumption is that the entries are true and correct. The Defendant shall rebut the said presumption.

It is also well settled that the entries in the record of rights only raise a presumption that the person whose name is entered in the record of rights is in possession of the suit lands but the same can be rebutted by adduction of evidence-documentary or oral on record. Held by Division Bench of Supreme Court. (2008-MPJR-2-300 Mahant Ram Khilawan Das V/s State of M P).

Where there are conflicts as to two sets of entries, it is the later entry which must prevail. Where new entry is substituted for an old one it is the new entry which will take the place of the old one and will be entitled to the presumption of correctness until and unless it is established to be wrong or substituted by another entry (AIR 1963 SC 361 Raja Durga Singh of Solon V/s Tholu).

If there is entry of the name of the others for intervene period, it can not be considered as stray entry. The factum of partition recorded in the mutation or RTC, it is a good evidence of partition. If survey maps, map index and Hadbundi papers prepared after due enquiry, can be relied. If the revenue documents produced in the name of the person with the entry of the sale deed without producing the sale deed before the court, no presumption as to execution of the sale deed. 

The certified copies of the revenue records are the secondary evidence. The revenue records maintained in the officer of the revenue department are the primary evidences. The production of certified copies of the revenue documents are permissible under law.

In a decision reported in AIR 2008 SC 901 Gurunath Manohar Pavaskar Vs Nagesh Siddappa Navalgund, the Supreme Court held that “A revenue record is not a document of title. It merely raises a presumption in regard to possession. Presumption of possession and/or continuity thereof both forward and backward can also be raised under section 110 of the Indian Evidence Act”.

In a decision reported in 1976 (3) SCC 642 in the case of Vishwa Vijay Bharati Vs Fakhrul Hassan, the Hon’ble Supreme Court held that “it is true that the entries in the revenue record ought, generally, to be accepted at their face value and courts should not embark upon an appellate inquiry into their correctness. But the presumption of correctness can apply only to genuine, not forged or fraudulent, entries. The distinction may be fine but it is real. The distinction is that one cannot challenge the correctness of what the entry in the revenue record states but the entry is open to the attack that it was made fraudulently or surreptitiously. Fraud and forgery rob a document of all its legal effect and cannot found a claim to possessory title”.

In the decision reported in 1977 (2) KantLJ 126 in the case of Srikante Gowda Vs Land Reforms Tribunal, Thirthahalli, the Hon’ble High Court of Karnataka held that “there is a statutory presumption that an entry in the Record of Rights is true until the contrary is proved or a new entry is lawfully substituted therefor. The burden of proving that the entry in the Record of Rights is not true is on the party alleging that such entry is not true”.

In the decision reported in 1978 KantLJ 119 in the case of Laxmi Shedthi Vs Udupi Taluk Land Tribunal, the Hon’ble High Court of Karnataka held that “Sec.133 of the Land Revenue Act states that an entry in the Record of Rights shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted therefor. The burden was clearly on the second respondent to show that the legal presumption arising under Sec. 133 of the Land Revenue Act should not be drawn”.

In the decision reported in ILR 1985 Kar 2121 in the case of State of Karnataka Vs Annegowda, the Hon’ble High Court of Karnataka held that “Section 133 of the Karnataka Land Revenue Act, 1964 provides that an entry in the Record of Rights and an entry in the Register of Mutations, shall be presumed to be true until the contrary is proved or a new entry is lawfully substituted thereof. When the defendants have not produced any evidence to doubt the correctness of the said entries in the Record of Rights, the Court has to raise a presumption about its correctness and the mere allegations that they arc not genuine are not sufficient to rebut that presumption”.

In the decision reported in 2007 (11) SCC 736 between Narain Prasad Aggarwal (Dead) by LRs. V/s State of M.P. the Hon’ble Supreme Court held that “Record of right is not a document of title. Entries made therein in terms of Section 35 of the Indian Evidence Act although are admissible as a relevant piece of evidence and although the same may also carry a presumption of correctness, but it is beyond any doubt or dispute that such a presumption is rebuttable”.

