When injunction should be granted in trade mark infringement and passing off cases:

Granting an injunction (including ex-parte) is a discretionary power of the court.

Section 135(2) of The Trade Mark Act, 1999 says that order of injunction may include ex-parte injunction. Now, if Section 135(2) is read with section 29(3) of The Trade Mark Act, 1999.

Section 29(3) says that the court shall pressure that it is likely to cause confusion on the part of the public provided that the case falls under section 29(2)(c). So, we need to read section 29(2)(c) which says that a registered trade mark is infringed by a person who used in the course of trade, a mark which is identical with the registered trade mark for identical goods. It is clear that when the identical mark is used for identical goods in the course of trade, section 29(3) is invoked. 

Reading of both Section 135(2) and Section 29(3) of the Act increases the chances of obtaining the EX- parte injunction as there is command of legislature for courts to presume that there is likelihood of confusion on the part of the public when the identical mark is used in the course of trade for identical goods by an infringer or by a defendant. 

I would like to refer the landmark judgments of Hon’ble Supreme Court in respect of ‘identical marks’. What Hon’ble Supreme Court held when the mark of the defendant is identical to that of the plaintiff in the case of infringement and passing off action is as under. 

1. Kaviraj Pandit Durga Dutta Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 980 where the two marks are identical, no further questions arise, for then infringement is made out (Para No.20). In an action for infringement, the plaintiff must, no doubt, make out that the use of the defendant’s mark is likely to deceive, but where the similarity between the plaintiff’s and the defendant’s mark is so close either visually, phonetically or otherwise and the Court reaches the conclusion that there is an imitation, no further evidence is required to establish that the plaintiff’s rights are violated.  (Para No.21).

2. In the case of Parle Products (P) Ltd. v. J. P. & Co., Mysore reported in AIR 1972 SC 1359, In paragraph no.8, Hon’ble Supreme Court reiterated principle laid down in paragraph no.21 in case of Kaviraj Pandit Durga Dutta Sharma v. Navaratna Pharmaceutical Laboratories reported in AIR 1965 980.

3. ) Ruston & Hornsby Ltd. v. Zamindara Engineering Co. reported in AIR 1970 SC 1649 – Para No.7.   In an action for infringement where the defendant’s trade mark is identical with the plaintiff’s mark, the Court will not enquire whether the infringement is such as is likely to deceive or cause confusion.

4. Supreme Court in the case of Laxmikant Patel v. Chetanbhai Shah – It is a case of passing off action. Para No.14 – wherein Supreme Court held that “once a case of passing off is made out, the practice is generally to grant a prompt ex-parte injunction followed by appointment of local Commissioner, if necessary.”

To conclude it can be said that, considering the ratio laid down by Hon’ble Supreme Court in the above mentioned cases, and in accordance with the facts of the case, injunction including ex-parte injunction should be granted if it is a just, proper and fit case to grant injunction. 

Chirag Bhatt 

 IP Advocate 

9824025041

 

 

              

Whether an absconder is entitled for anticipatory or regular bail?

  I am told to write an article or to make a blog on the topic, titling, “whether an absconder is entitled for anticipatory or regular bail? “Hence, this article / blog. 

 So first of all, it is required to know that who can be considered as absconder or what is the definition of absconder?  

There is no specific definition given or defined in Cr. PC in respect of the term “absconder”.   

Section 82 of Cr. P C says about the proclamation for the person absconding and section 299 says about record of evidence in absence of accused.  

 As per dictionary meaning –  (a) Abscond means to go away suddenly and secretly in order to escape from somewhere (dictionary – Cambridge.org).  (b) According to merrian-webster.com observed means to deport secretly and hide oneself.  

1) Proclaimed Offender:  

As per section 82(4) of Cr. P.C. if a case falls under the sections of IPC mentioned in section 82(4), the court may declare an accused as a proclaimed offender and not otherwise.  Thus, when a criminal case does not invoke the sections mentioned in section 82(4) of Cr. P.C., the accused of that case cannot be considered as a proclaimed offender.  The judgment in this regard is –   Arunkumar Parihar v/s State (Govt. NCTD) High Court of Delhi Cri. M.C. No.863/2021 date of decision 26/03/2021 para no.2 .   

2) Proclaimed offender is not entitled for anticipatory bail   

The following judgments say that the proclaimed offender is not entitled for anticipatory bail.

• Hon’ble Supreme Court in the case of Lavesh v/s State (nct of Delhi) 2012 (8) SCC 730 in para No.10 has held that “an absconder or the proclaimed offender is not entitled for anticipatory bail and observed that from these materials and information, it is clear that the present appellant was not available for interrogation and investigation and declare as absconder.  Normally, when the accused is absconding and declared as a proclaimed offender, there is no question of granting anticipatory bail.  We reiterate that when a person against whom a warrant has been issued and is absconding or concealing himself in order to avoid execution of warrant and declared as a proclaimed offender in terms of section 82 of The Code is not entitled the relief of anticipatory bail.”  •

 In the case of State of Madhya Pradesh v/s Pradeep Sharma, AIR 2014 SC 171, Hon’ble Supreme Court reiterated the principle laid down in Lavesh case and held that “if any one is declared as an absconder / proclaimed offender in terms of Section 82 of The Code, he is not entitled for anticipatory bail.  The High Court failed to appreciate that it is a settled position of law that where the accused has been declared as an absconder and has not co-operated with the investigation, he should not be granted anticipatory bail.  •

 Jagtar Singh v/s Satendra Kaur @Bhavana Grover 2002 (Cr. L R (SC) 807 para No.2. “…………Normally, when the accused are absconding, there is no question of granting anticipatory or regular bail.”  •

 Relying upon the above mentioned judgments Chattisgarh High Court in the case of Rakesh Khare v/s. State of Chattisgarh rejected the anticipatory bail. • 

The following are the judgments on the same line.

