Critical analysis of law of adultery as it stands in India

Law of adultery as it stands in India punishes only man, and assumes that in all cases ‘man is the seducer’ and the women, who is an equal participant is viewed as a victim. There have been numerous debates about the discriminatory stance of the provision, The insistence of the National commission for women and the report of the Madhav Menon committee & the 42nd Report of the Law Commission of India, have breathed a new lease of life in the dying controversy. The law relating to adultery as existing in the Indian penal code under section 497 has been criticized ever since it’s commencement. Its validity both on the constitutional grounds as well as philosophical grounds has been challenged time and again. But the law still stands as it is. 

Law of adultery as it stands in India.

In India the law of adultery is punishable under section 497 of the IPC, but originally the framers of the code did not make adultery an offence punishable under the Code, it was the Second law commission which after giving mature consideration to the subject, came to the conclusion that it was not advisable to exclude this offence from the Code. Adultery figures in the penal law of many nations and some of the most celebrated English Lawyers have considered its omission from the English Law as a defect. 

Section 497 [2]provides:“Whoever has sexual intercourse with a person who is and whom he known or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years or with fine, or with both. In such a case the wife shall not be punishable as an abettor.

The law commissioners have limited the cognizance of this offence to adultery committed with a married woman, and the male offender alone has been made liable to punishment. 

The Problem

Prima facie unequal treatment is meted out by the law to men & women, there’s an inherent flaw, It makes the offence punishable for men but not the wife, to punish the man severely and to let the women who was an equal part to go scot free is unreasonable on the face of it, it is discriminatory that for the same act the man becomes the manifestation of evil but the woman still is considered to retain her virtues and is treated as a victim. 

It is unexplainable that for the same wrongful act the man is presumed by the law to have a mens rea while no such presumption is attributed in reference to the woman. 

The consent or the willingness of the woman is no impediment to the application of this section, and, as generally happens, she is quite aware of the purpose for which she is quitting her husband and is an assenting party to it. 

Considering the present day situation and the vast transformation which the society has undergone, Blindly assuming that ‘man is the seducer and not the women’ would be a dangerous proposition, the boot is on the other leg these days, in a variety of cases. The law makes an irrational classification between man and woman, in restricting the class of offenders to men, where women or wife is an equal partner, it violates constitutional provisions enshrined in Articles 14,15 & 21. 

The Justification taken by the Framers of the Code, and the retentionists lobby for this aberration is that owing to the atypical social conditions, it would not be just & proper to punish women equally, as they were a subjugated and exploited lot, and I am constrained to say that it was to a certain extent applicable in that era, now bygone.

The IPC, when in took form in 1860, was silent on the punishment for adultery with Lord Macaulay observing, "There are some peculiarities in the state of society in this country which may well lead a humane man to pause before he determines to punish the infidelity of wives."

The Rationale & the circumstances he referred to included child marriage and polygamy. Macaulay, hence, advised that it would be enough to treat it as a civil injury.

The framers of the code believed that if the women did the deplorable act it was pressured by their social and private conditions in life. Hence they were actually not at fault and taking into account their already depleted station in life they should not have been held liable at least in the eyes of the law.

Supreme Court On Law Of Adultery:

In 1951, one Yusuf Abdul Aziz challenged the constitutional validity of the provision. However, Bombay high court chief justice M C Chagla had upheld the provision saying the Constitution permitted such special legislation for women, it was held in this case that this section does not contravene any of the fundamental rights laid down in the Constitution of India, and therefore it is not bad or void under Articles 13. [3] 

The Supreme Court observed that adultery is a wrong against the sanctity of the matrimonial home. Thus charges are pressed against the outsider who breaks the said sanctity. The woman, in cases of adultery, is considered the victim of a seducer. It appears that the court believes that the man has an unstoppable seductive charm and the woman is helpless against it. The evil that is punished by the law, in the mind of the court, is that of seduction of a woman by another man. According to the court the woman is considered to be the victim. Thus the court held that the law was non discriminatory and not violating the right to equality , thus the court upheld the constitutional validity of the section 497. The court also opined that by not allowing the spouses to prosecute each other the law offers a chance to the spouse to make-up, it was further held that “Section 497 is not violative of Articles 14, 15 & 21 of the Constitution. [4]

It is humbly submitted that the court erred in its judgment. 

