Doctrine of election

The ‘doctrine of election’ is a branch of ‘rule of estoppel’, in terms whereof a person may be precluded by his actions or conduct or silence when it is his duty to speak, from asserting a right which he otherwise would have had. The doctrine of election postulates that when two remedies are available for the same relief, the aggrieved party has the option to elect either of them but not both. Although there are certain exceptions to the same rule but the same has no application in the instant case.

In Nagubai Ammal and others vs. B. Shama Rao and others (AIR 1956 SC 593), it was stated :

“It is clear from the above observations that the maxim that a person cannot ‘approbate and reprobate is only one application of the doctrine of election, and that its operation must be confined to reliefs claimed in respect of the same transaction and to the persons who are parties thereto.”

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Expediency Doctrine of : Herbert Spencer

The doctrine of expediency

1.

“Give us a guide,” cry men to the philosopher. “We would escape from these miseries in which we are entangled. A better state is ever present to our imaginations, and we yearn after it; but all our efforts to realize it are fruitless. We are weary of perpetual failures; tell us by what rule we may attain our desire.”

“Whatever is expedient is right;” is one of the last of the many replies to this appeal.

“True,” rejoin some of the applicants. “With the Deity right and expedient are doubtless convertible terms. For us, however, there remains the question—which is the antecedent, and which is the consequent? Granting your assumption that right is the unknown quantity and expediency the known one, your formula may be serviceable. But we deny your premises; a painful experience has proved the two to be equally indeterminate. Nay, we begin to suspect that the right is the more easily ascertained of the two; and that your maxim would be better if transposed into—whatever is right is expedient.”

“Let your rule be, the greatest happiness to the greatest number,” interposes another authority.

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The doctrine of Stare Decisis

Law Library

The doctrine of Stare Decisis i.e. the Principle of Binding Precedent of Judgments of Superior Courts over Lower Courts, is deeply rooted in the English Common Law.

The fact that the Common Law is mainly Judge made law,the Existence of a Hierarchy of Courts and the need for certainty, led the Superior Courts in England to establish the above cardinal principle.

The ruling of the House of Lords in the London Street Tramways Co. Ltd v. London County Council (1898) A.C. 375reiterated that the House of Lords, the Supreme Court of the U.K. at the time, was bound by its own previous decisions. The above principle was strictly obeyed for a very long time.

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Kunhayammed and others  Versus State of Kerala and another – 19/07/2000.

SUPREME COURT OF INDIA JUDGMENTS

The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject matter at a given point of time. When a decree of order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the list before it either way—Whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject matter of challenge laid or which could have been laid shall have to be kept in view. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution, the Supreme Court may reverse, modify or affirm the judgement-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiction disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

AIR 2000 SC 2587 : (2000) 1 Suppl. SCR 538 : (2000) 6 SCC 359 : JT 2000 (9) SC 110 : (2000) 5 SCALE 167

(SUPREME COURT OF INDIA)

Kunhayammed and others  Versus State of Kerala and another

(Before: K. T. Thomas, D. P. Mohapatra And R. C. Lahoti, JJ.)

Civil Appeal No. 12309 of 1996,

Decided on: 19-07-2000.

Civil Procedure Code, 1908—Section 100—Doctrine of merger—Not applicable to order refusing special leave to appeal under Article 136 of the Constitution.

An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

Civil Procedure Code, 1908—Section 100—Doctrine of merger—Scope of.

Civil Procedure Code, 1908—Order 47, Rule 1—Review—Jurisdiction of High Court to entertain review petition—Lost when leave to appeal under Article 136 has been granted.

Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked, the order passed in appeal would attract the doctrine of merger, the order may be of reversal, modification or merely affirmation. On an appeal having been preferred or a petition seeking leave to appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before the Supreme Court, the jurisdiction of the High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule 1 of Order 47 of the C.P.C.

Counsel for the Parties:

T.L.V. Iyer, Sr. Advocate, Ramesh Babu M.R., T. G. N. Nair, Advocates with him, for Appellants

Ashok H. Desai, Attorney General, P. Krishnamoorthy, Sr. Advocate, Ms. Beena Prakash, G. Prakash, Advocates with them for Respondents.

Judgement

R.C. Lahoti, J—A question of frequent recurrence and of some significance involving the legal implications and the impact of an order rejecting a petition seeking grant of special leave to appeal under Article 136 of the Constitution of India has arisen for decision in this appeal.

Facts in brief:

2. The Kerala Private Forests (Vesting and Assignment) Act, 1971 (Act 26 of 1971), hereinafter referred to as ‘the Act’ for short, was enacted by the State of Kerala to provide for the vesting in the Government of private forests in the State of Kerala and for the assignment thereof to agriculturists and agricultural labourers for cultivation. The Act and the assent of the President on the Act were both published in Kerala Government Gazette (Extraordinary) dated 23-8-1971. The Act was given a retrospective operation by declaring that it shall be deemed to have come into force on the 10th day of May, 1971. We are not concerned with the details of several provisions contained in the Act. For our purpose it would suffice to notice that the disputes – (i) whether any land is a private forest or not, or (ii) whether any private forest or portion thereof is vested in the Government or not – may be entrusted for decision under Section 8 to a Tribunal constituted under Section 7 of the Act popularly known as Forest Tribunal. The Government or any person objecting to any decision of the Tribunal may within a period of 60 days from the date of that decision, appeal against such decision to the High Court under Section 8A of the Act.

3. There is a large family consisting of 71 members which raised a dispute between the Forest Tribunal, Kozhikode which was registered as OA 5 of 1981. Land to the tune of 1020 acres was the subject-matter of dispute. By order dated 11-8-1982 the Tribunal held tht the land did not vest in the Government. An appeal was preferred by the State of Kerala before the High Court of Kerala which was dismissed on 17-12-1982 by an elaborate order. There was no statutory remedy of appeal, revision or review provided against the order of the High Court. The State of Kerala filed a petition for special leave to appeal under Article 136 of the Constitution registered as SLP(C) No. 8098 of 1983. The petition was dismissed by an order dated 18-7-83. The order reads as under:-

“Special leave petition is dismissed on merits.”

4. By Amendment Act No. 36 of 1986 published in Kerala Government Gazette (Extraordinary) dated 1-12-1986 Section 8C amongst others was enacted into the body of the Act giving it a retrospective effect from 19-11-1983. Sub-section (2) of Section 8C, with which we are concerned, reads as under:-

8C. Power of Government to file appeal or application for review in certain cases.-

(1) **********

**********

“(2) Notwithstanding anything containing in this Act, or in the Limitation Act, 1963 (Central Act 36 of 1963), or in any other law for the time being in force, or in any judgment, decree or order of any Court or other authority, the Government, if they are satisfied that any order of the High Court in an appeal under Section 8A (including an order against which an appeal to the Supreme Court has not been admitted by that Court) has been passed on the basis of concessions made before the High Court without the authority in writing of the government or due to the failure to produce relevant data or other particulars before the High Court or that an appeal against such order could not be filed before the Supreme Court by reason of the delay in applying for and obtaining a certified copy of such order, may, during the period beginning with the commencement of the Kerala Private Forests (Vesting and Assignment) Amendment Act, 1986 and ending on the 31st day of March, 1987, make an application to the High Court for review of such order.”

**********

(Emphasis supplied)

5. In January, 1984 the State of Kerala filed an application for review registered as RP No. 14 of 1984 before the High Court of Kerala seeking review of the order dated 17-12-1982 passed by the High Court. On behalf of the respondents before the High Court a preliminary objection was raised to the maintainability of the review petition which has been heard and disposed of by the order dated 14th December, 1995 which is put in issue in this appeal. The High Court has overruled the preliminary objection as to the maintainability of the petition and directed the review petition to be posted for hearing on merits. Feeling aggrieved the petitioners have sought for leave to appeal to this Court which has been granted on 16-9-1996. On 14-3-2000 when this matter came up for hearing before a bench of two Judges they directed the matter to be referred to a bench of three Judges having regard to the importance of the question involved.

6. Shri T.L.V. Iyer, the learned senior counsel for the appellant has raised two contentions:Firstly, that the order of the High Court dated 17-12-1982 having merged into the order of this Court dated 18-7-1983, the order of the High Court had ceased to exist in the eye of law and therefore an application seeking review of the order dated 17-12-1982 passed by the High Court and before the High Court is entirely misconceived; Secondly, the order dated 18-7-1983 passed by this Court amounts to affirmation of the order dated 17-12-1982 passed by the High Court and therefore the High Court cannot entertain a prayer for review of its order much less disturb the order in exercise of review jurisdiction.

The doctrine of merger:

7. The doctrine of merger is neither a doctrine of constitutional law nor a doctrine statutorily recognised. It is a common law doctrine founded on principles of propriety in the hierarchy of justice delivery system. On more occasions than one this Court had an opportunity of dealing with the doctrine of merger. It would be advisable to trace and set out the judicial opinion of this Court as it has progressed through the times.

8. In Commissioner of Income-tax, Bombay v. M/s. Amritlal Bhogilal and Co., AIR 1958 SC 868 this Court held:(Para 10)

“There can be no doubt that, if an appeal is provided against an order passed by a tribunal, the decision of the appellate authority is the operative decision in law. If the appellate authority modifies or reverses the decision of the tribunal, it is obvious that it is the appellate decision that is effective and can be enforced. In law the position would be just the same even if the appellate decision merely confirms the decision of the tribunal. As a result of the confirmation or affirmance of the decision of the tribunal by the appellate authority the original decision merges in the appellate decision and it is the appellate decision alone which subsists and is operative and capable of enforcement………………………………”

9. However, in the facts and circumstances of the case this Court refused to apply the doctrine of merger. There, an order of registration of a firm was made by the Income-tax Officer. The firm was then assessed as a registered firm. The order of assessment of the assessee was subjected to appeal before the Appellate Commissioner. Later on the order passed by the Income-tax Officer in respect of registration of the firm was sought to be revised by the Commissioner of Income-tax. Question arose whether the Commissioner of Income-tax could have exercised the power of revision. This Court held that though the order of assessment made by the ITO was appealed against before the Appellate Commissioner, the order of registration was not appeallable at all and therefore the order granting registration of the firm cannot be said to have been merged in the appellate order of the Appellate Commissioner. While doing so this Court analysed several provisions of the Income-tax Act so as to determine the nature and scope of relevant appellate and revisional powers and held if the subject matter of the two proceedings is not identical, there can be no merger. In State of Madras v. Madurai Mills Co. Ltd., AIR 1967 SC 681 this Court held that the doctrine of merger is not a doctrine of rigid and universal application and it cannot be said that where-ever there are two orders, one by the inferior authority and the other by a superior authority, passed in an appeal or revision there is a fusion or merger of two orders irrespective of the subject-matter of the appellate or revisional order and the scope of the appeal or revision contemplated by the particular statute. The application of the doctrine depends on the nature of the appellate or revisional order in each case and the scope of the statutory provisions conferring the appellate or revisional jurisdiction.

