Kunhappa Naik v. Commissioner, Land Revenue Public Office Building
2018-09-19
ALEXANDER THOMAS
body2018
DigiLaw.ai
JUDGMENT : 1. The main question that arises for consideration in this writ proceedings is as to the correctness or otherwise of the contention of the petitioner that the dictum laid down by the Full Bench of this Court in the reference order dated 16.10.2017 in the case Abdul Muneer & Anr. v. Sub Registrar, Tirur, reported in 2018 (1) KLT 238 (FB), is not applicable to the instant case in view of the observations in para 25 of the Full Bench direction. 2. The prayers in this Writ Petition are as follows: “(i) Call for the entire records leading to Exhibit P1 to P3 and issue a writ of certiorari or any other appropriate writ, order or direction and thereby quash the same. (ii) Declare that the decision of the Full Bench dated 16.10.2017 reported as 2018 (1) KHC 207 (FB) is not applicable in this case on hand. (iii) Pass such other orders deemed fit in the facts and circumstances of the case. (iv) Grant the petitioner the costs of the Writ Petition (Civil).” 3. Sri.K.Shri Hari Rao, learned counsel appearing for the petitioner and Sri. Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents were heard in extenso in earlier occasions and the case is taken today for judgment. 4. One Sri.Koggu Naik had 5 children (2 sons and 3 daughters), 2 sons being the petitioner (Kunhappa Naik) and Govinda Naik, and the 3 daughters being, Saraswathi, Parvathy and Chomu. Petitioner's mother had pre-deceased the father and the father had later died. One of the sisters, Chomu, had also died and she has only one issue (viz, Ramachandra Naik). So after the death of the father (Koggu Naik), his legal heirs are; (i) The petitioner (Kunhappa Naik) (ii) Govinda Naik, (iii) Saraswathy (iv) Parvathy (v) Ramachandra Naik (S/o. Late Chomu) According to the petitioner, the above said legal heirs had decided to partition their properties of late Koggu Naik and thereupon they have executed partition deed dated 29.3.2017, which was presented for registration in the office of the 3rd respondent- S.R.O., Badiyadka, Kasaragod District for registration on April, 2017, which was numbered as P-1/2017 (Partition Deed No.1351/17/1 of S.R.O., Badiyadka).
The petitioner and other executants of the said partition deed claimed that 5 executants thereto would constitute the definition of “family” as understood in the Explanation appended to Article 42 of the Schedule to the Kerala Stamp Act, 1959, and that the registration of the said partition deed would deserve lower stamp duty as per the provisions thereof. The 3rd respondent-SRO had taken the provisional view that the said executants will not constitute “family” as understood in the Explanation appended to under Article 42, more particularly because the 5th executant (Ramachandra Naik) is not a sibling of the other executants and is only a legal representative/son of the deceased sister, Chomu and in view of that aspect, the 3rd respondent had referred the matter to the 2nd respondent in terms of Sec.37 of the Kerala Stamp Act. The 2nd respondent in turn has decided the matter as per the impugned Ext.P-1 order dated 9.5.2017 under Sec.39 of the Kerala Stamp Act, wherein he has taken the view that the executants of the said partition deed will not constitute “family” as understood in the above provision and therefore, it does not deserve lower stamp duty as envisaged in Article 42(a) and that the higher stamp duty in terms of clause (b) of Article 42 is payable. Accordingly, it was directed by the 2nd respondent-District Registrar as per the impugned Ext.P-1 proceedings that the executants concerned will have to pay 6% stamp duty i.e,.Rs.1,03,830/- and Registration fee @ 2% coming to Rs.34,610/- and that the balance stamp duty payable is Rs.1,02,830/- and the balance registration fee payable is Rs.17,305/- and that penalty of Rs.300/- should also be paid. Thereafter, the 3rd respondent had issued Ext.P-2 notice dated 19.5.2017 directing the petitioner to remit the above said amounts as ordered in Ext.P-1. Aggrieved by Ext.P-1 and P-2, the petitioner had preferred statutory appeal dated 7.7.2017 before the 1st respondent-Commissioner for Land Revenue in terms of the enabling provisions under Sec.54(1) of the Kerala Stamp Act, 1959. The 1st respondent, after hearing the petitioner on 31.1.2018, had passed Ext.P-3 order repelling the contentions of the petitioner in the said appeal and confirming the correctness of the impugned Ext.P-1 order and thereby holding that the executants will not constitute the definition of “family” as understood in the explanation appended to Article 42 of the Schedule to the Stamp Act, 1959. 5.
5. It is challenging the said decision at Ext.P-1 proceedings dated 9.5.2017 issued by the 2nd respondent District Registrar and the impugned Ext.P-3 appellate order dated 8.3.2018 rendered by the 1st respondent Commissioner for Land Revenue that the petitioner has preferred the instant petition on 10.4.2018 with the aforementioned prayers. 6. At the outset, it is to be borne in mind that the main ground on which Ext.P-3 appellate order dated 8.3.2018 has been rendered is that the executants of the said partition deed will not constitute the definition of “family” as per the Explanation to Art.42 and that it will not deserve lower stamp duty, etc. in view of the clear dictum to that effect rendered by the Full Bench of this Court in the reference order dated 16.1.2017 in the case in Abdul Muneer v. Sub Registrar reported in 2018(1) KLT 238 (F.B). 7. The petitioner has challenged the legality and correctness of the impugned orders on two grounds. The first contention is that it has been specifically observed in para 25 of the Full Bench decision in Abdul Muneer's case supra that the findings of the Full Bench in that reference order that the conclusions rendered earlier by the Division Bench in State of Kerala v. Jose, reported in 2013 (3) KLT 412 , and State of Kerala v. P.Manuel, 2013 (1) KLT 825 , are wrong, etc. and the dictum laid down by the Full Bench to the contrary will apply only to partition deeds, that are executed and presented for registration before the Registration officials concerned from the date of that Full Bench decision (16.10.2017) onwards and that all such deeds registered prior to that date (16.10.2017) would not be affected by anything stated and found by the Full Bench in the said decision. On this basis, it is contended by the petitioner that, in the instant case, admittedly the partition deed in question has been executed on 29.3.2017, which is before rendering of the Full Bench decision dated 16.10.2017 and that therefore the dictum laid down by the Full Bench in the Abdul Muneer's case supra will not apply to the facts of this case.
More particularly, it is urged by the petitioner that therefore the dictum laid down by the Division Bench of this Court in State of Kerala v. Jose, reported in 2013 (3) KLT 412 , and State of Kerala v. P.Manuel, 2013 (1) KLT 825 should be the basis for determining the applicable stamp duty in the case of the instant partition deed and that going by the dictum laid down by the Division Bench in those decisions, the executants in the instant case, the first five of whom are siblings and the fifth one being LR (son) of the deceased sibling, would also constitute “family” as per the above said provisions, as interpreted in the above said Division Bench judgments and that therefore the dictum laid down to the contrary by the Full Bench in Abdul Muneer's case supra will not be applicable in the instant case and that hence the execution of the instant partition deed dated 29.3.2017 will deserve lower stamp duty in terms of clause (a) of Art.42 of the Schedule to the Kerala Stamp Act, etc. That therefore the impugned orders are liable to be interdicted and directions should be issued by this Court to ensure that the partition deed dated 29.3.2017 is registered only on payment of lower stamp duty. 8. The second contention raised by the petitioner is that it is trite that the applicable stamp duty is to be determined on the basis of the law as it stood as on the day of execution of the deed and that as held by the Apex Court and various High Courts in a catena of decisions as in State of Kerala v. George Jacob reported in 2005 (4) KLT 709 (D.B), para 32, which has confirmed the judgment of the learned Single Judge in All Kerala Document Writers and Scribes Association v. State of Kerala, reported in 2005 (3) KLT 234, etc.