We must keep in mind that these reasons and defenses were given decades ago. The most important reason for debate to get re-ignited is the drastic change in the social status of women. Gone are the days when Women were a suppressed or subjugated lot, The practices of sati, child marriage, polygamy, etc, have been done away with. 

Today there are laws against these evils and also laws providing effective relief against heinous acts such as domestic violence, dowry and others. Almost all professional colleges has a quota for women. Thus women today are in no way inferior to men or suppressed, and are at par with the opposite sex. The effective implementation of these laws and other women friendly provisions in the constitution insures that women, today, have an edge in the society. All this has resulted in them gaining the power of choice. They can no longer be classified as victims in cases of adultery.

What Needs To Be Done ?

It is pertinent to note here that The 42nd Law Commission Report [5] has suggested to substitute section 497 of the IPC, the substituting provision is “S. 497. Adultery – Whoever has sexual intercourse with a person who is, and whom he or she knows, or has reason to believe, to be the wife or husband, as the case may be, of another person, without the consent or connivance of that other person, such sexual intercourse by the man not amounting to the offence of rape commits adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both” 

The Malimath Committee on Criminal Justice Reforms has re-iterated more or less the same argument, that men and women being equally partners in the deplorable act, should be made to stand at the same footing, and equal treatment should be meted out to them both. 

Conclusion

In light of the above critical analysis, it is very much apparent & beyond doubt, that the prevailing law is not in consonance with the changed times, the law is neither socially apt nor does it stand to the principles of equality, from absolute conservatism to absolute liberty, the social fabric of our country has undergone a drastic change. It is high time that Recommendations made by the Justice Malimath Committee and the 42nd Report of the Law Commission be taken into consideration religiously, and necessary amendments be made to Sec. 497 IPC, so as to do away with the irregularities, and in the interest of doctrine of equality. 

SOURCE: lawyersclubindia

Is sale of Immovable Property through General Power of Attorney (GPA) Safe?

Is sale of Immovable Property through General Power of Attorney (GPA) Safe . A Special Power of Attorney either to sell or to manage the property. SC says that that such kind of Indirect Sales adversely affected the economy, civil society and law and order Law Articles on various laws , amendments and Judgments from Supreme Court and High Courts in India

This question has haunted the legal experts since long time. However, the controversy has been set at rest recently by the Honble Supreme Court vide its judgment rendered in case titled as Suraj Lamp and Pvt. Ltd. v/s State of Haryana and another.
Honble Apex Court dealt with is whether immovable property can be legally transferred or conveyed through a General Power of Attorney, Agreement to Sell and a Will? Before we embark upon this question, it is very essential to know as to why such kind of indirect sales came into existence. The most dominant reasons for such kind of Indirect Sales were to avoid prohibitions/ conditions regarding certain transfers (as some deeds of conveyance contain the clauses that the property can only be sold after 15 years from the date of construction of some building on the plot/property), to avoid payment of stamp duty and registration charges on deeds of conveyance, to avoid payment of capital gains on transfers, to invest black money etc. The seller of the immovable property in these indirect sales after receiving the agreed consideration, deliver the possession of the said property and executes some or all of the following documents:

(1) An agreement of sale (containing the terms which would be similar to terms of sale) by the seller in favor of the purchaser and undertaking to execute any document as and when required in future.
(2) An agreement of sale agreeing to sell the property with the separate affidavit confirming receipt of full price and delivery of possession and undertaking to execute sale deed whenever required.
(3) An Irrevocable General Power of Attorney in favor of the purchaser or his nominee.
(4) A Special Power of Attorney either to sell or to manage the property.
(5) A Will bequeathing the property to the purchaser (as a safeguard against the consequences of death of the vendor before transfer is effected).
The Honble Apex Court noted that such kind of Indirect Sales adversely affected the economy, civil society and law and order. Firstly, it enables large scale evasion of income tax, wealth tax, stamp duty and registration fees thereby denying the benefit of such revenue to the Government and Public. Secondly, such transactions enable persons with undisclosed wealth/income to invest their black money and also earn profit/income, thereby encouraging circulation of black money and corruption.