In a decision reported in 2007 (6) SCC 186 in the case of Suraj Bhan V/s Financial Commissioner, the Hon’ble Supreme Court held that “It is well settled that an entry in Revenue Records does not confer title on a person whose name appears in Record of Rights. It is settled law that entries in the Revenue Records or Jamabandi have only 'fiscal purpose' i.e. payment of land-revenue, and no ownership is conferred on the basis of such entries. So far as title to the property is concerned, it can only be decided by a competent Civil Court (vide Jattu Ram v. Hakam Singh and Ors.)”.

The electricity bills, phone bills, postal letters or tax paid receipts are not document of proof of the possession. These documents can be considered along with other documents showing his possession.

  

Evidentiary value of the certified copy of the revenue records - “Under section 79 of the Indian Evidence Act a court is bound to draw the presumption that a certified copy of a document is genuine and also that the officer signed it in the official character which he claimed in the said document. But such a presumption is permissible only if the, certified copy is substantially in the form and purported to be executed in the manner provided by law in that behalf. If so, it follows that the court is not bound to draw the presumption in regard to its genuineness”. (AIR 1959 SC 960 – Bhinka V/s Charan Singh)

Sources: Judicial Exam/Acadamy Notes 

 TYPES OF DECREES

          There are money decrees, decrees for Specific performance of the contract, decrees for mandatory injunction and permanent injunction decrees for restitution of conjugal rights in case of  Muslims, decrees in partition suits, decrees for possession etc.

          Decree can be executed by the Court which has passed the decree or the Court to which a decree is transferred( See Ss. 36 and 39 of CPC).

          The Court has to see whether the decree sought to be executed is in time i.e., 12 years is the time to file an execution petition from the date of decree.  If installments are granted with default clause, the time till default will have to  be excluded while computing 12 years. The Court has to register it by giving number. Execution EP 1/08. If the Execution Petition is within 2 years, steps like attachment of property and salary can be ordered straight away.  If the Execution petition is filed more than 2 years from the date of decree, a show cause notice as to why the execution of decree should not be ordered ( See Order 21 Rule 22 CPC) in respect of decree for mandatory injunction 3 years is the limitation (See Article 135 of the Limitation Act.  In respect of execution of decree for permanent injunction, there is no limitation (See Art. 136 of Limitation Act)
Sources: Judicial Exam Notes

GAY SEX Vs MORAL VALUES - COURT INTERPRETATION

The Division Bench of the High Court extensively considered the contentions of the parties and declared that Section 377, insofar as it criminalises consensual sexual acts of adults in private is violative of Articles 21, 14 and 15 of the Constitution.  While dealing with the question relating to violation of Article 21, the High Court outlined the enlarged scope of the right to life and liberty which also includes right to protection of one’s dignity, autonomy and privacy, the Division Bench referred to Indian and foreign judgements, the literature and international understanding (Yogyakarta Principles) relating to sexuality as a form of identity and the global trends in the protection of privacy and dignity rights of homosexuals and held:

“The sphere of privacy allows persons to develop human relations without interference from the outside community or from the State. The exercise of autonomy enables an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice and fulfil all legitimate goals that he or she may set. In the Indian Constitution, the right to live with dignity and the right of privacy both are recognised as dimensions of Article 21. Section 377 IPC denies a person's dignity and criminalises his or her core identity solely on account of his or her sexuality and thus violates Article 21 of the Constitution. As it stands, Section 377 IPC denies a gay person a right to full personhood which is implicit in notion of life under Article 21 of the Constitution.

The criminalisation of homosexuality condemns in perpetuity a sizable section of society and forces them to live their lives in the shadow of harassment, exploitation, humiliation, cruel and degrading treatment at the hands of the law enforcement machinery. The Government of India estimates the MSM number at around 25 lacs.