10. In M/s. Gojer Brothers Pvt. Ltd. v. Shri Ratanlal, AIR 1974 SC 1380 this Court made it clear that so far as merger is concerned on principle there is no distinction between an order of reversal or modification or an order of confirmation passed by the appellate authority; in all the three cases the order passed by the lower authority shall merge in the order passed by the appellate authority whatsoever be its decision – whether of reversal or modification or only confirmation. Their Lordships referred to an earlier decision of this Court in U.J.S. Chopra v. State of Bombay, AIR 1955 SC 633 wherein it was held (Para 25) –

“A judgment pronounced by a High Court in exercise of its appellate or revisional jurisdiction after issue of a notice and a full hearing in the presence of both the parties would replace the judgment of the lower Court, thus constituting the judgment of the High Court the only final judgment to be executed in accordance with law by the Courts below.”

11. In S. S. Rathore v. State of Madhya Pradesh, AIR 1990 SC 10 a larger Bench of this Court (Seven-Judges) having reviewed the available decisions of the Supreme Court on the doctrine of merger,held that the distinction made between Courts and tribunals as regards the applicability of doctrine of merger is without any legal justification; where a statutory remedy was provided against an adverse order in a service dispute and that remedy was availed,the limitation for filing a suit challenging the adverse order would commence not from the date of the original adverse order but on the date when the order of the higher authority disposing of the statutory remedy was passed. Support was taken from doctrine of merger by referring to C.I.T. v. Amritlal Bhogilal and Co., (supra) and several other decisions of this Court.

12. The logic underlying the doctrine of merger is that there cannot be more than one decree or operative orders governing the same subject-matter at a given point of time. When decree or order passed by inferior Court, tribunal or authority was subjected to a remedy available under the law before a superior forum then, though the decree or order under challenge continues to be effective and binding, nevertheless its finality is put in jeopardy. Once the superior Court has disposed of the lis before it either way – whether the decree or order under appeal is set aside or modified or simply confirmed, it is the decree or order of the superior Court, tribunal or authority which is the final, binding and operative decree or order wherein merges the decree or order passed by the Court, tribunal or the authority below. However, the doctrine is not of universal or unlimited application. The nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or which could have been laid shall have to be kept in view.

Stage of SLP and post-leave stage

13. The appellate jurisdiction exercised by the Supreme Court is conferred by Articles 132 to 136 of the Constitution. Articles 132, 133 and 134 provide when an appeal thereunder would lie and when not. Article 136 of the Constitution is a special jurisdiction conferred on the Supreme Court which is sweeping in its nature. It is a residuary power in the sense that it confers an appellate jurisdiction on the Supreme Court subject to the special leave being granted in such matters as may not be covered by the preceding articles. It is an overriding provision conferring a special jurisdiction providing for invoking of the appellate jurisdiction of Supreme Court not fettered by the sweep of preceding articles. Article 136 opens with a non-obstante clause and conveys a message that even in the field covered by the preceding articles, jurisdiction conferred by Article 136 is available to be exercised in an appropriate case. It is an untrammeled reservoir of power incapable of being confined to definitional bounds; the discretion conferred on the Supreme Court being subjected to only one limitation, that is, the wisdom and good sense or sense of justice of the Judges. No right of appeal is conferred upon any party, only a discretion is vested in Supreme Court to interfere by granting leave to an applicant to enter in its appellate jurisdiction not open otherwise and as of right.

14. The exercise of jurisdiction conferred on this Court by Article 136 of the Constitution consists of two steps:(i) granting special leave to appeal; and (ii) hearing the appeal. This distinction is clearly demonstrated by the provisions of Order XVI of the Supreme Court Rules framed in exercise of the power conferred by Article 145 of the Constitution. Under Rule 4, the petition seeking special leave to appeal filed before the Supreme Court under Article 136 of the Constitution shall be in form No. 28. No separate application for interim relief need be filed, which can be incorporated in the petition itself. If notice is ordered on the special leave petition, the petitioner should take steps to serve the notice on the respondent. The petition shall be accompanied by a certified copy of the judgment or order appealed from and an affidavit in support of the statement of facts contained in the petition. Under Rule 10 the petition for grant of special leave shall be put up for hearing ex-parte unless there be a caveat. The Court if it thinks fit, may direct issue of notice to the respondent and adjourn the hearing of the petition. Under Rule 13, the respondent to whom a notice in special leave petition is issued or who had filed a caveat, shall be entitled to oppose the grant of leave of interim orders without filing any written objections. He shall also be at liberty to file his objections only by setting out the grounds in opposition to the questions of law or grounds set out in the S.L.P.. On hearing the Court may refuse the leave and dismiss the petition for seeking special leave to appeal either ex-parte or after issuing notice to the opposite party. Under Rule 11, on the grant of special leave, the petition for special leave shall, subject to the payment of additional Court fee, if any, be treated as the petition of appeal and it shall be registered and numbered as such. The appeal shall then be set down for hearing in accordance with the procedure laid down thereafter. Thus, a petition seeking grant of special leave to appeal and the appeal itself, though both dealt with by Article 136 of the Constitution, are two clearly distinct stages. In our opinion, the legal position which emerges is as under:-

1. While hearing the petition for special leave to appeal, the Court is called upon to see whether the petitioner should be granted such leave or not. While hearing such petition, the Court is not exercising its appellate jurisdiction; it is merely exercising its discretionary jurisdiction to grant or not to grant leave to appeal. The petitioner is still outside the gate of entry though aspiring to enter the appellate arena of Supreme Court. Whether he enters or not would depend on the fate of his petition for special leave;

2. If the petition seeking grant of leave to appeal is dismissed, it is an expression of opinion by the Court that a case for invoking appellate jurisdiction of the Court was not made out ;

3. If leave to appeal is granted the appellate jurisdiction of the Court stands invoked; the gate for entry in appellate arena is opened. The petitioner is in and the respondent may also be called upon to face him, though in an appropriate case, in spite of having granted leave to appeal, the Court may dismiss the appeal without nothing the respondent.

4. In spite of a petition for special leave to appeal having been filed, the judgment, decree or order against which leave to appeal has been sought for, continues to be final, effective and binding as between the parties. Once leave to appeal has been granted, the finality of the judgment, decree or order appealed against is put in jeopardy though it continues to be binding and effective between the parties unless it is a nullity or unless the Court may pass a specific order staying or suspending the operation or execution of the judgment, decree or order under challenge. dismissal at stage of special leave – without reasons – no res judicata, no merger

15. Having so analysed and defined the two stages of the jurisdiction conferred by Article 136, now we proceed to deal with a number of decisions cited at the Bar during the course of hearing and dealing with the legal tenor of an order of Supreme Court dismissing a special leave petition. In Workmen of Cochin Port Trust v. Board of Trustees of the Cochin Port Trust, (1978) 3 SCC 119 , a Three-Judges Bench of this Court has held that dismissal of special leave petition by the Supreme Court by a non-speaking order of dismissal where no reasons were given does not constitute res judicata. All that can be said to have been decided by the Court is that it was not a fit case where special leave should be granted. That may be due to various reasons. During the course of the judgment, their Lordships have observed that dismissal of a special leave petition under Article 136 against the order of a Tribunal did not necessarily bar the entertainment of a writ petition under Article 226 against the order of the Tribunal. The decision of Madras High Court in the Management of W. India Match Co. Ltd. v. Industrial Tribunal, AIR 1958 Mad 398, 403 was cited before their Lordships. The High Court had taken the view that the right to apply for leave to appeal to Supreme Court under Article 136, if it could be called a “right” at all, cannot be equated to a right to appeal and that a High Court could not refuse to entertain an application under Article 226 of the Constitution on the ground that the aggrieved party could move Supreme Court under Article 136 of the Constitution. Their Lordships observed that such a broad statement of law is not quite accurate, although substantially it is correct.

16. In Indian Oil Corporation Ltd. v. State of Bihar, AIR 1986 SC 1780 there was a labour dispute adjudicated upon by an award made by the Labour Court. The employer moved the Supreme Court by filing special leave petition against the award which was dismissed by a non-speaking order in the following terms:-

“The special leave petition is dismissed.”

17. Thereafter the emloyer approached the High Court by preferring a petition under Article 226 of the Constitution seeking quashing of the award of the Labour Court. On behalf of the employee the principal contention raised was that in view of the order of the Supreme Court dismissing the special leave petition preferred against the award of the Labour Court it was not legally open to the employer to approach the High Court under Article 226 of the Constitution challenging the very same award. The plea prevailed with the High Court forming an opinion that the doctrine of election was applicable and the employer having chosen the remedy of approaching a superior Court and having failed therein he could not thereafter resort to the alternative remedy of approaching the High Court. This decision of the High Court was put in issue before the Supreme Court. This Court held that the view taken by the High Court was not right and that the High Court should have gone into the merits of the writ petition.

Referring to two earlier decisions of this Court, it was further held:-

“the effect of a non-speaking order of dismissal of a special leave petition, without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that this Court had decided only that it was not a fit case where special leave should be granted. This conclusion may have been reached by this Court due to several reasons. When the order passed by this Court was not a speaking one, it is not correct to assume that this Court had necessarily decided implicitly all the questions in relation to the merits of the award, which was under challenge before this Court in the special leave petition. A writ proceeding is a wholly different and distinct proceeding. Questions which can be said to have been decided by this Court expressly, implicitly or even constructively while dismissing the special leave petition cannot, of course, be re-opened in a subsequent writ proceeding before the High Court. But neither on the principle of res judicata nor on any principle of public policy analogous thereto, would the order of this Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by this Court at least by implication. It is not correct or safe to extend the principle of res judicata or constructive res judicata to such an extent so as to found it on mere quesswork.”