RELEVANT LEGAL PROVISIONS

Following are some relevant legal provisions which deals with the matter in hand either expressly or impliedly:

Section 5 of the Transfer of Property Act (hereinafter called as TPA) defines transfer of property as: In the following sections transfer of property means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself [or to himself] and one or more other living persons and to transfer property is to perform such act.
Section 54 of the TPA defines sales thus: Sales is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made: Such transfer, in the case of tangible immoveable property of the value of one hundred rupees or upwards or in the case of reversion or other intangible thing can be made only by a registered instrument.
Contract for Sale: A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not of itself, create any interest in or charge on such property.

IMPORTANCE OF REGISTRATION

It is very important to mention herein that the registration has many advantages. Registration provides safety and security to transactions relating to immovable property, even if the document is lost or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to transactions and execution of documents. Registration provides information to people who may deal with a property as to the nature and extent of the rights which persons may have, affecting that property. As the records of the registered document is always available, people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what obligations with regard to them. Registration of documents makes the process of verification and certification of title easier and simpler. It reduces disputes and litigations to a large extent.
Now lets see as to the actual importance in legal conspectus i.e. legal sanctity, of the above-mentioned documents comprised in the Indirect Sale of the immovable property, one by one.
First, we will discuss about the validity of Agreement of Sale or Agreement to Sell:

As per Section 54 of Transfer of Property Act, a contract of sale, that is, an agreement of sale does not, of itself, create any interest in or charge on such property. The Honble Apex Court in many earlier judgments after recognizing various provisions of law has held that a contract of sale at the most creates a fiduciary character of the personal obligation and is annexed to ownership but does not in any way amounts to an interest or easement therein. Therefore, transfer of immovable property by way of sale can only be by a deed of conveyance (sale deed). In the absence of deed of conveyance (duly stamped and registered as required by law), no right, title or interest in an immovable property can be transferred. Any contract of sale (agreement to sell) which is not a registered deed of conveyance (deed of sale) would fall short of the requirements of sections 54 and 55 of TPA and will not confer any title nor transfer any interest in an immovable property. According to TPA, an agreement of sale, whether with possession or without possession, is not a conveyance. Section 54 of TP Act enacts that sale of immovable property can be made only by a registered instrument and an agreement of sale does not create any interest or charge on its subject matter.

Second, we will discuss about validity and scope of Power of Attorney:

A power of attorney is not an instrument of transfer in regard to any right, title or interest in an immovable property. The power of attorney is creation of an agency whereby the grantor authorizes the grantee to do certain acts specified therein, on behalf of grantor, which when executed will be binding on the grantor as if done by him. It is revocable or terminable at any time unless made irrevocable in a manner known to law. Even an irrevocable attorney does not have the effect of transferring title to the grantee. So, power of attorney does not convey ownership. An attorney holder may however execute a deed of conveyance in exercise of the power granted under the power of attorney and convey title on behalf of the grantor.

Third, we will discuss about the scope of Will: A Will is the testament of the testator. It is a posthumous disposition of the estate of the testator directing distribution of his estate upon his death. It is not a transfer inter-vivos. A Will is intended to come into effect only after the death of the testator and is revocable at any time during the life time of the testator. So, even a Will cannot transfer title or ownership in an immovable property.

CONCLUSION

A discussion above thus holds that immovable property can be legally and lawfully transferred/conveyed only by a registered deed of conveyance. Transactions of the nature of GPA sales or Agreement to Sell/GPA/Will transfers do not convey title and do not amount to transfer nor can they be recognized or valid mode of transfer of immovable property.

Last but not least it is further pertinent to mention herein that in the said judgment the Honble Benchhas merely drawn attention to the legal position that SA/GPA/WILL transactions are not transfers or sales and that such transactions cannot be treated as completed transfers or conveyances. But they can still be treated as existing agreement of sale. Nothing prevents affected parties from getting registered deeds of conveyance to complete their title.

SOURCE: http://www.vakilno1.com

Cyber Crimes in India – an Introduction

Introduction to Cyber Crimes in India

Crime, in whatever forms it is, directly or indirectly, always affects the society. In today’s world, there is immense increase in the use of Internet in every field of the society and due to this increase in usage of Internet, a number of new crimes have evolved. Such crimes where use of computers coupled with the use of Internet is involved are broadly termed as Cyber Crimes.