Jayesh G. Ramani v/s State of Gujarat reported at 2004 (3) GLH 270. • 

Dharmapriyadasji (Bapu Swamy) v/s Ajendraprasad Cri. Misc. Application (for cancellation of bail) No.2210 of 2014 Gujarat High Court – para Nos. 6, 7, 11 & 12. • 

 Arun Ghisalal Varma v/s Stateof Gujarat Cri.Misc. Application No.10757 of 2011. • Dilipsingh Bachubha Rana v/s State of Gujarat – Cri. Misc. Application No.18050 of 2012.  

3) Proclaimed offender is entitled for anticipatory bail  

In the case of Mahender Kumar vs. State of Himachal Pradesh, Cr.MP(M) No. 1682 of 2020, decided on 26th October,2020, para-11, reported in 2020 SCC OnLine HP 2119. Hon’ble Himachal Pradesh granted anticipatory bail to absconder by giving reasons and interpreting the judgment of Hon’ble Supreme Court in Lavesh case. I quote the few sentences of para no. 11 here. Para 11.” Section 82 of Cr.P.C. neither creates any riders nor imposes any restrictions in the filing of anticipatory bails by proclaimed offenders. Even in Lavesh’ case, while laying down the on anticipatory bails to absconders, Hon’ble SC structured the pronouncement by the words,” Normally”, ………..(fact of the case is discussed) The case maxim Domus sua curque est tutissimum refugium, aptly describes the plight of the accused which means every man’s house is his safest refuge. Thus, the circumstances cannot be termed as normal for the accused and he makes out a special case for bail. A balance approach would work as an incentive, a catalyst for proclaimed offenders to surrender to the Court of law, speeding up, the process and bringing the guilty to Justice and Justice to the guilty.” 

Chirag Bhatt 

Advocate 

9824025041

Applicability of S.29(4) of the Trademarks Act, 1999

Section 29(4) of the Trademarks Act,1999 (in short the Act) is nectar for the plaintiff in the suit for infringement of a trademark.  The beauty of the provision of S.29(4) is enchanting to the logic and reason. It is an essay in the form of poetry of a few lines. Let me discuss it in details with regard to the applicability of this provision. 

To enjoy the anatomical beauty of the provision of Section 29 (4) of the Act, it is requisite to discuss the provision of Section 28 in nutshell. S. 28 throbs the rights of the registered proprietor by way of  valid registration of a trade mark. The registration of a trademark gives exclusive right to use of that trademark in relation to the goods or services for which the trademark is registered and to obtain relief in case if such trademark is infringed. 

Plain reading of section 28(1) establishes that (1) the registration of a trademark must be valid (2) it gives exclusive rights to the registered proprietor to use the Trademark (3) for goods or services in respect of which it is registered (4) for obtaining relief of infringement as provided in the Act.

It means that if a trademark is not registered for a particular goods or services, there is no infringement in that case as per provision of Section 28 (1) and plaintiff is not entitled to claim relief of infringement unless it is registered for the goods or services and no exclusive right to use of that trademark is claimed.

Section 28 (3) says when there are two registered proprietors of Trademarks, neither of them takes action for infringement of his trademark against each other, however, they can take action against the third party who is not registered proprietor or registered user of the trademark in dispute. 

Section 29 beautifies the action in case of infringement of registered trademarks. It informs that understand which circumstances,  an infringement of  registered trademark can be considered. 

Now coming back to the subject matter of this blog i.e. section 29 (4)(b) of the Act, the moonlight of  this provision is that a registered trademark is infringed if a mark which is used to goods or services which are not similar to those for which the trade mark is registered.

 That means, is  Section 29(4)  contrary to section 28 and rest of the provisions of section 29 of the Act ? The answer is No. It is not contrary to them but Legislature may think that registered proprietor of a trademark ought to be protected even if a mark is used for dissimilar goods or services to those for which the trademark is registered. This is the beauty of the provision of Section 29 of the Act, however, this walk path has certain limitations or condition precedents.

Let me discuss those condition precedents for applicability of section 29 (4) of the Act

1) the trade mark of the plaintiff must be registered. 

2) the trademark of defendant is identical and/or deceptively similar to the registered trademark of the plaintiff.

3) the goods or services of the defendant must be dissimilar to that of plaintiff who is a registered proprietor.

4) the important condition is that the registered trademark of the plaintiff has a reputation in India. 

5) the use of mark, by the defendant without due cause, takes unfair advantage of the registered trademark of the plaintiff.

6) the use of a mark of defendant is detrimental to the distinctive character or repute of the registered trademark.