In this aspect, the fine tuned argument of the petitioner is that as on 29.3.2017, the law that governed the field was the dictum laid down by the Division Bench in Jose's case supra and Manuel's case supra, which was in favour of the petitioner and that therefore the subsequent legal position declared by the Full Bench in the decision rendered on 16.10.2017 will not apply to the facts of this case for determining the stamp duty payable in respect of the partition deed executed on 29.3.2017. 9. At the outset, it may be pertinent to refer to the provisions contained in Art.42 of the Schedule to the Kerala Stamp Act, as it stood at the relevant time, as there has been subsequent amendment effected thereto by the Finance Act, 2018, made effective from 1.4.2018. The un-amended provision of Art.42 of the Schedule to the Kerala Stamp Act dealing partition deed as it stood at the time of the execution of the partition deed dtd.23.9.2017 reads as follows: “42. Partition-Instrument of as defined by Section 2(k): (a) Where the partition is among all or some of the family members - (i) the extent of land involved in the property divided by the instrument is five acres or less One rupee for every rupees the 100 or part thereof of the fair value of the separated share or shares of property and the value of other properties in such separated share or shares set forth in the instrument, or of the value of all the properties of the separated share or shares as set forth in the instrument, whichever is higher, subject to the maximum of rupees 1000. (ii) the extent of land involved in the property divided by the instrument is above five acres. One rupee for every rupees 100 or part thereof of the fair value of the separated share or shares of property and the value of other properties in such separated share or shares set forth in the instrument, or of the value of all the properties of the separated share or shares as set forth in the instrument, whichever is higher. (b) in any other case Six rupees for every rupees 100 or part thereof of the amount of the value or fair value of the separated share or shares of the property, whichever is higher.
(b) in any other case Six rupees for every rupees 100 or part thereof of the amount of the value or fair value of the separated share or shares of the property, whichever is higher. Explanation.- Family means father, mother, grandfather, grandmother, husband, wife, son, daughter, grandchildren, brother, sister and legal heirs of the deceased children, if any as the case may be.” 10. Sec. 2(k) of the Kerala Stamp Act, 1959, provides as follows: “Sec.2: Definitions.- In this Act, unless the context otherwise requires,- (a) ..... xxx xxx xxx (k) "instrument of partition" means any instrument whereby co-owners of any property divide or agree to divide such property in severality, and includes also a final order for effecting a partition passed by any Revenue Authority or any Civil Court and an award by an arbitrator directing a partition;” 11. In State of Kerala v. Jose, reported in 2013 (3) KLT 412 , the Division Bench of this Court was dealing with the issue as to the correct stamp duty to be payable for a partition deed between a person and his deceased brother's son. That is, the issue was as to whether the said partition deed would deserve the benefit of lower stamp duty and as to whether the executants to the said deed are part of “family” as understood in the Explanation appended to Art.42 of the Schedule to the Act. In the facts of Jose's case supra, one Thomas and Varkey were the joint owners of the property concerned, which was purchased in their names by their father, which they had jointly enjoyed. Thereafter, Thomas died leaving his share of the property to his only son, by bequest. Varkey and the legal heir of the deceased Thomas opted to partition of the property by executing the partition deed on 9.11.2012.
Thereafter, Thomas died leaving his share of the property to his only son, by bequest. Varkey and the legal heir of the deceased Thomas opted to partition of the property by executing the partition deed on 9.11.2012. Placing reliance on an earlier Division Bench judgment in State of Kerala v. Manuel, reported in 2013 (1) KLT 825 , the Division Bench in the above said Jose's case supra held that when one brother dies, then his legal heir would step into the shoes of the said deceased and then it cannot be said that the partition effected between the legal heir of a deceased brother and the other surviving brother (who is the uncle of the said legal heir) would take it out of the definition of “family” as understood in the definition under Explanation to Art.42 of the Schedule to the Act. 12. In State of Kerala v. Manuel, reported in 2013 (1) KLT 825 , the Division Bench dealt with a case where the original property owners (Isahack and Mariyam) had 8 children, out of which one of whom Seemon had died intestate, childless and unmarried and the above said Isahack and Mariyam and the deceased Seemon had left behind them the other 7 children concerned (who are the siblings of the above said Seemon) and out of the said 7 siblings, 2 of them (Yohannan and Mariyamma) had also died. In the partition deed executants 1 to 5 were the 5 children out of which executants 1 to 5 were surviving children of the property owners and executants 6 to 12 and executant No.13 were the children and wife of the above said deceased Yohannan and executant No.14 was the legal heir of the deceased Mariyamma. 13. The Division Bench in Manuel's case supra held that the executants to the partition deed in that case were between sons & daughters and legal heirs of the deceased siblings of the aforementioned executants and that they would constitute “family” as understood in the above said definition clause, etc.
13. The Division Bench in Manuel's case supra held that the executants to the partition deed in that case were between sons & daughters and legal heirs of the deceased siblings of the aforementioned executants and that they would constitute “family” as understood in the above said definition clause, etc. Thus it was held by the Division Bench in Manuel's case supra that when one of the brothers dies, his legal heirs stand in the shoes of the said deceased person and it cannot be said that the partition effected between the legal heir of the deceased brother and the other executant (who happen to be the uncle of the said legal heir) would take it out of the definition of “family” as understood in the above said definition clause under Art.42. 14. In a matter of reference it was held by the Full Bench in the case in Abdul Muneer v. Sub Registrar reported in 2018 (1) KLT 238 , rendered on 16.10.2017 that the above said conclusions arrived at by the Division Bench in Jose's case supra and Manuel's case supra are not legally correct. It was held by the Full Bench, more particularly in para 25 of the said decision, that to assess the eligibility for reduction of stamp duty in Clause (a) of Article 42, what is relevant is the relationship between the co-owners at the time of execution of the partition deed and if each of the co-owner is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation to Art.42, then the partition deed between them would become deserving of lower stamp duty under sub-clause (a) of Art.42, etc.
That the benefit of lower stamp duty under Art.42 would flow only if each of the co-owner is related at least to one of the other through the specified category of relationships as is prescribed in the Explanation and that in other words, if each of the co-owner is not related at least to one of the other in the enumerated categories of relationship as per the definition of “family” as in the said provision, then the same cannot be legally understood to fulfill the definition of “family” for the purpose of the benefit of the lower stamp duty and that for a partition deed between executants, who do not fulfill the said definition of “family”, then such deed is liable for higher stamp duty as per clause (b) of Art.42. 15. The above said dictum laid down by the Full Bench in Abdul Muneer's case supra, has been reiterated in decisions of the Division Bench as in Vasudevan Vadhyan Namboothiri. C.K. v. District Registrar (General) reported in 2018(4) KLT 519 = 2018 (4) KHC 144 . 16. In the instant case, executants to the partition deed dated 29.3.2017 are as follows: (i) Petitioner (Kunhappa Naik) (ii) Kamala (iii) Saraswathi, (iv) Parvathy, (v) Govinda Naik & (vi) Ramachandra Naik, s/o. deceased Chomu. Though each of the executants 1 to 5 will stand related to each other in the category of siblings, it is to be borne in mind that the 6th executant Ramachandra Naik is the son of the deceased sibling of executants 1 to 5. Therefore, it is beyond controversy that in the dictum laid down by the Full Bench in Abdul Muneer's case supra regarding the definition of “family” if applied to the facts of this case, then the executants thereto are not eligible for the benefit of the lower stamp duty as they do not fulfill the definition of “family” and higher stamp duty in terms of clause (b) of Art.42 is payable. 17. However, the main contention of the petitioner is on the basis of the specific observations made by the Full Bench in Abdul Muneer's case in para 25 thereof, wherein it has been inter alia held that the findings of the Full Bench therein would apply only to partition deeds that are executed and presented for registration before the registration officials concerned from the date of the said decision (viz.,16.10.2017) onwards.