But under Indian law “Cybercrime” as such has not been defined under any legislation. One legislation that deals with the offences related to such crimes in India is Information Technology Act, 2000, which was also further amended in the form of IT Amendment Act, 2008. But these two important legislations also do not include any definition for “cybercrime”. If looked into practicality, it is not at all easy to define this term. In order to define such an offense, when the nature of such offense is seen, it is a combination of crime and computer. So, it can be said that, when in commission of any offense computer is used, that can be termed as “cyber crime”. Now, the question arises as to what the term “cyber law” will be compromised of. By looking at the working definition of cybercrime, one can reach a conclusion that cyber law is a term which is related to all the legal issues involving computer and Internet. It is even more difficult to come up with a definition for the term cyber law as it is an intersection of various fields. It involves privacy issues, jurisdiction issues, intellectual property rights issues and a number of other legal questions. In India, what can basically be termed as cyber law are the IT act 2000 and its amended version in the form of the IT (Amendment) act, 2008.

The Information Technology Act, 2000 basically deals with the legal recognition of electronic documents and that of digital signatures. This Act incorporates a separate Chapter XI entitled “Offences” to deal with various cyber crimes and contraventions. This act also deals with Justice dispensation systems for various cyber crimes. The act was widely criticised on various fronts and due this criticism detailed amendments were brought in the form of IT Amendment Act, 2008. Major of such amendments were the focus on data privacy and information security. Even though legal recognition of digital signatures was already included under the original Act of 2000, but the Amendment Act, 2008 made the digital signature technology-neutral. Along with, the defining of reasonable security practices to be followed by the Corporate, the role of intermediaries was also redefined. Very importantly, the term “cyber cafe” was defined under this Act. Offences like child pornography and cyber terrorism were also included is the forms of cyber crimes. Cyber terrorism has been made a heinous cyber crime under this Act and has been defined in the widest possible terms and made punishable with imprisonment which may extend to imprisonment for life and fine.

An important change that has been brought forth by the Amendment Act is that the new amendment has replaced Section 43 with Section 66. Under Section 66 the Word “hacking” has been removed, but that does not mean that “hacking” as an offence has been removed; instead hacking still remains an offence by the name of “data theft” in this section. This section has further been widened in the form of Sections 66A to 66F. 66A deals with the sending of offensive messages through communication service, and causing annoyance to any electronic communication, and also includes the offence of misleading the recipient of the origin of such messages. Such offences can be punished with imprisonment for 3 years or fine. 66B deals with dishonestly receiving stolen computers or other communication device and such a crime can be punished with three years of imprisonment or fine of Rs.1 Lakh or both. 66C deals with stealing electronic signature or identity such as using another persons’ password or electronic signature, such an offence can be punished with three years of imprisonment or fine of Rs. 1 lakh or both. Similar is the punishment under section 66D for cheating by personation through computer resource or a communication device. 66E covers the offences relating to privacy violation such as publicly publishing the information about any person’s location without prior permission or consent. 66F is great importance as it deals with cyber terrorism. This Section covers a wide range of offences which can be termed as terrorism; Such as, any act denying access to any authorised person to access the computer in order to hamper the unity, integrity, security or sovereignty of the nation. Further, this section also includes the acts of access to a commuter resource without authorisation. It also covers such acts which can lead to any injury to any person or result in damage or destruction of any property, while trying to contaminate the computer through any virus like Trojan etc. All the offences that are covered under this Section can be punished with life imprisonment. Very importantly, the offences which are covered under section 66 are cognizable and non-bailable. The major transformation from section 43 of the original act to Section 66 of the Amendment Act is that, that all the offences that were covered under Section 43 gave rise to civil liability which had its remedy in either compensation or damages. But under Section 66 of the Amendment Act if such act is done with criminal intention that is mens rea, then it will attract criminal liability having remedy in imprisonment or fine or both. Moreover, under Sections 71, 72, 73 of the Information Technology Act 2000 some acts or omissions have been made criminally liable with strict liability e.g. Penalty for breach of confidentiality and privacy, penalty for misrepresentation etc. Section 67 of the original Act dealt with publishing or transmitting obscene material in electronic form but the scope of this section was widened by the amendment which included child pornography under section 67-B and also the act of retention of records by the intermediaries. And such offences under section 67-A will be punished with conviction of a term up to 3 years and fine of Rs.5 lakhs and in case it is the second conviction then conviction will be for five years and fine of Rs.10 Lack or both. But for offence under section 67-B the provision is for stricter conviction which is for 5 years and fine of Rs. 10 Lakhs or both in case of first conviction, and the same will be increased to 7 years and fine of Rs. 10 lakhs in case of second conviction.