The number of lesbians and transgender is said to be several lacs as well. This vast majority (borrowing the language of the South African Constitutional Court) is denied “moral full citizenship”. Section 377 IPC grossly violates their right to privacy and liberty embodied in Article 21 insofar as it criminalises consensual sexual acts between adults in private. These fundamental rights had their roots deep in the struggle for independence and, as pointed out by Granville Austin in “The Indian Constitution – Cornerstone of A Nation”, “they were included in the Constitution in the hope and expectation that one day the tree of true liberty would bloom in India”. In the words of Justice V.R. Krishna Iyer these rights are cardinal to a decent human order and protected by constitutional armour. The spirit of Man is at the root of Article 21, absent liberty, other freedoms are frozen.

A number of documents, affidavits and authoritative reports of independent agencies and even judgments of various courts have been brought on record to demonstrate the widespread abuse of Section 377 IPC for brutalizing MSM and gay community persons, some of them of very recent vintage. If the penal clause is not being enforced against homosexuals engaged in consensual acts within privacy, it only implies that this provision is not deemed essential for the protection of morals or public health vis-a-vis said section of society. The provision, from this perspective, should fail the “reasonableness” test.”

Sources: The Supreme Court Judgement in CIVIL APPEAL NO. 10972  OF 2013 and Photo sources is twitter.com

Basic Guidelines to prohibit Sexual Harassment against women in Working Place(Defined in Vishaka & Ors vs State Of Rajasthan & Ors on 13 August, 1997)

Each such incident results in violation of the fundamental rights of 'Gender Equality' and the 'Right of Life and Liberty'. It is clear violation of the rights under Articles 14, 15 and 21 of Constitution. One of the logical consequences of such an incident is also the violation of the victim's fundamental right under Article 19(1)(g) 'to practice any profession or to carry out any occupation, trade or business'. Such violations, therefore, attract the remedy under Article 32 for the enforcement of these fundamental rights of women. This class action under Article 32 of the Constitution is for this reason. A writ of mandamus in such a siltation, if it is to be effective, needs to be accompanied by directions for prevention; as the violation of fundamental rights of this kind is a recurring phenomenon. The fundamental right to carry on any occupation, trade or profession depends on the availability of a "safe" working environment. Right to life means life with dignity. The primary responsibility for ensuring such safety and dignity through suitable legislation, and the creation of a mechanism for its enforcement, is of the legislature and the executive. When, however, instances of sexual harassment resulting in violation of fundamental rights of women workers under Articles 14, 19 and 21 are brought before us for redress under Article 32, an effective redressal requires that some guidelines should be laid down for the protection of these rights to fill the legislative vacuum.

WHAT IS THE RIGHT OF A MARRIED DAUGHTER? – HIGH COURT’S WIDE INTERPRETATION IN PUSHPALATHA CASE OF REGULAR FIRST APPEAL NO. 326 OF 2004.