It will be profitable to extract the entire contents of para 25 of the Full Bench decision in Abdul Muneer's case, which read as follows: “25. Hence, to assess the eligibility for reduction of stamp duty in Article 42(1), what is to be seen is the relationship between the co-owners at the time of execution of the partition deed. If each of the co-owner is related to at least one of the other in the enumerated categories of relationships prescribed in the Explanation of Article 42, then the partition deed between them would become deserving of lower stamp duty under sub-clause (1) of the said Article. Considerations of common lineage, devolution of property etc., are all irrelevant for this purpose and all that becomes relevant for the purpose of Article 42(1) is the relationship of the co-owners at the time of execution and registration of the partition deed. If the co-owners are several in number, then the benefit under this Article would flow only if each of such co-owner is related at least to one other through the specified category of relationships as is prescribed in the Explanation to Article 42. This, in our opinion, is the only way the explanation to the Article can be interpreted. Obviously therefore, the conclusions in Manuel (supra) and in Jose (supra) are not correct and we are, therefore, constrained to hold so. However, we do not propose to unsettle any rights that have been already created and vested prior to this judgment. We clarify that the findings in this judgment would only apply to partition deeds that are executed and presented for registration before the concerned Sub Registrars from this date onwards and that all such deeds registered prior to this date would not be affected by anything stated and found by us herein. We thus answer the reference placed for our opinion by holding that there is no conflict in the views of the Division Benches in the judgments in Jose (supra) and Shibu (supra) and the latter is the correct and applicable law relating to release deeds under Article 48, while the former, though not laying the correct law, relates only to partition deeds under Article 42 of the Schedule to the Act.
We further declare that the conclusions in State of Kerala and Others v. Manuel ( 2013 (1) KLT 825 ) and State of Kerala v. Jose ( 2013 (3) KLT 412 ) of the Division Bench is not the correct law and we, therefore, overrule the same and declare that the benefit under Article 42(1) of the Schedule to the Act would be attracted and available only to those partition deeds that are executed between its co-owners, if each of such co-owner is related to at least one other, in cases where there are more than two co-owners and in case there are only two co-owners, if they are related to each other, in the enumerated categories of relationships prescribed in the Explanation to Article 42 at the time of execution of the partition deed and not otherwise. The reference is thus answered and the law relating to stamp duty payable under Article 42(1) of the schedule to the Act is thus declared.” (Emphasis supplied) 18. It has been argued by the petitioner's counsel that the above said protective observations rendered by the Full Bench in respect of partition deeds executed and presented for registration prior to the said Full Bench decision would amount to invocation of the principle of prospective overruling and that therefore the overruling of the dictum of the Division Bench judgments in Jose's case supra and Manuel's case supra will not detrimentally affect the petitioner's case inasmuch as partition deed was executed on 29.3.2017, which is before the Full Bench decision rendered on 16.10.2017. 19. Per contra, the contention of the respondents, on the above aspect, advanced through Sri. Saigi Jacob Palatty, learned Sr. Government Pleader, is that it is well-established that the doctrine of prospective overruling can be invoked only by the Apex Court and, that too, in matters arising under the Constitution and that High Courts have no power in that regard and that the High Courts may have power to modulate reliefs by granting limited relief in exercise of their equity jurisdiction.
Further, it is pointed out that the Full Bench of the High Court has made the above said observations in question, in para.25 thereof, with abundant and guarded caution, inasmuch as it is clearly stipulated that, what is sought to be directed is only so as to ensure not to unsettle any rights that have already been created and vested prior to that decision rendered on 16.10.2017 and that therefore it really means that the observations relied on by the petitioner are only for the limited purpose so as not to unsettle any rights that have already created and vested to the parties concerned, in the manner known to law and prior to the judgment. Further that, it has also been made clear in those observations in para.25 by the Full Bench that those are only in respect of deeds registered prior to the date of judgment and that those observations therein granting the protection is only in respect of the deeds actually registered prior to the date of the judgment and that in the instant case, the partition deed has not been so far registered and is still pending in the present dispute and lis. Hence, it is contended by the respondents that the argument made by the petitioners that the Full Bench has made those observations in para.25 by invoking the doctrine of prospective overruling, is untenable and further that in this case, the respondents had consistently taken the stand as envisaged from the impugned Exts.P-1 & P-3 orders, that the executants of the present deed will not satisfy the definition of “family” as per Art.42 and that therefore, no rights have been created and vested in favour of the petitioner, in the manner known to law, prior to this judgment and moreover, the deed has not so far been registered prior to the judgment and hence the case of the petitioner will be regulated by the main dictum laid down by the Full Bench in Abdul Muneer's case (supra). 20. In the celebrated case in I.C. Golak Nath & Ors. v. State of Punjab & Anr.
20. In the celebrated case in I.C. Golak Nath & Ors. v. State of Punjab & Anr. [ AIR 1967 SC 1643 ], rendered by a 11-Judge Bench of the Apex Court, it was declared that the legal position settled in earlier decisions as in Shankari Prasad Singh v. UOI [ AIR 1951 (SC) 458 ] and Sajjan Singh v. State of Rajasthan [ AIR 1965 (SC) 845 ], were wrongly decided and as it was held in Golak Nath's case (supra) that the constitutional amendments that offend the fundamental rights are ultra vires and that the Parliament has no power to amend the fundamental rights exercising the power under Art.368. However the Apex Court held in Golak Nath's case that doctrine of prospective overruling could be invoked in that case and it was held that the decision in Golak Nath's case would apply prospectively. The Apex Court, in para 51 in Golak Nath's case (supra) has held that the doctrine of prospective overruling can be invoked only in matters arising under the Constitution and further that it can be applied only by the highest court of the country, i.e., the Supreme Court as it has constitutional jurisdiction to declare law binding on all the courts in India and that the scope of the retroactive operation of the law declared by the Supreme Court superseding its “earlier decisions” is left to its discretion to be moulded in accordance with the justice of the cause or matter before it. 21. It will also be pertinent to refer to paras 44A to 51 of the decision in Golak Nath's case (supra) [ AIR 1967 SC 1643 , pp.1666-1669] which read as follows:- “(44A) There are two doctrines familiar to American Jurisprudence, one is described as Blackstonian theory and the other as "prospective overruling", which may have some relevance to the present enquiry. Blackstone in this Commentaries, 69 (15th Edn., 1809) stated the common law rule that the duty of the Court was "not to pronounce a new rule but to maintain and expound the old one". It means the Judge does not make law but only discovers or finds the true law. The law has always been the same. If a subsequent decision changes the earlier one, the latter decision does not make law but only discovers the correct principle of law.