“It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment. The dismissal of a special leave petition in limine by a non-speaking order does not therefore justify any inference that by necessary implication the contentions raised in the special leave petition on the merits of the case have been rejected by this Court. It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to grant special leave in cases where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution. In such cases also the special leave petitions are quite often dismissed only by passing a non-speaking order especially in view of the rullings already given by this Court in the two decisions afore-cited, that such dismissal of the special leave petition will not preclude the party from moving the High Court for seeking relief under Article 226 of the Constitution. In such cases it would work extreme hardship and injustice if the High Court were to close its doors to the petitioner and refuse him relief under Article 226 of the Constitution on the sole ground of dismissal of the special leave petition.”

(Emphasis supplied)

18. In our opinion what has been stated by this Court applies also to a case where a special leave petition having been dismissed by a non-speaking order the applicant approaches the High Court by moving a petition for review. May be that the Supreme Court was not inclined to exercise its discretionary jurisdiction under Article 136 probably because it felt that it was open to the applicant to move the High Court itself. As nothing has been said specifically in the order dismissing the special leave petition one is left merely guessing. We do not think it would be just to deprive the aggrieved person of the statutory right of seeking relief in review jurisdiction of the High Court if a case for relief in that jurisdiction could be made out merely because a special leave petition under Article 136 of the Constitution had already stood rejected by the Supreme Court by a non-speaking order.

19. In M/s. Rup Diamonds v. Union of India, AIR 1989 SC 674, the law declared by this Court is that it cannot be said that the mere rejection of secial leave petition could, by itself, be construed as the imprimatur of this Court on the correctness of the decision sought to be appealed against.

20. In Wilson v. Colchester Justices (1985) 2 All ER 97, the House of Lords stated;

“There are a multitude of reasons why, in a particular case, leave to appeal may be refused by an Appeal Committee. I shall not attempt to embark on an exhaustive list for it would be impossible to do so. One reason may be that the particular case raises no question of general principle but turns on its own facts. Another may be that the facts of the particular case are not suitable as a foundation for determining some question of general principle. …………………… Conversely the fact that leave to appeal is given is not of itself an indication that the judgments below are thought to be wrong. It may well be that leave is given in order that the relevant law may be authoritatively restated in clearer terms.”

21. In Supreme Court Employees’ Welfare Association v. Union of India, (1989) 4 SCC 187 , and Yogendra Narayan Chowdhury v. Union of India, (1996) 7 SCC 1 , both decisions by Two-judges Benches, this Court has held that a non-speaking order of dismissal of a special leave petition cannot lead to assumption that it had necessarily decided by implication the correctness of the decision under challenge.

22. We may refer to a recent decision, by Two-Judges Bench, of this Court in V. M. Salgaocar and Bros. Pvt. Ltd. v. Commissioner of Income-tax, (2000) 3 Scale 240, holding that when a special leave petition is dismissed, this Court does not comment on the correctness or otherwise of the order from which leave to appeal is sought. What the Court means is that it does not consider it to be a fit case for exercising its jurisdiction under Article 136 of the Constitution. That certainly could not be so when appeal is dismissed though by a non-speaking order. Here the doctrine of merger applies. In that case the Supreme Court upholds the decision of the High Court or of the Tribunal. This doctrine of merger does not apply in the case of dismissal of special leave petition under Article 136. When appeal is dismissed, order of the High Court is merged with that of the Supreme Court. We find ourselves in entire agreement with the law so stated. We are clear in our mind that an order dismissing a special leave petition, moreso when it is by a non-speaking order, does not result in merger of the order impugned into the order of the Supreme Court.

23. A few decisions which apparently take a view to the contrary may now be noticed. In Sree Narayana Dharmasanghom Trust v. Swami Prakasananda, (1997) 6 SCC 78, it was held that a revisional order of the High Court against which a petition for special leave to appeal was dismissed in limine could not have been reviewed by the High Court subsequent to dismissal of S.L.P. by Supreme Court. This decision proceeds on the premises, as stated in para 6 of the order, that “It is settled law that even the dismissal of special leave petition in limine operates as a final order between the parties”. In our opinion, the order is final in the sense that once a special leave petition is dismissed, whether by a speaking or non-speaking order or whether in limine or on contest, second special leave petition would not lie. However, this statement cannot be stretched and applied to hold that such an order attracts applicability of doctrine of merger and excludes the jurisdiction of the Court or authority passing the order to review the same.

24. In State of Maharashtra v. Prabhakar Bhikaji Ingle (1996) 3 SCC 463 the view taken by a two-Judge Bench of this Court is that the dismissal of special leave petition without a speaking order does not constitute res judicata but the order dealt with in S.L.P., disposed of by a non-speaking order cannot be subjected to review by the Tribunal. In our opinion the law has been too broadly stated through the said observation. Learned Judges have been guided by the consideration of judicial discipline which, as we would shortly deal with, is a principle of great relevance and may be attracted in an appropriate case. But we find it difficult to subscribe to the view, as expressed in this decision, that dismissal of SLP without a speaking order amounts to confirmation by Supreme Court of the order against which leave was sought for and the order had stood merged in the order of Supreme Court.

Dismissal of SLP by speaking or reasoned order – no merger but Rule of discipline and Article 141 attracted.

25. The efficacy of an order disposing of a special leave petition under Article 136 of the Constitution came up for the consideration of Constitution Bench in Penu Balakrishna v. Ariya M. Ramaswami Iyer, AIR 1965 SC 195 in the context of revocation of a special leave once granted. This Court held that in a given case if the respondent brings to the notice of the Supreme Court facts which would justify the Court in revoking the leave earlier granted by it, the Supreme Court would in the interest of justice not hesitate to adopt that course. It was therefore held that no general rules could be laid down governing the exercise of wide powers conferred on this Court under Article 136; whether the jurisdiciton of this Court under Article 136 should be exercised or not and if used, on what terms and conditions, is a matter depending on the facts of each case. If at the stage when special leave is granted the respodent-caveator appears and resists the grant of special leave and the ground urged in support of resisting the grant of special leave is rejected on merits resulting in grant of special leave then it would not be open to the respondent to raise the same point over again at the time of the final hearing of the appeal. However, if the respondent/caveator does not appear, or having appeared, does not raise a point, or even if he raised a point and the Court does not decide it before grant of special leave, the same point can be raised at the time of final hearing. There would be no technical bar of res judicata. The Constitution Bench thus makes it clear that the order disposing of a special leave petition has finality of a limited nature extending only to the points expressly decided by it.

26. The underlying logic attaching efficacy to an order of the Supreme Court dismissing of S.L.P. after hearing counsel for the parties is discernible from a recent three-Judge Bench decision of this Court in Abbai Maligai Partnership Firm v. K. Santhakumaran (1998) 7 SCC 386 . In the matter of eviction proceedings initiated before the Rent Controller, the order passed therein was subjected to appeal and then revision before the High Court. Special leave petitions were preferred before the Supreme Court where the respondents were present on caveat. Both the sides were heard through the senior advocates representing them. The special leave petitions were dismissed. The High Court thereafter entertained review petitions which were highly belated and having condoned the delay reversed the orders made earlier in civil revision petitions. The orders in review were challenged by filing appeals under leave granted on special leave petitions. This Court observed that what was done by the learned single Judge was “subversive of judicial discipline”. The facts and circumstances of the case persuaded this Court to form an opinion that the tenants were indulging in vexatious litigations, abusing the process of the Court by approaching the High Court and the very entertainment of review petitions (after condoning a long delay of 221 days) and then reversing the earlier orders was an affront to the order of this Court. However the learned Judges deciding the case have nowhere in the course of their judgment relied on doctrine of merger for taking the view they have done. A careful reading of this decision brings out the correct statement of law and fortifies us in taking the view as under.

27. A petition for leave to appeal to this Court may be dismissed by a non-speaking order or by a speaking order. Whatever be the phraseology employed in the order of dismissal, if it is non-speaking order, i.e. it does not assign reasons for dismissing the special leave petition, it would neither attract the doctrine of merger so as to stand substituted in place of the order put in issue before it nor would it be a declaration of law by the Supreme Court under Article 141 of the Constitution for there is no law which has been declared. If the order of dismissal be supported by reasons then also the doctrine of merger would not be attracted because the jurisdiction exercised was not an appellate jurisdiction but merely a discretionary jurisdiction refusing to grant leave to appeal. We have already dealt with this aspect earlier. Still the reasons stated by the Court would attract applicability of Article 141 of the Constitution if there is a law declared by the Supreme Court which obviously would be binding on all the courts and tribunals in India and certainly the parties thereto. The statement contained in the order other than on points of law would be binding on the parties and the court or tribunal, whose order was under challenge on the principle of juridicial discipline, this Court being the Apex Court of the country. No Court or tribunal or parties would have the the liberty of taking or canvassing any view contrary to the one expressed by this Court. The order of Supreme Court would mean that it has declared the law and in that light the case was considered not fit for grant of leave. The declaration of law will be governed by Article 141 but still, the case not being one where leave was granted, the doctrine of merger does not apply. The Court sometimes leaves the question of law open. Or it sometimes briefly lays down the principle, may be, contrary to the one laid down by the High Court and yet would dismiss the special leave petition. The reasons given are intended for purposes of Article 141. This is so done because in the event of merely dismissing the special leave petition, it is likely that an argument could be advanced in the High Court that the Supreme Court has to be understood as not to have differed in law with the High Court.