To conclude it can be said that, it has been provided in the preamble of the Information Technology Act 2000 that this act was passed in order to give legal recognition for transactions done through electronic means, and to improve further, this act has also made amendments to the Indian Penal Code 1860, Indian Evidence Act 1872, The Bankers Books of Evidence Act 1891, and the Reserve Bank of India Act 1934 in order to further the same objective. This act has defined various offences and also has laid down certain penalties as well. This act in a way has characterized the cyber crimes, which were earlier unknown to general public in India. This Act has made Cyber offences to be investigated only by a Police Officer not below the rank of the Inspector((now), Deputy Superintendent of Police((earlier).  Even though this piece of legislation has proved to be a big leap in the field of cyber crimes, there still is a need for further changes which can improve its efficacy such as there is lack of effective mechanism for the appropriate retention of electronic evidence. So, an effective methodology in that regard can be chalked out.

SOURCE: VAKIL NO.1.COM

Judgement of Supreme Court on declaration of title and possession

A finding on the question of title recorded in a suit for eviction would how far be binding in a subsequent suit for declaration of title and recovery of possession between the same parties?…SC Jt dt 22.09.2010

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.2579 OF 2004
Md. Nooman & Ors.                                               ….Appellants
Versus
Md. Jabed Alam & Ors.                                          ….Respondents
JUDGMENT
AFTAB ALAM, J.
1.    A finding on the question of title recorded in a suit for eviction would how far be binding in a subsequent suit for declaration of title and recovery of possession between the same parties? This is the question that arises for consideration in this appeal. The answer to the question would depend on, in what manner the question of title was raised by the parties and how it was dealt with by the court in the eviction proceedings. Ordinarily, it is true, in a suit for eviction even if the court goes into the question of title, it examines the issue in an ancillary manner and in such cases (which constitute a very large majority) any observation or finding on the question of title would certainly not be binding in any subsequent suit on the dispute of title. But there may be exceptions to the general rule and as we shall find presently, the case in hand seems to fall in that exceptional category of very limited number of cases.

2.    Amina Khatoon, the mother of respondent nos.1-4, (who were substituted in her place and brought on record after her death) instituted a suit for eviction (Title Suit No.36 of 1973) in the Court of Second Munsif, Arrah, against Md. Lukman, the father of appellant nos.1-6 (who were similarly substituted in his place and brought on record after his death). According to the plaintiff Amina Khatoon, the suit property originally belonged to her mother-in-law, Sulakshana. Sulakshana had two other sons, Md. Lukman (the original defendant) and Md. Jan, apart from Amina’s husband, Mahmood Hassan. Amina further claimed that Sulakshana sold the suit house to her through a registered sale deed dated August 13, 1957. Following the purchase of the suit house, she moved the Block Development Officer (BDO) and the municipality for mutation of her name in respect of the suit house in the revenue and municipal records. The defendant Md. Lukman, filed an objection before the BDO, but his objection was disallowed and her name was entered in the revenue and municipal records.

3 Later on, the municipality filed a suit against her for arrears of tax whereupon all the outstanding dues of tax were paid by her. It was further the case of Amina, that she had let out the suit house to the defendant about 4 or 5 years prior to the filing of the suit on a monthly rent of Rs.10.00 (rupees ten only). The defendant did not pay the rent from September, 1971 to February 13, 1973. She then sent a registered notice to him under section 106 of the Transfer of Property Act, 1882 through her lawyer determining the defendant’s tenancy and asking him to vacate the house by March 31, 1973. The defendant did not vacate the house forcing her to go to the court. The defendant in his written statement, apart from the formal objections to the maintainability of the suit, denied that Sulakshana executed any sale deed with respect to the suit house in favour of the plaintiff. He described the sale deed, relied upon by the plaintiff as the basis of her title, as a forged and fabricated document. In this connection, the defendant stated that Sulakshana had an attack of paralysis before August 13, 1957 when the sale was said to have been executed by her. She had lost her senses and she was not in a position to execute any sale deed. No consideration was paid by the plaintiff to Sulakshana and the title to the house never passed to her. The defendant set up a rival claim of title over the suit house. He stated that Sulakshana had transferred the suit house in his favour in 1950, by Hiba (oral gift) and since then he was coming in possession of the suit property. Originally, it was parti (vacant) land. He submitted a plan in the municipality for construction of the house on it and constructed the house after the plan was sanctioned. He was living in the house constructed by him over the land which was given to him by his mother by Hiba. He denied any relationship of landlord and tenant with the plaintiff and also denied to have taken the suit house from the plaintiff on a monthly rent of Rs.10.00 (rupees ten only). He never paid any rent to the plaintiff, nor was any rent due against him.