It means the Judge does not make law but only discovers or finds the true law. The law has always been the same. If a subsequent decision changes the earlier one, the latter decision does not make law but only discovers the correct principle of law. The result of this view is that it is necessarily retrospective in operation. But Jurists, George F. Canfield, Robert Hill Free man, John Henry Wigmore and Cardozo have expounded the doctrine of "prospective overruling" and suggested it as "a useful judicial tool”. In the words of Canfield the said expression means: “……………a Court should recognize a duty to announce a new and better rule for future transactions whenever the court has reached the conviction that an old rule (an established by the precedents) is unsound even though feeling compelled by stare decisis to apply the old and condemned rule to the instance case and to transactions which had already taken place.” Cardozo, before he became a Judge of the Supreme Court of the United States of America, when he was the Chief Justice of New York State addressing the Bar Association said thus: “The rule (the Blackstonian rule) that we are asked to apply is out of tune with the life about us. It has been made discordant by the forces that generate a living law. We apply it to this case because the repeal might work hardship to those who have trusted to its existence. We give notice however that any one trusting to it hereafter will do at his peril". The Supreme Court of the United States of America in the year 1932, after Cardazo became an Associate Justice of that Court in Great Northern Rly. v. Sunburst Oil and Ref.Co., (1932) 287 US 358, 366-77 Law Ed 360 applied the said doctrine to the facts of that case. In that case the Montana Court had adhered to its previous construction of the statute in question but had announced that that interpretation would not be followed in the future. It was contended before the Supreme Court of the United States of America that a decision of a court overruling earlier decision and not giving its ruling retroactive operation violated the due process clause of the 14th Amendment.
It was contended before the Supreme Court of the United States of America that a decision of a court overruling earlier decision and not giving its ruling retroactive operation violated the due process clause of the 14th Amendment. Rejecting that plea, Cardozo said: “This is not a case where a Court in overruling an earlier decision has come to the new ruling of retroactive dealing and thereby has made invalid what was followed in the doing. Even that may often be done though litigants not infrequently have argued to the contrary……….This is a case where as Court has refused to make its ruling retroactive, and the novel stand is taken that the Constitution of the United States is infringed by the refusal. We think that the Federal Constitution has no voice upon the subject. A state in defining the elements of adherence to the principle of forward operation and that of relation backward. It may be so that the decision of the highest courts, though later overruled, was law nonetheless for intermediate transactions. …………………… On the other hand, it may hold to the ancient dogma that the law declared by its Courts had a platonic or ideal existence before the act of declaration, in which event, the discredited declaration will be viewed as if it had never been and to reconsider declaration as law from the beginning…………….. The choice for any State may be determined by the juristic philosophy of the Judges of her Courts, their considerations of law, its origin and nature." The opinion of Cardozo tried to harmonize the doctrine of prospective overruling with that of stare decisis. (45) In 1940, Hughes, CJ., in Chicot Country Drainage District v. Baxter State Bank, (1940) 308 US 371 stated thus : “The law prior to the determination of unconstitutionality is an operative fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” In J. Graffin v. Peoples of the State of Illionis, America reaffirmed the doctrine laid down in Sunburst's case, (1932) 287 US 358=77 Law Ed 360 (supra). There, a statute required defendants to submit bills of exceptions as a pre-requisite to an appeal from a conviction: the Act was held unconstitutional in that it provided no means whereby indigent defendants could secure a copy of the record for this purpose.
There, a statute required defendants to submit bills of exceptions as a pre-requisite to an appeal from a conviction: the Act was held unconstitutional in that it provided no means whereby indigent defendants could secure a copy of the record for this purpose. Frankfurter, J., in that context observed : “……….....in arriving at a new principle, the judicial process is not important to define its scope and limits. Adjudication is not a mechanical exercise nor does it compel 'either/or' determination.” In J.A. Wolf v. Peoples of the State of Colorado, (1949) 338 US 25=93 Law Ed 1782 a majority of the Supreme Court held that in a prosecution in a State Court for a State crime, the 14th Amendment did not forbid the admission of evidence obtained by unreasonable search and seizure. But in Mapp v. Ohio, (1961)367 US 643=6 Law Ed 2nd Ed.1081 the Supreme Court reversed that decision and held that all evidence obtained by searches and seizure in violation of the 4th Amendment of the Federal Constitution was, by virtue of the due process clause of the 14th Amendment guaranteeing the right to privacy free from unreasonable State intrusion inadmissible in a State Court. In Linkletter v. Walker, 381 US 618 the question arose whether the exclusion of the rule enunciated in (1961) 367 US 643=6 Law Ed 2nd Ed 1081 (supra) did not apply to State Court's convictions which had become final before the date of that judgment. Mr. Justice Clarke, speaking for the majority observed : "We believe that the existence of the Wolf doctrine prior to Mapp may have is 'an operative' fact and may have consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration." ………………………............. "Mapp had as its prima purpose the enforcement of the Fourth Amendment through the inclusion of the exclusionary rule within its rights. We cannot say that this purpose would be advanced by making the rule retrospective. The misconduct of the police prior to Mapp has already occurred and will not be corrected by releasing the prisoners involved. On the other hand, the States relied on Wolf and followed its command. Final judgments of conviction were entered prior to Mapp. Again and again the court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule.
On the other hand, the States relied on Wolf and followed its command. Final judgments of conviction were entered prior to Mapp. Again and again the court refused to reconsider Wolf and gave its implicit approval to hundreds of cases in their application of its rule. In rejecting the Wolf doctrine as to the exclusionary rule the purpose was to deter the lawless action of the police and to effectively enforce the fourth Amendment. That purpose will not at this late date be served by the wholesale release of the guilty victims." “Finally, there are interests in the administration of justice and the integrity of the judicial process to consider. To make the rule of Mapp retrospective would tax the administration of justice to the utmost. Hearings would have to be held on the excludability of evidence long since destroyed, misplaced or deteriorated. If it is excluded, the witness available at the time of the original trial will not be available or if located their memory will be dimmed. To thus legitimate such an extraordinary procedural weapon that has no bearing on guilt would seriously disrupt the administration of justice.” This case has reaffirmed the doctrine of prospective overruling and has taken a pragmatic approach in refusing to give it retroactivity. In short, in America the doctrine of prospective overruling is now accepted in all branches of law, including constitutional law. But the carving of the limits of retrospectivity of the new rule is left to courts to be done, having regard to the requirements of justice. Even in England the Blackstonian theory was criticized by Bentham and Austin. In Austin's jurisprudence, 4th Ed, at page 65, the learned author says : "What hindered Blackstone was 'the childish fiction' employed by our Judges, that Judiciary or common law is not made by them, but is a miraculous something made, by nobody, existing, I suppose, from eternity, and merely declared from time to time by the Judges.” (46) Though English Courts in the past accepted the Blackstonian theory and though the House of Lords strictly adhered to the doctrine of 'precedent' in the earlier years, both the doctrines were practically given up by the "Practice Statement (Judicial Precedent)" issued by the House of Lords recorded in (1966) 1 WLR 1234.
Lod Gardiner L.C., speaking for the House of Lords made the following observations : "Their Lordships nevertheless recognize that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose, therefore, to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so." “In this connection they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainity as to the criminal law.” “The announcement is not intended to affect the use of precedent elsewhere than in this House." It will be seen from this passage that the House of Lords hereafter in appropriate cases may depart from its previous decision when it appears right to do so and in so departing will bear in mind the danger of giving effect to the said decision retroactivity. We consider that what the House of Lords means by this statement is that in differing from the precedents it will do so only without interfering with the transactions that had taken place on the basis of earlier decisions. This decision, to a large extent, modifies the Blackstonian theory and accepts, though not expressly but by necessary implication the doctrine of "prospective overruling.” (47) Let us now consider some of the objections to this doctrine. The objections are (l) the doctrine involved legislation by courts; (2) it would not encourage parties to prefer appeals as they would not get any benefit there from; (3) the declaration for the future would only be obiter; (4) it is not a desirable change ; and (5) the doctrine of retroactivity serves as a break on courts which otherwise might be tempted to be so fascile in overruling. But in our view, these objections are not insurmountable. If a court can overrule its earlier decision there cannot be any dispute now that the court can do so-there cannot be any valid reason why it should not restrict its ruling to the future and not to the past.