28. Incidentally we may notice two other decisions of this Court which though not directly in point, the law laid down wherein would be of some assistance to us. In Shankar Ramchandra Abhyankar v. Krishnaji Dattatraya Bapat, AIR 1970 SC 1, this Court vide para 7 has emphasised three pre-conditions attracting applicability of doctrine of merger. They are:(i) the jurisdiction exercised should be appellate or revisional jurisdiction; (ii) the jurisdiction should have been exercised after issue of notice; and, (iii) after a full hearing in presence of both the parties. Then the appellate or revisional order would replace the judgment of the lower Court and constitute the only final judgment. In Sushil Kumar Sen v. State of Bihar, AIR 1975 SC 1185 the doctrine of merger usually applicable to orders passed in exercise of appellate or revisional jurisdiction was held to be applicable also to orders passed in exercise of review jurisdiction. This Court held that the effect of allowing an application for review of a decree is to vacate a decree passed. The decree that is subsequently passed on review whether it modifies, reverses or confirms the decree originally passed, is a new decree superseding the original one. The distinction is clear. Entertaining an application for review does not vacate the decree sought to be reviewed. It is only when the application for review has been allowed that the decree under review is vacated. Thereafter the matter is heard afresh and the decree passed therein, whatever be the nature of the new decree, would be a decree superseding the earlier one. The principle of logic flowing from the above-said decisions can usefully be utilised for resolving the issue at hand. Mere pendency of an application seeking leave to appeal does not put in jeopardy the finality of the decree or order sought to be subjected to exercise of appellate jurisdiction by the Supreme Court. It is only if the application is allowed and leave to appeal granted then the finality of the decree or order under challenge is jeopardised as the pendency of appeal reopens the issues decided and this Court is then scrutinising the correctness of the decision in exercise of its appellate jurisdiction.

29. In Gopabandhu Biswal v. Krishna Chandra Mohanty (1998) 4 SCC 447 there are observations vide para 8 and at a few other places that rejection of a special leave petition against the order of administrative tribunal makes the order of the Tribunal final and binding and the party cannot thereafter go back to the Tribunal to apply for review. However, paras 12 and 13 of the judgment go to show that (i) the applications for review before the Tribunal were not within the principle laid down under Order 47, Rule 1 of the C.P.C., (ii) did not comply with the relevant rules contained in Central Administratve Tribunal (Procedure) Rules, 1987, (iii) the review applicants were not in the category of persons aggrieved, and (iv) the review petitions were filed beyond the period of limitation prescribed and the delay was not explained. Thus the case proceeds on the peculiar facts of its own.

30. In Junior Telecom Officers Forum v. Union of India, (1993) 4 Suppl. SCC 693 also the view taken by a two-Judge Bench of this Court is that the dismissal of the SLP, though in limine, was “on merits” and the Court had declined to interfere with the impugned judgment of the High Court except to a limited extent as noticed therein whereafter the Tribunal could not have reopened the matter. The order passed earlier by the Supreme Court is quoted in para 5 of the report. It clearly states that on SLP itself the Court heard counsel of both the sides. While dismissing the special leave petition on merits, this Court had to some extent interfere with the order of the High Court which was put in issue before the Supreme Court. It is clear that the Supreme Court had exercised appellate jurisdiction vested in it under Article 136 of the Constitution and heard both the sides though the leave was not formally granted and the special leave petition was not formally converted into an appeal. Hence this decision rests on the special facts of that case.

31. In Supreme Court Employees’ Welfare Associations case (supra), this Court held:-

“When Supreme Court gives reasons while dismissing a special leave petition under Article 136 the decision becomes one which attracts Article 141. But when no reason is given and the special leave petition is summarily dismissed, the Court does not lay down any law under Article 141. The effect of a non-speaking order of dismissal of a special leave petition without anything more indicating the grounds or reasons of its dismissal must, by necessary implication, be taken to be that the Supreme Court had decided only that it was not a fit case where special leave petition should be granted.”

(Emphasis supplied)

Leave granted – dismissal without reasons – merger results

32. It may be that in spte of having granted leave to appeal, the Court may dismiss the appeal on such grounds as may have provided foundation for refusing the grant at the earlier stage. But that will be a dismissal of appeal. The decision of this Court would result in superseding the decision under appeal attracting doctrine of merger. But if the same reasons had prevailed with this Court for refusing leave to appeal, the order would not have been an appellate order but only an order refusing to grant leave to appeal.

Doctrine of merger and review:-

33. This question directly arises in the case before us.

34. The doctrine of merger and the right of review are concepts which are closely inter-linked. If the judgment of the High Court has come up to this Court by way of a special leave, and special leave is granted and the appeal is disposed of with or without reasons, by affirmance or otherwise, the judgment of the High Court merges with that of this Court. In that event, it is not permissible to move the High Court by review because the judgment of the High Court has merged with the judgment of this Court. But where the special leave petition is dismissed there being no merger, the aggrieved party is not deprived of any statutory right of review, if it was available and he can pursue it. It may be that the review Court may interfere, or it may not interfere depending upon the law and principles applicable to interference in the review. But the High Court, if it exercise a power of review or deals with a review application on merits in a case where the High Court’s order had not merged with an order passed by this Court after grant of special leave the High Court could not, in law, be said to be wrong in exercising statutory jurisdiction or power vested in it.

35. It will be useful to refer to Order 47, Rule 1 of the Code of Civil Procedure 1908. It reads as follows:

R. 1. Application for review of judgment.

(1) Any person considering himself aggrieved-

(a) by a decree or order from which an appeal is allowed, but from which no appeal has been preferred,

(b) by a decree or order from which no appeal is allowed, or

(c) by a decision on reference from a Court of Small Causes, and who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him may apply for a review of judgment to the Court which passed the decree or made the order.

(2) A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the applicant and the appellant, or when, being respondent, he can present to the appellate Court the case on which he applies for the review.

[Explanation.- The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.]

36. For our purpose it is clause (a) sub-rule (1) which is relevant. It contemplates a situation where “an appeal is allowed” but “no appeal has been preferred”. The Rule came up for consideration of this Court in Thungabhandra Industries Ltd. v. Govt. of A. P., AIR 1964 SC 1372 in the context of Article 136 of the Constitution of India. The applicant had filed an application for review of the order of the High Court refusing to grant a certificate under Article 133 of the Constitution. The applicant also filed an application for special leave to appeal in respect of the same matter under Article 136 along with an application for condonation of delay. The Supreme Court refused to condone the delay and rejected the application under Article 126. When the application for review came up for consideration before the High Court, it was dismissed on the ground that the special leave petition had been dismissed by the Supreme Court. This Court held that the crucial date for determining whether or not the terms of Order 47, Rule 1(1), CPC are satisfied is the date when the application for review is filed. If on that date no appeal has been filed it is competent for the Court hearing the petition for review to dispose of the application on the merits notwithstanding the pendency of the appeal, subject only to this, that if before the application for review is finally decided the appeal itself has been disposed of, the jurisdiction of the Court hearing the review petition would come to an end. On the date when the application for review was filed the applicant had not filed an appeal to this Court and therefore there was no bar to the petition for review being entertained.

37. Let us assume that the review is filed first and the delay in the SLP is condoned and the special leave petition is ultimately granted and the appeal is pending in this Court. The position then, under Order 47, Rule 1, C.P.C. is that still the review can be disposed of by the High Court. If the review of a decree is granted before the disposal of the appeal against the decree, the decree appealed against will cease to exist and the appeal would be rendered incompetent. An appeal cannot be preferred against a decree after review against the decree has been granted. This is because the decree reviewed gets merged in the decree passed on review and the appeal to the superior Court preferred against the earlier decree the one before review becomes infructuous.

38. The review can be filed even after SLP is dismissed is clear from the language of Order 47, Rule 1(a). Thus the words “no appeal has been preferred in Order 47, Rule 1(a) would also mean a situation where special leave is not granted. Till then there is no appeal in the eye of law before the Superior Court. Therefore, the review can be preferred in the High Court before special leave is granted, but not after it is granted. The reason is obvious. Once special leave is granted the jurisdiction to consider the validity of the High Court’s order vests in the Supreme Court and the High Court cannot entertain a review thereafter, unless such a review application was preferred in the High Court before special leave was granted.

Conclusions:

39. We have catalogued and dealt with all the available decisions of this Court brought to our notice on the point at issue. It is clear that as amongst the several two-Judge Bench decisions there is a conflict of opinion and needs to be set at rest. The source of power conferring binding efficacy on decisions of this Court is not uniform in all such decisions. Reference is found having been made to (i) Article 141 of the Constitution, (ii) doctrine of merger, (iii) res judicata, and (iv) Rule of discipline flowing from thisCourt being the highest Court of the land.

40. A petition seeking grant of special leave to appeal may be rejected for several reasons. For example, it may be rejected (i) as barred by time, or (ii) being a defective presentation, (iii) the petitioner having no locus standi to file the petition, (iv) the conduct of the petitioner disentitling him to any indulgence by the Court, (iv) the question raised by the petitioner for consideration by this Court being not fit for consideration or deserving being dealt with by the Apex Court of the country and so on. The expression often employed by this Court while disposing of such petitions are “heard and dismissed”, “dismissed”, “dismissed as barred by time” and so on. May be that at the admission stage itself the opposite party appears on caveat or on notice and offers contest of the maintainabilty of the petition. The Court may apply its mind to the meritworthiness of the petitioner’s prayer seeking leave to file an appeal and having formed an opinion may say “dismissed on merits”. Such an order may be passed even ex parte, that is, in the absence of the opposite party. In any case, the dismissal would remain a dismissal by a non-speaking order where no reasons have been assigned and no law has been declared by the Supreme Court. The dismissal is not of the appeal but of the special leave petition. Even if the merits have been gone into, they are the merits of the special leave petition only. In our opinion neither doctrine of merger nor Article 141 of the Constitution is attracted to such an order. Grounds entitling exercise of review jurisdiction conferred by Order 47, Rule 1 of the C.P.C. or any other statutory provision or allowing review of an order passed in exercise of writ or supervisory jurisdiction of the High Court (where also the principles underlying or emerging from Order 47, Rule 1 of the C.P.C. act as guidelines) are not necessarily the same on which this Court exercises discretion to grant or not to grant special leave to appeal while disposing of a petition for the purpose. Mere rejection of special leave petition does not take away the jurisdiction of the Court, tribunal or forum whose order forms the subject-matter of petition for special leave to review its own order if grounds for exercise of review jurisdiction are shown to exist. Where the order rejecting an SLP is a speaking order, that is, where reasons have been assigned by this Court for rejecting the petition for special leave and are stated in the order still the order remains the one rejecting prayer for the grant of leave to appeal. The petitioner has been turned away at the threshold without having been allowed to enter in the appellate jurisdiction of this Court. Here also the doctrine of merger would not apply. But the law stated or declared by this Court in its order shall attract applicability of Article 141 of the Constitution. The reasons assigned by this Court in its order expressing its adjudication (expressly or by necessary implication) on point of fact or law shall take away the jurisdiction of any other Court, tribunal or authority to express any opinion in conflict with or in departure from the view taken by this Court because permitting to do so would be subversive of judicial discipline and an affront to the order of this Court. However this would be so not by reference to the doctrine of merger.