It is pertinent to note that all the above mentioned criterias have to be satisfied together and not individually by the plaintiff to restrain the use of a mark by the defendant for dissimilar goods or services. Unless these conditions are satisfied by the plaintiff in his case, section 29 (4) is not applicable.

Section 29 (4) & Section 28 (3) of the Act:

If the trademark of the defendant is registered, then can section 29(4) is applicable ? 

The answer is NO. 

Reasons: 

1) one registered proprietor can not file a suit for infringement against another registered proprietor as per Section 28 (3) of the Act.

2) the plaintiff must be registered proprietor of the trade in dispute for applying section 29 (4).

3) the defendant must not be registered proprietor of a mark.

4) if plaintiff is not registered proprietor in and defendant is registered proprietor of a trademark for the goods or services used or provided by the defendant, section 29 (4) is not remotely applicable. 

(5) if plaintiff has failed to prove his USE of the trademark for the goods or services in respect of which the defendant is using the trade mark as a registered proprietor, section 29 (4) is not at all applicable. 

The main object is Trademarks Act is to protect the use of the Trademarks  of a proprietor and the public interest at large. When there is no use of  a mark in trade,  there is no protection. Mere registration of a trademark does not protect the registered proprietor at all. 

Chirag Bhatt

Partner

Y.J.Trivedi & Co.

9824025041

IN THE INTEREST OF JUSTICE

This article is based on hard practical realities being prevailed in the courts of Justice in the interest of Justice. The age of case is longer than that of period of generation in our country due to the ' in the interest of Justice ' system.

Unfortunately there is no provision in the Law to restrain or curtail the custom of adjournment ' in the interest of Justice'. In civil litigation, Litigation is given as a gift to the second or third generation in heritage due to the system.

Whether the interest of Justice is really fulfilled by the term ' in the interest of Justice'  or whose interest is satisfied  for obtaining Justice after the span of two decades or longer than that period. Sometimes the case is older than the period of practice of advocate who handles it and the same scenario is with bench as well. As a lawyer I have observed the pitiable plight of the litigants who come to the Courts with the hope that Justice will be given to them but at the end of the day, month, year or years, they obtain a 'date ' in the interest of Justice but not Justice. The litigants are already sufferer before knocking down the doors of the Court, they become more sufferer after entering into the court. They are mentally, physically, socially and financially ruined in the interest of Justice.

The litigants, sometimes, compel themselves to settle their cases, though their cases are genuine, they think that though their cases are genuine, though they are right, cases are unnecessarily dragged or prolonged more and more years, it is better to settle the cases with the other side, how much he is at the fault is irrespective. Kasab case, expenses behind that case is the best example of" in the  interest of Justice" .

Sometimes, an unborn child is gifted litigation when it is in the womb of its mother, before it comes to this beautiful world. In such a case who is responsible ? the society, people, system, custom of ' in the interest of Justice'. 
The system or custom-  in the interest of Justice , is the mother of Lok Adalat, Arbitration, conciliation and such other settlement mode in the law. If the Justice is made within stipulated time, no such mode of settlement is required.
The accused in criminal case and the defendant in civil case enjoy this system and the genuine complainant or the plaintiff is crushed with no fault of him. For the complainant or plaintiff as the case may be, court is a temple, Justice is 'Aaradhya Dev', but the irony is that that God ( Aaradhya Dev) is always pleased with the accused or defendant by giving 'prasad' i.e. adjournment. In the name of Justice the poor devotee i.e. complainant or the plaintiff is reciting all types of prayers to please that God who is known as Justice but in vein. When the Justice is not pleased within time, his prayer becomes futile and after his death, his legal heirs have to stand in a queue for the same Justice. The question arises in my mind is that whether it is the fruit of karma of that person who had been standing in a queue for justice for two to three decades or it it the fruit of ' in the interest of Justice'.
A society has three main poles. (1) education (2) medical and (3) judicial system. When either of these three poles become cripple, the social balance of the society will not be at its axis and it will be trembling and thereafter tumbling. We have watched and heard from Hindi movies, that Goddess of Justice has tied a black ribbon before her eyes so that nothing wrong can be done and she is not influenced by anyone, however, she is listening the cries of litigants or she is deaf is a question of fact or she may be listening only one voice i.e. voice of adjournment.  in the interest of justice as if a toy,having key which starts playing or reciting something until its capacity, and recites the jingle Bell jingle bell i.e. adjournment .... adjournment...in the name and interest of Justice... adjournment... This Goddess of Justice does not listen the cries of litigants, the voices, pain and agony of the litigants or she listens them provided that they have genuine evidence for their cries, pain and agony.  The generation is changed till the time when the stage of evidence comes in the cases. The poor next generation,due to the lack of complete knowledge of the case, becomes cripple in the court of Justice and most of the time lose the case. In this situation, the advocate of the defendant feels pride and says his client, " see, I have defeated them and won the case". - but after the span of twenty years or more than that, and of course, that victory is not due to the hard work of that lawyer but misfortune of the plaintiff or it is due to the lack of personal knowledge of the next generation which has been gifted litigation in heritage.