The bill prepared by the Law Commission contained a provision making the amended provision under Hindu Succession Amendment Act not applicable to married daughters. That is precisely what is contained in the amendments carried out to the Act by the legislatures of Karnataka, Andhra Pradesh, Maharashtra and Tamil Nadu. However, in the bill passed by the Parliament we do not find the said provision. Rightly the said provision did not find favour with the representatives of the people and is deleted from the original bill even before it is presented to the Parliament. Therefore, the intention of the Parliament is clearly manifest from this Act. Secondly, the marriage, has no relevance to the succession or inheritance of the property. When a male Hindu marries, his right to succeed to a property or inherit a property is in no way affected by the act of marriage. However, in the case of a daughter in a Hindu Family, a distinction was sought to be made. After her marriage as she ceased to be a member of the Hindu Undivided Family and becomes a member of the Hindu Undivided Family of her husband, she was denied the right in the undivided family of her father. If she did not marry, her right was intact. The marriage had the effect of denuding her right to property in the family by birth. It stands to no reason. Therefore, the Parliament consciously has not used the word 'married daughter' in the entire Section as the case in the earlier State Amendment where they added an explanation, to exclude the married daughter. It is yet another indication and manifestation of legislative intent that they did not make any distinction between a married daughter and an unmarried daughter in respect to their rights to the properties of her father who is a coparcener in a Hindu Undivided Family governed by Mitakshara Law. It is settled law that the intention of the Legislature is primarily to be gathered from the language used, which means that attention should be paid to what has been said as also what has not been said. It is contrary to all rules of construction to read words into an Act unless it is absolutely necessary to do so. Similarly, it is wrong and dangerous to proceed by substituting some other words for words of the statute. Therefore, we cannot import by an interpretive process the word 'married daughters' in any form and in any context to defeat her rights conferred under amended Section 6, when the legislative intention is expressed clearly and unambiguously without leaving any scope for interpretation. Thirdly, the language employed and the declaration made in Section 6 makes the legislative intent explicit and clear, i.e., the daughter of a coparcener shall by birth become a coparcenar in her own right in the same manner as the son and have the same rights in the coparcenary property as she would have it if she had been a son. It means whatever right the son possesses in a coparcenary property is sought to be conferred on the daughter. The son would not lose his right in a coparcenary property because of his marriage. It is that right which is conferred on the daughter and, therefore, when by birth son acquires an interest in coparcenary property and retains the same, notwithstanding his marriage, when the daughter is also conferred the same right, it means she acquires a right by birth in the coparcenary property and she continues to hold the said right notwithstanding her marriage. The daughter's marriage will not put an end to the right of the daughter to a coparcenary property which she acquired by birth. If this is not the interpretation to be given to those words, then the Section would be violative of Section 14 of the Constitution which declares that there cannot be any discrimination between person and person on the basis of s*x. There cannot be a distinction between a son and a daughter under the constitutional scheme. Further, any other interpretation would mean there will be a further discrimination between a married daughter and an unmarried daughter, which is again opposed to the equality clause found in Article 14 of the Constitution. Then the whole object of bringing about this amendment, by substituting the provision in the existing Act and declaring that the daughter would get a right by birth in the same manner as son, would be defeated, if any interpretation is to be placed making a distinction between a married daughter and an unmarried daughter or a married son and a married daughter.

That is not the legislative intent and purpose. On the contrary, when such an attempt was made by the State Legislatures and the interpretation placed on the aforesaid provision resulted in heart burning and also contrary to the constitutional mandate contained in Article 14 of the Constitution, the Parliament taking note of these deficiencies and restrictions on the right of a married daughter advisedly has framed this provision putting an end to any such controversies and conferring the benefit of the amendment on the married daughters also.

Therefore, when the Parliamentary legislation which was subsequent in the Karnataka Amendment conferred the status of a coparcenar on the daughter of a coparcenar and gave right by birth in the coparcenary property and did not exclude the married daughters from such status and right expressly or by necessary implication, the Central Act to that extent is repugnant to the State law. Similarly, the word partition used in the State Law is too wide and the Central law defines the word partition and giving it a narrow meaning for the purpose of Section 6. Again the said definition runs repugnant to the State law. As the amended law is passed by the Parliament it prevails over the State law and the law passed by the State stands impliedly repealed to the extent of repugnancy. As such, the married daughter cannot be deprived of her right to a share in the coparcenary property by birth. With the passing of the Amendment Act Section 6A(d) stands repealed. Married daughter is entitled to equal share with the son in the coparcenary properties.

Therefore, a married daughter is also a coparcener and is entitled to equal share with the son in the coparcenary properties and her marriage in no way affects her right to equal share in the coparcenary property. Even after marriage she continues to have the same right which she had before marriage, as her right to coparcenary property flows from her birth as that of the son. To find out what is the right of a daughter in a coparcenary property, find out what is the right of the son. Whatever rights the son has in the coparcenary property, by virtue of the amendment the daughter also has such right. That is the object behind the legislation i.e., to achieve equality in the right of inheritance.

Therefore, it is clear that if on the date, i.e., 20th December, 2004, there is no partition effected by decree of the court thereby meaning a final decree for partition has not reached finality, then, the daughter of a coparcener is entitled to equal share in the coparcenary property as that of a son and Section 6 is applicable to such property. The legislative intention is clear. They wanted to give the benefit of this section to a daughter. Such a right, they did not wanted it to be defeated by mere plea of partition as well understood under Hindu law or merely because a suit for partition is filed or a decree for partition has already been passed by a trial Court. On those grounds they did not want to deny the daughter her legitimate share in the coparcenary property which ought to have been granted to her on the day the Act came into force namely 17th June 1956.