41. Once a special leave petition has been granted, the doors for the exercise of appellate jurisdiction of this Court have been let open. The order impugned before the Supreme Court becomes an order appealed against. Any order passed thereafter would be an appellate order and would attract the applicability of doctrine of merger. It would not make a difference whether the order is one of reversal or of modification or of dismissal affirming the order appealed against. It would also not make any difference if the order is a speaking or non-speaking one. Whenever this Court has felt inclined to apply its mind to the merits of the order put in issue before it though it may be inclined to affirm the same, it is customary with this Court to grant leave to appeal and thereafter dismiss the appeal itself (and not merely the petition for special leave) though at times the orders granting leave to appeal and dismissing the appeal are contained in the same order and at times the orders are quite brief. Nevertheless, the order shows the exercise of appellate jurisdiction and therein the merits of the order impugned having been subjected to judicial scrutiny of this Court.

42. “To merge” means to sink or disappear in something else; to become absorbed or extinguished; to be combined or be swallowed up. Merger in law is defined as the absorption of a thing of lesser importance by a greater, whereby the lesser ceases to exist, but the greater is not increased; an absorption or swallowing up so as to involve a loss of identity and individuality. (See Corpus Juris Secundum, Vol. LVII, pp. 1067-1068).

43. We may look at the issue from another angle. The Supreme Court cannot and does not reverse or modify the decree or order appealed against while deciding a petition for special leave to appeal. What is impugned before the Supreme Court can be reversed or modified only after granting leave to appeal and then assuming appellate jurisdiction over it. If the order impugned before the Supreme Court cannot be reversed or modified at the SLP stage obviously that order cannot also be affirmed at the SLP stage.

To sum up our conclusions are:-

(i) Where an appeal or revision is provided against an order passed by a Court, tribunal or any other authority before superior forum and such superior forum modifies, reverses or affirms the decision put in issue before it, the decision by the sub-ordinate forum merges in the decision by the superior forum and it is the latter which subsists, remains operative and is capable of enforcement in the eye of law.

(ii) The jurisdiction conferred by Article 136 of the Constitution is divisible into two stages. First stage is up to the disposal of prayer for special leave to file an appeal. The second stage commences if and when the leave to appeal is granted and special leave petition is converted into an appeal.

(iii) Doctrine of merger is not a doctrine of universal or unlimited application. It will depend on the nature of jurisdiction exercised by the superior forum and the content or subject-matter of challenge laid or capable of being laid shall be determinative of the applicability or merger. The superior jurisdiction should be capable of reversing, modifying or affirming the order put in issue before it. Under Article 136 of the Constitution the Supreme Court may reverse, modify or affirm the judgment-decree or order appealed against while exercising its appellate jurisdiction and not while exercising the discretionary jurisdiciton disposing of petition for special leave to appeal. The doctrine of merger can therefore be applied to the former and not to the latter.

(iv) An order refusing special leave to appeal may be a non-speaking order or a speaking one. In either case it does not attract the doctrine of merger. An order refusing special leave to appeal does not stand substituted in place of the order under challenge. All that it means is that the Court was not inclined to exercise its discretion so as to allow the appeal being filed.

(v) If the order refusing leave to appeal is a speaking order, i.e. gives reasons for refusing the grant of leave, then the order has two implications. Firstly, the statement of law contained in the order is a declaration of law by the Supreme Court within the meaning of Article 141 of the Constitution. Secondly, other than the declaration of law, whatever is stated in the order are the findings recorded by the Supreme Court which would bind the parties thereto and also the Court, tribunal or authority in any proceedings subsequent thereto by way of judicial discipline, the Supreme Court being the Apex Court of the country. But, this does not amount to saying that the order of the Court, tribunal or authority below has stood merged in the order of the Supreme Court rejecting special leave petition or that the order of the Supreme Court is the only order binding as res judicata in subsequent proceedings between the parties.

(vi) Once leave to appeal has been granted and appellate jurisdiction of Supreme Court has been invoked the order passed in appeal would attract the doctrine of merger; the order may be of reversal, modification or merely affirmation.

(vii) On an appeal having been preferred or a petition seeking leave to appeal having been converted into an appeal before Supreme Court the jurisdiction of High Court to entertain a review petition is lost thereafter as provided by sub-rule (1) of Rule (1) of Order 47 of the C.P.C.

44. Having thus made the law clear, the case at hand poses no problem for solution. The earlier order of the High Court was sought to be subjected to exercise of appellate jurisdiction of Supreme Court by the State of Kerala wherein it did not succeed. The prayer contained in the petition seeking leave to appeal to this Court was found devoid of any merits and hence dismissed. The order is a non-speaking and unreasoned order. All that can be spelled out is that the Court was not convinced of the need for exercising its appellate jurisdiction. The order of the High Court dated 17-12-1982 did not merge in the order dated 18-7-1983 passed by this Court. So it is available to be reviewed by the High Court. Moreover such a right of review is now statutorily conferred on the High Court by sub-section (2) of Section 8C of the Kerala Act. Legislature has taken care to confer the jurisdiction to review on the High Court as to such appellate orders also against which though an appeal was carried to the Supreme Court, the same was not admitted by it. An appeal would be said to have been admitted by the Supreme Court if leave to appeal was granted. The costitutional validity of sub-section (2) of Section 8C has not been challenged. Though, Shri T.L.V. Iyer, the learned senior counsel for the appellant made a feeble attempt at raising such a plea at the time of hearing but unsuccessfully, as such a plea has not so far been raised before the High Court also not in the petition filed before this Court.

45. No fault can be found with the approach of the High Court. The appeal is dismissed.

No order as to the costs.

Doctrine of Impossibility

Supreme Court in the case of Indore Development Authority Vs. Shailendra (through legal representative) & Ors. reported in (2018) 3 SCC 412.
155. In several cases it is often seen that the landowners are not ready to accept the compensation even though they have been offered the same; they have either refused to accept or have filed writ applications questioning the land acquisitions. Further, it is also observed, that repeatedly, successive writ applications have also been filed by the
persons who have purchased the property after issuance of notification under Section 4 and, in some instances, even after passing of the award, possession taken and when the land has absolutely vested in the State Government, that such persons are calling into question the land acquisition. We have come across several cases when the challenges to acquisition have been negatived right up to this Court but, undeterred by the
same, fresh round of litigation is, thereafter, started again, with the cause again being agitated either by the same persons or by some other such purchasers. It has come to our
notice that now, after the coming into force of the The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013, unsavoury attempts are being made to grossly misuse the process of law by moving such petitions, and asserting therein that though they themselves might not have accepted the compensation, and have refused to accept the same, but, since it has “not been paid to them”, by making deposit in court, or they have remained in the actual possession of the land, though panchnama of taking possession might have
been drawn, as such, land acquisition has lapsed. The aforementioned assertions are being made; notwithstanding even earlier judicial finding that possession had been taken by drawing panchnama, etc. If Section 24 is interpreted in the method and manner so as to reopen all the cases, notwithstanding the fact that the landowners, or as the case may be their successors-in-interest are themselves responsible for not accepting or illegally refusing to accept the compensation, or that they have, in an illegal manner, re- entered into possession of land, then it becomes, and it has, in fact, become, virtually impossible for the State Governments to save and carry into effect the much-needed acquisition of the land, at the cost of public interest, leaving it with no viable legal defence with which to save the acquisition in such proceedings made decades before.

Symbolum Nicaenum: Nicene Creed Text

Symbolum Nicaenum

  1. Credo in unum Deum, Patrem omnipotentem, factorem caeli et terrae,visibilium omnium et invisibilium.
  2. Et in unum Dominum Iesum Christum, Filium Dei unigenitum, et ex Patre natum ante omnia saecula.
  3. Deum de Deo, Lumen de Lumine, Deum verum de Deo vero, genitum non factum, consubstantialem Patri; per quem omnia facta sunt.
  4. Qui propter nos homines et propter nostram salutem descendit de caelis.
  5. Et incarnatus est de Spiritu Sancto ex Maria Virgine, et homo factus est.
  6. Crucifixus etiam pro nobis sub Pontio Pilato, passus et sepultus est, et resurrexit tertia die, secundum Scripturas, et ascendit in caelum, sedet ad dexteram Patris.
  7. Et iterum venturus est cum gloria, iudicare vivos et mortuos, cuius regni non erit finis.
  8. Et in Spiritum Sanctum, Dominum et vivificantem, qui ex Patre Filioque procedit.
  9. Qui cum Patre et Filio simul adoratur et conglorificatur: qui locutus est per prophetas.
  10. Et unam, sanctam, catholicam et apostolicam Ecclesiam.
  11. Confiteor unum baptisma in remissionem peccatorum.
  12. Et expecto resurrectionem mortuorum, et vitam venturi saeculi.

TRANSLATION

  1. I believe in one God, the Father Almighty, maker of heaven and earth, visible and invisible.
  2. And in one Lord Jesus Christ, the only begotten of the Father before all ages.
  3. , God from God, Light from Light, true God from true God, begotten, not made, being of one substance with the Father; by whom all things were made.
  4. For us men and for our salvation he came down from.
  5. He was born of the Virgin Mary, and was made man.
  6. He suffered under Pontius Pilate, died and was buried, and rose again the third day according to the Scriptures, and ascended into heaven and is seated at the right hand.
  7. He will come again in glory to judge the living and the dead, and his kingdom will have no end.
  8. The Spirit, the Lord and giver of life, who proceeds from the Father.
  9. With the Father and the Son and glorified, who spoke through.
  10. In one, holy, catholic and apostolic church.
  11. We acknowledge the forgiveness of sins.
  12. The resurrection of the body and the life everlasting.