Sometimes the advocate passes away, though he is advocate,  he is mortal. The newly appointed advocate knows nothing about the case in detail. It may be due to short time or due to the lack of knowledge of next generation , so again the custom of adjournment is commenced and continued in that case. Is the element of interest of justice not vapoured  or justice not faded away from the case  after certain long period due to ' in the interest of Justice system?
If the case is completed and is kept for order or judgment, the Judge who is competent to adjudicate the case, has not given verdict for few months or sometimes for a year and the dilemma of system is that one fine morning, the litigants come to know that judge is transferred to another place. Again in the interest of Justice , rehearing of the entire case has to be made before new judge and the case is pending in the department until the appointment of new judge.  The cases are in the storage of department of courts for years and years thereafter  one fine morning the case is allotted/ cases are allotted to new judge who tries to be strict saying that, " why the matter is pending since long, I would dismiss it unless it is processed". At that time it seems that  that judge is alien with the system being prevailed in the courts.

Who is responsible for such situation.?.- bar, bench, litigants, police, administrative staff of courts or either of them or all of them or none of them or WE,the people of India ?  The preamble of constitution of India begins with " WE the PEOPLE OF INDIA".
To conclude it can be said that the true reasons for non proceedings of  the case are many but the important reason is that the case is put up in the court of Justice to obtain the justice but 'in the interest of Justice' , justice and interest both ought not to be  vanished from the court of Justice as Court of Justice is considered as temple of justice. People have much faith in judiciary.  As an advocate and officer of the court, it is my moral and professional duty to honour the judiciary first and to maintain the decorum of judiciary system first and that's why it's my humble request to all the legal fraternities NOT to take and not to grant unnecessary adjournment 'in the interest of Justice' otherwise the purpose of the term 'in the interest of Justice' becomes infructuous as the 'Bar & Bench'  is the throbbing heart of our Nation.

Note: The purpose of writing this article is NOT to speak anything wrong or to hurt any person of Bar and Bench directly or indirectly. 

Chirag Bhatt
Advocate
9824025041

Whether a decree is followed by decision taken by Charity Commissioner U/S. 50-A of The Gujarat Public Trust Act ,1950 ?

One fine morning, my very good friend Advocate Pratik Chaudhari discussed with me various provisions of The Gujarat Public Trust Act, 1950 ( herein after referred  as the Act). One interesting point  discussed between us was related to the provisions of section 50-A read with section 72 of the Act. That discussion became the source of inspiration to write this article. Let me discuss it in detail.

The interesting point was that decision taken by the Charity Commissioner under Section 50-A of the Act required a Decree to be drawn. To  elaborate this issue, it is obvious to discuss about the provisions of Section 50, 50-A and 72 of the Act and the definition of Decree provided under section 2(2) of Code of Civil Procedure (in short CPC).

Section 50 embodies suit relating to the public Trusts which says that suit is instituted for the various reliefs mentioned in that section. Such as  order of recovery of the possession of suit property, removal  or appointment of any trustee or manager, vesting any property in a trustee, a direction for taking account or making certain inquiries, declaration as to what proportion of the Trust property or of the interest therein shall be allocated to any particular object of the Trust, a direction authorising the whole or any part of the Trust property to be let, sold, mortgaged or exchanged, the settlement or alterations in a scheme already settled or granting such other relief as the nature of the case may require.

As per the second proviso of Section 50 of the Act, the Charity Commissioner has two options. (1) he may institute a suit or (2) he may make an application to the Court for a variation or alteration in a scheme already settled.

Perusal of Section 50-A of the Act, it transpires that Charity Commissioner has power to frame a scheme for the management or administration of public Trust. Section 50-A is used for the subjects mentioned in sub section 2(A) of Section 50-A such as the number of the trustees, the mode of appointment of trustees which includes appointment of first trustees, vesting the trust property in the trustees so appointed, mode of filing  vacancy of a trustee, the remuneration of a trustee or manager of the Public Trust or a clarification of the objects of the Public Trust.

Section 50-A (4) of the Act is very much important to answer the question mentioned in the title of this Article. 

Section 50-A (4) says that the scheme framed under sub section (1) or (2) or modified u/s (3) shall have effect as a scheme settled or altered, as the case may be, under a decree of a court under section 50 , subject to the decision of the competent court under section 72.

Now the definition of Decree provided in Section 2(2) of CPC speaks about formal expression an adjudication of a Court which conclusively determines the right of the parties with regards to all or any of the matters in controversy in the suit.  It is clear by this definition that Decree is drawn after completion of the suit and not an application.

Section 72  of the Act says to file an application is required to be filed within sixty days before a court to set aside  the decision taken by the  Charity Commissioner and not the suit as mentioned in the definition of Decree.