But in our view, these objections are not insurmountable. If a court can overrule its earlier decision there cannot be any dispute now that the court can do so-there cannot be any valid reason why it should not restrict its ruling to the future and not to the past. Even if the party filing an appeal may not be benefited by it, in similar appeals which he may file after the change in the law he will have the benefit. The decision cannot be obiter for what the Court in effect does is to declare the law but on the basis of another doctrine restricts its scope. Stability in law does not mean that injustice shall be perpetuated. An illuminating article on the subject is found in Pennsylvania Law Review. (48) It is a modern doctrine suitable for a fast moving society. It does not do away with the doctrine of stare decisis, but confines it to past transactions. It is true that in one sense the court only declares the law, either customary or statutory or personal law. While in strict theory it may be said that the doctrine involves making of law, what the court really does is to declare the law but refuses to give retroactivity to it. It is really a pragmatic solution reconciling the two conflicting doctrines, namely, that a court finds law and that it does make law. It finds law but restricts its operation to the future. It enables the court to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions. It is left to the discretion of the court to prescribe the limits of the retrospectivity and thereby it enables it to mould the relief to meet the ends of justice. (49) In India there is no statutory prohibition against the court refusing to give retroactivity to the law declared by it. Indeed, the doctrine of resjudicata precludes any scope for retroactivity in respect of a subject matter that has been finally decided between the parties. Further, Indian Courts by interpretation reject retroactivity to statutory provisions though couched in general terms on the ground that they affect vested rights. The present case only attempts a further extension of the said rule against retroactivity. (50) Our Constitution does not expressly or by necessary implication speak against the doctrine of prospective overruling.
Further, Indian Courts by interpretation reject retroactivity to statutory provisions though couched in general terms on the ground that they affect vested rights. The present case only attempts a further extension of the said rule against retroactivity. (50) Our Constitution does not expressly or by necessary implication speak against the doctrine of prospective overruling. Indeed, Arts. 32, 141 and 142 are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation thereon is reason, restraint and injustice. Under Art.32, for the enforcement of the fundamental rights the Supreme Court has the power to issue suitable directions or Orders or writs. Article 141 says that the law declared by the Supreme Court shall be binding on all courts and Art. 142 enables it in the exercise of its jurisdiction to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it. These articles are designedly made comprehensive to enable the Supreme Court to declare law and give such directions or pass such orders, as are necessary to do complete justice. The expression "declared" is wider than the words "found or made". To declare is to announce opinion. Indeed, the latter involves the process, while the former expresses result. Interpretation, ascertainment and evolution are parts of the process, while that interpreted, ascertained or evolved is declared as law. The law declared by the Supreme Court is the law of the land. If so, we do not see any acceptable reason why it, in declaring the law in super-session of the law declared by it earlier, could not restrict the operation of the law as declared to future and save the transactions, whether statutory or otherwise that were effected on the basis of the earlier law. To deny this power to the Supreme Court on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective the powerful instrument of justice placed in the hands of the highest judiciary of this country.” (51) As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning.
We would lay down the following propositions: (1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) It can be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its “earlier decisions” is left to its discretion to be moulded in accordance with the justice of the cause or matter before it.” 22. In Ashok Kumar Gupta v. State of U.P [ (1997)5 SCC 201 ], a 3-Judge Bench of the Apex Court held that although the dictum in Golak Nath's case [ AIR 1967 SC 1643 ] regarding the un-amendability of fundamental rights under Art.368 of the Constitution has been overruled in Kesavananda Bharati v. State of Kerala [1973(4)SCC 225], yet the doctrine of prospective overruling has been upheld and followed in several later decisions and that the Constitution does not expressly or by necessary implication provide against the doctrine of prospective overruling and that provisions as in Art.32(4) and Art.142 are designed with words of great width to enable the Supreme Court to declare law and to give such directions or pass such orders as a necessary to do complete justice. 23. In the judgment dated 20.11.1990 rendered in Civil Appeal No.571 of 1985 and connected cases in the case in Union of India & Ors. v. Mohammed Ramzan Khan [ (1991)1 SCC 588 ], the Apex Court declared that the requirements given in the amended provisions of Art.311(2) mandate the furnishing of copy of the enquiry report to the delinquent before the disciplinary authority passes orders, in cases where the enquiry officer and the disciplinary authority are different officials and had held that the earlier decisions of the Apex Court to the contrary are not good law, but that the law laid down in the judgment dated 20.11.1990 in Mohammed Ramzan's case supra shall have only prospective application and no punishment imposed prior to the date of judgment shall be open to challenge on that ground. Later, a Constitutional Bench (5-Judge Bench) of the Apex Court in Managing Director, ECIL, Hyderabad & Ors. v. B.Karunakar & Ors.
Later, a Constitutional Bench (5-Judge Bench) of the Apex Court in Managing Director, ECIL, Hyderabad & Ors. v. B.Karunakar & Ors. [ (1993) 4 SCC 727 ] has also dealt with the doctrine of prospective overruling and held that the law laid down in the judgment dated 20.11.1990 in Mohammed Ramzan's case supra will have only prospective application from the date of judgment in Mohammed Ramzan's case supra and has also elaborately dealt with the scope and ambit of the doctrine of prospective overruling. It was again reiterated by the Apex Court that the doctrine of prospective overruling can be invoked only in matters arising under the Constitution, which can be applied only by the highest Court of the country, i.e. the Supreme Court, as it has constitutional jurisdiction to declare law binding on all the courts in the country and further that the scope of the retroactive operation of law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be , in accordance with justice of the cause or matter before it, etc. 24. It is profitable to refer to para.35 of M.D., ECIL v. B.Karunakar's case [ (1993)4 SCC 727 ], p.p.760-762, which reads as follows: "35. In Golak Nath v. State of Punjab ( AIR 1967 Sc 1643 ) dealing with the question as to whether the decision in that case should be given prospective or retrospective operation, the Court took into consideration the fact that between 1950 and 1967, as many as twenty amendments were made in the Constitution and the legislatures of various States had made laws bringing about an agrarian revolution in the country. These amendments and legislations were made on the basis of the correctness of the decisions in Sri Sankari Prasad Singh Deo v. Union of India and State of Bihar ( AIR 1951 SC 458 ) and Sajjan Singh v. State of Rajasthan ( AIR 1965 SC 845 ) viz., that the Parliament had the power to amend the fundamental rights and that Acts in regard to estates were outside the judicial scrutiny on the ground they infringed the said rights. The Court then stated that as the highest Court in the land, it must evolve some reasonable principle to meet the said extraordinary situation. The Court pointed out that there was an essential distinction between the Constitution and the statutes.