DOCTRINE OF WAIVER

In order to constitute waiver, there must be voluntary and intentional relinquishment of a right. The essence of a waiver is an estoppel and where there is no estoppel, there is no waiver. Estoppel and waiver are questions of conduct and must necessarily be determined on the facts of each case

In Manak Lal (Supra), Supreme court Court held that alleged bias of a Judge/official/Tribunal does not render the proceedings invalid if it is shown that the objection in that regard and particularly against the presence of the said official in question, had not been taken by the party even though the party knew about the circumstances giving rise to the allegations about the alleged bias and was aware of its right to challenge the presence of such official. The Court further observed that waiver cannot always and in every case be inferred merely from the failure of the party to take the objection. ‘Waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection in question.

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Doctrine of Judicial Bias

I. JUDICIAL BIAS

There may be a case where allegations may be made against a Judge of having bias/prejudice at any stage of the proceedings or after the proceedings are over. There may be some substance in it or it may be made for ulterior purpose or in a pending case to avoid the Bench if a party apprehends that judgment may be delivered against him. Suspicion or bias disables an official from acting as an adjudicator. Further, if such allegation is made without any substance, it would be disastrous to the system as a whole, for the reason, that it casts doubt upon a Judge who has no personal interest in the outcome of the controversy.

In respect of judicial bias, the statement made by Frank J. of the United States is worth quoting:

If, however, ‘bias’ and ‘partiality’ be defined to mean the total absence of preconceptions in the mind of the Judge, then no one has ever had a fair trial and no one will. The human mind, even at infancy, is no blank piece of paper. We are born with predispositions ”. Much harm is done by the myth that, merely by”. taking the oath of office as a judge, a man ceases to be human and strips himself of all predilections, becomes a passionless thinking machine.

(In re: Linahan 138 F. 2nd 650 (1943))

(See also: State of West Bengal and Ors. v. Shivananda Pathak and Ors., AIR 1998 SC 2050).

To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of the District of Columbia v. Franklin S. Pollak 343 US 451 (1952) 466: The Judicial process demands that a judge moves within the framework of relevant legal rules and the covenanted modes of thought for ascertaining them. He must think dispassionately and submerge private feeling on every aspect of a case. There is a good deal of shallow talk that the judicial robe does not change the man within it. It does. The fact is that, on the whole, judges do lay aside private views in discharging their judicial functions. This is achieved through training, professional habits, self-discipline and that fortunate alchemy by which men are loyal to the obligation with which they are entrusted.

 In Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd. and Ors., (1994) 6 SCC 19, this Court observed that there may be some consternation and apprehension in the mind of a party and undoubtedly, he has a right to have fair trial, as guaranteed by the Constitution. The apprehension of bias must be reasonable, i.e. which a reasonable person can entertain. Even in that case, he has no right to ask for a change of Bench, for the reason that such an apprehension may be inadequate and he cannot be permitted to have the Bench of his choice. The Court held as under:

Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as ‘sua causa’, whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one.

 The principle in these cases is derived from the legal maxim nemo debet esse judex in causa propria sua. It applies only when the interest attributed is such as to render the case his own cause. This principle is required to be observed by all judicial and quasi-judicial authorities as non-observance thereof, is treated as a violation of the principles of natural justice. (Vide: Rameshwar Bhartia v. The State of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State of Bihar and Anr., AIR 1960 SC 468; Meenglas Tea Estate v. The Workmen, AIR 1963 SC 1719; and The Secretary to the Government, Transport Department, Madras v. Munuswamy Mudaliar and Ors., AIR 1988 SC 2232).

The failure to adhere to this principle creates an apprehension of bias on the part of the Judge. The question is not whether the Judge is actually biased or, in fact, has really not decided the matter impartially, but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. (Vide: A.U. Kureshi v. High Court of Gujarat and Anr., (2009) 11 SCC 84; and Mohd. Yunus Khan v. State of U.P. and Ors., (2010) 10 SCC 539).

 In Manak Lal, Advocate v. Dr. Prem Chand Singhvi and Ors., AIR 1957 SC 425, this Court while dealing with the issue of bias held as under:

Actual proof of prejudice in such cases may make the Appellant’s case stronger but such proof is not necessary’. What is relevant is the reasonableness of the apprehension in that regard in the mind of the Appellant.

 The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether the adjudicator was likely to be disposed to decide the matter only in a particular way. Public policy requires that there should be no doubt about the purity of the adjudication process/administration of justice. The Court has to proceed observing the minimal requirements of natural justice, i.e., the Judge has to act fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality, is a nullity and the trial ‘coram non judice’. Therefore, the consequential order, if any, is liable to be quashed. (Vide: Vassiliades v. Vassiliades AIR 1945 PC 38; S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701; and Ranjit Thakur v. Union of India and Ors., AIR 1987 SC 2386).

In Rupa Ashok Hurra v. Ashok Hurra and Anr., (2002) 4 SCC 388, this Court observed that public confidence in the judiciary is said to be the basic criterion of judging the justice delivery system. If any act or action, even if it is a passive one, erodes or is even likely to erode the ethics of judiciary, the matter needs a further look. In the event, there is any affectation of such an administration of justice either by way of infraction of natural justice or an order being passed wholly without jurisdiction or affectation of public confidence as regards the doctrine of integrity in the justice delivery system, technicality ought not to outweigh the course of justice ‘ the same being the true effect of the doctrine of ex debito justitiae. It is enough if there is a ground of an appearance of bias.

While deciding the said case, this Court placed reliance upon the judgment of the House of Lords in Ex Parte Pinochet Ugarte (No. 2) 1999 All ER 577, in which the House of Lords on 25.11.1998, restored warrant of arrest of Senator Pinochet who was the Head of the State of Chile and was to stand trial in Spain for some alleged offences. It came to be known later that one of the Law Lords (Lord Hoffmann), who heard the case, had links with Amnesty International (AI) which had become a party to the case. This was not disclosed by him at the time of the hearing of the case by the House. Pinochet Ugarte, on coming to know of that fact, sought reconsideration of the said judgment of the House of Lords on the ground of appearance of bias and not actual bias. On the principle of disqualification of a Judge to hear a matter on the ground of appearance of bias, it was pointed out:

An appeal to the House of Lords will only be reopened where a party though no fault of its own, has been subjected to an unfair procedure. A decision of the House of Lords will not be varied or rescinded merely because it is subsequently thought to be wrong.

 In Locabail (UK) Ltd. v. Bayfield Properties Ltd. and Anr. (2000) 1 All ER 65, the House of Lords considered the issue of disqualification of a Judge on the ground of bias and held that in applying the real danger or possibility of bias test, it is often appropriate to inquire whether the Judge knew of the matter in question. To that end, a reviewing court may receive a written statement from the Judge. A Judge must recuse himself from a case before any objection is made or if the circumstances give rise to automatic disqualification or he feels personally embarrassed in hearing the case. If, in any other case, the Judge becomes aware of any matter which can arguably be said to give rise to a real danger of bias, it is generally desirable that disclosure should be made to the parties in advance of the hearing. Where objection is then made, it will be as wrong for the Judge to yield to a tenuous or frivolous objection as it will be to ignore an objection of substance. However, if there is real ground for doubt, that doubt must be resolved in favour of recusal. Where, following appropriate disclosure by the Judge, a party raises no objection to the Judge hearing or continuing to hear a case, that party cannot subsequently complain that the matter disclosed gives rise to a real danger of bias.

 In Justice P.D. Dinakaran v. Hon’ble Judges Inquiry Committee (2011) 8 SCC 380, this Court has held that in India the courts have held that, to disqualify a person as a Judge, the test of real likelihood of bias, i.e., real danger is to be applied, considering whether a fair minded and informed person, apprised of all the facts, would have a serious apprehension of bias. In other words, the courts give effect to the maxim that ‘justice must not only be done but be seen to be done’, by examining not actual bias but real possibility of bias based on facts and materials.

The Court further held:

The first requirement of natural justice is that the Judge should be impartial and neutral and must be free from bias. He is supposed to be indifferent to the parties to the controversy. He cannot act as Judge of a cause in which he himself has some interest either pecuniary or otherwise as it affords the strongest proof against neutrality. He must be in a position to act judicially and to decide the matter objectively. A Judge must be of sterner stuff. His mental equipoise must always remain firm and undetected. He should not allow his personal prejudice to go into the decision- making. The object is not merely that the scales be held even; it is also that they may not appear to be inclined. If the Judge is subject to bias in favour of or against either party to the dispute or is in a position that a bias can be assumed, he is disqualified to act as a Judge, and the proceedings will be vitiated. This rule applies to the judicial and administrative authorities required to act judicially or quasi-judicially.’

 Thus, it is evident that the allegations of judicial bias are required to be scrutinised taking into consideration the factual matrix of the case in hand. The court must bear in mind that a mere ground of appearance of bias and not actual bias is enough to vitiate the judgment/order. Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required. In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. However, once such an apprehension exists, the trial/judgment/order etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial ‘coram non-judice.

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Shehammal Vs Hasan Khani Rawther and Others [ALL SC 2011 AUGUST]

Doctrine of spes successionis-

c

DATE :- Decided On: 02-08-2011

JT 2011 (8) SC 533 : (2011) 8 SCALE 186

(SUPREME COURT OF INDIA)

Shehammal Appellant
Versus
Hasan Khani Rawther and Others Respondent

(Before : Altamas Kabir, Cyriac Joseph and Surinder Singh Nijjar, JJ.)

Special Leave Petition (C) Nos. 7421-7422 and 14303-14304 of 2008 : Decided On: 02-08-2011

Transfer of Property Act, 1882—Section 6—Evidence Act, 1872—Section 115—Spes Successionis (Relinquishment of share in property)—Chance of Mohammedan heir-apparent succeeding to an estate cannot be subject of a valid transfer or release—Ordinarily, there cannot be transfer of spes successionis but same can be avoided either by execution of family settlement or by accepting consideration for a future share—It could then operate as estoppel against expectant heir to claim any share in estate of deceased on account of doctrine of spes successionis—Having accepted consideration for having relinquished a future claim or share in estate of deceased, it would be against public policy if such a claimant be allowed benefit of the doctrine of spes successionis—In such cases, principle of estoppel would be attracted.

Mohammedan Law—Succession—General principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by consent of all heirs—In effect, same also amounts to right of relinquishment of future inheritance which is on one hand forbidden and on other accepted in case of testamentary disposition.