However, the recent Supreme Court Judgement unequivocally clinched that no right conferred to women over the ancestral property if the father died before 2005. But it shall not deprive her right to claim over the father self-acquired property if he died intestate. 

RASH AND NEGLIGENCE DRIVING’S LEGAL CONSEQUENCES IN INDIA

Don’t ignore others life because of that life may bread and butters of Particular Family“Bearing in mind the galloping trend in road accidents in India and the devastating consequences visiting the victims and their families, criminal courts cannot treat the nature of the offence under Section 304A IPC as attracting the benevolent provisions of Section 4 of the PO Act. While considering the quantum of sentence, to be imposed for the offence of causing death by rash or negligent driving of automobiles, one of the prime considerations should be deterrence.” (Dalbir Singh v. State of Haryana [(2000) 5 SCC 82).

In State of Karnataka v. Krishna alias Raju [(1987) 1 SCC 538], while dealing with the concept of adequate punishment in relation to an offence under Section 304-A of the IPC, the Court stated that considerations of undue sympathy in such cases will not only lead to miscarriage of justice but will also undermine the confidence of the public in the efficacy of the criminal justice dispensation system. It need be hardly pointed out that the imposition of a sentence of fine of Rs. 250 on the driver of a Motor Vehicle for an offence under Section 304-A of the IPC and that too without any extenuating or mitigating circumstance is bound to shock the conscience of any one and will unmistakably leave the impression that the trial was a mockery of justice. Thereafter, this Court enhanced the sentence to six months rigorous imprisonment with fine of Rs. 1000 and, in default, to undergo rigorous imprisonment for two months.

“Law demands that the offender should be adequately punished for the crime, so that it can deter the offender and other persons from committing similar offences. Nature and circumstances of the offence; the need for the sentence imposed to reflect the seriousness of the offence; to afford adequate deterrence to the conduct and to protect the public from such crimes are certain factors to be considered while imposing the sentence.” (State TR. P.S. Lodhi Colony, New Delhi v. Sanjeev Nanda [2012 (7) SCALE 120)

INTERPRETATION OF MESNE PROFIT

As per the Code of Civil Procedure Section 2 (12) read as follows"mesne profits" of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received there from, together with interest on such profits, but shall not include profits due to improvements made by the person in wrongful possession;

A Division Bench of Hon’ble High Court of Karnataka in Thammegowda V/s Siddegowda (ILR 1991 KAR 4506) held that “In a suit for partition and separate possession, the question of mesne profits does not arise. The coparcener who will be in possession of the joint family property will be liable to account for the profits derived from the joint family property in excess of his share. The possession of a coparcener of the joint family property is not unlawful because his right extends over the entire joint family property until it is divided by metes and bounds. The possession of a coparcener of the joint family property until it is divided by metes and bounds does not become unlawful so as to make him liable for mesne profits. Therefore, the question of mesne profits does not arise. Of course, he has to account for the income of the share of the plaintiff from the date of the suit till the date of delivery of possession. Therefore, the trial court is not justified in directing that the plaintiff is entitled to future mesne profits from the date of suit. It ought to have directed that the plaintiff is entitled to accounts of the profits of his share from the date of the suit tilt the date of delivery of possession.”.

Mesne profit shall be awarded from the date of institution of the suit till delivery of possession as held by Hon’ble Supreme Court in AIR 1977 SC 223 between Dalhousie Properties Limited V/s Surajmull Nagarmull. The rate of interest shall be reasonable. To that purpose, Section 34 of the Code of Civil Procedure is applicable. The interest shall be awarded on lump sum amount on mesne profit amount. The interest shall not be exceed @ 6% per annum (AIR 1965 SC 1231 (Mahanth V/s TT Devastanam).