The Court then stated that as the highest Court in the land, it must evolve some reasonable principle to meet the said extraordinary situation. The Court pointed out that there was an essential distinction between the Constitution and the statutes. The Courts are expected to and they should interpret the terms of the Constitution without doing violence to the language to suit the expanding needs of the society. In this process and in a real sense, they make laws. Though it is not admitted, such role of this Court is effective and cannot be ignored. Even in the realm of ordinary statutes, the subtle working of the process is apparent though the approach is more conservative and inhibitive. To meet the then extraordinary situation that may be caused by the said decision, the Court felt that it must evolve some doctrine which had roots in reason and precedents so that the past may be preserved and the future protected. The Court then referred to two doctrines familiar to American Jurisprudence, viz., Blackstonian view that the Court was not to pronounce a new rule but to maintain and expound the old one and, therefore, the Judge did not make law but only discovered or found the true law. That view would necessarily make the law laid down by the Courts retrospective in operation. The Court, therefore, preferred the opinion of Justice Cardozo which tried to harmonise the doctrine of prospective over-ruling with that of stare decisis expressed in Great Northern Railway Co. v. Sunburst Oil & Refining Co. (287 US 358). The Court also referred to the decisions subsequent to Sunburst and to the “Practice Statement (Judicial Precedent)” issued by the House of Lords recorded in (1966) 1 WLR 1234 and pointed out that the modern doctrine as opposed to the Blackstonian theory was suitable for a fast moving society. It was a pragmatic solution reconciling the two doctrines. The Court found law but restricted its operation to the future thus enabling it to bring about a smooth transition by correcting its errors without disturbing the impact of those errors on the past transactions. It was left to the discretion of the Court to prescribe the limits of the retroactivity. Thereby, it enabled the Court to mould the reliefs to meet the ends of justice.
It was left to the discretion of the Court to prescribe the limits of the retroactivity. Thereby, it enabled the Court to mould the reliefs to meet the ends of justice. The Court then pointed out that there was no statutory prohibition against the Court refusing to give retroactivity to the law declared by it. The doctrine of res judicata precluded any scope for retroactivity in respect of a subject-matter that had been finally decided between the parties. The Court pointed out that the courts in this land also, by interpretation, reject retroactivity of statutory provisions though couched in general terms on the ground that they affect vested rights. The Court then referred to Articles 141 and 142 to point out that they are couched in such wide and elastic terms as to enable this Court to formulate legal doctrines to meet the ends of justice. The only limitation therein is reason, restraint and injustice. These Articles are designedly made comprehensive to enable the Supreme Court to declare law and to give such direction or pass such order as is necessary to do complete justice. The Court then held that in the circumstances to deny the power to the Supreme Court to declare the operation of law prospectively on the basis of some outmoded theory that the Court only finds law but does not make it is to make ineffective a powerful instrument of justice placed in the hands of the highest judiciary of this land. The Court then observing that it was for the first time called upon to apply the doctrine of prospective overruling evolved in a different country under different circumstances, stated that it would like to move warily in the beginning.
The Court then observing that it was for the first time called upon to apply the doctrine of prospective overruling evolved in a different country under different circumstances, stated that it would like to move warily in the beginning. Proceeding further, the Court laid down the following propositions: “(1) The doctrine of prospective overruling can be invoked only in matters arising under our Constitution; (2) it can be applied only by the highest court of the country, i.e., the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India; (3) the scope of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded in accordance with the justice of the cause or matter before it.” The Court then declared that the said decision will not affect the validity of the Constitution (Seventeenth Amendment) Act, 1964 or other amendments made to the Constitution taking away or abridging the fundamental rights. The Court also declared that in future Parliament will have no power to amend Part III of the Constitution so as to take away or abridge the fundamental rights.” 25. In P.V.George & Ors. v. State of Kerala & Ors. [ 2007 (3) SCC 557 ], a 2-Judge Bench of the Apex Court has held in para.14 thereof that the legal position as regards the applicability of doctrine of prospective overruling is no longer res integra and the Supreme Court in its jurisdiction under Art.32 or Art.142 of the Constitution of India may declare a law to have a prospective effect and that the judgment of the Division Bench of the High Court referred to therein may be correct in opining that having regard to the decision of the decision in Golak Nath’s case supra the power of overruling is vested only with the Supreme Court and that too, in constitutional matters. But however, it was observed therein that the High Courts in exercise of the jurisdiction under Art.226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant limited relief in exercise of their equity jurisdiction. It will be profitable to refer to para.14 of P.V. George’s case supra [ 2007 (3) SCC 557 ] p.564, which reads as follows: “14.
It will be profitable to refer to para.14 of P.V. George’s case supra [ 2007 (3) SCC 557 ] p.564, which reads as follows: “14. For the views we propse to take, it is not necessary for us to consider all the decisions relied upon by Mr.Rajan. The legal position as regards the applicability of doctrine of prospective overruling is no longer res integra. This Court in exercise of its jurisdiction under Article 32 or Article 142 of the Constitution of India may declare a law to have a prospective effect. The Division Bench of the High Court may be correct in opining that having regard to the decision of this Court in Golak Nath v. State of Punjab ( AIR 1967 SC 1643 ) the power of overruling is vested only in this Court and that too in constitutional matters, but the High Courts in exercise of their jurisdiction under Article 226 of the Constitution of India, even without applying the doctrine of prospective overruling, indisputably may grant a limited relief in exercise of their equity jurisdiction.” (Emphasis supplied) 26. In the judgment in K.Madhava Reddy and others v. Government of Andhra Pradesh [ 2014 (6) SCC 537 ] =[ AIR 2014 SC 2314 ], a question was raised before the Apex Court as to whether the High Courts could invoke the doctrine of prospective overruling even if, the Tribunal like the State Administrative Tribunal are incompetent to do so (see para.18 thereof). However, in K.Madhava Reddy’s case supra the Apex Court has held that it is unnecessary to decide that issue and the Apex Court then proceeded to apply the principles of overruling to the facts of that case. Paras 18 and 19 of the decision in K.Madhava Reddy’s case supra [ (2014) 6 SCC 537 , pp.549-550], read as follows: “18. There was some debate at the Bar whether the High Court could have invoked the doctrine of prospective overruling even if the State Administrative Tribunal was incompetent to do so. It was contended by the counsel appearing for the respondents that the predominant legal opinion emerging from the pronouncements of this Court limited the application of the doctrine of prospective overruling only by the Supreme Court.
It was contended by the counsel appearing for the respondents that the predominant legal opinion emerging from the pronouncements of this Court limited the application of the doctrine of prospective overruling only by the Supreme Court. Neither the Tribunal nor the High Court could, according to the learned counsel, have invoked the doctrine assuming that there was any justification for such invocation in the facts and circumstances of the case. 19. Mr Jayant Bhushan, learned Senior Counsel appearing on behalf of the appellants, on the other hand, argued and, in our opinion, rightly so that it was unnecessary for this Court to go into the question whether the doctrine of prospective overruling was available even to the High Court. He urged that there could be no manner of doubt that even if the High Court was not competent to invoke the doctrine, nothing prevented this Court from doing so having regard to the fact that those promoted under the impugned Rules had held their respective positions for a considerable length of time making reversion to their parent zone/cadre not only administratively difficult but unreasonably harsh and unfair. It was argued by Mr Jayant Bhushan that the law as to the validity of the Rules impugned in the present case was in a state of flux till the judgment of this Court in Jagannadha Rao case [ (2001) 10 SCC 401 ] finally declared that provisions like the one made by the Rules in the instant case are constitutionally impermissible being in violation of the Presidential Order. That apart no promotion had been made after 7-11-2001, the date when the judgment of this Court in Jagannadha Rao case [ (2001) 10 SCC 401 ] was pronounced. Such of the promotions as were already made could therefore be saved to balance equity and prevent miscarriage of justice vis-à-vis those who had on the basis of a rule considered valid during the relevant period been promoted against posts outside their zone/cadre.” 27. The principles of prospective overruling has also been reiterated by the Apex Court in decisions as in B.A.Linga Reddy & Ors. v. Karnataka State Transport Authority & Ors. [ 2015(4) SCC 515 ], paras.34 and 35 which read as follows: '34. The view of the High Court in Ashrafulla [ (2002) 2 SCC 560 ] has been reversed by this Court.