Counsel for the Parties:

V. Giri, Sr. Adv., M.T. George, Binoj C. Augustine, Harshad V. Hameed, K. Rajeev, K.N. Madhusoodhan and T.G. Narayanan Nair, Advs.

JUDGMENT

Altamas Kabir, J—Special Leave Petition (Civil) Nos. 7421-7422 of 2008 filed by one Shehammal and Special Leave Petition (Civil) Nos. 14303-14304 of 2008 filed by one Amina and others, both directed against the final judgment and order dated 18.10.2007 passed by the Kerala High Court in R.F.A. No. 75 of 2004 (B) and R.F.A. No. 491 of 2006, have been taken up together for final disposal. The parties to the aforesaid SL Ps, except for the Respondent No. 6, Hassankhan, are siblings. While the Petitioner in SLP(C) Nos. 7421-7422 of 2008 is the daughter of Late Meeralava Rawther, the Respondent No. 1, Hassan Khani Rawther, and the Respondent Nos. 2 and 5 are the sons and the Respondent Nos. 3 and 4 are the daughters of the said Meeralava Rawther. The Respondent No. 6, Hassankhan, is a purchaser of the shares of the Respondent Nos. 2 and 5, both heirs of Late Meeralava Rawther. The remaining Respondents are the legal heirs of Muhammed Rawther, the second Respondent before the High Court. The Petitioner in SLP(C) Nos. 7421-7422 of 2008 is the Plaintiff in O.S. No. 169 of 1994 and the third Defendant in O.S. No. 171 of 1992, filed by Hassan Khani Rawther, is the Respondent No. 1 in all the four SL Ps.

2. Meeralava Rawther died in 1986, leaving behind him surviving three sons and three daughters, as his legal heirs. At the time of his death he possessed 1.70 acres of land in Survey No. 133/1B of Thodupuzha village, which he had acquired on the basis of a partition effected in the family of deceased Meeralava Rawther in 1953 by virtue of Deed No. 4124 of Thodupuzha, Sub-Registrars Office. Meeralava Rawther and his family members, being Mohammedans, they are entitled to succeed to the estate of the deceased in specific shares as tenants in common. Since Meeralava Rawther had three sons and three daughters, the sons were entitled to a 2/9th share in the estate of the deceased, while the daughters were each entitled to a 1/9th share thereof.

3. It is the specific case of the parties that Meeralava Rawther helped all his children to settle down in life. The youngest son, Hassan Khani Rawther, the Respondent No. 1, was a Government employee and was staying with him even after his marriage, while all the other children moved out from the family house, either at the time of marriage, or soon, thereafter. The case made out by the Respondent No. 1 is that when each of his children left the family house Meeralava Rawther used to get them to execute Deeds of Relinquishment, whereby, on the receipt of some consideration, each of them relinquished their respective claim to the properties belonging to Meeralava Rawther. The Respondent No. 1, Hassan Khani Rawther, was the only one of Meeralava Rawther’s legal heirs who was not required by his father to execute such a deed.

4. Meeralava Rawther died intestate in 1986 leaving 1.70 acres of land as his estate. On 31st March, 1992, the Respondent No. 1, Hassan Khani Rawther filed O.S. No. 171 of 1992 before the Court of Subordinate Judge, Thodupuzha, seeking declaration of title, possession and injunction in respect of the said 1.70 acres of land, basing his claim on an oral gift alleged to have been made in his favour by Meeralava Rawther in 1982.

5. On 6th April, 1992, the Respondent No. 2, Muhammed Rawther, one of the brothers, filed O.S. No. 90 of 1992 before the Court of Munsif, Thodupuzha, praying for injunction against his brother, Hassan Khani Rawther, in respect of the suit property. The said suit was subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S. No. 168 of 1994.

6. On the basis of her claim to a 1/9th share in the estate of Late Meeralava Rawther the Petitioner, Shehammal filed O.S. No. 126 of 1992 on 25th May, 1992, seeking partition of the plaint properties comprising the same 1.70 acres of land in respect of which the other two suits had been filed. The said suit was also subsequently transferred to the Court of Subordinate Judge, Thodupuzha, and was renumbered as O.S. No. 169 of 1994 and was jointly taken up for trial along with O.S. No. 171 of 1992. By a common judgment dated 15.11.1996, the learned Trial Judge dismissed O.S. No. 171 of 1992 filed by the Respondent No. 1, for want of evidence. O.S. No. 169 of 1994 filed by Shehammal was decreed and in view of the findings recorded in O.S. No. 169 of 1994, the trial court dismissed O.S. No. 168 of 1994 filed by Muhammed Rawther, the Respondent No. 2 herein. A subsequent application filed by the Plaintiff in O.S. No. 171 of 1992 for restoration of the said suit and another application for setting aside the decree in O.S. No. 169 of 1994, were dismissed by the trial court.

7. The Respondent No. 1 herein, Hassan Khani Rawther, moved the High Court by way of C.M.A. Nos. 191 of 2000 and 247 of 2000 and the High Court by its judgment dated 17.1.2003 set aside the decree in O.S. Nos. 171 of 1992 and 169 of 1994 and directed the trial court to take back O.S. Nos. 171 of 1992 and 169 of 1994 to file and to dispose of the same on merits. On remand, the learned Subordinate Judge dismissed O.S. No. 171 of 1992, disbelieving the story of oral gift propounded by the Respondent No. 1. The matter was again taken to the High Court against the order of the learned Subordinate Judge. The Respondent No. 1 filed R.F.A. Nos. 75 of 2004 and 491 of 2006 in the Kerala High Court and the same were allowed by the learned Single Judge holding that even if the Plaintiff failed to prove the oral gift in his favour, he could not be non-suited, since he alone was having the rights over the assets of Meeralava Rawther in view of the various Deeds of Relinquishment executed by the other sons and daughters of Meeralava Rawther.

8. Being aggrieved by the judgment of reversal passed by the learned Single Judge of the High Court, the Petitioners herein in the four Special Leave Petitions have questioned the validity of the said judgment.

9. Appearing for the Petitioners in both the SL Ps, Mr. M.T. George, learned Advocate, submitted that the impugned judgment of the High Court was based on an erroneous understanding of the law relating to relinquishment of right in a property by a Mohammedan. It was submitted that the High Court had failed to truly understand the concept of spes successionis which has been referred to in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, which categorically indicates that a Muslim is not entitled in law to relinquish an expected share in a property. Mr. George submitted that the said doctrine was based on the concept that the Mohammedan Law did not contemplate inheritance by way of expectancy during the life time of the owner and that inheritance opened to the legal heirs only after the death of an individual when right to the property of the legal heirs descended in specific shares. Accordingly, all the Deeds of Relinquishment executed by the siblings, except for the Respondent No. 1, were void and were not capable of being acted upon. Accordingly, when succession opened to the legal heirs of Meeralava Rawther on his death, each one of them succeeded to a specified share in his estate.

10. It was also submitted that as a result, the finding of the High Court in R.F.A. No. 491 of 2006 that even if the story of oral gift set up by the Plaintiff was disbelieved, he would still be entitled to succeed to the entire estate of the deceased, on account of the Deeds of Relinquishment executed by the other legal heirs of Meeralava Rawther, was erroneous and was liable to be set aside. Mr. George contended that the High Court wrongly interpreted the decision of this Court in the case of Gulam Abbas v. Haji Kayyum Ali and Ors., AIR 1973 SC 554. In the said decision, this Court held that the applicability of the doctrine of Renunciation of an expectant right depended upon the surrounding circumstances and the conduct of the parties when such a renunciation/relinquishment was made. It was further held that if the expectant heir received consideration for renouncing his expectant share in the property and conducted himself in a manner so as to mislead the owner of the property from disposing of the same during his life time, the expectant heir could be debarred from setting up his right to what he was entitled. Mr. George submitted that the High Court overlooked the fact that this Court had held that mere execution of a document was not sufficient to prevent the legal heirs from claiming their respective shares in the parental property.

11. Mr. George submitted that apart form the above, the High Court allowed itself to be misled into accepting a “family arrangement” when such a contingency did not arise. The transactions involving the separate Deeds of Relinquishment executed by each of the heirs of Meeralava Rawther, constituted an individual act and could not be construed to be a family arrangement. Mr. George submitted that even if the story made out on behalf of the Respondent No. 1, that Meeralava Rawther made each of his children execute Deeds of Relinquishment on their leaving the family house, is accepted, the same cannot by any stretch of imagination be said to be a family arrangement which had been accepted by all the legal heirs of Meeralava Rawther. Thus, misled into accepting a concept of “family arrangement”, the High Court erroneously relied on the decision of the Allahabad High Court in Latafat Hussain v. Bidayat Hussain, AIR 1936 All. 573, Kochunni Kochu v. Kunju Pillai 1956 Trav Co 217, Thayyullathil Kunhikannan v. Thayyullathil Kalliani and Ors., AIR 1990 Ker 226 and Hameed v. Jameela, 2004 (1) KLT 586, where it had been uniformly held that when there is a family arrangement binding on the parties, it would operate as stopple by preventing the parties from resiling from the same or trying to revoke it after having taken advantage of such arrangement. Mr. George submitted that having regard to the doctrine of spes successionis, the concept of stopple could not be applied to Muslims on account of the fact that the law of inheritance applicable to Muslims is derived from the Quran, which specifies specific shares to those entitled to inheritance and the execution of a document is not sufficient to bar such inheritance. Accordingly, renunciation by an expectant heir in the life time of his ancestor is not valid or enforceable against him after the vesting of the inheritance. Mr. George reiterated that the Deeds of Relinquishment between A2 to A6 could not be treated as a “family arrangement” since all the members of the family were not parties to the said Deeds and his position not having altered in any way, the Respondent No. 1 is not entitled to claim exclusion of the other heirs of Late Meeralava Rawther from his estate.

12. In this regard, Mr. George also drew our attention to Section 6 of the Transfer of Property Act, 1882, where the concept of spes successionis has been incorporated. It was pointed out that Clause (a) of Section 6 is in pari materia with the doctrine of spes successionis, as incorporated in paragraph 54 of Mulla’s “Principles of Mahomedan Law” and provides that the chance of a person succeeding to an estate cannot be transferred.