4.    On the basis of the pleadings of the parties, the trial court framed seven issues, of which issue nos.3 & 4 relating to the plaintiff’s claim of title over the suit property and issue no.5 about the relationship of landlord and tenant between the parties are relevant for this appeal. Those three issues are as under:
“3. Has the plaintiff got title to the suit land?

4. Is the sale deed genuine, valid and for consideration?

5. Is there any relationship of landlord and tenant between the Parties?”

5.    In support of the rival claims of title over the suit property, both the plaintiff and the defendant led their respective evidences, both oral and documentary. The defendant also examined the third brother, Md. Jan from his side as DW11. On a consideration of the evidences adduced before it, the trial court upheld the plaintiff’s claim of title to the property arriving at the following finding: “In view of the discussion made above I hold that the sale deed (Ext.4) is genuine and that story set up by the defendant that an oral hiba was made by Sulachna to him has not been proved. The plaintiff has got Title to the suit land and the sale deed is genuine valid and for consideration.”

6.    It then took up issue nos.5 and 6 (about the plaintiff’s entitlement to a decree of eviction) together and came to hold and find that the relationship of landlord and tenant between the parties had not been proved. In light of its finding on issue no.5, the court further observed that in case the question of title is raised by the defendant and if it is found that there is no contract of tenancy, the proper course would be to dismiss the suit and not to convert it into a declaratory or possessory suit which is of altogether a different nature. The court further pointed out that the suit before it was neither for declaration of title nor the plaintiff had paid ad valorem court fee. The plaintiff was, therefore, not entitled to a decree of eviction since the relationship of landlord and tenant was not established between the parties. It, accordingly, dismissed the suit by judgment and order dated December 23, 1974.

7.    The plaintiff took the matter in appeal, (Title Appeal No.12 of 1975) which too was dismissed by the Second Additional District Judge, Arrah, by judgment and order dated February 19, 1975. From the judgment of the first appellate court, it appears that before it the main focus was on the issue of relationship of landlord and tenant between the parties. The trial court found that the suit property was vacant land and not a house (the case of the plaintiff was that the suit property was a piece of land 3 kathas and 5 dhurs in area with a fallen down house). It also noted that on behalf of the respondent no argument was advanced on the invalidity of the sale deed and the controversy was mainly about the relationship of landlord and tenant between the parties. On this issue, the appellate court came to the same finding as the trial court and dismissed the plaintiff’s appeal observing as follows:
“10. It is quite clear from the above enunciated principle that in order to get a decree in such a suit the plaintiff must not come to the Court with a false story. In the present case, it is quite obvious the plaintiff has come with a false case that she let out a house on the suit land to the deft (sic defendant) on a rent of Rs.10/- per month. If there is no relationship of landlord and tenant between the parties the plaintiff should have prayed for declaration her title and recovery of possession after paying advalorem Court fee on the current market value of the suit property. By filing a suit for eviction of the defendant and paying small Court fee on twelve month alleged rent of the house, the plaintiff has adopted a tricky way of getting her title declared and possession of the suit house recovered after paying very low amount of the court fee.”