v. Karnataka State Transport Authority & Ors. [ 2015(4) SCC 515 ], paras.34 and 35 which read as follows: '34. The view of the High Court in Ashrafulla [ (2002) 2 SCC 560 ] has been reversed by this Court. The decision is of retrospective operation, as it has not been laid down that it would operate prospectively; more so, in the case of reversal of the judgment. This Court in P.V. George v. State of Kerala [ (2007) 3 SCC 557 ] held that the law declared by a court will have a retrospective effect if not declared so specifically. Referring to Golak Nath v. State of Punjab [ AIR 1967 SC 1643 ] it had also been observed that the power of prospective overruling is vested only in the Supreme Court and that too in constitutional matters. It was observed: (P.V. George case [ (2007) 3 SCC 557 ], SCC pp. 565 & 569, paras 19 & 29) “19. It may be true that when the doctrine of stare decisis is not adhered to, a change in the law may adversely affect the interest of the citizens. The doctrine of prospective overruling although is applied to overcome such a situation, but then it must be stated expressly. The power must be exercised in the clearest possible term. The decisions of this Court are clear pointer thereto. * * 29. Moreover, the judgment of the Full Bench has attained finality. The special leave petition has been dismissed. The subsequent Division Bench, therefore, could not have said as to whether the law declared by the Full Bench would have a prospective operation or not. The law declared by a court will have a retrospective effect if not otherwise stated to be so specifically. The Full Bench having not said so, the subsequent Division Bench did not have the jurisdiction in that behalf.” 35. In Ravi S. Naik v. Union of India [1994 Supp. (2) SCC 641] it has been laid down that there is retrospective operation of the decision of this Court. The interpretation of the provision becomes effective from the date of enactment of the provision. In M.A. Murthy v. State of Karnataka [(2003) 7 SCC 517], it was held that the law declared by the Supreme Court is normally assumed to be the law from inception. Prospective operation is only exception to this normal rule.
The interpretation of the provision becomes effective from the date of enactment of the provision. In M.A. Murthy v. State of Karnataka [(2003) 7 SCC 517], it was held that the law declared by the Supreme Court is normally assumed to be the law from inception. Prospective operation is only exception to this normal rule. It was held thus: (M.A. Murthy case [(2003) 7 SCC 517], SCC pp. 520-21, para 8) “8. The learned counsel for the appellant submitted that the approach of the High Court is erroneous as the law declared by this Court is presumed to be the law at all times. Normally, the decision of this Court enunciating a principle of law is applicable to all cases irrespective of its stage of pendency because it is assumed that what is enunciated by the Supreme Court is, in fact, the law from inception. The doctrine of prospective overruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in Golak Nath v. State of Punjab [ AIR 1967 SC 1643 ]. In the view was adopted. Prospective overruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this Court while superseding the law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. (See Ashok Kumar Gupta v. State of U.P.[ (1997) 5 SCC 201 ] and Baburam v. C.C. Jacob [(1991)3 SCC 362]) It is for this Court to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective overruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective overruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs.
The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, the High Court was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in Ashok Kumar Sharma case [ (1997) 4 SCC 18 ]. All the more so when the subsequent judgment is by way of review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of the High Court are, therefore, set aside.”' 28. So the upshot of the above discussion regarding the aforesaid legal position is that the doctrine of prospective overruling, which was initially imported from constitutional case laws of the U.S Supreme Court, could be invoked only in matters arising under the constitution and further that it can been invoked only by the highest Court of the country, viz., the Supreme Court and further that the scope and ambit of the retroactive operation of the law declared by the Supreme Court superseding its earlier decisions is left to its discretion to be moulded, in accordance with justice to the cause or the matter before it. It has also been held in the above said decisions that the doctrine of res judicata precluded any scope for rectoactivity in respect of the subject matter that has already been decided between the parties. So also, the matters which are barred by delay, laches, acquiescence, estoppel etc. may be left unaffected by the declaration of law that may be made in later judgments. The declaration of law made by the High Court, even if it is a constitutional court, will have retroactive effect and the same will be applicable not only on cause of action which had arisen on or after the date of the judgment, but also in respect of the causes which are pending as on the date of the judgment. The well-known exception to this is that the doctrine of res judicata, constructive res judicata etc.
The well-known exception to this is that the doctrine of res judicata, constructive res judicata etc. which will preclude any scope of retractivity in respect of the subject matter that has already been decided between the parties. So also, the matters which are barred by inordinate delay, laches, acquiescence, estoppel etc. cannot be resurrected on the plea that the declaration of law is retrospective. But for these exceptions, the declaration of law made by High Court will have effect not only on causes of action, which arise on or after the judgment but also to pending causes as aforestated. If the Apex Court does not invoke the doctrine of prospective overruling, then also the effect of the declaration of law will be as stated hereinabove. However, the extraordinary plenary powers are available to the Apex Court, which is conferred with the constitutional jurisdiction to declare law binding on all courts in India as per Art.141 and also in view of the provisions as in Art.142, the Apex Court could in appropriate cases invoke the principles of prospective overruling to issue directions as has been done in Golak Nath's case (supra), Muhammed Ramzan’s case (supra) etc. So even if High Courts do not have the power to invoke the doctrine of prospective overruling, limited jurisdiction is still vested with the High Courts to grant appropriate limited relief in exercise of their equity jurisdiction. 29. It is in the context of this well-settled position that the contentions of the petitioner on the basis of the observations in para.25 of the Full Bench decision relied on by him should be evaluated and adjudged. Their Lordships of the Full Bench in Abdul Muneer's case supra have very carefully and cautiously issued certain limited directions only for the purpose of ensuring that rights already created and vested to parties, in the manner known to law prior to that decision is not in any manner unsettled on account of the overruling of the Division Bench dictum in Joseph’s case (supra) and Manuel’s case (supra).
So, in a case like 'inter partes' judgments like in Jose’s case (supra) and Manuel’s case (supra) or in any such other decisions rendered by this Court in writ proceedings on similar issues in Jose’s case (supra) and Manuel’s case (supra), where the litigants concerned have been able to enjoy the benefit of lower stamp duty on the basis of this Court’s directions and the respondent-registration officials have not thereafter challenged the same, in the manner known to law, then such settled rights accrued to parties cannot be unsettled and re-opened merely on account of the declaration of law by the Full Bench. In such cases, as afore stated, transactions have become final and conclusive and then certainly rights are created and vested to such parties in the manner known to law, prior to the judgment. So also, in many cases, the registration officials themselves could have conceded to the claims in similar cases based on the Division Bench dictum in cases as in Jose’s case (supra) and Manuel’s case (supra). Such parties concerned who are the executants of such partition deeds executed and registered prior to the Full Bench decision can insist that their settled rights can be re-opened on the basis of the Full Bench dictum. It is only cases of such nature or of similar nature, where it can be certainly said that the rights have been created and vested to those parties, in the manner known to law, then such settled rights cannot be unsettled by the registration authorities concerned merely on the ground that the Division Bench dictum in Jose’s case (supra) and Manuel’s case (supra) have been overruled or that such parties are liable to pay higher stamp duty in view of the legal position to the contrary settled by the Full Bench in Abdul Muneer’s case (supra). This is the only legally tenable manner of understanding the scope and ambit of the protective observations made by the Full Bench in para.25 as afore stated. Moreover, it is also trite law that the various observations of a judgment of a court of law cannot be interpreted as if it is like in a statute book or “Euclid theorem” and the impact of the observation in a judgment has to be assessed and evaluated from the overall facts and circumstances of the case and the context in which those observations have been rendered therein.