Considering the above mentioned legal scenerio, my answer of the issue whether a Decree is followed by the  decision of Charity Commissioner under section 50 -A of the Act  is as under:

Section 50 -A (4)  is in connection with section 50  and section 72 of the Act, however, section 72 is only in connection with section 50-A and not with s.50.
Section 72 is applied in respect of the decision taken by Charity Commissioner under Section 50-A and Section 50-A is read with Section 50 for the purpose of a Decree with regards to get the scheme effected. Section 72 says that an aggrieved person may file an application to the Court to set aside the decision taken by Charity Commissioner u/s. 50-A. The scheme framed by Charity Commissioner shall be effective only under a decree of a Court u/s.50 of the Act.
Section 72(4) plays an important role as it says that an appeal shall lie to the High Court against the decision of the Court under sub section (2) as if such decision was a decree from which an appeal ordinary lies. Now the question is why the word 'as if' is mentioned in section 72 (4) by the Legislature or what should be the intention of them to place the word 'as if' in that section. The reasons are as under.
1) S. 50-A does not speak about suit proceedings.
2) It does not speak about Court proceedings.
3) It speaks about power of Charity Commissioner qua framing the schemes.
4) Section 50-A (4) says that a scheme framed  or modified under S.50 (1),(2) and (3) respectively shall have effect as a scheme under a Decree of a court u/s. 50.
5) S.72 says about application and not for suit. 
Hence the term 'as if' is mentioned by the Legislature.

To conclude , I am of the  considered opinion that  a decision of framing the scheme taken by Charity Commissioner is followed by a Decree in accordance with the  reading of Section 50-A (4) with Section 50 and Section 72.  Further, as per Section 76 of the Act, the provisions of Code of Civil Procedure shall apply to all proceedings before the Court under the Trust Act and appeal is against the decision of the Court under section 72(2), however,  the legal  dilemma is that if the decree is not executed for a certain period of time, what would be the legal and factual situation is a question and the purpose of section 50-A becomes vitiated.

Chirag Bhatt
Advocate
9824025041

ADVERSE POSSESSION

Involving in a case of adverse possession inspires me to write this article.

Latin maxim 'Nullum tempus occurrit regi ( no time runs against the King) is the root of the doctrine of adverse possession.  Adverse possession means a possession of an immovable property without having title of such property. A person, not having legal title of ownership of an immovable property can claim for immovable property.

1) Historical Background:

It is interesting to know the fact from where the Doctrine of Adverse Possession is begun to apply. For this purpose, let our vision be taken to the historical events. For this, I rely upon the certain paragraphs of the judgements of Hon'ble Supreme Court in a case of State of Haryana vs. Mukeshkumar and others, in petition for Special Leave to Appeal (Civil) no. 28034 of 2011 wherein Hon'ble Supreme Court has enlightened the historical back ground of doctrine of adverse possession. I would like to quote the relevant paragraphs of it.

paragraph no. 30:  '' The concept of adverse possession was born in England around 1275 and was initially created to allow a person to claim right of "seisin" from his ancestry. Many felt that the original law that relied on "seisin" was difficult to establish, and around 1623 a statue of limitations was put into place that allowed for a person in possession of property for twenty years or more to acquire title to that property. This early English doctrine was designed to prevent legal disputes over property rights that were time consuming and costly. The doctrine was also created to prevent the waste of land by forcing owners to monitor their property or suffer the consequence of losing title"
seisin means possession, more particularly of a land.

paragraph no. 31: "  The concept of adverse possession was subsequently adopted in the United States. The doctrine was especially important in early American periods to cure the growing number of title disputes. The American version mirrored the English law, which is illustrated by most States adopting a twenty-year statue of limitations for adverse possession claims. As America has developed to the present date, property rights have become increasingly more important and land has become limited. As a result, the time period to acquire land by adverse possession has been reduced in some States to as little as five years, while in others, it has remained as long as forty years. The United States has also changed the traditional doctrine by preventing the use of adverse possession against property held by a governmental entity."

paragraph no. 32: "During the colonial period, prior to the enactment of the Bill of Rights, property was frequently taken by states from private land owners without compensation. Initially, undeveloped tracts of land were the most common type of property acquired by the government, as they were sought for the installation of public road. Under the colonial system it was thought that benefits from the road would, in a newly opened country, always exceed the value of unimproved land."

2) Example of Adverse possession:

'A', having title of an immovable property, is an owner of that property. Accepting the fact that 'A' is the owner of the property, 'B' has possessed that property of 'A' long, openly, peacefully, continuously and uninterruptedly for the period of at least more than 12 years  and this fact is well within the knowledge of 'A' but 'A' has not taken any action for getting the possession back from 'B'. 'B' is entitled to claim for this property on the basis of the doctrine of adverse possession.

3) Ingredients of Adverse Possession:

It is very essential to know what are the ingredients of adverse possession. How one can justify that it is the case of adverse possession or on what grounds the adverse possession are justified or which ingredients are proved for establishing the case of  adverse possession.  The following ingredients of adverse possession are required to be satisfied by a person who institutes a suit for adverse possession.
a) The possession of the suit property  with the plaintiff must be established.
b) Animus possidendi ( intention to possess) adverse to the knowledge of the real owner.
c) possession is adverse or hostile to that of the true owner.
d) wrongful dispossession of rightful owner
e) plaintiff has to establish by evidence that permissive possession over the property becomes adverse to the interest of the real owner.
f) plaintiff has to establish perfect title of a suit property by way of adverse possession.
g) nec vi, nec clam, nec precario means an adverse possession is proved only when possession is peaceful, open, continuous and hostile.