8.    The plaintiff did not take the matter any further but filed another suit (Title Suit No.16/82 of 1978-79) against Md. Lukman seeking declaration of title over the property and recovery of its possession from the defendant. In this suit, her claim of title over the suit property was exactly the same as in the previous suit. The defendant too, apart from raising the objections based on limitation and res judicata and similar other formal pleas mainly stuck to the same story as in the previous case. According to the defendant, the sale deed relied upon by the plaintiff was not a genuine document for consideration and it was not executed by Sulakshana, who was the mother of the defendant. It was stated on behalf of the defendant that Sulakshana died in 1957. In the beginning of that year she suffered from fever for about a month and remained confined to bed and thereafter she suffered an attack of paralysis. She lost all power of understanding and continued in that state till her death in August 1957. The defendant specifically pleaded that on August 13, 1957 when the disputed sale deed was shown to have been executed, she had no power of understanding. It was further stated on his behalf that the plaintiff’s husband was a clever litigant and he manoeuvred to fabricate the sale deed by setting up some other woman as Sulakshana. It was also stated that if there was in existence any sale deed purportedly executed by Sulakshana, it must have been manufactured in collusion with the scribe, the attesting witnesses and the registrar and it would not confer any right, title or interest in the suit property on the plaintiff. It was further the case of the defendant that the disputed sale deed was never acted upon and the plaintiff never came in actual possession of the suit property on this basis. The defendant also denied the case of the plaintiff that she had inducted him as a tenant in the suit premises on a monthly rental of Rs.10.00 (rupees ten only) or as a licensee, as totally false and concocted. The defendant claimed that his mother Sulakshana had given him the suit property in the year 1950 by Hiba (oral gift) and put him in actual physical possession of the suit premises and since then he was coming in its possession. He constructed a boundary wall around the land and a house consisting of five rooms, etc. It was lastly claimed that the defendant was coming and continuing in possession to the knowledge of everyone, including the plaintiff and, thus, the defendant had, in any event, acquired title by adverse possession.

9.    It is, thus, to be seen that in the second suit too both parties went to the court with the same stories as in the previous suit, though, it is true that this time each side led some additional evidence in support of its case, for example, the plaintiff relied upon and produced a copy of the judgment in the earlier suit in which her claim of title over the suit property was upheld.

10.    The trial court framed a number of issues, of which issue nos. III, IV, V & VI are relevant for this appeal and are as follows: “III) Has the plaintiff got title over the suit property?
IV) Is there any relationship of landlord and tenant between the plaintiff and the defendant?
V) Has the plaintiff acquired title by adverse possession?

VI) Is the plaintiff entitled to recovery of possession? “
The trial court considered issue nos. III, IV & V together and came to find and hold that the plaintiff had succeeded in proving her title whereas the defendant had failed to prove his adverse possession. Issue nos. III & V were therefore decided in the plaintiff’s favour while issue no. IV was decided against her. On the basis of its findings, the trial court held that the plaintiff had valid cause of action and it, accordingly, decreed the suit by judgment and order dated February 28, 1981.

11.   Against the judgment and order passed by the trial court the defendant preferred an appeal (Title Appeal No.33 of 1981). The first appellate court (the eighth Additional District Judge, Arrah), on a reappraisal of the evidence produced by the parties, came to find and hold that the plaintiff had failed to prove that Sulakshana had put her left thumb impression on the sale deed (Ext.3) after understanding its contents and she had, thus, failed to prove her title to the suit premises on the basis of the sale deed. The appellate court, accordingly, allowed the appeal and by judgment and order dated May 21, 1987 set aside the judgment and decree passed by the trial court and dismissed the plaintiff’s suit.

12.   The original plaintiff was dead by this time and her heirs and legal representatives, the present respondents, took the matter in second appeal (Appeal from Appellate Decree No.236 of 1987) to the High Court. In the High Court, the second appeal was heard on the substantial question of law framed as under: “…whether the judgment and decree regarding title passed in Title Suit No.36 of 1973 (Ext.15) shall operate as res judicata between the parties on the question of title.”

13.   The High Court by judgment and order dated May 24, 2002 answered the question in the affirmative, in favour of the appellants (respondents herein), allowed the appeal, set aside the judgment and order passed by the appeal court below and restored the judgment and decree of the trial court. The High Court noted that the earlier suit (for eviction) and the later suit for declaration of title and recovery of possession were between the same parties and were contested on exactly the same claims raised by the two sides. The plaintiff on each occasion was claiming title to the suit premises on the basis of a sale deed executed by Sulakshana in her favour in the year 1950. The defendant on each occasion alleged that the sale deed was sham, fake and fabricated and set up a rival claim of title on the plea that his mother Sulakshana had made an oral gift of the suit premises in his favour in the year 1950 and since then he was coming in possession over it. The premises, when it was given to him in gift, was a vacant land over which he had constructed a house after obtaining sanction from the municipality. The High Court, therefore, observed as under:
“9… The facts of the earlier Title Suit No.36 of 1973, which was between the same parties and present Title Suit No.16 of 1978 also between the same parties, show that the plea taken by both the parties regarding title in both the Title Suits are same.
10. In the facts and circumstances of the case, the judgment and decree regarding title passed in Title Suit No.36 of 1973 (Ext.15) shall operate as res judicata between the parties on the question of title.”