In that regard, it is also to be borne in mind that though it has also been observed by the Full Bench in para.25 that the findings therein would apply only to partition deeds that are executed and presented for registration before the Sub-Registrar’s concerned from 16.10.2017 onwards, but with a rider that all such deeds registered prior to the date of the Full Bench decision (16.10.2017) would not be affected by anything stated and found by the Full Bench therein. Therefore, one of the conditions to be satisfied to get the benefit of those observations is that the partition deed should have been registered before 16.10.2017, with the lower stamp duty. In the instant case, it is common ground that the partition deed in this case has not so far been registered and the dispute in question is a pending lis between the parties. If this Court is to accept the argument of the petitioner that the observation that the findings in the Full Bench decision should apply only to partition deeds that are executed and presented for registration from the date of the Full Bench decision onwards, on the basis of the application of principles of prospective overruling etc., then it will lead to the situation whereby the partition deeds which were executed before the date of the Full Bench decision but which are otherwise eligible for the benefit of the lower stamp duty in terms of the legal position settled by the Full Bench, will not be able to claim the benefit of such lower stamp duty on the mere ground that such partition deeds happened to be executed prior to 16.10.2017. Quite a few cases have come to the consideration of this Court, where for partition deeds executed before 16.10.2017, the respondents have denied the benefit of lower stamp duty on the ground that each of the executant should necessarily be related to all the other executants in the degree of relationship as enumerated in the definition of “family” contained in the Explanation. This insistence by the registration officials was in clear derogation of the legal position settled by the Full Bench that each of the executants need be related to any of the executants in such prescribed degree of relationships.
This insistence by the registration officials was in clear derogation of the legal position settled by the Full Bench that each of the executants need be related to any of the executants in such prescribed degree of relationships. Can the benefit of lower stamp duty be denied in such cases, merely on the ground that the partition deeds have been executed prior to 16.10.2017? The answer thereto is clearly and emphatically in the negative. So if the contention of the petitioner is accepted, then it would lead to unreasonable and anomalous consequences which would penalise parties who are otherwise eligible for the benefit of lower stamp duty going by the Full Bench dictum. Therefore, the above said contentions made by the petitioner are not tenable and sustainable and are accordingly overruled. In the instant case, the respondents have consistently taken the stand that the partition deed in question does not deserve lower stamp duty and that the executants are liable to pay a higher stamp duty in terms of clause(b) of Art.42 and the said stand has been reiterated by the original authority, the referring authority as well as the appellate authority and the matter has been pending in this lis. The statutory appeal of the petitioner dated 07.07.2017 was pending before the 1st respondent- Appellate Authority as on the date of the Full Bench judgment (16.10.2017) and therefore, the appellate authority is right in holding as per Ext.P-3 order dated 8.3.2018 that the lis in question is regulated by the legal position settled by the Full Bench in Abdul Muneer’s case (supra), whereby the contra legal position in Jose’s case (supra) and Manuel’s case (supra) have been overruled. Hence, the above said objections of the petitioner are untenable. 30. The other contention raised by the petitioner is that the law as it stood as on the date of execution of the deed is the applicable law for determining the stamp duty etc.
Hence, the above said objections of the petitioner are untenable. 30. The other contention raised by the petitioner is that the law as it stood as on the date of execution of the deed is the applicable law for determining the stamp duty etc. True that the Division Bench of this Court in State of Kerala v. George Jacob [ 2005(4) KLT 709 ) has held in para.32 thereof that for the purpose of determination of the rate of stamp duty, the date of execution as defined in Sec.2(f) of the Kerala Stamp Act is the determining date and the date of presentation or registration itself would not have any bearing whatsoever on the question and that the prescribed stamp duty as on the date of execution of the deed is the rate on the basis of the duty in that regard is to be paid. However, the further contentions made by the petitioner in that regard is that the law as it stood on the date of execution of the partition deed (29.03.2017), was the one settled by the Division Bench in Jose’s case (supra) and Manuel’s case (supra) and that therefore, the issue as to whether the petitioner is entitled to get the benefit of the lower stamp duty under Art.42 of the Kerala Stamp Act is to be determined on the basis of such Division Bench dictum even though those judgments were subsequently overruled etc. 31. A similar contention was considered by the Apex Court in the judgment in Dr.Suresh Chandra Varma & Ors. v. The Chancellor, Nagpur University & Ors. [ (1990) 4 SCC 55 ). In para.15 of the decision in Dr.Suresh Chandra Varma's case (supra), it has been observed that the contention therein was that since the provisions of Sec.57(5) of the Nagpur University Act gives power to the Chancellor to terminate the service of a Teacher only being satisfied that the appointment “was not in accordance with the law at that time in force” and that since the law at that time in force, viz., on 30.3.1985 when the appellants therein were appointed as per the law as laid down in Bhakre's case [W.P.(C)No.1876 of 1984 decided on 07.12.1984 by Nagpur Bench of the High Court], the termination of the appellants therein is beyond the powers of the Chancellor.
The Apex Court held that the said argument can only be described as naïve and that when a court decides that the interpretation of a particular provision as given earlier was not legally correct, it in effect declares that the law as it stood from the beginning was as per its decision, and that it was never the law, otherwise. The above said argument of the petitioner is also an aspect which is intrinsically connected with the discussion on the first contention based on the applicability of prospective overruling and as stated herein above, the declaration of law made by a constitutional court like the High Court would apply not only to new cause of action arising on or after the date of judgment but even to all pending causes. Hence in view of the above said aspects more particularly in the light of the aspects borne out from the judgment of the Apex Court in Dr.Suresh Chandra Varma's case supra, it is only to be held that the above said second contention of the petitioner is also not tenable and will stand overruled. 32. So the issue as to whether the petitioner is eligible for the benefit of lower stamp duty under Article 42 of the Schedule to the Kerala Stamp Act, 1959, is to be decided in the light of the legal position settled by the Full Bench in Abdul Muneer's case (supra). As discussed hereinabove, though the first five executants are siblings and each one of them are inter-related among those executants so as to constitute a family as understood in the definition of family in that provision, the sixth executant being the son of a deceased sibling cannot be said to be related at least to one among the other executants. Moreover, the issue decided by the Full Bench in Abdul Muneer's case (supra) is only in respect of a statutory provision and not in respect of matters arising out of the constitution. In the light of all the aforementioned aspects, the doctrine of prospective overruling will not apply in the facts of this case. Hence the respondents have correctly decided in Exts.P-1 and P3 that the petitioner does not deserve lower stamp duty as per that provision and that he is liable to pay the higher stamp duty thereof.
In the light of all the aforementioned aspects, the doctrine of prospective overruling will not apply in the facts of this case. Hence the respondents have correctly decided in Exts.P-1 and P3 that the petitioner does not deserve lower stamp duty as per that provision and that he is liable to pay the higher stamp duty thereof. In that view of the matter the impugned orders at Exts.P-1 and P-3 do not suffer from any illegality, impropriety or unreasonableness and no interference is called for. 33. Before parting with this case, this Court would place on record its appreciation to the able and effective assistance rendered by Sri.K.Shri Hari Rao, learned counsel appearing for the petitioner and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents. In the light of these aspects, it is ordered that the afore captioned writ petition (civil) will stand dismissed.