13. In view of his aforesaid submissions, Mr. George submitted that the impugned judgment and decree of the High Court was liable to be set aside and that of the learned Subordinate Judge was liable to be restored.

14. Mr. V. Giri, learned Advocate, who appeared for the Respondent No. 1, urged that in view of the three-Judge Bench decision in Gulam Abbas’s case (supra), it was not open to the Petitioner to claim that the doctrine of Stopple would not be applicable in the facts of this case. Mr. Giri submitted that the view expressed in Gulam Abbas’s case (supra) had earlier been expressed by other High Courts to which reference has been made hereinbefore. He urged that all the Courts had taken a consistent view that having relinquished his right to further inheritance, a legal heir could not claim a share in the property once inheritance opened on the death of the owner of the property.

15. Mr. Giri contended that any decision to the contrary would offend the provisions of Section 23 of the Indian Contract Act, 1872, as being opposed to public policy. Mr. Giri urged that the principles of Mahomedan law in relation to the law as incorporated in the Transfer of Property Act and the Indian Contract Act, had been considered in great detail by the three-Judge Bench in Gulam Abbas’s case (supra). Learned Counsel pointed out that on a conjoint reading of Section 6 of the Transfer of Property Act and paragraph 54 of Mulla’s “Principles of Mahomedan Law” it would be quite evident that what was sought to be protected was the right of a Mohammedan to the chance of future succession to an estate. Learned Counsel submitted that neither of the two provisions takes into consideration a situation where a right of spes successionis is transferred for a consideration. Mr. Giri submitted that in Gulam Abbas’s case (supra) the said question was one of the important questions which fell for consideration, since it had a direct bearing on the question in the light of Section 23 of the Indian Contract Act, 1872. Mr. Giri submitted that the bar to a transfer of a right of spes successionis is not an absolute bar and would be dependent on circumstances such as receipt of consideration or compensation for relinquishment of such expectant right in future. Mr. Giri urged that the Special Leave Petitions were wholly misconceived and were liable to be dismissed.

16. From the submissions made on behalf of the respective parties and the facts of the case, three questions of importance emerge for decision, namely:

(i) Whether in view of the doctrine of spes successionis, as embodied in Section 6 of the Transfer of Property Act, 1882, and in paragraph 54 of Mulla’s “Principles of Mahomedan Law”, a Deed of Relinquishment executed by an expectant heir could operate as stopple to a claim that may be set up by the Executor of such Deed after inheritance opens on the death of the owner of the property?

(ii) Whether on execution of a Deed of Relinquishment after having received remuneration for such future share, the expectant heir could be stopped from claiming a share in the inheritance?

(iii) Can a Mohammedan by means of a Family Settlement relinquish his right of spes successionis when he had still not acquired a right in the property?

17. Chapter VI of Mulla’s “Principles of Mahomedan Law” deals with the general rules of inheritance under Mohammedan law. Paragraph 54 which falls within the said Chapter relates to the concept of transfer of spes successionis which has also been termed as “renunciation of a chance of succession”. The said paragraph provides that the chance of a Mohammedan heir-apparent succeeding to an estate cannot be said to be the subject of a valid transfer or release. The same is included in Section 6 of the Transfer of Property Act and the relevant portion thereof, namely, Clause (a) is extracted below:

6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.

(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

The provisions of Section 6(a) have to be read along with Section 2 of the Act, which provides for repeal of Acts and saving of certain enactments, incidents, rights, liabilities etc. It specifically provides that nothing in Chapter II, in which Section 6 finds place, shall be deemed to affect any rule of Mohammedan Law.

18. Inspite of the aforesaid provisions, both of the general law and the personal law, the Courts have held that the fetters imposed under the aforesaid provisions are capable of being removed in certain situations. Two examples in this regard are –

(i) When an expectant heir willfully does something which has the effect of attracting the provisions of Section 115 of the Evidence Act, is he stopped from claiming the benefit of the doctrine of spes successionis, as provided for under Section 6(a) of the Transfer of Property Act, 1882, and also under the Mohammedan Law as embodied in paragraph 54 of Mulla’s “Principles of Mahomedan Law”?

(ii) When a Mohammedan becomes a party to a family arrangement, does it also entail that he gives up his right of spes successionis.

The answer to the said two propositions is also the answer to the questions formulated hereinbefore in paragraph 16.

19. The Mohammedan Law enjoins in clear and unequivocal terms that a chance of a Mohammedan heir-apparent succeeding to an estate cannot be the subject of a valid transfer or release. Section 6(a) of the Transfer of Property Act was enacted in deference to the customary law and law of inheritance prevailing among Mohammedans.

20. As opposed to the above, are the general principles of stopple as contained in Section 115 of the Evidence Act and the doctrine of relinquishment in respect of a future share in property. Both the said principles contemplated a situation where an expectant heir conducts himself and/or performs certain acts which makes the two aforesaid principles applicable inspite of the clear concept of relinquishment as far as Mohammedan Law is concerned, as incorporated in Section 54 of Mulla’s “Principles of Mahomedan Law”. Great reliance has been placed by both the parties on the decision in Gulam Abbas’s case (supra). While dealing with a similar situation, this Court watered down the concept that the chance of a Mohammedan heir apparent succeeding to an estate cannot be the subject of a valid transfer on lease and held that renunciation of an expectancy in respect of a future share in a property in a case where the concerned party himself chose to depart from the earlier views, was not only possible, but legally valid. Referring to various authorities, including Ameer Ali’s “Mohammedan Law”, this Court observed that “renunciation implies the yielding up of a right already vested”. It was observed in the facts of that case that during the lifetime of the mother, the daughters had no right of inheritance. Citing the decision in the case of Mt. Khannum Jan v. Mt. Jan Bibi (1827) 4 SDA 210 it was held that renunciation implies the yielding up of a right already vested. Accordingly, renunciation during the mother’s lifetime of the daughters’ shares would be null and void on the ground that an inchoate right is not capable of being transferred as such right was yet to crystallise. This Court also held that “under the Muslim Law an expectant heir may, nevertheless, be part of a course of conduct which may create an stopple against claiming the right at a time when the right of inheritance has accrued”. It was observed by the learned Judges that the Contract Act and the Evidence Act would not strictly apply since they did not involve questions arising out of Mohammedan Law. This Court accordingly held that the renunciation of a supposed right, based upon an expectancy, could not, by any test be considered “prohibited”.

21. This Court ultimately held that the binding force of the renunciation of a supposed right, would depend upon the attendant circumstances and the whole course of conduct of which it formed a part. In other words, the principle of an equitable stopple far from being opposed to any principle of Mohammedan Law, is really in complete harmony with it.

22. On the question of family arrangement, this Court observed that though arrangements arrived at in order to avoid future disputes in the family may not technically be a settlement, a broad concept of a family settlement could not be the answer to the doctrine of spes successionis.

23. There is little doubt that ordinarily there cannot be a transfer of spes successionis, but in the exceptions pointed out by this Court in Gulam Abbas’s case (supra), the same can be avoided either by the execution of a family settlement or by accepting consideration for a future share. It could then operate as stopple against the expectant heir to claim any share in the estate of the deceased on account of the doctrine of spes successionis. While dealing with the various decisions on the subject, which all seem to support the view taken by the learned Judges, reference was made to the decision of Chief Justice Suleman of the Allahabad High Court in the case of Latafat Hussain v. Hidayat Hussain, AIR 1936 All 573, where the question of arrangement between the husband and wife in the nature of a family settlement, which was binding on the parties, was held to be correct in view of the fact that a presumption would have to be drawn that if such family arrangement had not been made, the husband could not have executed a deed of Wakf if the wife had not relinquished her claim to inheritance. It is true that in the case of Mt. Khannum Jan (supra), it had been held by this Court that renunciation implied the yielding up of a right already vested or desisting from prosecuting a claim maintainable against another, and such renunciation during the lifetime of the mother of the shares of the daughters was null and void since it entailed the giving up of something which had not yet come into existence.

24. The High Court after considering the aforesaid views of the different jurists and the decision in connection with the doctrine of relinquishment came to a finding that even if the provisions of the doctrine of spes successionis were to apply, by their very conduct the Petitioners were stopped from claiming the benefit of the said doctrine. In this context, we may refer to yet another principle of Mohammedan Law which is contained in the concept of Wills under the Mohammedan Law. Paragraph 118 of Mulla’s “Principles of Mahomedan Law” embodies the concept of the limit of testamentary power by a Mohammedan. It records that a Mohammedan cannot by Will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of one-third cannot take effect unless the heirs consent thereto after the death of the testator. The said principle of testamentary disposition of property has been the subject matter of various decisions rendered by this Court from time to time and it has been consistently stated and reaffirmed that a testamentary disposition by a Mohammedan is binding upon the heirs if the heirs consent to the disposition of the entire property and such consent could either be express or implied. Thus, a Mohammedan may also make a disposition of his entire property if all the heirs signified their consent to the same. In other words, the general principle that a Mohammedan cannot by Will dispose of more than a third of his estate after payment of funeral expenses and debts is capable of being avoided by the consent of all the heirs. In effect, the same also amounts to a right of relinquishment of future inheritance which is on the one hand forbidden and on the other accepted in the case of testamentary disposition. Having accepted the consideration for having relinquished a future claim or share in the estate of the deceased, it would be against public policy if such a claimant be allowed the benefit of the doctrine of spes successionis. In such cases, we have no doubt in our mind that the principle of stopple would be attracted.

25. We are, however, not inclined to accept that the methodology resorted to by Meeralava Rawther can strictly be said to be a family arrangement. A family arrangement would necessarily mean a decision arrived at jointly by the members of a family and not between two individuals belonging to the family. The five deeds of relinquishment executed by the five sons and daughters of Meeralava Rawther constitute individual agreements entered into between Meeralava Rawther and the expectant heirs. However, notwithstanding the above, as we have held hereinbefore, the doctrine of stopple is attracted so as to prevent a person from receiving an advantage for giving up of his/her rights and yet claiming the same right subsequently. In our view, being opposed to public policy, the heir expectant would be stopped under the general law from claiming a share in the property of the deceased, as was held in Gulam Abbas’s case (supra).

26. We are not, therefore, inclined to entertain the Special Leave Petitions and the same are accordingly dismissed, but without any order as to costs.