14.   Mr. H.L. Agrawal, learned senior advocate, appearing for the appellant contended that the High Court had seriously erred in holding that the finding in the earlier suit of eviction would operate as res judicata in the subsequent suit for declaration of title and recovery of possession. Mr. Agrawal contended that a court dealing with an eviction suit was a creature of the Rent Act and was a court of limited jurisdiction. It had no authority or jurisdiction to decide disputes of title and hence, any finding recorded by it on the larger issue of title could not be binding on a court under the Code of Civil Procedure adjudicating upon a dispute of title between the two sides. He further submitted that there may be instances where in a suit for eviction the tenant might deny the title of the person seeking his ejectment and in those cases the rent court may incidentally go into the question of title in order to decide on the primary issue of eviction. But its findings on the issue of title would only be incidental and never binding in a proper suit for declaration of title and recovery of possession. In support of the submission he relied upon a decision of this Court in Shamim Akhtar v. Iqbal Ahmad & Anr., (2000) 8 SCC 123, in which it is said that in an eviction suit under the Rent Act, the question of title can be considered by the court as an incidental question and the final determination of title must be left to the decision of the competent court. The decision in Shamim Akhtar arose from U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 and the Provincial Small Cause Courts Act, 1887 and it was on a totally different set of facts. The observation of the court relied upon by Mr. Agrawal was of course stating the general rule and no more than that. The decision in Shamim Akhtar in no way helps the case of the appellants in the present appeal.

15.        The counsel for the respondents on the other hand relied upon a decision of this court in Sajjadanashin Sayed Md. B.E.Edr.by LRs. (D) vs. Musa Dadabhai Ummer and Ors., (2000) 3 SCC 350. The decision in this case dealt with the question when a matter can be said to be directly and substantially in issue and when it is only collaterally and incidentally in issue. The decision in Sajjadanashin does seem to help the case of the respondents. But we may state here that Mr. Agrawal with great fairness brought to our notice a decision of the Patna High Court1 in Pardip Singh vs. Ram Sundar Singh, AIR (36) 1949 Patna 510, though it is clearly against him. It is an old decision in which the division bench of the High Court placed reliance on two earlier decisions of the Privy Council. In Pardip Singh Meredith J., speaking for the division bench of the court observed as follows:
1 To which both, Mr. Agrawal and the two of us have been very closely associated at some time.  “The decision in a rent suit is not res judicata on the question of title unless the question of title had to be decided, was expressly raised, and was expressly decided between the parties and in each case it is necessary to examine carefully the decision in the rent suit before any opinion can be formed as to whether it operates as res judicata on the question of title or not. Ordinarily the decision would be res judicata only with regard to the existence of the relationship of landlord and tenant. The difference in the two classes of cases is very well illustrated in two Privy Council decisions, namely, Run Bahadoor Singh v. Mt. Lucho Koer, 12 I.A. 23: (11 Cal. 301 P.C.), where it was held that the decision was not res judicata as the question of title had been gone into only incidentally and collaterally, and Radhamadhub Holdar v. Manohar Mookerji, 15 I.A. 97: (15 Cal. 756 P.C.), where the question of title was directly decided in a rent suit, and the decision was held to be res judicata.”

16.   We respectfully concur with the view expressed in the decision in Pardip Singh.

17.   We have carefully examined the pleadings of the parties in the two suits and the evidences led by them in support of their respective claims regarding title in the two suits. And, we are satisfied that the issue of title was expressly raised by the parties in the earlier eviction suit and it was expressly decided by the eviction court. The question of title was directly and substantially in issue between the parties in the earlier suit for eviction. Hence, the High Court was right in holding that the finding recorded in favour of the plaintiff in the earlier suit for eviction would operate as resjudicata in the subsequent suit for declaration of title and recovery of possession between the parties.
18.   We, thus, find no merit in the appeal. It is dismissed, but in the facts and circumstances of the case there will be no order as to costs.