The essentials of adverse possession were succinctly summed-up by Hon'ble Supreme Court in Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779  as  “In the eye of the law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won't affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. (See S.M. Karim v. Bibi Sakina (AIR 1964 SC 1254), Parsinni v. Sukhi (1993) 4 SCC 375 and D.N. Venkatarayappa v. State of Karnataka (1997) 7 SCC 567). Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of   (2004) 10 SCC 779 Civil Appeal No. 2238 of 2016 Page 19 of 25 Page 20 nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession. [Mahesh Chand Sharma(Dr.) v. Raj Kumari Sharma (1996) 8 SCC128)."

4) Mere possession of property is not amount to adverse possession:

In a case between Ram Nagina Rai & Anr. Vs. Deo Kumar Rai(Deceased) by Lrs. (civil appeal no. 7266 of 2013 ), Hon'ble Supreme Court in paragraph no. 15 of the judgement held, " there is no absolute requirement to deem the mere possession of the suit property by the defendants to amount to adverse possession over the suit property. This would be in clear violation of the basic rights of the actual owner of the property. There is nothing on record to show that the defendants' permissive possession over the property became adverse to the interest of the real owner, at any point of time...."

5) Plaintiff has to admit the ownership of the true owner:

As per the judgement of Hon'ble Supreme Court in a case between Dagadabai (Dead) by L.Rs. vs. Abbas@ Gulab Rustum (Civil Appeal No. 83 of 2008) , it was held in paragraph no. 21, "it is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divert the true ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit that ownership of the true owner and the true owner has to be made a party to the suit to enable the Court to decide the plea of averse possession between the two rival claimants."

 6) When Owner's right to property is extinguished:

If the owner of the property is not vigilant for his legal rights. Law does not protect to those who sleep  over their rights for  many years. Law helps only to those who are vigilant for their rights. Section 27 of the Limitation Act is the negative safeguard for the protection of rights of an owner of the property. It indicates the red light to the owner of the property to control the rights of the person (except owner of the property) who is in possession of such property.
Section 27 of the Limitation Act,1963

Generally remedy is closed due to the bar of limitation and nor rights, however, section 27 of limitation Act extinguishes the right of property as this section is exception to the general rule.

Section 27 restrains the owner of the property to vacant the possession from the person who has been possessed such property peacefully, uninterruptedly and extensively for a period of more than 12 years. This section ends the title of the property of a person who does not care of his ownership rights qua the property. 

Para 57 of the latest judgement of Hon'ble Supreme Court in a case of Eureka Builders vs. Gulabchand reported in (2018)4 SCC (Civ)9 says that "Section 27 of the Limitation |Act deals with extinguishment of right to property. It says that the determination of the period prescribed in the Act for any person to institute a suit for possession of any property, his right to such property shall be extinguished. Articles 64 & 65 of the Schedule provide 12 years' period for filing a suit to claim possession of any immovable property. The period of 12 years prescribed in these two articles is required to be counted from ''the date of dispossession" (Article 64) and "When the possession of the defendant becomes adverse to the plaintiff" (Article 65)."

7) Time from which period begins to run  for adverse possession:

As per Article 65 of the Limitation Act, the time commences for adverse possession is from the day when the possession of the defendant becomes adverse to the plaintiff. The period of limitation is of Twelve years. In the case of Hanamgowda vs. Irgowda  reported in [AIR 1925 Bom. 9], it has been held that in cases of adverse possession, the starting point of limitation does not commence from the date when the right of ownership arises to the plaintiff but it commences from the date when the defendants' possession became adverse. (Vasantiben Prahladji Nayak v. Somnath
Muljibhai Nayak (2004) 3 SCC 376). paragarph no. 77).

8) No adverse possession among the members of one family:

It is well settled principle that there can not be any adverse possession among the members of one family. A case between Nanjegowda alias Gowda(Dead) by Legal Representatives and another vs. Ramegowda reported in (2018) 1 SCC 574/ (2018) 1 SCC (Civ)417, wherein, the defendants(appellants) and the plaintiff (respondent) are the members of one family. They are first cousins from their father's side. The dispute is in respect of ancestral properties including land owned by the family. The Suit was filed by the plaintiff inter alia seeking relief for declaring the plaintiff as an owner of the suit land and for permanent injunction restraining the defendants(appellants) from interfering in his possession over the suit land on the basis of oral partition. The defendants(appellants) took a plea of adverse possession over the suit land and claimed that they became owner of the suit land by way of adverse possession due to their long, peaceful and continuous possession. The defendants admitted that the family relationship with the plaintiff along with the plea of the plaintiff regarding oral partition. It was held in paragraph no. 19 the judgement that ........"the plea of adverse possession was wholly misconceived and untenable. It is settled law that there can be no adverse possession among the members of one family for want of any animus among therm over the land belonging to their family." 




Chirag Bhatt
Advocate
9824025041

CY- PRES- A JUDICIAL SAFEGUARD OF THE PUBLIC TRUST

This article is based on the provisions of Section 55 of The Gujarat Public Trusts Act, 1950 ( herein after referred as the Act). I make an attempt to elaborate and interpret the said section in this article as under.

'CY-PRES' is  French legal term which means 'nearer or closer' or 'near enough is good enough'. The 'Doctrine of Cy-pres' is the root of the provisions of section 55 of the Act. It is essential to know that meaning of this doctrine as it is mother of invocation of section 55. The doctrine is used when something feeble  is required to be altered, instead of getting it dead.  This term has been used  in the context of Charitable Trust since ages. The English Courts used to apply this term for the Charitable Trust when the purpose of the Trust was about to be no longer survive or the intention of the settler or author of the said Trust was frustrated. 

The Indian laws are highly influenced by the English laws due to the political scenario being prevailed before independence of India. The enactment for Public Trust is no longer an exception from them. Thus, Cy-Pres is one of the sections of the Act. Now let me explain  the provisions of section 55 of the Act  about the importance of this section in detail.

 The two requisites are considered for the applicability of Section 55 of the Act. (1) an application is made in this regard to the Charity Commissioner  or (2) the Charity Commissioner is of the opinion that 

(a) the original object for the creation of the public trust is failed, 

(b) the income or any surplus balance of the public trust has not been used or is not likely to be utilized,

(c)(1)  it is not expedient, practicable, desirable, necessary or proper to carry out the original  intention, whether partly or fully, of the author of the public trust in the interest of public or(2)  the object of the public trust was created and that the property or the income of the public trust or any portion thereof should be applied to any other charitable or religious object, ( public trust for religious purpose is not considered as public trust for the application of the provisions of section 55 of the Act.)

The exclusion of public trust for religious purpose is amended and inserted in this provision after the decision of Hon'ble Supreme Court in the case of Ratilal Panachand Gandhi vs. State of Bombay reported in AIR 1954 SC 388 wherein Hon'ble Supreme Court held that, "A more serious objection has been taken by the learned counsel for the appellants to the provisions of sections 55 and 56 of the impugned Act and it appears to us that the objections are to a great extent well founded. These sections purport to lay down how the doctrine of cy pres is to be applied in regard to the administration of public trust of a religious or charitable character. The doctrine of cy pres as developed by the Equity Courts in England, has been adopted by out Indian courts since a long -time past. The provisions of sections 55 and 56, however, have extended the doctrine much beyond its recognised limits and have further ,introduced certain principles which run counter to well established rules of law regarding the administration of charitable trusts. When the particular purpose for which a charitable trust is created fails or by reason of certain circumstances the trust cannot be carried into effect either in whole or in part, or where there is a surplus left after exhausting the purposes specified by the settlor, the court would not, when there is a general charitable intention expressed by the settlor, allow the trust to fail but would execute it cy pres, that is to say, in some way as nearly as possible to that which the author of the trust intended. In such cases, it cannot be disputed that the court can frame a scheme and give suitable directions regarding the objects upon which the trust money can be spent. It is we 11 established, however, that where the donors intention can be given effect to, the court has no authority to sanction any deviation from the intentions expressed by the settlor on the grounds of expediency and the court cannot exercise the power of applying the trust property or its income to other purposes simply because it considers them to be more expedient or more beneficial than what the settlor had directed(1). But this is exactly what has been done by the provision of section 55(c) read with section 56 of the Act. These provisions allow a diversion of property belonging to a public trust or the income thereof to objects other than those intended by the donors if the Charity Commissioner is of opinion, and the court confirms its opinion and decides, that carrying out wholly or partially the original intentions of the author of the trust or the object for which the trust was created is not wholly or partially expedient, practicable, desirable or necessary; and that the property or income of the public trust or any portion thereof should be applied to any other charitable or religious object. Whether a provision like this is reasonable or not is not pertinent to our enquiry and we may assume that the legislature, which is competent to legislate on the subject of charitable and religious trust, is at liberty to make any provision which may not be in consonance with the existing law; but the question before us is, whether such provision invades any fundamental right guaranteed by our Constitution, and we have no hesitation in holding that it does so in the case of religious trusts. A religious sect or denomination has the undoubted right guaranteed by the Constitution to manage its own affairs in matters of religion and this includes the right to spend the trust property or its income for the religious purposes and objects indicated by the founder of the trust or established by usage obtaining in a particular institution. To divert the trust property or funds for purposes which the Charity Commissioner or the court considers expedient or proper, although the original objects of the founder can still be carried out, is to our minds an unwarrantable encroachment on the freedom of religious institutions in regard to the management of their religious affairs. It is perfectly true, as has been stated (1) Vide Halsbury, 2nd Edn., VOl. IV, P. 228, by the learned counsel for the appellants, that it is an established maxim of the Jain religion that Divadraya or religious property cannot be diverted to purposes other than those which are considered sacred in the Jain scriptures. But apart from the tenets of the Jain religion, we consider it to be a violation of the freedom of religion and of the right which a religious denomination has under our Constitution to manage its own affairs in matters of religion, to allow any secular authority- to divert the trust money for purposes other than those for which the trust was created. The State can step in only when the trust fails or is incapable of being carried out either in whole or in part. We hold, therefore, that clause (3) of section 55, which contains the offending provision and the corresponding provision relating to the powers of the court occurring in the latter part of section 56(1), must be, held to be void."

Hon'ble Supreme Court considered the religious purpose of the public trust qua cy-pres is ultra vires in view of the provisions of Article 26 of the Constitution of India and therefore, the words a public trust ''other than a trust for a religious purpose'' is amended and inserted in the provisions of 55(c) of the Act.

(d) in any of the cases mentioned in sections 10 to 13 or in regard to the appropriation of the dharmada sums held in trust under section 54 the directions of the court are necessary, The Charity Commissioner shall require  the trustees for application under Section 55 for the directions of the competent Court. As provided in Rule 31 of The Bombay Public Trusts (Gujarat) Rules, 1961, the trustees have to apply to the Court having jurisdiction for directions within three months from the date of the receipt of the Court Commissioner, provided that the Charity Commissioner may allow a longer time or grant extension of time for the purpose as per his discretion. 

It is noted that the provisions of sections 10 to 13 of the Act are pertaining to the grounds for not a public trust to be void.  Section 10 says that a public trust is not void on the ground of uncertainty of persons or for whose benefit, it is created. Section 11 speaks that a public trust is not void on the ground of non-charitable or non-religious purpose. Section 12 informs that a public trust is not void if no obligation is annexed with disposition or statement requiring a person in whose favour it is made to hold it for the benefit of a religious or charitable object. Section 13 provides that a public trust is not void on failure of specific object or society ceasing to exist. 

Section 55(2) says that if a trust does not make any application in respect of the purpose mentioned in section 55(1) of the Act, or there is no trustee or  the Charity Commissioner himself is s trustee, he has to apply to the Court.

Limitation of Cy-Pres doctrine : 

It is a question that under which circumstances, the Cy-pres is applied or is not applied.  The doctrine of Cy-pres is applicable to both testamentary and non-testamentary gifts, A Will  for public charitable purposes. 

There are two  limitations on the cypres doctrine which come into play here. Where the donor has determined with specificity a special object or mode for the course of his benefaction the Court cannot innovate and undo, but where a general charitable goal is projected and particular objects and modes are indicated the Court, (2) A.I.R. 1960 A.P. 605.

Conditions for applicability of Cy-pres under Section 55 of the Act:

Whether section 55 is applicable to the case or not is a question of fact, however, I reply upon the judgement of Hon'ble Supreme Court in the case of State Of Uttar, Pradesh vs Bansi Dhar And Others on 11 December, 1973 reported in 1974 AIR 1084, wherein Hon'ble Supreme Court held as under.

"The judges have set this restraint on their power to resurrect, or rather to vary and validate. The twin conditions to be satisfied are "(1) The settler must, in general, have shown a general charitable intention .... It will only apply where the original trust has failed ab initio. The absence of a general charitable intention will not be fatal to those trusts which have taken affect but have failed .... Once money has been effectively and absolutely dedicated to charity, whether in pursuance of a general or a particular charitable intent, the testator's next of-kin or residuary legatees are for ever excluded. This will mean that the material date for the purpose of deciding whether the cypres doctrine is applicable is the date when the trust came into effect (e.g. in a will, on 'the death of the testator ) ."

(2) The second condition for the application of the cypres doctrine used to be that it was or had become "impossible" to carry out the settler's intention or alternatively that a surplus remained after fulfilment of the purpose......

In short. there must be a larger intention to give the. property, in the first instance; secondly, there must be impossibility not in the strict physical sense but in the liberal. diluted sense, of impractibility. Even here it must be mentioned, however, that the cypres application of the gift funds assumes a completed gift. It is essential that a gift has been made, effectively before, its actual implementation by application of the funds, literally or as nearly as may be, arises."

In another case between Potti Swami And Brothers vs Rao Saheb D. Govindarajulu  ...reported in AIR 1960 AP 605, it was held that," The doctrine of "cypres" connotes that if the wishes of the testator cannot be carried out literally they will be carried out as nearly as possible to what he desired.That is, where a testator shows a general charitable intention, but the object of his charity turns out to be impracticable or when there is surplus money after the trust has been performed, the cy- pres doctrine will operate to enable the Court to apply the whole fund or the surplus as the case may be to another charity as merely as the testator's intention. But where the prescribed mode of doing the charitable act is the only one the testator has at all contemplated, the Court cannot apply the doctrine of cy-pres, but there will be a resulting trust for the testator's estate."

 Conclusion:

 To conclude, it can be said that the purpose of incorporation of the provisions of section 55 is to protect the original object of the public trust in case the same is frustrated. Further, this section becomes safeguard to the public trust in respect of  not utilizing the  the income or any surplus balance of it. It is to save the original intention of the author of the public trust. The Charity Commissioner requires the trustees to apply to the Court having jurisdiction for direction of the Court for the protection of the original object and intention of the author of the public trust. Sometimes it happens that it is due to any known or unknown reason, the object of the public trust is failed or is not carried out practically in the manner provided in the Act, at that time the provisions of Section 55 play the role as a safeguard with the help of Judicial Order in the form of directions to the trustees of the public trust. 

 The Court, having heard the parties and having made such inquires as it thinks fit, shall give directions protecting the original intention of the author of the public trust or the object of the public trust. If the Court is of the opinion that carrying out intention of the author or object of the trust is not wholly or partly practicable, expedient or desirable or necessary or proper in the interest of public, it is the discretionary power of the court to apply cy-pres to any other charitable or religious object by way of altering any scheme already settled or by way of varying the terms of any decree or order which is already passed in respect of the public trust or conditions contained in the instrument of the public trust. Such decision or order passed by the Court is decree and the same can be challenged by way of filing appeal before Hon'ble High Court. 

Chirag Bhatt

Advocate

9824025041